Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 211205
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
In 2007, the District Attorney of Santa Clara County filed a petition to commit defendant Dennis Edward Towne as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600, et. seq.) In 2008, a jury found the petition true, and the court committed defendant to the Department of Mental Health (DMH) for an indeterminate term. On appeal, defendant contends that the trial court (1) misinstructed the jury in three respects; (2) erroneously admitted prosecution evidence of his need for supervision and constraints and the absence of such in the community at large, and also erroneously excluded defense evidence of the supervision and constraints placed on paroled sex offenders; (3) erroneously removed the sole dissenting juror during deliberations; and (4) lacked jurisdiction to try him because the DMH used invalid protocols to evaluate him. He also argues that the indeterminate SVPA commitment violates (5) due process, (6) equal protection, (7) ex post facto, and (8) double jeopardy under the state and federal constitutions.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Pursuant to the People v. McKee (2010) 47 Cal.4th 1172 (McKee), in which our Supreme Court held that the equal protection challenge to the SVPA has potential merit, we will reverse the order committing Towne to the custody of the Department of Mental Health for an indeterminate term, and remand the case to the trial court for reconsideration of his equal protection claim in light of McKee. However, we will order the trial court to suspend further proceedings pending finality of the proceedings on remand in McKee, including any proceeding in the superior court of San Diego County in which McKee may be consolidated with related matters. “Finality of the proceedings” shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court. We find no merit in the remaining issues raised by defendant, for the reasons stated below.
II. STATEMENT OF FACTS
Defendant’s Offenses
Defendant was born in 1960. Defendant first fondled a child, who was a friend’s sister, when he was 13 years old. When he was 15 years old, he fondled the five-year-old sister of an acquaintance over her panties one time. In 1978, defendant had sex and oral copulation five or six times during a month’s time with a 12-year-old girl from a group home. Sometime in the early 1980’s, defendant fondled the 11-year-old sister of a friend with whom he was staying and placed her hand on his penis. He also digitally penetrated the vagina of a female cousin who was between the ages of 13 and 15. When defendant was in his mid 20’s, on several occasions he got an erection when a friend’s 9- or 10-year-old nephew sat on his lap. One time, he touched the penis of a 15-year-old boy. In 1983, on a camping trip, he engaged in fondling, digital penetration, oral copulation and masturbation with the 15-year-old sister of his brother’s girlfriend. Between 1989 and 1990, defendant touched the penis of his 13-year-old male cousin over his clothes while the boy was asleep. He also orally copulated a cat.
In 1991, defendant pleaded guilty to a single violation of section 288, subdivision (a) arising out of a series of lewd and lascivious acts committed in 1989 and 1990 upon a girl who was then six and seven years old. (Pen. Code, § 288, subd. (a).) He was sentenced to six years in prison and was released on parole on May 16, 1994.
Within a month of his release, defendant began exposing his penis to strangers. In 1995, he met and became romantically involved with a woman who had two children. They later married. Defendant reported that he married her even though he did not love her because he was aroused by her children, who were 10 and six years old. However, he did not molest those children or expose himself to them. In fact, he stopped exposing himself for about two and one-half years, but then resumed exposing himself in March 1997. Starting when he was 10 years old, he exposed himself approximately 200 times to people aged 8 to 40.
In 1997, he exposed himself to children under the age of 13. He was arrested on December 11, 1997, and his marriage ended. Defendant was convicted of a number of counts for indecent exposure in addition to annoying and molesting two 13 year olds.
In 2002, defendant received a disciplinary write-up in prison for intentionally exposing his penis to a female staff person. In April 2008, around the same time that he began treatment at the state hospital, defendant’s groin tingled in sexual arousal when he read the part of Maya Angelou’s book, I Know Why the Caged Bird Sings, in which the author describes being raped at the age of eight. During that same time period, defendant became sexually excited by a scene in the movie, Fried Green Tomatoes, in which an 11- or 12-year-old girl, off-screen, drops her clothes from a tree house as she removes them.
Defendant said a quick prayer, then watched the rest of the movie. He did not stop watching the movie, because he did not think it was necessary.
Defendant’s Mental Condition
Defendant was evaluated by three psychologists who testified for the prosecution: Dr. Dawn Starr, Dr. Robert Brooke, and Dr. Craig Updegrove. He was also evaluated by one psychologist who testified for the defense, Dr. Charlene Steen. In addition, defendant was called as a witness by the prosecution.
Doctors Starr, Brooke and Updegrove interviewed defendant in September 2007 and June 2008. All three doctors diagnosed defendant with pedophilia and exhibitionism. Doctors Starr and Brooke also diagnosed defendant with frotteurism (rubbing against unaware victims). In addition, Dr. Starr diagnosed defendant with sexual sadism (arousal by pain or humiliation of a victim) towards adult partners.
Dr. Starr
In Dr. Starr’s opinion, defendant posed a serious and well-founded risk of reoffending in a criminally, sexually violent, and predatory way. Defendant scored 9 on a scale of 0 to 12 on the Static 99, which is an actuarial instrument for predicting sexual recidivism. Defendant’s score placed him in a high-risk category with a 52 percent chance of reoffense at 15 years. Additional risk factors for re-offense included: numerous probation or parole violations; intimacy deficits; hostility towards females; a lack of long-term friendships outside his immediate family; a lack of sexual self-regulation, which includes a high level of sex drive or sexual preoccupation, a high level of sexual deviance, and a history or using sex as a means of dealing with negative feelings such as anger or social rejection. In addition, defendant had a depressive disorder for which he was being treated at the hospital with antidepressants which “have the effect of decreasing sex drive and preoccupations as well as helping the person to have a better sense of well-being so they are not actually likely to use sex as a means of coping with negative feelings.” However, his depressive condition placed him indirectly at risk for reoffense because he had indicated “he would like to go off his psych meds when he is out in the community.” And, defendant had a history of polysubstance abuse, which was in remission or partial remission, but which would also increase his risk of reoffense if he were to resume drug use because “[y]ou have a guy who has really deviant sexual interests, if he gets on drugs, it’s going to compromise his judgments and self control.” Thus, given defendant’s history and “all these variables, ” Dr. Starr would conclude that defendant qualified as an SVP regardless of his Static 99 score.
In Dr. Starr’s opinion, defendant was not amenable to voluntary outpatient treatment. Although defendant had participated in sex offender treatment while in prison and also at the hospital, defendant needed more in-depth treatment because he still lacked understanding of how he developed such a high degree of sexual deviance and preoccupation, and “what is leading him to do this.” He also did not know how to cope with high-risk situations, or “have people in the community, who will be able to catch him if he has some blind spots to keep him safe.” The type of voluntary outpatient treatment needed by someone with defendant’s level of pathology would be extremely time-consuming and rigorous and very costly. Furthermore, in the community, defendant “would pick and choose what he thinks he needs. A lot of times [he’s] not real receptive to hearing what professionals or other people around him might say that he needs.... [H]e wants to direct his own treatment rather than maybe listen to what somebody else says.” For example, in September 2007, defendant told Dr. Starr that if he were released, he would continue to work on his substance abuse and would go to a 12-step program like Alcoholics Anonymous, for sex addicts. However, he did not think he needed any kind of mental health treatment, “run by a mental health professional or an expert in the area of sex offender treatment.”
In June 2008, after reading Dr. Starr’s evaluation, he said he would reconsider sex offender treatment, and was looking at two possible doctors in the community, but had not been able to get in touch with them. He did not tell Dr. Starr, although he did tell Dr. Steen, that he had been in therapy with one of those two doctors in 1995 or 1996 when he was on parole, and he quit because he did not agree with that doctor’s treatment methods. Dr. Starr believed defendant needed to be in “[s]ome kind of locked facility.” There, he could not be forced to do treatment, but “at least he would not have access to the kind of victim pool he would if left to his own designs in the community.”
Dr. Brooke
Dr. Brooke concurred that defendant posed a serious and well-founded risk of sexual re-offense. In addition to the Static 99, on which he also gave defendant a score of 9, Dr. Brooke administered the Minnesota Sex Offense Screening Tool Revised (MnSOST-R) which is also an actuarial instrument. Defendant scored a 9 on that test as well, which placed him in the high-risk category, with a 57 percent chance of re-arrest within 6 years post-incarceration. Dr. Brooke also looked at a number of static and dynamic factors not captured by those two tests to assess defendant’s risk of reoffense. Even without the results of the Static 99, Dr. Brooke concluded that defendant was at high risk for reoffense. He was also of the opinion that defendant was not amenable to voluntary treatment because he did not believe defendant would pursue voluntary help. Because treatment can be expected to be difficult, and because the open community presents risks for pressures and “things not going right, ” “it is very easy to leave a treatment situation.” He believed defendant needed to be confined in a secure facility.
In September 2007, Dr. Updegrove initially concluded that defendant was not likely to “sexually re-offend in a sexually violent manner” and therefore did not meet the criteria for a sexually violent predator. However, after re-interviewing defendant in June of 2008 and receiving more information from additional sources of documentation, he concluded that, in fact, defendant “would be likely to commit a sexually violent offense in the future.” The fact that defendant was sexually aroused by reading the rape passage in Maya Angelou’s book and seeing the movie Fried Green Tomatoes was significant in that those incidents showed that defendant “was pretty sensitive or potentially easily aroused by minimal... stimulus” and were manifestations of his pedophiliac attraction to young girls. The new information learned by Dr. Updegrove resulted in raising defendant’s Static 99 score from 6 in 2007 to 9 in 2008. However, the higher score did not affect Dr. Updegrove’s revised risk assessment at all.
Dr. Updegrove
In Dr. Updegrove’s opinion, defendant’s treatment thus far had not been adequate to address his long term risk. Consequently, in his opinion, defendant was not amenable to voluntary outpatient treatment. Defendant’s level of sexual deviance has been significant and compulsive. “[H]e would need to develop more controls over dealing with the sexual arousal to minimal stimulation which has been evident recently with the Maya Angelou [book] or looking at Fried Green Tomatoes.... He would also need long-term monitoring.”
Dr. Steen
Dr. Steen opined that defendant did not currently suffer from pedophilia or exhibitionism, since he no longer exhibited those behaviors. His polysubstance abuse was in remission. His only active diagnosis was depression for which he was receiving treatment.
Dr. Steen also opined that defendant was not likely to engage in sexually violent predatory criminal behavior, and was amenable to voluntary outpatient treatment. He was “very motivated to continue treatment in the community as kind of an insurance policy, ” and planned to continue taking antidepressant medication. She also opined that the Static 99 did not accurately predict defendant’s reoffense risk, because it was based on research involving “hands-on offenses” and not exhibitionism, and did not take into account people who had undergone treatment.
Grant Grover
Mr. Grover is a clinical social worker at Coalinga State Hospital, where he worked with Towne as a Phase Two facilitator. He and Towne disagreed about the effectiveness of cognitive behavioral therapy in eliminating or dealing with feelings. Mr. Grover was of the opinion that the elimination of sexual feelings and urges is one of the goals of cognitive behavioral therapy. Towne had doubts about that approach.
John Roorda
Mr. Roorda is a licensed clinical social worker and cognitive therapist. He had seen Towne’s behavior change over time: Towne discontinued indecent exposures, refrained from masturbating and avoided situations that might trigger sexual fantasies. In Mr. Roorda’s opinion, Towne was the most motivated person he has worked with and is amenable to voluntary outpatient treatment.
Towne admitted that one of the reasons he molests children is that he has pedophilia. He admitted that he has frotteurism. He admitted that at this point in his life, he cannot control when he has pedophilic urges and when he does not. He believed that between his therapy and the evaluators, he had now disclosed every instance in which he had touched a child in a sexual way. He did not consider himself at serious risk for reoffense because he now understood how harmful it is to molest children. Also, for the first time in his life, he had some self-respect and integrity, and he was totally committed to his recovery. He believed that he would get help in the community from his sponsor and other members of S.A.A., Sexaholics Anonymous. In 2007, he believed that involvement in a 12-step program was his best way to stay away from re-offending, and it was the only thing he needed to stay safe in the community. However, he had come to believe that he needed cognitive behavioral therapy as well.
III. DISCUSSION
On appeal, Towne argues that the order of commitment must be reversed for instructional errors, evidentiary errors, removal of the sole dissenting juror, and on constitutional grounds. To place defendant’s contentions in context, we briefly describe the SVPA.
The SVPA provides for the involuntary civil commitment, for treatment and confinement, of an individual who is found, by a unanimous jury verdict (§ 6603, subds. (e) & (f)), and beyond a reasonable doubt (§ 6604), to be a “sexually violent predator” (ibid). The term “ ‘[s]exually violent predator’ means a person who has been convicted of a sexually violent offense against one 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.” (§ 6600, subd. (a)(1).)
Before 2006, a sexually violent predator was committed to the custody of the Department of Mental Health for a two-year term. The SVP’s term of commitment could be extended for additional two-year periods. (Former § 6604, as amended by Stats. 2000, ch. 420, § 3; former § 6604.1, as amended by Stats. 2000, ch. 420, § 4.) On September 20, 2006, the Governor signed into law Senate Bill 1128, which amended the SVPA effective immediately. (Stats. 2006, ch. 337, § 62.) Among other changes, the amended SVPA provides for an indeterminate term of commitment. (Stats. 2006, ch. 337, § 55.) The two-year commitment terms and extended commitments referenced in sections 6604 and 6604.1 were eliminated. (Stats. 2006, ch. 337, §§ 55, 56.) Voters later approved Proposition 83, amending the SVPA effective November 8, 2006. Like Senate Bill 1128, Proposition 83 amended the SVPA to provide that a sexually violent predator’s commitment term is “indeterminate.” (§ 6604; see § 6604.1.) Proposition 83 also eliminated all references to a two-year term of commitment and most references to an extended commitment in sections 6604 and 6604.1. Thus, a person found to be a sexually violent predator under the SVPA is subject to an indeterminate term of involuntary civil commitment. (People v. Whaley (2008) 160 Cal.App.4th 779, 785-787.)
We turn first to Towne’s claims of instructional and evidentiary error.
A. Modification of CALCRIM 3454
Over defense counsel’s objection, and at the prosecutor’s request, the trial court modified CALCRIM 3454 as follows, in italics: “The petition alleges that Dennis Towne is a sexually violent predator. [¶] To prove this allegation, the People must prove beyond a reasonable doubt that: [¶] 1. He has been convicted of committing sexually violent offenses against one or more victims; [¶] 2. He has a diagnosed mental disorder; [¶] 3. As a result of that diagnosed mental disorder, he is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory behavior; and [¶] 4. It is necessary to keep him in custody in a secure facility or supervised community placement to ensure the health and safety of others. [¶] The term ‘diagnosed mental disorder’ includes conditions either existing at birth or acquired after birth that affect a person’s ability to control emotions and behavior and predispose that person to commit criminal sexual acts to an extent that makes him or her a menace to the health and safety of others. [¶]... [¶] A person is likely to engage in sexually violent predatory criminal behavior if there is a serious, and well-founded risk that the person will engage in such conduct if released into the community.”
The remainder of the instruction as given is not germane to defendant’s argument and is not included above.
Defendant argues that the addition of the phrase “or supervised community placement” – in conjunction with the court’s evidentiary rulings – “informed the jury that only the designation of SVP could obtain for [Towne] supervised community placement, while the failure [to so] designate him would result in his unconditional release, ” when this was actually the “reverse of the truth” since commitment on an initial SVP petition could only result in Towne’s confinement in a secure facility, whereas a not-true finding “would result in [his] release into the community as a parolee and registered sex offender, under supervision and severe constraints.” The gravamen of Towne’s complaint is that between the instructions and the evidence, the court “framed the question the jurors would be called on to answer as whether [Towne] would pose an unacceptable risk if released unconditionally.” He terms it a “misunderstanding of the SVPA” to require the jury to find the defendant to be an SVP “if he would pose a risk if released unconditionally.”
Before turning to the merits of Towne’s contentions, we set forth the legal principles which govern our analysis. First, “[w]e conduct independent review of issues pertaining to instructions.” (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.) Next, we determine the correctness of the challenged instruction “in the context of the instructions as a whole and the trial record, ” and not “ ‘in artificial isolation.’ ” (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Finally, “[a] defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. (Boyde v. California (1990) 494 U.S. 370, 380; People v. Clair (1992) 2 Cal.4th 629, 663.)” (People v. Cross (2008) 45 Cal.4th 58, 67-68.)
The modification given here finds its genesis in People v. Superior Court (George) (2008) 164 Cal.App.4th 183. George had been committed to a state hospital as an SVP four times. (Id., at p. 188.) During his last commitment, the court had granted George’s section 6608 petition for conditional release. However, given various residency restrictions placed on sex offenders by state law, suitable housing could not be found for George in San Francisco. (Id., at p. 189.) In the meantime, George’s current commitment was due to expire, and four doctors could not agree on whether George continued to be an SVP. (Id., at p. 190.) The district attorney’s office opted to file a new petition for recommitment for an indeterminate term under the amended SVPA. (Id., at pp. 190-191.) Prior to trial, the prosecutor argued that if George presented evidence of his amenability to voluntary treatment, the court should modify CALCRIM 3454 to instruct the jurors that in order to find George an SVP, they must find that “[i]t is necessary to keep him in a secure facility or in monitored outpatient placement to ensure the health and safety of others.” (Id., at p. 191, italics added.)
Two prosecution experts testified at an Evidence Code section 402 hearing. One testified that George was not amenable to voluntary treatment, because his paraphilia “is too severe to be treated on a voluntary basis. Left to his own devices, Mr. George is at risk to sooner or later convince himself that sex with boys is once again ok.” (George, supra, 164 Cal.App.4th at p. 191.) However, George was no longer in need of in-patient custody, and could be treated successfully in a community based, long term, supervised treatment program. (Ibid.) The second expert concurred that George “is at substantial – that is, a serious and well-founded risk – to commit another sexually violent predatory offense, ” but he could be “safely treated and/or monitored in the community without placing the public in danger.” (Id., at p. 192.) The trial court concluded that, assuming George presented evidence of his amenability to voluntary treatment, the court would give CALCRIM 3454 unmodified. Because the district attorney could not present evidence that public safety required George’s placement in a locked facility, the court dismissed the petition. A stay was granted for the prosecution to file a writ application in the Court of Appeal. (Id., at p.192.) The Court of Appeal extended the stay and ultimately concluded that in the situation presented, the instruction should be modified as requested by the prosecution. (Id., at p. 196.)
The Court of Appeal reasoned that in a case involving an initial commitment under the SVPA, the unmodified version of CALCRIM 3454 “may be justified” because the consequence of a finding that the person is an SVP is necessarily a commitment to a secure facility for at least one year. (George, supra, 164 Cal.App.4th at p. 196; § 6608, subd. (c).) However, in a situation where the SVP has already received treatment for one year in a locked facility, and no longer requires locked confinement, but arguably still requires compulsory, community based treatment and is not amenable to voluntary treatment, the question for the jury is not whether he should remain in a locked facility, but whether he should remain under involuntary commitment as an SVP. In such a case, the court concluded, the modification to CALCRIM 3454 “is appropriate and should be given.” (Id., at p. 196.)
The court reasoned that “the fundamental question under the SVPA is whether a prior sex offender presents a serious and well-founded risk of committing future sexually violent predatory acts if set ‘free in the community.’ ([People v.] Cooley [2002] 29 Cal.4th [228, ] 255; [People v. Superior Court] (Ghilotti) [2002] 27 Cal.4th [888, ] 922 [Ghilotti].)... The SVPA asks ‘whether, as the result of a diagnosed mental disorder, the person presents a substantial danger of reoffense if released without conditions, or whether instead he is safe only if restrained, supervised, and treated involuntarily under the Director’s custody.’ (Ghilotti, supra, 27 Cal.4th at pp. 926-92, some italics deleted; see Cooley, supra, 29 Cal.4th at p. 256; [People v.] Roberge [2003] 29 Cal.4th [979, ] 986.) Even though an SVP placed in a conditional release program is not in a locked facility, he or she is not released without conditions and remains within the control of the department. In that critical sense, the individual is not ‘free’ in the community. It is the supervision and involuntary treatment provided through the community release program that reduces the risk of reoffense sufficiently to permit the individual to be released within the community. [¶] Thus, under the circumstances presented here, the jury should be instructed that it is sufficient to find George to be an SVP if, all other conditions being established, George will constitute a danger to the public if not kept in custody in a secure facility or in a state-operated forensic conditional release program. If the district attorney’s evidence is accepted, George would remain likely to reoffend and a danger to the safety of others if unconditionally released. In that case, both the language and the purpose of the SVPA justify his designation as an SVP, with the consequent supervision and compulsory treatment he will receive through the conditional release program.” (George, supra, 164 Cal.App.4th at pp. 197-198, fns. omitted.)
In this case, since Towne had not been previously committed as an SVP, he was not statutorily eligible for placement into a community based conditional release program following a finding that he is an SVP. In that sense, the modification of CALCRIM 3454 was not strictly necessary, as it was in George. However, the modification was not erroneous for that reason. The George modification is a correct statement of the law. To paraphrase George, all other conditions being established, if the jury believed that Towne would constitute a danger to the public if not “restrained, supervised, and treated involuntarily under the Director’s custody” (Ghilotti, supra, 27 Cal.4th at p. 927), either in custody in a secure facility, or in a supervised community placement, it was required to find that Towne is an SVP. Conversely, if the jury believed that Towne was not likely to reoffend, and was not a danger to the safety of others if released unconditionally, then the jury was required to find that he is not an SVP. In our view, there is no reasonable probability that the jury would have misunderstood the instruction to mean that “only the designation of SVP could obtain for [Towne] supervised community placement.” As we see it, the instruction did not advise the jury about, or ask it to determine, defendant’s actual placement. It asked the jury to determine only whether Towne suffered from a mental condition that made it likely that he would reoffend if he were unconditionally released into the community, i.e., if he were not involuntarily restrained, supervised and treated in custody or in a supervised community placement. To the extent that the instruction required the jury to find Towne to be an SVP “if he would pose a risk if released unconditionally, ” it did so correctly.
In George, the court found that whether the conditional release program envisioned in Welfare and Institutions Code section 6608 is called a “state-operated forensic conditional release program, ” or a “supervised community placement” as here, the same concept is expressed and presents the same legal issue. (George, supra, 164 Cal.App.4th at p. 191, fn. 6; id., at p. 188.)
B. Exclusion of Evidence of Parole Conditions
In a companion argument, Towne contends that the trial court erred by excluding testimony from his parole officer about the conditions and supervision of his parole, and precluding him from discussing parole in his summation. Towne acknowledges that this argument was rejected in People v. Krah (2003) 114 Cal.App.4th 534 (Krah). For similar reasons, People v. Calderon (2004) 124 Cal.App.4th 80 rejected the contention that the trial court erroneously excluded evidence that Calderon could be involuntarily treated under a Lanterman-Petris-Short (LPS) Act conservatorship, as an alternative to an SVP commitment.
Krah held that evidence of the terms and conditions of a parole release was irrelevant to the jury’s determination in an SVP trial. (Krah, supra, 114 Cal.App.4th at p. 544.) As the Court of Appeal in Krah explained: “[T]he relevant inquiry is whether the defendant’s mental condition makes it likely he will reoffend. Evidence that the defendant’s condition does not preclude him from voluntarily pursuing treatment if unconditionally released would be relevant under this test. (Ghilotti, supra, 27 Cal.4th at p. 927.) However, evidence that the defendant would be required to comply with terms and conditions of parole would not be relevant. Such evidence has no bearing on the determination whether the defendant has a disorder which makes it likely he will reoffend; it does not relate to the nature of the defendant’s disorder or reflect in any way his willingness or ability to pursue treatment voluntarily.” (Id., at p. 546.) Similarly, the Court of Appeal in Calderon concluded that evidence pertaining to a proposed involuntary treatment plan under an LPS conservatorship was properly excluded as not relevant, and potentially misleading, to the issues to be decided in an SVP trial. (People v. Calderon, supra, 124 Cal.App.4th at p. 91.)
Defendant argues that Krah was wrongly decided because “[e]vidence of the restraints that will be imposed on appellant if he is released from confinement is relevant, not to the diagnosis of his medical condition, but to the risk he may pose to others if released.” Towne also argues that evidence of the residential and other constraints he will be under if paroled into the community as a registered sex offender must be considered relevant to his amenability to treatment, insofar as such constraints provide an added incentive to voluntarily comply with treatment. We disagree. An SVP trial is not, as Towne suggests, a referendum on a sex offender’s free-standing dangerousness. The issue is whether he has a mental condition that makes him dangerous if released into the community without the constraints imposed by an involuntary commitment. We agree with the Krah court that the type of constraints imposed by parole conditions and other statutory limitations are not relevant to the question whether a sex offender does or does not have an SVP’s mental condition.
Furthermore, we reject the notion that parole conditions, residential restrictions, and other statutory limitations on registered sex offenders are relevant to a person’s amenability to voluntary treatment, as an incentive to comply voluntarily with suggested treatment. In addition to parole conditions and statutory limitations, state laws criminalizing and punishing sexually violent and predatory behavior are also “incentives” to refrain from engaging in such behavior, and to seek treatment for any mental condition that may lead to the compulsion to engage in such behavior. Like state laws, parole conditions can be broken.
In Ghilotti, our Supreme Court determined that the SVPA allows a mental health evaluator to consider “any factor which is (1) permitted by the protocol and (2) relevant to ‘the ultimate issue whether the person is a substantial danger to reoffend if free in the community without any conditions, supervision, monitoring, or mandatory treatment in the Director’s custody, ’ ” including “whether the defendant’s mental disorder, ‘though dangerous if untreated, is of a kind and extent that can be effectively treated in the community, and whether the disorder leaves the person willing and able to pursue such treatment voluntarily.’ ” (Krah, supra, 114 Cal.App.4th at p. 546, italics added; Ghilotti, supra, 27 Cal.4th at p. 927.) In our view, nothing in the SVPA or in Ghilotti suggests that incentives such as the consequences attendant upon violation of parole conditions or state laws are relevant to the question whether a sex offender’s mental condition is such that he or she is safe to be unconditionally released into the community because of his or her amenability to voluntary treatment.
Towne also complains that the court erred by permitting the prosecution to present evidence and argument about defendant’s need for involuntary supervision. He points specifically to Dr. Updegrove’s testimony that, in his opinion, a person with Towne’s history and reaction to the excerpt from Maya Angelou’s memoir, and the scene in the movie Fried Green Tomatoes, should not be released into the community without any conditions. However, evidence of a sex offender’s need for involuntary supervision and/or treatment is relevant to his or her mental condition and amenability to voluntary treatment. (Krah, supra, 114 Cal.App.4th at p. 546; Ghilotti, supra, 27 Cal.4th at pp. 915-916.) No error appears.
C. Instruction Not to Consider Consequences
The trial court instructed the jury: “You must reach your verdict without any consideration of the consequences.” During its subsequent deliberations, the jury sent the court a note inquiring “1. If Mr. Towne is not found to be a SVP, will he be required to register as sex offender? 2. If Mr. Towne is not found to be a SVP, is he required to have any supervision. 3. Is it acceptable for the Judge or anyone to answer these questions and others related to these questions.” Over a defense objection, the court informed the jury that its questions related to consequences and it was not to consider consequences. The court directed them to CALCRIM Nos. 200 and 3454. Towne argues that instructing a jury in an SVP trial to ignore the consequences of its verdict is as erroneous as instructing a jury in the penalty phase of a capital trial to ignore the consequences of its verdict, because the “precise question posed” to the jury in an SVP trial is “whether the consequence of appellant’s release would be a serious and well-founded risk of criminal sexual violence.”
The court inserted this sentence into CALCRIM No. 200.
We reject the Attorney General’s contention that Towne forfeited this argument because he did not object “from the start” to the court’s modification of CALCRIM No. 200, for the reasons stated in People v. Calderon, supra, 124 Cal.App.4th at page 92: “While an SVPA commitment is a civil proceeding, it also has consequences comparable to a criminal conviction, because a commitment involves a deprivation of liberty. [Citation.] Therefore appellant did not waive the claimed instructional error by failing to request the instruction at trial as it affected his substantial rights.”
A similar argument was considered and rejected in People v. Rains (1999) 75 Cal.App.4th 1165. In that case, the defendant argued that the trial court had erred in allowing the experts to testify “about the consequences of a jury’s ‘true’ finding on the issue of whether a defendant in an SVPA case is a sexually violent predator.” (Id., at p. 1169.) The Rains court held that “in an SVPA trial, evidence of the consequences of the jury’s finding as to whether the defendant is or is not a sexually violent predator is not relevant and therefore not admissible.” (Id., at p. 1167, italics added.) The court explained that “[u]nder the SVPA ‘[t]he court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator.’ (§ 6604.)” (Id., at p. 1169.) A finding that a person is a “sexually violent predator” involves two issues: whether the person has been convicted of a sexually violent offense against one or more victims for which he or she received a determinate sentence, and whether the person 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. (See § 6600, subd. (a).) “The consequences of a ‘true’ finding have no relevance to either of these issues.” (People v. Rains, at p. 1170; accord, Calderon, supra, 124 Cal.App.4th at p. 91 [“[I]t has been well established that a jury should not consider what will happen as a result of its verdict, ” citing Rains].)
In this case, the court correctly concluded that the jury’s questions about whether Towne would have to register as a sex offender and be subject to “supervision” if the jury were to find he was not an SVP related to the consequences of its verdict, a matter which should not have been a consideration in their deliberations. The answers to the jury’s queries were irrelevant to the question whether Towne met the definition of an SVP. Therefore, the court’s instruction was correct, and no error occurred.
D. Instruction on Penal Code section 290.04, subdivision (b)(1)
Defense psychologist Charleen Steene testified that she also gave Towne a score of 9 on the Static 99, but for various reasons she did not believe it accurately reflected his risk of re-offense. When the prosecutor asked her whether she was “aware that the State of California mandates the use of the Static 99, ” defense counsel objected to the question on relevance grounds and was overruled. She answered that she knew “as evaluators, we all use the Static 99.” The prosecutor persisted: “I’m talking about Penal Code Section 290.04, subsection B1.” Dr. Steen replied: “I haven’t read the subsection. No, I don’t know.” Defense counsel objected that the question called for a legal conclusion, and the prosecutor asked the court “to take judicial notice of Penal Code section 290.04, subsection B1 at this time.” The court then asked the parties if there was any reason the court should not take judicial notice, and defense counsel stated: “No reason the court should not take judicial notice, but I believe the question is irrelevant and calls for a legal conclusion.” The court responded, “Simply asking at this time the judicial notice, I will do that.”
Immediately after the prosecutor concluded his argument to the jury, the court instructed as follows: “Ladies and gentlemen, the court was asked to take judicial notice of California Penal Code section 290.[0]4. I indicated on the record that I would do that, and I’m now going to share with you that Penal Code section first of all. [¶] California Penal Code 290.[0]4 subsection B subsection 1: Commencing January 1st, 2007, the – this is an acronym – the authorized risk assessment tool for adult males required to register as sex offenders shall be the Static 99 Risk Assessment Scale.” The court then gave the rest of its instructions. The next day, during deliberations, the jury requested a copy of the statute and the court provided it. We note that the following day, the jury asked whether Towne would be required to register as a sex offender if he were not found to be an SVP.
Towne does not challenge the trial court’s evidentiary ruling that resulted in its taking judicial notice of the statute, but he does argue that the trial court erred by giving the instruction. Assuming it was error to give the instruction, we do not agree that the error requires reversal. First, we reject Towne’s contention that the error was structural in nature and is reversible per se under the federal constitution. Few errors fall into this category, and the faulty instruction in this case is not comparable to any of them. (See Arizona v. Fulminante (1991) 499 U.S. 279, 309-310 [admission of coerced confession is not structural error]; Sullivan v. Louisiana (1993) 508 U.S. 275, 277-280 [erroneous reasonable doubt instruction is structural error].)
We also reject the contention that the error here constituted a mandatory or rebuttable presumption that shifted the burden of proof on an element of the offense in contravention of the due process clause of the Fourteenth Amendment. (Neder v. United States (1999) 527 U.S. 1 [mandatory presumption]; Yates v. Evatt (1991) 500 U.S. 391 [rebuttable presumption], overruled on another point in Estelle v. McGuire (1991) 502 U.S. 62, 73, fn. 4.) The instruction did not require the jury to make any finding. In our view, it is not likely that the instruction would have been understood by reasonable jurors to require them to find a presumed fact – in this case, that Towne’s mental condition makes him likely to reoffend – if the State proved certain predicate facts – that the State authorizes the use of the Static 99 for risk assessment. (Sandstrom v. Montana (1979) 442 U.S. 510, 514.) Therefore, we need not consider whether the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 25.)
At worst, the instruction was an argumentative pinpoint instruction, in that it suggested the Static 99 was in some way a better measure of risk assessment than other measures because it was the only actuarial tool authorized by the State of California. This type of error “requires reversal only if ‘the court, “after an examination of the entire cause, including the evidence, ” is of the “opinion” that it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.’ (People v. Watson (1956) 46 Cal.2d 818, 836.)” (People v. Wright (1988) 45 Cal.3d 1126, 1144.) In our view, the error could not have prejudiced Towne. First, whether or not the Static 99 was the only state-authorized risk assessment tool had no logical bearing on the issues for the jury’s decision. Second, overwhelming evidence, apart from Towne’s score on the Static 99, established that Towne’s mental disorder made it likely he would re-offend if unconditionally released into the community. This evidence included his self-admitted criminal history, expert testimony about all of the factors – dynamic as well as static – that bore on Towne’s risk of re-offense, and the opinions of three experts that they would find him to be an SVP without the Static 99 score. Under these circumstances, there is no reasonable probability that Towne would have received a more favorable outcome if the court had not instructed on Penal Code section 290.04. (People v. Watson, at p. 836.)
E. Removal of Hold-Out Juror
Towne argues that the trial court violated his statutory and constitutional rights to jury trial and due process by removing the lone dissenting juror, Juror Number 4. For the reasons discussed below, we find that JN4’s actual bias was established as a demonstrable reality; therefore, it was not error to remove him.
For brevity’s sake, we will refer to the jurors as “JN” followed by their number.
Factual Background
Late on the second day of deliberations, the jury informed the court that it was deadlocked. The court told the jury that it would deal with the matter the next day and adjourned deliberations for the evening.
The following day, the court ascertained from the foreperson, JN1, that no ballot had as yet been taken. The court requested that the jury engage in some discussion, take a ballot, and inform the court of the numerical breakdown.
JN5 had indicated to the court’s bailiff that s/he desired to speak with the court privately, and shortly after the jury returned to the deliberation room, the court heard JN5 in the presence of the attorneys and Towne. JN5 said: “I feel there is a member of the jury who has a very biased, um, opinion to the point where it’s compromising his judgment in this case.” Under questioning by the court, JN5 explained that the jurors had all exchanged their views on the evidence and the law, but “[w]hen we have exchanged opinions, the opinions from this person have brought forth mention of multiple personal experiences and he’s expressed emotions, um relating to those opinions in this case that I think are not productive in our deliberations at all. In fact, I think they’re counterproductive.” These personal experiences related to “child molesters that this person has known and had experience with and appears to be in close relationships with” and the juror was “focusing concern for what the conclusion of the trial will be as opposed to focusing on what our conclusion is supposed to be.” JN5 also expressed concerns that the juror had formed an opinion about the case before they had received all the evidence, contrary to the court’s instruction. After dismissing JN5, the court heard argument from the attorneys and decided to question six of the jurors individually.
JN12 informed the court that all the jurors were following the instructions, including the admonition “not to form or express an opinion until the case is finally submitted” to the jury. There had been some discussion about consequences, but the jurors all understood they were “not supposed to do that” and were “making a decision, that’s it.” Although some jurors had told “little stories” about things they went through, it was understood this “had nothing to do with the case at all.”
JN7 said there was one person who was not following the law, but was not sure what law s/he was not following. JN7 did not think there was anyone who was considering the consequences, and no one was “talking about his or her personal experiences as part of the deliberations.”
JN8 said it was “impossible to state” that any of the jurors was not following the law, because the jury had not reached a final verdict. JN8 was hopeful everyone would agree, but felt some clarification of the law would “greatly help.” JN8 indicated there was one juror who said that a couple of witnesses had reinforced his conclusion, but then had “backed off of that” and said he had not formed a conclusion until he had walked into the deliberation room. JN8 said that two jurors had talked about personal experiences as part of the decision-making process. The experiences involved a relationship to the child molester as well as victims, and a religious background. JN 8 also believed there were two or three jurors who were very interested in the consequences. “And I believe that one of them is very hesitant to make up his or her mind based on the perceived consequences which just is not fair to anyone involved in the process, in my opinion. Sorry.”
JN2 did not think any of the jurors were not following the law. There were some jurors “who might mention” personal experiences, but s/he “didn’t hear that used as something to come to a conclusion.” There was some question raised about whether the jury should talk about the consequences, but the court had told them they were not allowed to talk about it, and nobody did.
JN10 responded “I really don’t know” to the court’s question whether any of the jurors was not following the law. He said they were trying to “to keep it in the law.” He felt it was “hard” to say whether anyone had formed an opinion before starting deliberations; he said he thought “we all did that” to a certain extent, but had not formed an absolute opinion. He said there were “definitely two” jurors who “believe that, because of their, um, own background, that and their own personal relationships with people, um, this is coloring how they feel about it.” At least one juror said “I have had, I know of people who have been, done this. They didn’t elaborate... I don’t think they described any particular experience, just that this does have a bearing on, you know, how I feel about whether or not I vote yes or no.”
JN11 testified that no juror had formed an opinion before the start of deliberations, no juror had talked about his or her own experiences as part of the decision-making process, and no juror had talked about consequences.
Later that afternoon, the jury indicated that they were not making any progress and could not all agree. The court asked the jury to review the information it had requested earlier and report back on the state of its deliberations after it had done so. After the jury returned to its deliberations, the court concluded that further investigation into possible juror misconduct would not be beneficial, inasmuch as six jurors disagreed with JN5 and those six seemed fairly confident that there had been no misconduct.
Shortly thereafter, JN1, the foreperson, reported that the jury had taken one ballot, the breakdown was 11 to 1, and that s/he “highly doubt[ed]” that further deliberations would be beneficial. With the exception of JN4, all of the jurors agreed with JN1 that further deliberations would not be helpful. JN4 couldn’t say whether further deliberations would be useful because “[t]here are things brought up that really we haven’t gone into any detail yet.” The court sent the jury back to deliberate for half an hour. After half an hour, JN1 reported that the jury was hopelessly deadlocked and s/he did not think there was anything the court could do to help the 12 of them. All of the jurors were polled and agreed. The court then asked the remaining jurors if any of them thought there was anything the court could do to help. At this point, JN8 asked if the court “could make sure that we’re all being unbiased and fair jurors.... [I]f people are bringing personal bias and are unwilling to talk about just the facts of the case, I don’t know if that’s within your power to do, we could reach a conclusion.” The court then excused the other jurors and questioned JN8.
Explaining what he meant by “a personal bias in the deliberation room, ” JN8 stated that he saw it as personal bias if a person was unwilling to discuss “in a healthy manner” the fault in other jurors’ opinions and was “afraid to label somebody something.” He added that if it was revealed that a juror had a relationship with another person who is “going through the same situation that the respondent is going through, ... I believe then that is an unwillingness to act upon just this case where they personally will be condemning whoever they’re trying to protect in their personal life.” JN8 complained the jury had asked the juror to explain why he felt a witness’s testimony was or was not flawed or inaccurate, but the juror was “not willing to respond and would just shut down.” When the jurors asked JN4 what he wanted to discuss, he brought up one thing, which the remaining jurors told him they had discussed at length the day before. After that, JN4 flipped through his notebook and said there was nothing else to say. Asked if the dissenting juror had participated in deliberations, JN8 affirmed that he had, in a “limited” way: he asked all the others to state how they felt, and they did. But when the others asked him to state why he felt the way he did, he refused to do so. JN8 also asserted that when the jurors were asked to vote on a piece of paper, JN4 did not “take part in the process.” He did eventually submit his vote in writing. According to JN8, JN4 eventually told the other jurors “why he felt how he felt, ” but he would not justify his position except by saying “that’s how I feel.” JN8 reiterated his belief that JN4’s position was rooted in his revelation that he knew child molesters as well as the victims of child molesters. JN4 “also said, because he’s basing his decision on a relationship, he knows people can change, and he also said that, when he heard the testimony of the respondent’s, ... it reaffirmed his conclusions.”
Court was adjourned for the weekend. On Monday, the prosecutor filed a request to remove JN4 or, alternatively, conduct further inquiry. The court then conducted a hearing at which all 12 jurors testified under oath.
The court first questioned JN4. JN4 clarified that he knew only one child molester, as he had stated in open court. He emphatically denied that he was basing his decision in this case on his knowledge of that individual. He said it was “not true” that he was unwilling to share his views or feelings with other jurors during deliberations. He explained that, at first, he did not cast a written vote when everyone else did because he had expressed his vote orally, and he did not think they needed to have a secret ballot. When someone handed him a piece of paper he filled it in and handed it to the foreperson. JN4 also said it was not true that he had been considering the consequences of his vote in this case. When told that it had been suggested to the court that “you’re afraid to place a label of sexually violent predator on Mr. Towne, ” JN4 responded: “I thought that was the question we were supposed to answer.” JN4 said it was not true that he was concerned with the consequences of labeling Towne a sexually violent predator. JN4 disputed that he was the only person who had not expressed his feelings when, at the start of deliberations, the jurors went around the room saying how each felt. He said that the process had ended before they got through all the jurors. Although he repeatedly denied that he had already formed an opinion before deliberations began, he admitted that he had said in the jury room that “questions came up in my mind during some of the witnesses’ testimony that later was reinforced by some of the later witnesses.”
When JN4 was asked by the court if he ever told the other jurors “that, based on relationships you have with a child molester, that you know that people can change, ” the following exchange took place:
“[JN4]: I did not say that was based on my relationship with any child molester.
“[THE COURT]: It sounds like you said some of that, then, if I understand your answer.
“[JN4]: You know, I think I did say that people can change. I don’t know if I
“[THE COURT]: Did you bring up the subject in there that you know at least one child molester?
“[JN4]: I, I, you know, mentioned it, I think, on Friday briefly, but I said it here in open court.
“[THE COURT]: I understand what you said here.
“[JN4]: I didn’t say any more in there than what I said here.
“[THE COURT]: Did you talk about your relationship with a child molester in there?
“[JN4]: No, I didn’t.
“[THE COURT]: What did you say then?
“[JN4]: I don’t remember the exact words. You know, it was getting pretty heated in there.
“[THE COURT]: Well, I guess I’m trying to find out. You mentioned ‘child molester.’ You said you mentioned it no more than you mentioned it out here. We went into it a little bit here.
“[JN4]: Yeah.
“[THE COURT]: And I’m trying to understand in what context did it come up in the jury room.
“[JN4]: This was Friday afternoon, and it was – you know, it came up just in the exchange Friday afternoon, which was a very hostile exchange on both – well not – I was feeling, you know, very hostile. I was feeling a lot of hostility from some of the jurors. Not all; probably not even half.
“[THE COURT]: I understand you’re saying it came up. I’m trying to understand how it could come up in the jury room, and I need your help.
“[JN4]: You know, I don’t know exactly why right now. It was probably something that somebody said. [¶] Shall I go into what was said to me?
“[THE COURT]: I’m just trying to find out how your relationship with a child molester came up in the deliberations room. [¶] Let me ask you this. Let me ask you this, sir: Your relationship, it’s a nephew, isn’t it, that was convicted of child molesting?
“[JN4]: It’s my wife’s nephew, yeah.
“[THE COURT]: That relationship – let me ask you this way: Does that relationship have any effect on the decision-making part of your job as a juror?
“[JN4]: Well, that’s what you were asking me in court.
“[THE COURT]: That’s what I’m asking again.
“[JN4]: And my answer is the same, no.
“[THE COURT]: And if it doesn’t play any part in the decision-making process, how did it come up in the jury room.
“[JN4]: It came up because of the accusations made against me.
“[THE COURT]: And what was the accusation?
“[JN4]: I was being accused of being emotional. I was accused of being biased. And, you know, there were many other accusations made against me. This was all – you know, it was about that time that I said, you know, I brought that up.
“[THE COURT]: Brought what up?
“[JN4]: The fact that I know a child molester. And I brought that up and I said, But that has absolutely nothing to do with the decision I’m making in this case.
“[THE COURT]: Did you bring it up in an attempt to show you weren’t biased?
“[JN4]: It was brought up – you know, I don’t know why I was being accused of bias.
“[THE COURT]: I’m just saying was that the reason that you brought it up, to show that you were not biased?
“[JN4]: Well, I did say that – well, I’m assuming that everybody in there knew since I had said it in open court. We talked about it. But I just brought that up again, and I said to emphasize that that had nothing to do with my thinking on this case.
“[THE COURT]: Had anybody up to that point mentioned that you had a relative that was a child molester?
“[JN4]: I think it did come up. It may have been mentioned, you know, when I was being accused of being biased.
“[THE COURT]: So you’re saying somebody else brought it up?
“[JN4]: You know, I don’t remember the arguments. There were a lot of things being said.
“[THE COURT]: This was on Friday?
“[JN4]: This was all on Friday, yeah.
“[THE COURT]: And it’s hard to remember what happened on Friday?
“[JN4]: Well, some things I remember very well, but it was getting – you know, I was being accused of being emotional, but there were several other very emotional people in the room.
“[THE COURT]: So would it be fair to say that from your point of view any of the suggestions that have been made here during this hearing are not true, simply not true?
“[JN4]: Everything you’ve asked me directly is – I said it wasn’t true, it’s not true.
“[THE COURT]: Is there any reasons why you cannot follow the law in this case?
“[JN4]: I’ve been attempting to follow the law in this case, you know, from the beginning, and that’s been my – I’ve been trying to help other jurors on the jury to follow the law.”
The court continued questioning JN4 about other topics that had been raised by other jurors before dismissing him. The court then examined each of the remaining jurors individually. Of these, JN1 expressed the belief that at least one juror had a personal bias and that it was interfering with the decision-making process. It was significant to him that this juror talked “a couple times” about knowing people who had either committed or were accused of committing sexual crimes. JN1 felt that JN4 “has an agenda, a predetermined outcome, and may have some feelings before this trial even started. Perhaps it had something to do with people convicted of sexual crimes being mistreated and misjudged by our society or that we’re unduly harsh on some of these people.” JN1 also said JN4 “doesn’t really answer questions. [¶]... [¶] You’ll ask him a direct question, he’ll deflect it to some other topic and never really answer you.” JN1 also described the jury’s frustration with having one dissenter among them “because we kind of see something that we think is pretty clear cut. And he’s really defensive.”
JN6 stated that it appeared to him that one juror was not following the law. This juror had said “he knows a person who’s been accused of a similar crime and that he seems to be very sympathetic to the position of the defendant.” JN6 said JN4 valued defense expert testimony more than prosecution expert testimony. According to JN6, JN4 said that labeling respondent an SVP “would be like putting a scarlet letter on him.” The jury had asked the court to answer the questions about consequences so that “it would be a matter of record from the standpoint of him understanding [that] [w]e could not deliberate what the consequences were.”
JN9, JN3, JN11 and JN7 testified that no juror had talked about knowing a child molester. To JN9, it seemed that all of the jurors were following the law and deliberating. JN3 felt everyone was deliberating, although one person “seems to be thinking, like, emotional, like a personal thing, I mean.” JN11 testified that one person seemed to be “blocking everything out.” It made him “wonder” if there was anything that had happened to him or his family that was entering into his decision. However, JN11 “totally believe[d]” JN4 was following the law, and was participating in discussions, but he simply came to a different conclusion. JN7 testified that one juror “did not want to deliberate or accept what we try to talk about and deliberate. He’s not open.” JN7 also testified that JN4 did talk and discuss with the other jurors, but complained that “he stays in the same position.” JN7 felt that JN4 did explain his reasons for why he believed what he believed, somewhat.
At first, JN12 did not recall that anyone had mentioned knowing a child molester, but on further reflection recalled that JN4 had mentioned “something about knowing a child molester” but he did not go into detail “[a]nd that was the end of it.” JN12 couldn’t say that JN4 really discussed the issues “because he asks questions about everybody else, and when you ask him a question, he’s not really straight with his answer.”
JN8 testified that he would add one thing to what he had said on Friday: “I hope you understand this is not judging a man and that I believe that this is a person who – and I’m speaking of the other juror – I believe to be a really good person, just in a very difficult place personally and not being able to see anything objective.” JN8 testified that the way he remembered it four days later, JN4 had volunteered the information about knowing a child molester and victims in the context of explaining why this was a very difficult, emotional case for him. As JN8 saw it, “you can know a child molester and think that the punishment wasn’t harsh enough and unfortunately try to take that out on Mr. Towne, or you might think that the punishment was too tough and unfortunately take that out on the State’s case. [¶] [T]he information about knowing somebody and saying that this is very emotional for you because you know that person just doesn’t have any place in a jury room.”
JN10 testified that two jurors, one of them JN11, were still considering consequences, in that they felt very strongly because of their own personal feelings that a potentially dangerous person should not be released. JN10 also testified that it was “hard to say” whether JN4 was sympathetic to Towne because of his acquaintance with a child molester. According to JN10, JN4 “seemed to feel that it’s not in any way biasing, having a bias in favor necessarily, but I have a feeling that there is a feeling of wanting the evidence to support this person.”
JN5 did not want to retract anything s/he said on Friday. JN5 reiterated that JN4 had brought up his “[e]xtensive acquaintance” with people he knew and had made “statements like ‘A certain witness confirmed the conclusions I’d already come to, ’ indicating that they’d already made up their mind about the case before coming into the deliberation room.”
After hearing argument from the attorneys, the court stated that much to its surprise, it had “a very negative feeling towards [JN4]’s testimony.” The court felt he was “deceptive” and was “not being honest.” Consequently, the court “had trouble” believing him. The court’s view of JN4’s credibility was based on the words he used, the way he answered the questions, the way he wasn’t answering the questions, his body language and his hesitancy. The court found other jurors, particularly JN8 and the foreperson, JN1, “extremely believable with really no personal ax to grind.” The court concluded: “I think there is no question that there was a failure to deliberate, a failure to follow instructions, and that [JN4] has engaged in juror misconduct. I find that the standard of demonstrable reality has been met, and I therefore will excuse [JN4].”
Applicable Legal Principles and Standard of Review
Under Penal Code section 1089, a juror may be discharged and replaced with an alternate in the case of death, illness, “or upon other good cause shown to the court” that a juror is “unable to perform his... duty.” (Pen. Code, § 1089.) Because our Supreme Court has recently given very explicit directions on how a reviewing court should approach its task in applying section 1089, we will quote liberally from the high court’s opinion in People v. Barnwell (2007) 41 Cal.4th 1038. “A juror who is actually biased is unable to perform the duty to fairly deliberate and thus is subject to discharge.... [¶] A distinction must be made, of course, between a juror who cannot fairly deliberate because of bias and one who, in good faith, disagrees with the others and holds his or her ground. ‘The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views. [Citation.]’ [Citation.] [¶] Removing a juror is, of course, a serious matter, implicating the constitutional protections defendant invokes. While a trial court has broad discretion to remove a juror for cause, it should exercise that discretion with great care. [¶]... [¶] [W]e explicitly hold that the more stringent demonstrable reality standard is to be applied in review of juror removal cases. That heightened standard more fully reflects an appellate court’s obligation to protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased jury. [¶] A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. [Citation.] Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding. [¶] The demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides. A trial court facilitates review when it expressly sets out its analysis of the evidence, why it reposed greater weight on some part of it and less on another, and the basis of its ultimate conclusion that a juror was failing to follow the oath. In taking the serious step of removing a deliberating juror the court must be mindful of its duty to provide a record that supports its decision by a demonstrable reality. [¶] The evidence bearing on the question whether a juror has exhibited a disqualifying bias during deliberations may be in conflict. Often, the identified juror will deny it and other jurors will testify to examples of how he or she has revealed it. [Citation.] In such a case the trial court must weigh the credibility of those whose testimony it receives, taking into account the nuances attendant upon live testimony. The trial court may also draw upon the observations it has made of the jurors during voir dire and the trial itself. Naturally, in such circumstances, we afford deference to the trial court’s factual determinations, based, as they are, on firsthand observations unavailable to us on appeal.” (People v. Barnwell, supra, 41 Cal.4th at pp. 1051-1053.)
Analysis
At the outset, we must dispel any notion that the trial court here would have been justified in discharging JN4 because he may have begun to form his opinions before the start of deliberations, did not see the evidence the same way the other jurors did, disagreed with the other jurors about which evidence was more persuasive, had to be prodded to write down his oral vote, became defensive upon having his views challenged by 11 other jurors, or felt deliberations had turned hostile when other jurors did not. We agree with Towne that many of the complaints made about JN4 by some of the majority jurors revealed nothing more than their belief that JN4’s failure to accept their reasoning itself showed bias on his part. It is abundantly clear on this record that the majority jurors were very frustrated by JN4, that JN4 perceived their frustration as hostility, and that the majority jurors “did not see their own behavior as hostile.” This does not, however, demonstrate that JN4 had a disqualifying bias.
Nevertheless, the fact remains that several of the jurors perceived that JN4’s disagreement was somehow tied to, and fueled by, his personal relationship with an accused or convicted child molester. While it is true, as the parties agree, that “mentioning personal experiences or bringing understanding gleaned from them, such as the knowledge that people can change, is permissible, ” it is an entirely different matter for a juror to tether his or her decision to some factor outside the trial record. “A jury’s verdict in a criminal case must be based on the evidence presented at trial, not on extrinsic matters.” (People v. Leonard (2007) 40 Cal.4th 1370, 1414.)
Here, the trial court questioned JN4 and the other jurors extensively about JN4’s revelation of his relationship with a child molester, how it came up during deliberations, and what effect it had on the deliberative process for JN4 and for the others. There was a conflict in the evidence – some jurors even denied that anyone had mentioned knowing a child molester. On the other hand, JN8, whom the court found to be among the most credible jurors, recalled that JN4 had volunteered the information about knowing a child molester and victims in the context of explaining why this was a very difficult and emotional case for him. JN8 believed that JN4 was a good person who was “just in a very difficult place personally.” But, as he explained, “information about knowing somebody and saying that this is very emotional for you because you know that person just doesn’t have any place in a jury room.” JN8’s observations were corroborated by JN1, who was also singled out by the trial court as being particularly credible, as well as by JN5, who brought the matter to the court’s attention initially. S/he said that when the jurors exchanged their views on the evidence and the law, one juror’s opinions brought forth mention of that juror’s personal experiences with one or more child molesters with whom the juror appeared to have “close relationships, ” and that the juror had expressed emotions relating to those opinions.
JN4 denied that his relationship with a relative who was a convicted child molester had any effect on his decision-making, but the trial court was not required to accept that denial at face value. (People v. Diaz (2002) 95 Cal.App.4th 695, 704; People v. Williams (1990) 218 Cal.App.3d 1477, 1485.) In fact, the trial court found that JN4 was not a credible witness, based on the evasiveness and hesitancy of his answers, and his body language.
The court’s reasons in this case for discharging JN4 could have been more explicit in stating the factual basis for its findings that JN4 had failed to deliberate, failed to follow instructions, and had engaged in juror misconduct. Barnwell teaches that “[a] trial court facilitates review when it expressly sets out its analysis of the evidence....” (Barnwell, supra, 41 Cal.4th at p. 1053.) Nevertheless, the jurors’ testimony, in conjunction with the court’s statements of reasons, especially its credibility determinations, satisfies us that the trial court did actually rely on evidence it found credible – and rejected evidence from JN4 it did not find credible – to support its conclusion that JN4’s relationship with his wife’s nephew, a convicted child molester, had caused him such emotional anguish and concern for the consequences of an SVP designation that it prevented him from dispassionately and impartially deciding Towne’s case. While “the demonstrable reality test entails a more comprehensive and less deferential review” than the substantial evidence standard, we are mindful that it does not permit the reviewing court to make credibility determinations or substitute its judgment for the trial court’s. (Id., at p. 1052.) On the contrary, “we afford deference to the trial court’s factual determinations.” (Id., at p. 1053.) Given those determinations, which the trial court expressly set forth, we cannot find that the trial court erroneously found that JN4 had exhibited a disqualifying bias during deliberations, and discharged him from the jury for that reason.
F. Non-Compliance with the APA
Whenever a person in the custody of the Department of Corrections (CDC) is referred to the DMH for evaluation as a sexually violent predator, section 6601 of the SVPA specifies that two practicing psychiatrists or psychologists (or one of each) must evaluate the person “in accordance with a standardized assessment protocol, developed and updated by the State Department of Mental Health, to determine whether the person is a sexually violent predator as defined in this article.” (§ 6601, subds. (c).) “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 of Mental Health shall forward a request for a petition for commitment under Section 6602 to the county....” (§ 6601, subd. (d).) “The purpose of this evaluation is not to identify SVP’s but, rather, to screen out those who are not SVP’s.” (People v. Medina (2009) 171 Cal.App.4th 805, 814, review denied (Medina).)
For the first time on appeal, Towne contends that the standardized assessment protocol (hereafter protocol) used to screen him was not adopted in compliance with the Administrative Procedure Act (APA), and therefore “the court lacked jurisdiction to proceed with the petition and the petition should have been dismissed.” He also argues that he has not forfeited that claim because it raises a pure issue of law.
The Attorney General does not dispute that on August 15, 2008, the Office of Administrative Law (OAL) held that portions of this protocol met the definition of a “regulation” (per Gov. Code § 11342.600), but were not adopted in compliance with the APA. (2008 OAL Determination No. 19, Aug. 15, 2008 (OAL file No. CTU 2008-0129-01) <http://www.oal.ca.gov/res/docs/pdf/determinatons/2008/2008_OAL_Determination _19.pdf> [as of Mar. 4, 2011].) “A regulation found not to have been properly adopted is termed an ‘underground regulation.’ ‘ “An underground regulation is a regulation that a court may determine to be invalid because it was not adopted in substantial compliance with the procedures of the [APA].” ’ ” (Medina, supra, 171 Cal.App.4th at pp. 813-814.) The OAL’s determination in this regard is not binding on the courts, but is entitled to deference. (Id., at p. 814.) The Attorney General argues that the OAL’s decision was erroneous and is not deserving of deference. We need not resolve that issue, however, because even assuming the correctness of the OAL’s determination, we reject defendant’s contention.
We take judicial notice of the fact that the OAL issued such a ruling in 2008. (Evid. Code, § 452, subd. (b).)
In Medina, supra, 171 Cal.App.4th 805, the Court of Appeal addressed and rejected a jurisdictional argument such as defendant makes here. In that case the court observed: “Although Medina contends that the initial trial court lacked fundamental jurisdiction over his petition, thereby producing a void judgment, his claim does not call into question the court’s personal or subject matter jurisdiction. As to personal jurisdiction, there is no evidence to suggest, and Medina does not contend, that he lacked minimum contacts with the State of California [citations] or that he was not served with the documents necessary to initiate the proceedings. [Citation.] As to subject matter jurisdiction, the superior court was undoubtedly the appropriate court to hear the commitment petition (Welf. & Inst. Code, §§ 6602, 6604), and there is no claim of untimeliness. [Citations.] Instead, Medina’s argument is that the court had no jurisdiction (or power) to act... without the occurrence of certain procedural prerequisites’ [citation], i.e., section 6601 evaluations conducted pursuant to a valid protocol.... [T]his is an argument that the court acted in excess of its jurisdiction, rather than without fundamental jurisdiction. [Citations.] [¶]... [¶]... The distinction between a lack of jurisdiction over the cause and an act in excess of jurisdiction has significant consequences. For instance, subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel. [Citation.] [Citation.] By contrast, when a court possesses subject matter jurisdiction, a party who seeks or consents to action beyond the court’s power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. [Citations.] [Citation.] In addition, objections to acts in excess of a court’s jurisdiction may be subject to bars including waiver (the intentional relinquishment of a known right) and forfeiture (the loss of a right through failure of timely assertion). [Citation.] When Medina admitted the allegations of the original petition, in effect consenting to entry of the commitment order, he forfeited a later challenge to that entry as an act in excess of the court’s jurisdiction.” (Medina, at pp. 816-818, fn. & internal quotation marks omitted.)
Towne’s jurisdictional challenge does not call into question the court’s personal or subject matter jurisdiction, but only an act alleged to be in excess of the court’s jurisdiction, which may be forfeited. Here, Towne forfeited his challenge to the validity of the evaluations by failing to challenge their validity in the trial court. (People v. Jennings (1991) 53 Cal.3d 334, 357 [failure to demur to information waives objection on appeal].)
In addition, Towne has not shown that he was prejudiced by the use of a non-APA-compliant protocol in the screening process for SVP consideration. It is true that if the evaluations do not screen out a person under consideration as an SVP, they lead directly to a probable cause hearing at which the evaluators’ opinions, as revealed in their evaluations, play a significant role. (§ 6601, subds. (c) & (d); Cooley v. Superior Court (2002) 29 Cal.4th 228, 247.) Nevertheless, “the probable cause hearing in a SVP proceeding is analogous to a preliminary hearing in a criminal case. Under the rule of People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, which has been regularly applied in SVPA appeals [citations], irregularities in a preliminary hearing require reversal only if a defendant can demonstrate that he or she was deprived of a fair trial or otherwise suffered prejudice.” (Medina, supra, 171 Cal.App.4th at pp. 818-819.)
Moreover, a showing of prejudice is required by article VI, section 13, of the California Constitution, which provides that a judgment cannot be set aside “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” The burden rests on Towne to make the requisite showing. (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) He has not done so. He has not shown that dismissal of the petition on the grounds that the protocol was not APA-compliant would have resulted in an abandonment of the commitment proceedings. He has not shown that if he had been evaluated under an APA-compliant protocol, there is a reasonable probability that he would have been found not to be an SVP. He has not shown that the proceedings were rendered unfair by reliance on a non-APA-compliant protocol. We therefore reject Towne’s belated challenge to the evaluations or the screening procedure.
G. Due Process, Ex Post Facto and Double Jeopardy
Towne argues that the amended SVPA deprives him of due process of law under the Fourteenth Amendment of the federal constitution and article 1, section 7 of the state constitution “by providing insufficient means of ensuring the release of people who are no longer dangerous.” He also argues that the amended SVPA violates the Ex Post Facto and Double Jeopardy clauses of article 1, section 10 of the federal constitution and article 1, section 9 of the state constitution because it is “now punitive in intent and in effect.”
While Towne’s appeal was pending, our Supreme Court decided McKee, supra, 47 Cal.4th 1172, in which the high court rejected the contentions that the amended SVPA violates due process or the prohibition against Ex Post Facto laws. In McKee, the Supreme Court found no deprivation of due process by virtue of the statute’s placement of the burden, after the initial commitment, on the committed person to show by a preponderance of the evidence that he or she no longer meets the statutory criteria for commitment as a sexually violent predator. (Id., at p. 1191.) The McKee court also found no violation of procedural due process in the statute’s provision of trial court discretion to deny as frivolous a committed person’s petition for conditional release. “The fact that the statute gives the court the authority to deny such petitions does not, of itself, serve as an obstacle to the primary due process goal of ensuring that only those individuals who continue to meet SVP criteria will remain involuntarily committed.” (Id., at p. 1192, italics added.) Finally, the McKee court construed the amended SVPA as providing for the appointment of a state-funded mental health expert in conjunction with a petition for release initiated by the committed person. “Given that the denial of access to expert opinion when an indigent individual petitions on his or her own to be released may pose a significant obstacle to ensuring that only those meeting SVP commitment criteria remain committed, we construe section 6608, subdivision (a), read in conjunction with section 6605, subdivision (a), to mandate appointment of an expert for an indigent SVP who petitions the court for release. [¶] Construing the amended [SVPA] in the above manner, we conclude it does not violate the due process clause.” (Id., at p. 1193.)
With respect to the Ex Post Facto clause, the McKee court concluded that “the Proposition 83 amendments at issue here cannot be regarded to have changed the essentially nonpunitive purpose of the [SVPA], ” and therefore the amended SVPA does not violate the Ex Post Facto clause. (McKee, supra, 47 Cal.4th at p. 1194.) Although the McKee court did not address double jeopardy, it is well established that the initiation of civil commitment proceedings does not constitute a second prosecution for double jeopardy purposes. (Kansas v. Hendricks (1997) 521 U.S. 346, 369.) Furthermore, McKee’s conclusion that the amended SVPA is not punitive in nature dooms defendant’s double jeopardy claim. (McKee, at pp. 1194-1195.) As an intermediate appellate court we are bound by McKee. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, we reject Towne’s due process, ex post facto, and double jeopardy claims.
H. Equal Protection
Towne argues that the amended SVPA denies him the equal protection of the law guaranteed by the Fourteenth Amendment to the federal constitution because it treats persons committed under the SVPA differently than those committed under the Mentally Disordered Offender (MDO) Act (Pen. Code, § 2960 et. seq.) and those committed as insanity acquittees (Pen. Code, § 1026 et. seq.) with respect to the length of their commitments and the procedural rights to review afforded them. In McKee, our Supreme Court found this argument potentially meritorious.
McKee found that SVPs and MDOs are similarly situated for equal protection purposes because they have been involuntarily committed with the objectives of treatment and protection of the public. (McKee, supra, 47 Cal.4th at p. 1202.) The court also found that SVPs have “different and less favorable procedural protections” than MDOs because “SVP’s under the amended [SVPA] are given indeterminate commitments and thereafter have the burden to prove they should be released (unless the [Department of Mental Health] authorizes a petition for release). In contrast, an MDO is committed for one-year periods and thereafter has the right to be released unless the People prove beyond a reasonable doubt that he or she should be recommitted for another year.” (Ibid.) The court rejected the view that the “legislative findings recited in the [Proposition 83] ballot initiative” were sufficient to justify the disparate treatment of SVPs and MDOs. (Id., at p. 1207.)
McKee also found that SVPs and NGIs are similarly situated and a “comparison of the two commitment regimes raises similar equal protection problems....” (McKee, supra, 47 Cal.4th at p. 1207.) With respect to both the mentally disordered offender and insanity acquittal commitment schemes, the McKee court held that “the People have not yet carried their burden of justifying the differences between the SVP and [the other] commitment statutes.” (Ibid.) However, the McKee court did “not conclude that the People could not meet its burden of showing the differential treatment of SVP’s is justified. We merely conclude that it has not yet done so. Because neither the People nor the courts below properly understood this burden, the People will have an opportunity to make the appropriate showing on remand. It must be shown that, notwithstanding the similarities between SVP’s and MDO’s, the former as a class bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society.” (Id., at pp. 1207-1208.) Accordingly, the McKee court remanded the case “to the trial court to determine whether the People, applying the equal protection principles articulated in [In re Moye (1978) 22 Cal.3d 457] and related cases discussed in the present opinion, can demonstrate the constitutional justification for imposing on SVP’s a greater burden than is imposed on MDO’s and NGI’s in order to obtain release from commitment. The trial court may, if appropriate, permit expert testimony. [¶]... On remand, the government will have an opportunity to justify Proposition 83’s indefinite commitment provisions, at least as applied to McKee, and demonstrate that they are based on a reasonable perception of the unique dangers that SVP’s pose rather than a special stigma that SVP’s may bear in the eyes of the California electorate. [¶] Moreover, we emphasize that mere disagreement among experts will not suffice to overturn the Proposition 83 amendments. The trial court must determine whether the legislative distinctions in classes of persons subject to civil commitment are reasonable and factually based – not whether they are incontrovertible or uncontroversial. The trial court is to determine not whether the statute is wise, but whether it is constitutional.” (McKee, supra, 47 Cal.4th at pp. 1208-1211, fns. omitted.)
In light of McKee, Towne’s case, too, must be reversed. In accordance with the California Supreme Court’s decision in McKee, we will reverse the order committing Towne to the Department of Mental Health for an indeterminate period.
IV. CONCLUSION
The trial court did not err by modifying CALCRIM No. 3454. The trial court did not err by modifying CALCRIM No. 200. Assuming the trial court erred by instructing the jury with Penal Code section 290.04, any error was harmless. The trial court did not err in excluding defense evidence of parole conditions to which Towne would be subject if he were unconditionally released into the community, or in allowing prosecution evidence of his need for supervision and constraints. The trial court did not err by discharging a juror. Defendant is not entitled to release because the protocol used to screen him as an SVP was not APA-compliant. The SVPA does not violate the due process, ex post facto or double jeopardy clauses of the state or federal constitutions. The SVPA may violate the equal protection clauses of the state or federal constitutions, depending on the outcome of proceedings in People v. McKee.
V. DISPOSITION
The judgment is reversed, and the case is remanded to the trial court for reconsideration of Towne’s equal protection argument in light of McKee, supra, 47 Cal.4th 1172, and the resolution of the proceedings on remand in that case (id., at pp. 1208-1211), including any proceedings in the Superior Court of San Diego County in which McKee may be consolidated with related matters. The trial court shall suspend further proceedings in this case pending finality of the proceedings on remand in McKee. “Finality of the proceedings” shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.
WE CONCUR: BAMATTRE-MANOUKIAN, Acting P.J., DUFFY, J.