Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 211288
ELIA, J.Bernard Flores appeals from the April 22, 2009 order committing him as a sexually violent predator (SVP) to an indefinite term of commitment pursuant to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). (§ 904, subd. (a).) On appeal, appellant Flores contends that the commitment order must be reversed because the deputy district attorney (DDA) committed prosecutorial misconduct at trial and the SVPA is constitutionally defective.
All further references are to the Welfare & Institutions Code unless otherwise specified.
Guided by the recent decision of People v. McKee (2010) 47 Cal.4th 1172, we conclude that appellant's equal protection claim has some merit. As was done in McKee, we will remand for further proceedings.
A. Background and Evidence
The People called three experts, Dr. Dawn Starr, Dr. Jeremy Coles, and Dr. Christopher Matosich, and appellant as witnesses. Appellant called two experts, Dr. Michael Musacco and Dr. Douglas Korpi. All experts agreed that appellant met the SVP criteria of a qualifying offense and a diagnosed mental disorder. (See § 6600, subd. (a).) The People's experts and the defense experts disagreed regarding the likelihood of reoffense.
In reaching her opinions, Dr. Starr, a licensed psychologist, reviewed many documents and took into consideration appellant's history, which she described at length. Appellant had a chaotic early family life. His father was a heavy drinker who left the family when appellant was young.
Appellant first married in 1949. His oldest daughter J. was born in 1949. Appellant's first wife died in childbirth in 1950. Appellant married his second wife in 1951.
In February 1954, appellant was convicted of statutory rape of Annie D., a female under 18 years old, and placed on probation. In September 1954, while on probation, appellant attempted to get a minor, Bonny C., into his car. He was investigated for child molest under former Penal Code "section 647(A)" [sic], he was charged with "VAG molest" and he was convicted of a lesser offense. The next incident occurred in March 1955 when police were summoned after appellant, who was then 26 and married with children, approached a group of children playing in an irrigation ditch, began playing with them, gave some money to one of the boys, whom he told "he would come back and play with him." The irrigation ditch was not located on appellant's typical route home. Appellant told police that "he had two little girls himself and he always wanted a boy to play with." He also said that "he was trying to go straight and be good but the police would never understand that."
Former Penal Code section 647a, subdivision (1), made it a crime for a person to annoy or molest any person under the age of 18 and labeled such person a "vagrant." (Stats. 1st Ex. Sess. 1952, ch. 23, § 5, p. 382.)
In 1958, appellant was charged and convicted of felony child molest for committing lewd and lascivious acts upon a child, Kathryn S. He received a six-month suspended sentence and placed on five years of probation conditioned upon going to Atascadero State Hospital. Probation was subsequently modified to eliminate that condition and, in 1963, the charge was ultimately dismissed pursuant to former Penal Code section 1203.4 (dismissal of information after successful completion of probationary term).
In 1965, defendant returned home drunk, threatened his 16-year-old daughter J. with a knife, and forcibly raped her. The next morning, J. told her stepmother that appellant had been molesting her from age six until about age 12 and about two weeks prior to the incident had started molesting her again. He had told her she was "old enough now to have sex" and had threatened to kill her if she told anyone. Appellant was sent to Atascadero State Hospital for an evaluation under the mentally disordered sex offender (MDSO) law but he was deemed not amenable to treatment. He was convicted of incest and rape and sentenced to a prison term of three years to life. Many years later, it came to light that appellant had also been molesting his daughter P. from his second marriage.
In 1969, appellant was released from prison on parole. Shortly after release, appellant began living with a woman, whom he had met while he was in prison; they married in the early 1970's. Although appellant was on parole, he began molesting her young son Manuel, born in 1959, but those incidents did not come to light for years.
From 1990 to 1992, when appellant was approximately age 61 to age 63, appellant molested his third wife's grandniece, Isabel. The first incident occurred when Isabel was about seven or eight years old and appellant woke her up and made her look at his erect penis. During a second incident, a few days later, appellant pulled down her pants, licked her vagina, and put his finger in her vagina. Incidents occurred every time Isabel stayed with her great aunt but she was too afraid to tell anyone. When appellant and her great aunt moved into Isabel's home, appellant's touching of Isabel increased to approximately 10 times per week. The incidents stopped when appellant moved to Nebraska. Isabel finally told her cousin what had happened after appellant had moved away. In 1995, appellant was convicted of continuous sexual abuse of a child (§ 288.5).
In 1994, while the police were investigating the case concerning Isabel, appellant's stepson Manuel contacted the Sheriff's Department. Manuel reported that, when he was a child, appellant invited him into the "big bed" and then gave him a "blow job." Appellant molested him for years, through approximately 1973. In addition to orally copulating Manuel, appellant exposed himself and asked Manuel to grab appellant's penis. Appellant also masturbated while orally copulating Manuel. At some point, appellant put a gun to Manuel's head. Manuel reported he had felt very threatened by appellant. Appellant wrote a letter to Manuel in which he apologized for "whatever abuse I may have done to you from 1969 to 1980, " he blamed his drinking, and he asked why Manuel had not reported the abuse 20 years earlier when Manuel's mother was in good health and why Manuel had not helped a "suffering alcoholic."
In addition, appellant's younger daughter P. submitted a letter, dated June 26, 1995, to the adult probation department. In the letter, "[s]he describes being terrified by him and having been sexually molested for a long period of time by her father." She indicated that her earliest memories were "being in the bedroom watching her father have sex with her older sister...." Appellant had started molesting her when she was about four or five. When her mother left her with appellant while visiting a relative for two weeks, "sexual contact became nightly." Her letter indicated that he became increasingly physically and emotionally abusive over time. He told the girls never to tell anyone and threatened to kill them.
In 2008, appellant began sex offender treatment at Coalinga State Hospital. He had not completed treatment.
Dr. Starr diagnosed appellant with pedophilia, involving sexual attraction to males and females, and paraphilia not otherwise specified (NOS) for sexual contact with adolescent pubescent boys and girls. Pedophilia is a chronic and lifelong condition. She also diagnosed alcohol dependence. She believed that appellant was likely to engage in sexually violent predatory criminal behavior as a result of the pedophilia and paraphilia. In her opinion, appellant qualified as an SVP.
Dr. Starr based her conclusions on the actuarial assessments, the persistence of appellant's sexual offending over time despite severe consequences, and the number of victims. She agreed that the "impairment of his emotional or volitional capacity predispose[d] him to committing sexual acts to a degree that makes him a menace to the health and safety of others." She noted that although appellant was 80, he was in relatively good health.
In conducting her risk assessment of appellant, Dr. Starr began with two actuarial tools, the Static 99 and the Static 2002. On the Static 99, an instrument that takes into account specified factors, appellant scored a seven. Under the new norms, the range of risk for a score of seven is 17.4 to 32.7 percent for reconviction at five years and 23 to 43.8 percent for reconviction at 10 years. Dr. Starr also used the Static 2002, which takes into account some additional factors, to assess risk. Appellant scored an eight using this assessment tool, which indicates "a five year regression" of about 22.3 to 38.2. Dr. Starr believed that appellant was "a little closer to the high risk group" than the low risk group within the applicable range.
Dr. Starr concluded that appellant "was likely to commit future sexually violent predatory offenses without appropriate treatment in custody as a result of his diagnosed mental disorder." Although she acknowledged that it was extremely rare for someone in their 70's or 80's to commit sexual offenses, little data existed on the elderly, and the actuarial assessments should be used with significant caution with regard to such older individuals, she still found appellant met the SVP criteria. Dr. Starr found it significant that appellant had sexually reoffended in his 60's, he had a long history of sexually offending going back to the 1950's, he did not have any understanding of his sexual desires for children, and he still had the ability to be sexually active.
Dr. Cole, a licensed psychologist, diagnosed appellant with pedophilia, involving both males and females, and testified that the disorder is not curable. He concluded that appellant suffers from both volitional and emotional deficits that predispose him to commit sex crimes. He testified at length regarding the significance of the incidents in appellant's history. Dr. Cole stated that appellant had a "severe profile" as a pedophile and "pronounced volitional deficits" and had an "extremely severe case" of pedophilia. He pointed out that "despite being married and having access to an age-appropriate partner, " appellant still committed pedophilic acts. He found it significant that appellant committed sexual offenses beyond the age of 60 and those offenses were not crimes of strength. He considered appellant's poor sexual self-regulation an aggravating factor in assessing his risk of reoffense. The last Dr. Cole had read, appellant was asking to be taken out of sex offender treatment. Although appellant had some health problems, he was still physically able to molest.
Dr. Cole scored appellant on two actuarial instruments, the Static 99 and the Static 2002. Appellant scored a seven on the Static 99, which indicated he was in the high-risk category for reoffending. According to Dr. Cole, appellant scored a seven on the Static 2002, which placed him into the medium high risk category.
In Dr. Cole's opinion, appellant represented a serious and well-founded risk of reoffending in a predatory manner. Even though age may be a protective factor and studies had shown sexual reoffending dramatically drops after age 60, Dr. Cole did not find appellant's advanced age protective in this case because appellant had committed offenses after age 60 and Dr. Cole regarded appellant's pedophilia as entrenched given the number of appellant's offenses and the length of time over which they had been committed. Dr. Cole determined that appellant met the SVP criteria.
Dr. Matosich, a clinical psychologist, diagnosed appellant with the mental disorders of pedophilia and paraphilia NOS. In his opinion, people with pedophilia do not age out of it. The consensus in the field is that sexual deviancies, including pedophilia, are lifelong disorders. Appellant's particular history indicated that he had a severe sexual deviancy given the number of victims, the types of acts, and the lifelong pattern of behavior that began more than 50 years earlier. Individuals, like appellant, who have molested both male and female children are at increased risk of recidivism.
Dr. Matosich used two actuarial risk assessments, the Static 99 and the Static 2002. Appellant's Static 99 score was seven, which fell in the high risk category. While the general recommendation regarding evaluation of an elderly person was to put the person in the next lower risk category, appellant did not fit the typical profile of an elderly person with pedophilia because he had reoffended beyond the age of 60. A score of seven on the Static 99 indicated a 39 percent rate of recidivism over the next five years.
Dr. Matosich mentioned that new research looked more closely at various factors in assessing the risk of reoffending. Under the new data, the recidivism risk for an individual with a score of seven ranged from 17.4 to 32.7 percent over five years and a high risk offender, like appellant, would be at the high end of that range. In Dr. Matosich's opinion, appellant was a high risk based upon his pattern of behavior, his degree of sexual deviancy, his past failure at treatment while at Atascadero State Hospital, and his refusal to participate in treatment. His conclusion that appellant had a severe sexual deviancy was predicated on two significant factors, appellant's reoffending following treatment and the persistency of appellant's sexual deviancy despite convictions and incarceration. Dr. Matosich believed appellant to be emotionally impaired and lacking in empathy for his victims. Appellant's health problems would not physically prevent him from sexually reoffending.
Dr. Matosich believed that appellant at age 80 was in the small category of sexual offenders that continue to reoffend throughout their lifetimes. Appellant was only "[s]omewhat less likely" to reoffend as an 80-year-old than as a 50-year-old because he had a severe sexual deviancy and had reoffended in his 60's but not enough of a decrease to bring him out of the high risk category. He was certain that appellant posed "a substantial and well founded risk of recidivism."
Appellant, who testified, acknowledged that he was an alcoholic and a child molester. He felt that he was not normal. He indicated that he could not guarantee that he would never offend if he was released. Appellant agreed that he still had a problem and he still posed a risk. Although he understood that all the doctors in this case had diagnosed pedophilia, appellant denied it. He admitted molesting only Annie, Kathryn, J. and Isabel. The little girl Kathryn had come to his home with his housekeeper. Appellant did not want to go back and finish sex offender treatment at Coalinga.
Dr. Korpi, a licensed psychologist, testified on behalf of appellant. He did not find that appellant met the definition of an SVP. He concluded that appellant met the criterion of a qualifying sexually violent offense and the criterion of having a diagnosable mental disorder that predisposed him to sexually offend. Dr. Korpi diagnosed appellant as a pedophile and concluded that he had "volitional incapacity."
Nevertheless, Dr. Korpi concluded that appellant was not likely to sexually reoffend. His conclusion was based on appellant's age of 80, the significant period before age 61, of at least a decade, during which appellant did not offend (after Manuel and before Isabel), and appellant's limited life expectancy. He stated that "80 year olds reoffend at an exceptionally low rate."
Dr. Korpi assessed appellant using three actuarial tools, the Static 99, the Static 2002, and the MnSOST-R. He indicated that appellant's actuarial risk applying those assessment instruments had to be used with "extreme caution" because he was "an outlier at 80 years of age." He testified that an offender's lack of empathy for or blame of the victim and an offender's denial of offense do not affect the assessment of risk.
Dr. Korpi conceded that it was significant that appellant had dropped out of treatment. He agreed that it was hard for appellant to control himself. He acknowledged that there was nothing physically preventing appellant from committing a predatory criminal sexual offense in the future.
Dr. Michael Musacco, a licensed psychologist, also testified on behalf of appellant. He recognized that appellant had been convicted of a sexually violent offense as required for a determination that appellant was an SVP. He diagnosed appellant with pedophilia with sexual attraction to male and female, antisocial disorder, and alcohol dependence. Dr. Musacco concluded there was "abundant evidence" that appellant suffered from a mental disorder that predisposed him to criminal sexual acts and made him a menace to the health and safety of others. Nevertheless, Dr. Musacco found appellant not to be an SVP based upon appellant's risk for committing sexual crimes in the future.
Appellant had scored a seven on the Static 2002, a score falling in the moderate high risk range. But actuarial instruments must be used with caution in the case of someone appellant's age because the Static 99 is considered accurate up to age 60 and the Static 2002 takes into consideration declining risk up to age 70. As individuals age, there is a significant decline in recidivism. According to Musacco, an individual's age is a significant contributing factor in assessing risk and "80-year-old individuals hardly ever commit sexual crimes."
A "meta-analysis" conducted by Karl Hanson had found that a sex offender's denial or minimization of a sex offense did not help distinguish between recidivists and non-recidivists. Also, there was no significant correlation between lack of empathy for victims and sexual recidivism.
Dr. Musacco determined that appellant did not present "a serious and well-founded risk for sexual offense" based largely upon his age, health issues, and the lack of empirical data regarding risk of recidivisim at his age. He found the evidence insufficient to conclude appellant was likely to recidivate if released into the community.
But Dr. Musacco acknowledged that "the best predicator of future behavior is past behavior." He conceded that appellant has an intense interest in children. He agreed that if appellant did commit a sexual offense in the future, it would be a predatory, not a familial, offense since "his family [was] well warned off." He did not believe appellant had received adequate treatment. He acknowledged that appellant was not physically or emotionally incapable of committing a sexual offense.
B. Prosecutorial Misconduct
In the final rebuttal argument, the DDA analogized the jury's process of determining the risk of appellant's future dangerousness to risk assessment in the insurance field and emphasized individual factors that put appellant at a higher risk of reoffense despite the favorable actuarial data for an 80 year old. He presented a hypothetical exchange between a child molester seeking to buy "child molester insurance" and an insurance agent. He told the jury that "similar to the insurance analogy, your job is risk assessment. You are running the child molester insurance company. You're not a business, but you're going to take the law that the Judge will give you and you're going to apply it to the facts in this case." He also asserted: "Your role here is to assess risk.... And our community cannot afford the risk that he poses. This law, the Sexually Violent Predator law, was designed to fit a set of facts just like the ones that are before you, and that is why I [am] respectfully asking you find the petition in this case true."
The DDA's closing argument included the following hypothetical exchange between appellant seeking to buy child molester insurance and a company selling such insurance. "Mr. Flores says, 'I'd like to buy some child molester insurance. [¶] 'Well, that's our business. Thank you very much for coming in. Shouldn't be a problem. I'm sure we can write you a policy. [¶] 'Let me ask you a question. How old are you, sir? [¶] 'I'm 80 years old, and I have my health.... [¶] 'Let me just take a quick look at the actuarial data involving child molesters. Just one second.' [¶] And the person looks at the data and says, 'Very rare in the actuarial data for an 80 year old to commit a child molest offense, so I'm sure we can write you that policy. Shouldn't be a problem. I just need to ask you just a couple more brief questions before we write you the policy. I think we can get you a good rate. [¶] 'What have you been doing with yourself the last 15 years in your retirement? [¶] 'Prison.... [¶] What was that for? What were you in prison for? Was that a bank robbery? Was that a hit-and-run offense? Must have been serious. What was that for? [¶] 'You molested a child? That might affect your rate, Mr. Flores. [¶] 'How old were you when you molested that child? 62? 61? That's very unusual as well in the actuarial data. That's unusual. [¶] 'Was this just a one-time thing with this child? Was it one event? It just happened one time. You were 62 years old. [¶] 'Oh, oh. The documents show it took place over a period of years, a seven- and eight-year old little girl. [¶] 'This could be a problem, ' the man would say. [¶] 'I don't know if I have very many other questions, Mr. Flores, but let me ask you this: Was this your only offense for child molestation? [¶] 'No.'... [¶] 'I had sex with both my daughters between ages of six and 12. I raped one of them at knife point. I went to prison. When I got out of prison, I took up with a woman who had a stepson. I molested him for a period of years. And in fact, for my whole life I've had a problem in this area. And up until I'm as old as I am now, I haven't been able to control myself.' "
Appellant now asserts the DDA's argument constituted prosecutorial misconduct because it diluted the reasonable doubt standard of proof. Appellant declares that "[t]he jury's function in this case was to determine whether the prosecutor had proven beyond a reasonable doubt that appellant was a sexually violent predator, not whether they would make the every day [sic] business decision of selling him child molester insurance." Appellant points out that the DDA failed to mention the "reasonable doubt" standard, which differentiates the jury's decision from a decision to sell insurance. Citing People v. Nguyen (1995) 40 Cal.App.4th 28 and People v. Johnson (2004) 115 Cal.App.4th 1169, appellant maintains that the insurance analogy improperly suggested that an ordinary business decision to sell insurance was comparable to a jury determination, beyond a reasonable doubt, that an individual is an SVP. Although appellant's counsel objected multiple times to the prosecutor's use of the insurance analogy during closing argument on the ground it was an improper analogy and at the outset stated that "there is a different legal stand [sic] that we're applying, " he did not object on the specific ground that the prosecutor's argument misled the jury regarding the "reasonable doubt" standard.
Appellant also asserts that the prosecuting attorney's final pitch, during which he stated that "our community cannot afford the risk that he poses" and requested the jury to find the petition true, was an improper appeal to the jury's passions, prejudices, and fears and also constituted prosecutorial misconduct. Appellant's counsel failed to object to this portion of closing argument.
" 'To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.' (People v. Brown, supra, 31 Cal.4th at p. 553....) There are two exceptions to this forfeiture: (1) the objection and/or the request for an admonition would have been futile, or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct. Forfeiture for failure to request an admonition will also not apply where the trial court immediately overruled the objection to the alleged misconduct, leaving defendant without an opportunity to request an admonition. A defendant claiming that one of these exceptions applies must find support for his or her claim in the record. (People v. Boyette, supra, 29 Cal.4th at p. 432....)" (People v. Panah (2005) 35 Cal.4th 395, 462.)
Appellant's trial counsel could have easily specifically objected to the challenged statements on the grounds now raised and requested a curative admonishment. Consequently, appellant's appellate claims of prosecutorial misconduct were not preserved for appellate review. Moreover, even if these claims were not forfeited, we would find no reversible error.
Alleged prosecutorial misconduct is evaluated under an objective standard. (People v. Hill (1998) 17 Cal.4th 800, 822-823; People v. Price (1991) 1 Cal.4th 324, 447.) "When, as here, the [prosecutorial misconduct] claim focuses on comments made by the prosecutor before the jury, a court must determine at the threshold how the remarks would, or could, have been understood by a reasonable juror. [Citations.] If the remarks would have been taken by a juror to state or imply nothing harmful, they obviously cannot be deemed objectionable." (People v. Benson (1990) 52 Cal.3d 754, 793.)
In People v. Nguyen, the principal case relied upon by appellant, the prosecuting attorney had argued in closing: " 'The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [¶] It's a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you're going to get in a car accident, you don't change lanes." (People v. Nguyen, supra, 40 Cal.App.4th at p. 35.) The defendant contended on appeal that "the prosecutor committed misconduct by misstating the standard of reasonable doubt." (Ibid.) The appellate court stated: "The prosecutor's argument that people apply a reasonable doubt standard 'every day' and that it is the same standard people customarily use in deciding whether to change lanes trivializes the reasonable doubt standard. It is clear the almost reflexive decision to change lanes while driving is quite different from the reasonable doubt standard in a criminal case. The marriage example is also misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce. [Citations.]" (Id. at p. 36.) The court "strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry" and found that the argument was "improper even when the prosecutor, as here, also states the standard for reasonable doubt is 'very high' and tells the jury to read the instructions." (Ibid.)
In People v. Johnson, supra, 115 Cal.App.4th 1169, another case cited by appellant, it was the court that made improper comments regarding the burden of proof. During jury selection, the trial court had explained:" 'The burden is proof beyond a reasonable doubt. A doubt that has reason to it, not a ridiculous doubt, not a mere possible doubt. Because we all have a possible doubt whether we will be here tomorrow. That's certainly a possibility. We could be run over tonight. God, that would be a horrible thing, but it's a possibility. It's not reasonable for us to think that we will because we plan our lives around the prospect of being alive. We take vacations; we get on airplanes. We do all these things because we have a belief beyond a reasonable doubt that we will be here tomorrow or we will be here in June, in my case, to go to Hawaii on a vacation. But we wouldn't plan our live[ ]s ahead if we had a reasonable doubt that we would, in fact, be alive.' " (Id. at p. 1171.) The appellate court, after discussing Nguyen, found that "the trial court's attempt to explain reasonable doubt had the effect of lowering the prosecution's burden of proof." (Id. at p. 1172.) The court found reversible error since it could not "say that people make such decisions while aware of the concept of 'beyond a reasonable doubt.' " (Ibid.)
The vice of the comments in Nguyen and Johnson was that they expressly concerned application of the reasonable doubt standard and were misleading. As appellant acknowledges, the DDA never referred to "reasonable doubt" when he presented the insurance analogy. His insurance analogy addressed how individual factors may adversely affect risk assessment, even where actuarial data is favorable. The California Supreme Court recognized that in an SVPA proceeding "the primary issue is not, as in a criminal trial, whether the individual committed certain acts, but rather involves a prediction about the individual's future behavior." (People v. McKee, supra, 47 Cal.4th at p. 1192.)
" 'It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence.... [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 567.) While it is prosecutorial misconduct to misstate the applicable law (People v. Bell (1989) 49 Cal.3d 502, 538), including the applicable burden of proof (see People v. Hill (1998) 17 Cal.4th 800, 831-832), the DDA did not misstate the law. We see no reasonable likelihood that the jury construed or understood the DDA's remarks as lessening the People's burden of proof.
As to the prosecutor's remark regarding protection of the community, appellant cites In re Brian J. (2007) 150 Cal.App.4th 97, which concerned proceedings to extend control of a person otherwise subject to discharge from the control of the Youth Authority (now the Division of Juvenile Facilities) (Welf. & Inst. Code, § 1800). In that case, the prosecuting attorney told the jury in closing argument: " 'I think we can serve both interests here by finding true. We can protect our community and insure that there are no other victims out there." (Id. at p. 121.) Following a sustained defense objection, " '[t]he prosecutor then concluded argument as follows: "By a finding of true, we can help that those four elements that you're saying are true, that he has a mental disorder, that he's physically dangerous to the public, that he has a problem, significant difficulties controlling that and that he's likely to reoffend. We can try our best to make sure that doesn't happen. [¶] I'd ask that you find the Petition true.' " (Ibid.) The prosecutor also "posited a scenario in which [the appellant's] victim could later use his victimization to defend himself against molestation charges, although there was no evidence that the victim had molested or was likely to molest another." (Ibid.)
In support of a motion for mistrial, Brian's counsel had argued that the prosecutor had committed prejudicial misconduct in appealing to 'the jurors' passions, prejudices and fears by appealing to them to render a true finding in order to insure the safety of their community.' " (In re Brian J., supra, 150 Cal.App.4th at p. 121.) The trial court denied the mistrial motion but gave a curative instruction to the jury: " 'You know, as I told you before, statements by the lawyers in argument are not evidence, but there's a couple [of] things I need to clarify. [¶] One, there's no evidence before you that [the victim] has molested anyone. And the second thing is your duty is not to insure the protection of society as was implied in the argument. Your duty is to determine whether the Petition is true beyond a reasonable doubt. And that's what you must focus on in rendering your decision.' " (Id. at p. 122.) On appeal, the reviewing court determined that the trial court properly found that the prosecutor committed misconduct in his argument to the jury. (Id. at p. 123.) But it also concluded that "the trial court's admonition to the jury was sufficient to cure any prejudice from the prosecutor's misconduct." (Ibid.)
Unlike the closing argument in Brian J., the DDA's closing argument in this case did not invite the jury to consider a speculative matter beyond the evidence. (See People v. Kirkes (1952) 39 Cal.2d 719, 724 [prosecutor's argument constitutes misconduct when it states as fact matters not supported by the evidence]; cf. People v. Poggi (1988) 45 Cal.3d 306, 336.) An appeal to the jurors' fear at the guilt phase of trial is prosecutorial misconduct (see People v. Pensinger (1991) 52 Cal.3d 1210, 1250) but, as indicated, "[a] prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence" (People v. Ledesma (2006) 39 Cal.4th 641, 726). Insofar as the prosecutor's remark regarding community protection may be impliedly viewed as a comment on the likelihood of future reoffense by appellant, the statement was not misconduct.
Finally, even if the challenged remarks constituted misconduct, we would not reverse the judgment. There has been no claim or showing on appeal that the alleged prosecutorial misconduct rendered the trial fundamentally unfair. (See People v. Cash (2002) 28 Cal.4th 703, 733; Darden v. Wainwright (1986) 477 U.S. 168, 178-181 [106 S.Ct. 2464].) Neither does the record demonstrate a reasonable probability that a result more favorable to the defendant would have been reached in the absence of the alleged prosecutorial misconduct. (See People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
The prosecutor's insurance analogy made no mention of the burden of proof. His comment suggesting the community needed protection from appellant was brief and not inflammatory. (Cf. People v. Rundle (2008) 43 Cal.4th 76, 162, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The trial court fully instructed the jury regarding its responsibilities. "We presume that jurors are intelligent and capable of understanding and applying the court's instructions. (People v. Lewis (2001) 26 Cal.4th 334, 390....)" (People v. Butler (2009) 46 Cal.4th 847, 873.)
The trial court clearly instructed the jury regarding the applicable legal standards for determining whether appellant was an SVP. It informed the jury that the People had to prove the allegation that appellant was an SVP beyond a reasonable doubt. The court defined "reasonable doubt" for the jury. The court told the jury: "You must not be influenced by pity for or prejudice against the Respondent. You must not be biased against the Respondent because this petition has been filed or because a trial is being conducted. [¶] You must not be influenced by mere sentiment, conjecture, passion, prejudice, public opinion or public feelings. [¶] Both parties have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences. [¶] If, after consideration of all the evidence, you have a reasonable doubt that the Respondent is a Sexually Violent Predator, you must find that he is not a Sexually Violent Predator."
In addition, the court told the jury that "[y]ou must decide what the facts are in this case" and "[n]othing that the attorneys say is evidence." The court stated: "In their opening statements and closing arguments, the attorneys discussed the case, but their remarks are not evidence." The court also instructed: "You must follow the law as I explain it to you even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions."
Under these circumstances, we find no basis for reversal on the ground of prosecutorial misconduct.
C. Constitutional Violations
Appellant asserts that the SVPA, as amended, violates the ex post facto and double jeopardy, due process, and equal protection provisions of the state and federal Constitutions. "Proposition 83, passed by the voters in November of 2006, modified the terms by which sexually violent predators... can be released from civil commitment under the Sexually Violent Predators Act.... In essence, it changes the commitment from a two-year term, renewable only if the People prove to a jury beyond a reasonable doubt that the individual still meets the definition of an SVP, to an indefinite commitment from which the individual can be released if he proves by a preponderance of the evidence that he no longer is an SVP." (People v. McKee, supra, 47 Cal.4th at pp. 1183-1184.)
1. Ex Post Facto and Double Jeopardy
Appellant asserts that the amendments to the SVPA render it punitive and, consequently, the act now violates both the constitutional prohibitions against ex post facto laws and double jeopardy. This argument is without merit.
The threshold question for ex post facto and double jeopardy challenges is whether an act is punitive. (See Kansas v. Hendricks (1997) 521 U.S. 346, 369 [117 S.Ct. 2072]; Seling v. Young (2001) 531 U.S. 250, 266-267 [121 S.Ct. 727].) A determination that an act is not punitive "removes an essential prerequisite" for both double jeopardy and ex post facto claims. (Kansas v. Hendricks, supra, 521 U.S. at p. 369.) Further, "[a]n Act, found to be civil, cannot be deemed punitive 'as applied' to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release." (Seling v. Young, supra, 531 U.S. at p. 267.)
Recently in McKee, the California Supreme Court concluded that "the Proposition 83 amendments do not make the Act punitive and accordingly do not violate the ex post facto clause." (People v. McKee, supra, 47 Cal.4th at p 1195.) The McKee decision is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) It disposes of both appellant's ex post facto challenge and his double jeopardy challenge.
2. Due Process
Appellant argues that the SVPA as amended violates due process because it fails to ensure that a person who is no longer an SVP is released. He contends that the statutory procedures for securing release (§§ 6605 and 6608) are constitutionally inadequate. Appellant complains: "Under section 6605, a person cannot file the petition unless the Department 'authorize[s]' it. (§ 6605, subd. (b).) Under section 6608, the person can file a petition without the Department's agreement, but there is no provision for obtaining an independent expert. While there is an annual evaluation (§ 6605, subd. (a)), the evaluator is selected by the Department." He also points out that "the burden [is] on the individual to prove release is appropriate."
In McKee, the appellant's contention was that the SVPA, as amended, violated his federal due process rights by imposing an indefinite commitment term and then placing the burden on him to obtain release by proving, by a preponderance of the evidence, that he was no longer an SVP. (People v. McKee, supra, 47 Cal.4th at p. 1188.) The California Supreme Court determined that these statutory changes did not violate due process. (Id. at p. 1191.) "McKee further contend[ed] that his lack of access to mental health experts to challenge his continuing commitment violates due process." (Id. at p. 1192.) To avoid any constitutional due process concerns, the court construed "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." (Id. at p. 1193.) The court stated that "[a]fter Proposition 83, it is still the case that an individual may not be held in civil commitment when he or she no longer meets the requisites of such commitment." (Ibid.) The court concluded that the SPVA, as construed, did not violate the due process clause. (Ibid.) The McKee decision controls here. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
3. Equal Protection
Appellant argues that the amended SVPA violates equal protection because it "is the only commitment scheme in the state that provides for an indeterminate term." He asserts that, "[a]t the very least, those committed under the SVP Act are similarly situated with MDO patients." He points out that "[a]n MDO patient must be released within a year unless the government proves to a jury beyond a reasonable doubt the need to continue the confinement." (See People v. McKee, supra, 47 Cal.4th at p. 1201.) He maintains that there is no rational or compelling reason for the disparate treatment of SVP's.
Respondent's answer is that "SVP's are not similarly situated to persons committed under other civil commitment schemes." This position is no longer viable after McKee. (See People v. McKee, supra, 47 Cal.4th at pp. 1203 [MDO's and SVP's are similarly situated], 1203 ["imposing on one group an indefinite commitment and the burden of proving they should not be committed, when the other group is subject to short-term commitment renewable only if the People prove periodically that continuing commitment is justified beyond a reasonable doubt, raises a substantial equal protection question that calls for some justification by the People"], 1207 [ NGI's and SVP's are also similarly situated].)
Respondent maintains that even if SVP's are similarly situated to other civil committees, such as MDO's, the rational basis test applies. In McKee, the Supreme Court determined strict scrutiny to be the appropriate standard of review. (See id. at pp. 1184 [remanding case "to the trial court to permit the People the opportunity to justify the differential treatment in accord with established equal protection principles" articulated in In re Moye (1978) 22 Cal.3d 457], 1197-1198 [Moye determined strict scrutiny applied where personal liberty at stake], 1208.)
Lastly, respondent argues, that even if the strict scrutiny standard of review applies, the state has a compelling interest justifying the differences in the length of the commitment term and the release procedures following the initial commitment. Respondent states: "SVP's are the most dangerous of the dangerous, due to the nature of their crimes and their particularly high rate of recidivism. They are also the least likely to be cured. Under the circumstances, confining them indefinitely until they are no longer mentally ill or dangerous, rather than for a set term, is necessary to further the compelling state interests of public protection and mental health treatment."
The Supreme Court rejected substantially similar arguments in McKee. The court stated: "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.' (Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 569..., citing Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622, 666, 114 S.Ct. 2445, 129 L.Ed.2d 497 (lead opn. of Kennedy, J.); see also Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal.3d 501, 514....)... [T]he legislative findings recited in the ballot initiative do not by themselves justify the differential treatment of SVP's. Nor do these findings reference any comparisons between SVP's and MDO's." (Id. at pp. 1206-1207.) As in McKee, respondent does not rely upon any actual evidence to support the disparate treatment of SVP's.
Although the People had not presented evidence of a compelling interest justifying indeterminate terms for SVP's, the Supreme Court in McKee did "not conclude that the People could not meet its burden of showing the differential treatment of SVP's is justified" but only that "it had not yet done so." (Id. at p. 1207.) The court stated: "[T]he government has not yet shown that the special treatment of SVP's is validly based on the degree of danger reasonably perceived as to that group, nor whether it arises from any medical or scientific evidence. 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 California's electorate." (Id. at p. 1210, fn. omitted.)
The Supreme Court remanded the McKee "case to the trial court to determine whether the People, applying the equal protection principles articulated in Moye 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." (Id. at pp. 1208-1209, fn. omitted.) The Supreme Court indicated that upon remand the People must show 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 p. 1208) and "[t]he trial court may, if appropriate, permit expert testimony" (id. at p. 1209, fn. omitted).
The same result is appropriate here. Accordingly, we will remand the case to allow the government an opportunity to establish an adequate justification for the indeterminate term imposed only upon SVP's.
Disposition
The judgment is reversed. The matter is remanded for the limited purpose of allowing the People an opportunity to make the necessary showing to overcome appellant's equal protection challenge and for further proceedings consistent with this opinion and with People v. McKee, supra, 47 Cal.4th 1172.
WE CONCUR: RUSHING, P. J., PREMO, J.