People v. Roberge

• Decision Date: 06 February 2003
• Docket Number: No. S094627.,S094627.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph Albert ROBERGE, Defendant and Appellant.

129 Cal.Rptr.2d 861

29 Cal.4th 979

62 P.3d 97

The PEOPLE, Plaintiff and Respondent, v. Joseph Albert ROBERGE, Defendant and Appellant.

No. S094627.

Supreme Court of California.

February 6, 2003.

Rehearing Denied April 9, 2003.

David L. Polsky, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont, Janelle M. Boustany, Laura Whitcomb Halgren, Robert M. Foster and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

Under California's Sexually Violent Predators Act (SVPA), convicted sex offenders who have served their prison terms may be involuntarily committed to a state mental hospital if found to be "sexually violent predator[s]." (Welf. & InstCode, § 6604; further undesignated statutory references are to this code.) That finding is made after a trial (§ 6603), based on proof beyond a reasonable doubt that the person to be involuntarily committed meets the statutory definition of a sexually violent predator (§ 6604). The SVPA defines a sexually violent predator as someone who "has been convicted of a sexually violent offense against two 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" if released. (§ 6600, subd. (a)(1), italics added.) At issue here is the meaning of the statutory term "likely" in section 6600, subdivision (a)'s definition of a sexually violent predator. That definition applies at trial, where the trier of fact decides whether the convicted sex offender, after serving the requisite prison term, is to be involuntarily committed.

Recently, in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 119 Cal. Rptr.2d 1, 44 P.3d 949 (Ghilotti), we construed a different provision of the SVPA pertaining to the initial step in the involuntary commitment proceedings: the requirement that two mental health evaluators agree that the convicted sex offender "is likely to engage in acts of sexual violence without appropriate treatment and custody." (§ 6601, subd. (d), italics added.) That standard, we concluded, is met when "the person 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." (Ghilotti, supra, at p. 922, 119 Cal.Rptr.2d 1, 44 P.3d 949, original italics.) We now reach the same conclusion with respect to the word "likely" in section 6600, subdivision (a).

I

In 1981, defendant was convicted of forcible rape (Pen.Code, § 261, subd. (a)(2)) and sentenced to state prison for eight years. In 1985, while on parole for the 1981 offense, defendant again committed forcible rape, for which he was in 1986 convicted and sentenced to a prison term of 18 years. Before defendant's eligibility for release on parole for the 1986 rape conviction, the San Diego County District Attorney petitioned the superior court to have defendant committed to the State Department of Mental Health as a sexually violent predator. (§ 6601, subd. (a).)

At the jury trial on that petition, the prosecution presented evidence on the 1981 and 1986 rape convictions: Both involved defendant's violent assaults on women who were strangers to him. In the 1981 incident, defendant lured the victim to his home and sexually assaulted her. Four months after his release on parole in 1985, defendant attacked his second victim, whom he beat, bit, and sexually assaulted.

Prosecution witness Mary Miccio-Fonseca, a clinical psychologist, diagnosed defendant as suffering from a "paraphilia" or a "paraphiliac disorder," which she described as an incurable sexual disorder distinguished by sexual arousal from perverse or unorthodox encounters. Initially, Dr. Miccio-Fonseca described the sexual disorder as paraphilia NOS (Not Otherwise Specified) but she later changed her diagnosis to sexual sadism.¹ Defendant's score of 4 on the Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR), a clinical tool for evaluating the probability of a sexual offender's reoffending, indicated a 32.7 percent likelihood that defendant would commit another violent sexual offense within five years and a 48.6 percent likelihood of doing so within 10 years.

Another expert witness for the prosecution, clinical psychologist Charles Jackson, assessed defendant as having two mental disorders: paraphilia NOS manifested by sex with nonconsenting individuals, and antisocial personality disorder. In Dr. Jackson's opinion, defendant continued to pose a danger to others, which was atypical of sex offenders generally, because the risk of reoffending tends to decrease as the person grows older.

The defense presented the expert testimony of two clinical psychologists, Drs. Theodore Donaldson and Ricardo Weinstein. Both disagreed with the expert testimony presented by the prosecution that defendant suffered from a paraphilia. Specifically, the defense psychologists did not consider defendant to be a sexual sadist, because his primary gratification in forcible sex was sexual rather than the infliction of pain on his victims. Thus, in their view, defendant's sex offenses were not a product of a mental illness (a requisite for involuntary commitment under the SVPA). According to Dr. Donaldson, the likelihood of defendant's committing another sexually violent offense was "better than 50 percent probability," but his doing so would be entirely volitional.

Defendant sought a jury instruction that would have substituted the phrase "more likely than not" for the word "likely" in the statutory definition of a sexually violent predator (§ 6600, subd. (a)). The trial court denied the request. It instructed the jury in accordance with the statute, and defined a sexual predator as a person who "has been convicted of a sexually violent offense against two 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 mil engage in sexually violent criminal behavior" if released. (§ 6600, former subd. (a), italics added.) The jury found defendant to be a sexually violent predator, and the trial court ordered him committed to a state mental hospital. The Court of Appeal affirmed.

We granted review to decide the meaning of the term "likely" as it appears in section 6600, subdivision (a), which defines a sexually violent predator.

II

We begin with a brief overview of the SVPA, which the Legislature enacted on October 11, 1995, and which became effective on January 1, 1996. (Stats.1995, chs. 762 & 763, pp. 5912-5929.) The SVPA provides for "the involuntary civil commitment of certain offenders, following the completion of their prison terms, who are found to be [sexually violent predators] because they have previously been convicted of sexually violent crimes and currently suffer diagnosed mental disorders which make them dangerous in that they are likely to engage in sexually violent criminal behavior." (Ghilotti, supra, 27 Cal.4th at p. 902, 119 Cal.Rptr.2d 1, 44 P.3d 949.) The civil commitment is for two years, which may be renewed if there is no improvement in the defendant's mental condition. (§ 6605, subd. (e); People v. Torres (2001) 25 Cal.4th 680, 683, 106 Cal.Rptr.2d 824, 22 P.3d 871.) The process of determining whether a convicted sex offender can be involuntarily committed under the SVPA as a sexually violent predator "`takes place in several stages, both administrative and judicial.'" (Ghilotti supra,27 Cal.4th at p. 903,119 Cal.Rptr.2d 1,44 P.3d 949, quoting Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145, 81 Cal.Rptr.2d 492, 969 P.2d 584 (Hubbart).) "`Generally, the Department of Corrections screens inmates in its custody 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, subd. (a).) . . . If officials find the inmate is likely to be [a sexually violent predator], he is referred . . . for a "full evaluation" as to whether he meets the criteria in section 6600. (§ 6601, subd. (b).)'" (Ibid., italics added.)

Full evaluation, as described in section 6601, subdivision (d) is by "`two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist, designated by the Director [of the State Department of Mental Health]. If both evaluators concur 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 shall forward a request for a [commitment] petition . . . to the county . . . where the offender was convicted of the crime for which he is currently imprisoned.'" (Ghilotti supra, 27 Cal.4th at p. 903, 119 Cal.Rptr.2d 1, 44 P.3d 949, quoting statute.) If the county's legal counsel agrees with the request and files a petition for commitment in superior court, that filing "`triggers a new round of proceedings under the Act.'" (Id. at p. 904, 119 Cal.Rptr.2d 1, 44 P.3d 949, quoting Hubbart, supra, 19 Cal.4th at p. 1146, 81 Cal.Rptr.2d 492, 969 P.2d 584.)

First, there is a hearing before the superior court to decide whether there is "probable cause" to believe the person named in the petition is likely to engage in sexually violent predatory criminal behavior upon release.'" (Ghilotti supra, 27 Cal.4th at p. 904, 119 Cal.Rptr.2d 1, 44 P.3d 949, quoting Hubbart, supra, 19 Cal.4th at p. 1146, 81 Cal.Rptr.2d 492, 969 P.2d 584; see § 6602.) If the court decides such probable cause exists, the matter proceeds to trial, at which either party can demand that trial be by jury. (§ 6603, subds.(a) & (b).) Proof that the person qualifies as a sexually violent predator...