Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 95F8060
ROBIE, J.
A jury found true an allegation that defendant Timothy Leslie Milligan is a sexually violent predator (SVP) within the provisions of Welfare and Institutions Code sections 6600 through 6604. Based on the jury finding, defendant was committed to the state Department of Mental Health for appropriate treatment and confinement at Coalinga State Hospital for an indefinite term pursuant to section 6604.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On appeal, defendant contends: (1) his SVP evaluations were invalid for failure to comply with the Administrative Procedure Act (APA); (2) recent amendments to the SVP Act (SVPA) deny him due process and equal protection; (3) the trial court erred by failing to instruct the jury sua sponte that it needed a recent objective basis to find that he was likely to reoffend; and (4) the court erroneously denied his motion for 20 peremptory challenges. We shall affirm the judgment.
Government Code section 11340 et seq.
FACTS
Defendant, born in January 1958, had several qualifying sexual offenses involving young boys. Licensed psychologist John Hupka outlined defendant’s prior offenses and was of the opinion that he is a pedophile and an SVP who poses a high risk to reoffend.
Defendant’s first offense occurred in 1978 at age 20. He was married, and his wife had a son, age 9 or 10. Defendant said he “had an affair with her son,” lasting a year and one-half, during which he and the boy engaged in “mutual masturbation and mutual oral copulation.” Defendant was convicted, determined to be a mentally disordered sex offender, and placed at Atascadero State Hospital for two years.
In 1988, defendant molested two 10-year-old boys, showing them photographs of nude children, giving them cigarettes, fondling their penises, and attempting to sodomize them. He received a four-year prison term.
In 1992, defendant grabbed and squeezed the private parts of a 10-year-old boy. He received a four-year prison term.
In 1995, defendant fondled two boys, ages 10 and 12, by rubbing the clothing that covered their penises. He met the boys at church, and after church he followed them to a field where he made sexual advances. He provided the boys alcohol, cigarettes, money and a motor scooter; showed them pornography; and masturbated in front of them. Similar acts of molestation occurred over a period of a couple of months. When defendant was arrested and his house was searched, pictures and videos of naked young boys were found. He received a 15-year prison term.
Dr. Hupka, who examined defendant on February 2, 2007, diagnosed him with a “deep-seated” desire for children as shown by his “history from the age of 20 to nearly 40, in which he has engaged in sex with children repeatedly and even done so despite arrest, conviction, incarceration and treatment.” Defendant acknowledges his sexual attraction to young boys.
Dr. Hupka testified that based on the Static-99, an actuarial test used to predict the chances of sexually reoffending, there is a 39 percent chance that defendant would be convicted of a new sex offense in the next five years, a 44 percent chance during the next 10 years, and a 52 percent chance during the next 15 years. Dr. Hupka said, “I think that he is at high risk to not be able to control his sexually deviant behavior. I think he is very unlikely to control it.”
Defendant told Dr. Hupka that his plan if released was to stay away from boys, get a job, earn money for retirement, find a good woman, and do the right thing.
The defense did not call any witnesses.
DISCUSSION
I
Compliance With The APA
Defendant contends his commitment must be reversed because the petition was not supported by valid psychiatric evaluations inasmuch as they were prepared in accordance with a protocol that had not been adopted as a regulation under the APA. The People respond that defendant has failed to exhaust his administrative remedies, the protocol does not qualify as a regulation, and defendant’s contention does not undermine the legitimacy of his commitment. We need not reach the People’s first two points because their last point is dispositive.
A
Overview Of The Relevant Provisions Of The SVPA
The SVPA provides for the involuntary civil commitment of certain offenders who are found to be sexually violent predators. (§ 6600 et seq.; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902.) To establish that an offender is an SVP, the prosecution must prove the person: (1) has been convicted of one or more of the enumerated sexually violent offenses against one or more victims; and (2) 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. (§§ 6600, subd. (a)(1), 6604.)
The person’s commitment under the SVPA follows his completion of a prison term (§ 6601, subd. (a); Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145) and the process takes place in several stages, both administrative and judicial. The inmate’s records are first screened by prison officials, who may refer the inmate to the department for a full evaluation as to whether he or she meets the criteria for commitment of an SVP under section 6600. (§ 6601, subd. (b).)
Department evaluators are required to evaluate the person in accordance with a standardized assessment protocol, developed and updated by the department, to determine whether the person is an SVP. The protocol must “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).)
The department’s evaluation must be conducted by two practicing psychiatrists or psychologists or one practicing psychiatrist and one practicing psychologist designated by the director of the department. If the department’s 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 must forward a request for a commitment petition to the county where the offender was convicted. (§ 6601, subd. (d).)
If the county’s legal counsel concurs with the director’s recommendation, a petition for civil commitment is filed in the superior court (§ 6601, subd. (i)) and a judicial hearing is held to determine whether there is probable cause to believe the alleged SVP is likely to engage in sexually violent predatory criminal behavior upon his or her release. If the court determines probable cause exists, it must order that a jury trial be held. (§§ 6602, subd. (a), 6603, subd. (a).)
At trial, the state has the burden of proving “beyond a reasonable doubt” that the person is an SVP. (§§ 6604.) The person has several rights including the rights to the assistance of counsel, to retain experts or professional persons to perform an examination on his or her behalf, to have access to all relevant medical and psychological records and reports, to demand a jury trial, and to a unanimous verdict. (§ 6603, subds. (a), (b), (f).)
B
Defendant’s Probable Cause Hearing
In early 2007, two evaluation reports were prepared and a petition for commitment was filed. Both psychologists found that defendant met the criteria for commitment. A probable cause hearing was held and defendant submitted the matter on the reports of the two evaluators. The trial court found probable cause and ordered that a trial be held.
Defendant filed an in limine motion to dismiss the petition asserting that the evaluations, which are a prerequisite to filing a petition, are invalid for the same reasons raised on appeal. The court denied the motion and the matter proceeded to trial.
The sole purpose of the probable cause hearing under the SVPA (§ 6602) is to weed out groundless petitions by testing the sufficiency of the evidence to support the SVPA petition. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 235, 247; People v. Hayes (2006) 137 Cal.App.4th 34, 43-44.) The hearing is analogous to a preliminary hearing in a criminal case. (Cooley, at p. 247.) It is an adversarial hearing (People v. Munoz (2005) 129 Cal.App.4th 421, 429) where the judge conducting the hearing must review all necessary elements of an SVP determination and conclude there is probable cause as to each element (Cooley,at pp. 246 247). Once that determination is made, the matter proceeds to trial (Hayes, at p. 44) where the prosecution has the burden of proving beyond a reasonable doubt that the alleged person is an SVP and the person has the right to court-appointed counsel, the right to retain experts and access relevant psychological and medical reports, and the right to a unanimous verdict. (§§ 6603, subds. (a), (b), (e), (f), 6604.)
The psychiatric evaluations prepared prior to the filing of a petition under the SVPA serve only as a procedural safeguard to prevent meritless petitions from reaching trial. (People v. Scott (2002) 100 Cal.App.4th 1060, 1063; People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1130.) Once the petition is filed, a new round of proceedings is triggered. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1146.)
Consequently, challenges to a probable cause finding in an SVP proceeding are handled in the same manner as challenges to a preliminary hearing finding in a criminal case. (People v. Hayes, supra, 137 Cal.App.4th at p. 51.) Irregularities are not considered jurisdictional (People v. Talhelm (2000) 85 Cal.App.4th 400, 405) and reversal is required only if the defendant can show he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination (Hayes, at p. 50, relying on People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529-530).
Here defendant does not challenge the sufficiency of the evidence at the probable cause hearing or at trial. His challenge is a procedural one -- that the evaluations were not based on a protocol adopted in a certain procedural manner. Because the evaluations serve only to prevent meritless petitions from reaching trial (People v. Scott, supra, 100 Cal.App.4th at p. 1063; People v. Superior Court (Preciado), supra, 87 Cal.App.4th at p. 1130) and a trial was held where a unanimous jury found beyond a reasonable doubt that defendant is an SVP, he has failed to establish any prejudice. Accordingly, his claim fails.
II
Due Process And The Revised SVPA
Defendant contends the revised SVPA denies him due process because “it appears the new law shifts to the SVP the initial or qualifying burden of proof to show why he should be given a new trial, regardless of how many years he has been under commitment.” He contends the revised SVPA violates equal protection since “[o]ther involuntary civil commitment mental health laws do not provide for indeterminate terms.”
In People v. Johnson (2008) 162 Cal.App.4th 1263, Division One of the Court of Appeal, Fourth Appellate District recently rejected both of these contentions.
Johnson rejected the due process claim as follows: “Under section 6605, when [the department of mental health] has authorized a petition, only a minimal burden is imposed on the individual. The individual is required only to show ‘probable cause exists to believe that [a] diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged . . . . ’ (§ 6605, subd. (c).) In these circumstances, the minimal threshold will be met and at the subsequent trial the People bear the burden of proving beyond a reasonable doubt that the individual remains a mentally ill and dangerous sexual predator. (§ 6605, subd. (d).) Under this scenario, the risk of an erroneous deprivation is small: The individual has only a minimal burden, the petition is supported by the [department of mental health] and the People are required to prove the individual is an SVP beyond a reasonable doubt. If [the department of mental health] does not support the petition, it will be difficult for the committed individual to make the necessary showing that he is no longer a mentally ill and dangerous SVP. That difficulty, however, is due primarily to the lack of evidence supporting changed circumstances, rather than due to the obstacles resulting from the procedures. Further, placing some burden on the committed individual is not unreasonable since it places the burden on the individual with the best ability to collect and present evidence on the issues and on the person with an interest in avoiding an erroneous continuation of confinement. [Citation.]” (People v. Johnson, supra, 162 Cal.App.4th at p. 1281; fns. omitted.) Johnson concluded “neither the imposition of an indeterminate term of commitment nor placing some burden on the individual to petition for release violates due process. The amended SVP Act contains sufficient procedural safeguards, including the periodic examinations and procedures for filing and reviewing petitions, to protect the interests of the individual while also providing for compelling state interests. Due process does not require procedures that are unnecessary or have significant administrative and fiscal burdens to the state but provide little benefit.” (Id. at p. 1282.)
In rejecting the equal protection contention, Johnson explained: “The treatment and prognosis for SVP’s differs from the other classifications [Lanterman-Petris-Short Act committees, mentally disordered offenders and persons found not guilty by reason of insanity]. As we noted above, the other classifications may include individuals who have mental illnesses that can readily be treated or may be of a short duration. SVP’s, however, have a mental illness that generally requires long-term treatment and only a limited likelihood of cure. The findings and declarations for Proposition 83, which amended the SVP Act, specifically recognize that ‘sex offenders are the least likely to be cured . . . .’ [Citation.] The Florida Supreme Court has observed, ‘the “treatment needs of this population are very long term” and necessitate very different treatment modalities from those appropriate for persons committed under [another Florida involuntarily commitment scheme].’ [Citations.] [¶] In sum, individuals who are found to be SVP’s under the SVP Act are not similarly situated to individuals committed under the LPS [Lanterman-Petris-Short] Act, mentally disordered offenders or persons found not guilty by reason of insanity and therefore do not have to be treated the same as these other classifications.” (People v. Johnson, supra, 162 Cal.App.4th at p. 1286.)
In People v. Riffey (2008) 163 Cal.App.4th 474, 489, 491, footnotes 6 and 7, this court applied reasoning consistent with the due process and equal protection analyses in Johnson. We find Johnson and Riffey dispositive of defendant’s due process and equal protection contentions.
III
Instructions To The Jury
Defendant contends the trial court erred by failing to instruct the jury on its own motion that the jury could not find defendant an SVP “‘without a recent objective basis for finding that [he] is likely to reoffend.’” We are not persuaded.
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.”’” (People v. Wickersham (1982)32 Cal.3d 307, 323, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200.)
In People v. Buffington (1999) 74 Cal.App.4th 1149, the defendant contended the SVPA’s evidentiary requirements were unconstitutional because they “are lower than other civil commitment schemes.” (Buffington, at p. 1159.) In his view, the “SVPA does not require ‘any recent objective basis for a finding that an inmate is likely to reoffend.’” (Ibid.) He argued that, in contrast to the SVPA, the Mentally Disordered Offender Act and the Lanterman-Petris-Short Act both required such recent objective basis. (Buffington, at pp. 1159-1160.) In response, this court examined the SVPA’s provisions at length and concluded that they do in fact require, in the defendant’s words, a “‘recent objective basis for a finding that an inmate is likely to reoffend.’” (Buffington, at pp. 1160-1161.) We concluded the defendant’s equal protection claim had no merit. (See id. at pp. 1161-1162.)
Buffington thus held that the SVPA’s provisions adequately reflected the requirement of a recent objective basis for a finding that an inmate is likely to reoffend. In this case, defendant does not dispute that the jury was instructed in the language of the SVPA. Because that language adequately reflects a requirement of a recent objective basis for a finding that an inmate is likely to reoffend, the jury, which was instructed in that statutory language, “must necessarily [have] underst[oo]d” the need for [a recent objective basis]. (People v. Williams (2003) 31 Cal.4th 757, 774.) There was no error.
IV
Peremptory Challenges
Finally, defendant contends the trial court erred by ruling that each party was entitled to six peremptory challenges, as provided for civil cases (Code Civ. Proc., § 231, subd. (c)), rather than the 20 challenges provided for criminal cases potentially resulting in life imprisonment (id., subd. (a)). We disagree.
SVPA proceedings are civil in nature. (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1171-1172.) As such, defendant was entitled to six peremptory challenges. (People v. Calhoun (2004) 118 Cal.App.4th 519, 526; cf. People v. Stanley (1995) 10 Cal.4th 764, 807 [proceeding to determine competence to stand trial for a capital crime is civil in nature and parties get that number of peremptory challenges].) “[A] proceeding under the SVPA is a special proceeding of a civil nature, and therefore pursuant to subdivision (c) of section 231 [of the Code of Civil Procedure], defendant was entitled to six peremptory challenges.” (Calhoun, at p. 527.)
Defendant attempts to distinguish Calhoun by arguing that following the SVPA amendment allowing for indeterminate terms, defendants in SVP proceedings are entitled to the procedural protections found in criminal trials. We are not persuaded.
In determining whether a commitment scheme is civil in nature, a reviewing court ordinarily defers to the Legislature’s stated intent. (Kansas v. Hendricks (1997) 521 U.S. 346, 361 [138 L.Ed.2d 501, 514].) In enacting the SVPA in 1996, the Legislature expressed that no punitive purpose was intended. (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1143-1144.) Although a Legislature’s stated intent is not always dispositive, a party challenging the statute must provide “‘the clearest proof’” that a statutory scheme is “‘so punitive either in purpose or effect’” it negates the state’s intention to deem it civil. (Kansas, at p. 361 [138 L.Ed.2d. at p. 515], quoting United States v. Ward (1980) 448 U.S. 242, 248-249 [65 L.Ed.2d 742, 749-750].) Defendant has not presented the requisite proof.
Although the commitment in Hendricks was for one year, the court recognized that subsequent commitment proceedings could result in confinement for an indefinite period. That was not enough to render the commitment scheme punitive. “Far from any punitive objective, the confinement’s duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. [Citation.] If, at any time, the confined person is adjudged ‘safe to be at large,’ he is statutorily entitled to immediate release. [Citation.]” (Kansas v. Hendricks, supra, 521 U.S. at pp. 363-364 [138 L.Ed.2d at p. 516].)
Because nothing in the amended SVPA confines a person who no longer poses a threat to others, the amended act is not punitive and defendant’s motion for 20 peremptory challenges was properly denied.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., NICHOLSON, J.