P. v. Gonzalez
Filed 3/6/06 P. v. Gonzalez Ca2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
| THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL GONZALEZ, Defendant and Appellant. | 2d Crim. No. B179374 (Super. Ct. No. F273071) (San Luis Obispo County)
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Appellant Jose Manuel Gonzalez appeals from a judgment recommitting him to Atascadero State Hospital (ASH) as a sexually violent predator (SVP). (Welf. & Inst. Code, § 6600 et seq.) He contends his commitment is unlawful for the following reasons: (1) the SVP Act violates several constitutional provisions because it is a criminal statute, not a civil statute; (2) the SVP Act violates equal protection principles; (3) the SVP Act violates due process by allowing a deprivation of liberty on a lesser standard than proof beyond a reasonable doubt; and (4) no instruction was given requiring a finding of volitional impairment. We affirm.
BACKGROUND
Due to the nature of the issues in this case, a detailed rendition of the facts is unnecessary. Suffice it to say that appellant, having been convicted of three rapes, was first committed as an SVP in 1999. This appeal is from his latest recommitment hearing in 2004, in which he was determined again to qualify as an SVP.
DISCUSSION
Appellant argues that the SVP Act is a penal statute that violates the ex post facto, double jeopardy and cruel and unusual punishment clauses of the state and federal constitutions. He acknowledges that this argument was rejected by our Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, but wishes to preserve the issue for further review. We are bound by Hubbart and reject his claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant contends the SVP Act violates equal protection principles because its definition of a mental disorder is less stringent than under the state's mentally disordered offender law, because it doesn't require treatment prior to the commencement of the commitment, and because it does not require the release of persons who are in remission. We reject the first two arguments for the reasons stated in People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217-1219 and People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.) We reject the third claim because assuming that SVPs and MDOs are similarly situated, the SVP Act does provide for unconditional and supervised release upon a satisfactory change in the person's mental condition. (Welf. & Inst. Code, §§ 6605, subd. (f), 6607, subd. (a), 6608, subd. (a).)
As the jury in this case was instructed, an SVP determination requires proof that the defendant's mental disorder "makes him or her a danger to the health and safety of others in that it is likely that he or she will engage is sexually violent predatory criminal behavior." (CALJIC No. 4.19, italics added.) The burden of proof for this element, as for all other elements of an SVP determination, is proof beyond a reasonable doubt. Appellant argues that the proof beyond a reasonable doubt standard is lessened by the requirement that a defendant be merely "likely" to engage in predatory conduct.
We reject this argument for the reasons stated in People v. Hubbart, supra, 88 Cal.App.4th at p. 1233: "CALJIC No. 4.19 does not state or imply that the phrase 'likely that he will engage in sexually violent criminal behavior' is the standard of proof for the ultimate SVPA determination. . . . Under this instruction, any reasonable jury would be entirely capable of separating the criteria of finding it 'likely' that the person will engage in sexually violent criminal behavior from the standard of proof 'beyond a reasonable doubt.'" (See also People v. Buffington, supra, 74 Cal.App.4th at pp. 1153-1155.) The SVP Act requires a determination beyond a reasonable doubt that the defendant is likely to engage in sexually violent predatory behavior and the jury was properly instructed on this requirement.
Instruction on Volitional Impairment
Appellant argues that the jury should have been instructed that he could only be committed as an SVP if he had a mental disorder causing him serious difficulty in controlling his behavior. (See Kansas v. Crane (2002) 534 U.S. 407.) He acknowledges that our Supreme Court has rejected this argument and has upheld the standard version of CALJIC No. 4.19 that was given in this case. (People v. Williams (2003) 31 Cal.4th 757, 774-775.) We are bound by that decision and reject appellant's claim.
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
PERREN, J.
John A. Trice, Judge
Superior Court County of San Luis Obispo
______________________________
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Susan Sullivan Pithey, Deputy Attorney General, for Plaintiff and Respondent.
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