the meaning of the word "likely"; (4) cumulative error requires reversal; (5) the SVPA
violates the equal protection, double jeopardy, due process, and ex post facto clauses of
the federal constitution; and (6) his equal protection rights under the state and federal
constitutions were violated when the court permitted the District Attorney to call Field as
a witness over his objection. Regarding Field's last contention, he argues that because a
person found not guilty of crimes by reason of insanity (NGI) may not be compelled to
testify at hearings to extend his or her commitment, neither should a person found to be
an SVP be compelled to testify.
We conclude Field's equal protection claim involving testifying at trial may have
merit and remand the matter to the superior court for an evidentiary hearing on that issue.
We reject Field's other contentions.
FACTUAL AND PROCEDURAL BACKGROUND
A. Field's Sexual Misconduct
Field has a long history of sexual misconduct. In 1972, Field convinced a five-
year-old boy that was playing outside to follow Field inside his home. Once inside, Field
molested him. Field was convicted of violating Penal Code section 288.
1 Statutory references are to the Welfare and Institutions Code unless otherwise specified. 2
The following year, Field married a woman named Patricia and lived with her and
her three sons, whom he adopted. From around 1974 to 1981, Field molested his adopted
son Joseph. Joseph was about five years old at the time Field started molesting him.
Field would fondle and orally copulate Joseph and then force Joseph to fondle him.
During this time, Field also was regularly molesting one of his other sons, Eric. Field
molested Eric over the course of several years, starting when Eric was around four years
old. Field forced Eric to submit to and perform oral copulation.
During this same time period, Field also molested a nine-year-old cousin of Joseph
and Eric. Field was convicted of violating Penal Code section 288 for his offenses
against Eric. He subsequently was committed to a state hospital for treatment as a
mentally disordered sex offender. However, he was kicked out of treatment and sent
back to prison because he disregarded the hospital's rules and was "unamenable to
treatment."
After Field was released, Field moved to Montana with his wife and Eric. In
1986, Field was convicted of molesting his young neighbor, who was nine or 10 years old
at the time, after he kissed the boy all over his genital area and body. He was sentenced
to 16 years in prison with eight years suspended.
After Field was released for this offense, for the next eight years, Field would have
sex with teenage boys in an attempt to "change his sexual attraction" from young boys.
The boys were reported to be between 15 and 18 years old. Field claimed they were all
over the age of 16.
3
Field became a long haul truck driver so that he could reduce his contact with
children. While on the road as a truck driver, Field had sex with prostitutes, both male
and female, but stated they were all above the age of consent.
Also, while working as a truck driver Field was at a truck stop when he saw two
young children by themselves. He bought them food and gave them money to play video
games. When the manager came by and saw Field with the children, he asked Field if he
was related to the children. When Field said no, the manager told the children to leave.
In 1991, Field wrote a letter to Joseph and said that if he had the opportunity, he
would molest Joseph's three-year-old son.
During this time, Field was vocal about his sexual attraction to children.
In 2006, Field was arrested for possession of amphetamine and controlled
substance paraphernalia. While he was in custody, Field started rubbing the leg and
genital area of an inmate he was handcuffed to, despite the man's attempts to stop him.
The inmate was a young man in his early 20's.
Field has been housed at Coalinga State Hospital since 2009. He has not
participated in treatment there. Between 2012 and 2013, there were three incidents
involving Field at the hospital. Field grabbed the hand of another patient and put it on his
crotch. Field also gave another patient an enema after the patient asked for one. A nurse
was present outside the open door while Field gave the patient an enema. Finally, Field
kissed the forehead of a demented, older male patient and put his arm around him. Field
claimed the patient needed some support.
4
At the time of his trial, Field was 63 years old. He planned to return to work as a
truck driver if released.
Prosecution's Experts2
Drs. Erik Fox and Preston Sims are licensed psychologists who testified for the
prosecution. Both worked as SVP evaluators for the Department of State Hospitals, and
evaluated Field to determine whether he met the statutory criteria for civil commitment as
an SVP. The applicable criteria consists of: (1) was the individual convicted of a
qualifying sexually violent offense; (2) does the individual have a diagnosable mental
disorder predisposing him to commit criminal sexual acts; and (3) is the individual likely
to commit future predatory sexually violent acts.
Dr. Fox reviewed Field's medical and criminal records as well as his sexual
history. He found that the 1972 and 1981 convictions were qualifying offenses under the
SVPA. Based on his review of Field's "long history of having an arousal to children and
acting on that arousal," he diagnosed Field with pedophilic disorder, alcohol dependence,
amphetamine abuse, and a personality disorder. Dr. Fox explained that pedophilic
disorder is a lifelong condition that cannot go into remission. Given that Field's
numerous convictions, incarcerations, and attempts to receive treatment did not deter his
criminal conduct, Dr. Fox opined that Field's pedophilic disorder caused him serious
difficulty controlling his behavior.
2 Although a proceeding under the SVPA is civil in nature (People v. Allen (2008) 44 Cal.4th 843, 860, we follow the common practice of characterizing the parties to the action as the "prosecution" and "defense" (see, e.g., id. at p. 866). 5
Dr. Sims also diagnosed Field with pedophilic disorder. Dr. Sims noted that, as
recently as 2006, Field had told his probation officer that he was a pedophile and, in
2009, he also told his evaluators that he was sexually attracted to children. He also noted
that although Field was only convicted for his sexual offenses as to one of his adopted
sons, Field had since admitted that he molested all three. Dr. Sims opined that Field was
sexually preoccupied and that, given the frequency of his offenses and convictions, Field
had emotional and volitional impairment.
Both doctors opined that, as a result of his mental disorder, Field was likely to
engage in sexually violent predatory behavior if released. They based their opinions, in
part, on the use of the Static-99R, an actuarial tool used to assess an offender's risk of
recidivism. Both doctors independently scored Field as a six on the diagnostic scale,
which placed him in the high risk category. Field's risk score placed him within a group
of offenders that have a 29.4 percent recidivism risk within a five-year period, which Dr.
Fox opined was a "substantial" risk.
Defense Expert
Dr. Mary Jane Alumbaugh, a licensed psychologist, evaluated Field and testified
in his defense. She diagnosed Field with pedophilic disorder; however, she opined that
Field did not have serious difficulty controlling his pedophilic behavior. She based her
opinion on the fact that Field is getting older and explained that recidivism literature
shows a decline in sexual offenses as a person ages. She noted that Field's last offense
was in 1987 and that during the time he was in the community, between periods of
incarceration or commitment, he did not offend against children. Using the Static-99R
6
assessment tool, Dr. Alumbaugh scored Field with a three, which put him in the
"low/moderate risk category." Based on these considerations, Dr. Alumbaugh opined
that Field was not likely to reoffend, and thus that he was not an SVP.
DISCUSSION
I
SVPA
We need not provide a detailed explanation of the SVPA as the California
Supreme Court has done that on numerous occasions. (Reilly v. Superior Court (2013)
57 Cal.4th 641, 646 (Reilly); In re Lucas (2012) 53 Cal.4th 839, 845; People v. McKee
(2010) 47 Cal.4th 1172, 1183, 1185 (McKee I); People v. Roberge (2003) 29 Cal.4th 979,
982, 984 (Roberge); People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 893, 902
(Ghilotti).)
Suffice it to say, the SVPA provides for indefinite involuntary civil commitment
of certain offenders who are found to be SVP's following the completion of their prison
terms. (McKee I, supra, 47 Cal.4th at pp. 1186-1187.) Except for nonsubstantive
differences in grammar, the SVPA tracks verbatim the Kansas SVP law approved in
Kansas v. Crane (2002) 534 U.S. 407 (Crane), and Kansas v. Hendricks (1997) 521 U.S.
346 (Hendricks). (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1157 (Hubbart).)
Section 6600, subdivision (a)(1), states: " 'Sexually 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."
7
To establish that a person is an SVP, the prosecution is required to prove the
following: (1) the offender has been convicted of a qualifying sexually violent offense
against at least two victims; (2) the offender has a diagnosed mental disorder; (3) the
disorder makes it likely the offender would engage in sexually violent conduct if
released; and (4) this sexually violent conduct will be predatory in nature. (Roberge,
supra, 29 Cal.4th at pp. 984-985.) The prosecutor must establish these elements beyond
a reasonable doubt and the jury verdict must be unanimous. (Reilly, supra, 57 Cal.4th at
p. 648.)
II
JURY INSTRUCTIONS
Field raises two issues regarding jury instructions. First, he claims the trial court
prejudicially erred in refusing to provide a pinpoint instruction telling the jury that Field's
mental diagnosis must cause him serious difficulty controlling his behavior. Second,
Field contends the court did not properly instruct the jury as to the definition of "likely."
We reject both contentions.
A. The Requested Pinpoint Instruction
Prior to trial, Field filed a motion requesting the trial court to provide the jury with
the following pinpoint jury instruction modifying CALCRIM No. 3454:
"In order to find that Respondent meets the criteria as a sexually violent predator, as that term is described in these instructions, Petitioner must prove that:
"1. Respondent suffers from a diagnosed mental disorder, as defined elsewhere in these instructions;
8
"AND
"2. That diagnosed mental disorder must cause Respondent to have serious difficulty in controlling his sexually violent behavior;
"AND
"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 predatory criminal behavior."
The prosecutor opposed the motion, arguing that the California Supreme Court
held the standard definition of "diagnosed mental disorder" contained in CALCRIM No.
3454 encompassed the requested pinpoint instruction and that no additional language was
necessary. The trial court denied the motion and provided the jury with an instruction
consistent with CALCRIM No. 3454 as follows:
"The petition alleges that Martin Field is a sexually violent predator. To prove this allegation, the People must prove beyond a reasonable doubt that: One, he has been convicted of committing sexually violent offenses against one or more victims; two, he has a diagnosed mental disorder; and, three, 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 criminal behavior.
"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 predisposed[3] 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 more likely to engage in a sexually violent predatory criminal behavior if there is a substantial danger, that is, a serious and well-founded risk, that the person will engage in such conduct if
3 The trial court used the word "predisposed" when it instructed the jury. The written instruction, however, contained the term "predispose." 9
released into the community. The likelihood that the person will engage in such conduct does not have to be greater than 50 percent but be much more than a mere possibility."
B. Analysis
Relying on Crane, supra, 534 U.S. 407, Field contends that, under federal law, a
person cannot be subjected to civil commitment unless he suffers from a mental disorder
making it seriously difficult for him to control his dangerous behavior. Field thus asserts
the trial court committed reversible error by denying his request for a pinpoint instruction
that explained this legal principle.
In People v. Williams (2013) 31 Cal.4th 757 at pages 774 through 776 (Williams),
the California Supreme Court rejected a substantially similar argument to that made by
Field. In that case, the petitioner challenged his commitment under the SVPA, arguing
the jury in his case did not receive special, specific instruction regarding the need to find
serious difficulty in controlling behavior. (Williams, supra, at pp. 759-760.) The court
held that specific impairment-of-control instructions are not constitutionally required in
California. (Id. at pp. 776-777.) The court reasoned the language of the SVPA
"inherently encompasses and conveys to a fact finder the requirement of a mental
disorder that causes serious difficulty in controlling one's criminal sexual behavior."
(Williams, supra, at p. 759.)
The court also expressly concluded that "[Crane], supra, 534 U.S. 407, does not
compel us to hold that further lack-of-control instructions or findings are necessary to
support a commitment under the SVPA." (Williams, supra, 31 Cal.4th at pp. 774-775.)
In reaching this conclusion, our high court emphasized: "[A] judicially imposed
10
requirement of special instructions augmenting the clear language of the SVPA would
contravene the premise of . . . [Crane], supra, 534 U.S. 407, that, in this nuanced area,
the Legislature is the primary arbiter of how the necessary mental-disorder component of
its civil commitment scheme shall be defined and described." (Williams, supra, at p. 774;
italics omitted.)
Field acknowledges Williams, supra, 31 Cal.4th 757, but argues that Crane, supra,
534 U.S. 407 and Williams are in conflict, and as such, we must follow the opinion of the
United States Supreme Court. (See Cooper v. Aaron (1958) 358 U.S. 1, 17-19.)
However, in Crane, the United States Supreme Court did not address the constitutionality
of the SVPA, but, in Williams, the California Supreme Court did so while considering the
impact of Crane as part of its analysis. (See Williams, supra, at pp. 774-775.) Therefore,
we do not agree that the two cases are in conflict on the issue before us. Consequently,
Field is asking us to either ignore or overrule Williams. This we cannot do. We are
bound by Williams and thus summarily reject Field's argument. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)
Alternatively, Field asserts that even if we follow Williams, supra, 31 Cal.4th
757, and find, in general, CALCRIM No. 3454 is proper, under the specific
circumstances of this case, a pinpoint instruction was necessary. To this end, Field insists
when the trial court instructed the jury with the word "predisposed" instead of
"predispose" within CALCRIM No. 3454, it rendered the instruction ambiguous. Field
claims that the use of the word "predisposed" allowed the prosecution to emphasize
11
Field's recidivism to prove volitional impairment as opposed to requiring the prosecution
to prove that he has a serious difficulty in controlling his behavior.
The People point out that Field did not challenge the court's use of the word
"predisposed" at trial, and therefore, Field forfeited his instant challenge. (People v. Lee
(2011) 51 Cal.4th 620, 638.) We agree with the People on this point. Yet, even if we
were to consider Field's contention on the merits, we would find his argument wanting.
As Field is claiming the jury instruction is ambiguous, we must view the
instructions as a whole to determine whether there was a reasonable likelihood the jury
was misled by the claimed error. (People v. Tate (2010) 49 Cal.4th 635, 696.) Field
argues that the term predispose "carries none of the meaning of having a 'serious
difficulty in controlling behavior' " and that it "connotes no more than an inclination or a
tendency . . . ." However, the jury also was instructed it must find that Field's diagnosis
affected his ability to control his behavior and that he posed a "substantial danger" to
others, such that there is a "serious and well-founded risk" that he will commit sexual
criminal acts if released into the community. These instructions, considered together,
made clear to the jury that Field's mental diagnosis must so affect his ability to control
himself that he is a substantial danger to others and likely to recommit sexual offenses.
Put differently, CALCRIM NO. 3454 required Field to be indefinitely committed as an
SVP if the prosecution proved beyond a reasonable doubt that he had serious difficulty
controlling his deviant behavior. The fact that the judge instructed the jury with the word
"predisposed" in lieu of "predispose" did not meaningfully alter CALCRIM No. 3454 or
otherwise render it ambiguous.
12
Finally, the foundation of Field's alternative argument remains that we must follow
Crane, supra, 534 U.S. 407. As we discuss above, we lack the discretion to simply
ignore Williams, supra, 31 Cal.4th 757, which addressed the very jury instruction
challenged here. (See Auto Equity, supra, 57 Cal.2d at p. 455.) Further, there is nothing
in the record that compels us to distinguish Williams from the instant case. There was no
error in the trial court providing CALCRIM No. 3454 to the jury and refusing to provide
Field's requested pinpoint instruction.
C. The Definition of "Likely"
Prior to trial, Field moved to add language to the definition of the term "likely" in
CALCRIM No. 3454. Field asked the court to modify a portion of the instruction so the
sentence, "The likelihood that the person will engage in such conduct does not have to be
greater than 50 percent" would include the clause, "but must be more than the mere
possibility that he will engage in such conduct." After hearing argument from the parties,
the court granted Field's motion and agreed to modify the jury instruction.
At trial, the court modified the instruction as follows: "The likelihood that the
person will engage in such conduct does not have to be greater than 50 percent but be
much more than a mere possibility." There is no indication in the record that Field
objected to this modified version at trial.
Now, Field maintains the trial court erred in providing the jury with the modified
instruction because it was incomprehensible, at best, and misleading, at worst. We
disagree.
13
As a threshold issue, the People point out that Field did not object to the modified
instruction at trial. Thus, they contend Field forfeited the issue. In general, a party may
not complain on appeal that a given instruction was incomplete or unclear unless the
party requested an appropriate clarifying instruction. (People v. Bolin (1998) 18 Cal.4th
297, 329.) Here, we are faced with a somewhat unique situation. Field requested a
modified instruction, the court agreed to provide the modified instruction, but the actual
modified instruction is slightly different than the version requested by Field. That said,
we are troubled by Field's failure to object at trial in light of his insistence on appeal that
the instruction as given clearly was either incomprehensible or misleading. If the jury
instruction was so obviously incorrect, it begs the question why Field did not object at
trial particularly when the court was attempting to instruct the jury as he requested.
Viewing the lack of objection at trial in this context, we tend to agree with the People that
Field forfeited this challenge.
In regard to the forfeiture issue, Field frames the issue as the trial court neglecting
its sua sponte duty to instruct on general principles of law. In other words, Field
maintains that he had no duty to object to the instruction because it is not a correct
statement of law. We are not persuaded.
"[T]he phrase 'likely to engage in acts of sexual violence' . . . , as used in section
6601, subdivision (d), connotes much more than the mere possibility that the person will
reoffend as a result of a predisposing mental disorder that seriously impairs volitional
control. On the other hand, the statute does not require a precise determination that the
chance of reoffense is better than even. Instead, an evaluator applying this standard must
14
conclude that the person is 'likely' to reoffend if, because of a current mental disorder
which makes it difficult or impossible to restrain violent sexual behavior, the person
presents a substantial danger, that is, a serious and well-founded risk, that he or she will
commit such crimes if free in the community." (Ghilotti, supra, 27 Cal.4th at p. 922;
Roberge, supra, 29 Cal.4th at p. 989 [following Ghilotti's definition of "likely" in regard
to section 6600, subdivision (a)].)
As relevant here, the trial court instructed the jury with a modified version of
CALCRIM No. 3454 as follows: "A person is likely to engage in sexually violent
predatory criminal behavior if there is a substantial danger, that is, serious and well-
founded risk that the person will engage in such conduct if released into the community.
The likelihood that the person will engage in such conduct does not have to be greater
than 50 percent but be much more than a mere possibility." Thus, the jury was told that
to find Field was an SVP, there had to be a "substantial danger" and a "serious and well-
founded risk," that he would reoffend if released. Such language tracked the language in
Roberge, supra, 29 Cal.4th at page 988. Further, we are not troubled by the modification
of the last sentence above. Although the court could have stated it more artfully, the use
of the conjunction "but" makes clear that to find Field was likely to reoffend, the jury had
to be convinced that the likelihood Field would reoffend needed to be much more than a
mere possibility. Considering the instruction as a whole (see People v. Tate, supra, 49
Cal.4th at p. 696), we are confident that no reasonable juror would have understood the
instruction to conclude a mere possibility of reoffending would suffice to qualify Field as
15
an SVP. The instruction was accurate as given and satisfactorily tracked the definition of
likely articulated in Ghilotti, supra, 27 Cal.4th 888 and Roberge, supra, 29 Cal.4th 979.
III
USE OF THE TERM "SEXUALLY VIOLENT PREDATOR"
Field next argues that the use of the term "sexually violent predator" during his
commitment proceeding was unnecessarily inflammatory and a denial of his federal due
process rights. We reject this argument.
A. Background
Field moved in limine to bar, during trial, the use of the term "sexually violent
predator." He asked that words like "meets the criteria" be substituted for "sexually
violent predator" and "qualifying offense" be substituted for "sexually violent offense."
The trial court denied the motion, noting, "Certainly I think there's no way of getting
around using the term that the legislature [has] chosen."
B. Analysis
Field notes that our high court recognized that the SVPA has an "ominous name."
(See Hubbart, supra, 19 Cal.4th at p. 1142.) Despite this observation, the California
Supreme Court was not asked to address the use of the term "sexually violent predator,"
but instead held that the SVPA's scheme did not violate due process, equal protection,
and ex post facto principles. (Hubbart, supra, at pp. 1142-1143.) Nevertheless, based on
Hubbart, Field insists that the term "sexually violent predator" "is a name that is
gratuitously and prejudicially ominous." He then concludes that its repeated use before
the jury was a denial of due process. We disagree.
16
Initially, we observe that Field has not cited any authority where a court found that
the use of the term "sexually violent predator" during a trial under the SVPA was found
to be prejudicial or a violation of the defendant's due process rights. Instead, Field relies
on cases that are not instructive here.
For example, Field cites People v. Earle (2009) 172 Cal.App.4th 372 at page 410
for the proposition that the term "predator" can incite passion and prejudice. However,
Field glosses over the context in which the court made its statement. In that case, the
court was troubled that the prosecutor used the defendant's act of indecent exposure to
argue that the defendant was a "loathsome and dangerous pariah" who decided to commit
sexual assault. (Id. at p. 411.) The court cautioned against "the inherent potential of the
indecent exposure to convey an inflammatory impression of defendant as a deviant or
pervert." (Id. at p. 410.) It was in this vein that the court cautioned that the term
"predator" can incite passion and prejudice. (Ibid.) Nevertheless, the court also stated
that the term predator "connotes . . . one who habitually commits sex offenses
characterized by violence, pedophilia or both." (Ibid.) It then notes that the SVPA
concerns sexually violent predators. (Earle, supra, at p. 410.) It is undisputed that Field
has sexually assaulted minors. It is undisputed that Field is a pedophile. Indeed, Field
has a long and disturbing history of molesting young boys. In short, Field is precisely the
type of sexually violent predator the SVPA was meant to address.
Similarly, we are unpersuaded by Field's reliance on a litany of non-SVPA cases
wherein courts found misconduct when the prosecutors used certain epithets like "slimy
crook" or "Nazi." Here, the trial concerned whether Field should be committed
17
indefinitely to a mental hospital under the SVPA, which required the jury to find Field
was a sexually violent predator. Thus, the term "sexually violent predator" needed to be
defined to the jury and the prosecution had to prove beyond a reasonable doubt that Field
fit that definition. There was nothing improper about the use of the term "sexual violent
predator" during the trial.4
IV
CUMULATIVE ERROR
Field also contends the cumulative effect of the asserted errors rendered the trial
so unfair and unlawful that reversal of the judgment is warranted. Because we hold no
errors exist, this cumulative error argument necessarily fails. (See People v. McWhorter
(2009) 47 Cal.4th 318, 377 [no cumulative effect of errors when no error]; People v.
Butler (2009) 46 Cal.4th 847, 885 [rejecting cumulative effect claim when court found
"no substantial error in any respect"].)
V
CONSTITUTIONALITY OF THE SVPA
Field also asserts the SVPA violates due process, ex post facto, and double
jeopardy provisions of the United States Constitution. In addition, he argues the SVPA
violates equal protection because the burden of proof is placed on SVP's when they seek
release from civil confinement and the Act's term of confinement is indefinite. We have
considered these arguments in light of our Supreme Court's opinion in McKee I, supra,
4 We note that Field does not argue that substantial evidence does not support the jury's finding below. 18
47 Cal.4th 1172, and this court's final opinion on remand in the same case, People v.
McKee (2012) 207 Cal.App.4th 1325 (McKee II). Based on these opinions, we reject
Field's assertions.
A. Due Process and Ex Post Facto Challenges
Field argues the indeterminate commitment term under the SVPA violates the
federal constitution's due process clause. He also contends the SVPA violates the ex post
facto clause of the federal constitution. Nevertheless, he acknowledges the California
Supreme Court has decided against his position on these points. (McKee I, supra, 47
Cal.4th at pp. 1184, 1188-1195.) McKee I is binding on us. (Auto Equity, supra, 57
Cal.2d at p. 455.) We thus summarily reject these challenges.
B. Double Jeopardy Challenge
Additionally, Field maintains his indeterminate commitment under the SVPA
violates the federal constitution's double jeopardy clause as the Act is punitive. Also, he
insists that the restrictions he faces while petitioning for release (he must be committed
for a year before petitioning for release and he bears the burden to prove his suitability
for release) renders the SVPA punitive and thus in violation of the double jeopardy
clause. In support of his argument, he urges us to follow Hendricks, supra, 521 U.S. 346.
In doing so, he emphasizes certain differences between the SVPA and the Kansas law
considered by the United States Supreme Court in Hendricks and argues that if we focus
on these differences, we would have to conclude the SVPA is punitive and therefore
violates the double jeopardy clause.
19
However, Field's argument overlooks that the California Supreme Court,
considering the factors articulated by the United States Supreme Court in Hendricks,
supra, 521 U.S. 346, determined the SVPA is not punitive. (McKee I, supra, 47 Cal.4th
at pp. 1194-1195.) We must follow McKee I. (Auto Equity, supra, 57 Cal.2d at p. 455.)
Because Field's double jeopardy challenge to the Act hinges on our finding that the
SVPA is punitive, this challenge necessarily fails.5
C. Equal Protection Challenge
Field contends that his indeterminate term under the SVPA violates his right to
equal protection. He argues SVP's are similarly situated to mentally disordered offenders
(MDO's) and NGI's, but the groups are treated differently because MDOs' and NGI's are
committed for a limited period of time although, in contrast, SVP's are committed
indeterminately. He also maintains that his equal protection rights are violated by the
SVPA's requirement that SVP's have the burden of proof for release, unlike the MDO and
NGI commitment procedures wherein the People have the burden of proof to show that
the patients should be recommitted. He therefore requests that we remand the instant
case for a hearing to determine if the People can justify his disparate treatment.
5 A similar double jeopardy challenge based on Hendricks, supra, 521 U.S. 346 was rejected by our colleagues in Division Three. (See People v. Landau (2013) 214 Cal.App.4th 1, 44-45 (Landau).) We find Division Three's reasoning on that issue persuasive and follow it here. As such, for the reasons expressed in Landau, supra, at pages 44 through 45, we reject Field's double jeopardy argument as well. 20
In making his contentions, however, Field acknowledges that we addressed these
issues in McKee II, supra, 207 Cal.App.4th 1325. Nevertheless, he asks us to "consider
the issue independently" because we wrongly decided McKee II. We decline to do so.
In McKee I, supra, 47 Cal.4th 1172, the Supreme Court held the SVPA is subject
to equal protection analysis because it "treats SVP's significantly less favorably than
those similarly situated individuals civilly committed under other statutes" including
MDO's and NGI's. (McKee I, supra, at pp. 1196, 1203, 1207.) Because individuals
within each of these categories "have the same interest at stake—the loss of liberty
through involuntary civil commitment—it must be the case that when society varies the
standard and burden of proof for SVP's . . . , it does so because of the belief that the risks
involved with erroneously freeing SVP's from their commitment are significantly greater
than the risks involved with freeing" other civil committees. (Id. at p. 1204.)
The Supreme Court remanded the case for a hearing on whether the People could
justify disparate treatment for SVP's. The court instructed: "It must be shown that,
notwithstanding the similarities between SVP's and [other civil committees], 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. This can be shown in a variety of ways. For example, it may be demonstrated
that the inherent nature of the SVP's mental disorder makes recidivism as a class
significantly more likely. Or it may be that SVP's pose a greater risk to a particularly
vulnerable class of victims, such as children . . . . Or the People may produce some other
justification." (McKee I, supra, 47 Cal.4th at p. 1208, fn. omitted.)
21
After remand, the superior court conducted a 21-day evidentiary hearing on the
justification of disparate treatment for SVP's and concluded the People had met their
burden. On appeal, we reviewed the matter de novo, which was the correct standard of
review. (McKee II, supra, 207 Cal.App.4th at p. 1338.) Field contends we applied a
more deferential standard of review, implying that we employed a substantial evidence
review.6 He is mistaken. In McKee I, Field singles out the reference to " ' "reasonable
inferences based on substantial evidence" ' " without reading the context of the passage:
"When a constitutional right, such as the right to liberty from involuntary confinement, is
at stake, the usual judicial deference to legislative findings gives way to an exercise of
independent judgment of the facts to ascertain whether the legislative body ' "has drawn
reasonable inferences based on substantial evidence." ' " (McKee I, supra, 47 Cal.4th at
p. 1206.) In McKee II, we concluded "[t]he People have shown 'that the inherent nature
of the SVP's mental disorder makes recidivism as a class significantly more likely[;] . . .
that SVP's pose a greater risk [and unique dangers] to a particularly vulnerable class of
6 Field somewhat confusingly argues that we improperly applied a rational relationship type review instead of a strict scrutiny review. As we discuss above, we applied a de novo review in McKee II. Instead, we interpret Field's argument that we improperly applied the strict scrutiny test although he does not cogently argue as much. Nonetheless, we note that our Supreme Court in McKee I, supra, 47 Cal.4th 1172, did not require a finding that the government use the least restrictive means available to meet the state's compelling interest to allow the SVPA to pass constitutional muster. We expressly rejected that argument in McKee II, concluding the least restrictive means available requirement applies only to disparate treatment of a suspect class. (McKee II, supra, 207 Cal.App.4th at p. 1349.) Our colleagues in Division Three also rejected that argument. (People v. McDonald (2013) 214 Cal.App.4th 1367, 1380 (McDonald).) To the extent Field is attempting to make a similar argument here, we reject it for the same reasons articulated in McKee II and McDonald. 22
victims, such as children'; and that SVP's have diagnostic and treatment differences from
MDO's and NGI's, thereby supporting a reasonable perception by the electorate . . . that
the disparate treatment of SVP's under the amended [SVPA] is necessary to further the
state's compelling interests in public safety and humanely treating the mentally
disordered." (McKee II, supra, 207 Cal.App.4th at p. 1347.) The Supreme Court denied
a petition for review, making McKee II final.
As Field notes, this court has, of course, followed McKee II, supra, 207
Cal.App.4th 1325, and other Courts of Appeal have as well. (See, e.g., McDonald, supra,
214 Cal.App.4th at pp. 1376-1382; Landau, supra, 214 Cal.App.4th at pp. 47-48; People
v. McCloud (2013) 213 Cal.App.4th 1076, 1085-1086; People v. McKnight (2012) 212
Cal.App.4th 860, 863-864.) Although it is clear Field believes the evidence relied on in
McKee II is insufficient to justify disparate treatment of SVP's, we have carefully
evaluated it and conclude otherwise.7
VI
FIELD'S TESTIMONIAL PRIVILEGE
Field maintains that the trial court erred by allowing the prosecutor to call him as a
witness in his commitment trial. Relying on Hudec v. Superior Court (2015) 60 Cal.4th
7 For example, Field contends we erred in McKee II, supra, 207 Cal.App.4th 1325 by: (1) only looking at evidence of the recidivism of sex offenders and (2) failing to consider evidence comparing the trauma suffered by victims of the crimes committed by SVP's with the trauma experienced by victims of crimes committed by MDO's and NGI's. In addition, he contends the evidence of "diagnostic and treatment differences" is not relevant to the issues he raises here.
23
815 (Hudec), Field asserts that SVP's are similarly situated to NGI's, and therefore, he
had an equal protection right not to be called to testify.8 In response, the People insist
the legislative and procedural differences between NGI's and SVP's establish that the two
groups are not similarly situated for purposes of testimonial privilege. In the alternative,
the People argue that even if SVP's and NGI's are similarly situated, a rational basis
supports any disparate treatment.
Field's argument before us was successfully made in People v. Curlee (2015) 237
Cal.App.4th 709 (Curlee). In that case, the appellate court recognized that a necessary
prerequisite to a valid equal protection claim is that the groups being compared must be
"similarly situated" with respect to the particular right in question. (Id. at p. 720.) After
reviewing McKee I, supra, 47 Cal.4th 1172, which determined SVP's were similarly
situated to NGI's with respect to the burden of proof and length of their commitments, the
court concluded SVP's were similarly situated to NGI's for purposes of the right against
self-incrimination. The court reasoned, "Both groups have committed a criminal act and
have been found to suffer from a mental condition that might present a danger to others.
[Citation.] At the end of the SVP's prison term, and at the end of the term for which an
NGI could have been imprisoned, each is committed to the state hospital for treatment if,
at the end of that period, the district attorney proves in a jury trial beyond a reasonable
doubt that the person presents a danger to others as a result of a mental disease, defect, or
8 Our high court concluded that persons who have been civilly committed after being found not guilty by reason of insanity have a statutory right to refuse to testify. (Hudec, supra, 60 Cal.4th at p. 826.) 24
disorder. [Citations.] The purpose of the commitment is the same: To protect the public
from those who have committed criminal acts and have mental disorders and to provide
mental health treatment for the disorders." (Hudec, supra, at p. 720.)
Next, the court examined whether the disparate treatment between SVP's and
NGI's with respect to the right against self-incrimination was justified on the record
before it. In doing so, the court noted that in McKee II, supra, 207 Cal.App.4th 1325, the
state was able to justify the disparate treatment at issue in that case. It did so by showing
"SVP's were more likely [than NGI's] to commit new sexual offenses when released . . .;
victims of sex offenses suffered unique and, in general, greater trauma, than victims of
other offenses; and SVP's were less likely to participate in treatment and more likely to
be deceptive and manipulative than [NGI's]." (Curlee, supra, 237 Cal.App.4th at p. 721.)
However, as the court recognized, that showing was made during the course of an
evidentiary hearing that occurred on remand from the Supreme Court's ruling in McKee I.
(See McKee I, supra, 47 Cal.4th at pp. 1208-1209 [ordering remand]; McKee II, supra,
207 Cal.App.4th 1325 [appeal from remand hearing].) Because the equal protection issue
presented in Curlee was different from the one raised in McKee I, and because the issue
in Curlee had not been litigated in the trial court, the court in Curlee followed our high
court's lead in McKee I and remanded the matter to allow the state the opportunity to
demonstrate a constitutional justification for giving NGI's the right against self-
incrimination but not SVP's. (Curlee, supra, 237 Cal.App.4th at p. 722.)
The opinion in Curlee, supra, 237 Cal.App.4th 709 was not filed before Field
submitted his opening brief in the instant matter. Neither the respondent's brief nor the 25
reply brief discuss Curlee. As such, we asked for supplemental briefing regarding the
impact of Curlee on the instant matter.
In their supplemental letter briefs, neither Field nor the People take issue with the
holding in Curlee, supra, 237 Cal.App.4th 709 that SVP's and NGI's were similarly
situated in regard to being called to testify at trial. In fact, the People point out that
Division Three, in People v. Landau (2016) 246 Cal.App.4th 850, and Division Two, in
People v. Dunley (2016) 246 Cal.App.4th 691 (Dunley),9 both recently followed
Curlee.10 Like our colleagues in Division Two and Division Three, we too follow
Curlee and find that SVP's are similarly situated to NGI's and MDO's as to the
testimonial privilege.
Having found SVP's and NGI's similarly situated, we next must address whether
the People have justified the disparate treatment. Before we do so, however, we address
the proper equal protection test to be applied.
9 After the People's letter, Division Two granted a rehearing in Dunley, supra, 246 Cal.App.4th 691, vacating the opinion. In a subsequent opinion, Division Two again concluded MDO's, SVP's, and NGI's are similarly situated with respect to the testimonial privilege, but ultimately found the appeal moot because the trial court denied a subsequent petition for recommitment based on the court's finding that the appellant no longer met the criteria for commitment as an MDO. (People v. Dunley (2016) 247 Cal.App.4th 1438, 1442-1443.)
10 In their respondent's brief, the People took the position that SVP's and NGI's were not similarly situated in regard to the testimonial privilege. In light of the People's supplemental letter brief, we conclude the People have abandoned that position. To the extent they have not abandoned it, we reject it for the same reasons set forth in Curlee, supra, 237 Cal.App.4th at pages 720 through 721. 26
The People contend that any disparate treatment here need only be justified under
the rational basis test. To this end, the People emphasize that our high court has held that
the higher strict scrutiny standard of review is required only where "a constitutional right,
such as the right to liberty from involuntary confinement is at stake." (McKee I, supra,
47 Cal.4th at p. 1206.) The People contend the right to refuse to testify at a commitment
trial is nonconstitutional as it does not lengthen or alter the length on a commitment term
and does not affect the definitional standards or burdens of proof for commitment. In
support of their position, the People rely on Hubbart, supra, 19 Cal.4th 1138;
Conservatorship of Hofferber (1980) 28 Cal.3d 161 (Hofferber); and In re Moye (1978)
22 Cal.3d 457 (Moye).
In Hubbart, the California Supreme Court upheld the substantive definitional
standards and the two-year commitment term prescribed under the former version of the
SVPA. (Hubbart, supra, 19 Cal.4th at pp. 1151-1170.) In doing so, the court noted "this
court has traditionally subjected involuntary civil commitment statutes to the most
rigorous form of constitutional review -- an approach we follow in upholding the SVPA
here." (Hubbart, supra, at p. 1153, fn. 20.)
In Hofferber, our high court upheld the constitutionality of civil commitments
under the Lanterman-Petris-Short Act (LPSA). (Hofferber, supra, 28 Cal.3d at pp. 171-
172.) The People emphasize in that case, the conservator conceded that because the
challenged law subjected a person to involuntary commitment, it necessarily affected the
conservatee's fundamental liberty interest, and the law was subject to strict scrutiny
review. (Id. at p. 171, fn. 8.)
27
In Moye, the California Supreme Court held that statutes allowing for an NGI to
be committed for a period of time longer than the maximum term punishable for the
criminal offense violated equal protection principles because NGI's were similarly
situated to defendants under the former Mentally Disordered Sex Offenders Act (MDSO),
who were subject to a shorter commitment term. (Moye, supra, 22 Cal.3d at p. 466.) The
court observed that because the "petitioner's liberty is at stake," the justification for the
disparate treatment of NGI's and MDSO's as to the length of commitment must pass
muster under strict scrutiny review. (Id. at p. 465.)
The People point out that Moye, Hofferber, and Hubbart, supra, 19 Cal.4th 1138
all involve a challenge to a portion of the law affecting the length of the committee's civil
commitment term. Further, in Moye and Hofferber, the People conceded that strict
scrutiny review was the applicable standard. (Moye, supra, 22 Cal.3d at p. 465;
Hofferber, supra, 28 Cal.3d at p. 171, fn. 8.)
In summary, the People maintain the challenged issue here, an SVP's statutory
right to refuse to testify at a commitment trial, does not affect the length of the
commitment term, and does not involve the definitional standards or burden of proof for
commitment. As such, the People claim the proper test is whether they can justify the
disparate treatment under a rational basis test. We disagree.
California courts have not limited strict scrutiny review in cases concerning
involuntary commitment only to situations involving the length of commitment,
definitional standards, or burden of proof. For example, in In re Gary W. (1971) 5 Cal.3d
296 (Gary W.), and its companion case, People v. Smith (1971) 5 Cal.3d 313, the
28
Supreme Court concluded that a juvenile facing an extension of his or her commitment to
the former California Youth Authority under section 1800 is entitled to a jury trial, noting
that mentally disordered sex offenders were entitled by statute to jury trials (former
§ 6318), as are narcotics addicts (§§ 3050, 3051, 310811). The right to a jury trial is
required by both due process and equal protection where there is no "compelling state
purpose for the distinction between the class of persons subject to commitment pursuant
to section 1800 and to other classes of persons subject to involuntary confinement"
through civil commitment proceedings. (Gary W., supra, 5 Cal.3d at p. 307.) In
Gary W., the right to a jury trial was based on statute. (Id. at pp. 304-306; see People v.
Feagley (1975) 14 Cal.3d 338, 348 (Feagley).)
In Feagley, one of the issues addressed by the Supreme Court was whether
California could constitutionally deny to persons committed under the MDSO Act the
right to a unanimous jury verdict, which it granted to persons committed under the LPSA.
(Feagley, supra, 14 Cal.3d at p. 352.) In analyzing this issue under equal protection
principles, the court noted that it had characterized the right to a unanimous verdict under
the California Constitution as "fundamental" and, per People v. Smith, supra, 5 Cal.3d at
pages 318 through 319, California "must bear the burden of demonstrating there is a
compelling interest which justifies this significant distinction between the rights of
mentally disordered sex offenders and those of persons committed under the [LPSA], and
that the distinction is necessary to further such purpose." (Feagley, supra, at p. 356.)
11 These statutes were repealed in 2015. 29
Accordingly, like it did in Gary W., the court applied strict scrutiny review under equal
protection when a "fundamental" right was granted to one group and not another
similarly situated group. The grant of that right, however, was by statute.
Here, the right at issue is the statutory right not to testify under Penal Code section
1026.5, subdivision (b)(7) provided to NGI's, but not given to SVP's. The fact that the
claimed right is found in a statute and not the California or United States Constitution
does not mandate that we apply a rational basis review. (See Gary W., supra, 5 Cal.3d at
p. 307; Feagley, supra, 14 Cal.3d at p. 356.) And we are not persuaded by the People's
claim that "the right at issue here touches on only a single procedural aspect of the trial
process." (Italics in original.) To the contrary, the ability to call an SVP in the
prosecution's case could be the most important evidence it places before the jury. As our
Supreme Court observed, permitting the jury to observe the person sought to be
committed and to hear him speak and respond provided "the most reliable proof and
probative indicator of the person's present mental condition." (Cramer v. Tyars (1979) 23
Cal.3d 131, 139.) Further, "[b]y calling the person in its case-in-chief, the state is
essentially saying that his or her testimony is necessary for the state to prove its case."
(People v. Haynie (2004) 116 Cal.App.4th 1224, 1230.) Considering the potential impact
of an SVP testifying at his or her commitment hearing, it logically follows that an SVP's
testimony could have a direct impact on the SVP's liberty interest, namely the
prosecution could use the testimony to prove that he or she should remain committed.
Against this backdrop, we determine that strict scrutiny is the proper test to apply to the
30
People's justification of the disparate treatment. (See People v. Dunley, supra, 247
Cal.App.4th at p. 1453.)
Under the strict scrutiny test, the state has the burden of establishing it has a
compelling interest that justifies the law and that the distinctions, or disparate treatment,
made by that law are necessary to further its purpose. (McKee II, supra, 207 Cal.App.4th
at p. 1335.) Here, the People have offered no justification under the strict scrutiny test to
justify the disparate treatment. Thus, following Curlee, supra, 237 Cal.App.4th at page
722, "[w]e emphasize that, like our high court in McKee I, we do not conclude the People
cannot meet their burden to show the testimony of an NGI is less necessary than that of
an SVP. We merely conclude that they have not yet done so. In our view, the proper
remedy is to remand the matter to the trial court to conduct an evidentiary hearing to
allow the People to make an appropriate showing."
DISPOSITION
The matter is remanded to the superior court for further proceedings. On remand,
the superior court is directed to conduct an evidentiary hearing at which the People will
have the opportunity to show that the differential statutory treatment of SVP's and NGI's
31
is justified. If the trial court determines the People have carried their burden to do so, it
shall confirm its order finding Field an SVP and committing him to a mental hospital. If
it determines the People have not carried their burden, the superior court shall conduct a
new hearing under the SVPA to determine whether Field is an SVP.