P. v. Casebolt
Filed 6/18/13 P.
v. Casebolt CA1/5
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
TRAVIS CASEBOLT,
Defendant and Appellant.
A136119
(Solano County
Super. Ct. No. FC29419)
Travis
Casebolt (appellant) appeals from an order committing him to the State
Department of Mental Health (DMH), now the State Department of State Hospitals,
for an indeterminate period as a sexually
violent predator (SVP) under the Sexually Violent Predators Act
(SVPA). (Welf. & Inst. Code,
§ 6600 et seq.) He contends the
judgment must be reversed because (1) the evidence was insufficient to
support a current diagnosis of sexual sadism; (2) the court should have
given a sua sponte instruction quantifying the risk of reoffense necessary to
support a commitment; (3) the trial court erred by failing to instruct the
jury sua sponte that an SVP
commitment is for an indefinite time period; (4) the protocol governing
SVP evaluations is invalid; (5) commitment without the prospect of
effective treatment violates his right to
due process; (6) the court should have instructed the jury sua sponte
that it must unanimously agree on the disorder that provides a basis for
commitment; and (7) the SVPA is an unconstitutional ex post facto law,
improperly shifts the burden of proof,
and violates appellant’s right to equal protection. We reject appellant’s contentions and affirm.
Background
In
November 1990, appellant approached the six-year-old foster sister of his
girlfriend in the family’s barn. Using
duct tape, he taped her ankles, wrists, and mouth. He spanked her on her legs and bottom, put
her in his truck, and drove her to a remote location. He placed her on a mattress, partially
removed her clothing, and digitally penetrated her. Appellant then raped the victim and forced
her to orally copulate him. Afterward,
he abandoned her.
In
June 1991, appellant was convicted of kidnapping
for the purpose of committing a lewd act (Pen. Code, § 207, subd. (b)) and
three counts of lewd acts (id.,
§ 288, subd. (b)) and was sentenced to prison for 33 years. In November 2009, after appellant served 18
years in prison, the Solano County District Attorney filed a petition to commit
appellant as an SVP pursuant Welfare and Institutions Code, section 6600 et
seq.
At
trial, Drs. Deidre D’Orazio and Douglas Korpi testified as experts for the
prosecution. They both diagnosed appellant
with sexual sadism. Dr. D’Orazio also
diagnosed appellant with anti-social personality disorder (ASPD) and
polysubstance dependence. Although there
is disagreement among experts as to how to diagnose sexual sadism, Dr. Korpi
was confident in his diagnosis due to five factors: (1) bondage pornography was found in
appellant’s bedroom when he was arrested for the 1990 crime; (2) the crime
evidenced elaborate planning; (3) his actions demonstrated an ability to
put aside all empathy for the victim; (4) the crime involved excessive
sexual activity; (5) the crime involved unnecessary violence. In addition to the circumstances of the
crime, Dr. D’Orazio relied on the fact that appellant had engaged in forced
sadistic sex with his girlfriend over a period of two years, and the fact that
many sadomasochistic pornographic magazines were found in appellant’s
possession during the investigation of the crime. She also faulted appellant for failing to
enroll in an available treatment program during his pretrial commitment.
Both
doctors testified that appellant was likely to engage in sexually violent
predatory criminal acts as a result of
his diagnosed mental disorders. Although
appellant scored in the average risk range on an actuarial assessment
instrument, Dr. D’Orazio expressed concerns about the reliability of the
instrument as applied to sexual sadists.
Dr. D’Orazio opined that sexual sadists are particularly dangerous because
their mental disorders are well-entrenched; Dr. Korpi pointed out that the
types of crimes appellant would commit if he were to reoffend would be
particularly harmful. Dr. D’Orazio also
found many dynamic risk factors that increased appellant’s risk of reoffense,
and no protective factors that decreased the risk.
Defense
expert Dr. John Podboy opined that appellant did not suffer from a current
mental disorder. He did not find enough
evidence in appellant’s history to make a sexual sadism diagnosis.
In
July 2012, a jury found the petition to be true, and the court committed
appellant to the DMH for an indeterminate term.
This appeal followed.
DiscussioN
I. Substantial
Evidence Supports a Current Diagnosis of Sexual Sadism
A
person may be committed as an SVP only if the People prove beyond a reasonable
doubt that “(1) the offender has been convicted of a qualifying sexually
violent offense . . . ; (2) the offender has a diagnosable
mental disorder; (3) the disorder makes it likely he or she will engage in
sexually violent criminal conduct if released; and (4) this sexually violent
criminal conduct will be predatory in nature.â€
(Cooley v. Superior Court
(2002) 29 Cal.4th 228, 236, 243 (Cooley);
see also id. at p. 243; § 6600,
subds. (a), (c).)
title="">[2] Appellant contends the trial court’s commitment
order must be set aside because the evidence did not support a finding he
currently suffers from a sexual sadism disorder.
As
with any challenge to the sufficiency of the evidence, we review the entire
record in the light most favorable to the verdict to determine whether
substantial evidence supports the SVP finding.
(People v. Mercer (1999) 70
Cal.App.4th 463, 466.) “[T]his court may
not redetermine the credibility of witnesses, nor reweigh any of the evidence,
and must draw all reasonable inferences, and resolve all conflicts, in favor of
the judgment. [Citation.]†(People
v. Poe (1999) 74 Cal.App.4th 826, 830.)
In particular, we do not reassess the credibility of experts or reweigh
the relative strength of their conclusions.
(Ibid.) “The testimony of one witness, if believed,
may be sufficient to prove any fact.
(Evid. Code, § 411).†(
Cal.App.4th 1487, 1508 (
In
the present case, the prosecution experts opined that appellant currently
suffered from sexual sadism and that the disorder made appellant likely to
reoffend in a sexually violent predatory manner. They explained the bases for their opinions
and were cross-examined by appellant’s counsel.
Appellant criticizes the prosecution experts’ testimony and points out
that Dr. Podboy disagreed with their diagnoses.
However, a conflict between expert witnesses does not, by itself,
undermine the sufficiency of the evidence supporting the verdict.
Appellant
also contends there is insufficient evidence he currently suffers from sexual sadism because the prosecution
experts primarily relied on the facts of the 1990 offenses to support their
diagnoses. However, experts may properly
consider a defendant’s past crimes in assessing whether he currently suffers
from a mental disorder. (See
Cal.4th 1138, 1163-1164 (Hubbart)
[noting the United States Supreme Court “has consistently upheld commitment
schemes authorizing the use of prior dangerous behavior to establish both present
mental impairment and the likelihood of future harmâ€].) Moreover, in forming their diagnoses, Drs.
D’Orazio and Korpi not only reviewed records describing the circumstances
surrounding appellant’s 1990 offenses, but they also interviewed appellant in person. Thus, their diagnoses were based in part on
their recent interviews with appellant, and not just the circumstances of the
offenses. Appellant cites no authority
that a different type of evidence is necessary to support an expert’s
diagnosis.
Appellant
relies on Rasmuson, in which the
court found the evidence was insufficient to support the trial court’s denial
of an SVP’s petition for conditional release.
The court there stated, “A person’s history should not be determinative
of whether he or she is a danger to reoffend. . . . That history is static and will never
change. As substantial time has passed,
its reliability as a predictor of a defendant’s future behavior becomes more
equivocal. If such static factors
predominated in the assessment of whether an SVP should be given conditional
release, a serious offender would never be released regardless of what events
subsequent to his offenses revealed, which is contrary to the intent of [the]
SVPA, which allows conditional release even with some risk of
reoffending.†(Rasmuson, supra, 145 Cal.App.4th at p. 1509.) Rasmuson
is distinguishable because in that case, the evidence showed the defendant had
participated in extensive sex offender treatment and was found by eight mental
health experts to be unlikely to reoffend.
(Id. at p. 1508.) In the absence of even a “scintilla†of
evidence to the contrary (ibid.), the
denial of the petition was “tantamount to concluding that no SVP who has ever
committed a prior serious sexual offense, regardless of how long ago it
occurred, can be conditionally released†(id.
at p. 1509). Here, the evidence showed
not only that appellant had committed heinous sexual offenses, but two experts
opined he was an SVP and appellant had refused treatment. (See People
v. Sumahit (2005) 128 Cal.App.4th 347, 354 (Sumahit) [“[the] defendant’s refusal to undergo treatment
constitutes potent evidence that he is not prepared to control his untreated
dangerousness by voluntary meansâ€].)
As
the court explained in Sumahit,
“[the] defendant errs in supposing that he must presently engage in overt
manifestations of a sexually violent predator in order to support an opinion
that he still suffers from a mental disorder affecting his ability to control
his impulses. The fact that [the]
defendant has not misbehaved in a strictly controlled hospital environment does
not prove he no longer suffers from a
danger to others. . . .
[The] lack of outward signs of sexual deviance is not dispositive of
whether he is likely to reoffend if released into society at large. Such an assessment must include consideration
of his past behavior, his attitude toward treatment and other risk factors
applicable to the facts of his case.†We
conclude substantial evidence supports the sexual sadism diagnosis.
In
any event, Dr. D’Orazio also stated that appellant was an SVP based on her ASPD
diagnosis. Appellant does not contend
the ASPD diagnosis is not supported by substantial evidence, and, contrary to
appellant’s assertion on appeal, the ASPD diagnosis was sufficient to support
the DMH commitment. (
Accordingly, even if there were insufficient evidence in the record to
support a current sexual sadism diagnosis, the jury’s ultimate finding that
appellant is an SVP is supported by substantial evidence.
II. The
Court Was Not Required to Give a Sua Sponte Instruction Quantifying the Risk of Reoffense
Appellant
argues reversal is required because the court did not adequately instruct the
jury on the risk of reoffense that is necessary to commit a person as an
SVP. He claims the court should have
given a sua sponte instruction that more precisely defined the degree of risk.
By
statute, an SVP must have 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).) “Likely†has been judicially construed to
mean “ ‘the person presents a substantial danger, that is, a serious and
well-founded risk, that he or she will commit such crimes if free in the
community.’ [Citation.]†(People
v. Roberge (2003) 29 Cal.4th 979, 982, 989, italics omitted.) The risk of reoffense must be greater than a
“mere possibility,†but need not be “better than even,†i.e., greater than 50
percent. (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888,
922.) The jury was so instructed.
Appellant
argues the instructions did not go far enough because they failed to “explain
the requisite minimum level of risk that the jury must agree upon.†However, he cites to no portion of the record
where he requested an additional instruction on this point and he has not, in
his appellate briefs, suggested clarifying language. “Once the trial court adequately instructs
the jury on the law, it has no duty to give clarifying or amplifying
instructions absent a request.†(
998, 1013 (Butler).) Appellant’s claim is without merit.
III. The
Court Was Not Required to Give a Sua Sponte Instruction Informing the Jury That
an SVP Commitment Is for an Indefinite Time Period
Appellant
contends the trial court should have instructed the jury sua sponte that a true
finding appellant is an SVP would result in his indefinite commitment. Defendant argues that failing to instruct the
jury on the consequences of its true finding “may give them the mistaken
impression that a civil commitment is short term and allows for real review in
the future.†The contention fails.
“The
trial court has a sua sponte duty to instruct the jury on the general
principles of law that are necessary for the jury’s understanding of the case. [Citation.]â€
(Butler, supra, 187 Cal.App.4th at p. 1013.)
At appellant’s SVP trial, the jury was asked to determine, based on the
evidence presented by the parties, whether appellant is an SVP. (§ 6604.) The trial court properly instructed the jury
on the principles of law governing its resolution of that issue. The duration of any commitment to be imposed
based on the jury’s findings was irrelevant.
Accordingly, the trial court was not required to instruct the jury sua
sponte regarding the consequences of an SVP finding. (See People
v. Allen (1973) 29 Cal.App.3d 932, 935-938 [trial court erred in a mentally
disordered sex offender proceeding by allowing evidence regarding the type and
length of treatment the defendant would receive].)
IV. Appellant
Has Not Shown He Was Prejudiced by any Legal Flaw in the Protocol Governing SVP
Evaluations
Section
6601 governs referral of prisoners for SVP evaluation prior to release from
incarceration. It provides in pertinent
part: “The [DMH] shall evaluate the
person in accordance with a standardized assessment protocol, developed and
updated by the [DMH], to determine whether the person is a sexually violent
predator as defined in this article. The
standardized assessment protocol shall require assessment of diagnosable mental
disorders, as well as various factors known to be associated with the risk of
reoffense among sex offenders. Risk
factors to be considered shall include criminal and psychosexual history, type,
degree, and duration of sexual deviance, and severity of mental disorder.†(§ 6601, subd. (c).) Appellant contends the guidelines devised by
the DMH in 2009 are insufficiently detailed to qualify as the “standardized
assessment protocol†required by section 6601.
Appellant
has failed to show any prejudice resulting from the use of an invalid
assessment protocol. In
519 (Pompa-Ortiz), the Supreme Court
held illegalities in criminal preliminary hearings that are not “jurisdictional
in the fundamental sense†are not reversible per se on an appeal following
trial. (Id. at p. 529.) Rather, such
illegalities must be reviewed “under the appropriate standard of prejudicial
error and shall require reversal only if [the] defendant can show that he was
deprived of a fair trial or otherwise suffered prejudice as a result of the
error at the preliminary examination.†(
The court continued, “The right to relief without any showing of
prejudice will be limited to pretrial challenges of irregularities. At that time, by application for
expeditiously returned to the magistrate for proceedings free of the charged
defects.†(Ibid.) “In other words, a
defendant who feels he has suffered error at his preliminary hearing can seek
to correct that error by filing a pretrial writ petition. If he does not, and elects to go to trial,
the error at the preliminary hearing can only lead to reversal of the
conviction if the error created actual prejudice.†(People
v. Hayes (2006) 137 Cal.App.4th 34, 50 (Hayes).) “The Pompa-Ortiz
rule apples to denial of substantive rights and technical irregularities in
proceedings, and to SVPA proceedings.
[Citations.]†(
517 (Ronje).)
In
this case, assuming arguendo the 2009 protocol is invalid, the use of
evaluations based on the protocol did not deprive the trial court of
fundamental jurisdiction over the SVPA commitment petition. (Ronje,
supra, 179 Cal.App.4th at p. 518;
805, 816.) Accordingly, the judgment may
be reversed only upon a showing of prejudice.
(Pompa–Ortiz,
Appellant
has not demonstrated prejudice. He was
provided a full-blown jury trial and, at that trial, two experts testified that
based on their training and experience, appellant was an SVP as that term is
statutorily defined. After hearing the
evidence presented, the jurors concluded, beyond a reasonable doubt, that
appellant was an SVP within the meaning of section 6600, subdivision
(a)(1). Because appellant received a
full and fair trial on the ultimate issue in the case, we conclude appellant
was not prejudiced by the error he has alleged.
(See Hayes,
[defendant failed to demonstrate he was prejudiced by trial court’s failure to
hold a probable cause hearing at the outset of the case]; People v. Butler (1998) 68 Cal.App.4th 421, 435 [reversal not warranted
where defendant failed to seek pretrial review of the trial court’s failure to
provide a proper probable cause hearing where “[h]e was found to be an SVP
after a trial at which he was able to cross-examine the prosecution’s witnesses
and call his own witnessesâ€].)
name="_ftnref3" title="">[3]
V. The
Commitment Did Not Violate Due Process for Lack of Effective Treatment
Appellant
contends his commitment under the SVPA violates due process because the
evidence failed to establish he would receive appropriate and effective treatment
during his commitment.
Our
Supreme Court rejected a similar due process challenge in Hubbart, supra, 19
Cal.4th 1138. There, the defendant
asserted that involuntary confinement as an SVP violates due process “unless it
is coupled with a statutory guarantee of treatment providing ‘a realistic
opportunity to be cured.’ †(
“At the outset, [the court rejected the] suggestion that the Legislature
cannot constitutionally provide for the civil commitment of dangerous mentally
impaired sexual predators unless the statutory scheme guarantees and provides
‘effective’ treatment.†(
The court also pointed out that the SVPA provides for treatment under
section 6606, subdivision (c).
name="_ftnref4" title="">[4] (Hubbart,
at p. 1167.)
Appellant
contends the treatment provided by the DMH is ineffective, but he fails to cite
any authority for the proposition that the constitutionality of his commitment
as an SVP requires proof of the effectiveness of the treatment he will be
provided. He primarily relies upon
but that case was distinguished in Hubbart,
which explained, “We invalidated the MDSO procedure under which [Mr.] Feagley
was committed because it resulted in a complete denial of treatment under conditions
of confinement so penal as to constitute ‘cruel and unusual punishment.’ [Citation.]â€
(Hubbart, supra, 19 Cal.4th at p. 1168, fn. 29.)
We
conclude appellant’s claim is foreclosed by Hubbart,
supra, 19 Cal.4th 1138.
VI. The
Court Was Not Required to Give a Sua Sponte Unanimity Instruction
The
trial court instructed the jury that the People were required to prove beyond a
reasonable doubt that appellant suffered from a diagnosed mental disorder and
provided, “The term diagnosed mental disorder includes conditions either
existing at birth or acquired after birth that affect a person’s ability to
control emotions and behavior and predispose that person to commit criminal
sexual acts to an extent that makes him or her a menace to the health and safety
of others.†(See § 6600, subd.
(c).) The People’s experts testified
that appellant suffered from sexual sadism, ASPD, and polysubstance dependence. Appellant contends the trial court should
have given, sua sponte, an instruction requiring the jurors to unanimously
agree appellant suffered from sexual sadism before finding him to be an SVP.
Appellant
was not entitled to a unanimous jury determination regarding his particular
diagnosis. The SVPA requires that a
jury’s verdict be unanimous, but it
does not require unanimity as to each element necessary to support an SVP
finding. (People v. Carlin (2007) 150 Cal.App.4th 322, 347 (
in nature, case law concerning unanimity instructions in criminal cases does
not apply. (Carlin, at p. 347; Fulcher,
at p. 59.) Even in the context of a
criminal case, no unanimity instruction is required where the evidence shows
only a single discrete crime but leaves room for disagreement as to exactly how
that crime was committed. (
agree unanimously that the defendant suffers from a diagnosed mental disorder,
but evidence that he suffers from more than one such disorder simply provides
alternative theories as to how this requirement is met.
Appellant
complains an ASPD does not meet the “mental disorder†element of the SVPA; and,
under the facts of this case, he could only be committed if the jury agreed he
suffered from sexual sadism. We
disagree. In Hubbart, supra, 19
Cal.4th at page 1158, the Supreme Court rejected an argument that the SVPA was
unconstitutional because it did not exclude from its purview “[ASPD] or other
conditions characterized by an inability to control violent antisocial
behavior.†Nothing in the SVPA or the
federal Constitution prohibits a jury from relying on a personality disorder as
a basis for an SVP determination. (
VII. The
SVPA Is Not an Unconstitutional Ex Post Facto Law and Does Not Improperly Shift
the Burden of Proof or Violate Appellant’s Right to Equal Protection
As
originally enacted, the SVPA provided for a two-year commitment, established
procedures for release of an SVP before the expiration of the two-year period,
and allowed recommitment upon expiration of the two-year period only if it was
proved beyond a reasonable doubt that the person currently met the statutory
criteria. (People v. McKee (2010) 47 Cal.4th 1172, 1185-1186 (
In
November 2006, the SVPA was amended to make it more difficult for an SVP to
obtain release. “[U]nder Proposition 83,
an individual SVP’s commitment term is indeterminate, rather than for a
two-year term as in the previous version of the [SVPA]. An SVP can only be released conditionally or
unconditionally if the DMH authorizes a petition for release and the state does
not oppose it or fails to prove beyond a reasonable doubt that the individual
still meets the definition of an SVP, or if the individual, petitioning the
court on his [or her] own, is able to bear the burden of proving by a
preponderance of the evidence that he [or she] is no longer an SVP. In other words, the method of petitioning the
court for release and proving fitness to be released, which under the former
[SVPA] had been the way an SVP could cut short his [or her] two-year
commitment, now becomes the only means of being released from an indefinite
commitment when the DMH does not support release.†(McKee
I, supra, 47 Cal.4th 1187-1188,
fn omitted.)
Appellant
contends the post-Proposition 83 SVPA violates his constitutional right to due
process because it imposes on him “the burden to prove by a preponderance of
the evidence that he . . . is entitled to release†after being committed
as an SVP. He also contends the SVPA
violates the federal constitutional prohibition against ex post facto laws,
because it is punitive and was applied to his conduct prior to its enactment. These contentions were considered and
rejected by McKee I,
1195. We are bound by the decisions of
our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) Therefore, we reject appellant’s
due process and ex-post facto claims.
Appellant
also contends his involuntary SVP commitment violates his federal
constitutional right to equal protection because the SVPA treats him less
favorably than similarly situated individuals committed under other statutes,
such as mentally disordered offenders (MDO’s) and criminal defendants sentenced
to life in prison. In
MDO’s are similarly situated because, inter alia, both “ ‘have been found,
beyond a reasonable doubt, to suffer from mental disorders that render them
dangerous to others. . . .
At the end of their prison terms, both have been civilly committed to
the [DMH] for treatment of their disorders. . . . The purpose of the MDO Act and the SVPA is
the same: to protect the public from
dangerous felony offenders with mental disorders and to provide mental health
treatment for their disorders.’
[Citations.]†The court concluded
the disparate treatment afforded SVP’s and MDO’s under the law, whereby SVP’s
suffer indefinite commitment and carry the burden of proving they should no
longer be committed and MDO’s are subjected to a short-term commitment
renewable only if the People prove periodically that continuing commitment is
justified beyond a reasonable doubt, “raises a substantial equal protection
question that calls for some justification by the People.†(Ibid.) Accordingly, the Supreme Court remanded the
case to the trial court “to determine whether the People . . . can
demonstrate the constitutional justification for imposing on SVP’s a greater
burden than is imposed on MDO’s . . . in order to obtain a release
from commitment.†(Id. at pp. 1208-1209, fn. omitted.)
The
remand in McKee I resulted in a
21-day evidentiary hearing and a subsequent finding by the trial court that the
People met their burden to justify the disparate treatment of SVP’s. (See People
v. McKee (2012) 207 Cal.App.4th 1325, 1330 (McKee II).) Mr. McKee again
appealed and the finding was upheld by the Fourth District, which concluded the
disparate treatment of SVP’s is necessary to further compelling state
interests. (McKee II, at pp. 1330-1331, 1347-1348; see also
Cal.App.4th 860, 862 (McKnight).) In McKnight,
Division Three of this court concluded McKee
II was dispositive of the equal protection claim in that case, rejecting
Mr. McKnight’s contention that the Supreme Court’s remand resolved the equal
protection claim only as applied to Mr. McKee.
(McKnight, at pp. 863-864 [“It
is plain that McKee II is not to be
restricted to Mr. McKee alone or only to those SVP’s convicted of crimes
against children, . . . but rather its holding applies to the class
of SVP’s as a whole.â€].) We agree, and
conclude in this case that appellant’s recommitment under the SVPA does not
violate his right to equal protection despite the disparate treatment of SVP’s
as compared to MDO’s.
Appellant
also contends SVP’s are treated unfavorably as compared to criminals sentenced
to life in prison with the possibility of parole. Appellant’s claim fails because he has not
shown SVP’s are similarly situated to that class of criminals. (See McKee
I, supra, 47 Cal.4th at pp.
1202-1203.)
Disposition
The
judgment is affirmed.
SIMONS,
J.
We concur.
JONES, P.J.
BRUINIERS, J.
the Welfare and Institutions Code.
been convicted of qualifying offenses against at least two victims. (Cooley,
supra, 29 Cal.4th at p. 236.) Effective November 8, 2006, the People are
required to prove only that the offender has been convicted of a qualifying
offense “against one or more victims.â€
(§ 6600, subd. (a)(1).)
