Return to CALJIC Part 3-4 – Contents
F 4.19 n1 Sexually Violent Predator: Constitutional Challenge.
ALERT: In the state of Washington, a statute similar to California’s was held unconstitutional by the federal district court in Young v. Weston (W.D. Wash. 1995) 898 FSupp 744. The Ninth Circuit has ordered an evidentiary hearing to determine whether conditions of confinement at state mental institutions render the sexual predator statute punitive. (Young v. Weston (9th Cir. 1999) 176 F3d 1196.)
The Kansas Supreme Court held the sexual predator statute of that state unconstitutional in In re Care and Treatment of Hendricks (96) 912 P2d 129 [259 Kan. 246]. However, Kansas v. Hendricks (97) 521 US 346 [138 LEd2d 501; 117 SCt 2072] held that the Kansas sexual predator statute does not violate the federal constitution. The court held that the Kansas statute satisfies substantive due process requirements because it unambiguously requires a pre-commitment finding of dangerousness either to oneself or to others and links that finding to a determination that the person suffers from a “mental abnormality” or “personality disorder.” The court further held that the statute does not violate double jeopardy or ex post facto principles. [Additional materials on the sexual predator issues are available to FORECITE subscribers. Ask for Motion Bank # M-3002.]
In Hubbart v. Superior Court (99) 19 C4th 1138, 1156-68 [81 CR2d 492] the California Supreme Court relied on Hendricks to hold that the California SVP statutes do not violate due process. Hubbart also held that the statutes do not violate equal protection or ex post facto principles.
People v. Buffington (99) 74 CA4th 1149 [88 CR2d 696] held that the SVP Act does not violate equal protection or due process. These two constitutional issues were left open following the decision in Hubbart v. Superior Court (99) 19 C4th 1138 [81 CR2d 492]; see also People v. Green (2000) 79 CA4th 921 [94 CR2d 355].)
F 4.19 n2 Sexually Violent Predator: Requirement Of Present Dangerousness.
The California Supreme Court has held the SVP statutes to be constitutional in Hubbart v. Superior Court (99) 19 C4th 1138, 1169 [81 CR2d 492]. In so doing the Court made it clear that the trier of fact must find that the defendant “is dangerous at the time of commitment.” (Hubbart, 19 C4th at 1162; see also People v. Gibson (88) 204 CA3d 1425, 1436 [252 CR 56].)
NOTE: Urgency legislation amended WI 6603(c) (effective September 13, 2000 (Stats. 2000, ch. 420, § 2) to authorize updated interviews and evaluations, as well as prosecution access to treatment records of sexually violent predators. (Albertson v. Superior Court (People) (2001) 25 C4th 796 [107 CR2d 381].)
F 4.19 n3 Sexually Violent Predator: Instruction On Consequences Of Finding.
It is established that in an insanity context, the defendant is entitled, upon request, to have the jury instructed concerning the consequences of its verdict, since the jury may believe that the verdict may allow the defendant to go free. (See CJ 4.01.) The same reasoning could apply to the SVP finding. Since the jury is instructed that it is not a criminal proceeding (CJ 4.19 ¶ 10), the jury may speculate on the consequences of their verdict. (See FORECITE F 4.01 n1.)
CAVEAT: Counsel should carefully consider whether or not to request instruction on the consequences of finding the defendant a SVP, in that it could open the door for the prosecution to argue that the defendant will go free if not found to be a SVP. (See FORECITE F 4.01 n3.)
F 4.19 n4 Sexually Violent Predator: Full Evidentiary Hearing Required For A Probable Cause Determination.
The probable cause determination under WI 6602 affects the defendant’s substantial liberty interests and, hence, the defendant must be given a fair opportunity to challenge the facts on which the petition was filed. While WI 6602 refers to a review of the petition, it also requires a hearing which implies more than a facial review. At a minimum the hearing should allow both oral and written evidence and the defendant should have the right to challenge the prosecution reports by calling those experts for cross-examination. Furthermore, the defendant should be able to call witnesses who will give evidence relevant to the probable cause determination. (In re Parker (98) 60 CA4th 1453 [71 CR2d 167]; see also State v. Waryck UNPUBLISHED (OH 2000) 2000 Ohio App. LEXIS 490, 2000 WL 182054, *4 [court may not rely solely on the recommendation of correction officials and the diagnostic tool they used when it determines whether a defendant should be classified as a sexual predator].)
F 4.19 n5 Sexually Violent Predator: Applicable To Persons Convicted Under The Pre-1980 Rape Statute.
(See People v. Butler (98) 68 CA4th 421 [80 CR2d 357].)
F 4.19 n6 Sexually Violent Predator: Instruction On Mental Disorder.
It is proper to instruct the jury on the definition of mental disorder that is contained in WI 6600(c). That statute sufficiently tracks the Kansas statute that was approved in Hendricks. (People v. Hatfield DEPUBLISHED (98) 68 CA4th 594 [80 CR2d 268].) Hence, there is no need for a sua sponte addition to the language as to “inability to control behavior.” (Ibid.)
F 4.19 n7 Sexually Violent Predator: Instruction On Reasonable Doubt.
WI 6600(a) contains language that a sexually violent predator is a person who, due to a mental disorder, is “likely to engage” in sexually violent behavior. Nevertheless, People v. Hatfield DEPUBLISHED (98) 68 CA4th 594 [80 CR2d 268] concluded that when the standard instruction on proof beyond a reasonable doubt is given, the jury will be able to separate the determination of “likely” commission of future sexually violent acts from the beyond a reasonable doubt standard. However, additional instruction clarifying this point could be utilized to assure that the jury makes this differentiation.
F 4.19 n8 SVP: Right To Call And Cross-Examine Witnesses At Show-Cause Hearing.
A defendant at a show cause hearing under WI 6605 has a right to present oral testimony, including expert testimony, and to cross-examine the authors of adverse medical reports. (See People v. Cheek (2001) 25 C4th 894, 903 [108 CR2d 181]; but see People v. Hardacre (2001) 90 CA4th 1392, 1401 [109 CR2d 667] [sexually violent predator not entitled to appointment of mental health expert to assist him at “show cause” hearing].)
F 4.19 n9 SVP: Inapplicable To Military Court Martial Convictions.
The SVP statute requires conviction for a sexually violent offense in California or another state. Hence, a military court marshall in Germany does not come within the scope of the statute. (People v. Hunt (99) 74 CA4th 939 [88 CR2d 524].)
As of Sept. 7, 1999, the second paragraph of WI 6600(a) has been amended to add that a conviction for an offense under a predecessor statute that includes all elements of an offense described in WI 6600(b) may constitute a qualifying Sexually Violent Predator (SVP) offense. This amendment codifies People v. Butler (98) 68 CA4th 421 [80 CR2d 357] and effectively abrogated People v. Hunt (99) 74 CA4th 939 [88 CR2d 524].
F 4.19 n10 SVP: Reference To Determinate Sentencing Should Be Deleted.
(See People v. Leonard (2000) 78 CA4th 776, 796 [93 CR2d 180] [court did not err in modifying CJ 4.19 to omit the reference to a determinate sentence].
F 4.19 n11 Sexually Violent Predator: Prosecution May Call Defendant As Witness.
A SVP trial is not a criminal proceeding within the meaning of the 5th Amendment’s privilege against self-incrimination. (People v. Leonard (2000) 78 CA4th 776 [93 CR2d 180].)
F 4.19 n12 SVP: Requirement That Two Mental Health Professionals Agree.
A petition to extend the commitment of a sexually violent predator (WI 6604) must be supported by evaluations conducted by at least two practicing psychiatrists or psychologists. (Peters v. Superior Court (2000) 79 CA4th 845, 850 [94 CR2d 350]; Butler v. Superior Court (2000) 78 CA4th 1171 [93 CR2d 468]; see also People v. Superior Court (Gary) (2000) 85 CA4th 207, 213 [101 CR2d 874]; but see People v. Superior Court (Riley) DEPUBLISHED (2000) 80 CA4th 820 [95 CR2d 659] [petition to extend the accused’s commitment as a sexually violent predator is not invalid for lack of current psychological evaluations].)
A petition seeking the commitment or recommitment of a person as a sexually violent predator cannot be filed unless two mental health professionals, specifically designated by the director under statutory procedures to evaluate the person for this purpose, have agreed, by correct application of the statutory standards that the person “has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody.” (WI 6601(d).) (See People v. Superior Court (Ghilotti) (2002) 27 C4th 888, 906-908 [119 CR2d 1].)
F 4.19 n13 Sexually Violent Predator: Out-Of-State Convictions.
(See People v. Vasquez (2001) 25 C4th 1225 [108 CR2d 610] [vacated Texas child sexual abuse conviction may be considered for civil commitment purposes under SVP Act].)
F 4.19 n14 Sexually Violent Predator: Lawful Custody Not A Prerequisite To Filing Petition Under SVP Act.
(See People v. Wakefield (2000) 81 CA4th 893, 898 [97 CR2d 221].)
F 4.19 n15 Sexually Violent Predator: Use Of Hearsay To Prove Details Underlying Prior Sex Offenses.
See People v. Otto (2001) 26 C4th 200, 203 [109 CR2d 327] [multiple level hearsay admissible at sexually violent predator’s trial]; but see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant].
F 4.19 n16 Sexually Violent Predators: Elements And Burden Of Proof.
The WI 6602 probable cause hearing requires the superior court to determine whether a reasonable person could entertain a strong suspicion that the petitioner satisfied all the elements required for a civil commitment as a sexually violent predator: (1) the offender has been convicted of a qualifying sexually violent offense against at least two victims; (2) the offender has a diagnosable mental disorder; (3) the disorder makes it likely he or she will engage in sexually violent criminal conduct if released; and (4) this sexually violent criminal conduct will be predatory in nature. (Cooley v. Superior Court (Marentez) (2002) 29 C4th 228 [127 CR2d 177].) The phrase “likely to engage in sexually violent predatory criminal behavior upon … release,” (WI 6602(a)), requires the superior court to determine whether the potential SVP presents a serious and well-founded risk of committing sexually violent criminal acts that will be of a predatory nature, and the superior court must consider the offender’s amenability to treatment when making this determination. (Ibid.)
F 4.19 n17 Sexually Violent Predators: Failure To Define “Likely” As Used In SVP Act.
People v. Roberge (2003) 29 C4th 979 [129 CR2d 861] held that the standard at trial for determining whether a sex offender is “likely” to reoffend is whether “the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.” (See also People v. Superior Court (Ghilotti) (2002) 27 C4th 888 [119 CR2d 1].)
F 4.19 n18 Sexually Violent Predator/Mentally Disordered Offender (SVP/MDO): California State Prisoners Handbook.
The Prison Law Office has just published a completely revised and updated edition of the California State Prisoners Handbook: A Comprehensive Practice Guide to Prison and Parole Law. This 1,000 page volume, co-authored by Michael Snedeker, U.C. Davis Law Professor James Smith, Heather MacKay and Steven Sama, includes detailed discussions of the law governing prisoner rights and the current policies and practices of the California Department of Corrections, as well as numerous sample forms and model pleadings. The Handbook is priced at $160 plus tax and shipping; there is also a special subsidized price of $40 (including tax and shipping) for orders shipped directly to prisoners or parolees. Ordering information and forms are available at www.prisonlaw.com or through the Prison Law Office, General Delivery, San Quentin, CA 94964. Credit card orders can be placed by calling Rayve Productions at (800) 852-4890.
See Article Bank # A-88 for Chapter 11 of the “California State Prisoners Handbook: A Comprehensive Guide to Prison and Parole Law” covering MDO and SVP committments.
F 4.19 n19 Sexually Violent Predator: Impact Of Defense Stipulation To Prior Convictions.
People v. Gordon (2001) 92 CA4th 342, 347-49 [111 CR2d 795] held that a defendant’s stipulation to having previously been convicted of a sexually violent offense against two or more victims (WI 6600(a)(1)) does not preclude the prosecution from offering evidence about the underlying facts of those convictions at trial.
However, Gordon is now unpublished.
F 4.19 n20 SVP: Risk Of Criminal Sexual Violence Must Exceed Fifty Percent.
The statutory standard under WI 6601(d) for commitment or recommitment of a person as a sexually violent predator is met if: “because of the person’s diagnosed mental disorder, he or she currently presents a substantial danger – that is, a serious and well-founded risk – of criminal sexual violence unless maintained in an appropriate custodial setting which offers mandatory treatment for the disorder. On the other hand, [WI 6601(d)] does not require an evaluator to determine there is a better than even chance of new criminal sexual violence if the person is free of custody and mandatory treatment. An evaluator’s conclusion that one does not meet the criteria for commitment or recommitment is legally erroneous if it stems from a conclusion that, although the person presents a serious and well-founded risk of reoffense if free without conditions, the evaluator cannot say the risk exceeds fifty percent.” (People v. Superior Court (Ghilotti) (2002) 27 C4th 888, 895 [119 CR2d 1].)
F 4.19 n21 SVP: Judicial Review Of Evaluator’s Recommendation.
“[A]n evaluator’s recommendation for or against commitment or recommitment is invalid if there appears a reasonable probability it was influenced by the evaluator’s legal error, including misinterpretation of the `likely to reoffend’ standard. The recommendation of an evaluator is subject to judicial review for such material error at the behest of the appropriate party. If, upon review, the court finds no material legal error on the face of the report, the court shall deem the evaluator’s recommendation valid, and shall dispose of the petition accordingly. If the court finds material legal error on the face of the report, it shall direct that the erring evaluator prepare a new or corrected report applying correct legal standards.” (People v. Superior Court (Ghilotti) (2002) 27 C4th 888, 895 [119 CR2d 1].)
F 4.19 n22 SVP: Applicability Of Penal Code Procedural Protections.
People v. Torres REV GTD/DISD/DEPUB (2002) 98 CA4th 205 [119 CR2d 597] held that the trial court in an SVP proceeding has no duty to respond to juror inquiries under PC 1138 (see also People v. Beardsley (91) 53 C3d 68, 97-98 [279 CR 276]) because the SVP proceeding is a civil case. However, to the extent that such procedural protections assure the fairness and reliability of the proceeding, they should be required under the fundamental protections of the federal constitution. (Due process and fair trial by jury – 5th, 6th and 14th Amendments.)
F 4.19 n23 SVP: Applicability Of Circumstantial Evidence Instructions.
Appropriate circumstantial evidence instructions should be given in a sexually violent predator proceeding even though it is a civil case. (See People v. Torres REV GTD/DISD/DEPUB (2002) 98 CA4th 205 [119 CR2d 597].)
F 4.19 n24 Sexually Violent Predator (SVP): Jurisdiction.
Timing Of Committment Order: The Sexually Violent Predator Act lacks a jurisdictional requirement that a recommitment order be obtained before the expiration of the previous term, though it does require that the commitment petition be filed before then. (Orozco v. Superior Court (2004) 117 CA4th 170.)
Place: Each of the three counties where the defendant had committed a qualifying crime qualified for jurisdiction over SVP proceeding. (See Cheek v. Superior Court (People) (2002) 103 CA4th 520 [126 CR2d 820]; see also People v. Krah (2003) 114 CA4th 534 [agreeing with Cheek that jurisdiction to try petitioner on sexually violent predator petition lies with any county where petitioner suffered a conviction, and not just the county where the last conviction occurred].)
F 4.19 n25 Sexually Violent Predator (SVP): Successive SVP Proceedings.
In California, a prior jury determination that an offender is not a sexually violent predator subject to civil commitment under California’s SVP Act does not necessarily bar the state from instituting another SVP Act proceeding after the offender has been released from prison, then returned to custody for a parole violation. However, the jury’s findings remain relevant and the prosecution must prove changed circumstances. (See Turner v. Superior Court (2003) 105 CA4th 1046 [130 CR2d 300].)
F 4.19 n26 Sexually Violent Predator (SVP): No Contest Pleas Under Former PC 1016(3) May Be Used In Later SVP Commitment Proceedings.
See People v. Yartz (2005) 37 C4th 529.
F 4.19 n27 Sexually Violent Predator (SVP): Conditional Release Not Frivolous If Supported By Substantial Evidence.
(See People v. Collins (2003) 110 CA4th 340.)
F 4.19 n28 Sexually Violent Predator: Admissibility Of Results Of Static-99 Test.
People v. Therrian (2003) 113 CA4th 609 concluded that when an expert’s opinion regarding the likelihood of defendant reoffending is not based solely upon the results of a Static-99 test (which assigns a risk assessment of reoffending), a Kelly hearing on the admissibility of expert’s testimony regarding the test is not required.
F 4.19 n29 Sexually Violent Predator: WI 1800 Allowing Extensions Of Commitments To CYA: Required Finding.
(See In re Howard N. (2005) 35 C4th 117) [extending detention of dangerous persons violates due process where it does not expressly require a finding that the person’s mental deficiency causes serious difficulty in controlling his or her dangerous behavior].)
F 4.19 n30 Sexually Violent Predator: Consolidation Of Successive Recommitment SVP Petitions.
See Litmon v. Superior Court (2004) 123 CA4th 1156 [consolidation is permissible but must not be used to delay the trial on the first petition].
F 4.19 n31 Sexually Violent Predator: Evidence Of Involuntary Treatment.
See People v. Calderon (2004) 124 CA4th 80 [The court did not err in excluding evidence of planned involuntary treatment recommended by doctors and amenability to treatment, which defendant argued was relevant to the determination of dangerousness]; compare People v. Superior Court (Ghilotti) (2002) 27 C4th 888, 928 [accepting the argument that amenability to voluntary treatment could reduce dangerousness].
F 4.19 n32 Sexually Violent Predator: Masturbation Through Clothing.
See People v. Lopez (2004) 123 CA4th 1306 [masturbation through clothing may be considered and jury instruction is not incorrect].
F 4.19a
Sexually Violent Predator
(WI 6600, WI 6601, WI 6602, WI 6603, WI 6604, WI 6605, WI 6606, WI 6607, WI 6608)
ALERT: As of June 26, 2000, urgency legislation amended 6601.3, WI 6601.5 and WI 6602 concerning evaluation, hearings and release of sexually violent predators. (SB 451, Ch. 41.)
A petition has been filed against respondent __________ [insert name of prisoner] alleging that [he] [she] is a “sexually violent predator” within the meaning of Welfare and Institutions Code section 6600, et. seq. This requires the prosecution to prove the following beyond a reasonable doubt:
1. Respondent __________ has been convicted of the offense of __________ [insert specific offense] against two or more victims for which respondent received a determinate sentence;
2. In committing such offense, defendant engaged in “sexually violent behavior” as defined in these instructions; and
3. The act was predatory in nature; and
4. Respondent has a diagnosed mental disorder that makes [him] [her] a danger to the health and safety of others in that it is likely that [he] [she] will engage in sexually violent behavior against a stranger or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.
5. [As to a 5th Element, see FORECITE F 4.19g.]
For the purpose of this instruction, “sexually violent behavior” means commission of any of the following sex offenses by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury to the victim or another person: __________ [insert definitions of specific crimes in WI 6600(b)].
For purposes of this instruction “diagnosed mental disorder” includes a congenital or acquired condition that predisposes the person to the commission of sexually violent acts.
For the purposes of this instruction “predatory” means an act directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.
You may not find respondent to be a sexually violent predator based solely on [his] [her] prior offense[s]. The prosecution is required to prove the requisite mental disorder by other evidence above and beyond the prior offense[s].
Danger to the health and safety of others does not require proof of a recent criminal act that manifests a likelihood that the actor may engage in sexually violent predatory criminal behavior.
Points and Authorities
This instruction is derived primarily from the statutory language. The jury is required to determine whether, beyond a reasonable doubt, the person is a “sexually violent predator.” (WI 6604.) WI 6600(a) defines “sexually violent predator” in terms of diagnosed mental disorder likely to cause sexually violent criminal behavior, while WI 6600(e) requires that the act is directed toward a stranger or individual with whom a relationship has been established or promoted for the primary purpose of victimization. See FORECITE F 4.19c.
NOTES
The prior offense must be “sexually violent” as defined in WI 6600(b). Hence, a general violation of PC 288 is not sufficient. The definition of “diagnosed mental disorder” in WI 6600(c) has been revised in the above instruction to comport with the other portions of the statute. [A sample demurrer on this point is available to FORECITE subscribers. Ask for Motion Bank # M-3003.]
See FORECITE F 4.19 n1 regarding constitutional challenges to the sexual predator statute.
F 4.19b
Sufficiency Of Circumstantial Evidence That Respondent Is A Sexually Violent Predator
*Add modified CJ 2.01 to CJ 4.19 as follows: [added language is capitalized; deleted language is between << >>:]
However, a finding <<of guilt as to any crime>> THAT RESPONDENT IS A SEXUALLY VIOLENT PREDATOR may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the <<defendant is guilty of the crime>> RESPONDENT IS A SEXUALLY VIOLENT PREDATOR, but (2) cannot be reconciled with any other rational conclusion.
Further, each fact which is essential to complete a set of circumstances necessary to establish the <<defendant’s guilt>> RESPONDENT IS A SEXUALLY VIOLENT PREDATOR must be proved beyond a reasonable doubt. In other words, before an inference essential to establish <<guilt>> THAT THE DEFENDANT IS A SEXUALLY VIOLENT PREDATOR may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.
Also, if the circumstantial evidence <<[as to any particular count]>> permits two reasonable interpretations, one of which points to <<the defendant’s guilt>> THE RESPONDENT BEING A SEXUALLY VIOLENT PREDATOR and the other to <<[>>his<<] [her] innocence>> NOT BEING A SEXUALLY VIOLENT PREDATOR, you must adopt that interpretation that points to the <<defendant’s innocence>> RESPONDENT NOT BEING A SEXUALLY VIOLENT PREDATOR, and reject that interpretation that points to <<[>>his<<] [her] guilt>> BEING A SEXUALLY VIOLENT PREDATOR.
If on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.
Points and Authorities
Ultimately the issue in sexually violent predator proceedings is whether “it is likely that [the defendant] will engage in sexually violent criminal behavior.” (CJ 4.19.) This requires the jury to make inferences about the defendant’s future conduct and mental state from the circumstances presented at the hearing such as the defendant’s prior conduct and expert testimony concerning his alleged mental disorder. Obviously, therefore, this determination is necessarily based on circumstantial evidence and, therefore, an appropriately modified version of CJ 2.01 should be given.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
F 4.19c
Sexually Violent Predator: Prior Offenses Need Not Be “Predatory”
(WI 6600 et seq.)
ALERT: As of June 26, 2000, urgency legislation amended 6601.3, WI 6601.5 and WI 6602 concerning evaluation, hearings and release of sexually violent predators. (SB 451, Ch. 41.)
People v. Torres (2001) 25 C4th 680, 687 [106 CR2d 824] [there is no requirement under SVP Act that defendant’s prior acts be predatory in nature].) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-773.]
F 4.19d
Sexually Violent Predator:
Diagnosed Mental Disorder Must Render Person Unable To Control Dangerous Behavior
*Add to CJ 4.19:
The diagnosed mental disorder must render the person unable to control his dangerous behavior.
Points and Authorities
See People v. Ward (99) 71 CA4th 368, 375 [83 CR2d 828] [assuming instruction is correct statement of the law and observing that jury was told “the diagnosed mental disorder must render the person unable to control his dangerous behavior”].
F 4.19e
Sexually Violent Predator:
DSM-IV Diagnosis Is Not, Standing Alone, Sufficient
*Add to CJ 4.19:
Because of the need for volitional impairment, a DSM-IV Diagnosis is not, standing alone, sufficient proof of a “diagnosed mental disorder” within the meaning of Welfare & Institutions Code 6600.
Points and Authorities
People v. Ward (99) 71 CA4th 368, 375 [83 CR2d 828] rejected an argument that the jury should have been instructed in this language because “any omission was cured [by the general expert opinion instruction].” (99 DAR at 3511.)
The court also concluded that the instruction was not a principle of law but a matter for argument notwithstanding the defendant’s reliance on a passage in Kansas v. Hendricks (97) 521 US 346 [117 SCt 2072, 2080-81, 138 LEd2d 501] in which the court commented that legal definitions often do not and need not mirror medical definitions of mental illness. Nevertheless, the defendant should not be forced to rely solely on the general expert instruction in this regard. If the matter is relegated to argument, see FORECITE F 1.00l.
F 4.19f
Sexually Violent Predator:
Defendant Must Be Likely To Engage In Sexually Violent Predatory Behavior
*Modify CJ 4.19, ¶ 2 and 20 as follows [added language is capitalized]:
The term “sexually violent predator” means a person who (1) has been convicted of a sexually violent offense against two or more victims for which he or she received a [determinate] sentence, and (2) has a diagnosed mental disorder that makes him or her a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent PREDATORY criminal behavior.
In determining whether the respondent is a sexually violent predator, you should consider all of the evidence introduced in the case, including the prior conviction of one or more crimes previously listed for you. However, you may not find respondent to be a sexually violent predator based on prior offenses without [relevant] evidence of a currently diagnosed mental disorder that makes [him] [her] a danger to the health and safety of others in that is likely that [he] [she] will engage in sexually violent PREDATORY criminal behavior.
Points and Authorities
The prosecution must prove beyond a reasonable doubt that the defendant is likely to engage in future predatory acts. (People v. Hurtado (2002) 28 CA4th 1179 [124 CR2d 186] 2002 Cal. LEXIS 5466.)
F 4.19g
Sexually Violent Predator:
Definition Of Mental Disorder — Requirement Of Serious Difficulty In Controlling Behavior
* Add to CJ 4.19:
The mental disorder must make it difficult, if not impossible, for the defendant to control [his] [her] violent behavior.
Points and Authorities
People v. Williams (2003) 31 C4th 757 held that CJ 4.19 adequately conveyed the requirement that the defendant must have an impaired ability to control his behavior. However, there is conflicting authority in other jurisdictions. (See Williams, 31 C4th at 775, fn 8.) Therefore, in light of Kansas v. Crane (2002) 534 US 407 [151 LEd2d 856; 122 SCt 867] the United States may resolve this conflicting authority and “hold that a jury instruction on controlling behavior is constitutionally required….” (Williams, 31 C4th at 780, dissenting opn. of Kennard, J.) Hence, the instruction should be given in California to “ensure the validity of California SVPA commitments.” (Ibid.)
Crane is extremely important in California SVP cases because the SVP statutory definition of “mental abnormality” at issue in Crane is exactly the same as California’s statute, word for word. (Compare footnote “*” of Justice Scalia’s dissent in Crane [151 LEd2d at 867; 122 SCt at 874], setting forth the Kansas definition of “mental abnormality” that can under a Kansas SVP finding [KSA § 59-29a02(b)], with WI 6600(c).) It is hardly surprising that California’s statute is identical, word for word, with Kansas’, since it was a Kansas case in which the U.S. Supreme Court first validated the recent wave of SVP statutes. (Kansas v. Hendricks (97) 521 US 346 [138 LEd2d 501; 117 SCt 2072].)
The gist of Crane is relatively easy to discern once one has read Justice Scalia’s dissent, because Justice Scalia’s dissent provides a pretty good explanation of the Court’s opinion, in order for Justice Scalia to then belittle and ridicule the opinion. Justice Scalia complains in his dissent:
“It is obvious that a person may be able to exercise volition and yet be unfit to turn loose upon society. The man who has a will of steel, but who delusionally believes that every woman he meets is inviting crude sexual advances, is surely a dangerous sexual predator.”
(Crane, 534 US 407 [151 LEd2d at 869; 122 SCt at 875].) This complaint is correct as far as it goes, and the Court majority would certainly agree with all of it. And it highlights what the Court’s opinion is really about: Just because a person is a “dangerous sexual predator” doesn’t mean he or she can be confined beyond his or her sentence under civil commitment laws. One cannot keep someone civilly locked up beyond his or her prison term up to the rest of his or her life, based on a prediction that he or she might or even probably will commit another violent sex crime in the future. Civil SVP commitment based on a perception of future dangerousness requires a mental disorder.
That’s the part Justice Scalia doesn’t agree with; he wants to be able to keep people locked up past their criminal due process prison term merely if someone considers them to be potentially dangerous–a label that could probably be fastened on a significant majority of persons convicted of major sex crimes–even if the perception of dangerousness emanates solely from past criminal conduct. In other words, he wants a due process criminal process to include an option for the State to keep the defendant as long as it wants past the defendant’s due process prison term, based on a prediction of dangerousness found true in a rudimentary civil proceeding near the expiration of the sentence. The majority in Crane correctly rejected that result, which has been recognized as impermissible under the Due Process Clause ever since Specht v. Patterson (67) 386 US 605 [18 LEd2d 326; 87 SCt 1209] and Baxtrom v. Herold (66) 383 US 107 [15 LEd2d 620; 86 SCt 760].
Crane now tells us what type of a mental disorder is required to qualify under a civil commitment SVP statute: It must be a mental disorder that is proved to involve “serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him or her to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.”
Conversely, a mental “disorder” which is diagnosed based largely on the mere fact that the defendant committed heinous acts in the past doesn’t qualify under Crane. The heinous acts in the past can be used for an augmented recidivist prison sentence, but they alone don’t qualify a person for civil commitment. Nor does putting a fancy psychiatric label on a “diagnosis” that is little more than “this guy’s committed serious sex crimes and has a somewhat troubled past, and that means he has a mental disorder.” The worst and most common label of this nature is a grab-bag “diagnosis” such as Antisocial Personality Disorder (“APD”) or Borderline Personality Disorder (“BPD”), which are basically “diagnoses” that a person is violent and has a troubled past. That doesn’t suffice under Crane. Thus, the specific citation in the Crane opinion “noting that 40%-60% of the male prison population is diagnosable with Antisocial Personality Disorder.” (Crane, 151 LEd2d at 862; 122 SCt at 870.) A person with a label such as APD may be dangerous and at risk for future violent sexual conduct, but the system can only deal with that by punishing such conduct when it happens, if it happens. To go farther, one needs to follow the standards of Crane, and at least have a mental disorder with “proof of serious difficulty in controlling behavior.” (But see People v. Williams (2003) 31 C4th at 774-75 [instruction in language of the SVP Act adequately conveyed the requirement that the defendant must have an impaired ability to control his behavior; defendant’s request for specific instruction on this point was properly refused]; Brock v. Seling (9th Cir. 2004) 390 F3d 1088 [Oregon instruction sufficient under Kansas v. Crane (2002) 534 US 407 [151 LEd2d 856; 122 SCt 867] despite omission of “lack of control” phrase].)
F 4.19h
Sexually Violent Predator:
Jury Determination Of Whether
Custody Is Necessary
*Add to CJ 4.19 as follows:
You must decide whether custody in a secure facility is necessary to ensure that the defendant is not a danger to the health and safety of others.
Points and Authorities
The purpose of a trial conducted pursuant to WI 6602(a) is to determine “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 from the jurisdiction of the Department of Corrections or other secure facility.” In People v. Grassini (2003) 113 CA4th 765, 775 the court concluded that the trial court had a duty give the above instruction where, as in Grassini, there was evidence of defendant’s amenability to voluntary treatment.
