PEOPLE v. McKEE

Filed 3/20/08

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Story Continued From Part I ..

In any event, assuming arguendo McKee's due process and equal protection contentions are not technically ripe for review to the extent those contentions rely on the burden of proof and other provisions of section 6608, we nevertheless would exercise our discretion under Pacific Legal to address those contentions in the instant appeal. (Pacific Legal, supra, 33 Cal.3d at p. 170; Hunt v. Superior Court (1999) 21 Cal.4th 984, 998-999 ["Postponing review . . . would leave uncertain the County's health care obligations and undoubtedly result in additional, lengthy appellate proceedings."].) As quoted above, the California Supreme Court stated: "[T]he [ripeness] requirement should not prevent courts from resolving concrete disputes if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question. [Citations.]" (Pacific Legal, at p. 170.) In the circumstances of this case, McKee's facial due process and equal protection challenges to the Act, as amended by Proposition 83, involve concrete disputes regarding McKee's indefinite civil commitment as an SVP. Furthermore, were we to defer decision on those constitutional issues, there would be lingering uncertainty in the law regarding the constitutionality of the Act, as it was amended by Proposition 83, an initiative clearly involving widespread public interest. Because Proposition 83 is an initiative passed by California voters and many members of the public presumably have an interest in its continued application, we conclude McKee's constitutional challenges involve widespread public interest in a timely answer to those challenges. Accordingly, our review of those constitutional challenges in this appeal is warranted regardless of any ripeness deficiency. (Pacific Legal, at p. 170; Hunt, at pp. 998-999; Hayward, supra, 72 Cal.App.4th at p. 104.)

C

We now proceed to address McKee's due process constitutional challenge to his indefinite involuntary civil commitment pursuant to the Act, as amended by Proposition 83.

McKee relies primarily on Addington, supra, 441 U.S. 418 as support for his argument. In Addington, the court addressed the question of whether Texas's civil involuntary commitment statute could constitutionally allow an initial indefinite commitment of a person with proof by a preponderance of the evidence, as the Texas Supreme Court held. (Id. at pp. 419-422.) Addington stated:

"The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill. Under the Texas Mental Health Code, however, the State has no interest in confining individuals involuntarily if they are not mentally ill or if they do not pose some danger to themselves or others." (Addington, supra, 441 U.S. at p. 426.)

It cautioned against the possible involuntary commitment of persons who exhibit only idiosyncratic behavior:

"At one time or another every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable. Obviously, such behavior is no basis for compelled treatment and surely none for confinement. However, there is the possible risk that a factfinder might decide to commit an individual based solely on a few isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior. Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered. [] The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." (Addington, supra, 441 U.S. at pp. 426-427.)

Accordingly, Addington concluded: "[T]he individual's interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence." (Addington, supra, 441 U.S. at p. 427.) Alternatively stated, it concluded: "To meet due process demands, the standard [of proof in a civil commitment proceeding] has to inform the factfinder that the proof must be greater than the preponderance-of-the-evidence standard applicable to other categories of civil cases." (Id. at pp. 432-433.) Addington held that due process required proof by clear and convincing evidence at the appellant's initial civil commitment hearing.^[1] (Addington, supra, 441 U.S. at p. 433.)

McKee argues Addington requires the state to submit proof by clear and convincing evidence at all civil commitment proceedings, including proceedings subsequent to an initial indefinite term commitment that would continue the commitment, and therefore section 6608, subdivision (i), violates due process by imposing on the petitioner the burden to prove by a preponderance of the evidence that he or she is entitled to release. However, the circumstances in Addington involved only an initial civil commitment proceeding and therefore Addington did not address whether findings at proceedings subsequent to an initial civil commitment (e.g., a subsequent review or release hearing) require the state to submit proof by clear and convincing evidence. Furthermore, Addington involved only an "ordinary" civil commitment statute (not unlike a Lanterman-Petris-Short Act civil commitment in California pursuant to  5350 et seq.). Addington did not address the standard of proof required in special civil commitment proceedings (e.g., an SVP civil commitment proceeding under the Act). We conclude neither the holding nor the reasoning in Addingtonrequires the application of a clear and convincing standard of proof that the person continues to be an SVP rather than a preponderance of the evidence standard of proof that the person is not an SVP in either a proceeding subsequent to an initial civil commitment proceeding or a proceeding involving a special civil commitment statute.

As the People note, the United States Supreme Court in Jones v. United States (1983) 463 U.S. 354 (issued after Addington), held that application of a standard of proof by a preponderance of the evidence did not violate the federal constitutional right to due process at an initial hearing regarding the civil commitment of a person previously found not guilty of committing a criminal offense by reason of insanity. At the person's criminal trial in the District of Columbia, a statute required that he prove his affirmative defense of insanity by a preponderance of the evidence. (Jones, at p. 356, fn. 1.) After his acquittal by reason of insanity, a District of Columbia statute provided for his immediate, indefinite commitment to a mental hospital without a hearing (i.e., automatically). (Id. at pp. 356-357, fn. 2, 360-361.) However, that statute required a hearing within 50 days of that commitment to determine whether he was eligible for release, "at which [hearing] he ha[d] the burden of proving by a preponderance of the evidence that he [was] no longer mentally ill or dangerous. [Citation.]" (Id. at p. 357.) If he did not meet that burden at the 50-day hearing, he was "entitled [by statute] to a judicial hearing every six months at which he may establish by a preponderance of the evidence that he is entitled to release. [Citation.]" (Id. at p. 358, fn. omitted.)

In contrast to the District of Columbia's statutory scheme providing for the civil commitment of a person acquitted on a charged offense because the person proved he or she was not guilty by reason of insanity (NGI), Jones noted the District of Columbia also had an general civil commitment statutory scheme that provided for the initial commitment of a person "upon clear and convincing proof by the Government that he is mentally ill and likely to injure himself or others. [Citation.]" (Jones, supra, 463 U.S. at pp. 358-359, fn. omitted.) After the person's initial civil commitment under that general statutory scheme, the committed person was "entitled after the first 90 days, and subsequently at 6-month intervals, to request a judicial hearing at which he may gain his release by proving by a preponderance of the evidence that he is no longer mentally ill or dangerous. [Citations.]" (Id. at p. 359.)

In addressing the petitioner's contention that the District of Columbia's NGI civil commitment statutory scheme violated his right to due process, Jones noted: "Congress [as the legislative body of the District of Columbia] has determined that a criminal defendant found not guilty by reason of insanity in the District of Columbia should be committed indefinitely to a mental institution for treatment and the protection of society. [Citations.]" (Jones, supra, 463 U.S. at pp. 361-362.) Jones then addressed the petitioner's assertion that his NGI civil commitment violated Addington's holding regarding due process because his NGI acquittal of the criminal charge "did not constitute a finding of present mental illness and dangerousness and because it was established only by a preponderance of the evidence."^[2] (Jones, supra, at p. 362, fn. omitted.) Jones first noted that an NGI verdict "establishe[d] two facts: (i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness." (Id. at p. 363.) Jones stated: "Congress has determined that these findings constitute an adequate basis for hospitalizing the acquittee as a dangerous and mentally ill person. [Citations.] We cannot say that it was unreasonable and therefore unconstitutional for Congress to make this determination. [] The fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness. [Citation.] Indeed, this concrete evidence [of commission of a criminal act] generally may be at least as persuasive as any predictions about dangerousness that might be made in a civil-commitment proceeding." (Id. at p. 364, fns. omitted.)

Jones further stated: "Nor can we say that it was unreasonable for Congress to determine that the insanity acquittal supports an inference of continuing mental illness. It comports with common sense to conclude that someone whose mental illness was sufficient to lead him to commit a criminal act is likely to remain ill and in need of treatment. . . . Because a hearing is provided within 50 days of the commitment, there is assurance that every acquittee has prompt opportunity to obtain release if he has recovered." (Jones, supra, 463 U.S. at p. 366.) Jones rejected the petitioner's argument that the government did not have a legitimate reason for automatically committing an NGI acquittee because it could present evidence of that acquittal at a subsequent hearing. (Ibid.) Jones stated: "This argument fails to consider the Government's strong interest in avoiding the need to conduct a de novo commitment hearing following every insanity acquittal--a hearing at which a jury trial may be demanded, [citation], and at which the Government bears the burden of proof by clear and convincing evidence. . . . We therefore conclude that a finding of not guilty by reason of insanity is a sufficient foundation for commitment of an insanity acquittee for the purposes of treatment and the protection of society." (Ibid.)

More importantly for purposes of the instant case, Jones rejected the petitioner's contention that "his indefinite commitment is unconstitutional because the proof of his insanity was based only on a preponderance of the evidence, as compared to Addington's civil-commitment requirement of proof by clear and convincing evidence." (Jones, supra, 463 U.S. at pp. 366-367.) Jones explained:

"In equating these situations, petitioner ignores important differences between the class of potential civil-commitment candidates and the class of insanity acquittees that justify differing standards of proof. The Addington Court expressed particular concern that members of the public could be confined on the basis of 'some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable.' [Citations.] . . . But since automatic commitment under [the District of Columbia's NGI commitment statute] follows only if the acquittee himself advances insanity as a defense and proves that his criminal act was a product of his mental illness, there is good reason for diminished concern as to the risk of error. More important, the proof that he committed a criminal act as a result of mental illness eliminates the risk that he is being committed for mere 'idiosyncratic behavior[.]' [Citation.]" (Jones, supra, 463 U.S. at p. 367, fns. omitted.)

Jones "therefore conclude[d] that concerns critical to our decision in Addington are diminished or absent in the case of insanity acquittees. Accordingly, there is no reason for adopting the same standard of proof in both cases. . . . The preponderance of the evidence standard comports with due process for commitment of insanity acquittees." (Jones, supra, 463 U.S. at pp. 367-368.) Accordingly, Jones held: "[W]hen a criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by reason of insanity, the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society." (Id. at p. 370.)

Although, unlike Jones, the instant case does not involve an automatic, indefinite commitment of an insanity acquittee, Jones's reasoning in the circumstances of that case supports a conclusion that an SVP's initial indefinite civil commitment pursuant to the amended Act does not violate the federal constitutional right to due process, even though a subsequent section 6608 petition for release requires the committed person to prove by a preponderance of the evidence that he or she is entitled to release. First, both the District of Columbia statute and the amended Act provide for indefinite civil commitment of persons who are found to be, generally speaking, dangerous to others because of mental illness. Although the District of Columbia statute applies to insanity acquittees and the amended Act applies to sexually violent predators, that distinction is, for purposes of our due process analysis, a distinction without a significant difference.

Jones primarily focused on two prerequisite findings in upholding indefinite civil commitment of insanity acquittees without violation of due process: (1) dangerousness (as shown by the jury's finding beyond a reasonable doubt that the acquittee committed a criminal act); and (2) mental illness (as shown by the jury's finding by a preponderance of the evidence that the acquittee was insane at the time of the act). In our case, similar prerequisite findings were made by the jury at McKee's initial civil commitment trial. In finding McKee was a sexually violent predator within the meaning of the amended Act, the jury necessarily found, by proof beyond a reasonable doubt, that McKee: (1) had been convicted of committing a sexually violent offense against one or more victims; (2) had a diagnosed mental disorder; and (3) as a result of that diagnosed mental disorder, is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavior.^[3] Therefore, the jury, in effect, found that McKee was both dangerous to others and mentally ill. In fact, unlike in Jones, the finding that McKee had a diagnosed mental disorder (i.e., was mentally ill) was made by proof beyond a reasonable doubt, a standard of proof greater than that required for the insanity defense in Jones (i.e., proof by a preponderance of the evidence).^[4] Furthermore, the higher standard of proof required to show McKee's mental illness provided him with, in effect, more due process protection than provided to the insanity acquittee in Jones whose mental illness (i.e., insanity) was proved only by a preponderance of the evidence. Accordingly, McKee's initial civil commitment for an indefinite term satisfied the general due process requirements set forth in Jones.

To the extent McKee argues the District of Columbia statute in Jones provided for a subsequent hearing within 50 days of the insanity acquittee's initial, automatic civil commitment for an indefinite term but the amended Act generally provides him (McKee) with subsequent hearings only pursuant to sections 6605 and 6608 (with or without the DMH's authorization) within one year, we conclude that difference is based on an erroneous comparison of dissimilar proceedings and is therefore irrelevant to our due process analysis in this case. In Jones, the 50-day hearing presumably was intended to be a timely civil hearing on the insanity acquittee's automatic (i.e., without a hearing), indefinite commitment after his insanity acquittal at his criminal trial. In our case, McKee received such a civil hearing at his initial trial pursuant to section 6604 at which both his mental illness and dangerousness were proved by the People beyond a reasonable doubt. Furthermore, at the 50-day civil hearing in Jones to determine whether the insanity acquittee was eligible for release, "he ha[d] the burden of proving by a preponderance of the evidence that he [was] no longer mentally ill or dangerous. [Citation.]" (Jones, supra, 463 U.S., at p. 357, fn. omitted.) In this case, as noted above, both McKee's dangerousness and mental illness were proved, beyond a reasonable doubt, at his initial section 6604 civil commitment trial, which applied a higher standard of proof than permitted in Jones (i.e., proof by a preponderance of the evidence). Therefore, no 50-day (or other subsequent prompt hearing) was required to review those findings and/or to determine whether McKee should be released. There is no logical reason to conclude McKee's initial section 6604 civil commitment for an indefinite term, subject to subsequent section 6605 annual examinations and potential annual petitions for release pursuant to sections 6005 and 6608, is inadequate to protect McKee's federal constitutional right to due process of law.

Finally, although McKee apparently does not expressly argue he should be entitled to subsequent release hearings every six months as the District of Columbia statute provided in Jones, we see no logical reason to conclude the annual examinations and potential annual petitions for release (whether with or without the DMH's authorization) provided for under sections 6605 and 6008 are inadequate to protect his due process right. In fact, in the event the DMH finds, based on a future section 6605 annual examination, that McKee is no longer an SVP or should be conditionally released, section 6605, subdivision (b), provides that the DMH shall "authorize" (or, in effect, support) McKee's petition for release. In such event (after the court finds probable cause for release), McKee is entitled to, in effect, a de novo trial on his current status as an SVP and whether he should continue to be indefinitely committed. ( 6605, subds. (c), (d).) At that trial, the People again have the burden to prove, beyond a reasonable doubt, that McKee's "diagnosed mental disorder remains such that he . . . is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged." ( 6605, subd. (d).) That standard of proof (i.e., beyond a reasonable doubt) is greater than the standard of proof allowed by Jones at the six-month hearings under the District of Columbia statute (i.e., by a preponderance of the evidence). Therefore, in the event the DMH finds in the future that McKee is no longer an SVP or should be conditionally released, McKee will receive rights greater than those that arguably were implicitly found constitutionally adequate in Jones for periodic reviews of an indefinite civil commitment. Furthermore, even if the DMH does not find in the future that McKee is no longer an SVP or should be conditionally released (i.e., does not "authorize" McKee to file a petition for release), section 6608 provides that he may file a petition for release (albeit no more often than one year after denial of a prior petition for release) and is entitled to an evidentiary hearing thereon (if the court first finds, on review of the petition or following a hearing, the petition is not frivolous and, unless it is his first petition, it alleges facts making a prima facie case for a release hearing).^[5] ( 6608, subds. (a), (d), (h).)

Although McKee complains that at such future hearings he would bear the burden to prove his right to release by a preponderance of the evidence ( 6608, subd. (i)), that burden of proof is the same as the burden of proof placed on the insanity acquittee that arguably was implicitly approved by Jones for six-month review hearings under the District of Columbia statute.^[6] Because the review hearings in Jones are analogous to the (potentially) annual petitions for release under section 6608, we conclude the placement on McKee of the burden to prove his right to release by a preponderance of the evidence at hearings on future section 6608 petitions for release (without the DMH's authorization) does not violate his federal constitutional right to due process.

Although McKee argues that standard of proof contradicts the holding in Addington requiring proof by clear and convincing evidence, Addington addressed only the burden of proof required at an initial civil commitment proceeding and therefore Addington did not address whether findings at proceedings subsequent to an initial civil commitment (e.g., a subsequent review or release hearing) require proof by clear and convincing evidence. The circumstances in Addington did not involve any subsequent review or release hearing after an initial civil commitment.^[7] Furthermore, Addington also involved only an "ordinary" civil commitment statute (not unlike an "LPS" civil commitment in California pursuant to  5350 et seq.). It did not address the burden of proof required in special civil commitment proceedings (e.g., SVP civil commitment proceedings under the Act). Finally, we conclude Jones's approval of the preponderance-of-the-evidence standard essentially overruled Addington's holding to the extent Addington may have applied to subsequent review or release hearings of an indefinite civil commitment.

Although McKee also appears to argue that any indefinite civil commitment (regardless of the standard of proof) violates the federal constitutional right to due process, he does not cite, and we are unaware of, any case so holding. On the contrary, both Addington and Jones involved indefinite civil commitments and neither expressed constitutional concerns regarding the potential length of an indefinite civil commitment. So long as an initial civil commitment for an indefinite term is subject to adequate periodic examinations and petitions for review or release to determine the current status of a committed person to ensure that a committed person who no longer qualifies for commitment is released, we conclude the federal constitutional right to due process does not prohibit an involuntary civil commitment for an indefinite term.^[8] (Foucha v. Louisiana, supra, 504 U.S. at p. 77 [interpreting Jones as holding that an insanity acquittee may be held pursuant to a civil commitment "as long as he is both mentally ill and dangerous, but no longer"]; People v. Allen, supra, 42 Cal.4th at pp. 103-104 [periodic reviews are required for civil commitments of mentally disordered offenders (Pen. Code,  2960 et seq.) " 'because if the basis for a commitment ceases to exist, continued confinement violates the substantive liberty interest in freedom from unnecessary restraint.' [Citations.]"].) We are not persuaded that McKee's indefinite civil commitment pursuant to the amended Act violated his federal constitutional right to due process of law.

Story Continue As Part III ..

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] In so holding, the court rejected the appellant's argument that due process required proof beyond a reasonable doubt, stating: "We have concluded that the reasonable-doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment." (Addington, supra, 441 U.S. at p. 432.)

^[2] The appellant also asserted his NGI civil commitment could continue only as long as the prison term he would have served had he been convicted of the charged criminal offense, and thereafter he should either be released or recommitted under the general civil commitment statute. (Jones, supra, 463 U.S. at p. 363.)

^[3] The jury was instructed with a modified version of CALCRIM No. 3454, as follows: "The petition alleges that Richard McKee is a sexually violent predator. [] To prove this allegation, the People must prove beyond a reasonable doubt that: [] 1. He has been convicted of committing sexually violent offenses against one or more victims; [] 2. He has a diagnosed mental disorder; [] AND [] 3. As a result of that diagnosed mental disorder, he is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavior; [] 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. [] A person is likely to engage in sexually violent predatory criminal behavior if there is a substantial, serious, and well-founded risk that the person will engage in such conduct if released into the community. [] The likelihood that the person will engage in such conduct does not have to be greater than 50 percent. [] Sexually violent criminal behavior is predatory if it is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or a person with whom a relationship has been established or promoted for the primary person of victimization."

^[4] The fact that the acquittee in Jones affirmatively raised the defense of insanity and in this case the People alleged McKee's diagnosed mental disorder provides no logical basis on which to conclude the finding of mental illness in Jones satisfied due process but the jury's finding of McKee's diagnosed mental disorder in this case did not. It is our understanding that it is the finding of mental illness (in addition to a finding of dangerousness) that is essential to satisfy due process, and not which party asserts that mental illness (e.g., the People or the committed person). In any event, the fact that McKee's mental illness was proved beyond a reasonable doubt (in contrast to proof by a preponderance of the evidence as in Jones) ameliorates any concern that the People, and not McKee, raised that question.

^[5] The amended Act does grant McKee a right to subsequent hearings on the merits of his indefinite civil commitment. The fact that right may be limited in the event a future petition for release is frivolous or he cannot allege sufficient facts to make a prima facie case for a hearing does not constitute an unconstitutional civil commitment in perpetuity in the event he no longer is an SVP. Rather, the amended Act reasonably precludes a full evidentiary hearing of a petition for release when that petition and its supporting evidence are insufficient to warrant the expenditure of substantial judicial resources.

^[6] Although McKee also complains that section 6608 does not expressly provide him with the right to assistance of an expert at a hearing on a section 6608 petition for release, that right presumably can be inferred from his section 6605 right to have his own expert conduct an annual examination. ( 6605, subd. (a) ["The person may retain, or if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person."].)

^[7] A section 6608 petition for release filed after a section 6604 initial civil commitment for an indeterminate term is not, as McKee asserts, "more akin to an initial civil commitment proceeding than a hearing to determine if the commitment should be extended."

^[8] To the extent McKee relies on Kansas v.Hendricks, supra, 521 U.S. 346 as support for his due process contention, that case is inapposite because it addressed only the ex post facto issue, as discussed below. Hendricks does not show that McKee's involuntary civil commitment as an SVP for an indeterminate term pursuant to the amended Act violated his federal constitutional right to due process. Although McKee also cites Foucha v. Louisiana (1992) 504 U.S. 71 and O'Connor v. Donaldson, supra, 422 U.S. 563 as support for his due process contention, neither case persuades us that his federal constitutional right to due process was violated.