People v. McClinton

• Decision Date: 30 November 2018
• Docket Number: G055391
• Citation: 240 Cal.Rptr.3d 775,29 Cal.App.5th 738
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lamar MCCLINTON, Defendant and Appellant.

29 Cal.App.5th 738

240 Cal.Rptr.3d 775

The PEOPLE, Plaintiff and Respondent,

v.Lamar MCCLINTON, Defendant and Appellant.

G055391

Court of Appeal, Fourth District, Division 3, California.

Filed November 30, 2018

As Modified on Denial of Rehearing December 17, 2018

Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOORE, ACTING P. J.

A jury found defendant Lamar McClinton to be a sexually violent predator (SVP), as defined within the Sexually Violent Predator Act (SVPA). ( Welf. & Inst. Code, § 6600, subd. (a)(1).)¹ The trial court then committed McClinton to the custody of the State Department of State Hospitals (SDSH) for an indeterminate term.

On appeal, McClinton challenges several rulings made by the trial court (before, during, and after the trial). McClinton also makes four instructional error claims, he argues there was insufficient evidence, and he asserts that the SVPA is fundamentally unconstitutional. We disagree and affirm the judgment.

IPROCEDURAL BACKGROUND

On May 11, 2009, the Orange County District Attorney (the People) filed an SVPA petition. The People alleged that McClinton was convicted: 1) in 1983, of burglary and assault with intent to commit rape; 2) in 1985, of rape by force; and 3) in 1991, of rape by force, oral copulation by force, burglary, and attempted burglary. The People further alleged that McClinton was currently being confined in prison and that two mental health professionals had determined that McClinton "has a current diagnosed mental disorder such that he is likely to engage in criminal, sexually violent predatory conduct without appropriate treatment and custody within the meaning of" the SVPA.²

In July 2011, the trial court conducted a two-day probable cause hearing and took the matter under submission. After a series of motions, the court made a finding of probable cause in March 2012; the court ordered McClinton to "remain housed in a secure facility until a trial has been conducted." In June 2013, after an 11-day SVP trial, the court declared a mistrial based on the jury’s inability to reach a unanimous verdict.

In July 2017, after a 14-day retrial, the jury found true the allegation that McClinton is an SVP. The trial court subsequently ordered McClinton to be committed to the SDHS for an indeterminate term. The court denied McClinton’s motion for conditional release.

IIDISCUSSION

McClinton contends: (A) the trial court improperly permitted the People to retain an SVP expert and improperly allowed the expert to have access to his SDSH records; (B) the court improperly denied his motion to dismiss (based on the delay in getting the matter to a retrial); (C) the court improperly ruled that he could be impeached with his prior trial testimony; (D) the court improperly denied his request for information regarding nontestifying experts consulted by the People; (E) there was insufficient evidence; (F) the court committed four instructional errors; (G) the cumulative effect of the alleged preceding errors requires reversal; (H) the court improperly denied his posttrial motion for conditional release; and (I) the SVPA itself is unconstitutional.

We shall address each of McClinton’s contentions. But we will begin with an overview of the statutory framework of the SVPA, which was well described by our Supreme Court in Reilly v. Superior Court (2013) 57 Cal.4th 641, 646-648, 160 Cal.Rptr.3d 410, 304 P.3d 1071 ( Reilly ):

"The Welfare and Institutions Code outlines the procedure for determining whether a person is an SVP. ( § 6600 et seq. ) Under section 6601, whenever the Secretary of the Department of Corrections and Rehabilitation (Department) determines that a person may be an SVP, the secretary refers that person to the Department and the Board of Parole Hearings for an initial screening. (§ 6601, subds. (a)(1), (b).) In screening, the Department considers ‘whether the person has committed a sexually violent predatory offense’ and reviews ‘the person’s social, criminal, and institutional history.’ (Id ., subd. (b).) If the Department determines that the individual is likely to be an SVP, it refers him or her to the [SDHS] for a ‘full evaluation.’ (Ibid .)

"Two mental health experts conduct the full evaluation. The Director of the SDSH (Director) appoints these experts, who must be either psychologists or psychiatrists. (§ 6601, subd. (d).) Each expert ‘shall evaluate the person in accordance with a standardized assessment protocol ... to determine whether the person is a sexually violent predator as defined in [ section 6600 ]. 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 ...,’ including ‘criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.’ (§ 6601, subd. (c).)

"If both evaluators agree that the person has a diagnosed mental disorder, so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director forwards a request that a petition for commitment be filed as specified under section 6601, subdivision (i). However, if the evaluators disagree on the individual’s SVP status, the Director ‘shall arrange for further examination of the person by two independent professionals ....’ (§ 6601, subd. (e).) At this stage, the petition ‘shall only be filed if both independent professionals who evaluate the person pursuant to subdivision (e) concur that the person meets the criteria for commitment specified in subdivision (d).’ (§ 6601, subd. (f).) Read together, subdivisions (d), (e), and (f) of section 6601 amount to an unambiguous statutory prefiling requirement ‘that a petition for commitment or recommitment may not be filed unless two evaluators, appointed under the procedures specified in section 6601, subdivisions (d) and (e), have concurred that the person currently meets the criteria for commitment under the SVPA.’ [Citation.] Where this initial requirement is not met, the commitment may not proceed. [Citation.]

"The SVPA also provides for evaluations to be updated or replaced after a commitment petition has been filed. (§ 6603, subd. (c).) Section 6603, subdivision (c) was enacted to clarify the right of the attorney seeking commitment to obtain up-to-date evaluations, in light of the fact that commitment under the SVPA is based on a ‘current mental disorder.’ [Citations.] If an updated or replacement evaluation results in a split of opinion as to whether the individual meets the criteria for commitment, the SDSH must obtain two additional evaluations in accordance with subdivision (f) of section 6601. (§ 6603, subd. (c).) However, although initial evaluations conducted under section 6601 must agree, a lack of concurrence between updated or replacement evaluations does not require dismissal of the petition. [Citation.] Rather, the updated evaluations’ primary purpose is evidentiary or informational. [Citation.] Mandatory dismissal is not required where one or both of the later evaluators conclude the individual does not meet the criteria for commitment. [Citation.]"

A. Discovery Rulings Regarding SVP Expert Retained by the People

McClinton argues that the trial court improperly permitted the prosecution to retain an SVP expert for the retrial, and improperly allowed that expert to have access to his SDSH records.³ We find no abuse of discretion.

1. Legal Principles

SVPA trials "are ‘ "special proceedings of a civil nature." ’ " (See Moore v. Superior Court (2010) 50 Cal.4th 802, 815, 114 Cal.Rptr.3d 199, 237 P.3d 530.) Discovery procedures in SVPA proceedings are governed by the Code of Civil Procedure. ( People v. Superior Court (Cheek ) (2001) 94 Cal.App.4th 980, 989, 114 Cal.Rptr.2d 760.) Civil litigants generally have the right to retain expert witnesses and to subpoena documents. (See Code Civ. Proc., §§ 2034.210 - 2034.310 [expert witness information], 1985-1985.8 [subpoena duces tecum]; see also People v. McKee (2010) 47 Cal.4th 1172, 1192, 104 Cal.Rptr.3d 427, 223 P.3d 566 ( McKee I ) ["expert testimony is critical in an SVP commitment proceeding"].) We review discovery orders for an abuse of discretion. ( Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1161, 72 Cal.Rptr.3d 231.)

A SVPA defendant has a right to privacy in his mental health records, but that right is not absolute. (§ 5328; People v. Martinez (2001) 88 Cal.App.4th 465, 478, 105 Cal.Rptr.2d 841.) A defendant’s right to privacy is balanced against the government’s "interest in protecting the public from sexually violent predators." ( People v. Allen (2008) 44 Cal.4th 843, 866, 80 Cal.Rptr.3d 183, 187 P.3d 1018.) Further, the justice system has an interest in providing information to assist the trier of fact in determining whether the alleged defendant is, or continues to be, an SVP. ( People v. Leonard (2000) 78 Cal.App.4th 776, 792-793, 93 Cal.Rptr.2d 180.)

In 2001, the Supreme Court held that "in an SVPA proceeding ... the district attorney may obtain access to otherwise confidential treatment information concerning an alleged SVP to the extent such information is contained in an updated evaluation." ( Albertson v. Superior Court (2001) 25 Cal.4th 796, 807, 107 Cal.Rptr.2d 381, 23 P.3d 611.)

Effective January 1, 2016, the Legislature amended the SVPA, which further addressed discovery procedures to access SDSH records: "Notwithstanding any other law, the evaluator performing an updated [SVP] evaluation shall include with the evaluation a statement listing all records reviewed by the evaluator pursuant to subdivision (c) [updated and replacement evaluations]. The court shall issue a subpoena,...