Filed 10/7/13 P. v. Robledo CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H037979
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 210648)
v.
ARTHUR ROBLEDO,
Defendant and Appellant.
Arthur Robledo appeals from the February 16, 2012 order committing him as a
sexually violent predator (SVP) for an indefinite term pursuant to Welfare and
Institutions Code section 6600 et seq., the Sexually Violent Predator Act (SVPA or Act).1
He mounts multiple constitutional attacks against the Act.
We find appellant's contentions without merit and affirm.
I
Procedural History
A petition to extend appellant's commitment as an SVP was filed on June 4, 2008.
On February 16, 2012, the jury found the petition alleging that appellant is an SVP
within the meaning of section 6600 to be true. That same day, the court ordered appellant
1
All further statutory references are to the Welfare and Institutions Code.
1
committed for an indeterminate term to the custody of the California Department of
Mental Health for appropriate treatment and confinement. (§ 6604.)
Appellant filed a notice of appeal on February 17, 2012.
II
Evidence
The evidence is not relevant to appellant's constitutional claims and therefore it is
not fully repeated here. We note briefly that it reflects that appellant, who was 60 years
old at the time of trial, was diagnosed with pedophilia by both the People's experts.
Appellant agreed with the diagnosis. Appellant had victimized many boys; he had
previously admitted to as many as 150 victims. At trial, appellant estimated that he had
about 25 to 30 victims. Some of his conduct led to convictions. He admitted to currently
being sexually attracted to young boys.
Appellant had previously dropped out of sex offender treatment and he did not
believe that he currently needed sex offender treatment. At the time of trial, he was not
participating in such treatment.
In the opinions of the People's experts, appellant's pedophilia affected his ability to
control his behavior and predisposed him to commit criminal sexual acts to an extent that
makes him a menace to the health and safety of others. They both indicated that
appellant was likely to commit sexually violent predatory offenses in the future.
III
Discussion
A. Equal Protection
Appellant maintains that persons committed under the SVPA are similarly situated
to persons committed as mentally disordered offenders (MDO's) and persons initially
committed after being found guilty by reason of insanity whose commitments are
extended (NGI's). He argues that the Act denies equal protection of the law because it
2
provides for an indeterminate term of commitment and imposes a greater burden of proof
for obtaining release as compared to those other statutory schemes.
In People v. McKee (2010) 47 Cal.4th 1172 (McKee), the California Supreme
Court recognized that persons civilly committed as MDO's or NGI's are subject to short,
definite terms of commitment whereas persons found to be SVP's are committed to an
indeterminate term of commitment. (People v. McKee, supra, 47 Cal.4th at pp. 1202,
1207.) The court concluded that SVP's were similarly situated to these other groups of
committees. (Id. at pp. 1204, 1207.) It remanded the matter 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 and NGI's in order to
obtain release from commitment." (Id. at pp. 1208-1209, fn. omitted.) The trial court
resolved this question in favor of the People on remand and its order was affirmed on
appeal in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II). The Supreme
Court denied review (S204503).
The Court of Appeal, Fourth District, Division One concluded in McKee II that
"the trial court correctly found the People presented substantial evidence to support a
reasonable perception by the electorate that SVP's present a substantially greater danger
to society than do MDO's or NGI's, and therefore the disparate treatment of SVP's under
the Act is necessary to further the People's compelling interests of public safety and
humane treatment of the mentally disordered." (Id. at pp. 1330-1331.)
Appellant now contends that McKee II does not provide an adequate basis for
rejecting his equal protection challenge. He disagrees with the Fourth District's analysis.
He states that, "as a matter of law," the facts relied upon by the Fourth District "do not
show a compelling state interest" justifying differential treatment of SVP's. He
complains that McKee II failed to compare the general dangerousness of SVP's with the
general dangerousness of MDO's and NGI's. He asserts that the Fourth District "did not
engage in the comparison that is relevant to the equal protection challenge presented
3
here" because the court "focused exclusively upon the danger that . . . MDO's and NGI's
might commit sex offenses . . . ."
Appellant suggests that McKee II also failed to consider the gravity of the danger
presented by MDO's and NGI's. He asserts that the trauma suffered by victims of sexual
offenses committed by SVP's should be compared to the "trauma experienced by victims
of mayhem, arson, attempted murder, crimes of violence inflicting serious bodily injury
and other offenses specified in subdivision (e) of Penal Code section 2962," which is part
of the MDO law. Finally, appellant claims that the diagnostic and treatment differences
identified by the Fourth District do not justify differential treatment of SVP's as
compared to MDO's and NGI's.
We cannot say that McKee II reached the wrong result. Over a decade ago, the
California Supreme Court recognized that "[t]he problem targeted by the [SVPA] is
acute, and the state interests — protection of the public and mental health treatment —
are compelling. [Citations.]" (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1153,
fn. 20.) The evidence in McKee II of the persistence and pervasiveness of the paraphilia
disorders usually suffered by SVP's and their lack of amenability to treatment must be
regarded as particularly relevant to the SVPA's provision of an indeterminate term of
commitment subject to a committee's petition for discharge in which the committee bears
the burden of proof (§ 6608).
The Fourth District determined that there was "substantial evidence to support a
reasonable perception by the electorate that SVP's have significantly different diagnoses
from those of MDO's and NGI's, and that their respective treatment plans, compliance,
and success rates are likewise significantly different." (Id. at p. 1347.) The distinctions
made SVP's more difficult to treat and less likely to participate in treatment. (Ibid.)
SVP's were "less likely to acknowledge there is anything wrong with them, and more
likely to be deceptive and manipulative." (Ibid.)
4
The evidence discussed in McKee II indicated that "[o]nly 2 percent of MDO's and
NGI's suffer from pedophilia or other paraphilias" whereas "nearly 90 percent of SVP's
are diagnosed with pedophilia or other paraphilias." (McKee II, supra, 207 Cal.App.4th
at p. 1344.) "Dr. David Fennell, a psychiatrist and chief of forensics at Atascadero State
Hospital, testified that about 90 percent of MDO and NGI patients suffer from a
psychotic mental disorder" but "only 1 to 3 percent of SVP's suffer from a psychosis."
(McKee II, supra, 207 Cal.App.4th at p. 1344.)
There was also evidence that "[p]araphilia typically remains stable or constant
throughout a patient's lifetime." (Id. at p. 1345.) "Although there may be an 'aging out'
effect where patients' behavior or acting out on their fantasies is decreased as they age,
that does not mean their urges and fantasies are similarly decreased. Patients with
paraphilia generally have a specific intent in selecting victims (e.g., boys age seven to 10
years) and carefully plan and execute their offenses (e.g., by 'grooming' their victims
before committing the offense). In contrast, patients with severe mental illnesses
generally are not that organized and commit impulsive or opportunistic offenses." (Ibid.)
It was "rare for a patient with a severe mental illness to sexually reoffend." (Ibid.)
The court summarized evidence regarding the significant differences in the
treatment of severely mentally ill patients and patients with paraphilia. "Patients with
severe mental illnesses generally are first treated with psychotropic medications and then
with psychosocial support or intervention (e.g., therapy regarding communication skills,
social skills, and problem solving). Their amenability to and compliance with treatment
usually is very good. Most severely mentally ill patients are compliant with their
medications and participate in treatment most of the time. In comparison, the treatment
plans for patients with paraphilia generally involve psychosocial intervention-like
treatment. Medications may decrease their sexual arousal, but not their deviant sexual
interests. Treatment of paraphilia patients takes longer than for other patients because
paraphilia is so pervasive, affecting their thoughts, beliefs, and interactions. . . . Also, a
5
higher percentage of SVP's (i.e., 10 to 15 percent) have antisocial or borderline
personality disorders (i.e., involving pathological lying and instability, etc.) than do
severely mentally ill patients, making their treatment more difficult. Also, unlike
severely mentally ill patients, 'not very many' SVP's are ready to work and participate in
treatment." (Id. at p. 1346.)
Dr. Fennell also provided testimony regarding the differences between treatment
plans for SVP's and those for MDO's and NGI's. (Id. at p. 1345.) "MDO's, most of
whom are housed at Atascadero, are overwhelmingly treated with psychotropic
medications, resulting in their stabilization and amenability to psychosocial support
treatment. About two-thirds of MDO's and NGI's comply with their treatment programs,
typically resulting in their decertification after about three years." (Id. at pp. 1344-1345.)
In contrast, "SVP's treatment plans are not based on medications, but rather on giving
them the tools to limit their risk of sexually reoffending." (Id. at p. 1345.) "The shortest
time in which an SVP has completed treatment is two and one-half years. Many other
SVP's took up to five years to complete treatment." (Ibid.) But "only about 25 percent of
SVP's participate in treatment." (Ibid.)
McKee II also found that the People had "presented evidence that the victims of
sex offenses suffer unique and, in general, greater trauma than victims of nonsex
offenses." (Id. at p. 1342.) There was testimony that "[s]exual abuse causes the greatest
trauma of adverse childhood experiences." (Ibid.) The court concluded that "there is
substantial evidence to support a reasonable perception by the electorate, as a legislative
body, that the harm caused by child sexual abuse and adult sexual assault is, in general, a
greater harm than the harm caused by other offenses and is therefore deserving of more
protection." (Id. at pp. 1343-1344.)
McKee II acknowledged the People's evidence did not "show SVP's have, in fact, a
higher sexual recidivism rate than MDO's and NGI's" as classes. (Id. at p. 1342.) But the
6
Static-99 evidence supported, "by itself, a reasonable inference or perception that SVP's
pose a higher risk of sexual reoffending than do MDO's or NGI's." (Ibid.)
Appellant has not established that the Fourth's District's analysis is fatally
defective because it did not compare the general danger presented by MDO's and NGI's
with the general danger presented by SVP's or the trauma experienced by victims of those
various groups. The SVPA targets the danger of sexual reoffense due to a mental
disorder. There was a factual basis for the legislative body to believe that SVP's pose a
special danger of sexual reoffense and the victims of these offenses suffered an especially
acute injury. "[A]n equal protection violation does not occur merely because different
statutory procedures have been included in different civil commitment schemes. (See
Hofferber, supra, 28 Cal.3d 161, 172 [Legislature 'may adopt more than one procedure
for isolating, treating, and restraining dangerous persons'].) Nothing compels the state 'to
choose between attacking every aspect of a problem or not attacking the problem at all.'
(People v. Jennings (2000) 81 Cal.App.4th 1301, 1312-1313.) Far from having to 'solve
all related ills at once' (People v. Cooper (1996) 43 Cal.App.4th 815, 829), the
Legislature has 'broad discretion' to proceed in an incremental and uneven manner
without necessarily engaging in arbitrary and unlawful discrimination. (People v. Ward
(2005) 36 Cal.4th 186, 217.)" (People v. Barrett (2012) 54 Cal.4th 1081, 1110.)
Further, while legislative distinctions among SVP's, MDO's, and NGI's must be
"factually based," they need not be "incontrovertible or uncontroversial." (McKee, supra,
47 Cal.4th at pp. 1210-1211.) "Mere disagreement among experts will not suffice to
overturn the Proposition 83 amendments." (Id. at p. 1210.) Appellant has not suggested
that further adjudication of the equal protection issue would produce significantly
different evidence.
As suggested by the evidence in McKee II, the differences in the length of
commitment terms, the committees' entitlement to release, and the committees' burden of
proof to obtain release are principally justified by differences in the diagnoses and
7
treatment of SVP's. In light of the Supreme Court's clearly expressed intent to avoid an
unnecessary multiplicity of proceedings with respect to equal protection challenges in
SVP cases (see People v. McDonald (2013) 214 Cal.App.4th 1367, 1378; People v.
McKnight (2012) 212 Cal.App.4th 860, 863-864), the Supreme Court's denial of review
in McKee II, and our conclusions regarding the asserted flaws in McKee II, we find the
equal protection arguments advanced in this appeal are without merit and do not require a
remand for a further evidentiary hearing.
B. Ex Post Facto and Double Jeopardy Prohibitions
Appellant argues that the SVPA violates the protection against double jeopardy
provided by U.S. Constitution and the protections against ex post facto laws contained in
both the U.S. and California Constitutions. Appellant states that these argument are
advanced purely to preserve these issues for review in federal court. As appellant
understands, this court is bound by McKee. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
In Kansas v. Hendricks (1997) 521 U.S. 346 [117 S.Ct. 2072], the U.S. Supreme
Court made clear that a judicial determination that a law is not punitive "removes an
essential prerequisite" for both double jeopardy and ex post facto claims. (Id. at p. 370.)
In McKee, supra, 47 Cal.4th 1172, the Supreme Court concluded: "[T]he nonpunitive
objectives of the Act—treatment for the individual committed and protection of the
public—remain the same after Proposition 83. Moreover, under the Act after Proposition
83, as before, a person is committed only for as long as he meets the SVP criteria of
mental abnormality and dangerousness. As such, the Proposition 83 amendments at issue
here cannot be regarded to have changed the essentially nonpunitive purpose of the Act."
(Id. at p. 1194.) After considering "the seven-factor test articulated in Kennedy v.
Mendoza–Martinez (1963) 372 U.S. 144, 168-169 . . . 83 S.Ct. 554" (id. at p. 1195), the
Supreme Court held that "the Proposition 83 amendments do not make the Act punitive
8
and accordingly do not violate the ex post facto clause." (Ibid.) This determination is
dispositive of appellant's double jeopardy and ex post facto claims.
C. Due Process
1. Indeterminate Term
Appellant maintains that the SVPA violates due process by committing an SVP
"indefinitely, subject to the individual proving by a preponderance of the evidence that he
no longer meets the criteria for commitment." He argues that the California Supreme
Court misunderstood Jones v. United States (1983) 463 U.S. 354 [103 S.Ct. 3043], which
it cited in McKee.
In McKee, supra, 47 Cal.4th 1172, the California Supreme Court reasoned that an
initial finding beyond a reasonable doubt that a person meets the definition of an SVP is
"for present constitutional purposes, the functional equivalent of the NGI acquittal in
Jones [v. United States (1983) 463 U.S. 354 [103 S.Ct. 3043].]" (Id. at p. 1191.) It
determined that "as in Jones, the requirement that McKee, after his initial commitment,
must prove by a preponderance of the evidence that he is no longer an SVP [on a petition
under Welfare and Institutions Code 6608] does not violate due process." (Ibid.)
As to the summary denial of a frivolous petition under Welfare and Institutions
Code section 6608, the Supreme Court stated in McKee: "A frivolous petition is one that
'indisputably has no merit.' (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650
[defining frivolous appeals].) . . . The fact that the statute gives the court the authority to
deny such petitions does not, of itself, serve as an obstacle to the primary due process
goal of ensuring that only those individuals who continue to meet SVP criteria will
remain involuntarily committed." (McKee, supra, 47 Cal.4th at p. 1192, fn. omitted.) It
recognized that SVP committees are not precluded "from challenging an erroneous
judicial determination that a petition is frivolous. [Citation.]" (Id. at p. 1192, fn. 6.)
In McKee, the Supreme Court recognized that "expert testimony is critical in an
SVP commitment proceeding . . . ." (Id. at p. 1192.) It determined: "Given that the
9
denial of access to expert opinion when an indigent individual petitions on his or her own
to be released may pose a significant obstacle to ensuring that only those meeting SVP
commitment criteria remain committed, we construe section 6608, subdivision (a), read
in conjunction with section 6605, subdivision (a), to mandate appointment of an expert
for an indigent SVP who petitions the court for release." (Id. at p. 1193.)
The Supreme Court observed: "After Proposition 83, it is still the case that an
individual may not be held in civil commitment when he or she no longer meets the
requisites of such commitment. An SVP may be held, as the United States Supreme
Court stated under similar circumstances, 'as long as he is both mentally ill and
dangerous, but no longer.' (Foucha v. Louisiana (1992) 504 U.S. 71, 77 [ . . . 112 S.Ct.
1780].)" (McKee, supra, 47 Cal.4th at p. 1193.) It held that the amended SVPA, as
construed, "does not violate the due process clause." (Ibid.)
Since this court is bound by McKee (Auto Equity Sales, Inc. v. Superior Court,
supra, 57 Cal.2d at p. 455), we must reject appellant's due process contention concerning
the indeterminate term of commitment and burden of proof for release imposed on SVP's.
2. Likelihood of Reoffense
Section 6600, subdivision (a), defines an SVP as "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.) Appellant argues that the statutory phrase "likely [to] engage in sexually
violent criminal behavior" (§ 6600, subd. (a)), as construed in People v. Roberge (2003)
29 Cal.4th 979 (Roberge), unconstitutionally permits the trier of fact to "make a finding
of 'likely' based not on probability but rather on the quality of the possible harm and
quality of the evidence" and, thereby, violates due process.
In Roberge, the California Supreme Court held that the phrase "likely [to] engage
in sexually violent criminal behavior" required proof that the person presented "a
10
substantial danger, that is, a serious and well-founded risk, of committing such crimes if
released from custody." (Id. at p. 988.) The Supreme Court relied extensively on its
prior opinion in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888 (Ghilotti),
which considered the phrase "likely to engage in acts of sexual violence without
appropriate treatment and custody" (italics added), as used in section 6601, subdivision
(d), concerning prepetition evaluations.
In Ghilotti, the Supreme Court first addressed the contention of Ghilotti and his
amici curiae that " 'likely,' as used in [that] context, means 'highly likely,' or at least 'more
likely than not.' " (Ghilotti, supra, 27 Cal.4th at p. 915.) In interpreting that language,
the Supreme Court observed that "the word 'likely,' when used in [that] context, must be
given a meaning consistent with the statute's clear overall purpose." (Id. at p. 921.)
"That purpose is to protect the public from that limited group of persons who were
previously convicted and imprisoned for violent sex offenses, and whose terms of
incarceration have ended, but whose current mental disorders so impair their ability to
control their violent sexual impulses that they do in fact present a high risk of reoffense if
they are not treated in a confined setting." (Ibid.) The court also recognized that "[t]he
word 'likely,' as used in the statute, also must be construed in light of the 'difficulties
inherent in predicting human behavior' (Hubbart, supra, 19 Cal.4th 1138, 1163 . . . ),
particularly in mathematical terms." (Ibid.)
In Ghilotti, the court then construed the statutory language at issue as follows:
"[T]he phrase . . . connotes much more than the mere possibility that the person will
reoffend as a result of a predisposing mental disorder that seriously impairs volitional
control. On the other hand, the statute does not require a precise determination that the
chance of reoffense is better than even. Instead, an evaluator applying this standard must
conclude that the person is 'likely' to reoffend if, because of a current mental disorder
which makes it difficult or impossible to restrain violent sexual behavior, the person
presents a substantial danger, that is, a serious and well-founded risk, that he or she will
11
commit such crimes if free in the community." (Id. at p. 922.) It pointed out that "[t]his
interpretation of 'likely,' requiring substantial danger of new acts of sexual violence
arising from the offender's current mental disorder, is consistent with the standards used
by the Legislature in other current and past statutes to justify the extended confinement
and treatment of convicted offenders who, after their maximum periods of incarceration,
remain dangerous as the result of mental diseases, defects, or disorders. [Citations.]"
(Ibid.)
The Supreme Court next reached the claim that "constitutional principles of
substantive due process, as applicable to involuntary civil commitment statutes, require a
limitation of such commitments to persons who are 'highly likely' to reoffend." (Ghilotti,
supra, 27 Cal.4th at p. 923.) It rejected this contention.
It stated: "As we pointed out in Hubbart, supra, 19 Cal.4th 1138 . . . , '[w]hile due
process precludes the involuntary commitment of mentally impaired persons who are not
in any sense "dangerous" [citation], the United States Supreme Court has never directly
defined the term.' (Id., at p. 1161 . . . .) Indeed, we indicated, '[c]ivil commitment
statutes have long been upheld where dangerousness is expressed in terms of a
"probability," "threat," or similar risk that a person who is presently mentally disturbed
will inflict harm upon himself or others in the future if not confined. (Heller [v. Doe]
[(1993)] 509 U.S. 312, 317–318 [113 S.Ct. 2637, 125 L.Ed.2d 257] [mentally retarded
and mentally ill persons who pose " 'a danger or a threat of danger' " to self or others];
Allen v. Illinois (1986) 478 U.S. 364, 366, fn. 1 [106 S.Ct. 2988, 92 L.Ed.2d 296]
[mentally disordered sex offender with " 'criminal propensities to the commission of sex
offenses' "] . . . ; Greenwood v. United States [(1956)] 350 U.S. 366, 368, fn. 3 [76 S.Ct.
410, 100 L.Ed. 412] [mentally incompetent prisoners who " 'will probably endanger the
safety' " of others]; see Minnesota v. Probate Court (1940) 309 U.S. 270, 273-274 [60
S.Ct. 523, 84 L.Ed. 744] [statute providing for commitment of sexual psychopaths is
12
construed to apply to habitual sex offenders who are " 'likely to attack' " or injure
others].)' (Hubbart, supra, at p. 1163, fn. 26 . . . .)" (Id. at pp. 923-924.)
The Supreme Court explained in Ghilotti: "[W]e do not discern that due process
limits the involuntary civil commitment of dangerous mentally disordered offenders only
to those persons who are more likely than not to reoffend. In our view, the state has a
compelling protective interest in the confinement and treatment of persons who have
already been convicted of violent sex offenses, and who, as the result of current mental
disorders that make it difficult or impossible to control their violent sexual impulses,
represent a substantial danger of committing similar new crimes [citations], even if that
risk cannot be assessed at greater than 50 percent." (Id. at p. 924.)
Faced with a substantive due process challenge, the Supreme Court in Ghilotti
construed the nature of the risk required by section 6601 and concluded that a higher
standard was not demanded by due process. The Supreme Court impliedly concluded
that its interpretation comported with substantive due process. The court subsequently
adopted that same construction with regard to the definition of an SVP used at trial.
(People v. Roberge, supra, 29 Cal.4th at p. 988.)
Appellant has not cited any case establishing that substantive due process requires
the extent of future danger posed by a proposed committee to be mathematically
quantifiable or expressed as a specific probability. The analysis in Ghilotti is persuasive
authority that Roberge's interpretation of the likelihood required by section 6000,
subdivision (a), does not contravene due process.
3. Void For Vagueness Doctrine
Appellant asserts that the SVPA violates due process under the void for vagueness
doctrine because section 6600, subdivision (a), as judicially interpreted in Roberge,
supra, 29 Cal.4th 979, does not set "minimum standards to guide the interpretation of the
evidence by jurors" and "leaves to the jury the task of setting a threshold risk of
reoffense." He states: "[W]hether any danger is 'serious,' whether it is 'substantial,'
13
whether it is 'well-founded' are matters of interpretation. They are matters upon which
the minds of individual jurors might vary widely. They are matters upon which the
minds of expert witnesses might vary widely even if they view the evidence to be exactly
the same. The use of these terms effectively leaves the application of the statute to the
individual predilections of the jurors."
"It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined. Vague laws offend several important values. First,
because we assume that [a person] is free to steer between lawful and unlawful conduct,
we insist that laws give the person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly. Vague laws may trap the
innocent by not providing fair warning. Second, if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit standards for those who apply
them. A vague law impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application." (Grayned v. City of Rockford (1972) 408 U.S.
104, 108-109, fns. omitted [92 S.Ct. 2294].) "[A] law fails to meet the requirements of
the Due Process Clause if it is so vague and standardless that it leaves the public
uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without
any legally fixed standards, what is prohibited and what is not in each particular case.
See, e.g., Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888;
Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377." (Giaccio v. State of Pa.
(1966) 382 U.S. 399, 402-403 [86 S.Ct. 518].)
Due process, however, does not require exactitude. As the U.S. Supreme Court
has recognized, "[c]ondemned to the use of words, we can never expect mathematical
certainty from our language." (Grayned v. City of Rockford, supra, 408 U.S. at p. 110.)
"[T]his prohibition against excessive vagueness does not invalidate every statute which a
reviewing court believes could have been drafted with greater precision. Many statutes
14
will have some inherent vagueness, for '(i)n most English words and phrases there lurk
uncertainties.' Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed.
944 (1945)." (Rose v. Locke (1975) 423 U.S. 48, 49-50 [96 S.Ct. 243].) Due process
requires only reasonable specificity or reasonable certainty. (People ex rel. Gallo v.
Acuna (1997) 14 Cal.4th 1090, 1117.)
In People v. Morgan (2007) 42 Cal.4th 593, the California Supreme Court
determined that "in the context of our simple kidnapping statute, where the adjective
'substantial' modifies the noun 'distance,' the word 'substantial' means a 'significant
amount' as contrasted with a distance that is 'trivial,' and that the phrase 'substantial
distance' meets the constitutional requirement of reasonable certainty." (Id. at pp. 606-
607.) It stated: " 'The law is replete with instances in which a person must, at his peril,
govern his conduct by such nonmathematical standards as "reasonable," "prudent,"
"necessary and proper," "substantial," and the like. Indeed, a wide spectrum of human
activities is regulated by such terms: thus one man may be given a speeding ticket if he
overestimates the "reasonable or prudent" speed to drive his car in the circumstances
(Veh.Code, § 22350), while another may be incarcerated in state prison on a conviction
of wilful homicide if he misjudges the "reasonable" amount of force he may use in
repelling an assault [citation]. As the Supreme Court stated in Go–Bart Importing Co. v.
United States (1931) 282 U.S. 344, 357[, 51 S.Ct. 153, 75 L.Ed. 374], "There is no
formula for the determination of reasonableness." Yet standards of this kind are not
impermissively vague, provided their meaning can be objectively ascertained by
reference to common experiences of mankind.' (People v. Daniels (1969) 71 Cal.2d
1119, 1128-1129 . . . .)" (Id. at p. 606.)
In State of Minnesota ex rel. Pearson v. Probate Court of Ramsey County (1940)
309 U.S. 270 [60 S.Ct. 523], the U.S. Supreme Court rejected a due process vagueness
challenge to Minnesota's sexual psychopath law. (Id. at p. 274.) The phrase
"psychopathic personality" was statutorily defined to mean " 'the existence in any person
15
of such conditions of emotional instability, or impulsiveness of behavior, or lack of
customary standards of good judgment, or failure to appreciate the consequences of his
acts, or a combination of any such conditions, as to render such person irresponsible for
his conduct with respect to sexual matters and thereby dangerous to other persons.' " (Id.
at p. 272.) The Minnesota Supreme Court had determined that this language was
" '. . . intended to include those persons who, by a habitual course of misconduct in sexual
matters, have evidenced an utter lack of power to control their sexual impulses and who,
as a result, are likely to attack or otherwise inflict injury, loss, pain or other evil on the
objects of their uncontrolled and uncontrollable desire. . . .' " (Id. at 273, italics added.)
In deciding the constitutional questions before it, the U.S. Supreme Court took
"the statute as though it read precisely as the highest court of the State has interpreted it.
[Citations.]" (Ibid.) It concluded: "This construction of the statute destroys the
contention that it is too vague and indefinite to constitute valid legislation. There must be
proof of a 'habitual course of misconduct in sexual matters' on the part of the persons
against whom a proceeding under the statute is directed, which has shown 'an utter lack
of power to control their sexual impulses', and hence that they 'are likely to attack or
otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and
uncontrollable desire.' These underlying conditions, calling for evidence of past conduct
pointing to probable consequences, are as susceptible of proof as many of the criteria
constantly applied in prosecutions for crime. [Citations.]" (Id. at p. 274.)
Appellant has failed to persuade us that the definition of an SVP under section
6600, subdivision (a), as construed by the California Supreme Court in Roberge, supra,
29 Cal.4th 979, is unconstitutionally vague.
DISPOSITION
The February 16, 2012 order of commitment is affirmed.
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ELIA, J.
WE CONCUR:
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RUSHING, P. J.
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PREMO, J.
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