Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. ME-30.
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
A jury found Michael Thomas Cheek to be a sexually violent predator under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600, et seq.) By order filed January 5, 2007, the trial court committed Cheek to the Department of Mental Health for a period of two years, from July 14, 2005, to July 14, 2007. In committing Cheek to a two-year term, rather than to an indeterminate term pursuant to amendments to the SVPA in 2006, the trial court concluded that the amended SVPA was unconstitutional and that the prior statutory scheme, before the 2006 amendments, should be enforced by the court.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Both parties appeal from the January 5, 2007, order of commitment. The People contend that Cheek should be committed to an indeterminate term of commitment, rather than a two-year term as ordered by the trial court.
In his cross-appeal, Cheek argues the trial court correctly determined that the amended SVPA is unconstitutional. Cheek asserts that the amended SVPA violates the due process, ex post facto, double jeopardy, and equal protection clauses. He also contends that the trial court did not have jurisdiction to extend his commitment as a sexually violent predator, and application of an indeterminate term would be an unlawful retroactive application of the amended SVPA. He further claims that the court’s refusal to allow 20 peremptory challenges denied him a fair trial, there were several errors regarding jury instructions, there was insufficient evidence that “he had tried and failed to control his behavior,” and the cumulative error at trial requires reversal of the order of commitment. Lastly, he contends that the amended SVPA violates his First Amendment right to petition.
For reasons that we will explain, we reverse the order of commitment and direct the trial court to enter a new order committing Cheek for an indeterminate term of commitment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Cheek’s Commitment Under the SVPA From 1997 to 2005
In 1980, Cheek was convicted of rape and forcible oral copulation in Santa Cruz County. Allegations of firearm use were found true. Cheek was sentenced to prison, but before serving that prison term, he was transported to Contra Costa County for probation violation proceedings relating to an earlier offense.
We take judicial notice of this court’s opinions in some of Cheek’s previous appellate court proceedings. (People v. Superior Court (Butler) (2000) 83 Cal.App.4th 951; Cheek v. Superior Court (2002) 103 Cal.App.4th 520; People v. Cheek (Oct. 12, 2006, H028964) [nonpub. opn.].) Our summary of the pertinent factual and procedural background includes information that we have taken from our previous opinions.
Before probation violation proceedings commenced in Contra Costa County, Cheek escaped from custody and committed a rape in Lake County. In 1981, Cheek was convicted of rape and furnishing a controlled substance to minors in Lake County. A firearm allegation was found true. Cheek was sentenced to prison.
Before being transported to prison to begin serving his Lake County and Santa Cruz County sentences, Cheek was again returned to Contra Costa County for probation violation proceedings, where he received a prison sentence.
At the end of Cheek’s prison term, the People instituted commitment proceedings against him under the SVPA. The People alleged that Cheek had been convicted of sexually violent offenses, including the convictions in 1980 for rape and forcible oral copulation and the conviction in 1981 for rape. Cheek admitted the allegations in the petition. On July 14, 1997, Cheek was found to be a sexually violent predator and committed to the California Department of Mental Health for two years.
Cheek’s initial commitment was set to expire in July 1999. After litigation delays, mistrials, and multiple appellate court proceedings, three petitions by the People to extend Cheek’s commitment for additional two-year terms, to July 14, 2005, were consolidated for trial. In April and May 2005, a jury trial was held on the three consolidated petitions. Cheek was found to be a sexually violent predator, and the court ordered him committed to the Department of Mental Health for three successive two-year periods, through July 14, 2005. We upheld that commitment in People v. Cheek, supra, H028964.
The appellate court proceedings included Butler v. Superior Court (2000) 78 Cal.App.4th 1171, People v. Superior Court (Butler), supra, 83 Cal.App.4th 951, People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, and Cheek v. Superior Court, supra, 103 Cal.App.4th 520. We also note that in People v. Cheek (2001) 25 Cal.4th 894, the California Supreme Court concluded that a defendant at a show cause hearing under section 6605 has a right to present oral testimony and to cross-examine the authors of adverse medical reports.
B. Proceedings to Commit Cheek Beyond 2005
Petition to Commit Cheek for an Indeterminate Term
Before the jury trial began on the three consolidated petitions, the People, on January 12, 2005, filed another petition to extend Cheek’s commitment, this time from July 14, 2005 to July 14, 2007. The trial court denied the People’s motion to consolidate this latest petition with the three previously consolidated petitions. A jury trial on the latest petition was scheduled for September 2005. During the next year, the trial date was continued several times at the request of the prosecutor or defense counsel.
On October 16, 2006, the People filed a first amended petition to extend Cheek’s commitment for an indeterminate term pursuant to section 6604. Section 6604 was amended effective September 20, 2006, when the Governor signed into law Senate Bill No. 1128 (2005-2006 Reg. Sess.) (Senate Bill 1128), which provided for, among other things, an indeterminate term of commitment rather than a two-year term. (See Stats. 2006, ch. 337.)
On November 14, 2006, Cheek filed a motion to dismiss the amended petition for lack of jurisdiction. He argued that the amendments to sections 6604 and 6604.1 “eliminated the authorization for extending commitments” under the SVPA; the amendments to the SVPA did not automatically convert a two-year commitment term to an indeterminate term; and retroactive application of the amendments “would run afoul of the due process clauses of both the state and federal constitutions.” Cheek asserted that he was “not subject to further proceedings” under the SVPA.
Cheek also filed a demurrer to the amended petition on November 14, 2006. He contended that the amended SVPA violates the ex post facto, double jeopardy, equal protection, and due process clauses. The People filed oppositions to Cheek’s motion to dismiss and demurrer.
On December 1, 2006, a hearing was held on Cheek’s motion and demurrer. The trial court denied the motion to dismiss and overruled the demurrer. The court determined that the matter would proceed to trial as to whether Cheek was a sexually violent predator, although the court expressed doubt as to the constitutionality of the amended SVPA regarding the procedure for a probable cause hearing under section 6605.
Jury Trial
The trial on the amended petition to extend Cheek’s commitment began in December 2006, and the jury heard expert and lay testimony over several days.
The People’s Witnesses
Two expert witnesses, Dr. Dawn Starr and Dr. Dale Arnold, testified for the People. Dr. Starr, a psychologist, testified that the Department of Mental Health had asked her to evaluate whether certain individuals are sexually violent predators. Between 2001 and 2006, Dr. Starr prepared nine reports regarding Cheek. The sources of information for Dr. Starr’s first report regarding Cheek included criminal, prison, and medical records, and the records from his commitment at Atascadero State Hospital. For subsequent reports, Dr. Starr reviewed, among other things, the documents generated since her previous report. Dr. Starr interviewed Cheek in connection with the 2002 and 2003 reports. Cheek declined to be interviewed by Dr. Starr for her subsequent reports.
Dr. Starr diagnosed Cheek with paraphilia not otherwise specified and personality disorder not otherwise specified, with antisocial and narcissistic features. Dr. Starr also diagnosed Cheek with polysubstance dependence, but she explained that it “is in remission or somewhat remission because he is in a controlled environment.” Dr. Starr testified that two of the diagnosed disorders—paraphilia and personality disorder—impair Cheek’s volitional and emotional capacity.
Dr. Starr further testified that Cheek is likely to commit a sexually violent predatory offense if released into the community. In making this risk assessment, Dr. Starr considered, among other things, Cheek’s score on the “Static-99,” an actuarial instrument, and the Hare Psychopathy Checklist. Dr. Starr indicated that if Cheek failed to maintain sobriety in the community, it would be an additional risk factor for sexual offending. When questioned about the impact of Cheek’s age, Dr. Starr testified that she did not “see anything about [Cheek’s] mental or physical ability” that would preclude him from sexually offending in the future notwithstanding the fact that Cheek was in his mid fifties at the time of trial.
The People’s second expert witness was Dr. Arnold, a psychologist contracted by the Department of Mental Health to do sexually violent predator evaluations. Between 1999 and 2006, Dr. Arnold evaluated Cheek several times and prepared eight reports. The sources of information that Dr. Arnold reviewed in connection with the reports included court documents and the records from Atascadero State Hospital. Cheek agreed to be interviewed by Dr. Arnold once, in 2002.
Dr. Arnold testified that Cheek has a mental disorder predisposing him to commit sexually violent acts and that he is likely to commit another sexually violent offense if released to the community. Dr. Arnold diagnosed Cheek with paraphilia not otherwise specified, polysubstance dependence, and antisocial personality disorder. Dr. Arnold testified that the diagnosed mental disorders affect Cheek’s emotional and volitional capacity. He also testified that although Cheek’s age is a mitigating factor regarding the risk of reoffending, Cheek is “still a very strong person” and “a very fit person” and his age did not eliminate the other factors for risk of reoffending.
In addition to the two witnesses offering expert opinions, several other witnesses testified during the People’s case. Dr. Dana Evan Putnam, a licensed psychologist with whom the Department of Mental Health contracts for evaluations under the SVPA, testified that she interviewed Cheek in 1997. During the interview, Cheek admitted raping the victims in Santa Cruz County and Lake County and indicated that “these were not isolated incidents” but were “part of a pattern of behavior.” Cheek stated that “he had five years of straight impulsive behavior” and that “he was a predator for sex, drugs and violence.”
Five employees from Atascadero State Hospital testified about their contact with or observations of Cheek. Christine Weaver, a registered nurse, worked in the same unit where Cheek was housed in 2005 to 2006. Weaver testified that there was a concern that Cheek was using controlled substances that had not been prescribed to him. She described changes in Cheek’s demeanor and physical appearance during this period of time, including increased irritability and argumentativeness, slurred speech, wearing sunglasses indoors more than usual, and being disheveled when he usually was neat in appearance. She also described an incident during which she felt threatened by Cheek.
Stephanie French, a unit supervisor, similarly observed changes in Cheek’s demeanor and appearance. French told Cheek that if he denied being under the influence, he should “clear [his] name” and take a lab test. Cheek declined to take the test.
Robert Mitchell and Tamara DeRose, psychiatric technicians at the hospital, also testified about changes in Cheek’s demeanor and appearance in late 2005 or early 2006, as well as described incidents in which they felt intimidated by Cheek.
Joann Askew, a psychiatric technician, testified about an incident that occurred in approximately 2003, during which she felt intimidated by Cheek. Cheek had stated angrily, with fists clenched, among other things: “ ‘What are you looking at you fucking little cunt?’ ”
The People also called Cheek as a witness. Cheek described how he spent his time at Atascadero State Hospital and explained that he tries to spend most of his time in the courtyard. Cheek admitted to being arrested numerous times and being convicted of misdemeanors and felonies. When questioned about the sex offenses in Santa Cruz County in 1980 and in Lake County in 1981, he recalled very little of the details. He did detail his escape from custody between committing the two sets of offenses in Santa Cruz and Lake counties.
Cheek’s Witnesses
Two experts, Dr. Robert Halon and Dr. Beryl Davis, testified on behalf of Cheek. Dr. Halon, a psychologist, evaluated Cheek in 2005. In connection with the evaluation, Dr. Halon interviewed Cheek, administered psychological tests, and reviewed various documents, including probation reports, previous sexually violent predator evaluations, records from Atascadero State Hospital, and transcripts of the victims’ testimony.
Dr. Halon testified that there was insufficient evidence to support a diagnosis of paraphilia. Dr. Halon also ruled out substance abuse as an explanation for the rapes committed by Cheek. Dr. Halon found no evidence of volitional impairment. When asked whether Cheek has an antisocial personality disorder, Dr. Halon indicated that he was not sure whether Cheek “still has the disordered aspect” but he did consider Cheek to “still be very antisocial.”
Dr. Davis, a psychologist, evaluated Cheek in 2006. In connection with the evaluation, Dr. Davis interviewed Cheek and reviewed documents, including probation reports, transcripts of the victims’ testimony, prison disciplinary records, and some records from Atascadero State Hospital.
Dr. Davis testified that Cheek is not a sexually violent predator. While Dr. Davis diagnosed Cheek as having antisocial personality disorder, she also testified that the disorder does not predispose a person to commit sexually violent criminal acts. She explained that antisocial behavior and sex offense recidivism diminish with age, and it was her understanding that Cheek was 55 years old at the time of the trial. She further testified that antisocial people have volitional control. Cheek was diagnosed by Dr. Davis with polysubstance abuse in institutional remission. She did not diagnose him as a paraphiliac. According to Dr. Davis, Cheek does not present a significant risk of committing a new sexual offense if released to the community.
In addition to these two expert witnesses, three employees from Atascadero State Hospital testified in Cheek’s case, including Donald Woodard, a hospital police officer; Wendy A. Quinn, a substance abuse treatment facilitator and group caseload provider; and Michael Wayne Ross, a psychiatric technician. They testified that they never saw Cheek engage in inappropriate behavior and had never known him to be using a narcotic at the hospital.
Jury Verdict
On January 3, 2007, the jury found Cheek to be a sexually violent predator. After the jury returned its verdict, the trial court requested that the parties submit proposed orders concerning Cheek’s commitment. The court indicated that it would select one of the proposed orders, or draft its own, based on the comments it had made before the commencement of trial regarding the constitutionality of portions of the amended SVPA.
On January 5, 2007, the trial court filed an order committing Cheek to the Department of Mental Health for a period of two years, from July 14, 2005, to July 14, 2007. In the order, the court concluded that the amended SVPA violated the United States Constitution and therefore “the court should continue to enforce the prior statutory scheme.”
On February 2, 2007, the People filed a notice of appeal, purportedly appealing from a judgment entered on January 3, 2007. Cheek filed a cross-appeal on February 6, 2007, from the “judgment entered” and “commitment imposed on January 5, 2007.” By order filed June 6, 2007, we denied Cheek’s motion to dismiss the People’s appeal and directed the Attorney General to file an amended notice of appeal within 10 days. On June 14, 2007, the People filed an amended notice of appeal from the judgment entered on January 5, 2007.
On June 27, 2007, we granted the People’s petition for a writ of supersedeas, staying all further trial court proceedings on a recommitment petition filed by the People on February 22, 2007, until final determination of this appeal. We stated that the commitment of Cheek “shall be treated as a commitment to the California Department of Mental Health for an indeterminate term while the appeal is pending.”
III. OVERVIEW OF THE SVPA
The SVPA provides for the involuntary civil commitment, for treatment and confinement, of an individual who is found, by a unanimous jury verdict (§ 6603, subds. (e) & (f)), and beyond a reasonable doubt (§ 6604), to be a “sexually violent predator” (ibid). The SVPA was amended twice in 2006—in September, by Senate Bill 1128, and in November, by Proposition 83. We first provide an overview of one of the significant changes to the SVPA—the change from a two-year commitment term to an indeterminate term of commitment. We will discuss other changes in more detail in connection with the parties’ specific arguments on appeal.
Prior to the amendments in 2006, an individual determined to be a sexually violent predator was committed to the custody of the Department of Mental Health for a two-year term. The individual’s term of commitment could be extended for additional two-year periods. (Former § 6604, as amended by Stats. 2000, ch. 420, § 3; former § 6604.1, as amended by Stats. 2000, ch. 420, § 4.) The procedures applicable to extension proceedings resulted in essentially a new determination of sexually violent predator status every two years. (People v. Munoz (2005) 129 Cal.App.4th 421, 429-430.)
On September 20, 2006, the Governor signed into law Senate Bill 1128, which amended the SVPA effective immediately. (Stats. 2006, ch. 337, § 62.) Among other changes, the amended SVPA provided for an indeterminate term of commitment. (Stats. 2006, ch. 337, § 55.) The references to two-year commitment terms and extended commitments in sections 6604 and 6604.1 were eliminated. (Stats. 2006, ch. 337, §§ 55, 56.)
Less than two months after Senate Bill 1128 amended the SVPA, voters approved Proposition 83, which amended the SVPA effective November 8, 2006. (See Cal. Const., art. II, § 10, subd. (a).) The changes to the SVPA provided by Proposition 83 were not exactly the same as those previously provided by Senate Bill 1128, and Proposition 83 incorporated additional amendments to the SVPA beyond those provided by Senate Bill 1128. However, Proposition 83, similar to Senate Bill 1128, did amend the SVPA to provide that a sexually violent predator’s commitment term is “indeterminate.” (§ 6604; see § 6604.1.) Proposition 83 also eliminated all references to a two-year term of commitment and most references to an extended commitment in sections 6604 and 6604.1.
In this case, the People filed an amended petition to extend Cheek’s commitment for an indeterminate term on October 16, 2006, which was after Senate Bill 1128 became law but before voter approval of Proposition 83. Cheek’s trial on the amended petition began in December 2006, after both sets of amendments to the SVPA. In People v. Whaley (2008) 160 Cal.App.4th 779 (Whaley), we held that the amendments under Proposition 83 to sections 6604 and 6604.1, which provide for an indeterminate term of commitment, apply prospectively. We also determined that a person already committed as a sexually violent predator before the amendments under Proposition 83 is entitled to an extension proceeding at which a new determination would take place as to whether the person is a sexually violent predator. (Whaley, supra, 160 Cal.App.4th at p. 803.)
In this case, because (1) Proposition 83 provided the more recent amendments to the SVPA, (2) the amendments providing for an indeterminate term apply prospectively, and (3) Cheek’s trial occurred after the effective date of the amendments provided by Proposition 83, we will apply the version of the SVPA as it existed after the passage of Proposition 83 when considering the parties’ contentions on appeal. We will consider the version in effect before Proposition 83 was approved only to the extent that version is raised as an issue by the parties.
IV. DISCUSSION
A. People’s Appeal
The People contend that Cheek should be committed to an indeterminate term of commitment, rather than a two-year commitment term as ordered by the trial court.
The trial court committed Cheek to a two-year term after concluding that the statutory scheme before the 2006 amendments should be enforced because the amended SVPA violates the United States Constitution. The court explained that the provisions concerning a “probable cause hearing” for a person committed to an indeterminate term were “[o]f specific concern to the court . . . .” The court interpreted section 6605, subdivision (c), as making the court the “gate keeper between the defendant and a jury trial” and imposing a burden on the defendant to prove that his or her mental disorder has changed. The court reasoned: “Such a provision does not simply address what the person’s present condition is but requires some change. From what? It is not unrealistic to expect that the experts for the People would opine that the defendant’s condition has not changed, but the defendant’s experts would opine that the defendant has never been disabled as defined by statute. Must the defendant find an expert who opines that the defendant’s condition has changed? Is a person deprived of a jury trial unless he/she asserts his/her condition has changed? The effect of the statutory change in this particular lends substance to the argument that the indeterminate commitment is in fact an indeterminate commitment. As such, the statutory scheme loses its civil status as defined in Kansas v. Hendricks and becomes punitive in nature.”
In interpreting the relevant provisions of the SVPA, we apply the well-settled rules of statutory construction. “ ‘The goal of statutory construction is to ascertain and effectuate the intent of the Legislature. [Citation.] Ordinarily, the words of the statute provide the most reliable indication of legislative intent. [Citation.] When the statutory language is ambiguous, the court may examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes. [Citations.]” [Citation.] ‘ “When the language is susceptible of more than one reasonable interpretation . . ., we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” ’ [Citation.]” (People v. Jefferson (1999) 21 Cal.4th 86, 94.)
Section 6605 pertains to certain post-commitment procedures. After a person is “found to be a sexually violent predator and committed to the custody of the State Department of Mental Health,” the person’s mental condition must be evaluated by the Department at least once every year. (§ 6605, subd. (a).) The annual report must “include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community.” (Ibid.) This report must be in the form of a declaration and prepared by a “professionally qualified person.” (Ibid.) A copy of the report must be served on the prosecuting agency and the committed person, and it must be filed with the court. The committed person may retain an expert or, “if he or she is indigent and so requests,” the court may appoint an expert to examine the person. (Ibid.)
A “sexually violent predator” means a person who, among other things, “has been convicted of a sexually violent offense” and “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).) A “ ‘[d]iagnosed mental disorder’ includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).)
If the Department of Mental Health determines that “(1) the person’s condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the director shall authorize the person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge.” (§ 6605, subd. (b).)
After the court receives the petition, “a show cause hearing” must be held by the court in order to “consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney or the committed person.” (§ 6605, subd. (b).)
Pertinent here, section 6605, subdivision (c), provides: “If the court at the show cause hearing determines that probable cause exists to believe that the committed person’s diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged, then the court shall set a hearing on the issue.” (Italics added.) This language in subdivision (c) has not changed since the SVPA first took effect on January 1, 1996. (Stats.1995, ch. 763, § 3.)
Section 6605 further provides that if the court finds probable cause and subsequently sets a full hearing on the issue, the committed person is entitled to “all constitutional protections that were afforded . . . at the initial commitment proceeding.” (§ 6605, subd. (d).) The committed person may demand a jury trial and have a court-appointed expert. (Ibid.) At the trial, the People must “prove beyond a reasonable doubt that the committed person’s diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged.” (Ibid.) If the court or jury rules against the committed person, the person is committed for an indeterminate term. “If the court or jury rules for the committed person, he or she shall be unconditionally released and unconditionally discharged.” (§ 6605, subd. (e).)
In this case, the trial court interpreted section 6605, subdivision (c), regarding the show cause hearing, as requiring a “change” in the defendant’s mental condition rather than requiring an inquiry into the “present” mental condition of the defendant. The court expressed concern about a case in which the defendant or the defendant’s expert believed that the defendant is not, and never was, a sexually violent predator. The court apparently believed that probable cause would not be shown in this instance at the show cause hearing and, consequently, the defendant would not be entitled to a jury trial regarding whether the commitment should continue or whether the defendant should be released.
We believe that the reference in subdivision (c) of section 6605 to a defendant whose mental condition has “changed” reasonably encompasses a defendant whose current mental condition is such that the defendant does not meet the definition of a sexually violent predator, regardless of whether the defendant or the defendant’s expert believes that the current mental condition represents a change over time. Section 6605 applies if the defendant has already been “found to be a sexually violent predator . . . .” (§ 6605, subd. (a).) Thus, if the defendant’s current mental condition is such that the defendant does not meet the definition of sexually violent predator, then the defendant’s current mental condition necessarily represents a change from the defendant’s earlier mental condition when the defendant was found to be a sexually violent predator. We do not find any language in section 6605 suggesting that the defendant or the defendant’s expert must believe or opine that a change has occurred in the defendant’s mental condition. Rather, we construe the reference to the defendant’s “changed” mental condition in section 6605, subdivision (c), as requiring the court at the show cause hearing to consider the defendant’s current mental condition, as contrasted with the earlier finding, by the jury or the court, that the defendant’s mental condition, among other things, qualified the defendant as a sexually violent predator. Thus, if the court at the show cause hearing “determines that probable cause exists to believe that the committed person’s diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged” (§ 6605, subd. (c)), then the person is entitled to a hearing and may demand a jury trial (§ 6605, subds. (c) & (d)).
The parties have not directed our attention to any authority suggesting that this interpretation would render unconstitutional the amended SVPA as concluded by the trial court. We therefore turn to the arguments raised by Cheek in his cross-appeal.
B. Cheek’s Cross-Appeal
Cheek asserts that the amended SVPA violates the due process, ex post facto, double jeopardy, and equal protection clauses. He also contends that the trial court did not have jurisdiction to extend his commitment as a sexually violent predator, and application of an indeterminate term would be an unlawful retroactive application of the amended SVPA. He further claims that the court’s refusal to allow 20 peremptory challenges denied him a fair trial, there were several errors regarding jury instructions, there was insufficient evidence that “he had tried and failed to control his behavior,” and the cumulative error at trial requires reversal of the order of commitment. Lastly, he contends that the amended SVPA violates his First Amendment right to petition.
Many of the constitutional claims raised by Cheek are presently pending before the California Supreme Court in People v. McKee (2008) 160 Cal.App.4th 1517, review granted July 9, 2008, S162823.
1. Due Process
Cheek contends that the amended SVPA, which provides for an indeterminate term of commitment, violates the due process clause of the Fourteenth Amendment to the United States Constitution. He believes that the amended SVPA “creates an unacceptable risk that [a committed person] who no longer qualifies as a sexually violent predator will have his commitment continued in violation of his right to due process.” In particular, Cheek argues that the “mechanisms for judicial review of the defendant’s confinement” under sections 6605 and 6608 are not “constitutionally adequate.” Among other things, he objects to a committed person having to bear the burden of proof by a preponderance of the evidence in order to be released under section 6608.
Freedom from physical restraint is “ ‘at the core of the liberty protected by the Due Process Clause from arbitrary governmental action[.]’ [Citation.]” (Kansas v. Hendricks (1997) 521 U.S. 346, 356 (Hendricks).) However, this “liberty interest is not absolute. . . . [A]n individual’s constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context . . . .” (Ibid.) For example, the states “have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety. [Citations.]” (Id. at p. 357.) The United States Supreme Court has “consistently upheld such involuntary commitment statutes provided the confinement takes place pursuant to proper procedures and evidentiary standards. [Citations.]” (Ibid.) Even so, “ ‘[d]ue process is flexible and calls for such procedural protections as the particular situation demands.’ [Citation.]” (Jones v. United States (1983) 463 U.S. 354, 367-368 (Jones).)
The due process clause does not necessarily preclude civil commitment for an indeterminate period. For example, in Jones, supra, 463 U.S. 354, the United States Supreme Court determined that the due process clause did not require the petitioner, who was committed by the District of Columbia to a mental hospital upon being acquitted of a crime by reason of insanity, to be released after being hospitalized for a period longer than he might have served in prison had he been convicted. The law under consideration allowed the person to be released upon certification by the hospital or upon periodic review hearings at which the committed person had the burden of proving by a preponderance of the evidence that the person was no longer mentally ill or dangerous. (Id. at pp. 357-358.)
The Supreme Court explained: “The purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual’s mental illness and protect him and society from his potential dangerousness. The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous. [Citations.] And because it is impossible to predict how long it will take for any given individual to recover -- or indeed whether he ever will recover -- Congress has chosen, as it has with respect to civil commitment, to leave the length of commitment indeterminate, subject to periodic review of the patient’s suitability for release.” (Jones, supra, 463 U.S. at p. 368.) The court concluded that it was constitutionally permissible for the government to confine the individual in a mental institution until the individual has regained sanity or is no longer dangerous. (Id. at p. 370; see Addington v. Texas (1979) 441 U.S. 418 [due process clause requires in a civil proceeding clear and convincing proof that an individual is mentally ill and dangerous in order to commit the individual to a mental hospital for an indefinite period].)
The fact that the petitioner in Jones affirmatively raised the defense of insanity at his criminal trial and in this case the People alleged Cheek was a sexually violent predator—and thus had a diagnosed mental disorder—in the initial commitment proceedings is not a pertinent basis on which to conclude that the finding of mental illness in Jones satisfied due process while the finding that Cheek had a diagnosed mental disorder in this case did not satisfy due process. It is the finding of mental illness (in addition to a finding of dangerousness) that is essential to satisfy due process, and not the identity of the party – the People or the committed person – who asserts that mental illness. Moreover, the standard of proof at an initial commitment proceeding under the SVPA – proof beyond a reasonable doubt – ameliorates any concern that the People, and not Cheek, raised that question. (See § 6604; Jones, supra, 463 U.S. at p. 362 [“the Due Process Clause requires the State in a civil-commitment proceeding to demonstrate by clear and convincing evidence that the individual is mentally ill and dangerous”].)
Regarding post-commitment review and the release procedure, as we have explained section 6605 requires an annual mental examination of a person committed under the SVPA and sets forth the procedure for a person to petition, upon the approval of the Department of Mental Health, for conditional release or unconditional discharge. If the trial court finds probable cause at the show cause hearing, a full hearing (trial) must be set and the People must prove beyond a reasonable doubt that the committed person’s mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged. If the court or jury finds for the committed person, the person must be unconditionally released and discharged.
While section 6605 allows for the filing of a petition for release upon the approval of the Department of Mental Health, section 6608 sets forth the procedure for a committed person to petition for conditional release or unconditional discharge “without the recommendation or concurrence of the Director of Mental Health.” (§ 6608, subd. (a), italics added.) When the trial court receives such a petition, it “shall endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing.” (Ibid.) The person petitioning is entitled to assistance of counsel. (Ibid.)
Section 6608 was amended effective January 1, 2008, but the amendments are not relevant to the issues in these appeals.
The court may not take any action on the petition “without first obtaining the written recommendation of the director of the treatment facility” to which the person is committed. (§ 6608, subd. (j).) Further, the court may not hold a hearing on the petition until the person has been committed for at least one year. (§ 6608, subd. (c).)
At the hearing, the court must “determine whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community.” (§ 6608, subd. (d).) If the trial court “determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community” (ibid.), the person may be placed in a conditional release program for one year and may, after another court hearing, be unconditionally released from commitment (§ 6608, subds. (d)-(g)). If the court denies the petition for conditional release or unconditional discharge, the person must wait one year before filing a new application. (§ 6608, subd. (h).) In any hearing under section 6608, the petitioner has the burden of proof by a preponderance of the evidence. (§ 6608, subd. (i).)
In addition to a committed person filing a petition for release under section 6605 or 6608, the Department of Mental Health may initiate discharge or release proceedings. Under section 6607, “[i]f the Director of Mental Health determines that the person’s diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community, the director shall forward a report and recommendation for conditional release” to the committing court. (§ 6607, subd. (a).) Upon receipt, the court must “set a hearing in accordance with the procedures set forth in section 6608.” (§ 6607, subd. (b).) Moreover, section 6605 provides that if the Department “has reason to believe that” the committed person “is no longer a sexually violent predator, it shall seek judicial review of the person’s commitment pursuant to the procedures set forth in Section 7250 in the superior court from which the commitment was made. If the superior court determines that the person is no longer a sexually violent predator, he or she shall be unconditionally released and unconditionally discharged.” (§ 6605, subd. (f).)
Section 7250 states: “Any person who has been committed is entitled to a writ of habeas corpus, upon a proper application made by the State Department of Mental Health . . ., by that person, or by a relative or friend in his or her behalf to the judge of the superior court of the county in which the hospital is located, . . . All documents requested by the court in the county of confinement shall be forwarded from the county of commitment to the court. Upon the return of the writ, the truth of the allegations under which he or she was committed shall be inquired into and determined. The medical history of the person as it appears in the clinical records shall be given in evidence, and the superintendent in charge of the state hospital wherein the person is held in custody and any other person who has knowledge of the facts shall be sworn and shall testify relative to the mental condition of the person.”
In this case, Cheek primarily relies on Hendricks, supra, 521 U.S. 346, and Foucha v. Louisiana (1992) 504 U.S. 71 (Foucha), to support his argument that the post-commitment review and release procedures under the amended SVPA are insufficient and, therefore, an indeterminate term of commitment under the act violates his federal constitutional right to due process.
In Hendricks, supra, 521 U.S. 346, the United States Supreme Court addressed whether the Kansas Sexually Violent Predator Act (Kan. Stat. Ann. § 59-29a01 et seq.) satisfied “ ‘substantive’ due process requirements” (Hendricks, supra, 521 U.S. at p. 356) and whether the law violated the double jeopardy or ex post facto clause. The Kansas statutory scheme defined a sexually violent predator as a person who “ ‘has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.’ [Citation.]” (Id. at p. 352.) At issue in the court’s due process analysis was the statutory definition of a “mental abnormality,” which the Kansas statutory scheme defined as a “ ‘congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.’ [Citation.]” (Ibid.) The court explained that the Kansas statutory scheme “requires a finding of future dangerousness, and then links that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior. [Citation.]” (Id. at p. 358.) The court found that the definition of “mental abnormality” in the Kansas statutory scheme was consistent with the requirements of other statutes that it had upheld and concluded that the definition satisfied due process requirements. (Id. at pp. 356-360.) Although the Hendricks court described the post-commitment procedures under the Kansas statutory scheme (id. at p. 353), it did not consider these procedures in its due process analysis. Thus Hendricks is inapposite.
In Foucha, supra, 504 U.S. 71, the United States Supreme Court considered the constitutionality of a Louisiana statutory scheme that provided for the commitment in a psychiatric hospital of an individual found not guilty by reason of insanity. The Louisiana law allowed the continued commitment of an individual who was dangerous, but not necessarily mentally ill. (Id. at p. 73.)
The Supreme Court explained that “to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others.” (Foucha, supra, 504 U.S. at pp. 75-76.) However, when a person is found not guilty by reason of insanity, a separate hearing establishing mental illness and dangerousness is not required, because these requirements may be “properly inferred” from the verdict. (Id. at p. 76.) Nonetheless, “ ‘[t]he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous,’ [citation]; i. e., the acquittee may be held as long as he is both mentally ill and dangerous, but no longer.” (Id. at p. 77.) Because there was no evidence that Terry Foucha was suffering from a mental illness, the Supreme Court determined that due process precluded his continued commitment. (Id. at pp. 77-80.)
The Supreme Court also observed that “Foucha is not now entitled to an adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community. Indeed, the State need prove nothing to justify continued detention, for the statute places the burden on the detainee to prove that he is not dangerous.” (Foucha, supra, 504 U.S. at pp. 81-82.) Cheek refers to this portion of Foucha in contending that the SVPA deprives him of due process by placing the burden of proof on him in a hearing under section 6608. This portion of Foucha, however, does not support Cheek’s argument.
The court in Foucha explained that a person who poses a danger to others may be subject to limited confinement in “certain narrow circumstances.” (Foucha, supra, 504 U.S. at p. 80.) For example, in United States v. Salerno (1987) 481 U.S. 739 (Salerno), the court rejected constitutional challenges to a statute providing for the pretrial detention of dangerous arrestees. The Foucha court explained that the “sharply focused” statute in Salerno provided, among other limitations, that only those arrested for the most serious of crimes (such as violent crimes and those punishable by life imprisonment or death) could be detained, the government had to prove by clear and convincing evidence that the arrestee posed a danger to the community, and the maximum duration of the pretrial detention “was limited by the ‘stringent time limitations of the Speedy Trial Act.’ [Citation.]” (Foucha, supra, 504 U.S. at p. 81.) In contrasting the confinement scheme described in Salerno with the Louisiana statutory scheme (see id. at p. 73) under which Foucha was confined, the court in Foucha made clear that in order to detain for dangerousness alone, the Louisiana statutory scheme needed to be more “carefully limited” (id. at p. 81) in order to “to defeat Foucha’s liberty interest under the Constitution in being freed from indefinite confinement in a mental facility” (id. at p. 82). Further, after summarizing the evidence that had been introduced against Foucha, the court found little evidence that he was dangerous. (Id. at p. 82.) It was in this context that the court objected to placing the burden of proof on Foucha.
Proceedings under the Louisiana statutory scheme of confinement at issue in Foucha, supra, 504 U.S. 71, are not comparable to proceedings under the amended SVPA. Pursuant to section 6605, the committed person’s mental condition is examined annually and the resulting report must be filed with the court. (§ 6605, subd. (a).) If the Department of Mental Health determines that the person is no longer a sexually violent predator or that conditional release is appropriate, the person may petition the court accordingly. (§ 6605, subd. (b).) If the court finds probable cause, the state will bear the burden of proof beyond a reasonable doubt. (§ 6605, subds. (c) & (d).) A person petitioning for discharge under section 6608 on the ground that the person is no longer a sexually violent predator is seeking a determination that is contrary to the initial adjudication and, to the extent the petition is brought more than one year after the initial adjudication, contrary to a more recent determination by the Department of Mental Health that the person is and remains a sexually violent predator—that is, the person has a mental illness and is dangerous. Nothing in Foucha suggests that due process precludes the state from imposing the burden of proof on the committed person in this circumstance.
Cheek also complains the filing of a petition under section 6605 for conditional release or unconditional discharge “is at the absolute discretion of the Department of Mental Health.” According to Cheek, the “government” can therefore “prevent any hearing,” after the initial commitment hearing, in which it would have the burden of proving beyond a reasonable doubt that the defendant has the requisite mental condition. We do not agree with Cheek’s interpretation of section 6605. Section 6605 requires an annual mental examination of the committed person (§ 6605, subd. (a)) and expressly provides that the Director of the Department of Mental Health “shall” authorize the committed person to file a petition for release if the Department determines that the person is no longer a sexually violent predator or that conditional release is appropriate (§ 6605, subd. (b)). The director has no discretion in these circumstances to withhold authorization for the filing of the petition.
Cheek further contends that under section 6608, which allows a committed person to petition for discharge or conditional release without authorization from the Director of Mental Health, there is no provision for the appointment of a mental health expert for the committed person and the trial court may summarily deny the petition if it believes the petition is frivolous.
Section 6608 entitles the committed person to the assistance of counsel. (§ 6608, subd. (a).) Although section 6608 does not explicitly provide for the appointment of a mental health expert, an annual mental examination by a professionally qualified person is provided under section 6605, with the resulting report filed with the court and a copy given to the committed person. (§ 6605, subd. (a).) Section 6605 also permits the committed person to retain an expert, or to request a court-appointed expert, and requires that the expert have access to all records concerning the committed person. (§ 6605, subd. (a); but see People v. Hardacre (2001) 90 Cal.App.4th 1392, 1398-1399 [appointment of expert under section 6605 to assist committed person in preparing for show cause hearing is within trial court’s discretion; only if trial court finds probable cause and schedules a full hearing must the court appoint an expert].) Thus, at a minimum, the committed person will receive an annual report regarding the person’s mental condition upon which the person may base a petition for discharge or conditional release. As for Cheek’s objection to the trial court’s authority to deny a frivolous petition without a hearing (§ 6608, subd. (a)), he fails to cite any authority suggesting that this limited power of the trial court violates an individual’s right to due process.
As the United States Supreme Court held in Jones, supra, 463 U.S. 354, it is constitutionally permissible to confine an individual in a mental institution until the individual has regained sanity or is no longer dangerous. (Id. at pp. 368-370.) We find that the procedures provided in the amended SVPA, including sections 6605 and 6608, are constitutionally adequate to ensure that a commitment under the amended SVPA does not continue if the individual’s mental condition no longer meets the criteria for commitment as a sexually violent predator.
2. Ex Post Facto Law and Double Jeopardy
Cheek next argues that an indeterminate term of commitment under the amended SVPA constitutes “punishment.” Cheek asserts that because this “punishment” is based on prior sexual offenses for which he has already been convicted and served prison time, the amended SVPA violates the ex post facto and double jeopardy clauses of the United States Constitution.
In support of his argument that the SVPA is now punitive in nature, Cheek generally refers to the “scope of the reforms embodied in [Senate Bill] 1128” and Proposition 83. He also asserts that an indeterminate term of commitment is “excessive” because a “mental disorder is not necessarily a permanent condition.” Cheek further contends that the behavior “trigger[ing] application of the SVPA – both past conduct and future conduct – is defined as a crime” and the amendments “expanded the number of crimes” that make a defendant eligible for commitment.
In arguing that the amended SVPA is punitive in nature, Cheek refers to changes effected by “both measures.” We assume he is referring to Senate Bill 1128 and Proposition 83.
An “essential prerequisite” for an ex post facto or double jeopardy claim is that the statute be punitive. (Hendricks, supra, 521 U.S. at p. 369.) To determine whether a statute is punitive, the court “must initially ascertain whether the legislature meant the statute to establish ‘civil’ proceedings. If so, [the court] ordinarily defer[s] to the legislature’s stated intent.” (Id. at p. 361.) “Although . . . a ‘civil label is not always dispositive,’ [citation], [a court] will reject the legislature’s manifest intent only where a party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ [Citation.] In those limited circumstances, [a court] will consider the statute to have established criminal proceedings for constitutional purposes.” (Ibid.)
When analyzing the effects of a statutory scheme, there are seven factors that provide “a useful framework,” although “they are ‘neither exhaustive nor dispositive . . . .” (Smith v. Doe (2003) 538 U.S. 84, 97.) Those factors are whether the statutory scheme: (1) “has been regarded in our history and traditions as a punishment,” (2) “imposes an affirmative disability or restraint,” (3) “promotes the traditional aims of punishment,” (4) “has a rational connection to a nonpunitive purpose,” (5) “is excessive with respect to this purpose” (ibid.), (6) “whether the regulation comes into play only on a finding of scienter,” and (7) “whether the behavior to which it applies is already a crime” (id. at p. 105).
The California Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138 (Hubbart), held that the original version of California’s SVPA, which went into effect in 1996 (id. at p. 1143), was not punitive in nature and did not otherwise implicate ex post facto concerns (id. at p. 1179). Among other things, the Hubbart court explained that the California Legislature, in describing the underlying purpose of the SVPA as originally enacted, “disavowed any ‘punitive purpose[],’ and declared its intent to establish ‘civil commitment’ proceedings in order to provide ‘treatment’ to mentally disordered individuals who cannot control sexually violent criminal behavior. (See, e.g., Stats. 1995, ch. 763, § 1; Sen. Com. on Crim. Procedure, Analysis of Assem. Bill No. 888 (1995-1996 Reg. Sess.) July 11, 1995.) The Legislature also made clear that, despite their criminal record, persons eligible for commitment and treatment as SVP’s are to be viewed ‘not as criminals, but as sick persons.’ (§ 6250.) Consistent with these remarks, the SVPA was placed in the Welfare and Institutions Code, surrounded on each side by other schemes concerned with the care and treatment of various mentally ill and disabled groups. [Citations.]” (Hubbart, supra, 19 Cal.4th at p. 1171.) Although the Legislature also expressed concern over the harm inflicted by sexually violent predators, the Hubbart court concluded that “the legislative record as a whole” (id. at p. 1172) indicated that the Legislature “intended a nonpenal ‘civil commitment scheme designed to protect the public from harm.’ [Citation.]” (Ibid., quoting Hendricks, supra, 521 U.S. at p. 361.)
In this case, Cheek does not specifically identify anything in the legislative history of Senate Bill 1128, or in Proposition 83, suggesting that the Legislature or voters intended the 2006 amendments to change the SVPA from a nonpenal civil commitment scheme to a punitive scheme.
Cheek also fails to provide “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ [Citation.]” (Hendricks, supra, 521 U.S. at p. 361.) In contending that the amended SVPA is punitive in purpose, he generally asserts that “both measures,” which we assume to mean Senate Bill 1128 and Proposition 83, “(1) increased penalties for violent and habitual sex offenders and child molesters; (2) lengthened periods of parole; and (3) expanded the definition of a sexually violent predator.” As for the first two changes asserted by Cheek, we assume he is referring to amendments other than to the SVPA. We do not agree with Cheek that changes to other statutory provisions outside of the SVPA would transform the SVPA into a punitive statutory scheme. As for the “expanded definition of a sexually violent predator,” Cheek does not specify what definitional change he is referring to, nor otherwise explain how a change in the definition makes the statute punitive in purpose or effect.
The SVPA defines a sexually violent predator as a person who, among other things, “has been convicted of a sexually violent offense.” (§ 6600, subd. (a).) Proposition 83 reduced the number of victims against whom the sexually violent offense must be committed from two to one (§ 6600, subd. (a)(1)), expanded the definition of a conviction to include one resulting in a commitment to the Department of the Youth Authority or an indeterminate prison sentence (§ 6600, subd. (a)(2)(H), (I)), and expanded the definition of a sexually violent offense by increasing the number of specified predicate offenses (§ 6600, subd. (b)).
Cheek also asserts that an indeterminate term of commitment is “excessive” because a “mental disorder is not necessarily a permanent condition.”
We do not agree that the indeterminate term of commitment is excessive in view of the procedures for release set forth in the amended SVPA. “[T]he confinement of ‘mentally unstable individuals who present a danger to the public’ [is] one classic example of nonpunitive detention. [Citation.]” (Hendricks, supra, 521 U.S. at p. 363.) “[T]he 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.’ ” (Hubbart, supra, 19 Cal.4th at p. 1176, quoting Hendricks, supra, 521 U.S. at p. 363.) As we have explained, the amended SVPA sets forth procedures, including those specified in sections 6605 and 6608, to release the committed person where the person’s condition no longer meets the criteria for commitment. Thus, we believe that “[f]ar from any punitive objective, the confinement’s duration is instead 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. Cf. Jones, [supra,] 463 U.S. at [p.] 368 (noting with approval that ‘because it is impossible to predict how long it will take for any given individual to recover [from insanity] – or indeed whether he will ever recover – Congress has chosen . . . to leave the length of commitment indeterminate, subject to periodic review of the patient’s suitability for release’).” (Hendricks, supra, 521 U.S. at pp. 363-364.)
Cheek further contends that the behavior “trigger[ing] application of the SVPA – both past conduct and future conduct – is defined as a crime” and the amendments “expanded the number of crimes” that make a defendant eligible for commitment.
We do not agree with Cheek’s characterization of the amended SVPA. The amended SVPA remains limited to a person who has been convicted of a “sexually violent offense” 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).) We find the California Supreme Court’s reasoning regarding the predicate sexual offenses in the originally enacted version still pertinent to the amended SVPA: “the SVPA does not ‘affix culpability’ or seek ‘retribution’ for criminal conduct. [Citation.] Here, . . . prior sexually violent offenses are used ‘solely for evidentiary purposes’ to help establish the main prerequisites upon which civil commitment is based – current mental disorder and the likelihood of future violent sex crimes. [Citation.] To ensure that commitment occurs only under these circumstances, the SVPA requires that the jury be specially instructed about the limited evidentiary role of prior violent sex crimes. ([Former] § 6600, subd. (a).) Under these circumstances, the SVPA does not impose liability or punishment for criminal conduct, and does not implicate ex post facto concerns insofar as pre-Act crimes are used as evidence in the [sexually violent predator] determination.” (Hubbart, supra, 19 Cal.4th at p. 1175.)
The provision concerning the limiting jury instruction in former section 6600, subdivision (a), as originally enacted, is now found in section 6600, subdivision (a)(3).
In sum, we find that the amended SVPA remains “a nonpenal ‘civil commitment scheme designed to protect the public from harm.’ [Citation.]” (Hubbart, supra, 19 Cal.4th at p. 1172, quoting Hendricks, supra, 521 U.S. at p. 361.) In view of our determination that the amended SVPA is nonpunitive, we conclude that the amended SVPA does not violate the ex post facto or double jeopardy clause. (Hendricks, supra, 521 U.S. at p. 369.)
3. Equal Protection
Cheek asserts that the amended SVPA violates the equal protection clauses of the United States Constitution and the California Constitution. He argues that an individual committed under the amended SVPA is subject to an “indefinite civil commitment,” whereas the commitment of a mentally disordered offender (MDO), the commitment of an individual found not guilty by reason of insanity, the commitment of a mentally disordered sex offender (MDSO), or the conservatorship of a gravely disabled person under the Lanterman-Petris-Short Act, is subject to extensions of one year or two years.
“ ‘ “The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” ’ [Citation.] ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ [Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.)
“Under California law, ‘ “[s]trict scrutiny is the appropriate standard against which to measure [equal protection] claims of disparate treatment in civil commitment. [Citations.]” ’ [Citation.] ‘. . . [T]he state must establish both that it has a “compelling interest” which justifies the challenged procedure and that the distinctions drawn by the procedure are necessary to further that interest. [Citation.] At the very least, persons similarly situated must receive like treatment under the law.’ [Citations.]” (In re Smith (2008) 42 Cal.4th 1251, 1263 (Smith).)
Several California appellate cases have considered, and rejected, equal protection challenges regarding the SVPA. (People v. Calderon (2004) 124 Cal.App.4th 80, 94 [MDOs and sexually violent predators are not similarly situated]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1314-1315 [rejects claim of equal protection violation after analyzing MDO statutory scheme and SVPA]; 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 (Calhoun) [sexually violent predators and criminal defendants are not similarly situated, thus no equal protection violation].) Additionally, the Ninth Circuit has held that California’s statutory scheme for treatment of sexually violent predators does not violate equal protection. (Hubbart v. Knapp (9th Cir.2004) 379 F.3d 773, 782 [no constitutionally significant distinction between MDO statutory scheme and SVPA].)
Assuming for purposes of our analysis that the groups identified by Cheek are similarly situated to a sexually violent predator for purposes of the length of commitment, we believe that disparate treatment of a sexually violent predator is necessary to further compelling state interests. Unlike the other statutory schemes identified by Cheek, the SVPA applies to an individual who “is likely to commit sexually violent predatory criminal acts.” (People v. Hurtado (2002) 28 Cal.4th 1179, 1186 (Hurtado).) A predatory offense is one “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.” (§ 6600, subd. (e).) The California Supreme Court has explained that individuals who commit sexually violent predatory acts are much more dangerous than individuals whose sexually violent crimes are not predatory, and that the former includes “the most dangerous offenders.” (Hurtado, supra, 28 Cal.4th at p. 1187.) As articulated by our Supreme Court, “[b]ecause predatory offenders could strike at any time and victimize anyone, they pose a much greater threat to the public at large. In contrast, a defendant likely to commit crimes only against family members or close acquaintances is less likely to reoffend because potential victims will be aware of the defendant’s status as a sex offender. The public at large, however, is inevitably more defenseless against acts committed by strangers.” (Hurtado, supra, 28 Cal.4th at pp. 1187-1188.) In other words, “the SVPA narrowly targets ‘a small but extremely dangerous group of sexually violent predators . . . .’ [Citations.]” (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253 (Cooley); see Garcetti v. Superior Court (2000) 85 Cal.App.4th 1113, 1124 [“the class of persons subject to commitment under the MDSO Act was somewhat broader than those subject to the SVP Act, which is aimed at sexually violent predators”].)
In Proposition 83, which changed the length of a sexually violent predator’s commitment from a two-year term to an indeterminate term, voters expressed their concern for public protection and treatment in the “Findings and Declarations.” The “Findings and Declarations” explain in part: “Sex offenders have very high recidivism rates. According to a 1998 report by the U.S. Department of Justice, sex offenders are the least likely to be cured and the most likely to reoffend, and they prey on the most innocent members of our society. More than two-thirds of the victims of rape and sexual assault are under the age of 18. Sex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.)
The “Findings and Declarations” explain that the “existing laws that provide for the commitment and control of sexually violent predators must be strengthened and improved.” (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, p. 127.) The “Findings and Declarations” further state: “California is the only state, of the number of states that have enacted laws allowing involuntary civil commitments for persons identified as sexually violent predators, which does not provide for indeterminate commitments. California automatically allows for a jury trial every two years irrespective of whether there is any evidence to suggest or prove that the committed person is no longer a sexually violent predator. As such, this act allows California to protect the civil rights of those persons committed as a sexually violent predator while at the same time protect society and the system from unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person.” (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, p. 127.)
In view of the narrowly targeted and “ ‘extremely dangerous’ ” group of individuals subject to commitment under the SVPA (Cooley, supra, 29 Cal.4th at p. 253; see also Hurtado, supra, 28 Cal.4th at pp. 1187-1188), along with voter consideration of recidivism and the need for long-term treatment with a limited likelihood of cure (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, p. 127), we believe that voters reasonably concluded that sexually violent predators should be committed to indeterminate terms, subject to the particular release procedures specified in the amended SVPA. (Cf. Bowens v. Superior Court (1991) 1 Cal.4th 36, 43 [analyzing the language of Proposition 115 reflecting voter intent to determine whether the requisite state interest existed].) “ ‘[T]he state has compelling interests in public safety and in humane treatment of the mentally disturbed. [Citation.] It may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] Variation of the length and conditions of confinement, depending on degrees of danger reasonably perceived as to special classes of persons, is a valid exercise of state power. . . . [Citations.]’ [Citation.]” (Smith, supra, 42 Cal.4th at p. 1265.) We therefore determine that imposition of an indeterminate term along with the specified release procedures under the amended SVPA have been shown necessary to further compelling state interests in public protection and treatment. Consequently, the indeterminate term of commitment under the amended SVPA does not violate Cheek’s constitutional right to equal protection.
4. Jurisdiction and Retroactivity
Cheek argues that the trial court erred in denying his November 14, 2006 motion to dismiss the amended petition (to extend his commitment for an indeterminate term) for lack of jurisdiction. Cheek argues that the SVPA, as amended in 2006, “does not provide for extended commitment procedures,” the court’s order extending his commitment is “void for lack of jurisdiction,” and he “must be released immediately and unconditionally.” Cheek further argues that “[e]ven if the trial court had jurisdiction to extend [his] commitment, the revisions to the SVPA allowing for an indefinite term cannot be applied retroactively.”
As we have explained, Senate Bill 1128, which amended the SVPA to provide for an indeterminate term and eliminated certain references to commitment extensions, went into effect on September 20, 2006. A few weeks later, on October 16, 2006, the People filed the first amended petition to commit Cheek to an indeterminate term. Proposition 83, which also provided for an indeterminate term of commitment and which eliminated most references to commitment extensions, went into effect on November 8, 2006. Thereafter, the jury trial on the amended petition to commit Cheek to an indeterminate term began in December 2006, and the jury found Cheek to be a sexually violent predator in January 2007. On January 5, 2007, the trial court filed an order committing Cheek to the Department of Mental Health for a period of two years, from July 14, 2005, to July 14, 2007.
In People v. Shields (2007) 155 Cal.App.4th 559 (Shields), the Court of Appeal, Fourth District, reasoned that “the clear intent of the amendment” provided by Senate Bill 1128 was “to enhance—not restrict—confinement of persons determined to be” sexually violent predators. (Id. at p. 563.) Relying on “the well-established principles that the ‘ “language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend” ’ [citation], and statutory provisions may be added by implication ‘ “when compelled by necessity and supported by firm evidence of the drafters’ true intent” ’ [citations],” the Shields court concluded that the trial court had jurisdiction to adjudicate the petition to recommit the defendant and that an indeterminate term of commitment applied to the defendant. (Id. at p. 564.)
In Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275 (Bourquez), the Court of Appeal, Third District, reached similar conclusions. First, the court implied a saving clause in the amended SVPA to permit proceedings to extend commitments. (Id. at pp. 1283-1288.) The court reasoned: “The very nature of Senate Bill 1128 and Proposition 83, to strengthen punishment and control of sexual offenders, compels the conclusion that the Legislature and the voters must have intended that the new law should operate prospectively and that those previously found to be [sexually violent predators] should remain subject to the provisions for extended commitments under the old law.” (Id. at p. 1287.)
Second, the Bourquez court determined that the application of an indeterminate commitment term under Proposition 83 to pending petitions to extend commitment was not a retroactive application of the law. (156 Cal.App.4th at pp. 1288-1289.) The court explained: “In determining whether someone is [a sexually violent predator], the last event necessary is the person’s mental state at the time of the commitment. For pending petitions, the person’s mental state will be determined after the passage of Proposition 83, at the time of commitment.” (Id. at p. 1289.) The court further recognized that “[t]he requirement that a commitment under the SVPA be based on a currently diagnosed mental disorder applies to proceedings to extend a commitment. Such proceedings are not a review hearing or a continuation of an earlier proceeding. [Citation.] Rather, an extension hearing is a new and independent proceeding at which the petitioner must prove the person meets the criteria of an SVP. [Citation.] The petitioner must prove the person is an SVP, not that the person is still one. [Citation.]” (Ibid., fn. omitted.) The court concluded: “Because a proceeding to extend commitment under the SVPA focuses on the person’s current mental state, applying the indeterminate term of commitment of Proposition 83 does not attach new legal consequences to conduct that was completed before the effective date of the law. [Citation.] Applying Proposition 83 to pending petitions to extend commitment under the SVPA to make any future extended commitment for an indeterminate term is not a retroactive application.” (Ibid.)
In People v. Carroll (2007) 158 Cal.App.4th 503 (Carroll), the Court of Appeal, Fifth District, similarly concluded that application of an indeterminate term of commitment did not constitute a retroactive application of the law, where the determination of the defendant’s status as a sexually violent predator took place after the SVPA was amended. The Carroll court explained that “the significant point with respect to retroactivity is not the filing of the petition, but trial and adjudication under the SVPA. [Citation.] The conduct or event (for want of a better term) to which the SVPA attaches legal consequences is the person’s mental condition at the time of adjudication, not at the time the extension petition is filed. In Carroll’s case, he was subject to recommitment for an indeterminate term because of the status of his mental condition after Senate Bill 1128’s amendments became effective. Accordingly, those amendments applied only to ‘events’ occurring after their enactment and so were not retrospectively applied. [Citations.]” (Id. at p. 514, fns. omitted.)
We agree with the reasoning in Shields, supra, 155 Cal.App.4th 559, Bourquez, supra, 156 Cal.App.4th 1275, and Carroll, supra, 158 Cal.App.4th 503. We therefore determine that the trial court had jurisdiction to proceed on the first amended petition to extend Cheek’s commitment for an indeterminate term. We further conclude that an indeterminate term of commitment applies to Cheek, because after the SVPA was amended to provide for an indeterminate term, the jury found Cheek to be a sexually violent predator. (See Whaley, supra, 160 Cal.App.4th at p. 803 [amendments to sections 6604 and 6604.1 provided by Proposition 83 apply prospectively, and a person already committed as a sexually violent predator is entitled to an extension proceeding at which a new determination is made of the person’s status as a sexually violent predator]; People v. Litmon (2008) 162 Cal.App.4th 383, 412 [amendments to sections 6604 and 6604.1 apply prospectively and an indeterminate term of commitment may be ordered following a trial in which a person is determined to be a sexually violent predator].)
5. Peremptory Challenges
Cheek asserts that he was denied a fair trial because the trial court denied his request for 20 peremptory challenges and only allowed six peremptory challenges.
In general, a defendant in a criminal case is entitled to 10 peremptory challenges. (Code Civ. Proc., § 231, subd. (a).) If the charged offense is punishable with death or life in prison, the number of peremptory challenges to which the defendant is entitled is increased to 20. (Ibid.) In civil cases, and in criminal cases where the offense is punishable with a maximum term of imprisonment of 90 days or less, each party generally is entitled to six peremptory challenges. (Code Civ. Proc., § 231, subds. (b) & (c).)
In People v. Superior Court (Cheek), supra, 94 Cal.App.4th 980, we concluded that a commitment under the SVPA is a special proceeding of a civil nature and therefore civil discovery under the Code of Civil Procedure is generally available in SVPA proceedings. (Id. at p. 988 [discussing former Code of Civil Procedure section 2016, et seq.].) In determining that the SVPA is civil in nature, we relied on Hubbart, supra, 19 Cal.4th 1138, which explained that the SVPA establishes a “ ‘civil commitment scheme covering persons who are to be viewed, “not as criminals, but as sick persons.” ’ (Hubbart[, supra,] 19 Cal.4th [at p.] 1166.)” (People v. Superior Court (Cheek), supra, 94 Cal.App.4th at p. 988.) Because “a commitment under the SVPA is a special proceeding that is civil in nature,” Cheek was entitled to six peremptory challenges. (Calhoun, supra, 118 Cal.App.4th at p. 526; cf. People v. Stanley (1995) 10 Cal.4th 764, 807 [proceeding to determine mental competence to stand trial for a capital crime is civil in nature and defendant is entitled to six peremptory challenges].)
Cheek argues that Calhoun, supra, 118 Cal.App.4th 519, which held that a defendant is entitled to six peremptory challenges in a jury trial pursuant to the SVPA, “must be revisited” in view of the change in the amended SVPA from a two-year to an indeterminate term of commitment. We understand Cheek to be asserting that a proceeding under the SVPA is now comparable to a criminal proceeding. We do not agree with Cheek’s assertion.
As we explained with respect to Cheek’s ex post facto and double jeopardy claims, the amended SVPA is not punitive in nature; it remains “a nonpenal ‘civil commitment scheme designed to protect the public from harm.’ [Citation.]” (Hubbart, supra, 19 Cal.4th at p. 1172, quoting Hendricks, supra, 521 U.S. at p. 361.) In this regard, “[f]ar from any punitive objective, the confinement’s duration 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.] If, at any time, the confined person is adjudged ‘safe to be at large,’ he is statutorily entitled to immediate release. [Citation.]” (Hendricks, supra, 521 U.S. at pp. 363-364.)
Accordingly, Cheek’s request for 20 peremptory challenges was properly denied by the trial court.
6. Jury Instruction Regarding “Tried to Control His Behavior”
Cheek contends the trial court erred by failing to instruct the jury as follows: “You may not conclude Mr. Cheek is a sexually violent predator unless you find that he has tried and failed to control his behavior.” The trial court refused to give the requested instruction, concluding that it was “not an accurate statement of the . . . law.”
As we explained, the United States Supreme Court held in Hendricks, supra, 521 U.S. 346, that the definition of “mental abnormality” in the Kansas Sexually Violent Predator Act satisfied substantive due process requirements. (Id. at pp. 356-360.) The court reasoned that the Kansas statutory scheme “requires a finding of future dangerousness, and then links that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior. [Citation.]” (Id. at p. 358.) The court concluded that the requirement in the Kansas statutory scheme “of a ‘mental abnormality’ or ‘personality disorder’ is consistent with the requirements of . . . other statutes that [it has] upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.” (Id. at p. 358.)
In Kansas v. Crane (2002) 534 U.S. 407 (Crane), the United States Supreme Court again considered the Kansas Sexually Violent Predator Act and explained that Hendricks, supra, 521 U.S. 346, did not set forth a “requirement of total or complete lack of control.” (Crane, supra, 534 U.S. at p. 411.) The Crane court reasoned: “an absolutist approach is unworkable. [Citations.] Moreover, most severely ill people -- even those commonly termed ‘psychopaths’ -- retain some ability to control their behavior. [Citations.] Insistence upon absolute lack of control would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities.” (Id. at pp. 411-412.)
Among other citations, the Crane court quoted psychological authority stating that “ ‘ “[t]he line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk.” ’ ” (Crane, supra, 534 U.S. at p. 412.)
The Crane court emphasized, however, that the federal constitution did not permit commitment under the Kansas statute “without any lack-of-control determination” being made. (Crane, supra, 534 U.S. at p. 412.) As to the requisite amount of lack of control, the Crane court explained that “in cases where lack of control is at issue, ‘inability to control behavior’ will not be demonstrable with mathematical precision. It is enough to say that there must be proof of 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 to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. [Citations.]” (Id. at p. 413.)
In People v. Williams (2003) 31 Cal.4th 757 (Williams), the California Supreme Court addressed whether a separate jury instruction regarding the issue of control was constitutionally required after Crane, supra, 534 U.S. 407, in order to commit an individual under California’s SVPA. At trial, the defendant had sought, but was refused, an instruction that “ ‘the diagnosed mental disorder must render the person unable to control his dangerous behavior.’ ” (Williams, supra, 31 Cal.4th at p. 763.) The jury ultimately found the defendant to be a sexually violent predator.
On appeal, the defendant asserted that his commitment was invalid because the language of the SVPA did not include “the federal constitutional requirement of proof of a mental disorder that causes ‘serious difficulty in controlling behavior’ ([Crane, supra, 534 U.S.] at p. 413) and the jury was not specifically instructed on the need to find such impairment of control.” (Williams, supra, 31 Cal.4th at p. 764.) The California Supreme Court disagreed. The court explained that “[b]y its express terms, the SVPA limits persons eligible for commitment to those few who have already been convicted of violent sexual offenses . . . (§ 6600, subd. (a)(1)), and who have ‘diagnosed mental disorder[s]’ (ibid.) ‘affecting the emotional or volitional capacity’ (id., subd. (c)) that ‘predispose[] [them] to the commission of criminal sexual acts in a degree constituting [them] menace[s] to the health and safety of others’ (ibid.), such that they are ‘likely [to] engage in sexually violent criminal behavior’ (id., subd. (a)(1)). This language inherently encompasses and conveys to a fact finder the requirement of a mental disorder that causes serious difficulty in controlling one’s criminal sexual behavior. The SVPA’s plain words thus suffice ‘to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.’ (Kansas v. Crane, supra, 534 U.S. 407, 413.)” (Williams, supra, 31 Cal.4th at pp. 759-760.) The court concluded that because “a commitment rendered under the plain language of the SVPA necessarily encompasses a determination of serious difficulty in controlling one’s criminal sexual violence, as required by Kansas v. Crane, supra, 534 U.S. 407[,] . . . separate instructions or findings on that issue are not constitutionally required, and no error arose from the [trial] court’s failure to give such instructions in defendant’s trial.” (Williams, supra, 31 Cal.4th at p. 777, fns. omitted.)
In this case, Cheek maintains that the jury should have been instructed that they must find “he has tried and failed to control his behavior” in order to conclude that he is a sexually violent predator. Cheek relies on People v. Galindo (2006) 142 Cal.App.4th 531 (Galindo).
In Galindo, the Court of Appeal, Third District, accepted the Attorney General’s concession that Penal Code section 1026.5, which provides for the extension of the commitment in a state hospital of a defendant found not guilty by reason of insanity, must be interpreted as requiring proof that the defendant has serious difficulty in controlling dangerous behavior in light of In re Howard N. (2005) 35 Cal.4th 117 (Howard N.). (Galindo, supra, 142 Cal.App.4th at p. 536.) The Court of Appeal in Galindo then addressed whether the trial court’s failure to consider the issue of control was prejudicial. The Court of Appeal emphasized that “neither the parties, nor the witnesses, nor the [trial] court had the opportunity to consider the control issue.” (Id. at p. 539.) In the absence of expert testimony on the issue, the Court of Appeal examined the record to determine whether there was another form of proof, such as evidence the defendant had “tried to control his behavior” but had “encountered serious difficulty when trying to do so . . . .” (Galindo, supra, 142 Cal.App.4th at p. 539.) After determining that even the alternate form of proof was insufficient, the Court of Appeal held that the omission of the control issue was not harmless. (Ibid.)
In Howard N., the California Supreme Court held that the extended detention scheme in Welfare and Institutions Code section 1800 et seq. “should be interpreted to contain a requirement of serious difficulty in controlling dangerous behavior” in order to preserve its constitutionality. (Howard N., supra, 35 Cal.4th at p. 132.)
We do not interpret Galindo, supra, 142 Cal.App.4th 531, as requiring proof in every case that the defendant made efforts to control his or her dangerous behavior, nor does it suggest that expert testimony by itself would be insufficient to prove the control issue. Moreover, nothing in Howard N., supra, 35 Cal.4th 117, upon which the Court of Appeal in Galindo relied, abrogates the holding in Williams, supra, 31 Cal.4th 757. Because no separate instruction on the issue of control is required where the jury is instructed in the statutory language of the SVPA (Williams, supra, 31 Cal.4th at p. 777), and Cheek makes no contention that the jury instructions given in his case failed to follow the statutory language of the SVPA, we conclude that no error arose from the trial court’s failure to give the special instruction requested by Cheek’s trial counsel.
We note that, in addition to setting forth the statutory language of the SVPA, the jury instructions in Cheek’s case included two separate references to the requirement that the defendant have “serious difficulty controlling” certain behavior. For example, based on a modified version of Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 3454, the jury was instructed, in part, as follows: “The term diagnosed mental disorder includes congenital or acquired conditions affecting a person’s emotional or volitional capacity to the degree that he has serious difficulty in controlling sexually violent behavior and predisposing that person to commit criminal sexual acts to an extent that makes him or her a menace to the health and safety of others.”
7. Sufficiency of the Evidence Regarding Lack of Control
Cheek asserts that his commitment under the SVPA “violates Due Process because there was insufficient evidence to establish that he had tried and failed to control his behavior.”
As stated above, one of the constitutional requirements for a civil commitment is proof the individual has a mental disorder that causes “serious difficulty in controlling behavior.” (Crane, supra, 534 U.S. at p. 413.) In this regard, “the SVPA requires a diagnosed mental disorder affecting the person’s emotional or volitional capacity that predisposes the person to commit sex crimes in a menacing degree. (§ 6600, subd. (c).)” (Williams, supra, 31 Cal.4th at p. 776.) As we explained, proof that the individual made efforts to control his or her dangerous behavior is not required, and expert testimony may be sufficient to prove the lack of control.
When assessing the sufficiency of the evidence in proceedings held pursuant to the SVPA, we “review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be ‘ “of ponderable legal significance . . . reasonable in nature, credible and of solid value.” [Citation.]’ ” (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) In this case, we determine that there is sufficient proof on the issue of control based upon the testimony by the People’s experts.
Dr. Starr testified that two of the disorders diagnosed in Cheek—paraphilia and personality disorder—impair Cheek’s volitional and emotional capacity, predisposing him to commit sexual crimes. Dr. Starr described paraphilia as “recurrent intense deviant sexual interests, urges, fantasies or behaviors, in [Cheek’s] case, directed toward nonconsensual people -- females -- that have occurred over a six-month period of time” and which causes “significant distress or impairment.” Regarding the diagnosis of personality disorder, Dr. Starr explained that the antisocial features include a lack of remorse, impulsivity, and reckless disregard for the safety of others, all of which Dr. Starr found Cheek had demonstrated. Regarding narcissistic features, Dr. Starr testified that Cheek “really thinks he is special,” has “excessive aberration,” has “a sense of entitlement,” “is interpersonally exploitative,” lacks empathy, and “tends to be arrogant.”
With respect to volitional impairment, Dr. Starr explained that Cheek “persisted in committing new sexual offenses,” despite the fact that he has been in and out of custody and does not like being in custody. Dr. Starr also testified that Cheek “is highly psychopathic” and “it is unlikely that his personality difficulties or his proclivity for violent or risk of sexual behavior is . . . simply going to burn out with him and you would expect that he is going to continue . . . to have difficulty controlling his underlying personality disorder and his propensity for being aggressive.” Dr. Starr explained that “when somebody is psychopathic it really fuels any kind of paraphiliac disorder. It’s like adding gas on a fire.” In addition, Dr. Starr indicated that Cheek had poor “sexual self-regulation,” which includes difficulty controlling himself sexually, having sexually deviant interests, and having a high level of sexual drive.
The People’s other expert witness, Dr. Arnold, also testified that the diagnosed mental disorders affects Cheek’s emotional and volitional capacity, predisposing him to commit sex crimes in a degree constituting him a menace to the health and safety of others. Regarding the diagnosis of paraphilia not otherwise specified, Dr. Arnold explained that Cheek exhibited “a lot of cognitive distortions,” or “thinking error[s],” relating to his sexual deviancy. For example, regarding the rape in 1980, Cheek felt he was entitled to sexually assault the victim because she had bitten his tongue, and he was sexually aroused even though his tongue was bleeding and the victim was in fear and terror. Further, despite being sentenced to prison for the rape, Cheek forced another victim into sexual activities, and he was sexually aroused when the person was in fear and crying.
Dr. Arnold explained the significance of Cheek being diagnosed with paraphilia and a personality disorder. Regarding the paraphilia diagnosis, Dr. Arnold explained: “[W]hen you’re talking about the person this is sort of the sexual drive aspect of it and it sort of enables him to be turned on in situations where another person is either terrorized or being forced. I mean, the fact that he is able to be turned on in that situation is more of the paraphilic aspect. The fact that he can rationalize it is a paraphilic aspect, but it’s sort of the other thing of the antisocial personality, narcissistic personality features that make that even more dangerous. It’s like it adds, you know, gas to the fire, so to speak, because that creates the callousness. You know, you don’t care about the other people emotionally and that gives you freedom to do what you want to do, regardless. So if you do like to have forced sex and you don’t care about people it makes it easier to do it.” Regarding the diagnosis of antisocial personality disorder, Dr. Arnold further explained: “I think that [Cheek is] so consumed with what he wants and he is entitled to that he completely disregards the needs and the rights of others. That, combined with the sexual deviance of wanting to force others into sex, makes him more dangerous. It’s the combination of those two conditions that make him particularly dangerous in my mind.” Dr. Arnold indicated that being rated, as Cheek was, in the “severe range of psychopathy,” means the person is “particularly callous” and “particularly impulsive.” Dr. Arnold explained that “the combination of psychopathy with sexual deviance has been shown in research to be a particularly dangerous combination because those guys tend to reoffend at a higher rates than people who have just one or the other.” Dr. Arnold also referred to Cheek’s lack of general self-regulation, reflecting impulsivity and inability to control himself, based on the number of negative behavioral incidents that Cheek had been involved in at Atascadero State Hospital.
In sum, we determine that there was substantial evidence to support the jury’s finding that Cheek had a diagnosed mental disorder affecting his emotional and volitional capacity that predisposes him to commit sex crimes in a degree constituting him a menace to the health and safety of others, which necessarily encompassed a finding that Cheek has a mental disorder that causes serious difficulty in controlling criminal sexual violence. (Williams, supra, 31 Cal.4th at pp. 759, 777.)
8. Jury Instruction Regarding “Antisocial Disorder”
Cheek contends the trial court erred by failing to instruct the jury as follows: “You may not conclude that Mr. Cheek is a sexually violent predator based solely on an antisocial disorder.” Cheek’s counsel cited Foucha, supra, 504 U.S. 71, in support of the instruction. The trial court refused to give the requested instruction, concluding that it was “a little bit of a stretch on the Foucha . . . case.”
On appeal, Cheek asserts that Foucha stands for the proposition that it is unconstitutional “to continuously commit a person . . . solely on the basis of an antisocial personality disorder.” Cheek points to the following excerpt from Foucha: “the State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term. It would also be only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law.” (Foucha, supra, 504 U.S. at pp. 82-83.)
In Hubbart, supra, 19 Cal.4th 1138, the defendant asserted “that the high court ‘expressly held’ in . . . Foucha, supra, 504 U.S. 71, that a diagnosed antisocial personality disorder can never be used as a basis for civil commitment.” (Id. at p. 1158.) The California Supreme Court disagreed, pointing out that “due process requires an inability to control dangerous conduct, and does not restrict the manner in which the underlying impairment is statutorily defined. [Citation.]” (Ibid., italics omitted.) The California Supreme Court explained that “[n]othing in the quoted excerpt, or in Foucha as a whole, purports to limit the range of mental impairments that may lead to the ‘permissible’ confinement of dangerous and disturbed individuals. [Citation.] Nor did Foucha state or imply that antisocial personality conditions and past criminal conduct play no proper role in the commitment determination. The high court concluded only that Foucha’s due process rights were violated because the state had sought to continue his confinement as an insanity acquittee without proving that he was either mentally ill or dangerous.” (Hubbart, supra, 19 Cal.4th at p. 1161.) The California Supreme Court thus concluded that the defendant’s attack on the definition of a mental disorder under the SVPA was not supported by Foucha.
Cheek maintains that Crane, supra, 534 U.S. 407, requires his proposed instruction, which would have instructed the jury that it could not conclude he “is a sexually violent predator based solely on an antisocial disorder.” We do not agree that Crane mandates this instruction. The portion of Crane cited by Cheek (534 U.S. at p. 413) contains the United States Supreme Court’s discussion of the requirement that there be proof of serious difficulty in controlling behavior. As we explained, the California Supreme Court has held that “a commitment rendered under the plain language of the SVPA necessarily encompasses a determination of serious difficulty in controlling one’s criminal sexual violence, as required by Kansas v. Crane, supra, 534 U.S. 407.” (Williams, supra, 31 Cal.4th at p. 777.) Consequently, a separate instruction beyond those containing the statutory language of the SVPA was not required, and no error arose in this case from the trial court’s failure to give Cheek’s requested instruction.
9. Jury Instruction Regarding Sexual Offender Treatment
Cheek contends the trial court erred by instructing the jury as follows: “The respondent’s, Mr. Cheek’s, failure to engage in sexual offender treatment shall be considered evidence.” This instruction was based on the language of section 6605 as it existed after the SVPA was amended by Senate Bill 1128, but before the passage of Proposition 83. Former section 6605, as amended by Senate Bill 1128, required the trial court to annually set a show cause hearing regarding the committed person’s mental condition, unless the person waived the right to the hearing. If the trial court determined that probable cause existed to believe that the committed person’s diagnosed mental disorder had changed, then the committed person was entitled a full hearing with the same rights afforded at the initial commitment hearing. At the full hearing, the People had the burden to prove that the committed person’s mental disorder remains such that the person is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged. Pertinent here, former section 6605, subdivision (d), provided that at the full hearing, “[t]he committed person’s failure to engage in treatment shall be considered evidence that his or her condition has not changed, for purposes of any court proceeding held pursuant to this section, and a jury shall be so instructed. Completion of treatment programs shall be a condition of release.” (Stats. 2006, ch. 337, § 57.) Proposition 83 made several changes to section 6605, and subdivision (d) of that section no longer requires that the jury be instructed regarding the committed person’s failure to engage in treatment and no longer states that completion of treatment is a condition of release.
Apparently unaware of the change to section 6605, subdivision (d), as provided in Proposition 83, the parties and the trial court discussed the following instruction, which had been proposed by the prosecutor: “The respondent’s failure to engage in sexual offender treatment shall be considered evidence that his condition has not changed.” Cheek’s trial counsel objected on the ground that the instruction only applied to a hearing where the committed person was seeking release, whereas the current trial required the People to prove that Cheek is a sexually violent predator in order to commit him. The trial court disagreed and, after further discussion with counsel, modified the prosecutor’s proposed instruction. The jury was ultimately instructed that Cheek’s “failure to engage in sexual offender treatment shall be considered evidence.”
On appeal, Cheek continues to argue that the language at issue in former section 6605, subdivision (d), concerning treatment only applied to proceedings conducted after a show cause hearing and did not apply to his commitment trial. He also contends that this language concerning treatment in subdivision (d) was eliminated from section 6605 following the passage of Proposition 83. Because his trial took place after Proposition 83 was passed, he argues that the former version of subdivision (d) had no application to his trial.
We determine that although an instruction concerning treatment is not required under section 6605 following the passage of Proposition 83, evidence of the committed person’s failure to engage in sexual offender treatment is relevant, as the People’s experts in this case testified, to the likelihood of reoffense. (People v. Sumahit (2005) 128 Cal.App.4th 347, 354-355 [the defendant’s refusal to undergo treatment is relevant under the SVPA to the defendant’s dangerousness].)
Cheek also asserts that “the instruction was not proper because there was no sufficient evidence that [he] had failed to engage in sexual offender treatment.” While acknowledging that the People’s experts testified that he did not engage in the advanced phases of sex offender treatment, Cheek asserts that such evidence was hearsay and not offered for its truth. He contends that “an expert is permitted to make reference to reliable hearsay to support an expert opinion, but ‘such evidence is not independently admissible.’ ”
We do not find Cheek’s argument persuasive because his own testimony provided sufficient evidence for a reasonable inference that he did not participate in treatment. In this regard, the prosecutor asked Cheek several questions regarding how he spent his time at Atascadero State Hospital. Cheek testified that he tried to spend most of his time in the courtyard. He also testified that he read, participated in sports, exercised, did art, and socialized. Cheek did not testify that he participated in sexual offender treatment, nor did he dispute the testimony by the prosecution’s experts that he had not participated in sexual offender treatment. We therefore determine that reversal based on the jury instruction is not warranted under the circumstances of this case.
10. First Amendment Right to Petition
Cheek contends that the amended SVPA denies him meaningful access to the courts, which is part of his First Amendment right to petition the government for redress of grievances. We do not find Cheek’s arguments compelling.
First, Cheek complains that under section 6605, the Director of the Department of Mental Health “has unlimited and sole discretion to not authorize the filing of a petition” for release. As we explained in connection with Cheek’s due process claim, the director has no discretion to withhold authorization when the statutory conditions exist—that is, when the person “no longer meets the definition of a sexually violent predator” or when “conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community” (§ 6605, subd. (b)). Moreover, as Cheek concedes, he may petition for release without the director’s prior concurrence under section 6608.
Second, while acknowledging that section 6608 provides for the assistance of counsel, Cheek contends that there is no provision under section 6608 allowing for the appointment of a medical expert, who will be necessary to prove the committed person’s case. As we explained, section 6605 provides for an annual mental examination by a professionally qualified person and a written report, the right to retain an expert, the discretionary authority of the court to appoint an expert at the committed person’s request, and the accessibility of all records concerning the committed person to the retained or appointed expert. (§ 6605, subd. (a).) Consequently, the committed person will have, at a minimum, an annual report regarding the person’s mental condition upon which the person may base a petition for discharge or conditional release under section 6608.
Third, Cheek points to the provisions in section 6608, which give the trial court authority to deny a frivolous petition without a hearing and which place the burden of proof by a preponderance of the evidence on the committed person. (§ 6608, subds. (a) & (i).) Given the limited and narrow basis for denial without a hearing, we find unpersuasive Cheek’s assertion that this provision denies him meaningful access to the courts. As for bearing the burden of proof, Cheek does not explain how this burden limits his access to the courts. To the contrary, Cheek’s argument regarding the burden of proof appears to be related to his due process challenge, which we have already addressed and determined to lack merit.
11. Cumulative Error
Cheek asserts that due to cumulative error at trial, the order of commitment must be reversed. Based on our conclusion that there was no trial error in this case, Cheek’s cumulative error argument is not well taken.
V. DISPOSITION
The order of commitment is reversed. The matter is remanded and the trial court is directed to enter a new order committing Michael Thomas Cheek for an indeterminate term of commitment.
WE CONCUR: Mihara, J. duffy, J.