Opinion
F051518
6-24-2008
THE PEOPLE, Plaintiff and Respondent, v. AARON MARTIN WHEELER, Defendant and Appellant.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
PROCEDURAL SUMMARY
In 1981 and again in 1993, defendant Aaron Martin Wheeler was convicted of lewd and lascivious acts with a child under the age of 14 years in violation of Penal Code section 288, subdivision (a). He served prison terms for both offenses. Prior to the end of his last prison term, the Fresno County District Attorneys office (the County) filed a petition to have Wheeler declared a sexually violent predator (SVP) and committed for a two-year term under the supervision of the Department of Mental Health (Department) for treatment and confinement, as provided for by the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et. seq.) The petition was granted and Wheeler was committed for a period of two years. On September 24, 2002, just prior to the expiration of the initial two-year term, the County filed a petition to recommit Wheeler for an additional two-year term. For reasons not clear from the record, the 2002 petition remained pending on September 12, 2006, when a third recommitment petition was filed by the County.
All further references are to the Welfare and Institutions Code unless otherwise noted.
While the petitions were pending, Senate Bill No. 1128 was signed into law as emergency legislation. (Stats. 2006, ch. 337, §§ 53-62, hereafter Senate Bill 1128.) The SVPA thereafter provided: "If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the [Department] for appropriate treatment and confinement ...." (§ 6604, italics added.) On October 3, 2006, the trial court granted a motion by the County to amend the petition to seek an indeterminate commitment instead of a two-year term of recommitment.
In November 2006, the voters approved Proposition 83 (known as "Jessicas Law"), which amended several statutes addressing violent sex offenses, including the SVPA. (See Historical and Statutory Notes, 73D Wests Ann. Welf. & Inst. Code (2008 supp.) foll. § 6604, pp. 134, 140; Prop. 83, § 27, as approved by voters Gen. Elec. (Nov. 7, 2006, eff. Nov. 8, 2006).) Like Senate Bill 1128, Proposition 83 changed the two-year civil commitment term to an indeterminate civil commitment. Although the two enactments are essentially the same, there are slight differences in language. Wheelers recommitment petition was heard and granted before the passage of Proposition 83. Therefore, any challenge to the recommitment order is governed by the provisions of the statute as amended by Senate Bill 1128. However, as we will explain, any challenges to provisions of the SVPA that do not operate until a later date will be governed by the statute as amended by Proposition 83.
On October 11, 2006, after a jury trial, Wheeler was found to meet the criteria for commitment as an SVP. The court in turn ordered that Wheeler be committed for an indeterminate term.
FACTUAL SUMMARY
Since Wheeler does not challenge the sufficiency of the evidence supporting the jurys findings, we provide only a brief summary of the facts. Wheelers 1981 offense involved the molestation of two girls, ages 9 and 11. Wheeler and a codefendant, while both under the influence of cocaine, orally copulated the victims and had the girls orally copulate them. For this offense, Wheeler was sentenced to five years in state prison. The second offense involved the molestation of a 10-year-old girl. Wheeler touched the girls vagina over her clothes for 30 seconds twice in one day. For this offense Wheeler received a nine-year prison sentence. Wheeler knew all of the victims.
As part of the SVPA commitment process, Wheeler was evaluated in 2002, 2003, and 2005, by psychiatrist Dr. Hadley Osran. Dr. Osran diagnosed Wheeler as suffering from pedophilia, a recognized mental disorder involving recurrent sexual arousal and fantasies about prepubescent children. Dr. Osran also diagnosed Wheeler as being bipolar with a borderline personality. Wheelers mental health history is extensive and includes substance abuse, self-reported uncharged incidents of molestation, and gender confusion. Wheeler believes he is a woman and is seeking gender reassignment. According to Dr. Osran, Wheelers mental disorders pose a high risk of impulsivity. Dr. Osran testified that Wheeler scored either a five or six on the STATIC 99, which suggests that Wheeler is at medium-to-high risk of reoffending. There were many other factors that led to Dr. Osrans ultimate opinion that Wheeler posed a serious, well-founded risk of reoffending over his life, and that Wheeler was an SVP as defined by the SVPA.
Psychiatrist Gabrielle Paladino also testified that she evaluated Wheeler in 2002, 2003, and 2005. She also saw Wheeler on a regular basis because she was the doctor for his unit at Atascadero State Hospital. In reaching her decision that Wheeler suffered from a mental disorder that affected his volitional control and placed him at risk of reoffending if released, Dr. Paladino considered her interviews with Wheeler, his medical records, his medical condition (Wheeler has cancer and AIDS and is wheelchair bound), and information from the Atascadero State Hospital staff. Dr. Paladinos diagnosis is that Wheeler suffers from three mental disorders: bipolarism, polysubstance abuse, and pedophilia. According to Dr. Paladino, Wheelers history establishes that he is attracted to prepubescent girls. Although Dr. Paladino admitted that if Wheeler were a rapist his medical condition would prevent reoffense, she opined that, as a pedophile, he could use guile, not force, to reach his victims. She reported that Wheeler is a "very entrenched pedophile who does not yet have the tools to utilize successfully to prevent reoffense out in the community at this time."
Wheelers expert, clinical psychologist Raymond Anderson, agreed that Wheeler is bipolar, but concluded that Wheeler suffers from no sexual disorder that predisposes him to sexually abnormal behavior. He did admit that Wheeler has some attraction to underage females. He also testified that he did not believe the STATIC 99 to be an appropriate risk-assessment tool. A second expert called by Wheeler, psychiatrist Federico Banales, diagnosed Wheeler as a pedophile with polysubstance abuse and gender identity disorder. Banales testified that Wheeler has a life-long imaginary companion named "Pam," who was with him when he offended.
Wheeler, his wife, and the chaplain with experience in "aesthetic view" treatment also testified for the defense.
DISCUSSION
I. Jurisdiction
Wheeler contends that, because the statute at the time of trial, as amended by Senate Bill 1128, makes no reference to recommitment proceedings, the trial court had no right to entertain a petition for recommitment. This argument has already been rejected by this court in People v. Carroll (2007) 158 Cal.App.4th 503 (Carroll), by the Fourth District in People v. Shields (2007) 155 Cal.App.4th 559, and by the Third District in Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275 (Bourquez). Since we agree with the result reached in these cases, we see no need to go through an exhaustive analysis of the issue here.
In summary, although all references to an extended commitment in sections 6604 and 6604.1 were deleted (Stats. 2006, ch. 337, §§ 55, 56), the absence of an express reference to extended commitments in the statute is the result of the change from an annual renewable two-year commitment to an indeterminate commitment. (People v. Shields, supra, 155 Cal.App.4th at p. 563.) It is not the result of the intent to allow those committed as SVPs at the time of the amendments to be released. Under the statute as it now reads, once a person is committed as an SVP, he remains in custody until it is established through use of the statutory procedural mechanisms that he is no longer an SVP. (See §§ 6605, 6608, subd. (i); Carroll, supra, 158 Cal.App.4th at p. 510; see also Bourquez, supra, 156 Cal.App.4th at p. 1287 [nature of Senate Bill 1128 and Prop. 83 to strengthen punishment and control of sexual offenders, compels conclusion that new law intended those previously found to be SVPs remain subject to provisions for extended commitments].)
The statutory changes contain an implied-saving clause that permits proceedings to extend commitments where individuals were committed under the former law. The superior court did not lack jurisdiction to recommit Wheeler as an SVP.
II. Retroactivity
Wheeler also contends that his indeterminate term of commitment must be reversed because the statutory changes cannot be applied retroactively. Wheelers petition for recommitment was filed before the statutory amendments authorized an indeterminate term and is based on qualifying offenses occurring before the statutory amendments. Wheeler claims that committing him to an indeterminate term is an impermissible retroactive application of the statute. He also contends that the County is estopped from seeking the indeterminate term because of the long delay in bringing the September 2002 petition to trial. While acknowledging he acquiesced in the delay, Wheeler claims he acquiesced without knowing that he was facing a more severe commitment term.
Although there is nothing in the legislative history to express or imply the intent that the statute be applied retroactively (Bourquez, supra, 156 Cal.App.4th at p. 1287; Carroll, supra, 158 Cal.App.4th at p. 513), the statutory changes were not applied retroactively in this case. As we explained in Carroll, "[i]n order for a law to be retrospective, it must apply to events occurring before it was enacted. [Citation.]" (Carroll, supra, at p. 513; see also Bourquez, supra, at pp. 1288-1289.) The critical question in determining whether a statute has been applied retroactively is whether the last act or event necessary to trigger a legal consequence occurred before or after the statutory changes in question. (Carroll, supra, at p. 513.) The significant event in any SVP hearing is the adjudication of an individual as an SVP. (Ibid. [each extension or recommitment hearing under former statute was new and independent proceeding requiring new determination of SVP status]; see also Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1170 [trial on any petition for commitment or recommitment focused on persons current mental condition].) A recommitment proceeding occurring under the new statutory provisions does not constitute retroactive application of the changes so long as the adjudication and the indeterminate commitment occur after the amendments become effective. (Carroll, supra, 158 Cal.App.4th at p. 513.)
There is also nothing to justify application of the doctrine of estoppel. Neither side could know in 2002 that the statute in 2006 would provide for indeterminate terms. As Wheeler acknowledges, the doctrine of estoppel requires that one side have information and the other side be ignorant of the true facts and rely upon the conduct of the other person to his or her detriment. (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 794.) Wheelers acquiescence cannot have been induced by information known to the County but not to Wheeler. Neither can Wheeler show prejudice, i.e., detrimental reliance. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 34 [proof of estoppel requires showing of detrimental reliance by injured party].) Wheeler cannot show that, had there been no delay of the 2002 recommitment petition, he would not be facing an indeterminate commitment in 2006. There is no evidence suggesting that, had the 2002 petition gone to trial sooner, Wheeler would have been released. The burden of showing detrimental reliance rests on Wheeler if he is to assert successfully the doctrine of estoppel. (Waller v. Truck Ins. Exchange, Inc., supra, at p. 34 [in absence of any proof of detrimental reliance defense of estoppel is denied].)
III. Ex post facto, double jeopardy, cruel and unusual punishment claims
Wheeler contends that a petition seeking an indeterminate term is constitutionally infirm because commitment for an indeterminate term violates the constitutional prohibition against double jeopardy, constitutes cruel and unusual punishment, and violates ex post facto rules. Other courts have rejected these challenges. It is well settled that a commitment under the SVPA is civil in nature and does not amount to punishment. (See 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]; People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2 [because SVPA is not punitive in purpose or effect and does not impose liability or punishment for criminal conduct, double-jeopardy and cruel-and-unusual-punishment claims fail]; People v. Carlin (2007) 150 Cal.App.4th 322, 348 [same]; 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"].)
The analysis in this case is not dependent on the term of civil commitment, but on the intent and effect of the statute authorizing it. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1171 [key is whether SVPA intended by Leg. to inflict punishment].) Hubbart observed 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.]" (Id. at p. 1176.)
Wheeler argues that the broad scope of Senate Bill 1128, and subsequently Proposition 83, was intended to increase punishment of sexual offenders and, therefore, the SVPA has now become punitive in purpose. This argument was rejected in People v. McKee (2008) 160 Cal.App.4th 1517, in an analysis with which we agree. Any Penal Code amendments made by Senate Bill 1128 or Proposition 83 increasing the punishment for various sex offenses have little, if any, relevance to the purpose or effect of the amendments to the Welfare and Institutions Code regarding civil commitments of SVPs. (People v. McKee, supra, at p. 1545.) The indeterminate term under Californias SVPA 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." (Kansas v. Hendricks (1997) 521 U.S. 346, 363.) This is "a legitimate nonpunitive governmental objective and has been historically so regarded." (Ibid.)
There is nothing in the legislative history that suggests Senate Bill 1128 or Proposition 83 were intended to do anything other than make the SVPA a more effective civil scheme to protect the public from a small group of exceedingly dangerous individuals. As a result, the constitutional provisions raised by Wheeler do not apply.
IV. Equal protection
Wheeler further contends that he has been denied equal protection because SVPs receive treatment disparate from other similarly situated persons. He argues that SVPs are similarly situated to and should be treated no differently than mentally disordered offenders (MDO) subject to commitment under either 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.).
We measure equal-protection claims of disparate treatment in civil commitments under the strict-scrutiny standard. (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217.) Equal protection requires that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. (In re Gary W. (1971) 5 Cal.3d 296, 303.) In order to show that equal protection has not been afforded, the claimant must first show that the state has adopted a classification affecting two or more similarly situated groups in an unequal manner. The test is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.)
Wheelers opening brief contains no analysis showing how SVPs are similarly situated to MDOs and NGIs under the law. He has therefore not carried his burden on appeal to persuade us that SVPs are similarly situated to MDOs and NGIs to the extent the Legislature has adopted a classification that affects them in an unequal manner. (People v. McKee, supra, 160 Cal.App.4th at p. 1551; People v. Hubbart, supra, 88 Cal.App.4th at p. 1216.)
Several California appellate cases already have addressed and rejected the equal-protection challenges raised. (People v. Calderon (2004) 124 Cal.App.4th 80, 94 [MDOs and SVPs not similarly situated]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1314-1315 [rejects claim of equal-protection violation after analyzing MDO and SVP schemes]; People v. Hubbart, supra, 88 Cal.App.4th at pp. 1218-1219 [SVPA does not violate equal protection]; People v. Calhoun (2004) 118 Cal.App.4th 519, 529-530 [SVPs and criminal defendants not similarly situated, so no equal-protection violation].) Additionally, the Ninth Circuit has held that Californias statutory scheme for treatment of SVPs does not violate equal protection. (Hubbart v. Knapp (9th Cir. 2004) 379 F.3d 773, 782 [no constitutionally significant distinction between MDO and SVP statutes].) Since the groups are not similarly situated, there is no requirement that they be treated the same. "[T]he Legislature may make reasonable distinctions between its civil commitment statutes based on a showing that the persons are not similarly situated ...." (In re Smith (2008) 42 Cal.4th 1251, 1266.)
We agree with the cited authority and reject Wheelers equal-protection claim.
V. Due process
Wheeler raises a number of challenges to the amended statute that he contends work to deny an SVP due process. He first challenges the indeterminate term, arguing that an indeterminate commitment is inconsistent with the premise that a valid civil commitment can only occur when there is current dangerousness caused by a current mental state. We again look to the reasoned analysis found in People v. McKee, supra, 160 Cal.App.4th 1517, which rejected a due-process challenge to the amendments on similar grounds. McKee concluded that providing for an indefinite civil commitment (regardless of the standard of proof) will not alone violate due-process guarantees. The court noted that both Addington v. Texas (1979) 441 U.S. 418, 425 and Jones v. United States (1983) 463 U.S. 354 involved indefinite civil commitments and neither one expressed constitutional concerns regarding the potential length of an indefinite civil commitment. "So long as an initial civil commitment for an indefinite term is subject to adequate periodic examinations and petitions for review or release to determine the current status of a committed person to ensure that a committed person who no longer qualifies for commitment is released, ... the federal constitutional right to due process does not prohibit an involuntary civil commitment for an indefinite term." (People v. McKee, supra, 160 Cal.App.4th at p. 1542, citing Foucha v. Louisiana (1992) 504 U.S. 71, 77 [interpreting Jones as holding that an insanity acquittee may be held pursuant to a civil commitment "as long as he is both mentally ill and dangerous, but no longer"].)
Section 6605 provides that a current mental health examination shall be conducted each year to determine whether the person currently meets the definition of an SVP. (§ 6605, subd. (a).) The results are to be filed with the court and served on the committed person. (Ibid.) If it is determined that the person no longer meets the definition of an SVP, or if the person can be conditionally released, then a petition for this type of discharge or conditional release is to be filed. (§ 6605, subd. (b).) If the Department does not certify that the person should be discharged or conditionally released, the committed person can file a petition pursuant to section 6608 for conditional release or discharge. (§ 6608, subd. (a).) Section 6608, subdivision (i), provides that, in any hearing on a petition filed under this section, the petitioner has the burden of proof by a preponderance of the evidence. Due to the requirement of an annual review, the commitment period is "only potentially indefinite." (Kansas v. Hendricks, supra, 521 U.S. at p. 364.)
Wheeler argues that the limited review available under the California scheme is constitutionally inadequate and violates due process because the Departments annual review of an SVP is limited to "mental condition" and not to actual SVP status. (§ 6605, subd. (a).) Contrary to Wheelers contention, the Department must undertake an annual review requiring "consideration of whether the committed person currently meets the definition of a sexually violent predator," and not just the SVPs current mental condition. (§ 6605, subd. (a).) Additionally, if at any time the Department believes a person committed as an SVP no longer qualifies as an SVP, the Department must seek judicial review of the commitment. (§ 6605, subd. (f).) The annual review and the numerous methods by which a committed person may seek discharge or conditional release under Californias scheme (§ 6608) assure that an individual remains committed only as long as he or she meets the statutory definition of an SVP and that constitutional requirements are satisfied. (See Kansas v. Hendricks, supra, 521 U.S. at pp. 364-365.)
There is also no constitutional infirmity as Wheeler suggests in assigning the SVP the burden of proof by a preponderance of the evidence when the SVP seeks discharge or conditional release. (§ 6608, subd. (i).) The constitutionality of the statutory scheme adopted by California for treating SVPs, including the assignment of the burden of proof, has been upheld by the California Supreme Court in Hubbart v. Superior Court, supra, 19 Cal.4th 1138. The court in Hubbart first comprehensively summarized the many provisions in the scheme and observed that a person filing a petition for discharge or conditional release had the burden of proof by a preponderance of the evidence. (Id. at p. 1148 & fn. 14.) The Hubbart court then analyzed and rejected a due-process challenge to the statutory scheme. (Id. at pp. 1151-1167.)
An SVP commitment proceeding is civil in nature. (People v. Collins (2003) 110 Cal.App.4th 340, 348.) Although a defendant in an SVP proceeding is entitled to due process, the protections afforded are measured by the standard applicable to civil, not criminal, proceedings. (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 738.) "Due process is a flexible concept that calls for `"such procedural protections as the particular situation demands." [Citation.]" (People v. Hardacre (2001) 90 Cal.App.4th 1392, 1399.) Rules of civil procedure apply to petitions for discharge or conditional release filed by an SVP pursuant to section 6608. (People v. Collins, supra, 110 Cal.App.4th at p. 348.) The burden of proof in a civil action rightly falls on the moving party and is governed by a preponderance of the evidence. (Ibid.; § 6608, subd. (i); Evid. Code, § 115.)
Lastly, Wheeler complains that language found in former section 6605, the version amended by Senate Bill 1128 in effect prior to the amendments effectuated by Proposition 83, denies him due process because there is a presumption built into the statute that nonparticipation in treatment is evidence of no change in mental condition and because the statute requires completion of a treatment program even if he is no longer an SVP. These issues were rendered moot with the passage of Proposition 83, which amended the statute to delete these provisions. We agree that, because the version of the statute attaching to any petition for release filed by Wheeler will be the version in effect at the time of the petition, we need not look to former versions of the statute, even those in effect at the time the petition for recommitment was heard. (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 291 [to find version of statute applying, look to date of conduct regulated].)
We conclude there is no violation of federal or state due-process guarantees.
VI. First Amendment right to petition
Wheelers final constitutional challenge to the SVPA is his assertion that the statute limits his right to seek redress of grievances in the courts in violation of the First Amendment. We agree that our federal Constitution requires that defendants have "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." (Bounds v. Smith (1977) 430 U.S. 817, 825, overruled on other grounds in Lewis v. Casey (1996) 518 U.S. 343.) However, Wheeler has not shown that he has been denied access to the courts, now or in the hypothetical future.
Specifically, Wheeler argues that the Department is the "gatekeeper" between the SVP and the court. Yet, the current version of the statute, as amended by Proposition 83, reads, "Nothing in this article shall prohibit the person who has been committed as a sexually violent predator from petitioning the court for conditional release or an unconditional discharge without the recommendation or concurrence of the Director of Mental Health." (§ 6608, subd. (a).) Wheeler also argues that the statute imposes a presumption of frivolousness which favors continued commitment without judicial review. We disagree. If the SVP has previously filed a petition for release which was found to be frivolous, or the court found that conditions had not changed and the SVP remained a danger to the community if released, "the court shall deny the subsequent petition [without a hearing] unless [the petition] contains facts upon which a court could find that the condition of the committed person had so changed that a hearing was warranted." (Ibid.) In other words, there is a threshold showing required before a full evidentiary hearing is granted. This procedure does not deny access to the court. There is a judicial officer charged with making the determination regarding the frivolousness of the petition. In addition, the SVP has the assistance of counsel to make his initial showing. (§§ 6608, subd. (a), 6605, subd. (a).)
Wheeler also contends, without evidence or authority, that the Department is adversarial to him and "cannot be relied upon" as a proxy for an SVP. However, as we have already explained, under the statute an SVPs ability to petition for release does not rest solely with the Department. If Wheeler believes that his mental condition has changed and he no longer qualifies as an SVP and can be discharged or conditionally released, he has the right to file a petition under section 6608 to have counsel appointed to represent him and to seek the appointment of medical experts to evaluate him. (§§ 6608, subd. (a), 6605, subd. (a).) Further, civil discovery rules applicable to SVP proceedings provide an SVP access to all of his or her medical and psychological records. (Bagration v. Superior Court (2003) 110 Cal.App.4th 1677, 1687.)
Wheeler also argues without explanation that the increased burden imposed upon SVPs acts to limit their access to the courts. The burden placed on SVPs to prove the allegations of their petition by a preponderance of evidence does not limit access to the courts in any way; this is the standard imposed in the majority of civil actions. To the contrary, Wheelers argument is not a limited-access argument, but is instead one based on due process, which we have already addressed and decided against him.
The cases cited by Wheeler are distinguishable and involve cases in which a prisoners ability to access the courts was restricted by institutional rules or deficiencies. This is not the case under the SVPA. In Ex parte Hull (1941) 312 U.S. 546, prison officials were intercepting petitions deemed "not in proper form" and returning them to the prisoner. In Burns v. Ohio (1959) 360 U.S. 252, indigent prisoners were not allowed to file habeas corpus petitions without payment of fees. In Griffin v. Illinois (1956) 351 U.S. 12, the state refused to provide indigent prisoners with trial records. In Lewis v. Casey, supra, 518 U.S. 343, 351, the court found meaningful access denied when prison authorities failed to provide adequate assistance of counsel or other help in preparing prisoners petitions and did not provide adequate access to law libraries. The same was true in Bounds v. Smith, supra, 430 U.S. 817 and Johnson v. Avery (1969) 393 U.S. 483. In contrast, the SVPA facilitates access to the courts. Further, a committed person always has the right to seek release by way of a petition for writ of habeas corpus. (People v. Talhelm (2000) 85 Cal.App.4th 400, 404-405.) We conclude there is no First Amendment violation.
VII. Admission of plethysmograph test results
Turning to the merits of his case, Wheeler contends that his trial counsel rendered ineffective assistance by failing to challenge the admissibility of the penile plethysmograph test (phallometric test) on the ground that it is not generally accepted as reliable in the relevant scientific community. (People v. John W. (1986) 185 Cal.App.3d 801, 803-809, disapproved on other grounds in People v. Stoll (1989) 49 Cal.3d 1136, 1153, fn. 18; see also People v. Waidla (2000) 22 Cal.4th 690, 717 [questions relating to admissibility of evidence will not be reviewed on appeal absent objection in trial court].) To succeed on a claim of ineffective assistance of counsel, Wheeler must show that counsels performance was deficient when reviewed by an objective standard of reasonableness under prevailing professional norms. In addition, he must show prejudice, i.e., that it is reasonably probable, but for counsels failings, that the result would have been more favorable. (People v. Riel (2000) 22 Cal.4th 1153, 1175.) Even if we were to agree that the evidence should not have been admitted, we conclude there is no prejudice. (People v. Cox (1991) 53 Cal.3d 618, 656 [when defendant cannot establish second prong of test, it is unnecessary to consider whether counsels performance was deficient].)
During direct examination, Dr. Osran testified without objection that one of the clinical factors he considered when evaluating Wheeler was his history of deviant sexual arousal. Dr. Osran testified that, in 2000, Wheeler underwent phallometric testing, which physically measures the sexual arousal of a male in response to certain stimuli. The test showed deviant sexual arousal to prepubescent males and females, as well as arousal to adult women. Dr. Osran also testified that when Wheeler was again tested in 2002, there was a "drop-off" in deviant sexual arousal. Dr. Osran explained this was expected because Wheeler was taking antiandrogens (a form of chemical castration) at the time. The antiandrogens were discontinued by Wheelers doctors because the drugs cause bone density loss and Wheeler was already compromised in this area because of his HIV.
This testimony adds little to the total evidence presented. Wheelers previous offenses establish a long history of being attracted to prepubescent girls. Wheeler admitted to Dr. Paladino that he is attracted to young females. Moreover, Dr. Osran explained that a more recent phallometric test was not required because the testing result was consistent with Wheelers history. In other words, it shows what is already known. Additionally, the evidence is arguably favorable to Wheeler. Dr. Anderson said that Wheelers arousal rate on the phallometric test was 23 percent to children and 23 percent to adults. A 20 percent response is disregarded under testing protocol as too low to be interpretable. One would expect a pedophiles arousal rate for children to be about 60 percent. These numbers were not contradicted. The low arousal rates support Wheelers claim that he no longer has sexual urges and the inference that he could control his urges if released. This evidence suggests counsel may have made a strategic decision to allow the phallometric evidence to be introduced without objection. (People v. Hillhouse (2002) 27 Cal.4th 469, 502 [deciding whether to object is inherently tactical, and failure to object will rarely establish ineffective assistance of counsel].)
Since Wheeler cannot show prejudice, his claim of ineffective assistance of counsel fails.
VIII. Jury instructions
Wheeler contends that the court erred in giving a former version of Judicial Council of California Criminal Jury Instructions (2006-2007) (CALCRIM) No. 3454, an instruction that, according to Wheeler, lessens the Countys burden of proof by misstating an element. Wheeler did not object to the instruction as given, but asserts that his contention remains viable because the error affected substantial rights. In the interests of judicial economy, we will decide the issue on its merits without deciding whether the contention has been waived.
The statute defines SVP as follows:
"`Sexually violent predator means a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1), italics added.)
The instruction given reads as follows:
"To prove [that Wheeler is an SVP], the [prosecution] must prove beyond a reasonable doubt that: One, he has been convicted of committing sexually violent offenses against two or more victims; two, he has a diagnosed mental disorder; and, three, as a result of that diagnosed mental disorder, it is likely that he will be a danger to the health and safety of others because he will engage in sexually violent predatory criminal behavior."
The current version of the instruction echoes the language of former CALJIC No. 4.19 and reads:
"The petition alleges that ___________________ <insert name of respondent> is a sexually violent predator. [¶] To prove this allegation, the People must prove beyond a reasonable doubt that: [¶] 1. (He/She) has been convicted of committing sexually violent offenses against two or more victims; [¶] 2. (He/She) has a diagnosed mental disorder; [¶] [AND] [¶] 3. As a result of that diagnosed mental disorder, (he/she) is a danger to the health and safety of others because it is likely that (he/she) will engage in sexually violent predatory criminal behavior(;/.)" (CALCRIM No. 3454, italics added.)
According to Wheeler, the instruction changes the required link between a persons mental disorder and his dangerousness from the present tense as stated in the statute to the subjective conditional tense. This, he argues, allows the jury to conclude he is an SVP without finding current dangerousness.
While we agree that the amended version of the instruction more closely patterns linguistically the statutory language, Wheeler cannot show prejudice even if we were to determine the slight change in order and tense to be significant. We do not believe the jury could have misunderstood its charge in light of the totality of the instructions given. (See People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149 [claims of instructional error evaluated in light of instructions as a whole].) The instruction immediately following told the jury that, "[a] person is likely to engage in sexually violent predatory criminal behavior if there is a serious and well-founded risk that the person will engage in such conduct if released into the community." The "likely to reoffend" prong of Californias SVPA requires a finding of substantial danger: a serious and well-founded risk that the persons diagnosed mental disorder will lead to new criminal sexual violence unless the person is confined and treated. (People v. Roberge (2003) 29 Cal.4th 979, 988; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.) A current danger to the community is synonymous with a well-founded risk of reoffending. (People v. Williams (2003) 31 Cal.4th 757, 769.) The jury was also told it could not conclude that Wheeler was an SVP based solely on his prior convictions.
In addition to the instructions, counsel both argued the element of dangerousness to the community using the present tense. The County argued that "primarily what were talking about" is Wheelers pedophilia and whether he "is" "a serious and well-founded risk to reoffend." Wheelers counsel attacked the statistics provided by the experts on the risk of reoffense. He emphasized Wheelers plans for controlling his behavior if released, Wheelers current medical health, what Wheeler learned at Atascadero, and how Wheeler now views his past offenses—all focusing on Wheelers present dangerousness to the community. The jury was urged to find that Wheeler did not pose "a serious and well-founded risk to reoffend." In view of the jury instructions as a whole, the arguments of counsel, and the evidence presented at trial, we conclude that it is not reasonably probable the jury would have reached a more favorable verdict had the current version of CALCRIM No. 3454 been given.
DISPOSITION
The order of recommitment is affirmed.
WE CONCUR:
Vartabedian, Acting P.J.
Hill, J.