People v. Butler

• Decision Date: 07 December 1998
• Docket Number: No. H017510,H017510
• Citation: 80 Cal.Rptr.2d 357,68 Cal.App.4th 421
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 8985, 98 Daily Journal D.A.R. 12,429 The PEOPLE, Plaintiff and Respondent, v. Allen Douglas BUTLER, Defendant and Appellant.

Page 357

80 Cal.Rptr.2d 357

68 Cal.App.4th 421, 98 Cal. Daily Op. Serv. 8985,

98 Daily Journal D.A.R. 12,429

The PEOPLE, Plaintiff and Respondent, v. Allen Douglas BUTLER, Defendant and Appellant.

No. H017510.

Court of Appeal, Sixth District, California.

Dec. 7, 1998.

Review Denied March 24, 1999.

James R. Stupar under appointment by the Sixth District Appellate Project, Monterey, for Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Joan Killeen, Supervising Deputy Attorney General, Moona Nandi, Deputy Attorney General, for Respondent.

BAMATTRE-MANOUKIAN, Acting P.J.

Defendant Allen Douglas Butler appeals from the trial court's order committing him to the Department of Mental Health pursuant to its finding that he is a "sexually violent predator" under the Sexually Violent Predators Act (Welf. & Inst.Code, § 6600 et seq.). ¹

In this appeal, defendant contends: (1) the trial court erred by denying defendant's motion to confront and cross-examine witnesses at the probable cause hearing (§ 6200); (2) there was insufficient evidence to sustain the trial court's finding that defendant is a sexually violent predator; and (3) the Sexually Violent Predators Act is unconstitutional in that it violates the constitutional prohibition against ex post facto laws and the constitutional guarantees of equal protection and due process. We will affirm the judgment.

I. SUMMARY OF THE SEXUALLY VIOLENT PREDATORS ACT

The Sexually Violent Predators (SVP) Act, adding sections 6600 through 6608 to the Welfare and Institutions Code, was enacted October 11, 1995, effective January 1, 1996. (Stats.1995, chs. 762 & 763.) In section 1, the Legislature set forth its findings and summarized the purpose of the new law, as follows: "The Legislature finds and declares that a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders can be identified while they are incarcerated. These persons are not safe to be at large and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence. The Legislature further finds and declares that it is in the interest of society to identify these individuals prior to the expiration of their terms of imprisonment. It is the intent of the Legislature that once identified, these individuals, if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, be confined and treated until such time that it can be determined that they no longer present a threat to society."

"The Legislature further finds and declares that while these individuals have been duly punished for their criminal acts, they are, if adjudicated sexually violent predators, a continuing threat to society. The continuing danger posed by these individuals and the continuing basis for their judicial commitment is a currently diagnosed mental disorder which predisposes them to engage in sexually violent criminal behavior. It is the intent of the Legislature that these individuals be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes."

A "sexually violent predator" is defined in section 6600, subdivision (a), as "a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior."

Sexually violent offenses, for purposes of the SVP law, are listed in section 6600, subdivision (b), which provides: " 'Sexually violent offense' means the following acts when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as provided in subdivision (a): a felony violation of paragraph (2) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262, Section 264.1, subdivision (a) or (b) of Section 288, or subdivision (a) of Section 289 of the Penal Code, or sodomy or oral copulation in violation of Section 286 or 288a of the Penal Code." ²

In addition, section 6600, subdivision (a) specifies that "a prior finding of not guilty by reason of insanity for an offense described in subdivision (b), a conviction prior to July 1, 1977, for an offense described in subdivision (b), a conviction resulting in a finding that the person was a mentally disordered sex offender, or a conviction in another state for an offense that includes all the elements of an offense described in subdivision (b), shall also be deemed to be a sexually violent offense even if the offender did not receive a determinate sentence for that prior offense." ³

Under section 6601, if the Director of the Department of Corrections determines that a prisoner may be an SVP, the director shall refer that person for an initial screening evaluation at least six months prior to his or her scheduled release date. ⁴ (§ 6601, subds. (a) & (b).) If it is determined that the person is likely to be a sexually violent predator, he or she is then referred to the State Department of Mental Health for a full SVP evaluation. (§ 6601, subd. (b).)

The potential SVP is evaluated by two practicing psychiatrists or psychologists in accordance with a standardized assessment protocol. "The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (§ 6601, subd. (c).) If both of the evaluators find that the person "has a diagnosed mental disorder such that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody," the Department of Mental Health requests a petition for commitment under section 6602 and forwards the evaluations and supporting documents to the county of the person's latest conviction. (§ 6601, subds. (d) & (i).) If the county's designated attorney concurs with the recommendation, a petition for commitment is filed in superior court. (§ 6601, subd. (i).)

A probable cause hearing is then held before a superior court judge. ⁵ The individual named in the petition is entitled to assistance of counsel at this hearing. If the judge determines there is probable cause to believe that the person is likely to engage in sexually violent predatory criminal behavior upon his or her release from prison, 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...." (§ 6602.)

The person subject to the petition is entitled to a trial by jury, the assistance of counsel and the right to retain experts or professional persons to perform further evaluations, and is entitled to have access to all relevant medical and psychological records and reports. (§ 6603, subd. (a).) A unanimous verdict is required in any jury trial. (§ 6603, subd. (d).)

The burden of proof is on the state to show that the person is a sexually violent predator "beyond a reasonable doubt." (§ 6604.) If it is so determined, the person shall be committed for a period of two years "to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility...." (Ibid.) The person shall not be kept in confinement longer than two years unless a new petition is filed and an extended commitment is obtained from the court. (Ibid.)

A person committed under the SVP law shall have an examination of his or her mental condition at least once every year, and is entitled to the appointment of an expert and to review all records. (§ 6605, subd. (a).) Unless the person affirmatively waives the right to a hearing, the superior court must annually set a show cause hearing to determine if the person's condition has so changed that he or she would not be a danger to the health and safety of others if released from confinement. (§ 6605, subd. (b).) If the court so finds, then the person is entitled to a full trial with the same rights and constitutional protections as were afforded at the initial commitment hearing. (§ 6605, subd. (d).) Also, at any time that the Department of Mental Health has reason to believe that the person is no longer an SVP, it must seek judicial review of the commitment. (§ 6605, subd. (f).)

Finally, the SVP can be placed on conditional release upon a finding that he or she is not likely to engage in sexually violent predatory criminal acts while under supervision and treatment in the community. (§ 6607.) A conditional release hearing may be held at any time after a year from the date of the commitment order, upon the recommendation of the Director of Mental Health or upon a petition by the SVP. (§ 6608.)

Any person committed as an SVP must be provided with treatment for his or her diagnosed mental disorder, whether or not it is found the person is amenable to treatment. (§ 6606, subds. (a) & (b).) The treatment "shall be consistent with current institutional standards for the treatment of sex offenders...." (§ 6606, subd. (c).)

II. FACTUAL AND PROCEDURAL BACKGROUND

On June 11, 1996, the District Attorney of Santa Cruz County filed a petition to commit defendant as an SVP pursuant to section 6600. The petition alleged that defendant qualified under...