Opinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change in the January 2001 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.]
Superior Court of Yolo County, No. 10978, James L. Stevens, Jr., Judge. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Assistant Attorney General, Michael J. Weinberger and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SIMS, Acting P. J.
Guadalupe Torres appeals from the trial court's order committing him to two years in Atascadero State Hospital under the Sexually Violent Predators Act (SVPA or Act; Welf. & Inst. Code, section 6600 et seq.; all further undesignated section references are to the Welfare and Institutions Code.) He raises constitutional challenges to the Act, most of which our Supreme Court has now rejected. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138 [81 Cal.Rptr.2d 492, 969 P.2d 584].) He also contends: (1) The trial court erred by admitting uncertified documents over objection to prove his prior out-of-state convictions. (2) The state failed to prove beyond a reasonable doubt that his prior convictions qualified under the Act. (3) The trial court erred by admitting his statements to the examining doctors who interviewed him pursuant to the Act because the statements did not come within California's judicially created rule of use immunity. (4) The evidence was insufficient to sustain the finding that he is a sexually violent predator.
In Hubbart v. Superior Court, supra, 19 Cal.4th 1138 our Supreme Court has provided a comprehensive overview of the statutory scheme comprising the SVPA. We shall not redundantly do the same. Rather, we assign Hubbart to the reader as required background reading for this opinion.
Because the trial court's admission of uncertified documents to prove defendant's two out-of-state convictions was erroneous, and the single California conviction proved by certified documents is insufficient to meet the statutory requirement of "a sexually violent offense against two or more victims" (section 6600, subd. (a)), we must reverse and remand the matter for the limited purpose of retrying the prior convictions. We reject defendant's other contentions.
Factual and Procedural Background
Defendant was sentenced to state prison for eight years in 1989 after pleading guilty to rape. (Pen. Code, section 261,former subd. (2).) On March 25, 1997, the People filed a petition in the Yolo County Superior Court for defendant's commitment under the Act, alleging that an evaluation by the Department of Mental Health had determined he is a sexually violent predator. On September 12, 1997, the trial court found probable cause existed to declare defendant a sexually violent predator. The matter proceeded to jury trial on October 27, 1997. Defendant waived his right to jury trial on the prior convictions. In a bifurcated proceeding conducted in advance of the jury trial, the trial court found that defendant had sustained three prior convictions for sexually violent crimes: a 1971 Texas sodomy conviction, a 1976 Texas "Aggravated Rape" conviction, and the 1989 California rape conviction.
The People's case before the jury.
At the jury trial, the People put on the expert testimony of Dawn Starr, Ph.D., and Dana Putnam, Ph.D., clinical forensic psychologists with experience in evaluating persons under the Act. Based on interviews with defendant and study of his records, both experts opined that he met all the Act's criteria for commitment.
Both experts found that defendant suffered from a "diagnosed mental disorder that makes [him] a danger to the health and safety of others in that it is likely that he ... will engage in sexually violent criminal behavior." (section 6600, subd. (a).) According to Dr. Starr, defendant suffered from three forms of mental disorder listed in American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV): paraphilia not otherwise specified (n.o.s.), polysubstance dependence, and personality disorder n.o.s. with antisocial and dependent features. (DSM-IV,supra, at pp. 270, 522-523, 673.) Dr. Putnam agreed as to paraphilia n.o.s., but found that defendant's other disorders consisted of alcohol dependence and antisocial personality disorder. (DSM- IV at pp. 195, 645-650.) Dr. Starr also found that defendant had borderline intelligence, not a mental disorder but a factor making it more likely that defendant will reoffend.
Paraphilia is a pattern of recurrent, intense sexually arousing urges, fantasies, or behaviors, lasting for at least six months, and involving the suffering or humiliation of one's self or partner, or of children or nonconsenting adults, or arousal by nonhuman objects. "Specified" types of paraphilia include masochism, sadism, fetishism, pedophilia, exhibitionism, voyeurism, necrophilia, and zoophilia, among others. (DSM-IV,supra, at pp. 522-523.)
Defendant's criminal history, according to both experts, demonstrates his paraphilia. In 1971, atage 15, he was convicted for sodomy committed on a 13-year-old boy he did not know. After his conviction, his younger sister revealed that he had been molesting or attempting to molest her for years. In 1976 he was convicted for the rape of a 49-year-old woman he did not know. In 1989 he raped a woman with whom he was slightly acquainted. All of these offenses, according to Dr. Starr, were performed under circumstances in which detection and punishment were likely, but defendant's paraphiliac urges impelled him to commit the offenses anyway. He had never had a romantic relationship with a woman and did not want one, preferring casual sex with partners he saw strictly as sexual objects. He did not think he needed treatment for any problems relating to his sexual conduct.
Defendant's substance abuse (including alcohol, cocaine, heroin, LSD, and psychedelic mushrooms) began around age nine or ten and had continued to the present. Alcohol was involved in both of his rapes, according to defendant, and other drugs had been involved in a nonsexual offense he had committed. He had also been disciplined in prison for manufacturing alcohol and drunkenness.
Antisocial personality disorder includes the failure to meet social norms, deceitfulness, impulsivity, aggressiveness, reckless disregard for the safety of self or others, consistent irresponsibility, and lack of remorse. Both experts opined that defendant displayed all these traits. In addition to his pattern of impulsive, aggressive offenses, evincing the failure to meet social norms, and his lack of remorse for his offenses, defendant had repeatedly tried to deceive the interviewers; he had also admitted that he sees no need to work because others should support him.
Both experts opined, based on a combination of clinical and statistical factors, that defendant's mental disorders made him likely to reoffend. Statistical studies have detected predictors for sexually predatory recidivism, including early onset of offending, diversity of offenses, having victims of both sexes, inability to form relationships, the choice of strangers as victims, low intelligence, and low motivation for treatment. Defendant met all of these criteria. Both experts found defendant's case clear-cut in light of the clinical and statistical evidence: Dr. Starr stated that she had not felt the need to seek a second opinion, unlike in other cases she had evaluated, and Dr. Putnam stated that defendant was one of only 40 percent of the persons he had evaluated under the SVPA (all preselected as having committed qualifying sexual crimes) who fell within it.
Defense case.
The defense presented Clinical Psychologists Theodore Donaldson, Ph.D., and Lee Coleman, Ph.D., as expert witnesses. Dr. Donaldson rejected not only the opinions of Drs. Starr and Putnam that defendant qualified under the Act, but the underlying premise that psychologists can predict with any degree of accuracy whether a sexually violent predator is likely to reoffend. Dr. Coleman, agreeing with Dr. Donaldson on the latter point, refused to offer an opinion as to whether defendant qualified under the Act.
Dr. Donaldson, a specialist in statistics, had formerly done sexually violent predator evaluations, but was dropped from the panel because he had ceased to believe that psychologists could accurately predict sexually violent predator recidivism.
So far as Dr. Donaldson addressed whether defendant met the Act's criteria, he opined that defendant did not do so because he did not suffer from a mental disorder "affecting the emotional or volitional capacity that predisposes [a] person to the commission of criminal sexual acts...." (section 6600, subd. (c).) Dr. Donaldson agreed with the People's experts that defendant displays antisocial personality disorder and polysubstance dependence, but did not think that these disorders impaired his volition to the point that he could not control his acts. He disagreed with the People's experts that defendant's acts of rape supported a diagnosis of paraphilia.
After hearing all of this testimony, the jury found that defendant is a person described by section 6600. The trial court's commitment order followed.
Discussion
I.
The Use of Noncertified Documents to Prove the Prior Convictions
Defendant contends that the trial court erred by overruling his objection to the use of noncertified documents to prove his out-of-state prior convictions. We agree. A. Background.
Defendant also contends that the documents were inadmissible because they contained hearsay not subject to any exception. The People reply that this contention is waived because trial counsel did not articulate it as a separate objection, but merely argued that the documents were inadmissible hearsay because they were not certified. In his reply brief defendant retorts that the trial court understood his objection was based on hearsay and that there was no need for any greater specificity in order to preserve an independent hearsay claim of error for appeal. The People have the better argument.
The People offered to prove defendant's prior convictions by means of petitioner's exhibit No. 1, documents comprising the referral to the trial court by the Department of Mental Health. This exhibit contains a cover letter from the department, the written evaluations of Drs. Putnam and Starr, a "pre-screening form" showing defendant's alleged California and Texas convictions, a probation report and abstract of judgment from defendant's California conviction, and a number of documents from Texas purporting to prove defendant's two priors in that state. None of the Texas documents are certified.
The Texas documents included, inter alia, a purported judgment and sentence on a 1971 conviction for indecent exposure, purported medical reports on the victim in defendant's alleged 1976 "aggravated rape," purported court documents from that case, and purported court documents from defendant's 1971 conviction for sodomy. (The two 1971 charges appear to grow out of the same facts, with indecent exposure charged as to the witness of the alleged sodomy.) The referral also includes a sworn statement from 1970 by defendant's sister accusing him of molesting her, which did not form the basis of any criminal charge but was considered in one of the examining psychologists' evaluations.
Defendant objected in limine to the People's use of noncertified documents to prove his Texas priors, arguing that without certification the documents were inadmissible hearsay. The trial court rejected this argument, reasoning that section 6600, subdivision (a), broadens the range of documents a court may consider to prove priors and does not expressly require those documents to be certified. Thus, in the trial court's view, the statute effectively creates a new hearsay exception for noncertified documents of the kinds described therein. The court added, however, that it would examine each document in the referral packet to "establish adequate foundational basis" for admitting it.
Section 6600, subdivision (a), provides in part: "... The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health." (Italics added.)
During the court trial of the priors, the trial court stated: "Now, I believe that the statute intends specifically that we rely upon this form of evidence. And appears to me, although it's hearsay, to be sufficiently verifiable and inherently accurate, particularly things like an abstract of judgment or docket entry in somebody's court, that I believe this fits within the requirement of the statute." Defense counsel renewed his argument that section 6600, subdivision (a), does not create an implied exception to the rules of evidence so as to permit the introduction of noncertified documents which contain multiple hearsay. The trial court replied that in enacting section 6600 the Legislature intended that the court "at least extract from [the report] those ... hard facts that are sufficient to support the allegations that there has been two or more victims of violent sexual crimes by the defendant."
Ultimately, the trial court admitted the abstracts of judgment, the dockets, and the sentencing reports from the two Texas priors, and found them sufficient to prove the priors.
B. Analysis.
"A purported copy of a writing in the custody of a public entity, or of an entry in such a writing, is prima facie evidence of the existence and content of such writing or entry if: [¶] (1) The copy purports to be published by the authority of the nation or state, or public entity therein in which the writing is kept; [¶] (2) The office in which the writing is kept is within the United States ..., and the copy is attested or certified as a correct copy of the writing or entry by a public employee, or a deputy of a public employee, having the legal custody of the writing ...." (Evid. Code, section 1530, italics added.)
"For the purpose of evidence, whenever a copy of a writing is attested or certified, the attestation or certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be." (Evid. Code, section 1531.)
Defendant contends here, as below, that although section 6600, subdivision (a), broadens the class of documents which may be admissible to prove a prior conviction, it does not relieve the proponent of such documents from compliance with Evidence Code sections 1530 and 1531. Defendant is correct.
Nothing on the face of section 6600, subdivision (a), suggests any legislative intent to create an exception to the mandate for certification. And, the trial court's view notwithstanding, the Legislature did not impliedly create such an exception by failing to specify that Evidence Code sections 1530 and 1531 apply to documents introduced under the SVPA. The Evidence Code applies to every action in a California court except as otherwise provided by statute. (Evid. Code, section 300.) Thus, if the Legislature wants to make a rule of evidence inapplicable to a new statute it must say so. It has not done so in section 6600.
Because defendant never made a proper objection in the trial court (see fn. 3, ante), we do not reach the question whether section 6600 authorizes the use of hearsay evidence despite provisions of the Evidence Code prohibiting such evidence.
The People assert that the noncertified documents were proper evidence because Texas officials purportedly prepared them and we may presume that official duty is regularly performed. (Evid. Code, section 664.) This argument is not well taken because it assumes the fact that certification is necessary to establish: i.e., that Texas officials in fact prepared these documents and lodged them as official records.
The People also assert that the trial court evidently found the documents it admitted came within the hearsay exception for records made within the scope of duty of a public employee. (Evid. Code, section 1280.) However, as of the time of trial, the fundamental exclusion to which Evidence Code sections 1530 and 1531 created an exception was the "Best Evidence Rule," which stated: "Except as otherwise provided by statute, no evidence other than the original of a writing is admissible to prove the content of a writing." (Former Evid. Code, section 1500, repealed by Stats. 1998, ch. 100, section 1, operative Jan. 1, 1999; see now Evid. Code, sections 1520-1523 ["Secondary Evidence Rule"].) The "Best Evidence Rule" remains controlling as to actions or proceedings commenced before January 1, 1999. (Stats. 1998, ch. 100, section 9.) Even assuming that the trial court made an implied finding under Evidence Code section 1280, the People cite no authority holding that that provision stated an exception to the best evidence rule.
If a proffered copy of a writing requires certification under Evidence Code sections 1530 and 1531, without such certification it cannot constitute "prima facie evidence of the existence and content of such writing" under the express terms of Evidence Code section 1530. A trial court's experience in scrutinizing such documents, however great, cannot substitute for certification. And a judgment which relies on such noncertified documents to prove the essential elements of a statutory finding cannot stand. (See People v. Stanphill (1958) 166 Cal.App.2d 467, 470-471[333 P.2d 270] [finding of habitual criminality based on noncertified out-of-state documents purporting to prove prior convictions reversed].)
Furthermore, two important policies—to assure that proffered documents are authentic, and to assure that the rights to confrontation and cross-examination are protected—point to the conclusion that the Legislature could not have meant to abrogate Evidence Code sections 1530 and 1531 by implication with respect to the SVPA. (See Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1821[41 Cal.Rptr.2d 182] [repeal or abrogation of statutes by implication disfavored].)
First, certification is the traditional hallmark of authenticity for proffered public documents. (2 Witkin, Cal. Evidence (3d ed. 1986)Documentary Evidence, section 945, p. 899.) For this reason, the courts have created rules requiring certification in contexts where the Legislature has not expressly done so. (See, e.g., Goshgarian v. George (1984) 161 Cal.App.3d 1214, 1225[208 Cal.Rptr. 321] [requests for judicial notice].)
Second, because a person's liberty interest is at stake in a civil commitment proceeding, he or she has the rights of confrontation and cross-examination there. (See Conservatorship of Roulet (1979) 23 Cal.3d 219, 223 [152 Cal.Rptr. 425, 590 P.2d 1]; People v. Thomas (1977) 19 Cal.3d 630, 641, 644 [139 Cal.Rptr. 594, 566 P.2d 228]; People v. Angeletakis (1992) 5 Cal.App.4th 963,970 [7 Cal.Rptr.2d 377].) Although the certification requirement is not a hearsay rule per se, the concerns which motivate the hearsay rule are thus directly implicated when the prosecution in a civil commitment hearing proffers noncertified documents containing hearsay. Without the safeguard of certification, the hearsay found in such documents is not sufficiently trustworthy to be admitted and used against the defendant. (See People v. Campos (1995) 32 Cal.App.4th 304, 309[38 Cal.Rptr.2d 113] [business records and official records exceptions to hearsay rule do not apply to hearsay contained in probation report in civil commitment proceeding].)
These policy considerations reinforce the lesson taught by the Evidence Code on its face: "[a] purported copy of a writing" of the kind described in Evidence Code section 1530, if not certified, is simply not reliable enough to count as "prima facie evidence of the existence and content of such writing." Thus a civil commitment order which rests on a finding supported in critical part by such nonevidence cannot be upheld.
Here, if the purported Texas priors are unavailable to support the trial court's order, only defendant's lone California conviction remains. This is insufficient to meet the SVPA's minimum requirement of "a sexually violent offense against two or more victims ...." (section 6600, subd. (a).) Therefore we must reverse and remand the matter to the trial court.
We turn to defendant's other contentions. II.
The Prior Convictions As Qualifying Offenses
Defendant contends that the People failed to prove beyond a reasonable doubt that his prior convictions qualified under the SVPA in two respects: (1) even if the Texas documents were admissible, they did not prove that his Texas sodomy conviction had all the elements of an offense described in the SVPA; and (2) the trial court failed to find that his prior convictions were predatory. Assuming for the sake of argument that the People on remand can prove the Texas convictions with certified documents, defendant's contentions fail.
A. The Texas sodomy conviction.
" 'Sexually violent offense' [under the Act] means the following acts when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as provided in subdivision (a): a felony violation of paragraph (2) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262, Section 264.1, subdivision (a) or (b) of Section 288, or subdivision (a) of Section 289 of the Penal Code, or sodomy or oral copulation in violation of Section 286 or 288a of the Penal Code." (section 6600, subd. (b).) "[A] conviction in another state for an offense that includes all the elements of an offense described in subdivision (b), shall also be deemed to be a sexually violent offense even if the offender did not receive a determinate sentence for that prior offense." (section 6600, subd. (a).) Sodomy under California law means sexual contact between the penis of one person and the anus of another person, involving penetration. (Pen. Code, section 286, subd. (a); People v. Martinez (1986) 188 Cal.App.3d 19, 22-23 [232 Cal.Rptr. 736].)
Defendant contends that his 1971 Texas sodomy conviction could not qualify as a "sexually violent offense" under the Act because the Texas offense did not require proof of penetration. He is mistaken. (Oliva v. State (Tex.Crim.App. 1970) 459 S.W.2d 824, 825.)
B. The required finding.
Defendant contends the trial court was required to find expressly that his prior convictions were predatory, but erroneously failed to do so. Contrary to defendant's view, the SVPA does not require the trial court to make this finding; therefore, the court did not err by failing to make it. In a trial under the SVPA the trier of fact "shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator." (section 6604.) Section 6604 does not use the word "predatory," however. That term appears only in parts of the Act governing pretrial phases of the SVPA proceeding. It appears first in the definitional provision, which states that a "predatory" offense is one "directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." (section 6600, subd. (e).) It appears next in the evaluation provision, which states that a person who may come within the Act "shall be screened by the Department of Corrections and the Board of Prison Terms based on whether the person has committed a sexually violent predatory offense ...." (section 6601, subd. (b), italics added.) Finally, it appears in the provisions on determining probable cause for further proceedings. These state: (1) "A judge of the superior court shall review the petition [filed by the district attorney or county counsel pursuant to section 6601, subd. (i)] and shall determine whether 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 or her release...." (section 6602, subd. (a), italics added.) (2) "No person may be placed in a state hospital pursuant to the provisions of this article until there has been a determination pursuant to Section 6601.3 or 6602 that there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior...." (section 6602.5, subd. (a), italics added.)
Under section 6604, as noted, the trier of fact must find that the subject is a "sexually violent predator." This term is expressly defined in section 6600, subdivision (a): a sexually violent predator is "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." This definition, like section 6604 itself, does not include the word "predatory."
Defendant's reading of the Act would require us to read the term "predatory" into sections 6600, subdivision (a), and 6604 by implication.
We will not rewrite the Act, as defendant wishes, for two reasons.
First, we find no ambiguity in the Act sufficient to allow us to "interpret" it as defendant urges. " 'To determine legislative intent, a court begins with the words of the statute, because they generally provide the most reliable indicator of legislative intent.' [Citation.] If it is clear and unambiguous our inquiry ends. There is no need for judicial construction and a court may not indulge in it. [Citation.] 'If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.' [Citation.]" (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1046-1047 [80 Cal.Rptr.2d 828, 968 P.2d 539].)
Second, we conclude that a requirement of a "predatory" finding may not reasonably be implied in sections 6600, subdivision (a), and 6604.
" '[W]hatever is necessarily implied in a statute is as much a part of it as that which is expressed.' (Johnston v. Baker (1914) 167 Cal. 260, 264 [139 P. 86], italics added.) 'But an intention to legislate by implication is not to be presumed. [Citation.]' (First M. E. Church v. Los Angeles Co. (1928) 204 Cal. 201, 204 [267 P. 703].) 'Although in years past it may have been necessary for courts to read into a statute provisions not specifically expressed by the Legislature, the modern rule of construction disfavors such practice. [Citation.]' (San Diego Service Authority for Freeway Emergencies v. Superior Court (1988) 198 Cal.App.3d 1466, 1472 [244 Cal.Rptr. 440].)
" 'The usual standard used to interpret a statute by implication or inference is used to determine if the statute embraces such consequential applications and effects as are necessary, essential, natural or proper. Although these are not terms having precise meaning capable of measured application, it seems fair that in order for a consequence to be implied from a statute there must be greater justification for its inclusion than a consistency or compatibility with the act from which it is implied. "A necessary implication within the meaning of the law is one that is so strong in its probability that the contrary thereof cannot reasonably be supposed." And it has been more fully explained that: "[s]uch implication, inference, or presumption, as the fact may be, is always indulged to supply a deficiency, and is never permitted to contradict the act, grant, or instrument whatsoever involved." ' (2B Sutherland, Statutory Construction (5th ed. 1992) section 55.03, pp. 279-280, italics added, citations and fns. omitted.)" (Woodland Joint Unified School Dist. v. Commission on Professional Competence (1992) 2 Cal.App.4th 1429, 1451 [4 Cal.Rptr.2d 227], italics omitted.)
The implication sought by defendant is not necessary to make the Act coherent. The conclusion we draw from an overview of the Act is that the Legislature intended the predatory nature of the subject's prior offenses to be at issue at the stages of evaluation and probable cause determination, but not at trial. Here, the finding the trier of fact must make is clearly and unambiguously spelled out in section 6604, read in conjunction with section 6600, subdivision (a). The trial court properly made that finding. It was not required to make the additional "predatory" finding proposed by defendant.
People v. Rodriguez (1998) 17 Cal.4th 253, 262 [70 Cal.Rptr.2d 334, 949 P.2d 31], which defendant cites for the proposition "whether the two rapes were predatory was a question of fact for the judge to decide," states no such proposition. It does not even address the SVPA.
III.
Use Immunity
Defendant contends the trial court erred by admitting his statements to the examining doctors into evidence over objection because California's judicially declared rule of use immunity rendered them inadmissible, at least so far as they tended to prove his prior predatory acts. (Defendant wisely concedes that statements merely going to his mental state may have been admissible because his mental state was in issue in the proceeding.) We disagree.
In the first place, defendant did not raise this specific ground of objection below: he objected only on the theories that admission of the statements violated the psychotherapist/patient privilege or the rule of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974], contentions he does not renew on appeal. Thus his claim of error is waived. (Evid. Code, section 353, subd. (a).)
But even assuming that the theories defendant tendered to the trial court preserved this claim of error for appeal, it fails on the merits. The judicially declared rule of use immunity applies to legislatively compelled statements which may be used against a defendant in a subsequent criminal proceeding. (See, e.g., People v. Macias (1997) 16 Cal.4th 739, 752 [66 Cal.Rptr.2d 659, 941 P.2d 838]; Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 806-810 [210 Cal.Rptr. 204, 693 P.2d 789]; People v. Coleman (1975) 13 Cal.3d 867, 878, 889 [120 Cal.Rptr. 384, 533 P.2d 1024]; In re Lamonica H. (1990) 220 Cal.App.3d 634, 649 [270 Cal.Rptr. 60]; In re Jessica B. (1989) 207 Cal.App.3d 504, 521 [254 Cal.Rptr. 883].) The statements at issue here are not used to prove guilt in a subsequent criminal proceeding: they are used strictly in the SVPA commitment proceeding itself. As our Supreme Court has explained, the SVPA proceeding is not criminal in nature. (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1170-1179.) Therefore the concerns about self-incrimination which led to the creation of the use immunity rule are not implicated. Defendant has shown no error in the use of his statements to the psychologists.
IV.
The Standard of Proof: "Likely to Engage in Sexually Violent Behavior"
Defendant contends he was deprived of due process of law because the jury was told it could find him a sexually violent predator based on a preponderance-of-the-evidence standard rather than the standard of proof beyond a reasonable doubt. We reject this contention.
As we have already indicated, the trier of fact under the SVPA must find that the subject is a "sexually violent predator," which means in part that he or she "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." (section 6600, subd. (a), italics added.) The trier of fact must make this ultimate finding "beyond a reasonable doubt ...." (section 6604.) The trial court so instructed the jury.
Defendant points to the testimony of Drs. Starr and Putnam, in which they stated their understanding that the likelihood of defendant's recidivism need be established under the law only as "more likely than not," or 51 percent. He also points to the prosecutor's closing argument, in which the prosecutor likewise told the jury that "likely to engage in sexually violent behavior" (section 6600, subd. (a)) means "at this point in time, over 50 percent." In defendant's view, this testimony and argument amounted to telling the jury that it could make its ultimate decision, whether defendant is a "sexually violent predator," by the standard of preponderance of the evidence. He is wrong.
Since the trier of fact must make its ultimate finding beyond a reasonable doubt (section 6604), this necessarily means that it must find that all of the requirements for classification as an sexually violent predator—including the requirement that the subject "is likely to engage in sexually violent behavior"—have been established by that standard. (See Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1147.) This test has passed constitutional muster. (See id. at p. 1163 and fn. 26; see also Kansas v. Hendricks (1997) 521 U.S. 346, 352 [117 S.Ct. 2072, 2077, 138 L.Ed.2d 501, 512] (Hendricks) [upholding Kansas statute using substantively identical language].)
So far as defendant contends in this context that the standard of "likely to engage in sexually violent behavior" violates due process because this standard of proof is too low to justify an involuntary civil commitment, both the United States Supreme Court and the California Supreme Court have rejected this contention. (Hendricks, supra, 521 U.S at p. 352 [117 S.Ct. at p. 2077, 138 L.Ed.2d at p. 512]; Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1163 and fn. 26.)
Defendant has shown no error as to the standard of proof.
V.
Insufficiency of the Evidence
Defendant contends that insufficient evidence supports the jury's finding in three respects: whether he suffers from a "mental disorder," whether he suffers from a current condition that renders him "unable to control his conduct," and whether he suffers from "volitional impairment." In part, these contentions pose constitutional challenges to the statutory criteria, most of which have now been rejected by the United States Supreme Court and the California Supreme Court. So far as they raise genuine issues of fact tied to the evidence in this case, they also fail.
A. Mental disorder.
Defendant contends in his opening brief that there was no evidence he suffers from any mental disorder within the meaning of the Act because the evidence does not support the experts' diagnoses of paraphilia n.o.s. and because "antisocial personality disorder" is not a qualifying mental disorder. In his reply brief defendant notes that our Supreme Court has rejected a substantive due process challenge to the Act's definition of "diagnosed mental disorder" (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1152-1161), but continues to maintain that the diagnoses in this case merely attached DSM-IV labels to the bare facts of his criminal history.
In rejecting the substantive due process challenge on this issue in Hubbart, our Supreme Court expressly held that the Act is not unconstitutional merely because "the definition of a 'diagnosed mental disorder' does not expressly exclude antisocial personality disorders or other conditions characterized by an inability to control violent antisocial behavior, such as paraphilia." (19 Cal.4th at p. 1158; see Hendricks, supra, 521 U.S. at p. 354 [117 S.Ct. at p. 2078, 138 L.Ed.2d at pp. 513-514] [Legislature not restricted to definitions used by mental health professionals].) Thus, to the extent defendant argues that the use of paraphilia and antisocial personality disorder as qualifying mental disorders in his case was illegitimate per se, his claim is foreclosed. We therefore address only his contention that the facts did not support these diagnoses.
Defendant asserts that the experts' diagnoses of paraphilia n.o.s. lack support because (1) there is no evidence that he has recurrent paraphiliac fantasies, as the DSM-IV definition requires, and (2) "a close review of the doctors' reports and their testimony reveal[s] that their conclusion that defendant suffers from paraphilia is based solely on the fact that he was convicted of two prior rapes." Defendant is mistaken.
First, as the People point out, the DSM-IV definition does not require a showing of recurrent fantasies; rather, it states that paraphilia is characterized by "recurrent, intense sexual urges, fantasies, or behaviors ...." (DSM-IV,supra, at p. 493, italics added.) Therefore the lack of evidence of fantasies is not dispositive.
Second, defendant's description of the experts' testimony is a bare assertion devoid of record citation. Lacking record support, the claim that the experts based a paraphilia diagnosis only on defendant's past crimes is waived. (Cal. Rules of Court, rules 13, 15(a).) In any event, it is mistaken. The experts considered not only the crimes in themselves, but the circumstances in which they took place (e.g., the likelihood of prompt detection and punishment) and the diversity of defendant's victims. They also considered defendant's acknowledgment that he has neither had nor wanted any sort of sexual or romantic relationship (preferring instead to seek satisfaction in casual encounters), his general lack of impulse control, and his failure to recognize that there could be anything wrong with his sexual urges or behavior. All of this evidence supported the diagnosis that defendant currently suffers from paraphilia n.o.s.
As we have already mentioned, our Supreme Court has rejected defendant's claim in his opening brief that antisocial personality disorder—a diagnosis concurred in by his own expert, Dr. Donaldson—cannot be a qualifying mental disorder under the Act. Dr. Donaldson's opinion to the contrary, on which defendant relies, therefore does not help him. Defendant makes no argument in his opening brief that there is insufficient evidence to support this diagnosis. His attempt to do so in his reply brief is waived. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [265 Cal.Rptr. 788].)
B. "Current condition which renders him unable to control his conduct."
This argument mainly attacks the constitutionality of the SVPA so far as it does not expressly require that a person committed under the Act be currently "unable to control his behavior." Our Supreme Court has rejected defendant's contention that the Act does not require this finding: "[T]he statute clearly requires the trier of fact to find that an SVP is dangerous at the time of commitment. The statutory criteria are expressed in the present tense, indicating that each must exist at the time the verdict is rendered. In addition, a person cannot be adjudged an SVP unless he 'currently' suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior, and which 'makes' him dangerous and 'likely' to reoffend. (section 6600, subd. (a).) [¶] By defining the qualifying mental disorder in this fashion, the statute makes clear that it is the present inability to control sexually violent behavior which gives rise to the likelihood that more crimes will occur, and which makes the SVP dangerous if not confined...." (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1162.)
So far as the facts of this case are concerned, defendant relies only on a remark by the prosecutor that "[t]he statute does not include the phrase, out of control, beyond control, unable to control themselves." However, the trial court properly instructed the jury on the statutory requirements and on its duty to follow the law only as given by the court. Defendant makes no argument under this heading that the evidence did not support a finding that his current condition would make it difficult, if not impossible, for him to control his conduct. His claim of insufficient evidence on this point fails.
C. "Volitional impairment."
Defendant asserts: (1) nothing in the record indicates that he suffers volitional impairment; (2) the DSM-IV definitions of paraphilia and antisocial personality disorder do not include volitional impairment as a criterion; (3) DSM-IV states generally that its diagnostic categories do not imply volitional impairment; and (4) the personality disorders found by the experts would apply to almost everyone in prison.
Defendant's first point, the only one that actually goes to the sufficiency of the evidence, is made without record citation and is therefore waived. (Cal. Rules of Court, rules 13, 15(a).) Furthermore, as we have already indicated, Drs. Starr and Putnam opined based on the record available to them and on their interviews with defendant that his volition was impaired when he committed his offenses. The jury was not required to accept Dr. Donaldson's contrary opinion.
Our Supreme Court has impliedly rejected defendant's remaining points so far as they raise a substantive due process challenge to the SVPA. (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1152-1161 and fn. 23.) In any event, for reasons already stated, it is immaterial that the Act permits findings not expressly sanctioned by DSM-IV.
VI.
Ex Post Facto
Defendant contends that the SVPA violates the ex post facto provisions of the California and United States Constitutions. Our Supreme Court has rejected this contention as to both Constitutions. (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1152, fn. 19, 1170-1179.)
VII.
Double Jeopardy
Defendant contends that the SVPA violates the double jeopardy provision of the California Constitution (art. I, section 15). Although this contention was not presented in Hubbart, our Supreme Court's reasoning there leaves little basis for it: the court first declined to interpret any applicable provision of the California Constitution more broadly than its federal counterpart in construing the SVPA, then pointed out that the United States Supreme Court rejected a federal double jeopardy argument in Hendricks. (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1152, fn. 19, 1172, fn. 32.) So far as the question may still be open in light of Hubbart, we merely note that it is well settled that double jeopardy principles do not apply to civil commitment proceedings because they are not penal in nature. (People v. Robinson (1998) 63 Cal.App.4th 348, 350-352[74 Cal.Rptr.2d 52] [disavowing same court's contrary holding in People v. Gibson (1988) 204 Cal.App.3d 1425 [252 Cal.Rptr. 56], on which defendant relies].)
VIII.
Equal Protection
Defendant contends that the SVPA violates the equal protection provisions of the California and United States Constitutions in four different ways. Compared to persons involuntarily committed as mentally disordered offenders (MDO) (Pen. Code, section 2960 et seq.), whom defendant defines as similarly situated to persons committed under the Act, he argues that the Act imposes disparate treatment with respect to (1) the required finding of dangerousness, (2) the standards for mental disorder, (3) the evidentiary burden, and (4) the provisions for treatment. Our Supreme Court in Hubbart rejected the first of these contentions (assuming for the sake of argument that the two classes of persons were in fact similarly situated), but declined to reach the others on the ground that the defendant had not properly raised them. (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1168-1170 and fn. 31.) We consider and reject defendant's remaining contentions.
A. Standards for mental disorder.
Defendant notes that the MDO expressly excludes personality and adjustment disorders (Pen. Code, section 2962, subd. (a)), but the SVPA does not. He then argues that because the SVPA does not exclude such disorders, it is open to the "circular logic" of inferring mental disorder—e.g., antisocial personality disorder—chiefly from criminal behavior (as supposedly happened in this case). Thus, in defendant's view, the SVPA, unlike the MDO, permits persons to suffer involuntary commitment who lack any true mental disorder. We reject this contention for the reasons stated above in part V.
Assuming, as our Supreme Court did in Hubbart, that the two classes of persons are similarly situated, the SVPA on its face does not permit a person to be committed without a true diagnosed mental disorder. Nor did it do so as applied here.
B. Evidentiary requirements.
Defendant notes that the MDO requires as a condition of commitment the finding that a prisoner's mental disorder "is not in remission or cannot be kept in remission without treatment" (Pen. Code, section 2962, subd. (a)), which in turn requires a showing that the prisoner has engaged in violent or threatening conduct or has intentionally failed to follow a treatment plan within the last year (ibid.), whereas the SVPA requires no such finding or showing. Defendant concludes that, unlike the MDO, the SVPA "does not require any recent objective basis for a finding that an inmate is likely to reoffend." This conclusion is a non sequitur.
First, the MDO requires the above finding and showing as a basis for requiring treatment as a condition of parole (Pen. Code, section 2962), not as an "objective basis for a finding that an inmate is likely to reoffend." Second, the SVPA does require a "recent objective basis" for commitment: the determination of two experts, endorsed by the trier of fact, that a subject presently suffers from a mental disorder which predisposes him to commit further sexually violent predatory crimes. For both reasons, defendant's contention is unpersuasive.
C. Treatment provisions.
Defendant notes that the MDO requires the provision of evaluation and treatment while in prison, and further requires that a person must have been under treatment for at least 90 days before parole or release as a precondition to mandatory treatment after release. (Pen. Code, sections 2960, 2962, subd. (c).) The SVPA, on the other hand, according to defendant, has no "comparable provisions for treatment of sex offenders' supposed mental disorders during their prison terms," defers evaluation for treatment until they have nearly completed their terms, and authorizes commitment regardless of whether a person is amenable to treatment or whether any effective treatment exists. (section 6606, subd. (b).) Defendant concludes that there is no rational basis for these disparities between persons committed under the MDO and under the SVPA. He is mistaken.
The salient point for equal protection purposes is the fact of involuntary commitment. The differences between the MDO and the SVPA as to when evaluation occurs during a person's prison term are irrelevant to this point. As to what happens after a person is found to come within one or the other of these statutes, defendant has identified no significant difference: the SVPA, like the MDO, requires regular examination and treatment (sections 6605, subd. (a), 6606, subd. (a)), and the MDO, like the SVPA, does not require any finding that a person is amenable to treatment or that an effective treatment for his or her condition exists. We conclude that defendant has failed to show a constitutionally significant disparity between the two statutes in this respect.
IX.
Scope of Remand
In summary, we have found that defendant's out-of-state prior convictions, sustained in a bifurcated proceeding in advance of jury trial, were improperly proved by noncertified documents. However, this error did not infect the jury trial. Thus there is no need to retry any matter tried during the jury trial. "The appellate courts have power to order a retrial on a limited issue, if that issue can be separately tried without such confusion or uncertainty as would amount to a denial of a fair trial. [Citations.]" (Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801 [197 P.2d 713].)
On remand, therefore, the trial court shall retry the question whether sufficient evidence supports a finding that defendant has sustained the requisite prior convictions. If the court finds that defendant has done so, the court shall enter an order finding that defendant is a sexually violent predator.
We do not mean to imply that defendant cannot have a jury adjudicate his priors. (See section 6603.)
Disposition
The order of commitment is reversed and the matter is remanded for further proceedings in light of this opinion.
Nicholson, J., and Callahan, J., concurred.
Defendant's counsel first objected as follows: "We would be objecting to that evidence being received by the trier of fact, and would just make a record at this time that it's our position that these documents have to be certified to be admissible. Without that they're inadmissible hearsay." (Italics added.) When counsel renewed his objection, he again couched it strictly in terms of certification: "[I]t's our position that the statute 6600 paragraph A [sic] perhaps broadens documents that the Court can consider on this issue, but is not a rule of evidence and does not modify the rule of evidence. It does not change case law by eliminating the requirement for certification. None of those documents are certified. [
] ... [] When you're talking about hearsay and hearsay within hearsay, which the Court has now, is that there is [sic] multiple levels of hearsay on those documents. None of them are certified...." This objection did not preserve a general hearsay objection apart from the issue of certification. Accordingly, we do not address defendant's other hearsay claims. (Evid. Code, section 353, subd. (a); People v. Rogers (1978) 21 Cal.3d 542, 547-548 [146 Cal.Rptr. 732, 579 P.2d 1048].)