Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PMH20060029
Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Timothy Wright appeals from an indeterminate civil commitment to the State Department of Mental Health (the Department) after he was found to be a sexually violent predator (SVP) under Welfare and Institutions Code section 6600 et seq. (All further unspecified statutory references are to this code.) He contends there was instructional error as the court instructed the jury that child molestation was a sexually violent offense, without including that it must be a lewd act committed with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of the person or the child. He further contends that his indeterminate commitment with limited judicial review violates due process and equal protection. We affirm.
These contentions are currently pending before the California Supreme Court. (People v. McKee (2008) 160 Cal.App.4th 1517, rev. grtd. July 9, 2008 (S162823); People v. Johnson (2008) 162 Cal.App.4th 1263, rev. grtd. Aug. 13, 2008 (S164388); People v. Riffey (2008) 163 Cal.App.4th 474, rev. grtd. Aug. 20, 2008 (S164711); People v. Boyle (2008) 164 Cal.App.4th 1266, rev. grtd. Oct. 1, 2008 (S166167).)
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, the district attorney of El Dorado County filed a petition to recommit Wright as an SVP for an indeterminate term. While the matter was pending, Wright voluntarily underwent surgical castration, a bilateral orchiectomy.
The parties stipulated that Wright had been convicted of two sexually violent offenses against two different victims in 1994. The primary issue at trial was the effect of the orchiectomy on the likelihood Wright would engage in sexually violent behavior in the future. Each side presented expert testimony that offered differing opinions on the issue.
Mohan Nair, a psychologist who performed a recommitment evaluation of Wright, diagnosed Wright with pedophilia. Dr. Nair opined that Wright represented a substantial and well-founded risk of reoffending because a lot of his problem was in his head. Further, he could restore the diminishing testosterone by shots, patches, lozenges or cream.
Another psychologist, Robert Owen, had first diagnosed Wright with pedophilia in 1996. At that time Dr. Owen determined Wright was not in a high risk category. He changed his opinion in 2004 after Wright continued to offend and found Wright to be an SVP. Dr. Owen updated his evaluation of Wright after the orchiectomy and found Wright still posed a substantial risk of reoffending due to the strong psychological element of his disorder. The orchiectomy lowered the risk, but it remained substantial.
John Podboy, a clinical and forensic psychologist who worked with disabled veterans testified an orchiectomy ends one’s sexual life. He believed the surgery indicated Wright’s willingness and motivation not to reoffend. In Dr. Podboy’s opinion, Wright was not a risk to the community.
Brian Abbott, a clinical psychologist and a licensed social worker, diagnosed Wright with Asperger’s syndrome and partialism, a rare form of paraphilia. He testified that Wright’s disorder was in remission after the orchiectomy and Wright had no serious difficulty in controlling his behavior. In Dr. Abbott’s opinion, there was no serious and well-founded risk of Wright engaging in sexually violent behavior.
The jury found Wright was an SVP. The court ordered Wright recommitted for an indeterminate term.
DISCUSSION
I. Instructional Error
Wright contends the court prejudicially erred and violated his constitutional rights by instructing the jury that molestation of a child under the age of 14 years is a sexually violent offense. Wright contends that child molestation is not one of the crimes listed in section 6600, subdivision (b) as a sexually violent offense. If the court meant to refer to the crime proscribed by Penal Code section 288, Wright argues the court erred by failing to instruct the jury that child molestation is a sexually violent offense only if it is a lewd or lascivious act committed on the body of a child with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the child or the perpetrator.
An SVP is “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).) The predicate “sexually violent offense” includes any violation of Penal Code sections 288 and 288a, if committed by force, violence or fear, or if the victim is under 14 years of age. (§ 6600, subd. (b); § 6600.1.)
In this case, there was no contested issue as to predicate offenses. The parties stipulated that Wright had been convicted of two sexually violent offenses. The court still instructed the jury on this element, referring the jury to the stipulation. The court then read the portion of CALCRIM No. 3454 that defines a sexually violent offense. Pursuant to the directions in the pattern instruction, the court inserted the “name[s] of crime[s] enumerated in Welf. & Inst. Code, § 6600(b).” (CALCRIM No. 3454.) The court inserted the names of the crimes as child molestation and oral copulation, so that portion of CALCRIM No. 3454 read: “Molestation and/or oral copulation of a child under the age of 14 years are sexually violent offenses.”
The court originally omitted this element from the instruction. After the district attorney objected to the omission, the court added the element: “Third, that he has been convicted of committing sexually violent offenses against one or more victims. And you received that stipulation.”
The instruction about which Wright complains defined the predicate offenses for an SVP. Wright objects to calling a violation of Penal Code section 288 child molestation rather than spelling out the statutory elements. Since Wright stipulated he had two qualifying sexually violent offenses, the jury did not have to determine if his prior convictions were for sexually violent offenses and any error in instructing on this issue is necessarily harmless.
Wright contends the jury would have used the definition of “sexually violent offenses” to determine if Wright was likely to engage in “sexually violent predatory criminal behavior,” since that term was not defined for the jury. Apparently, his argument is that the jury could have found him to be an SVP because it found he was likely to engage in child molestation without the lewd intent required by Penal Code section 288. We reject this argument.
Only the term “predatory” was defined. “Sexually violent criminal behavior is predatory if it is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or a person with whom a relationship has been established or promoted for the primary purpose of victimization.”
First, as the Attorney General notes, Wright cites no authority for the proposition that the trial court must define all acts that may constitute “sexually violent predatory criminal behavior.” Section 6600, subdivision (b) contains many more sexually violent offenses than simply child molestation and oral copulation.
Second, as a practical matter given the testimony of the experts, the jury would have understood the issue to be whether Wright was likely to reoffend. Wright’s prior offenses were committed with the lewd intent required under Penal Code section 288. Wright testified that from a young age he was interested in “exploring” and touching the penises of other boys. Touching penises sexually aroused him. Wright was also aroused by the smell of stale urine and gave boys sodas and sleeping pills so they would wet themselves. Wright admitted that he was sexually aroused in the vast majority of these cases of molestation. By focusing on whether Wright would reoffend, the jury properly considered whether it was likely Wright would engage in behavior that constituted “sexually violent predatory criminal behavior.”
II. Due Process
Wright contends his commitment for an indeterminate term subject to only limited judicial review under sections 6605 and 6608 violated his due process rights. He contends the limited review provisions are not narrowly tailored to serve the State’s interest in protecting society from those presently dangerous due to a mental illness because they create a substantial risk that a detainee who no longer qualifies as an SVP will remain in custody.
Originally, the Sexually Violent Predator Act (SVPA; §§ 6600-6609.3) provided for a two-year civil commitment of any person who was tried and found beyond a reasonable doubt to be an SVP. (People v. Williams (2003) 31 Cal.4th 757, 764, cert den. sub. nom. Williams v. California (2004) 540 U.S. 1189 [158 L.Ed.2d 98].) Upon expiration of the two-year term, the term could be extended only if the government again proved in a jury trial, beyond a reasonable doubt, that the person remained an SVP. (Former §§ 6604, 6604.1.)
In 2006, the SVPA was amended by Senate Bill No. 1128 and Proposition 83 to change the initial commitment from a two-year term to an indeterminate term. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281.) Because the term of commitment is indeterminate, the government no longer has to prove at regular intervals, beyond a reasonable doubt, that the person remains an SVP. Instead, the Department must examine the person’s mental condition at least once every year and must report annually on whether the person remains an SVP. (§ 6605, subd. (a).) If the Department determines the person is no longer an SVP, the director of the Department must authorize the person to petition the court for unconditional discharge. (§ 6605, subd. (b).) If, on consideration of such a petition, the court finds probable cause to believe the person is no longer an SVP, the court must conduct a hearing, at which the government has to prove beyond a reasonable doubt that the person is still an SVP. (Id., subds. (c) & (d).) If the government meets that burden, the person must (once again) be committed for an indeterminate term. (Id., subd. (e).) If the government does not meet its burden, then the person must be discharged. (Ibid.)
The only other avenue for release from confinement under the amended SVPA is a petition under section 6608. This statute remains substantially the same as before the enactment of Senate Bill No. 1128 and the passage of Proposition 83. Under section 6608, a person committed as an SVP may petition for conditional release or unconditional discharge without the recommendation or concurrence of the director of the Department. (§ 6608, subd. (a).) Such a petition may also be instituted by the director under section 6607. In any hearing under section 6608, however, the petitioner has the burden of proof by a preponderance of the evidence. (§ 6608, subd. (i).)
Wright contends the review procedures under the amended SVPA are inadequate. As to the first procedure, by which the Department authorizes a person to petition for discharge or conditional release, Wright complains the Department retains sole discretion and may prevent a hearing from ever taking place. There is no basis in the record or otherwise for speculating that the Department will not fairly assess the mental condition of a person committed as an SVP when called upon to do so. Moreover, section 6608 allows a person to petition for discharge without the concurrence or recommendation of the Department.
Wright contends this second alternative is inadequate because the person is not entitled to the assistance of an expert and has the burden of proof. The absence of an express provision in section 6608 for the assistance of an expert presents no due process concern because such a right is provided for in section 6605. Section 6605 requires the Department to report annually on a committed SVP’s mental condition. (§ 6605, subd. (a).) The statute also provides that “[t]he person may retain, or if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person.” (Ibid; original italics.) Thus, if the Department, in its annual report, concludes the person remains an SVP, that person can request appointment of an expert to review that determination. If the expert concludes contrary to the Department, the person can use the expert’s testimony to support a petition for discharge under section 6608.
Wright also challenges the requirement that he bear the burden of proving his right to release by a preponderance of the evidence. This statutory procedure is analogous to that at issue in Jones v. United States (1983) 463 U.S. 354 [77 L.Ed.2d 694].) In Jones, the high court considered a statutory scheme under which a person committed to a mental hospital after a finding of not guilty by reason of insanity was entitled to a judicial hearing to determine his eligibility for release at which he had the burden of proving by a preponderance of the evidence that he is no longer mentally ill or dangerous. The court found no due process violation in placing the burden of proof on the person committed. (Id. at pp. 366-368.) We find no due process violation here.
III. Equal Protection
Wright contends his indeterminate commitment with limited judicial review violates his right to equal protection. He contends an SVP is similarly situated with those committed under Penal Code sections 2960 et seq. as mentally disordered offenders (MDO’s) and those committed after a finding of not guilty by reason of insanity (NGI). Because we find SVP’s are not similarly situated to either group, we reject the equal protection argument.
“The constitutional guaranty of equal protection of the laws means simply that persons similarly situated with respect to the purpose of the law must be similarly treated under the law. [Citations.] If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold. [Citation.] The question is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ [Citation.]” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
Initially, we note that Wright simply asserts that SVP’s are similarly situated with MDO’s and NGI acquittees without analysis. Accordingly, he has not carried his burden on appeal to persuade us that SVP’s are similarly situated to these groups to the extent the Legislature has adopted a classification that affects them in an unequal manner. We find significant differences between the groups.
SVP’s and MDO’s differ with respect to their amenability to treatment. “[T]he MDO law targets persons with severe mental disorders that may be kept in remission with treatment (Pen. Code, § 2962, subd. (a)), whereas the SVPA targets persons with mental disorders that may never be successfully treated (Welf. & Inst. Code, § 6606, subd. (b)).” (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1222.) “Given these contrasting backgrounds and expectations related to treatment, we cannot say the two groups are similarly situated in this respect for equal protection purposes.” (People v. Buffington, supra, 74 Cal.App.4th at p. 1163.)
SVP’s and NGI acquittees differ significantly in how they are committed in the first place. A person who is found not guilty because he or she was insane at the time of the crime is automatically committed, without an evidentiary hearing to determine if the person is still insane at the time of commitment. (Pen. Code, § 1026.) In contrast, a person cannot be committed under the SVPA until a trier of fact finds beyond a reasonable doubt that the person is an SVP. (§ 6604.) Given the disparate manner in which SVP’s and NGI acquittees are committed in the first place, and the lack of any argument from Wright on the point, we conclude that he has failed to demonstrate that SVP's and NGI acquittees are similarly situated for purposes of the laws governing judicial review of their commitments.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.