Filed 10/29/13 P. v. Aguilar CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F063888
Plaintiff and Respondent,
(Super. Ct. No. FP003637A)
v.
JOSE MANUEL AGUILAR, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Louis M.
Vasquez, Leanne Le Mon, and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
A sexually violent predator (SVP) is defined 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.” (Welf. & Inst.
Code, § 6600, subd. (a)(1).)1 Appellant Jose Manuel Aguilar challenges his commitment
as an SVP. We hold: (1) Where, as in this case, appellant was in lawful custody at the
time the SVP petition was filed, the petition was not rendered moot by a subsequent
parole revocation; (2) To the extent the statements appellant made to mental health
professionals during treatment fell within the dangerous patient exception to the
psychotherapist-patient privilege, their admission was not error; and (3) The current
version of the Sexually Violent Predator Act (SVPA; § 6600 et seq.) does not violate
appellant‟s federal and state equal protection rights. We affirm the judgment.
PROCEDURAL HISTORY
Appellant was born April 29, 1979. On July 12, 2002, when he was 23 years old,
appellant was convicted of committing a lewd or lascivious act on a child under the age
of 14, in violation of Penal Code section 288, subdivision (a). He was sentenced to eight
years in prison.
On March 3, 2009, a 45-day hold was placed on appellant pursuant to
section 6601.3. On April 17, 2009, prior to the hold‟s expiration, the Kern County
District Attorney filed a petition to commit appellant under the SVPA. On May 27, 2009,
a probable cause hearing was held. The trial court found probable cause to believe
appellant was likely to engage in sexually violent predatory criminal behavior upon
release. The matter was set for trial.
1 Further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2.
On January 4, 2010, the trial court granted appellant‟s motion for new SVP
evaluations and a new probable cause hearing pursuant to In re Ronje (2009) 179
Cal.App.4th 509 (Ronje).2 On August 27, 2010, a new hearing was held, probable cause
was again found, and the matter was again set for trial.
On May 13, 2011, appellant‟s parole was revoked. He was given a four-month
term.
On October 26, 2011, following a court trial, appellant was found to be an SVP.
That same day, he was committed to Coalinga State Hospital/Department of Mental
Health (DMH) for an indeterminate term.3
FACTS
I
PROSECUTION EVIDENCE
The testimony of Dr. Michael Selby.
Dr. Michael Selby, a board-certified forensic psychologist and professor of
psychology at California State University, San Luis Obispo, had performed mentally
disordered offender (MDO) and SVP evaluations for a number of years. He had also
performed evaluations for the San Luis Obispo courts with respect to competency and
sanity (NGI).
2 Recently, in Reilly v. Superior Court (2013) 57 Cal.4th 641, the California
Supreme Court held that, when evaluations initially supporting the filing of a
commitment petition are conducted under an assessment protocol later determined to be
an invalid regulation, the petition did not necessarily need to be dismissed. Unless the
SVP shows the invalid assessment protocol materially affected his or her initial
evaluation, “„the question of whether a person is a sexually violent predator should be left
to the trier of fact.‟” (Id. at p. 656.) The high court disapproved Ronje to the extent it
was inconsistent with their holding. (Reilly v. Superior Court, at pp. 646, 652-653.)
3 The Department of Mental Health is now known as the Department of State
Hospitals. To maintain consistency with the contents of the record on appeal, we will
continue to refer to it as DMH.
3.
Selby met with appellant on three occasions. The first interview took place at the
California Men‟s Colony on March 10, 2009, and lasted approximately 90 minutes. The
second and third interviews took place at Coalinga State Hospital on January 11, 2010,
and February 11, 2011. Each of those interviews lasted approximately 45 minutes.
Prior to meeting with appellant the first time, Selby reviewed documentation from
the prison, from DMH, and from appellant‟s medical records. From these documents,
Selby concluded appellant had been convicted of a qualifying offense under the SVPA.
Selby then examined the issue of whether appellant had a diagnosable mental
disorder. Selby considered appellant‟s juvenile and adult criminal history. In 1995,
when appellant was 16, he molested V., a nine-year-old boy for whom appellant‟s mother
babysat. Appellant sodomized V. and forced V. to orally copulate him approximately
eight times over about a five-month period.4 According to V., appellant threatened to
cause him greater injury by sodomizing him more forcibly if V. told anyone. As a result,
appellant was found to have violated Penal Code section 288, subdivision (a). Appellant
spent 120 days in juvenile hall and then was sent to a group home for sex offenders, the
Shiloh Group Home (Shiloh).
Selby reviewed the Shiloh discharge summary, dated November 18, 1996. It
related that appellant admitted, in therapy, to having participated in at least 140 different
sexual offenses against 30 children in the past; to having “urges” that overrode his ability
to control his thinking, emotions, and behavior; and to masturbating two or three times a
day to fantasies of molesting children. It further related Shiloh‟s bus route had to be
changed because appellant was discovered looking at the elementary school children as
the bus passed and reporting that he wanted to molest some of them. Appellant became
angry when the route was changed. Appellant also reported wanting to molest several of
the group home‟s residents. As a result of the statements appellant made at Shiloh,
4 Appellant may have been 15 when he first assaulted V.
4.
investigators interviewed V.‟s four-year-old brother, K., who reported appellant had
sodomized him and forced him to orally copulate appellant. A second victim, P., was
also found. She was appellant‟s next door neighbor, and related that they had sex
between 10 and 20 times when she was 12 to 13 years old and appellant was 15. Charges
were brought against appellant and he was subsequently found to have committed two
counts of violating Penal Code section 288, subdivision (a). Appellant was sent to the
California Youth Authority (CYA).5 He was released from CYA when he was 21.
Following his parole from CYA, appellant went to live with his father, father‟s
girlfriend, and the girlfriend‟s daughter, S. Approximately two years later, in 2002, S.
reported appellant engaged in sexual relations with her against her will for approximately
two years, when she was 12 and 13 years old. The sexual conduct consisted of penile
penetration and oral copulation.
During the March 10, 2009, interview, appellant told Selby that he had eight
victims, and he gave the first names and ages of four of them. Appellant said Ro. was 10
years old, and he fondled her about 10 times; Re. was four or five years old, and he had
oral sex with her twice; Ra. was five years old, and he had oral sex with her several
times; and E. was eight years old. Appellant did not say what kinds of sexual acts
occurred with her. With respect to the documented offenses, appellant said that when the
police accused him of orally copulating and sodomizing V., he admitted doing so. He
also said he had sex with P. twice.
Based on this history, Selby diagnosed appellant with a mental disorder, that of
“pedophilia, both sexes, nonexclusive type.” That disorder, described in the Diagnostic
and Statistical Manual of Mental Disorders (DSM), has the criteria of recurrent sexually
5 CYA is now known variously as the Division of Juvenile Facilities and the
Division of Juvenile Justice. To maintain consistency with the contents of the record on
appeal, we will continue to refer to it as CYA.
5.
arousing fantasies, urges, or behavior associated with prepubescent children (normally 13
years of age or younger), by a person at least 16 years of age, and with a five-year age
differential between perpetrator and victim.
Selby acknowledged he had no information that appellant had acted out sexually
in the more recent years during which he was in custody. Nevertheless, Selby opined
appellant currently continued to have the mental disorder of pedophilia, because “mental
illness doesn‟t go away[; t]here is no cure for any form of mental illness.” He explained
that mental illness is treated with medication, and/or psychotherapy. If adequate
treatment is not provided, the person cannot control his or her symptoms. In the case of
pedophilia, there is no medication; only treatment. Selby explained that the treatment
program at Coalinga State Hospital attempts to provide the individual with skills that will
enable him or her to deal with high-risk situations and not molest again. Insofar as Selby
was aware, appellant never participated in the SVP program offered at Coalinga State
Hospital. Although appellant participated in anger management, substance abuse
treatment, and at least one other program, none of his programs directly addressed sex
offenses or their sexual pathology. In Selby‟s opinion, this was not sufficient treatment.
Without the appropriate treatment, Selby opined, “it must be assumed that [the] mental
illness is not in remission.”
In addition to the diagnosis of pedophilia, Selby gave appellant the diagnosis of
antisocial personality disorder because of the “clear evidence in childhood of significan[t]
behavioral problems,” problems with the law in adulthood, and lack of empathy for his
victims. Selby explained that antisocial personality disorder lowers the ability to control
one‟s pedophilia.
Next, Selby evaluated whether appellant was likely to reoffend in a sexually
violent predatory manner. He considered the likelihood appellant‟s symptoms could be
treated in a less structured setting than Coalinga State Hospital. Selby looked at
appellant‟s level of participation in treatment. He explained that if an individual chose
6.
not to participate in treatment in the hospital, it was unlikely he or she would participate
in treatment once released into the community. Selby opined that appellant was likely to
reoffend because he was not participating in treatment and so his mental illness was not
in remission. Appellant told Selby that he did not believe he had any type of sexual
pathology. Selby found it unlikely appellant would participate if appellant did not
believe he had any sexual problems. In their last interview together, appellant did say he
planned to participate in a sex offender treatment program, but he did not know the name
of the program. Selby found there was a strong likelihood appellant would not follow up
with treatment on his own. Selby found appellant to meet “the legal standard of [a]
serious well-founded risk for committing another sexually violent predatory crime.”
The testimony of Dr. Eric Simon.
Dr. Eric Simon testified to being a board-certified clinical and forensic
psychologist. He had, during his practice, conducted approximately 1,600 MDO
evaluations and about 500 SVP evaluations. Of the 500 SVP evaluations, he found
approximately 50 individuals to meet the criteria of SVP.
Simon met with appellant on three occasions. The first interview, which took
place at the California Men‟s Colony on December 18, 2008, lasted approximately 90
minutes. The second, which took place at Coalinga State Hospital on February 13, 2010,
lasted approximately 30 minutes. The third, which took place at Coalinga State Hospital
on February 14, 2011, lasted approximately 15 minutes. Simon also reviewed appellant‟s
prison central file and his medical file.
Simon found appellant‟s 2002 conviction for committing a lewd or lascivious act
on a child under 14, which arose from his conduct with S., to be a qualifying sex offense.
Simon diagnosed appellant with pedophilia, attracted to both males and females,
nonexclusive (meaning appellant also had a sexual interest in adults). Although
generally, the diagnosis applies to individuals who are 16 years of age or older, an
individual can come within the diagnosis if he or she is considered a “precocious
7.
pedophile.” Such an individual engages in pedophilic behavior with children who are
significantly younger — for example, “a 14 or 15 year old [] who [] sexually molest[s] a
three or five or six year old child.” Simon found it significant appellant had
demonstrated a “pervasive pattern of deviant sexual arousal and interest, fantasies, and
behavior with prepubescent children.” Appellant‟s qualifying offense occurred only a
short time after appellant paroled from CYA. Appellant was 20 years old at the time, and
the victim was 12. Simon found this to demonstrate “a certain degree of compulsivity.”
Simon noted that appellant‟s molestation of S. occurred during a time when appellant
reported that he had numerous available adult sexual partners: a girlfriend with whom he
cohabited, as well as “about 30 adult sexual partners” whom he met through a club at
which he worked. Simon found significant that, when appellant had available adult
female sexual partners, he turned to children.
Simon described appellant‟s conduct with V. and K. as constituting “two more
data points of prepubescent children that he had sexual activity with.” He explained that,
as a result of this conduct, appellant was placed at Shiloh on February 18, 1996, when he
was not quite 17.
Simon found it significant that, according to Shiloh‟s discharge summary,
appellant admitted, during counseling, to having sexually molested over 30 children, with
the molestations involving approximately 140 sexual acts. Shiloh staff indicated
appellant expressed very little remorse or empathy for his victims; appellant admitted
viewing children as objects and that his sexual urges controlled his thinking, actions, and
emotions. Appellant also apparently stated at the time that he had fantasies about raping
his mother and would do so if given the opportunity. Simon noted the 1997 Kern County
juvenile probation officer‟s report indicating that, when appellant was driven on a daily
bus ride, staff discovered he was “fixating” when passing by an elementary school.
Simon understood that appellant was leering out the window, staring at the little children.
Due to appellant‟s behavior, the bus route was changed. Appellant expressed a lot of
8.
anger about the route being changed. He then later admitted he enjoyed driving by and
looking at the young children; it reminded him of his molesting of his victims and he
wanted to molest some of the school children. In therapy, appellant admitted
masturbating two to three times per day while fantasizing about his previous molestation
victims and other young children, and he repeatedly stated that if given the opportunity,
he would reoffend. Simon found such behavior to meet the diagnostic criteria of
pedophilia.
Simon noted also that appellant, during the time he was in Shiloh, repeatedly made
sexual comments about other placement wards and verbalized his desire to engage in sex
acts with them. Appellant was ultimately terminated from Shiloh and sent to CYA.
During the termination process, an investigation revealed appellant had had numerous
acts of sexual intercourse with a 12-year-old neighbor when appellant was approximately
15. That behavior led to a criminal finding.
Appellant explained to Simon that he did not have 30 sex-offense victims, but
rather, staff instructed him to make a list of anybody with whom he had ever had sex.
When Simon asked appellant his number of victims, appellant responded “nine,” and
gave Simon a list of children he said he molested. This list included V., a nine-year-old
boy. Appellant reported that he forced oral copulation and sodomy on V. for “[a]bout a
year” when appellant was 16. Also on the list was K., V.‟s little brother. Although
appellant told Simon that he did not actually molest K.; K. walked in and saw appellant
molesting V. Appellant listed his sister, Re. Appellant said he orally copulated her when
she was four or five and he was 15 or 16. Appellant listed P. Appellant first said he was
15 and she was 12, and it happened for about a year. Appellant then said he was 13 to
15. Appellant‟s behavior against P. resulted in a criminal finding. Appellant listed his
six-year-old cousin, B. Appellant orally copulated her. Appellant was 14 years old and
this went on for about a year. Appellant listed a step-aunt, Ra., who was three or four
years old. He was 14 years old. He orally copulated her five or six times over a six-
9.
month period. Appellant said he tried to sodomize his six-year-old brother, C., when he,
appellant, was 14 years old. Appellant further reported that he also had a sister named
Ro. When he was 13 and she was 11, he grabbed and fondled her “about 10 times.”
Appellant then said this happened during the years he was 13 to 15 years old. Appellant
talked about E., the daughter of his mother‟s friend. Appellant was 13 to 14 years old; E.
was five or six. One day when her mother was over at his mother‟s house and the
mothers were in another room, he touched E.‟s genitals. Appellant talked about J., his
12-year-old cousin; he said he orally copulated her for about three years until he was 15
or 16. As for S., the victim of the qualifying sex offense, appellant said she was 13 or 14
years old (although the probation officer‟s report reflected S. was 12) when the sex acts
began. Appellant said S. kind of looked up to him and developed a crush on him, and he
had sexual intercourse with her on two occasions and made her orally copulate him a few
times over the course of 10 months.
Simon found appellant “demonstrated a rather persuasive pattern of sexual activity
with young children beginning from around the time he was 12 or 13.” In Simon‟s
opinion, the diagnosis of pedophilia currently applied to appellant. He testified that the
“consensus in the field” was that mental illnesses, such as personality disorders and
paraph[i]lias, tend to be chronic, lifelong conditions that do not “extinguish themselves
over time without some major intervention.” Thus, although it had been several years
since appellant molested anyone, Simon concluded appellant was still a pedophile.
Because there were no children in the correctional setting or locked hospital, it would be
“very atypical” to see current signs of the disorder, although one might see possession of
child pornography. Simon had found two prior SVP individuals (out of approximately
50) to have child pornography in their files. The possession of child pornography was
not noted anywhere in appellant‟s file. In their interviews, appellant told Simon that he
did not tend to use pornography much and had never viewed child pornography.
10.
In Simon‟s opinion, appellant had done nothing substantial to address his chronic
disorder of pedophilia. He was housed at Coalinga State Hospital, which had a treatment
program involving a number of phases of intensive treatment focused specifically on the
disorder, but appellant had consistently declined to participate in favor of participating in
what were referred to as “peripheral” groups that address other issues.
Simon next looked at whether, as a result of appellant‟s current diagnosed mental
disorder, appellant would be likely to reoffend in a sexually violent criminal predatory
manner. Simon looked at “the totality of all of the facts,” and also obtained “a baseline.”
Simon used three different actuarial instruments, the Static-99R, the Static 2002 R, and
the Minnesota Sex Offender Screening Tool Revised MnSOST-R), to determine,
generally, whether individuals with histories similar to appellant‟s tended to reoffend.
Such instruments can give a group risk, but cannot predict whether appellant himself will
reoffend.
The Static-99R is commonly used for assessing risk offense with sex offenders. It
has been shown to be of moderate predictive accuracy. Out of the 10 factors, appellant
scored an eight. Individuals with a similar score tend to sexually reoffend within five
years of postrelease at the rate of approximately 24 to 45 percent, and within 10 years of
postrelease at the rate of 40 to 55 percent. With respect to sex offenders in general, 97 to
98 percent have scores lower than eight on this instrument. Since the average sex
offender has a static score of two, appellant‟s risk of reoffense was approximately five
times higher than the average sex offender.
The Static 2002 R is similar to and incorporates some of the same factors as the
Static-99R, and has similarly been found to be a moderate predictor of sex offense
recidivism. The Static 2002 R has 14 factors; appellant scored a 10. Simon explained
this to be a very high score; approximately 99 percent of sex offenders score below 10.
Individuals with a score of 10 recidivate at a rate of 43 to 48 percent within five years,
and at a rate of approximately 54 to 58 percent within 10 years, postrelease.
11.
On the MnSOST-R, appellant originally scored 15; his score dropped to 13 by the
time of his trial because he was older. A score of 13 is considered to be in the very high
range. This instrument uses six-year periods for recidivism estimates: people with a
score of 13 have recidivism rates in the range of 40 to 72 percent within six years
postrelease.
Simon considered appellant‟s personal history of sex offending. Appellant was
not “an incest only offender,” but rather had a history of committing “predatory sex
offenses.” Simon opined that, not only would appellant be likely to commit a new
sexually violent offense, but the future offense “could well be predatory.” Simon was
asked about appellant‟s age at trial: age 32. Simon explained that, at age 32, appellant
had “a lot of years left to potentially reoffend.” Simon also explained that, at age 32,
appellant had not yet “suffered the hormonal changes” men tend to “go through as they
reach the fifth and sixth and seventh decades of life,” nor had he received the “benefit of
the emotional maturation.” When asked what type of crime Simon would expect
appellant to commit if he reoffended, Simon responded that it would be “a pedophilic sex
offense,” meaning, molestation of a child under the age of 12 or 13.
Simon considered appellant‟s failure to participate in the phase treatment program
at Coalinga State Hospital (a program which included a relapse prevention plan). In his
meetings with appellant, appellant never discussed a relapse prevention plan. Appellant
said he was hoping to live in a halfway house group home in Bakersfield with other male
sex offenders, but he did not know the name of the program. He had recently received a
flyer on it and was attempting to obtain more information. Simon did not consider
appellant to have sufficient volitional power to pursue community treatment. Simon also
did not believe appellant would be able to refrain from reoffending unless he was in a
locked facility without access to children.
12.
II
DEFENSE EVIDENCE
The testimony of Dr. Marianne Davis.
Dr. Marianne Davis, a clinical psychologist, conducted approximately 250 SVP
evaluations over a number of years. In December 2008, DMH asked her to evaluate
appellant. To do so, she reviewed his central file, together with his medical and mental
health files, and interviewed him at the California Men‟s Colony.
The documents Davis reviewed contained information on child victims V., K., P.,
and S. Given the girls‟ ages, they could have been pubescent at the time of appellant‟s
sexual contact with them. Davis also took into account information contained in the
Shiloh discharge summary. Davis found appellant to be “quite forthcoming” in her
interview with him; he acknowledged his offending, did not try to minimize what he had
done, and acknowledged having offended against some children about whom Davis knew
nothing, something she thought was “pretty important.”
Davis concluded appellant had committed a qualifying offense. She then
considered a diagnosis of pedophilia. She examined when the offenses took place, the
victims, and appellant‟s “adult trajectory.” She found it significant that all appellant‟s
offenses occurred when he was an adolescent and that he had no history of offending
against prepubescent children after he turned 16, was arrested and “went into the group
home.” Davis found nothing in the records to indicate that appellant had a sustained
enduring interest in sexual activity with children that continued into adulthood.
Davis explained that the DSM requires an individual to be at least 16 years of age
for a diagnosis of pedophilia. With respect to S., Davis opined, based on her knowledge,
training, and experience, that S. likely was pubescent at the time. S. would have been
13.
almost 13 when the sexual conduct with appellant began, and she herself said she was
sexually active with her boyfriend.6
In Davis‟s opinion, appellant engaged in “adolescent limited offending against
children.” She had no data to indicate that appellant had a history as an adult of
“continued interest of sexual activity with children.” Davis did not believe appellant met
the criteria for a diagnosis of pedophilia, even though she took into consideration that he
continued to offend against V. for 10 weeks after turning 16. Because of his offense
against S., she gave him a diagnosis of adult antisocial behavior in her 2008 report, but
did not believe he had exhibited any significant antisocial behaviors in the prior 10 years.
This was not the same thing as antisocial personality disorder, which she did not believe
he had, and it did not change her opinion that he did not fit the SVP criteria.
Davis did a risk assessment with appellant. She did so even though she considered
it superfluous due to appellant not having the requisite mental disorder for an SVP
finding. Appellant first scored a five on the Static-99. With the revised instrument,
because of his age, he scored a six. On the MnSOST-R, appellant scored a seven. Davis
concluded his risk of reoffending was in the moderate range.
Davis explained that not all child molesters are pedophiles. A person may engage
in illegal sexual activity with a prepubescent child out of choice, as opposed to that
activity being a product of a mental disorder that impairs the individual‟s ability to
control his or her behavior. Because she did not believe appellant had the mental
disorder, he would not have persistent, strong urges to engage in sexual activity with
children. Appellant‟s offenses occurred when he was an adolescent, and research shows
that the vast majority of adolescents who offend against children do not do so as adults.
6 Davis was inferring S. was pubescent because she was having sex with someone
else. If S. were prepubescent, this would change Davis‟s diagnosis.
14.
Appellant talked to Davis about his victims, including those for which his offenses
did not result in convictions. Davis found the number of victims “very disturbing,” but
did not see such offenses sustained through adulthood.
The testimony of appellant.
Appellant testified and denied he ever told anyone he had 30 victims.7 He said
that number came from his interviews with the psychologist at Shiloh. Appellant told the
psychologist he had eight victims; the larger number came from questions about the
number of people with whom appellant had had sexual contact. Other than the eight,
appellant‟s sexual partners were his age or older. Appellant denied having sexual contact
with 30 minors. He testified he did not have sexual contact with any minors whom he
had not known for a significant period of time.
When appellant was paroled from CYA, he went to live with his uncle. Around
July or August 2000, he moved from his uncle‟s residence to live with Anna P. He lived
with her until his arrest on May 16, 2002. Anna P. had a seven-year-old daughter and a
13-year-old son. Appellant did not engage in any sexual acts with either of them, despite
being home alone with them at various times. Appellant did not engage in any such
activity with them because he did not have a mental illness and he felt no sexual
attraction to them.
From the time of his release from CYA to his arrest in 2002, appellant was not
attracted to any children under the age of 12. With respect to S., appellant was around
her when he started visiting his father during the time he lived with his uncle. They
started having talks about appellant and his girlfriends, and S. would mention her
boyfriends and what she did with them. S. said she was already having sex with one
boyfriend, and she had a boyfriend close to appellant‟s age. She and appellant started
having a sexual relationship. Although appellant was living with Anna P. and having 15
7 He also denied ever having rape fantasies.
15.
to 20 one-night stands during the time period, he also had a relationship with S., a 12- or
13-year-old girl, because, he said, he was very immature and selfish at the time.
Appellant explained that he was only 21 then. He was 32, had been in prison and the
hospital, and had become more responsible and able to see the full consequences of what
he did, both in terms of himself and in terms of the lives he destroyed. He did not think
what he did when he was 15 or 16 was a sickness; he acted out sexually because of the
things he was going through with family.
Appellant was asked about the school bus incident referred to in the Shiloh report.
He said the vehicle was a van that was used to take the group home residents to their
various schools. Appellant admitted that he was accused of looking at the children as the
van passed an elementary school, but he denied doing so. He stated the route was
changed. He testified that he was very upset about it because it was not true. Appellant
denied having fantasies concerning young children. As for the other residents about
whom there was concern, appellant stated they were 14 or 15 years old. Shiloh did not
have residents under the age of 12.
Appellant admitted sexually victimizing 11 children. He remembered his first
victim was V., and that V. told him no, but he “continued with it anyway.” He did not
recall who his last minor victim was.
In looking back on his life and his interaction with the various minors, appellant
felt disgusted by what he had done. He had considered his plans if he were released. He
considered counseling at Panama Ranch, which is a sex offender halfway house for men.
His attorney had contacted that program on his behalf. Appellant was willing to engage
in counseling even though he did not feel he had a mental illness, because he felt there
were “still core issues that [he] need[ed] to deal with not pertaining to a mental disorder.”
He knew it was not normal for a 13- to 15-year-old “to engage in sexual activity with
minors” and to do so with “family members.”
16.
Appellant had been at the hospital for two years at the time of trial. He had
“Team” every few months and, every time, it was recommended that he participate in the
“phase program.” Appellant acknowledged that every time he had been asked to
participate, he had chosen not to. He did that because he did not believe he had a mental
disorder, he did not want to sign a contract admitting he had a mental disorder, and he
would have to lie and say the Shiloh “discharge papers” and the “probation reports” were
true. He believed those documents contained “a lot of inaccuracies.”
Appellant did not consider it likely that, if released, he would engage in sexual
acts with prepubescent children because, he said, he had “no attraction towards them.”
Also, he did not want to return to prison for a sex offense because such inmates were in
danger of physical harm from other inmates. His conviction was not known to the other
inmates when he was serving his sentence, but he was afraid the information would
become known and he would be harmed.
The testimony of Anna P.
Anna P. testified that she and appellant had lived together for two to three years,
and they had a daughter together. Anna P.‟s daughter was eight or nine when appellant
first moved in, and her son was around 13. It was common for Anna P. to go to work
while appellant remained home with the children. During the time she and appellant
lived together, there was never any indication to suggest appellant was acting
inappropriately with either of Anna P.‟s children. Anna P.‟s daughter, who was 19 at the
time of trial, confirmed that appellant never did anything sexual or inappropriate toward
her.
DISCUSSION
I
REVOCATION OF APPELLANT’S PAROLE
As set out in the procedural history, ante, appellant‟s parole was revoked for four
months after the SVP petition was filed and the post-Ronje probable cause hearing was
17.
held, but before trial.8 Appellant now claims the revocation of his parole mooted the
SVP petition, causing the trial court to lack authority to commit appellant as an SVP
because no timely petition was filed. He is incorrect.
“The overall purposes of the SVPA are to protect the public from a select group of
extremely dangerous offenders and to provide treatment for those people. [Citation.]”
(People v. Carroll (2007) 158 Cal.App.4th 503, 510.) The statutory scheme is designed
to balance the need for public safety against the rights of the offender. (In re Lucas
(2012) 53 Cal.4th 839, 845.) As summarized in People v. Poulsom (2013) 213
Cal.App.4th 501, 516-517,
“The process for determining whether a convicted sex offender
meets the requirements for classification as an SVP … „takes place in
several stages, both administrative and judicial.‟ [Citation.] Generally, the
Department of Corrections and Rehabilitation and the Board of Parole
Hearings screen inmates in the custody of the department who are „serving
a determinate prison sentence or whose parole has been revoked‟ at least
six months before their scheduled date of release from prison. (§ 6601,
subds. (a)(1), (b).) „This process involves review of the inmate‟s
background and criminal record, and employs a “structured screening
instrument” developed in conjunction with the [DMH]. [Citation.] If
officials find the inmate is likely to be an SVP, he is referred to the [DMH]
for a “full evaluation” as to whether he meets the criteria in section 6600.‟
[Citation.]
“When the full evaluation reveals the inmate has suffered the
required qualifying prior convictions of a sexually violent offense against
one or more victims (§ 6600, subds. (a)(1) & (2), (b)) and two licensed
psychologists and/or psychiatrists agree the inmate „has a diagnosed mental
disorder so that he or she is likely to engage in acts of sexual violence
without appropriate treatment and custody‟ (§ 6601, subd. (d)), the DMH
„shall‟ forward a request for a petition for commitment under the [SVPA],
with copies of the evaluation reports and other supporting documents, to the
county in which the alleged SVP was last convicted. (§ 6601, subds. (d),
8 The record on appeal — which, on this issue, consists of appellant‟s prison
chronological history — does not explain how appellant came to be on parole in light of
the pending SVP petition, or why his parole was revoked.
18.
(h).) If the county‟s designated attorney concurs in the request, a petition
for commitment is filed in that county‟s superior court. (§ 6601, subd. (i).)
“Once the commitment petition is filed, the court holds a probable
cause hearing to „determine whether there is probable cause to believe that
the individual named in the petition is likely to engage in sexually violent
predatory criminal behavior upon his or her release.‟ (§ 6602, subd. (a).) If
such probable cause is found, the judge „shall‟ order that a trial be
conducted „to determine whether the person is, by reason of a diagnosed
mental disorder, a danger to the health and safety of others in that the
person is likely to engage in acts of sexual violence upon his or her
release.‟ (Ibid.) The trier of fact must unanimously determine beyond a
reasonable doubt whether the person named in the petition is in fact an
SVP. (§§ 6603, subd. (f), 6604.) Either party may request a trial by jury.
(§ 6603, subds. (a), (b).)
“If the person is determined to be an SVP, he or she shall be
committed to the custody of the DMH for an indeterminate term „for
appropriate treatment and confinement in a secure facility‟ (§ 6604), subject
to annual review to consider whether the person currently meets the
definition of an SVP and whether conditional or unconditional release is in
the person‟s best interest and conditions could be imposed that adequately
protect the community (§ 6605, subd. (a)).”
An SVP petition can only be filed “if the individual was in custody pursuant to his
or her determinate prison term, parole revocation term, or a hold placed pursuant to
Section 6601.3, at the time the petition [was] filed.” (§ 6601, subd. (a)(2).)
Subdivision (a) of section 6601.3 allows the Board of Parole Hearings, upon a showing of
good cause, to order a person referred to DMH to remain in custody for up to 45 days
beyond the person‟s scheduled release date for full evaluation.
Appellant does not dispute that he was in lawful custody at the time the SVP
petition was filed. His argument is that, once his parole was revoked, the entire process
— including initial screening, referral, and evaluation — had to start over. Failure to do
so, he argues, rendered the petition invalid.
We are not cited to any authority directly on point, and our own research has
disclosed none. In Brown v. Superior Court (2013) 213 Cal.App.4th 61, 69, which was
19.
filed after briefing was completed in the present case, the appellate court remarked:
“Once Brown was returned to custody for his parole revocation sentence, the SVPA
screening procedures under section 6601, subdivisions (a) and (c) were again triggered.”
The issue in that case, however, was not whether Brown‟s parole revocation required that
the SVP procedures start anew, but whether, at the time the second (and relevant) SVP
petition was filed, Brown was lawfully in custody pursuant to a 45-day hold under
section 6601.3. (Brown v. Superior Court, at pp. 65, 70.) Cases are not, of course,
authority for propositions not considered. (People v. Alvarez (2002) 27 Cal.4th 1161,
1176.)
Appellant relies on Turner v. Superior Court (2003) 105 Cal.App.4th 1046
(Turner) for the notion that a new SVP proceeding must be initiated following a parole
revocation. Turner was originally adjudged an SVP and committed to a state hospital for
treatment for the then-statutorily mandated two-year term. (Id. at p. 1051.) Toward the
end of that term, the district attorney filed a new petition seeking to recommit Turner for
another two years. At the conclusion of the trial on the recommitment petition, the jury
found in Turner‟s favor, and so he was released from custody the next day and placed on
parole. (Id. at pp. 1051-1052.) Turner subsequently violated the terms of his parole, his
parole was revoked, and he was returned to custody for six months. During that six-
month period, the district attorney filed a petition seeking to again commit Turner under
the SVPA. (Turner, at p. 1052.) Turner moved to dismiss the petition on the ground the
prior jury finding that he was not an SVP was binding, particularly because the
supporting psychological reports contained no new information other than the curfew
violation that resulted in the revocation of Turner‟s parole. The trial court rejected
Turner‟s arguments, found sufficient evidence of probable cause despite the earlier jury
finding, and set the matter for trial. (Id. at pp. 1052-1053.)
Turner petitioned for a writ of mandate in the Court of Appeal. (Turner, supra,
105 Cal.App.4th at p. 1053.) The appellate court held a petition could be filed when a
20.
person had been returned to custody on a parole revocation, without that person having
been convicted and sentenced on a new crime. (Id. at p. 1056.) The court concluded,
however, that collateral estoppel principles barred the district attorney from relitigating
the specific finding reached by the jury in the prior SVP proceeding (id. at pp. 1058-
1059); hence, to establish probable cause in the subsequent proceeding, the district
attorney was required to present evidence of a change of circumstances (id. at p. 1060).
Appellant contends Turner holds that parole revocation restarts the SVP process.
This overstates the matter. We are also unconvinced by appellant‟s claimed reliance “on
the need for fairness and reciprocity,” and his assertion “the procedures involved in the
SVP process are subject to a notion of reciprocal fairness .…”
As support for this proposition, appellant points to Bagration v. Superior Court
(2003) 110 Cal.App.4th 1677, in which the appellate court held that, despite the fact the
SVPA is civil rather than criminal (Bagration v. Superior Court, at p. 1683), an alleged
SVP could not avail him- or herself of the summary judgment procedures contained in
Code of Civil Procedure section 437c. The Court of Appeal found that statute to be
“inherently inconsistent with the [SVPA] because the mutual summary procedures set
forth in Code of Civil Procedure section 437c, if applied to [SVPA] proceedings, would
allow an individual to be adjudicated a sexually violent predator without benefit of the
required beyond a reasonable doubt burden of proof and, in the case of a jury trial, a
unanimous verdict-impairing the requirements that are at the heart of the statute‟s due
process protections.” (Bagration v. Superior Court, supra, at pp. 1688-1689.) The
appellate court did not directly address Bagration‟s claim that mutuality is not required in
SVPA probable cause hearings, but rather determined its mission was to discern
legislative intent. (Bagration v. Superior Court, at p. 1689.) Because the statutory
summary judgment procedures could not be incorporated into SVPA proceedings without
a material alteration, it concluded, the Legislature could not have intended their inclusion.
(Bagration v. Superior Court, at p. 1689; see also Murillo v. Superior Court (2006) 143
21.
Cal.App.4th 730, 740 [district attorney cannot propound requests for admissions in SVP
proceedings, because requiring alleged SVP to respond thereto would violate due process
rights of proof beyond a reasonable doubt, a jury, and a unanimous verdict].)
We do not believe the foregoing cases stand for the proposition that, under the
circumstances here, the purposes of the SVPA would be served by invalidating the
petition.
The purpose of the initial screening and evaluation “is not to identify SVP‟s but,
rather, to screen out those who are not SVP‟s. „The Legislature has imposed procedural
safeguards to prevent meritless petitions from reaching trial. “[T]he requirement for
evaluations is not one affecting disposition of the merits; rather, it is a collateral
procedural condition plainly designed to ensure that SVP proceedings are initiated only
when there is a substantial factual basis for doing so.”‟ [Citation.] The legal
determination that a particular person is an SVP is made during the subsequent judicial
proceedings, rather than during the screening process. [Citation.]” (People v. Medina
(2009) 171 Cal.App.4th 805, 814; accord, Davenport v. Superior Court (2012) 202
Cal.App.4th 665, 669, disapproved on another ground in Reilly v. Superior Court, supra,
57 Cal.4th at p. 655 & fn. 2.)
As appellant concedes, up to the time of his arrest and parole revocation,
“everything was fine in the sense that the district attorney was authorized to seek
appellant‟s commitment [as an SVP].” In light of the purpose of the SVPA‟s screening
and evaluation procedures, “once the [SVPA] has been satisfied by sufficient expert
opinion that the subject person meets the [SVPA‟s] criteria [and probable cause has been
found to believe the individual is likely to engage in sexually violent predatory criminal
behavior upon his or her release], little in the way of justice would be gained by
permitting proceedings to be derailed by the possibly fortuitous timing” of a parole
revocation. (Gray v. Superior Court (2002) 95 Cal.App.4th 322, 329.)
22.
Several cases support our conclusion, albeit indirectly. In People v. Wakefield
(2000) 81 Cal.App.4th 893, Wakefield was adjudged an SVP under petitions filed in
March 1997 and October 1997.9 In part, he contended a commitment based on the
October 1997 petition was invalid because the psychological evaluations, having been
performed in February 1997, prior to the March 1997 petition, were not current. He also
complained he was not screened or evaluated prior to the filing of the October 1997
petition. (Id. at p. 899.) The Court of Appeal rejected Wakefield‟s claim, observing
(1) Wakefield did not raise the issue in the trial court; (2) the psychologists who
evaluated Wakefield testified at the probable cause hearing that their diagnoses were
current and unchanged from their earlier evaluations; and (3) even if a new screening and
evaluations should have been conducted prior to the October 1997 petition, no reversal
would be warranted because the evaluations were sufficient for the March 1997 petition,
and the commitment was based on both petitions. (Id. at p. 900.)
In the present case, appellant did not raise the lack of postrevocation screening and
evaluations in the trial court. Moreover, the screening and evaluations that were
performed were clearly sufficient for the petition that had not yet been decided on the
merits, and appellant was free at trial to question the experts on whether their diagnoses
were current.10
In Davenport v. Superior Court, supra, 202 Cal.App.4th 665, the initial
evaluations concluded Davenport met the criteria for SVP commitment, the district
9 The only difference in the petitions was Wakefield‟s place of incarceration.
(People v. Wakefield, supra, 81 Cal.App.4th at p. 896.)
10 Appellant notes that he was in his 20‟s at the time of his evaluations, whereas he
would have been in his 30‟s had new evaluations been performed, and the likelihood of
reoffending declines with age. First, appellant, having been born in 1979, was 29 years
old when he was first evaluated by Selby, Simon, and Davis. Second, any effect changes
in appellant‟s age might have had on the likelihood he would reoffend was brought out at
trial.
23.
attorney filed a commitment petition, and the trial court found probable cause to believe
Davenport was an SVP. After the probable cause hearing, but prior to trial, Ronje
invalidated the standardized assessment protocol. As a result, the trial court ordered two
new evaluations of Davenport using the new assessment protocol. This time, the
evaluators disagreed whether Davenport met the SVP criteria. The trial court appointed
two new evaluators; the result was another split of opinion. Davenport then moved to
dismiss the petition on the ground it was not supported by two valid concurring mental
health evaluations. The trial court denied the motion and set the matter for a new
probable cause hearing. Davenport then petitioned the Court of Appeal for a writ of
mandate. (Davenport v. Superior Court, at pp. 667-668.)
The Court of Appeal refused to order dismissal of the petition. It observed: “The
initial evaluations in Ronje and in the instant case had served their purpose by the time
the Director of the DMH forwarded the request to file a commitment petition.… After
the petition has been filed, the People‟s burden is not to prove two evaluations exist, but
to prove the alleged SVP is a person likely to engage in sexually violent predatory
criminal behavior. [Citation.] That burden may be carried by presenting the testimony of
one or more experts at trial on behalf of the People. [Citation.]” (Davenport v. Superior
Court, supra, 202 Cal.App.4th at p. 671.) The court quoted with approval the statement
in Gray v. Superior Court, supra, 95 Cal.App.4th at page 329, that “„once a petition has
been properly filed and the court has obtained jurisdiction, the question of whether a
person is a sexually violent predator should be left to the trier of fact unless the
prosecuting attorney is satisfied that proceedings should be abandoned.‟ [Citation.]”
(Davenport v. Superior Court, at p. 672.) The court concluded: “Given the substantial
risk of serious harm that could result from releasing a potential SVP to the public,
dismissal is a drastic step. SVP evaluations may change over time for reasons other than
that an individual no longer qualifies as an SVP.… Given the procedural safeguards in
place — a probable cause hearing, a jury trial, a unanimous verdict — there is no need to
24.
dismiss the commitment petition and start the SVP evaluation process from the beginning
in this case.” (Id. at p. 673.)
In People v. Poulsom, supra, 213 Cal.App.4th 501, Poulsom waited until after a
trial at which the jury found him to be an SVP, to challenge the earlier probable cause
determination. (Id. at p. 520.) The Court of Appeal stated:
“Courts typically treat a probable cause hearing under the [SVPA]
like a preliminary hearing in criminal cases. [Citation.] „[I]rregularities in
the preliminary examination procedures which are not jurisdictional in the
fundamental sense shall be reviewed under the appropriate standard of
prejudicial error and shall require a reversal only if defendant can show that
he was deprived of a fair trial or otherwise suffered prejudice as a result of
the error at the preliminary examination.‟ [Citation.] Thus, irregularities in
the probable cause hearing under the [SVPA] are subject to harmless error
review as well.
“We will not reverse a judgment or order based on an alleged error
during the probable cause hearing unless the appellant makes a showing
that he was denied a fair trial or otherwise suffered prejudice. [Citations.]”
(People v. Poulsom, supra, 213 Cal.App.4th at p. 520.)
The court then turned to the question of prejudice. It stated:
“The only prejudice Poulsom could argue that resulted from a
finding of probable cause based on insufficient evidence is if the jury found
Poulsom to be an SVP on the same insufficient evidence. However, certain
safeguards make such a result unlikely.… [T]he court will only find
probable cause if it determines „a reasonable person could harbor a strong
suspicion of the defendant‟s guilt .…‟ [Citation.] Once the case proceeds
to trial, however, the burden of proof is on the People to show that the
person is an SVP „beyond a reasonable doubt.‟ [Citation.] Therefore, the
increased burden of proof protects a defendant from a true finding based on
evidence that would be insufficient to support a probable cause finding.
Moreover, if a defendant believes the evidence supporting the jury‟s true
finding is insufficient, he can raise the issue on appeal. Here, this is
precisely what Poulsom did, essentially rendering his probable cause
challenge moot.” (People v. Poulsom, supra, 213 Cal.App.4th at pp. 521-
522.)
Here, appellant does not challenge the sufficiency of the evidence presented at
trial to support the trier of fact‟s finding that appellant is an SVP. That finding
25.
necessarily was based on appellant‟s current condition, i.e., current as of the time of trial.
(See, e.g., Moore v. Superior Court (2010) 50 Cal.4th 802, 815, 817; People v. Superior
Court (Ghilotti) (2002) 27 Cal.4th 888, 922; Hubbart v. Superior Court (1999) 19 Cal.4th
1138, 1145.) The absence of rescreening or reevaluation to determine if he might be an
SVP did not prejudice appellant.11
In People v. Landau (2013) 214 Cal.App.4th 1, the Court of Appeal assumed
Landau was evaluated under the illegal pre-Ronje regulations, but nevertheless rejected
his claim he was denied due process. (People v. Landau, at p. 16.) The court explained:
“When a criminal defendant claims a procedural irregularity
occurred prior to a determination of probable cause, the defendant must
demonstrate prejudice to prevail on the issue in a postconviction setting
unless the claimed error denied the court jurisdiction „in the fundamental
sense.‟ [Citation.] The same is true in SVP proceedings when it is claimed
that an underground regulation was used in the prisoner‟s initial DMH
evaluation. [Citation.]
“A lack of fundamental jurisdiction „“means an entire absence of
power to hear or determine the case, an absence of authority over the
subject matter or the parties.” [Citation.]‟ [Citation.] The failure to use
properly enacted regulations in the initial evaluation of a suspected SVP
does not result in a lack of fundamental jurisdiction, depriving the court of
jurisdiction over the subject matter or appellant. [Citations.]
“Appellant was provided a full and fair trial on the petition.… After
hearing all the evidence, the jury concluded beyond a reasonable doubt
appellant qualified for commitment as an SVP. Appellant does not contend
the evidence was insufficient to support that finding. Accordingly, we
conclude appellant has failed to show he was prejudiced by the initial
evaluators‟ use of unlawful underground regulations.” (People v. Landau,
supra, 214 Cal.App.4th at pp. 16-17.)
11 It also disposes of appellant‟s complaint that treating the petition as still valid
following parole revocation would mean he would not need to be reevaluated as an SVP
if he were convicted of a new crime and sent to prison for 20 years while the petition was
pending.
26.
We conclude that where, as here, a valid commitment petition was pending trial at
the time parole was revoked, failure to rescreen or reevaluate the alleged SVP does not
constitute a lack of jurisdiction in the fundamental sense. We further conclude that
where, again as here, the alleged SVP was provided a full and fair trial on the petition,
and substantial evidence supports the trier of fact‟s determination that the individual is
currently an SVP, the lack of rescreening or reevaluation does not, without more, result in
prejudice.12
II
PSYCHOTHERAPIST-PATIENT PRIVILEGE
Appellant moved, in limine, to exclude as privileged, statements he made to
mental health professionals during treatment. The People opposed the motion. After
argument, the trial court ruled that statements made during the SVP screening and
evaluation process were not privileged. Relying on People v. Martinez (2001) 88
Cal.App.4th 465 and People v. Lakey (1980) 102 Cal.App.3d 962, it further ruled that
statements made at Shiloh — even those to treating psychotherapists — were admissible.
Appellant now contends the trial court erred by ruling that none of the Shiloh
statements were privileged; and by failing to hold an Evidence Code section 402 hearing
to determine exactly which statements were privileged, and then ordering the
prosecution‟s experts not to consider those statements in forming their opinions and not
12 Because we have addressed appellant‟s claim on the merits, his alternative
argument that any forfeiture of the issue resulted from ineffective assistance of counsel is
moot. To the extent appellant might be understood to contend that trial counsel was
ineffective for failing to raise the lack of rescreening or reevaluation prior to trial, we
reject the claim. Appellant has failed to establish deficient performance and prejudice.
(People v. Cunningham (2001) 25 Cal.4th 926, 1003; People v. Pope (1979) 23 Cal.3d
412, 425; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
27.
to testify to matters related to or based upon those statements.13 Appellant also says the
statements were protected by his constitutional right to privacy. The Attorney General
says the statements were not privileged because they fell within the “dangerous patient”
exception to the psychotherapist-patient privilege.14 The Attorney General further
contends that if error occurred, it was harmless.
Subject to various exceptions, Evidence Code section 1014 establishes a privilege
against disclosure for “confidential communication[s] between patient and
psychotherapist.” Such a communication “means information, including information
obtained by an examination of the patient, transmitted between a patient and his
psychotherapist in the course of that relationship and in confidence by a means which, so
far as the patient is aware, discloses the information to no third persons other than those
who are present to further the interest of the patient in the consultation, or those to whom
disclosure is reasonably necessary for the transmission of the information or the
accomplishment of the purpose for which the psychotherapist is consulted, and includes a
diagnosis made and the advice given by the psychotherapist in the course of that
relationship.” (Id., § 1012.)
“[A] person seeking to invoke the psychotherapist-patient privilege has the initial
burden of establishing the basic facts to show that the privilege is presumptively
applicable — in general, that the person consulted constitutes a „psychotherapist‟ and that
the communication in question constitutes a „“confidential communication between
13 Appellant does not challenge the trial court‟s ruling with respect to statements
made to the SVP evaluators.
14 Initially, the Attorney General also contended the statements were not privileged
because they were contained within supporting documents relied on by the SVP
evaluators. In response to our request for supplemental briefing concerning the effect of
People v. Gonzales (2013) 56 Cal.4th 353 (Gonzales) on appellant‟s contentions,
however, the Attorney General conceded Gonzales “appears” to “undercut[]” this
argument.
28.
patient and psychotherapist,”‟ within the meaning of the privilege. [Citations.] Once the
patient has met that burden, the burden shifts to the party who contends that the privilege
is inapplicable because one or more of the statutory exceptions applies. [Citation.]”
(Gonzales, supra, 56 Cal.4th at p. 372.)
It appears appellant has carried his initial burden with respect to actual
communications that were contained in the Shiloh discharge summary.15 However, we
believe there is merit in the Attorney General‟s claim that at least some of appellant‟s
statements that were related in the discharge summary fell within the so-called dangerous
patient exception to the privilege. In this regard, Evidence Code section 1024 provides:
“There is no privilege under this article if the psychotherapist has reasonable cause to
believe that the patient is in such mental or emotional condition as to be dangerous to
himself or to the person or property of another and that disclosure of the communication
is necessary to prevent the threatened danger.” Here, some of appellant‟s statements
clearly were disclosed near the time they were made, resulting in further investigation,
the discovery of additional victims, further prosecution of appellant, and his termination
from the group home.
“The „dangerous patient‟ exception to the [psychotherapist-patient] privilege is
narrow in the sense it only permits disclosure of those communications which triggered
the psychotherapist‟s conclusion that disclosure of a communication was needed to
prevent harm. [Citation.] However, Evidence Code section 1024 creates an exception to
the privilege rather than anything akin to a waiver of the privilege. [Citation.] Hence
when the factual predicate of the exception exists, an excepted communication may be
used in any further proceeding, even though the threat identified by the psychotherapist
no longer exists. [Citations.]” (San Diego Trolley, Inc. v. Superior Court (2001) 87
15 Nothing in the record suggests there was any disclosure of Shiloh or other
counseling or treatment records beyond the discharge summary itself.
29.
Cal.App.4th 1083, 1091-1092.) This includes SVPA proceedings. (See Gonzales, supra,
56 Cal.4th at pp. 380-381.)
In any event, if error occurred, it was harmless.16 “[A]ssum[ing], without
deciding, that in at least some circumstances the federal Constitution protects an
individual from governmentally compelled disclosure of confidential communications
between the individual and his or her psychotherapist or the use of information obtained
by such compelled disclosure in a court proceeding” (Gonzales, supra, 56 Cal.4th at
p. 385), appellant‟s federal constitutional right to privacy has not been violated here.
Although appellant was not receiving therapy as a condition of parole, as was the
defendant in Gonzales (see 56 Cal.4th at p. 386), he was in state custody and receiving
mandatory counseling as a result of his wardship status. In contrast to the limited
intrusion upon appellant‟s privacy interests occasioned by disclosure of the discharge
summary, is “the substantial state interest that supports the disclosure and use of evidence
relating to [a] defendant‟s mental state in an SVPA proceeding .…” (Id. at p. 388; see
People v. Stritzinger (1983) 34 Cal.3d 505, 511; In re Lifschutz (1970) 2 Cal.3d 415, 432;
People v. Martinez, supra, 88 Cal.App.4th at pp. 478-480.) Accordingly, any error that
occurred in the present SVPA proceeding by virtue of disclosure of appellant‟s
statements in the discharge summary “constituted only state law error, and did not rise to
the level of federal constitutional error. It follows that the applicable prejudicial error
standard is the state law prejudicial error standard set forth in People v. Watson [(1956)]
16 Since we reach this conclusion, we need not decide whether appellant‟s statements
contained in the discharge summary may have been disclosable to the SVP evaluators —
and, hence, admissible — under the provisions of section 6603, subdivision (c)(1) and
Albertson v. Superior Court (2001) 25 Cal.4th 796, 804-807. In Gonzales, supra, 56
Cal.4th at pages 379-380, footnote 11, the California Supreme Court found it “not
apparent” whether the Legislature intended the updated evaluations, for which that statute
provides, “to include review of the records of all psychotherapy sessions in which a
defendant has participated in the past when not subject to [SVP] confinement.” (Italics
added.)
30.
46 Cal.2d 818[, 836],” i.e., “whether it is reasonably probable that a result more favorable
to [appellant] would have been reached in the absence of the error.” (Gonzales, supra, 56
Cal.4th at p. 388.)
In the present case, not everything contained in the discharge summary was
necessarily privileged. Much of the information the SVP evaluators considered was
contained in reports of various probation and police officers; appellant does not claim
these individuals were “psychotherapists” for purposes of the psychotherapist-patient
privilege. (See Evid. Code, § 1010.) The fact that additional victims were discovered,
and charges brought, as a result of appellant‟s statements at the group home was not
privileged. Significantly, although the SVP evaluators (including the evaluator who
testified on appellant‟s behalf at trial) did consider the statements appellant made while at
Shiloh, appellant admitted to Selby that he had eight victims, to Simon that he had nine
victims, and in his trial testimony that he had 11 victims. The evaluators relied heavily
on what appellant self-reported, as well as the circumstances of his offenses. We see no
reasonable probability lowering the number of victims from 30 to between eight and 11,
or excluding altogether appellant‟s statements, would have altered Selby‟s or Simon‟s
conclusions, or, more importantly, the trier of fact‟s determination appellant was an
SVP.17
III
CONSTITUTIONALITY OF SVPA
Appellant contends the current version of the SVPA violates the ex post facto and
double jeopardy provisions of the federal and state Constitutions, as well as his rights to
due process and equal protection of law. He concedes the California Supreme Court has
17 Assuming the trial court abused its discretion by failing to hold an Evidence Code
section 402 hearing to determine which, if any, statements were admissible (see People v.
Williams (1997) 16 Cal.4th 153, 196-197), the error similarly was harmless.
31.
ruled against him on his due process, ex post facto, and double jeopardy claims (People v.
McKee (2010) 47 Cal.4th 1172 (McKee I), and that we are thus required to reject these
claims (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).18 He
further concedes that upon remand in McKee I, the Court of Appeal in People v. McKee
(2012) 207 Cal.App.4th 1325 (McKee II) ruled against his position on the equal
protection issue. He says, however, that McKee II was wrongly decided and so should
not be followed.
In McKee I, the California Supreme Court observed that under the SVPA, as
amended by Proposition 83 (“The Sexual Predator Punishment and Control Act:
Jessica‟s Law”) effective November 8, 2006 (the version under which appellant was
committed), SVP‟s receive indeterminate commitments and, generally speaking, bear the
burden of proving they should be released, while MDO‟s are committed for one year and
thereafter have the right to be released unless the People prove beyond a reasonable doubt
that the person should be recommitted for another year. (McKee I, supra, 47 Cal.4th at
pp. 1186-1187, 1202.) The Supreme Court found that SVP‟s and MDO‟s are similarly
situated for purposes of determining whether the fact one class bears a substantially
greater burden in obtaining release from commitment than the other violates equal
protection. (Id. at p. 1203.) The court stated: “Because MDO‟s and SVP‟s have the
same interest at stake — the loss of liberty through involuntary civil commitment — it
must be the case that when society varies the standard and burden of proof for SVP‟s in
the manner in which Proposition 83 did, it does so because of the belief that the risks
18 In reality, although McKee I rejected the due process and ex post facto arguments
made by appellant (McKee I, supra, 47 Cal.4th at pp. 1193, 1195), the case did not
directly address a claim the SVPA violates double jeopardy principles. It did, however,
find the SVPA not punitive. (McKee I, at p. 1195; see also Hubbart v. Superior Court,
supra, 19 Cal.4th at p. 1175.) In light of this determination, we agree with those cases
that have rejected double jeopardy contentions. (E.g., People v. McDonald (2013) 214
Cal.App.4th 1367, 1383; People v. Landau, supra, 214 Cal.App.4th at pp. 44-45.)
32.
involved with erroneously freeing SVP‟s from their commitment are significantly greater
than the risks involved with freeing MDO‟s. [Citation.] A substantial question is raised
about the basis for this belief.” (Id. at p. 1204, fn. omitted.) The court did not hold, as a
matter of law, that there was no justification for the different treatment, but rather
remanded the matter to give the People the opportunity to demonstrate a constitutional
justification for the disparate treatment of SVP‟s and MDO‟s. (Id. at pp. 1207-1209.) It
emphasized “that different classes of individuals civilly committed need not be treated
identically” (id. at p. 1210), and that “mere disagreement among experts will not suffice
to overturn the Proposition 83 amendments. The trial court must determine whether the
legislative distinctions in classes of persons subject to civil commitment are reasonable
and factually based — not whether they are incontrovertible or uncontroversial” (id. at
pp. 1210-1211).
Upon remand, the trial court held a 21-day evidentiary hearing and concluded the
People had met their burden of justifying the disparate treatment of SVP‟s. (McKee II,
supra, 207 Cal.App.4th at p. 1330.) Division One of the Fourth District Court of Appeal
affirmed, concluding “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 .…” (Id. at pp. 1330-1331.)
The appellate court set out the strict scrutiny standard applicable to this type of
equal protection claim, observed that the trial court employed that standard in holding the
evidentiary hearing, and noted that the trial court, in its 35-page statement of decision,
found the People had met their burden of establishing, by a preponderance of the
evidence, that the disparate treatment of SVP‟s was based on a reasonable perception
they posed greater and unique dangers compared to MDO‟s. (McKee II, supra, 207
Cal.App.4th at pp. 1332, 1335.) It then explained:
“McKee asserts, and we agree, that we review de novo the trial
court‟s determination whether the [SVPA], as amended by Proposition 83,
33.
violates his equal protection rights. We independently determine whether
the People presented substantial, factual evidence to support a reasonable
perception that SVP‟s pose a unique and/or greater danger to society than
do MDO‟s …, thereby justifying the disparate treatment of SVP‟s under the
[SVPA]. Although the trial court heard the testimony of many witnesses
and received in evidence many exhibits, the instant constitutional question
involved mixed questions of law and fact that are predominantly legal, if
not purely legal questions, which are subject to de novo review.
[Citations.] Furthermore, because in this case the trial court presumably
did not decide any disputed historical facts, but determined only whether
the People presented sufficient evidence to support a reasonable perception
that SVP‟s pose a greater danger to society, we are in as good a position as
the trial court to make that determination. Therefore, we apply an
independent standard in reviewing the trial court‟s order rejecting McKee‟s
equal protection claim.
“In independently reviewing the evidence admitted at the remand
hearing, we must determine whether the People presented substantial
evidence to support a reasonable inference or perception that the [SVPA‟s]
disparate treatment of SVP‟s is necessary to further compelling state
interests. [Citations.] … „[W]hen a constitutional right, such as the right to
liberty from involuntary confinement, is at stake, the usual judicial
deference to legislative findings gives way to an exercise of independent
judgment of the facts to ascertain whether the legislative body “„has drawn
reasonable inferences based on substantial evidence.‟”‟ (McKee [I, supra,
47 Cal.4th] at p. 1206, italics added.) For evidence to be „substantial,‟ it
cannot be just „any‟ evidence, but must be of ponderable legal significance,
reasonable, credible, and of solid value. [Citation.] Furthermore, our
power begins and ends with the determination whether there is substantial
evidence, contradicted or uncontradicted, to support the legislative
determination, and when two or more inferences can reasonably be deduced
from the evidence, we are without power to substitute our deductions for
those of the electorate or other legislative body. [Citation.]” (McKee II,
supra, 207 Cal.App.4th at pp. 1338-1339, fn. omitted.)
The Court of Appeal proceeded to find the People had presented evidence
(1) “showing the inherent nature of the SVP‟s mental disorder makes recidivism
significantly more likely for SVP‟s as a class than for MDO‟s” (McKee II, supra, 207
Cal.App.4th at p. 1340); (2) “that the victims of sex offenses suffer unique and, in
general, greater trauma than victims of nonsex offenses” (id. at p. 1342); and
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(3) “showing SVP‟s are significantly different from MDO‟s … diagnostically and in
treatment” (id. at p. 1344).
The appellate court also rejected the defendant‟s argument the SVPA was
unconstitutional unless it adopted the least restrictive means available to further the
state‟s compelling interests. (McKee II, supra, 207 Cal.App.4th at pp. 1348-1349.) The
court reviewed the pertinent authorities — including McKee I — and concluded: “[I]n
strict scrutiny cases, the government must show both a compelling state interest justifying
the disparate treatment and that the disparate treatment is necessary to further that
compelling state interest. [Citations.] We are unpersuaded the electorate that passed
Proposition 83 in 2006 was required to adopt the least restrictive means available (e.g., a
two-year or other determinate term of civil commitment) in disparately treating SVP‟s
and furthering the compelling state interests of public safety and humane treatment of the
mentally disordered.” (McKee II, at p. 1349.)
The California Supreme Court denied review of McKee II on October 10, 2012
(S204503).
Appellant now says McKee II was wrongly decided because (1) the McKee II
court did not understand how to apply a strict scrutiny equal protection analysis, and
(2) under the facts presented in the McKee II opinion, the court reached the wrong
conclusion with respect to its equal protection analysis. Appellant further urges us to
instruct the trial court in the present case to conduct its own hearing and permit appellant
the opportunity to demonstrate why his equal protection rights have been violated even if
McKee‟s were not.19
19 Appellant‟s unopposed motion for judicial notice of the trial court‟s statement of
decision in McKee II is granted. (Evid. Code, § 452, subd. (d); Cal. Rules of Court,
rule 8.252.) To the extent appellant seeks judicial notice of the entire trial court record in
McKee II, his motion is denied.
35.
Every published opinion to consider the issue has concluded the current version of
the SVPA passes constitutional muster under the strict scrutiny test, and has found
McKee II persuasive. (People v. Nguyen (2013) 218 Cal.App.4th 1363, 1374-1378
[Fourth Dist. Court of Appeal, Div. 2]; People v. McDonald, supra, 214 Cal.App.4th at
pp. 1371, 1376-1382 [Fourth Dist. Court of Appeal, Div. 3]20; People v. Landau, supra,
214 Cal.App.4th at pp. 47-48 [Fourth Dist. Court of Appeal, Div. 3]; People v. McCloud
(2013) 213 Cal.App.4th 1076, 1078-1079, 1085-1086 [First Dist. Court of Appeal,
Div. 2]; People v. McKnight (2012) 212 Cal.App.4th 860, 862-864 [First Dist. Court of
Appeal, Div. 3].) We agree. Accordingly, we reject appellant‟s claim the current version
of the SVPA violates his federal and state equal protection rights.21
At oral argument, counsel for appellant sought to have us consider, in the context
of his equal protection claim, an amendment to the SVP law that will take effect on
January 1, 2014. We decline to do so. We are concerned with the constitutionality of the
SVPA as it existed when appellant was adjudged an SVP, not the statutory scheme as it
may exist in the future or a provision that may or may not be applied to appellant.
20 McDonald expressly found the equal protection challenge was to be resolved on a
classwide basis, rather than affording each potential SVP the right to present his or her
own evidence on the matter. (People v. McDonald, supra, 214 Cal.4th at pp. 1377-1378.)
The court further rejected the arguments the Court of Appeal in McKee II failed to
conduct the required de novo review (People v. McDonald, at pp. 1378-1379), did not
apply a true strict scrutiny standard (id. at pp. 1379-1380), and incorrectly assessed the
evidence (id. at pp. 1380-1382).
21 We specifically reject the following claim made in appellant‟s reply brief: “There
are three elements that are under attack in this equal protection challenge. First, the
indeterminate commitment; second, the shifting of the burden of proof at the …
section 6608 proceeding; and, third, the elimination of the right to a jury trial at the
[s]ection 6608 hearing. In order for the California SVP Law to withstand equal
protection strict scrutiny analysis, each of these three elements must separately be found
to be necessary to serve a compelling governmental interest.”
Appellant cites no authority for this proposition. Moreover, as we previously
stated, quoting McKee II, “We are unpersuaded the electorate that passed Proposition 83
… was required to adopt the least restrictive means available … in disparately treating
SVP‟s and furthering the compelling state interests of public safety and humane treatment
36.
DISPOSITION
The judgment is affirmed.
Appellant‟s motion for judicial notice of the trial court‟s statement of decision in
McKee II is granted. To the extent appellant seeks judicial notice of the entire trial court
record in McKee II, his motion is denied.
_____________________
DETJEN, J.
WE CONCUR:
_____________________
WISEMAN, Acting P.J.
_____________________
PEÑA, J.
of the mentally disordered.” (McKee II, supra, 207 Cal.App.4th at p. 1349; accord,
People v. McDonald, supra, 214 Cal.App.4th at p. 1380.)
37.