PEOPLE v. McKEE

Filed 3/20/08

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Peter L. Gallagher, Judge. Affirmed.

Steven M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillett, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

Richard McKee appeals an order involuntarily committing him for an indeterminate term to the custody of the State Department of Mental Health (DMH) after a jury found him to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (Welf. & Inst. Code,  6600 et seq.)^[1](the Act). McKee contends the order should be reversed because: (1) his indeterminate commitment pursuant to the Act, as amended in 2006, violated his federal constitutional rights to due process of law, against ex post facto laws, and to equal protection under the law; (2) the evidence is insufficient to support the finding he is an SVP; and (3) the trial court erred by refusing his proposed modification of a jury instruction.

FACTUAL AND PROCEDURAL BACKGROUND

On November 8, 2004, a petition was filed to establish McKee as an SVP within the meaning of the Act. The petition alleged McKee was "a person who has been convicted of a sexually violent offense against two or more victims for which he was sentenced and who has a diagnosed mental disorder that makes him a danger to the health and safety of others, in that it is likely he will engage in sexually violent predatory criminal behavior." It alleged he had been convicted of two counts of committing lewd and lascivious acts on a child under the age of 14 (Pen. Code,  288, subd. (a)). One victim was an 11-year-old girl and the other was an eight-year-old girl.^[2] The petition requested that McKee be committed to the DMH's custody for a period of two years.

On February 16, 2007, McKee demurred to the petition on the ground that the Act, as amended on November 7, 2006, by the voters' passage of Proposition 83, was unconstitutional. The trial court overruled the demurrer.

On March 5, an amended petition was filed restating the original petition's factual allegations and requesting that McKee be committed to an indeterminate term pursuant to the amended Act. On March 12, following a five-day trial, the jury returned a verdict finding McKee was an SVP within the meaning of the Act. On March 13, the trial court issued an order committing McKee to the custody of the DMH for an indeterminate term pursuant to the Act.

McKee timely filed a notice of appeal.

DISCUSSION

I

The Act and Proposition 83

The Act, as originally enacted as of January 1, 1996 (Stats. 1995, ch. 763,  3), provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, by a unanimous jury verdict after trial (former 6603, subd. (d), 6604), are found beyond a reasonable doubt to be an SVP (former  6604). (People v. Williams (2003) 31 Cal.4th 757, 764; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143, 1147 (Hubbart).) A person's commitment could not be extended beyond that two-year term unless a new petition was filed requesting a successive two-year commitment.^[3] (Former  6604, 6604.1; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243, fn. 5; People v. Shields (2007) 155 Cal.App.4th 559, 562.) On filing of a recommitment petition, a new jury trial would be conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. (Former  6604, 6605, subds. (d), (e); People v. Munoz (2005) 129 Cal.App.4th 421, 429 ["[A]n SVP extension hearing is not a review hearing. . . . An SVP extension hearing is a new and independent proceeding at which . . . the [People] must prove the [committed person] meets the [SVP] criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous."]; Cooley, at p. 243, fn. 5; Shields, at p. 562; People v. Roberge (2003) 29 Cal.4th 979, 984.)

As originally enacted, an SVP was defined as "a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence 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." (Former  6600, subd. (a).) A "sexually violent offense" included a Penal Code section 288 lewd act on a child under age 14. (Former  6600, subd. (b); Hubbart, supra, 19 Cal.4th at p. 1145.) Under the Act, a person is "likely" to engage in sexually violent criminal behavior (i.e., reoffend) if he or she "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." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922; see also People v. Roberge, 29 Cal.4th at pp. 988-989.) The Act does not require proof the person "is more likely than not to reoffend." (Ghilotti, at p. 923.)

The Act is "designed to ensure that the committed person does not 'remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.' [Citation.]" (Hubbart, supra, 19 Cal.4th at p. 1177.) The Act "therefore provides two ways a defendant can obtain review of his or her current mental condition to determine if civil confinement is still necessary. [First,] [s]ection 6608 permits a defendant to petition for conditional release to a community treatment program. . . . [Second,] [s]ection 6605 [requires] an annual review of a defendant's mental status that may lead to unconditional release." (People v. Cheek (2001) 25 Cal.4th 894, 898, fn. omitted.)

On November 7, 2006, California voters passed Proposition 83 (also known as "Jessica's Law"), amending the Act effective November 8. (People v. Shields, supra, 155 Cal.App.4th at pp. 562-563.) Pursuant to Proposition 83, "former section 6604 was amended to eliminate the two-year term provision and to provide for an indeterminate term of confinement (subject to the SVP's right to petition for release). [Citations.]" (Shields, at p. 562.)^[4] Section 6604 of the Act now provides in relevant part: "If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement . . . ." (Italics added.) Proposition 83 did not change section 6604's requirement that a person's commitment as an SVP be proved at trial beyond a reasonable doubt.^[5] ( 6604.) Under Proposition 83, section 6605 continues to require current examinations of a committed SVP at least once every year. ( 6605, subd. (a).) However, Proposition 83 added new provisions to section 6605 regarding the DMH's obligations:

"(a) . . . The annual report [following a current examination] shall 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. The [DMH] shall file this periodic report with the court that committed the person under this article. The report shall be in the form of a declaration and shall be prepared by a professionally qualified person. A copy of the report shall be served on the prosecuting agency involved in the initial commitment and upon the committed person. 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.

"(b) If the [DMH] determines that either: (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. The petition shall be filed with the court and served upon the prosecuting agency responsible for the initial commitment. The court, upon receipt of the petition for conditional release to a less restrictive alternative or unconditional discharge, shall order a show cause hearing at which the court can consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney or the committed person." (Italics added to indicate language retained from original Act.)

Therefore, in the event the DMH determines a person is no longer an SVP, the DMH is required to authorize that person to file a petition for unconditional release or discharge. ( 6605, subd. (b).) Proposition 83 did not amend the provisions regarding the court's consideration of a DMH-authorized petition for release. If, at a show cause hearing on that petition, the trial court determines there is probable cause to believe the person's mental disorder has so changed that 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, the court must set an evidentiary hearing (i.e., a trial) on the issue. ( 6605, subd. (c).) Furthermore, section 6605, subdivision (d), continues to provide (without amendment by Proposition 83):

"At the [evidentiary] hearing, the committed person shall have the right to be present and shall be entitled to the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding. . . . The committed person also shall have the right to demand a jury trial and to have experts evaluate him or her on his or her behalf. The court shall appoint an expert if the person is indigent and requests an appointment. The burden of proof at the hearing shall be on the state to 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."

If the court or jury finds in the committed person's favor, the person shall be unconditionally released and discharged. ( 6605, subd. (e).)

In the event the DMH does not authorize the committed person to file a petition for release pursuant to section 6605, the person nevertheless may file a petition for conditional release for one year and subsequent unconditional discharge pursuant to section 6608 without the DMH's authorization in the same manner as before passage of Proposition 83.^[6] ( 6608, subd. (a) ["Nothing in this article shall prohibit the person who has been committed as a sexually violent predator from petitioning the court for conditional release or an unconditional discharge without the recommendation or concurrence of the [DMH]. . . ."]; People v. Cheek, supra, 25 Cal.4th at p. 902 ["Section 6608, which provides for conditional release to a community treatment program, does not mention section 6605, and permits a defendant to be unconditionally released only after the defendant has spent a year in a conditional release program."].)^[7] Section 6608, subdivision (i), was not amended by Proposition 83 and continues to provide with regard to hearings on a committed person's section 6608 petition for conditional release: "In any hearing authorized by this section, the petitioner shall have the burden of proof by a preponderance of the evidence."^[8] (Italics added.) After a trial court denies a section 6608 petition, "the person may not file a new application until one year has elapsed from the date of the denial." ( 6608, subd. (h).)

Because Proposition 83 amended section 6604 to make an SVP's commitment term indeterminate (rather than a two-year term), a committed person now, in effect, "remains in custody until he successfully bears the burden of proving he is no longer an SVP or the [DMH] determines he no longer meets the definition of an SVP. [Citations.]" (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1287.)

II

Federal Constitutional Right to Due Process

McKee contends his involuntary commitment as an SVP under the Act, as amended by Proposition 83 in 2006, violated his federal constitutional right to due process of law.

A

"[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.]" (Addington v. Texas (1979) 441 U.S. 418, 425 (Addington).) However, "[a]lthough freedom from physical restraint 'has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action,' [citation], that liberty interest is not absolute." (Kansas v. Hendricks (1997) 521 U.S. 346, 356.) Nevertheless, a state must have "a constitutionally adequate purpose for the confinement." (O'Connor v. Donaldson (1975) 422 U.S. 563, 574.) Hendricks stated:

"The [United States Supreme] Court has recognized that an individual's constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context: [] '[T]he liberty interest secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.' [Citation.] [] Accordingly, 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.]" (Hendricks, supra, 521 U.S. at pp. 356-357.)

Hendricks concluded: "It thus cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty. [Citation.]" (Hendricks, supra, 521 U.S. at p. 357.) In the context of civil commitment statutes, "[a] finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality.' [Citations.]" (Id. at p. 358.)

B

McKee contends the Act, as amended by Proposition 83, violates the federal constitutional right to due process of law because it provides for an indefinite involuntary civil commitment without adequate safeguards to ensure only those persons with a current mental illness that makes him or her dangerous to the public continue to be confined. He argues a person committed as an SVP to an indeterminate term pursuant to section 6604 could, in effect, be detained for decades after he or she is no longer currently an SVP because the Act's provisions for release are inadequate. He argues that although a committed person may file a section 6608 petition for conditional release and subsequent unconditional discharge, section 6608, subdivision (i), unconstitutionally imposes on the petitioner the burden to prove by a preponderance of the evidence that he or she is entitled to such release. Because neither party cites, and we have not found, any case deciding this issue, we consider it to be one of first impression.

We first address the question of whether McKee's due process contention is ripe for judicial review. Although the People did not raise that question, we requested, and have received and considered, supplemental briefing by the parties regarding whether McKee's due process and equal protection contentions are ripe for review to the extent those contentions rely on the burden of proof and other provisions of section 6608 that may apply to him only in the future. "The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. [Citation.] . . . It is in part designed to regulate the workload of courts by preventing judicial consideration of lawsuits that seek only to obtain general guidance, rather than to resolve specific legal disputes. However, the ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy. On the other hand, the 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 Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 (Pacific Legal), italics added.) " 'A controversy is "ripe" when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.' [Citation.]" (Id. at p. 171, quoting California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22.)

In determining whether a particular controversy was ripe for review, Pacific Legal considered two factors that federal courts (i.e., U.S. Const., art. III,  2, courts) evaluate in determining ripeness: " 'The [ripeness] problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.' [Citation.]" (Pacific Legal, supra, 33 Cal.3d at p. 171, italics omitted, quoting Abbott Laboratories v. Gardner (1967) 387 U.S. 136, 149 (Abbott).) Assuming arguendo Pacific Legal adopted the Abbott test for determining ripeness for review by California courts, we conclude both factors support our review of McKee's due process and equal protection constitutional contentions in this appeal.^[9]

Regarding the first Abbott factor, both constitutional issues are fit for judicial decision. As noted above, McKee argues his indefinite involuntary civil commitment is unconstitutional because the Act, as amended by Proposition 83, provides inadequate safeguards for his future release when he is no longer an SVP. In particular, he argues section 6608's provisions regarding future petitions for conditional release without DMH authorization deprive him of his constitutional rights to due process and equal protection, as discussed in more detail below. Therefore, McKee's challenge to his indefinite term of commitment pursuant to section 6604 cannot be viewed in isolation without concurrent consideration of the Act's comprehensive scheme for annual reviews and petitions for release (including 6608), which he asserts is inadequate. Because he is, in effect, making a facial challenge to the provisions of section 6608, the further development of facts (e.g., by awaiting a future  6608 petition for release) will not aid us in deciding those issues. His facial due process and equal protection constitutional challenges of the Act, as amended by Proposition 83, are purely legal ones and additional facts that may arise in the future will not aid us in making our decision. (Abbott, supra, 387 U.S. at p. 149, superseded by statute on another ground as noted in Califano v. Sanders (1977) 430 U.S. 99, 105; Thomas v. Union Carbide Agric. Products Co. (1985) 473 U.S. 568, 581; Security National Guaranty, Inc. (2008) 159 Cal.App.4th 402, 418; San Diego County Water Authority v. Metropolitan Water Dist. (2004) 117 Cal.App.4th 13, 20, fn. 2; Hayward Area Planning Assn. v. Alameda County Transportation Authority (1999) 72 Cal.App.4th 95, 103 (Hayward).)

Regarding the second Abbott factor, were we to delay consideration of McKee's constitutional challenges until a future section 6608 petition for release is denied, he would suffer undue hardship in the event his instant challenges are subsequently determined to be meritorious. In that event, McKee would have been wrongfully confined during the significant period required to obtain a favorable final court decision in a future appeal, thereby violating his substantive liberty interest in freedom from unnecessary restraint. (Cf. People Allen (2007) 42 Cal.4th 91, 103-104.) Therefore, considering both Abbott factors, we conclude McKee's due process and equal protection contentions are ripe for our review in this appeal. (Pacific Legal, supra, 33 Cal.3d at p. 171; Abbott, supra, 387 U.S. at p. 149; Security National Guaranty, Inc., supra, 159 Cal.App.4th at p. 418; Caloca v. County of San Diego (2002) 102 Cal.App.4th 433, 442-443; Hayward, supra, 72 Cal.App.4th at p. 104; Farm Sanctuary, Inc. v. Department of Food & Agriculture (1998) 63 Cal.App.4th 495, 502-503.)

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] At trial, the evidence showed McKee had been convicted in 1991 for committing lewd acts against an 11-year-old babysitter and in 1998 for committing lewd acts against his eight-year-old niece.

^[3] Former 6604 provided in pertinent part: "[T]he person shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained from the court incident to the filing of a new petition for commitment under this article or unless the term of commitment changes pursuant to subdivision (e) of Section 6605."

^[4] "Proposition 83 states that the change from a two-year term to an indeterminate term is designed to eliminate automatic SVP trials every two years when there is nothing to suggest a change in the person's SVP condition to warrant release: ' "The People find and declare each of the following: [] . . . [] (k) 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." ' [Citations.]" (People v. Shields, supra, 155 Cal.App.4th at p. 564.)

^[5] Proposition 83 changed the definition of an SVP by lowering the number of victims in the qualifying sexually violent offense(s) from two to one under section 6600, subdivision (a)(1), which now provides: " 'Sexually violent predator' means a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Italics added.)

^[6] Section 6608, subdivision (d), provides: "The court shall hold a hearing to 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. If the court at the hearing 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, the court shall order the committed person placed with an appropriate forensic conditional release program operated by the state for one year. A substantial portion of the state-operated forensic conditional release program shall include outpatient supervision and treatment. The court shall retain jurisdiction of the person throughout the course of the program. At the end of one year, the court shall hold a hearing to determine if the person should be unconditionally released from commitment on the basis that, by reason of a diagnosed mental disorder, he or she is not a danger to the health and safety of others in that it is not likely that he or she will engage in sexually violent criminal behavior. The court shall not make this determination until the person has completed at least one year in the state-operated forensic conditional release program. The court shall notify the [DMH] of the hearing date."

^[7] "Section 6605, on the other hand, permits unconditional release without prior placement in a conditional release program." (People v. Cheek, supra, 25 Cal.4th at p. 902.)

^[8] McKee apparently misinterprets section 6608, subdivision (i), and Proposition 83, asserting in his opening brief: "The [Act] was also modified [by Proposition 83] to place the burden on the SVP . . . to prove that he [is] not fit for commitment pursuant to the [Act]." Proposition 83 did not amend section 6608, subdivision (i), which places the burden on the committed person to prove by a preponderance of the evidence that he or she is entitled to conditional release for one year and subsequent unconditional discharge after that one-year conditional release.

^[9] The United States Supreme Court has recognized that ripeness requirements for federal court review do not necessarily apply to review by state courts. (ASARCO Inc. v. Kadish (1989) 490 U.S. 605, 617.)