People v. Superior Court (Johannes)

• Decision Date: 03 March 1999
• Docket Number: No. B126017,B126017
• Citation: 82 Cal.Rptr.2d 852,70 Cal.App.4th 558
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 1658, 1999 Daily Journal D.A.R. 2114 The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. Gerald JOHANNES, Real Party in Interest.

Page 852

82 Cal.Rptr.2d 852

70 Cal.App.4th 558, 99 Cal. Daily Op. Serv. 1658,

1999 Daily Journal D.A.R. 2114

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Gerald JOHANNES, Real Party in Interest.

No. B126017.

Court of Appeal, Second District, Division 1, California.

March 3, 1999.

As Modified March 23, 1999.

Review Denied June 16, 1999.

Gil Garcetti, District Attorney, Brent Riggs and Fred Klink, Deputy District Attorneys for Petitioner.

No appearance for Respondent.

Michael P. Judge, Public Defender, Albert J. Menaster, James Vitek and Jack T. Weedin, Deputy Public Defenders, for Real Party in Interest.

ORTEGA, Acting P.J.

In 1995, the Legislature enacted the Sexually Violent Predators Act. (Welf. & Inst.Code, § 6600 et seq.) ¹ Under the Act, when someone convicted of specified " '[s]exually violent offense[s]' [including Penal Code section 288, subdivision (a) ] ... committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person " (§ 6600, subd. (b), emphasis added) against two or more victims, completes his prison sentence and becomes eligible for parole, the People can petition the trial court to have the convict declared a Sexually Violent Predator if he "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 ... will engage in sexually violent criminal behavior." (§ 6600, subd. (a).)

If so, "the person shall be committed for two years to ... the State Department of Mental Health for appropriate treatment and confinement in a secure facility ..., and the person shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained from the court incident to the filing of a new petition In 1996, the Legislature added section 6600.1 to the Act. ² Subdivision (a) of that section states: "If the victim of an underlying offense that is specified in subdivision (b) of Section 6600 is a child under the age of 14 and the offending act or acts involved substantial sexual conduct, the offense shall constitute a 'sexually violent offense' for purposes of Section 6600." (Emphasis added.)

for commitment under [the Act]...." (§ 6604.)

Respondent Gerald Johannes was convicted of seven counts of violating Penal Code section 288, subdivision (a) (child molestation without force) against multiple victims, and three counts of violating Penal Code section 288.5 (continual sexual abuse). ³ The People petitioned to have Johannes declared a Sexually Violent Predator under the Act. At an initial probable cause hearing required under the Act (§ 6602), ⁴ the trial court found Johannes' crimes were committed against children under 14 years old and involved substantial sexual conduct, thus satisfying section 6600.1, but were not "committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person" as required by section 6600, subdivision (b). The trial court held Johannes' crimes must satisfy both section 6600, subdivision (b), and section 6600.1 to subject him to the Act. Because Johannes' crimes did not satisfy both sections, the trial court dismissed the petition, effectively ordering Johannes to "report to parole." (§ 6602, subd. (a).)

The People sought writ review and a stay of the order. We issued a stay and an alternative writ. ⁵

The issue before us is whether someone convicted of specified sexual felonies against two or more children under 14 years old involving substantial sexual conduct, the threshold required by section 6600.1, also must have committed his crimes by force, violence, duress, menace, or fear of immediate, unlawful bodily injury, as required by section 6600, subdivision (b), to be declared a sexually violent predator.

We hold that section 6600.1 modifies section 6600, subdivision (b), and that someone who commits two or more specified sex crimes against children under 14 years old with substantial sexual conduct is subject to the Act even if his crimes were not committed with force, violence, menace or fear. We issue the writ and order the trial court to vacate its order dismissing the petition, thus reinstating the petition.

BACKGROUND

The Department of Corrections refers inmates approaching sentence completion, or whose paroles have been revoked, for evaluation to see if they fall under the Act. In addition to the requirement that the prisoner have suffered the qualifying prior convictions (§§ 6600, subds. (a), (b); 6600.1), the referral requires evaluations by at least two licensed psychologists and/or psychiatrists, at least two of whom must agree that the inmate is a sexually violent predator as defined in the Act. If so, and if the Department agrees the person is a sexually violent predator, the Department refers the case to the county counsel or district attorney, depending on which agency is designated to handle such referrals by the county's Board of Supervisors. If the agency agrees the person is a sexually violent predator, it files a petition. (§ 6601.) ⁶ If the trial court finds "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 ... release" (§ 6602, subd. (a)), the person remains in custody and may be placed in a secure state hospital setting. ⁷ (§ 6602.5.) One against whom a petition is filed has rights to appointed counsel if indigent and, upon request, a jury trial requiring a unanimous verdict. (§ 6603.) Strict time requirements limit the time during which the person may be held beyond his parole eligibility date and require quick probable cause hearings and trials. (§§ 6601-6602.5.) ⁸ The People must prove the person is a sexually violent predator beyond a reasonable doubt. (§ 6604; Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1143-1149, 81 Cal.Rptr.2d 492, 969 P.2d 584.)

According to the reports attached to the petition, Johannes lured his victims (aged 10 through 13) to his home by inviting them to gather there during school hours. He provided free video games and a swimming pool. Johannes touched the boys outside and inside their clothing. He had them touch his penis and at least one boy reported that Johannes had an erect penis during one incident. In this writ proceeding, the parties do not dispute these facts or the trial court's finding that Johannes' convictions involved substantial sexual conduct with children under 14 years old (§ 6600.1), but did not involve force or violence (§ 6600, subd. (b)). ⁹

DISCUSSION

The issue before us is one of statutory construction: does section 6600.1 modify section If, however, as Johannes argues and the trial court found, section 6600.1 does not modify section 6600, subdivision (b), then to qualify under the Act, any conviction would have to involve force or violence, including those involving victims under 14 years old with substantial sexual conduct. Johannes contends the People must prove he molested children under 14 years old by force, violence, duress, menace or fear of immediate and unlawful bodily injury.

                6600, subdivision (b)?   If so, as the People argue, then qualifying convictions, including Penal Code section 288, subdivision (a), could involve either victims under 14 years old with substantial sexual conduct (§ 6600.1) or the use of force or violence against victims of any age (§ 6600, subd.  (b)).  The People argue they must show only that Johannes (1) committed an act on a child under the age of 14 years, and (2) the act involved "substantial sexual conduct" (e.g., masturbation) (§ 6600.1), and [70 Cal.App.4th 564] they need not show Johannes used force, violence, duress, menace or fear of immediate and unlawful bodily injury
                

The rules governing our interpretation of the statutes are well-established and need not be repeated here. (Kansas v. Hendricks, supra, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501; People v. Snook (1997) 16 Cal.4th 1210, 1215, 1216-1217, 1219, 69 Cal.Rptr.2d 615, 947 P.2d 808; People v. Thomas (1992) 4 Cal.4th 206, 210, 14 Cal.Rptr.2d 174, 841 P.2d 159; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856; In re Jeanice D. (1980) 28 Cal.3d 210, 217, 168 Cal.Rptr. 455, 617 P.2d 1087; State of South Dakota v. Brown (1978) 20 Cal.3d 765, 776-777, 144 Cal.Rptr. 758, 576 P.2d 473; People v. Knowles (1950) 35 Cal.2d 175, 183, 217 P.2d 1; Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238-1240, 8 Cal.Rptr.2d 298; Sutco Construction Co. v. Modesto High School Dist. (1989) 208 Cal.App.3d 1220, 1228; , 256 Cal.Rptr. 671 1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Introduction to Crimes, § 36(2), p. 45.)

We begin by setting out the relevant statutory scheme, including the Act's definition of key terms. " 'Sexually violent predator' means a person who has been convicted of a sexually violent offense against two or more victims for which he ... 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. [p] ... [p] Conviction of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination.... Jurors shall be admonished that they may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he ... will engage in sexually violent criminal behavior." (§ 6600, subd. (a), emphasis added.)

" 'Sexually...