Metropolitan News-Enterprise


Monday, April 25. 2011


Page 1


Panel Rejects Constitutional Challenge to Sex Predator Law




State laws giving persons committed as sexual predators fewer rights than those committed as mentally disordered offenders do not violate constitutional guarantees of equal protection, the Fourth District Court of Appeal ruled Friday.

Persons confined under the Sexually Violent Predator Act are not similarly situated to those whose commitment was made under the older MDO statute, Presiding Justice Manuel Ramirez wrote for Div. Two.

The court affirmed an order indefinitely recommitting a Riverside County sex offender housed at Coalinga State Hospital.

Riverside prosecutors petitioned to recommit Vinh Nguyen in November 2005, but the trial was delayed until 2009. During that period, there were about 37 court hearings on the matter, but Nguyen or his counsel waived his appearance on each occasion, except for a March 2009 hearing to which he was inadvertently transported.

At that hearing, the judge denied Nguyen’s motion to dismiss and set a trial date. The prosecutor asked whether the defendant wanted to be present for trial and Nguyen indicated through counsel that he did.

When the case was called for trial in May 2009, however, the defendant was not present. His lawyer explained that his presence was waived, but that the defendant might want a jury trial in light of a recent court opinion.

The case was set for trial in June of that year, and went forward without the defendant and with no objection from his lawyer. The judge found that he met the criteria for recommitment.

Under the initiative known as Jessica’s Law or Proposition 83, recommitment as an SVP is indefinite, and the burden is on the offender seeking release to show by a preponderance of the evidence that he no longer suffers from such a disorder. Before Jessica’s Law, offenders could only be committed for two years at a time, and prosecutors had to prove beyond a reasonable doubt that the offender suffered from a mental disorder making it likely he would re-offend.

This distinguishes Jessica’s Law from the MDO law, which continues to limit recommitments to two years.

Nguyen’s appointed appellate counsel argued that the waiver of his presence at trial violated his right to due process, and that the distinction between indefinite commitment under Jessica’s Law and two-year commitments under the MDO law renders the former unconstitutional.

Ramirez, in rejecting the equal protection challenge, distinguished People v. McKee (2010) 47 Cal.4th 1172. The high court in that case said the state had shown insufficient justification for the distinction and remanded the case for development of a fuller record.

Ramirez, however, said the record in Nguyen’s case justified treating SVPs differently, particularly with respect to those in Nguyen’s particular category, homosexual pedophiles who prey on children to whom they are not related.

He cited expert testimony that such offenders are more likely to repeat the offense than those in any other category.

The testimony of that expert, Dr. Marianne Davis, also supported the general argument that SVPs are more dangerous than other categories of mentally ill offenders, the presiding justice said.

He explained:

“She also testified that because SVP’s are a special group of sexual offenders, the policy of the law is to corral them, keeping them away from society. This is due in part to the complex and often compulsive nature of the disorder....Several studies have failed to find any convincing evidence that treatment is effective in reducing recidivism of sexual offenses.”

The two groups of offenders are also differently situated, Ramirez wrote, because an MDO can be recommitted upon a showing that the person is presently dangerous because of a “several mental disorder,” whereas in the case of an SVP, the prosecutor must show not only that the defendant is dangerous as a result of a disorder that predisposes him to commit sex crimes, but that he has actually committed such crimes.

With respect to the due process issue, Ramirez agreed with the defendant that his rights were violated when the judge allowed his attorney to waive Nguyen’s right to be present at trial after he affirmatively stated he wanted to be present. But the error was harmless beyond a reasonable doubt, the presiding justice said, because there was other evidence that Nguyen had changed his mind about participating and because there was no reason to believe that a different result would have been reached if he was present.

The case is People v. Nguyen, E048880.


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