Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. MH99870, Kerry Wells, Judge.
HALLER, J.
David Munoz challenges an order committing him to the custody of the Department of Mental Health (Department) for an indeterminate term after a jury found he was a sexually violent predator (SVP). He asserts the order should be reversed because (1) the trial court had no jurisdiction to extend his commitment given a recent statutory amendment providing for indeterminate terms without addressing prior two-year terms; (2) the indeterminate term violated his right to equal protection of the law because it is not imposed on other civilly committed persons; (3) the trial court failed to instruct the jury that the SVP diagnosis must be current; and (4) the SVP verdict was based on expert opinion that focused on Munoz's prior offenses and thereby failed to distinguish him from other criminal offenders. We reject his assertions of reversible error and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Munoz, age 41 at the time of trial, has been confined at Atascadero State Hospital (Atascadero) since 1998. Pursuant to former Welfare and Institutions Code section 6604, in June 2006 the People filed a petition to continue his confinement for another two years. Effective September 30, 2006, section 6604 was amended to provide for an indeterminate term, rather than a two-year term, of confinement for SVP's. (People v. Shields (2007) 155 Cal.App.4th 559, 562.) Based on this statutory change, in October 2006 the People filed an amended petition to confine Munoz for an indeterminate term.
Subsequent statutory references are to the Welfare and Institutions Code unless otherwise specified.
SVP Background
In 1988, Munoz was convicted of committing a lewd act with a child under age 14. The offense occurred when Munoz, age 22, was drinking alcohol with people at a residence. Munoz entered a bedroom where a 12-year-old girl was sleeping, laid down next to her, French-kissed her, placed his hands in her underwear, and rubbed her vaginal area. In that same year, he was also convicted of annoying or molesting a child under age 18. This latter offense occurred just after he had been released from jail. He broke into the residence of a 17-year-old girl (whom he had dated when she was 14 years old), entered her bedroom, and started stroking her hair until the girl screamed and he fled.
Munoz served approximately eight months in jail for the 1988 offense against the 12-year-old girl and then was released on probation. As a condition of his probation, Munoz was required to attend substance abuse and sex offender treatment. He graduated from a substance abuse program in May 1991. He was an active participant in a sex offender treatment program for about 15 months.
In 1992, when Munoz was still on probation and receiving the sex offender treatment for the 1988 offense, he committed lewd acts on a girl who was about two years old. He committed these offenses in the presence of a 12-year-old boy and a four-year-old girl. Munoz knocked on the door of a residence and was allowed to enter by the 12-year-old boy. The two-year-old girl was on the couch wrapped in a towel. Munoz pulled down his pants to expose his erect penis, attempted to penetrate the two-year-old girl's vagina, orally copulated the girl, and attempted to insert his penis into the girl's mouth. The two-year-old girl began to cry, and Munoz pulled his pants up. The girl's mother entered the room and Munoz left. During this incident, Munoz also motioned for the four-year-old girl to come over to him, but she refused. Munoz claimed that at the time of these offenses he was under a lot of stress at work, he had been drinking for several days, and he was under the influence of methamphetamine.
Munoz was convicted and sentenced to prison for the 1992 lewd acts. He was in prison from 1993 to 1998. In 1998, he was adjudged an SVP and began his confinement at Atascadero.
People's Evidence
At the current trial to continue his confinement, the People's experts (Drs. Jeffrey Davis and Robert Owen) testified that Munoz met the SVP criteria. The People's experts diagnosed Munoz with pedophilia. Pedophilia is a lifelong disorder that is managed but not cured. Additionally, Munoz was diagnosed with alcohol dependence, methamphetamine abuse, and "personality disorder, not otherwise specified, with antisocial and borderline features." The People's experts explained that substance abuse can amplify pedophilic behavior by releasing inhibitions, but the substance abuse would not cause the person to have the pedophilic attraction.
The People's experts reviewed Munoz's criminal and hospital records, which included recent hospital reports and assessments. The People's experts did not personally interview Munoz because he wanted the interview to be tape recorded, which required a court order. Dr. Davis contacted defense counsel about Munoz's request that the interviews be recorded, but defense counsel did not obtain a court order. Dr. Davis also spoke with an Atascadero psychologist who treated Munoz.
Pedophilia exists when a person has "recurrent and intense fantasies, urges, or behaviors to engage in sexual conduct with children generally under the age of 14." Dr. Davis specified that Munoz's pedophilia was directed towards females and was the "nonexclusive type," meaning that he was also interested in sexual interactions with adults. The pedophilia diagnosis requires that sexual attraction towards children exist for at least a six-month time period; Munoz's 1988 offense against the 12-year-old girl and 1992 offense against the two-year-old girl satisfied this criteria.
A personality disorder is a "characteristic way of viewing the world . . . that is at odds from the person's cultural norm and that occurs over a long span of time, typically beginning in late adolescence, and is present in a variety of circumstances . . . ." Antisocial features are characterized by "repeated criminal acts, a lack of regard for the rights of others, impulsivity, reckless behavior, deceitfulness." Borderline personality features involve "an unstable sense of self and unstable emotions that can shift rapidly from situation to situation; a tendency to have outbursts of anger; to be terrified of abandonment from others; to be quite dependent on others but to react very emotionally when one [perceives] one has been abandoned; to engage in self-destructive behavior such as suicide attempts."
The People's experts opined that Munoz's disorder affected his ability to control his sexually deviant behavior and that there was a substantial risk he would engage in sexually violent predatory behavior if released. Munoz's lack of control was shown by the risks that he was willing to take to offend against children, including committing the 1992 offense against the two-year-old girl in the presence of a 12-year-old boy. Further, his serious lack of control was shown by the fact that he committed the more aggravated 1992 offense even though he had been arrested and sanctioned for the 1988 sex offense, was on probation, and was receiving sex offender treatment.
As to the risk of reoffending, Munoz received high risk scores on two actuarial tools used to assess risk, the Static-99 and the Minnesota Sex Offender Screening Tool-Revised (MnSOST). On the Static-99, factors that increased Munoz's risk level were that he had not had a two-year, live-in romantic relationship; he had two prior sexual offense charges; he had repeatedly been sentenced for criminal offenses; his victims were nonfamily members; and his victims were strangers. On the MnSOST, factors that increased Munoz's risk level were that he two prior sex offense convictions; he was under supervision when he committed the 1992 offense; he committed multiple acts against a single victim; his victims were in different age groups; his victims were strangers; and he engaged in a pattern of substantial drug or alcohol abuse 12 months prior to his arrest for his last offense.
In addition to the actuarial results, the People's experts considered the facts that Munoz had not completed a sex offender treatment program at Atascadero and he had not acknowledged that he had a sexual interest in children. Atascadero provides a sex offender treatment program that takes about four or five years to complete and that consists of five phases: (1) educational instruction where the patient learns about the program, (2) skills acquisition where the patient learns about his disorder and formulates an autobiography of his life and his offenses, (3) skills application where the patient develops intervention plans to break the process that occurs in his offenses, (4) creation of an individualized supervision plan for return to the community, and (5) release into the community under lifelong supervision. Munoz attended the phase one educational program and commenced the phase two skills acquisition program, but then dropped out after about six or eight weeks. Munoz consistently maintained that he has no sexual interest in children. Dr. Davis explained that if a person does not acknowledge a sexual interest in children, the person's treatment is impeded because the person cannot develop a plan to intervene in the process of events that might lead to an offense.
Another significant factor was that Munoz reoffended in 1992 while he was on probation and undergoing sex offender treatment. His reoffense during probation and treatment showed that he had not modified his behavior or learned from his mistakes. Further, the 1992 offense was highly deviant behavior committed against a two-year-old girl. Additional variables that increased his risk level included his high preoccupation with sex as shown by the nature of his prior sex offenses; his use of sex as a coping mechanism when under stress; and his impulsivity, negative emotionality (i.e., depression), poor problem-solving skills, and personality disorder.
While at Atascadero, Munoz successfully completed a 12-week substance abuse treatment program; he continued to attend support groups like Alcoholics Anonymous; and he had not used drugs or alcohol. Although Munoz had shown that he could refrain from substance abuse in a controlled setting, the People's experts were concerned about his ability to control himself if released to the community. Drs. Davis and Owen reviewed Munoz's relapse prevention plan, but did not find it satisfactory. The plan states he would register as a sex offender, attend a sex treatment program and Sexual Addicts Anonymous, and wear a Global Placing System (GPS) monitoring device. The plan did not explicitly acknowledge Munoz's sexual attraction to children and because he consistently denied this attraction, the People's experts questioned whether he would be motivated to obtain treatment.
Defense Evidence
Drs. William Vicary and Raymond Anderson testified on behalf of Munoz. Dr. Vicary agreed with the People's experts that Munoz had a mental disorder (pedophilia) that predisposed him to commit sexually violent offenses, whereas Dr. Anderson did not agree with this assessment. The defense experts opined that Munoz did not have a high risk of reoffending. They viewed his offenses as situational, occurring when he was grossly intoxicated, and noted that while confined he had remained sober and had not sexually acted out. Other factors were that he was now 41 years old; he did not suffer from a serious mental disorder (such as schizophrenia); and he did not exhibit high risk behaviors such as collecting pornography or talking about deviant sexual fantasies. They stated that while at Atascadero, Munoz's cognitive abilities had dramatically improved; he had come to understand the risk factors leading to his crimes; and he had exhibited remorse and victim empathy.
In Dr. Anderson's view, the 1988 offense involving the 12-year-old girl could not properly be classified as a pedophilic incident because children over age 10 cannot be characterized as prepubescent based on age alone. He noted that Munoz and his mother described the girl as postpubescent. Dr. Anderson stated the 1992 incident with the two-year-old girl did "vaguely raise the question of pedophili[a]" but it was not sufficient to support the diagnosis.
The defense experts were satisfied with Munoz's relapse prevention plan, noting that it recognized alcohol and drug abuse as his primary risk factors; provided for sex offender treatment and participation in Sexual Addicts Anonymous and Alcoholics Anonymous; and identified family members who could provide housing and employment. Dr. Vicary acknowledged several worrisome factors, including Munoz's failure to complete the treatment program at Atascadero and the circumstances of his 1992 offense, which involved (notwithstanding some treatment) a relapse into binge drinking and a sex offense against a two year old. Dr. Vicary stated that reasonable minds could differ as to whether Munoz posed a substantial risk of reoffending, but on balance he did not think Munoz met the statutory criteria.
Testifying on his own behalf, Munoz stated he has never had sexual desires towards children. On the night of the 1988 offense, he had been awake for three nights using crystal methamphetamine and drinking. The 12-year-old victim looked sexually developed and had "the body of a woman." He committed the 1992 offense against the two year old after his boss slapped him on the back of his head, which triggered feelings of powerlessness, followed by binge drinking and drug use. At Atascadero, he received counseling from a priest and participated in a "thinking-skills" group. He now understood that he had to remain sober and have a plan to deal with the various risk factors in his life such as depression and impulsivity. He did not finish the sex offender treatment program at Atascadero because he was required to admit he was a pedophile and he could not do so because he has never had a sexual attraction towards children. He stated he would voluntarily comply with the plans set forth in his relapse prevention plan.
Jury Verdict and Recommitment
The jury found Munoz to be a sexually violent predator, and the trial court committed him to an indeterminate term.
DISCUSSION
I. Jurisdiction to Extend SVP Commitment
Prior to the 2006 amendment of section 6604, an SVP was committed to a two-year term, and the People were required to obtain a new order determining the person to be an SVP for each successive two-year commitment. In 2006, section 6604 was amended to eliminate the two-year term provision and to provide for an indeterminate term of confinement, subject to the SVP's right to petition for release. (People v. Shields, supra, 155 Cal.App.4th at p. 562.) Munoz argues the trial court had no jurisdiction to commit him as an SVP because the SVP statute, as amended in 2006, does not contain an express statutory provision authorizing recommitment of a person previously committed to a two-year term of confinement as an SVP. (§§ 6601, subd. (a)(2), 6604, 6604.1.) We rejected this precise argument in Shields. As we stated in Shields, the clear intent of the 2006 statutory amendment was "to enhance—not restrict—confinement of persons determined to be SVP's." (Shields, supra, 155 Cal.App.4th at p. 563.) For the reasons we stated in Shields, we reject Munoz's assertion that the trial court had no jurisdiction to commit him as an SVP. (Accord, Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1287.)
II. Equal Protection
Munoz asserts that the Legislature's decision to impose an indeterminate term on SVP's, but not on other civilly committed offenders, violates his constitutional right to equal protection of the law. He relies on the fact that mentally disordered offenders (MDO's) and persons found not guilty by reason of insanity (NGI's) are not subject to indeterminate terms of confinement.
An equal protection claim requires a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1216.) Similarly situated means "there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified." (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.) Equal protection claims pertaining to civil commitments are reviewed under the strict scrutiny standard. (In re Smith (2008) 42 Cal.4th 1251, 1263.) Because the committed person's personal liberty is at stake, the state must establish that it has a compelling interest that justifies the challenged procedure and that the distinctions drawn by the procedure are necessary to further that interest. (Ibid.; In re Moye (1978) 22 Cal.3d 457, 465.)
The courts recognize that the "state has compelling interests in public safety and in humane treatment of the mentally disturbed. [Citation.] It may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] Variation of the length and conditions of confinement, depending on degrees of danger reasonably perceived as to special classes of persons, is a valid exercise of state power." (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 171-172.) Recently, in People v. McKee (2008) 160 Cal.App.4th 1517, we rejected the same equal protection argument raised by Munoz. We adhere to our holding in McKee.
After service of their prison terms, mentally disordered offenders who meet the criteria for MDO's or SVP's may be civilly committed based on a showing that they are a danger to society. (Pen. Code, §§ 2962, subd. (d)(1), 2966, 2970 [confinement for MDO disorder that creates "substantial danger of physical harm to others"]; § 6600, subd. (a)(1) [confinement for SVP disorder that creates "danger to the health and safety of others"]; see People v. Hubbart, supra, 88 Cal.App.4th at pp. 1218, 1220.) Similarly, NGI's may be civilly committed beyond the maximum term of confinement provided for their offense based on a showing that they are a danger to society. (Pen. Code, § 1026.5, subds. (a)(1), (b)(1) [confinement for NGI disorder that creates "substantial danger of physical harm to others.")
Under the NGI scheme, the defendant may be automatically committed to a mental hospital after being found not guilty by reason of insanity unless the court determines sanity has been fully recovered. (Pen. Code, § 1026, subd. (a).) The civil commitment may not be extended beyond the maximum term of commitment provided for the offense unless the People file a petition and show dangerousness. (Pen. Code, § 1026.5, subds. (a)(1), (b)(1), (b)(2).)
MDO's are subject to one-year periods of confinement (Pen. Code, §§ 2970, 2972, subd. (c)), and NGI's are subject to two-year periods of confinement (Pen. Code, § 1026.5, subd. (b)(8)). Under the MDO and NGI statutory schemes, the People must petition for recommitment before the statutory period expires, and the People carry the burden of proof to extend the commitment. (Pen. Code, §§ 2970, 2972, subd. (a), 1026.5, subds. (b)(2), (b)(7); see People v. Allen (2007) 42 Cal.4th 91, 99; People v. Wilder (1995) 33 Cal.App.4th 90, 98.) Under the current SVP statutory scheme, the People carry the initial burden of proof to commit the offender to an indeterminate term (§ 6604), and thereafter the Department must annually examine the committed person and file a report with the court addressing whether the person currently meets the SVP criteria (§ 6605, subd. (a)). However, in contrast to the MDO and NGI statutes, after the initial indeterminate term commitment, the committed person must petition for release, and he or she carries the burden of proof to end the commitment unless the Department of Mental Health recommends release. (§§ 6605, subds. (a), (b), (d) [burden of proof on People if Department recommends release after annual review], 6608, subd. (i) [burden of proof on committed person if Department does not recommend release]; see People v. Shields, supra, 155 Cal.App.4th at pp. 562-563, fn. 3; Bourquez v. Superior Court, supra, 156 Cal.App.4th at p. 1289, fn. 4.)
A defendant may be civilly committed as an MDO based on the commission of astatutorily-specified felony. (Pen. Code, § 2962, subd. (e).) The MDO qualifying felonies include violent sexual offenses. (Ibid.; In re Calhoun (2004) 121 Cal.App.4th 1315, 1352-1353.) A defendant may be civilly committed as an NGI based on the commission of any felony. (Pen. Code, § 1026.5, subd. (b)(1).) Thus, an NGI can include a person who has committed a sexual offense. We will assume for purposes of our analysis that defendants who commit sexual offenses and who are civilly committed as either MDO's, NGI's, or SVP's are sufficiently similar for purposes of the terms of their confinement so as to warrant equal protection scrutiny of the indeterminate term placed solely on SVP's. (See People v. Hubbart, supra, 88 Cal.App.4th at p. 1217; In re Calhoun, supra, 121 Cal.App.4th at pp. 1352-1353.)
As stated, under the strict scrutiny standard, similarly situated persons may be treated differently if there is a compelling justification for the disparate treatment. An evaluation of the relevant statutory schemes reveals that to classify an offender as an SVP, as opposed to an MDO or NGI, the offender must have committed a statutorily-specified sex offense that is predatory in nature. (People v. Hurtado (2002) 28 Cal.4th 1179, 1182, 1186-1187.) This creates a marked distinction between SVP's and other civil committees which provides a compelling justification for the disparate treatment arising from imposition of an indeterminate term on an SVP. A predatory offense is an offense directed "toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." (§ 6600, subd. (e); People v. Hurtado, supra, 28 Cal.4th at p. 1182.) In Hurtado, the court explained that persons who commit sexually violent predatory acts are much more dangerous than persons whose sexually violent crimes are not predatory. "Because predatory offenders could strike at any time and victimize anyone, they pose a much greater threat to the public at large. In contrast, a defendant likely to commit crimes only against family members or close acquaintances is less likely to reoffend because potential victims will be aware of the defendant's status as a sex offender. The public at large, however, is inevitably more defenseless against acts committed by strangers." (Hurtado, supra, at pp. 1187-1188.)
Prior to the 1996 amendment to section 6600, subdivision (a)(1), the SVP statute, unlike the MDO or NGI statutes, also required that the offender have committed a qualifying offense against at least two victims. Currently, section 6600, subdivision (a)(1) merely requires a qualifying offense against one victim. (See Historical and Statutory Notes, 73D West's Ann. Welf. & Inst. Code (2008 supp.) foll. § 6600, p. 79.)
In short, the SVP Act "narrowly targets 'a small but extremely dangerous group of sexually violent predators . . . .' " (Cooley v. Superior Court (2002)29 Cal.4th 228, 253; People v. McKee, supra, 160 Cal.App.4th at p. 1549.) Because the SVP category applies to a more serious type of sex offender than the MDO or NGI categories, the People have carried their burden to show a compelling justification for subjecting SVP's to an indeterminate term.
To support his equal protection argument, Munoz cites In re Moye, supra, 22 Cal.3d 457. In Moye, the court found an equal protection violation because under the NGI statutory scheme in effect at that time, persons found not guilty by reason of insanity were subjected to indeterminate terms of civil confinement unless they proved their sanity had been restored, whereas other civil committees had determinate terms of commitment unless the People obtained an extension. Moye held that NGI's could not be confined beyond the maximum term of confinement for their offense, subject to the People's right to seek extensions under procedures applicable to other civil committees (i.e., a hearing where the People have the burden to establish the civil committee's dangerousness). (Id. at pp. 460-468.) Under the statutory scheme invalidated in Moye, the People were never required to prove the need for continued confinement beyond the maximum term provided for the offense. In contrast, the SVP statute (akin to the MDO and NGI statutes) does place the burden of proof on the People at the initial proceeding where the SVP is committed for an indeterminate civil term following service of his or her prison term. There is nothing in Moye that suggests that the state—if supported by a compelling justification—may not alter the burden of proof at SVP recommitment proceedings while not altering that burden at MDO and NGI recommitment proceedings. The People have carried their burden to show a compelling interest to impose a more stringent release procedure on SVP's given that the SVP category defines a more dangerous group of sex offenders than MDO or NGI sex offenders.
III. Failure to Instruct that SVP Diagnosis Must Be Current
Munoz asserts the order should be reversed because the trial court failed to instruct the jury that the SVP diagnosis must be current.
Section 6600, subdivision (a)(3) provides that prior sexually violent predatory offenses "constitute evidence that may support a court or jury determination that a person is a sexually violent predator," but the prior offenses "[can]not be the sole basis for the [SVP] determination." Accordingly, section 6600, subdivision (a)(3) requires that the jury be "admonished that they may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently 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." (Italics added.) These statutory provisions require the jury to find that the person satisfies the SVP criteria at the time of commitment, not just at the time of his or her past sexually violent predatory offenses. (See Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162; Bourquez v. Superior Court, supra, 156 Cal.App.4th at p. 1289.)
Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 3454 formulates the following instruction on this point: "You may not conclude that [the defendant] is a sexually violent predator based solely on (his/her) alleged prior conviction[s] without additional evidence that (he/she) currently has such a diagnosed mental disorder." (Italics added.) Here, the trial court deviated from CALCRIM No. 3454 by instructing the jury as follows: "You may not conclude that David Salomon Munoz is a sexually violent predator based solely on his alleged prior convictions." (Italics added.) Although the trial court instructed the jury that it could not rely solely on Munoz's prior convictions, it failed to amplify the instruction to state that there must be evidence of a currently diagnosed SVP mental disorder.
In SVP cases, the trial court must sua sponte instruct on the general principles of law necessary for the jury's understanding of the case. (See People v. Roberge (2003) 29 Cal.4th 979, 988.) To ensure a clear understanding of the SVP elements, we agree the trial court should have instructed the jury with the amplifying language referring to the need for evidence of a currently diagnosed SVP disorder.
However, the error was harmless beyond a reasonable doubt. (People v. Hurtado, supra, 28 Cal.4th at p. 1194 [harmless beyond a reasonable doubt standard applicable to failure to fully define SVP elements].) The trial court's instruction told the jury that Munoz's past convictions were not alone sufficient to support a verdict that he was an SVP. Because the jury knew that past sexual offenses could not alone show SVP status, the jury would have understood that there must be current factors to support an SVP finding. Consistent with this, the trial court's instructions set forth the elements of an SVP finding in the present tense, stating that the People must prove that Munoz "has a diagnosed mental disorder; [and] as a result of that diagnosed mental disorder, he is a danger to the health and safety of others in that it is likely he will engage in sexually violent predatory criminal behavior . . . ." (Italics added.)
The jury's proper understanding of the requirement of a current SVP diagnosis—which was apparent from the court's instructions—was further buttressed by statements and arguments by both counsel referring to the jury's task to determine Munoz's current condition. In the People's and the defense's opening statements, both counsel stated that the jury must decide whether Munoz has a "current diagnosed" mental disorder. In his opening statement, defense counsel emphasized that the jury was required to evaluate Munoz's current status, stating: "Again, I want to emphasize that we are here to determine the current mental diagnosis of Mr. Munoz and the likelihood of reoffending sometime in the future. We are not here to judge him on the past criminal acts." In closing arguments, the deputy district attorney, in addition to citing Munoz's past offenses to support the pedophilia diagnosis, referred to Munoz's ongoing denial of pedophilia and choice not to complete the treatment program at Atascadero. In his closing arguments, defense counsel reiterated the "current diagnosed" mental disorder requirement. Further, defense counsel—while urging the jury to reject the People's expert's opinions because they did not personally interview Munoz prior to trial—underscored that Munoz's condition at the time of trial was at issue: "And, remember . . . [w]e're concerned with 2007 as to whether or not Mr. Munoz meets the criteria for a sexually violent predator. We're not concerned with 15 years ago if he met the criteria of a sexually violent predator . . . ." In rebuttal, the deputy district attorney argued that the People's experts' opinions were current and based on "today's" information, not just on the prior convictions.
Given that the jury was told it could not rely on past offenses alone and both counsel consistently and repeatedly focused on the requirement of current SVP status, we have no doubt the jury understood it could not find Munoz to be an SVP unless he currently met the SVP criteria.
IV. Expert's SVP Diagnosis Based on Past Offenses
Munoz argues that his substantive due process rights were violated because the People's experts predominantly relied on his two prior SVP offenses to opine that he suffered from an SVP mental disorder, which failed to distinguish him from other criminal offenders. He bases his argument on a concurring opinion in Hubbart v. Superior Court, supra, 19 Cal.4th 1138. In Hubbart, the defendant raised a substantive due process challenge to the SVP statute based on the fact that the statute did not require a mental illness but broadly allowed for civil commitment based on a mental disorder. (Id. at pp. 1151-1152.) The Hubbart court rejected this argument, finding that the SVP statute comported with due process because it did not allow for commitment based solely on a finding of dangerousness (which could apply to any criminal offender), but also required a finding that the defendant had a mental impairment affecting the ability to control his or her dangerous behavior. (Id. at pp. 1155-1158; see In re Lemanuel C. (2007) 41 Cal.4th 33, 44; People v. Williams (2003) 31 Cal.4th 757, 759-760.) In a concurring opinion in Hubbart, Justice Werdegar underscored that the mental disorder standard used in the SVP statute must "distinguish meaningfully between, on the one hand, offenders whose violent predatory conduct stems in some way from an abnormality of thought, perception or affect and, on the other hand, all remaining offenders, who by virtue of their deviant conduct may properly be described as abnormal but whose abnormality only traces, in circular fashion, back to their conduct." (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1179-1180.) Justice Werdegar cautioned that if the SVP diagnosis "is based largely on the person's prior offenses, it may add little to the reliability of the finding. To the extent the diagnosis simply places a psychiatric label on a particular character structure or a generalized propensity to do ill" there may be constitutional concerns. (Id. at p. 1181.)
Assuming that the Hubbart concurring opinion sets forth a standard governing SVP cases (see People v. Talhelm (2000) 85 Cal.App.4th 400, 408; People v. Burris (2002) 102 Cal.App.4th 1096, 1109), the record here does not show the People's experts reached the SVP mental disorder diagnosis in a manner that failed to meaningfully distinguish between Munoz and other criminal offenders who are convicted of sexual offenses but who do not suffer from a mental disorder. Consistent with the due process standard set forth in Hubbart, a diagnosed SVP mental disorder is a "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).) The disorder must seriously impair the person's ability to control his or her sexually violent behavior and create a substantial danger that the person will commit a sexually violent predatory offense if released. (People v. Williams, supra, 31 Cal.4th at pp. 776-777.)
The People's experts did not merely engage in a facial assessment of Munoz's prior sex offenses to determine if he suffered from a mental disorder that seriously affected his ability to control himself and made it likely that he would reoffend. Rather, they examined the particular facts and circumstances of the offenses to determine if he met the SVP mental disorder diagnosis. They noted that a pedophilia diagnosis requires a sexual attraction towards children that exists for at least a six-month time period, and concluded this criteria was satisfied by Munoz's commission of two lewd act offenses over a four-year time period. They acknowledged that if (as claimed by Munoz) the 12-year-old victim was sexually mature, this might warrant reconsideration of the pedophilia diagnosis; however, they also noted that the subsequent lewd act involving arousal with a child who was only two years old showed clear prepubescent attraction and confirmed the suspicion that he was attracted to prepubescent children. To determine whether he met the SVP criteria of lack of control and substantial risk of reoffending, the People's experts considered that he had committed the offense against the two-year-old girl even though he had been penalized for an earlier offense and had received substance abuse and sex offender treatment. Further, he committed this offense in the presence of a 12-year-old boy.
Moreover, as required by the SVP statute (§ 6600, subd. (a)(3)), the experts did not rely solely on Munoz's past offenses, but considered other circumstances relevant to the SVP diagnosis. They considered the facts that he did not admit to having a sexual interest in children, he did not complete the sex offender treatment program at Atascadero, and he suffered from various personality characteristics that exacerbated his self-control problems. The experts also used actuarial tools to assess risk of reoffending which incorporated factors such as intimate relationships and substance abuse.
In sum, the People's experts did not reach their SVP diagnosis by merely considering the fact that Munoz had committed prior offenses, as have all repeat offenders. Rather, they considered the particular facts and circumstances of his past offenses, his personality characteristics, his personal history, and his attitude toward his condition and treatment at Atascadero. The record does not show that the SVP verdict was derived from expert opinion that unduly relied on past offenses so as to fail to meaningfully distinguish between Munoz as a mentally disordered sex offender and other offenders.
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.
Factors that supported this diagnosis included Munoz's repeated criminal behavior, his poor performance on probation, and his suicide attempt when he cut his wrists after his girlfriend ended their relationship.