Friday, March 21, 2008
C.A. Upholds Indeterminate Commitments for Sexual Predators
By SHERRI M. OKAMOTO, Staff Writer
Defendant’s indeterminate commitment pursuant to the Sexually Violent Predator Act did not violate his federal constitutional rights to due process, and to equal protection under the law, or the ban against ex post facto laws, the Court of Appeal for the Fourth District held yesterday.
Affirming the decision of San Diego Superior Court Judge Peter L. Gallagher, Div. One upheld the constitutionality of the 2006 amendments to the act passed as Jessica’s Law, which provided in part that an individual committed under the act would remain in custody until he could prove that he no longer met the definition of a sexually violent predator.
A trial court ordered Richard McKee involuntarily committed to the custody of the State Department of Mental Health for an indeterminate term in March 2007. McKee appealed.
Jessica’s Law, enacted as Proposition 83, is named after Jessica Lunsford, a 9-year old Florida girl who was raped and murdered in February 2005 by John Couey, a previously convicted sex offender. It changed the definition of an SVP by lowering the number of victims in the qualifying sexually violent offenses from two to one, and eliminated the two-year term provision to provide for an indeterminate term of confinement, subject to the SVP’s right to petition for release.
Proposition 83 did not change the requirement that the prerequisites for commitment be proved at trial beyond a reasonable doubt, or the act’s requirement that the SVP bear the burden of proving by a preponderance of the evidence that is entitled to conditional release for one year and subsequent unconditional discharge after that one-year conditional release.
McKee claimed the act’s release provisions were inadequate to ensure that only those persons with a current mental illness that makes them dangerous to the public continue to be confined.
Although McKee’s arguments were based on the release requirements that may apply to him only in the future, the appellate court found that it had “‘reached, but … not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.’”
Justice Alex C. McDonald wrote on behalf of the court wrote that any additional facts that arose in the future would not affect McKee’s arguments.
“[W]ere we to delay consideration of McKee’s constitutional challenges until a future … petition for release is denied, he would suffer undue hardship in the event his instant challenges are subsequently determined to be meritorious,” wrote McDonald, “In that event, McKee would have been wrongfully confined during the significant period required to obtain a favorable final court decision in a future appeal, thereby violating his substantive liberty interest in freedom from unnecessary restraint.”
Further, he continued “were we to defer decision on those constitutional issues, there would be lingering uncertainty in the law regarding the constitutionality of the Act, as it was amended by Proposition 83, an initiative clearly involving widespread public interest.”
Citing Jones v. United States (1983) 463 U.S. 354, which held that the application of a standard of proof by a preponderance of the evidence did not violate the due process at an initial hearing regarding the civil commitment of a person previously found not guilty of committing a criminal offense by reason of insanity, the court concluded that an SVP’s initial indefinite civil commitment pursuant to the amended act did not violate due process because McKee’s mental illness and dangerousness were proved beyond a reasonable doubt, an even higher standard of proof.
The court also did not find any due process issue with the potential length of an indefinite civil commitment.
“So long as an initial civil commitment for an indefinite term is subject to adequate periodic examinations and petitions for review or release to determine the current status of a committed person to ensure that a committed person who no longer qualifies for commitment is released,” McDoland wrote, “we conclude the federal constitutional right to due process does not prohibit an involuntary civil commitment for an indefinite term.”
Also, because the act provides measure for the release of committed persons, the indeterminate term does not indicate that the amended act is now punitive, McDonald reasoned, because the term’s duration “is linked not to punishment, but to its stated purpose of treating the committed person and protecting the public.” Pursuant to the California Supreme Court’s opinion in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, which rejected the ex post facto challenge to the pre-Proposition 83 version of the act, the court concluded that the act, as amended, did not implicate any ex port facto concerns either.
Finally, the court held that the amended act did not violate equal protection because it treats mentally disordered defendants civilly committed under Penal Code Sec. 2960 and persons found not guilty by reason of insanity and civilly committed under Penal Code Sec. 1026.
McDonald wrote, “Although both SVP’s and MDO’s have mental disorders, the dangers they pose (which provide the bases for their respective civil commitments) are different and therefore they are not similarly situated.” Further, based on evidence that the voters had intended to enhance the confinement of SVP’s in passing Proposition 83, the court found the state had a compelling interest in treating SVP’s and MDO’s differently. The court also concluded that there was no disparate treatment between SVP’s and persons found not guilty by reason of insanity.
The appellate court also found that sufficient evidence had supported the jury’s finding that McKee was a SVP under the amended act, and that the trial court’s instruction to the jury on the definition of an SVP was constitutionally adequate even without additional impairment-of-control instructions.
Deputy Attorney General Bradley Weinreb said, “We are very pleased that the Court of Appeal affirmed and accepted our position that indeterminate terms for sexually violent predators as provided for under Jessica’s Law was constitutional.”
Defense attorney Stephen Hinkle said he had not yet read the opinion.
Justice Richard D. Huffman and Justice Cynthia Aaron joined McDonald in his opinion.
The case is People v. McKee, No. D050554.
Copyright 2008, Metropolitan News Company