People v. McKee, D050554.

• Court: California Court of Appeals
• Citation: 160 Cal.App.4th 1517,73 Cal.Rptr.3d 661
• Decision Date: 20 March 2008
• Docket Number: No. D050554.,D050554.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard McKEE, Defendant and Appellant.

73 Cal.Rptr.3d 661 160 Cal.App.4th 1517 The PEOPLE, Plaintiff and Respondent,
v.
Richard McKEE, Defendant and Appellant. No. D050554. Court of Appeal, Fourth District, Division 1. March 20, 2008.

[73 Cal.Rptr.3d 664]

Steven M. Hinkle, under appointment by the Court of Appeal, Oceanside, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillett, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

McCDONALD, J.

Richard McKee appeals an order involuntarily committing him for an indeterminate term to the custody of the State Department of Mental Health (DMH) after a jury found him to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (Welf. & Inst.Code, § 6600 et seq.)¹ (the Act). McKee contends the order should be reversed because: (1) his indeterminate commitment pursuant to the Act, as amended in 2006, violated his federal constitutional rights to due process of law, against ex post facto laws, and to equal protection under the law; (2) the evidence is insufficient to support the finding he is an SVP; and (3) the trial court erred by refusing his proposed modification of a jury instruction.

73 Cal.Rptr.3d 665

FACTUAL AND PROCEDURAL

BACKGROUND

On November 8, 2004, a petition was filed to establish McKee as an SVP within the meaning of the Act. The petition alleged McKee was "a person who has been convicted of a sexually violent offense against two or more victims for which he was sentenced and who has a diagnosed mental disorder that makes him a danger to the health and safety of others, in that it is likely he will engage in sexually violent predatory criminal behavior." It alleged he had been convicted of two counts of committing lewd and lascivious acts on a child under the age of 14 (Pen.Code, § 288, subd. (a)). One victim was an 11-year-old girl and the other was an eight-year-old girl.² The petition requested that McKee be committed to the DMH's custody for a period of two years.

On February 16, 2007, McKee demurred to the petition on the ground that the Act, as amended on November 7, 2006, by the voters' passage of Proposition 83, was unconstitutional. The trial court overruled the demurrer.

On March 5, an amended petition was filed restating the original petition's factual allegations and requesting that McKee be committed to an indeterminate term pursuant to the amended Act. On March 12, following a five-day trial, the jury returned a verdict finding McKee was an SVP within the meaning of the Act. On March 13, the trial court issued an order committing McKee to the custody of the DMH for an indeterminate term pursuant to the Act. McKee timely filed a notice of appeal.

DISCUSSION I The Act and Proposition 83

The Act, as originally enacted as of January 1, 1996 (Stats.1995, ch. 763, § 3), provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, by a unanimous jury verdict after trial (former §§ 6603, subd. (d), 6604), are found beyond a reasonable doubt to be an SVP (former § 6604). (People v. Williams (2003) 31 Cal.4th 757, 764, 3 Cal.Rptr.3d 684, 74 P.3d 779; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143, 1147, 81 Cal.Rptr.2d 492, 969 P.2d 584 (Hubbart).) A person's commitment could not be extended beyond that two-year term unless a new petition was filed requesting a successive two-year commitment.³ (Former §§ 6604, 6604.1; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243, fn. 5, 127 Cal.Rptr.2d 177, 57 P.3d 654; People v. Shields (2007) 155 Cal. App.4th 559, 562, 65 Cal.Rptr.3d 922.) On filing of a recommitment petition, a new jury trial would be conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. (Former §§ 6604, 6605, subds. (d), (e); People, v. Munoz (2005) 129 Cal.App.4th 421, 429, 28 Cal. Rptr.3d 295["[A]n SVP extension hearing is not a review hearing.... An SVP extension hearing is a new and independent

73 Cal.Rptr.3d 666

proceeding at which ... the [People] must prove, the [committed person] meets the [SVP] criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous."]; Cooley, at p. 243, fn. 5, 127 Cal.Rptr.2d 177, 57 P.3d 654; Shields, at p. 562, 65 Cal. Rptr.3d 922; People v. Roberge (2003) 29 Cal.4th 979, 984, 129 Cal.Rptr.2d 861, 62 P.3d 97.)

As originally enacted, an SVP was defined 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." (Former § 6600, subd. (a).) A "sexually violent offense" included a Penal Code section 288 lewd act on a child under age 14. (Former § 6600, subd. (b); Hubbart, supra, 19 Cal.4th at p. 1145, 81 Cal. Rptr.2d 492, 969 P.2d 584.) Under the Act, a person is "likely" to engage in sexually violent criminal behavior (i.e., reoffend) if he or she "presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922,119 Cal.Rptr.2d 1, 44 P.3d 949; see also People v. Roberge, 29 Cal.4th at pp. 988-989, 129 Cal.Rptr.2d 861, 62 P.3d 97.) The Act does not require proof the person "is more likely than not to reoffend." (Ghilotti at p. 923, 119 Cal. Rptr.2d 1, 44 P.3d 949.)

The Act is "designed to ensure that the committed person does not `remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.' [Citation.]" (Hubbart, supra, 19 Cal.4th at p. 1177, 81 Cal.Rptr.2d 492, 969 P.2d 584.) The Act "therefore provides two ways a defendant can obtain review of his or her current mental condition to determine if civil confinement is still necessary. [First,] [s]ection 6608 permits a defendant to petition for conditional release to a community treatment program.... [Second,] [s]ection 6605 [requires] an annual review of a defendant's mental status that may lead to unconditional release." (People v. Cheek (2001) 25 Cal.4th 894, 898, 108 Cal.Rptr.2d 181, 24 P.3d 1204, fn. omitted.)

On November 7, 2006, California voters passed Proposition 83 (also known as "Jessica's Law"), amending the Act effective November 8. (People v. Shields, supra, 155 Cal.App.4th at pp. 562-563, 65 Cal.Rptr.3d 922.) Pursuant to Proposition 83, "former section 6604 was amended to eliminate the two-year term provision and to provide for an indeterminate term of confinement (subject to the SVP's right to petition for release). [Citations.]" (Shields, at p. 562, 65 Cal.Rptr.3d 922.)⁴ Section 6604 of the Act now provides in relevant part: "If the

73 Cal.Rptr.3d 667

court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement...." (Italics added.) Proposition 83 did not change section 6604's requirement that a person's commitment as an SVP be proved at trial beyond a reasonable doubt.⁵ (§ 6604.) Under Proposition 83, section 6605 continues to require current examinations of a committed SVP at least once every year. (§ 6605, subd. (a).) However, Proposition 83 added new provisions to section 6605 regarding the DMH's obligations:

"(a) ... The annual report [following a current examination] shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community. The [DMH] shall file this periodic report with the court that committed the person under this article. The report shall be in the form of a declaration and shall be prepared by a professionally qualified person. A copy of the report shall be served on the prosecuting agency involved in the initial commitment and upon the committed person. The person may retain, or if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person.

"(b) If the [DMH] determines that either: (1) the person's condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the director shall authorize the person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge. The petition shall be filed with the court and served upon the prosecuting agency responsible for the initial commitment. The court, upon receipt of the petition for conditional release to a less restrictive alternative or unconditional discharge, shall order a show cause hearing at which the court can consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney or the committed person." (Italics added to indicate language retained from original Act.)

Therefore, in the event the DMH determines a person is no longer an SVP, the DMH is required to authorize that person to file a petition for unconditional release or discharge. (§ 6605, subd. (b).) Proposition 83 did not amend the provisions regarding the court's consideration of a DMH-authorized petition for release. If, at a show cause...