Opinion
s
THE PEOPLE, Plaintiff and Respondent, v. HERBERT ANTHONY WILLMES, Defendant and Appellant. H034656 California Court of Appeal, Sixth District November 30, 2010NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 211178.
BAMATTRE-MANOUKIAN, ACTING P.J.
While appellant Herbert Anthony Willmes was an inmate at San Quentin State Prison serving a term for failing to register as a sex offender (Pen. Code, § 290), the People filed a petition to commit him as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) A jury found the allegation that Willmes was an SVP to be true. The trial court ordered Willmes committed to the state Department of Mental Health (the DMH) for an indeterminate term.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
On appeal, Willmes contends that the order of commitment should be reversed as: (1) the trial court abused its discretion and violated due process when it permitted the People’s experts to testify regarding the details of extrajudicial reports of his prior misconduct; (2) the prosecutor’s argument to the jury lessened the People’s burden of proof; (3) the trial court refused his request to instruct the jury that it must find current symptoms of a mental disorder; (4) he received ineffective assistance of counsel; (5) cumulative prejudice resulted from the above errors; (6) the indeterminate commitment violates equal protection; (7) the SVPA violates due process; and (8) the SVPA violates the ex post facto and double jeopardy principles.
Pursuant to the recent decision of the California Supreme Court in People v. McGee (2010) 47 Cal.4th 1172 (McKee), ruling that the equal protection challenge to the indeterminate term under the SVPA has potential merit, we will reverse the judgment and remand the matter for further proceedings consistent with McKee. However, we find no merit in the remaining claims raised by Willmes.
BACKGROUND
In 1992, Willmes was convicted of lewd acts on a child under 14 (Pen. Code, § 288, subd. (a)) and sentenced to three years in prison. He was released on parole in March 1994. A few weeks later, he was returned to custody for violating his parole. Subsequently, he was returned to custody several times for parole violations and new convictions for failing to register as a sex offender. (Pen. Code, § 290.)
Before Willmes’s scheduled parole release date of August 20, 2007, the People filed, on August 7, 2007, a petition to commit him under the SVPA. The petition stated that the DMH had requested that he be civilly committed as an SVP based upon the evaluations of a psychiatrist and a psychologist whose reports were attached to the petition. Following a probable cause hearing, the trial court issued a November 7, 2007 order finding that there was probable cause to believe that Willmes had been convicted of a qualifying sexually violent offense against at least one victim, and that he had a diagnosable mental disorder that made it likely he would engage in sexually violent criminal conduct if released. The court set the matter for jury trial.
The jury trial began on April 10, 2009, with motions in limine. Willmes’s motion in limine No. 6 sought to exclude hearsay evidence of his prior nonqualifying misconduct obtained from police reports, probation reports, psychological evaluations, prison records and state hospital records “for all purposes, even if presented by an expert to explain his or her opinion.” He contended that admission of the hearsay would violate his confrontation rights, and he also moved to exclude the evidence under Evidence Code section 352. The trial court denied the motion in all respects.
The People’s Case
Dr. Charles Patterson
Licensed clinical psychologist Dr. Charles Patterson has done 232 SVPA evaluations for the DMH. The purpose of an SVPA evaluation is to determine whether the individual has a qualifying conviction and a mental condition as a result of which it is likely that the individual will reoffend. Dr. Patterson’s evaluation of Willmes beginning in July 2007 entailed interviewing Willmes twice and reviewing documents such as police reports, probation reports, prison records, medical and hospital files, parole files, and adult and juvenile court records.
Willmes was born in May 1972. His parents divorced at an early age, and he had a troubled relationship with his father due to his father’s physical violence towards him. He was treated with medication for hyperactivity for much of his childhood. He began drinking alcohol at age 10, and reported that he was drinking daily by the age of 13. He later also used various drugs, particularly cocaine, amphetamines, and marijuana. He became interested in sex in early adolescence, around the onset of puberty. In September 1985, when Willmes was 13, he sodomized a three-year-old boy he was bathing. He also tried to put the boy’s penis in his mouth and attempted to have the boy touch his genitals. In December 1987, 14-year-old Kathleen reported that then 15-year-old Willmes forcibly grabbed her, took her into an open field, and threatened her with a knife. Kathleen further reported that a few months earlier, Willmes had forcibly raped her and she had become pregnant. Willmes was adjudicated in January 1988 for assault with intent to commit rape (Pen. Code, § 220) as a result of the second incident involving Kathleen.
In early June 1991, 14-year-old Amber reported to the police that after she spent the afternoon at Great America with Willmes’s friend and his friend’s girlfriend, Willmes took them to his home. Willmes kissed Amber, took her bra off, and touched her breasts and vaginal area. She pushed his hand away and asked to leave. He told her that she could walk home. He showed her a shotgun that he wrapped in a blanket and he told her that he was a cop. Eventually Willmes took Amber home. Willmes told the police that he did not do anything he thought he could get in trouble for and that he stopped when Amber asked him to.
Willmes’s qualifying offense involved 11-year-old Kristal. In April 1992, when Willmes was 19, Kristal reported to the police that she and her mother, who was Willmes’s girlfriend and who was in her mid 30s, had been living with Willmes for a number of months in a residential hotel. During that time, Willmes took showers with Kristal approximately every other day. During the showers, Willmes would wash Kristal’s breasts, vaginal area and buttocks using his hands or a wash cloth for such a long period of time that it became painful to Kristal. Sometimes Willmes kneeled down while washing her buttocks and bit her buttocks, leaving a mark that would last up to a week. He also inserted one of his fingers in her rectum. When she complained and asked him to stop, he yelled at her to stand still or commanded her to spread her legs to facilitate the contact. He threatened to spank her if she did not stay in the shower and at times he kept her from leaving the shower. Sometimes Kristal’s mother would join them in the shower and Willmes would wash her the same way he washed Kristal. Three or four times, Willmes and Kristal’s mother had sexual intercourse in the shower while Kristal was in there with them.
At the time of Willmes’s arrest based on Kristal’s report, he was on probation for a 1991 conviction with a no-weapons condition, but three knives were in plain view in the hotel room and a machete was found in Willmes’s car. Willmes’s 1991 conviction was for two counts of having unlawful sexual intercourse with a minor. The first count involved 16-year-old Shayla. Shayla met Willmes in late June 1991 through a mutual friend. After Willmes and Shayla had dinner together, Willmes drove them to an empty parking lot. Shayla repeatedly asked Willmes to take her home. He flashed a knife at her, kissed her, and told her he wanted to have sex. He pushed up her skirt, pulled down her underwear, and inserted his penis in her vagina. Afterwards, Willmes told Shayla to get dressed and he took her home. The police later found and seized a knife from Willmes’s car.
The second count involved 14-year-old Mandy. In August 1991, Mandy met Willmes at a group home. At the time, Willmes was with the 14-year-old son of Kristal’s stepmother, whom Willmes had also dated. Willmes told Mandy that he wanted to take her to a special place where they would have a good time together. Willmes took Mandy to the motel room where he was staying with Kristal and her mother. Kristal was there, but he told her to leave. When Mandy told Willmes that she was not interested in sexual contact with him, he lifted the pillow on the bed to show her that there was a pistol underneath it. Mandy also saw a rifle in the corner of the room and a bow and arrow. She was afraid. Willmes pushed her onto the bed, lay on top of her, forced her legs apart, and engaged in sexual intercourse. Afterwards, he took Mandy back to the group home. When Willmes was taken into custody in August 1991 at the motel room, Kristal was present and the officers seized a pellet rifle and a block pellet gun.
Willmes was convicted of violating Penal Code section 288, subdivision (a) as a result of his conduct with Kristal, and was sentenced to three years in state prison. He was initially housed at the California Youth Authority, but he was transferred to state prison due to his disruptive behavior. In 1993, he violated prison rules by committing a battery. He was paroled in March 1994. In April 1994, Willmes’s parole officer saw him interacting with a 10-year-old girl and an 11-year-old girl at a bus stop in violation of his parole condition to not be in the presence of minors without permission. He was returned to prison for eight months. In February 1995, he violated his parole by stealing a vehicle, changing his residence without informing his parole officer, and again having contact with minor females. He was returned to prison for 12 months. He violated his parole again in April and June 1996 by absconding, committing unlawful sex with a 17-year-old girl and having contact with her 10-year-old sister, using alcohol and marijuana, and failing to register as a sex offender (Pen. Code, § 290).
Willmes was separately convicted of the Penal Code section 290 offense and sentenced to prison. In 1997 he violated prison rules by committing battery on an inmate and by being involved in mutual combat with another inmate. In 1999 he violated prison rules by misusing state property and refusing to leave administrative segregation. He was paroled in September 2000, but was returned to prison within a couple of months for violating parole. In September 2001, he was convicted and sentenced to prison under Penal Code section 290 again. He was released in August 2003. In September 2003 he was returned to custody for five months for violating parole. He violated his parole again in October 2004 by absconding, failing to register under Penal Code section 290, leaving the state without permission, and living with a woman who had two small children. He was arrested in Nevada and brought back to California. He was paroled in 2005, but violated parole in September 2005 by absconding. He was paroled after another three months in custody, but violated parole in June 2006 by stealing a car and absconding. He spent another 12 months in custody. In May 2007, he violated parole by failing to register under Penal Code section 290, and committing a trespass, and was returned to custody. He was then screened for commitment under the SVPA.
Willmes’s history demonstrates that he has poor impulse control, particularly poor sexual impulse control. Willmes’s medical reports document a possible bipolar disorder, but Dr. Patterson believes that there is insufficient evidence to support such a diagnosis. In Dr. Patterson’s opinion, Willmes suffers from the mental disorder of “paraphilia not otherwise specified, ” which means Willmes has demonstrated problematic sexual behaviors: “he forces himself upon nonconsenting victims and conduct[s] himself in a sexually inappropriate illegal manner using coercive force, violence, ” which has resulted in repeated incarcerations and has kept him from leading a normal life in the community. Willmes is an SVP primarily because of this disorder, but there are other factors. Willmes also has antisocial personality disorder, meaning that he has had a number of behavioral problems since before the age of 15. In addition, based on Willmes’s own reporting, he also suffers from cocaine and amphetamine dependence, and alcohol and marijuana abuse. Willmes is not capable of benefiting from voluntary treatment in an outpatient setting.
Dr. Patterson believes that there is a substantial, or serious and well-founded, risk that Willmes will commit sexually violent and predatory offenses without appropriate treatment or custody. Dr. Patterson’s opinion is based in part on using several risk assessment actuarial tools. Willmes scored an eight on the Static 99, and a 10 on the Static 2002, both of which place him in the high-risk category for reoffending. Willmes scored in the highest risk group on the Minnesota Sex Offender Screening Tool Revised (MnSOST-R), and on the Sex Offender Risk Appraisal Guide (SORAG). In addition, Willmes’s scores on the Psychopathy Checklist Revised (PCL-R) showed a very high level of psychopathic traits.
Herbert Willmes
Willmes testified that he does not think he needs sexual offender treatment. He admitted putting the penis of the three-year-old boy in his mouth when he was 13. He was trying to find out about his own body and was experimenting. He never forced Kathleen to have sex with him; they were boyfriend and girlfriend. He did not have a knife when he pulled her into a field, it was a letter opener. He admitted showering with Kristal, washing her with a washcloth, rubbing her breasts, biting her buttocks, and yelling at her to stay still. At the time he was using methamphetamine and marijuana, and was “not in the proper mind frame.” He also had sexual intercourse with Kristal’s mother in the shower while Kristal was there. He admitted kissing and fondling Amber, but stated that he wrapped up and took the shotgun out only when he was about to drive everybody home. He admitted driving Shayla to a parking lot and having sexual intercourse with her. She did not say no or physically resist him, but the whole situation could have made her feel the sex was coerced. He was under the influence of methamphetamine at the time, and he showed her the knife that was in the car because she asked to see it. He admitted having sexual intercourse with Mandy against her will. He was on drugs and using alcohol and not in his “right state of mind.” He did suffer each of the parole violations between 1994 and 2007 that Dr. Patterson listed. However, he does not ever want to go back to state prison again so he would never risk engaging in sexually assaultive behavior again. He has benefited from some of the treatment at the state hospital.
Dr. Nancy Rueschenberg
Forensic psychologist Dr. Nancy Rueschenberg has done 501 SVPA evaluations for the DMH. She evaluated Willmes in June 2009. In her opinion, Willmes meets the criteria for being an SVP. He has a qualifying offense. She has diagnosed him with paraphilia not otherwise specified, polysubstance dependence, and antisocial personality disorder, but not with bipolar disorder. And she believes Willmes is a serious and well-founded risk to commit a future sexually violent offense. Significantly, Willmes had ongoing relationships with two older women at the time that he engaged in the conduct with Shayla, Amber, Mandy and Kristal, so there was no need for him to coerce anybody into doing anything with him. And, Willmes was returned to prison nine or ten times on parole violations and for new convictions. This shows that he has difficulty following supervision and that he is not prepared to control his behavior while in the community. Using the Static 99, the Static 2002, and the SORAG, Dr. Rueschenberg placed Willmes in the high-risk category. Using the MnSOST-R, she placed him at the highest risk level. Willmes also scored very high on the PCL-R, which means he warrants a diagnosis of being a psychopath. Dr. Rueschenberg does not believe that Willmes is amenable to voluntary treatment because he has not participated very well in a controlled environment and he does not believe that he is at risk to reoffend.
The Defense Case
Marcus Kelly
Marcus Kelly, a friend of Willmes’s fiancée Colleen Smith, has known Willmes for three or four years. Kelly is a recovering drug addict and alcoholic. When Willmes was last out of custody in 2007, he went with Kelly to AA meetings each night and helped at the homeless shelter where Kelly works. From Kelly’s interactions with Willmes, his impression is that Willmes is outgoing, caring, and even tempered.
Colleen Smith
Colleen Smith met Willmes through a friend when Willmes was in jail. They started writing letters back and forth and Willmes lived with her when he was out of custody for 17 days in 2007. He did not tell her that he was supposed to register as a sex offender until he was picked up for violating his parole. When he was returned to custody, she visited him at the state hospital and they had daily telephone contact. Willmes read the reports about his sex offenses to her as part of his therapy process at the state hospital. She did not know about them until then. Willmes has treated her with the same respect that he gives his mother. She looks forward to sharing her future with him.
Molly LaBreche
Willmes’s older sister, Molly LaBreche, remembers that Willmes was very high strung and energetic as a child. He had a hard time focusing in school. His behavior changed and he was able to focus better after he was put on medication. Their dad disciplined them both by spanking. LaBreche is on SSI disability due to her bipolar disorder. Although they were not close as children, she and Willmes have become close as adults, and she is somebody Willmes can count on to lend him emotional or financial support.
Juanita Willmes
Juanita Willmes, Willmes’s mother, remembers that he was a very active and funny child. He was placed on medication for his hyperactivity when he was in kindergarten. Even when on medication, he was very impulsive. After her divorce from Willmes’s father, and his father’s remarriage, his father was very cruel to Willmes. He was physically and verbally abusive. But Willmes learned how to work on cars and motorcycles from his father. He learned construction skills on-the-job, and is a good worker. He is very respectful of women, and is kind and loving. He can count on his mother for support if he needs it.
Camelia Surber
Camelia Surber is branch manager for a Labor Ready office in San Jose. The office places interested workers in temporary positions, mainly unskilled labor. Her records show that Willmes was first hired by Labor Ready in May 1996, and the last day he worked was in May 2006. During that 10-year period, Willmes worked a total of 219 days.
Eric Geffon
Eric Geffon, a criminal defense lawyer, evaluated Willmes’s sentence exposure should he reoffend in a sexually violent manner. In Geffon’s opinion, if Willmes commits a new sexually violent offense, his maximum exposure under the “two strike law” would be 23 years and his minimum exposure would be 11 years. Under the “one strike law, ” he could receive a life sentence.
Steven Van Bebber
Steven Van Bebber is a state parole agent. The parole office has an outpatient treatment program that all sex offenders on parole are required to participate in for the duration of their parole. It involves group and individual therapy conducted by clinicians employed by the state. The clinicians submit evaluations and reports to parole agents for entry into the parolees’ files. Van Bebber has never supervised Willmes. Willmes’s parole papers state that he was discharged from parole on December 4, 2007.
Dr. Steven Dolezal
Dr. Steven Dolezal, a staff psychologist at the parole outpatient clinic in San Jose, reviewed Willmes’s treatment records at the clinic. At intake, Willmes was diagnosed with bipolar disorder, alcohol dependence, amphetamine dependence, and antisocial personality disorder. A diagnosis of pedophilia was not ruled out. Willmes participated in group therapy for “290 offenders” at the clinic but “he was not consistent in attending. He absconded from his parole on more than one occasion. He relapsed relative to his substance abuse. He had a number of technical violations. He was unable to follow the restrictions of his conditions of parole.”
Dr. Brian Abbott
Dr. Brian Abbott, a licensed psychologist and licensed clinical social worker, has done about 80 SVPA evaluations, usually for the defense. Based on his evaluation of Willmes, Dr. Abbott does not believe that Willmes currently suffers from paraphilia not otherwise specified, antisocial personality disorder, bipolar disorder, or polysubstance dependence, and he does not qualify as an SVP. In Dr. Abbott’s opinion, the Static 99 and the MnSOST-R overpredict the rate of recidivism of sexually violent predatory acts. Recent published studies have shown that the rates of recidivism, even for those with scores in the high-risk range, are substantially less than what the Static 99 shows. In addition, a study published in 2007 found that the PCL-R does not measure a psychopathic personality, it just measures underlying behaviors, and Dr. Abbott believes that the SORAG is not an appropriate instrument to use in SVP cases because it includes nonsexual violent offenses in its recidivism predictions.
Dr. Mary Jane Alumbaugh
Licensed clinical psychologist Dr. Mary Jane Alumbaugh has done around 350 SVPA evaluations for the DMH. She evaluated Willmes at the request of the defense. In her opinion, Willmes does not meet the criteria for an SVP. She diagnosed Willmes as having ADHD, bipolar disorder, and polysubstance dependence disorder. She does not believe that Willmes suffers from any type of paraphilia or pedophilia, or any other mental condition that predisposes him to the commission of violent acts. She does not think that he is likely to reoffend in a sexually violent predatory manner, even though she scored him in the high-risk range on the Static 99, Static 2002, and MnSOST-R.
Dr. Tricia Lynn Busby
Dr. Tricia Lynn Busby, an unlicensed psychologist at Coalinga State Hospital, did a cognitive assessment of Willmes in January 2008. Willmes scored in the low average or borderline intelligence range. Because of Willmes’s deficits, his treatment team may have to repeat instructions and allow him more time to complete assignments.
Jury Verdict and Commitment Order
On August 21, 2009, the jury found the petition alleging that Willmes was an SVP within the meaning of section 6600 to be true. The same day, the trial court filed its order committing Willmes to the DMH for appropriate treatment and confinement for an indeterminate term pursuant to section 6604, and defendant filed a notice of appeal from the order.
DISCUSSION
Expert Witness Testimony
Prior to trial, Willmes moved to exclude hearsay evidence of his prior nonqualifying misconduct obtained from various records and reports, “for all purposes, even if presented by an expert to explain his or her opinion.” Specifically, Willmes sought to exclude all psychological evaluations from non-testifying doctors; his juvenile court record; a 1990 police report regarding a vehicle theft incident; a 1991 police report regarding 14-year-old Amber; his 1991 conviction for the statutory rape (Pen. Code, § 261.5) of 16-year-old Shayla; his 1991 conviction for the statutory rape of 14-year-old Mandy; incidents underlying his parole violations in 1995 and 1996; his Coalinga State Hospital records; his CDC records; and his parole revocation reports. He contended that admission of the hearsay would violate his confrontation rights, and he also moved to exclude the evidence under Evidence Code section 352. The trial court denied the motion in all respects.
When Dr. Patterson testified about Willmes’s past conduct, the court instructed the jury that Dr. Patterson’s testimony was “not offered for the truth of the matter but simply as a reason or basis for his opinion.” “It’s not for truth of the matter, just simply the basis of why he came to the conclusion that he did.” After both parties rested, the court instructed the jury pursuant to CALCRIM Nos. 303 and 360 that, “certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.” “Regarding acts that are not alleged as qualifying prior convictions, each expert testified that in reaching his or her conclusions, he or she considered statements made by witnesses or investigators. You may consider those statements only to evaluate the expert’s opinion. Do not consider those statements as proof that the information contained in the statements is necessarily true.”
On appeal, Willmes contends that the trial court abused its discretion and violated due process when it allowed the People’s expert witnesses to testify in detail about his nonqualifying misconduct “under the guise of providing the bases for the experts’ opinions.” He argues that the commitment order should be reversed as the documents the experts relied on were incompetent and unreliable and the People’s case “depended entirely on the experts’ opinions.”
“Evidence Code section 801 limits expert opinion testimony to an opinion that is ‘[b]ased on matter... perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates....’ [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).) Thus, “[e]xpert testimony may... be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.]” (Id. at p. 618; People v. Bell (2007) 40 Cal.4th 582, 608 (Bell).)
“Of course, any material that forms the basis of an expert’s opinion testimony must be reliable. [Citation.]” (Gardeley, supra, 14 Cal.4th at p. 618.) “So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for the expert’s opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter... upon which it is based, ’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]” (Ibid.; Bell, supra, 40 Cal.4th at p. 608.)
“A trial court, however, ‘has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.’ [Citation.] A trial court also has discretion ‘to weigh the probative value of inadmissible evidence relied upon by an expert witness... against the risk that the jury might improperly consider it as independent proof of the facts recited therein.’ [Citation.]” (Gardeley, supra, 14 Cal.4th at p. 619; Bell, supra, 40 Cal.4th at p. 608.)
“Because an expert’s need to consider extrajudicial matters, and a jury’s need for information sufficient to evaluate an expert opinion, may conflict with an accused’s interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court’s sound judgment. [Citations.] Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his [or her] opinion and should not be considered for their truth. [Citation.]” (People v. Montiel (1993) 5 Cal.4th 877, 919 (Montiel); People v. Catlin (2001) 26 Cal.4th 81, 137.) “ ‘Sometimes a limiting instruction may not be enough. In such cases, Evidence Code 352 authorizes the court to exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]’ [Citation.]” (Bell, supra, 40 Cal.4th at p. 608.)
We review a claim of erroneous admission of evidence under the abuse of discretion standard of review. “ ‘As a general matter, a trial court is vested with broad discretion in ruling on the admissibility of evidence. The court’s ruling will be upset only if there is a clear showing of an abuse of discretion, i.e., that the court exceeded the bounds of reason.’ [Citation.]” (People v. Dean (2009) 174 Cal.App.4th 186, 193.) In addition, “ ‘[i]t is... well settled that the erroneous admission or exclusion of evidence does not require a reversal except where the error or errors caused a miscarriage of justice. [Citation.] “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence, ’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” [Citations.]’ [Citations.]” (People v. Fields (2009) 175 Cal.App.4th 1001, 1018.)
“One raising a due process claim to exclude relevant evidence must sustain a heavy burden. [Citations.] The due process clause has limited operation beyond the specific guarantees of the Bill of Rights, and the category of infractions that violates ‘fundamental fairness’ is defined very narrowly. [Citations.] The due process clause does not permit courts to engage in fine-tuning of state evidentiary rules. [Citations.]” (People v. Fitch (1997) 55 Cal.App.4th 172, 179.) “[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.] Absent fundamental unfairness, ... [t]he reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.]” (People v. Partida (2005) 37 Cal.4th 428, 439.)
The standard limiting instruction was given in this case which informed the jurors that matters admitted through an expert go only to the basis of his or her opinion and should not be considered for their truth, as set forth in Montiel, supra, 5 Cal.4th at page 919. Defendant did not request amplification or modification of the standard instruction, and the jury is presumed to have followed the instruction. (Weeks v. Angelone (2000) 528 U.S. 225, 234; Richardson v. Marsh (1987) 481 U.S. 200, 211.) In addition, the evidence regarding Willmes’s prior nonqualifying misconduct that was presented through the expert witnesses’ testimony was properly before the jury for the nonhearsay purpose of showing the bases for the experts’ opinions. (People v. Martinez (2001) 88 Cal.App.4th 465, 486 (Martinez).)
As this court has previously determined, “the SVPA contemplates and expressly provides for the disclosure of all relevant records, including medical and psychological records, and their consideration in an SVP commitment proceeding.” (Martinez, supra, 88 Cal.App.4th at pp. 475-476, fn. omitted; see §§ 6601, subd. (b) [screening by the Department of Corrections and Rehabilitation for likely SVPs must be based on review of the person’s social, criminal and institutional history], 6601, subd. (c) [evaluation by DMH to determine whether a person is an SVP must assess risk factors including criminal and psychosexual history; type, degree, and duration of sexual deviance; and severity of mental disorder], 6603, subd. (a) [person subject to the SVPA is entitled to have access to all relevant and medical and psychological records and reports].) “[T]he SVPA contemplates that the psychological evaluators will have access to and consider these records in rendering their opinions and writing their reports.” (Martinez, supra, at p. 476.) The same is true when the psychological evaluators testify at trial, because the prosecutor may properly examine a psychological evaluator regarding the relevant information contained in the records that the evaluator relied upon in forming the opinion that a person is an SVP. (Id. at p. 482.)
Moreover, Willmes has not challenged, either on appeal or in the trial court, the testimony of Dr. Patterson that he was “used to seeing records of that type, ” including police and probation reports, prison and parole records, and medical records, before forming his expert opinion about Willmes. The defense experts used the same documents when they evaluated Willmes. Thus, Willmes cannot show that the out-of-court statements in the records relied upon by the People’s experts were not of the type reasonably relied upon by psychological evaluators in performing SVPA evaluations. (Evid. Code, § 801; Gardeley, supra, 14 Cal.4th at p. 618; see also People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 152-155.)
Dr. Patterson testified that, in order to determine whether the records he reviewed were reliable, he looked for “things that anybody in this kind of evaluation would look for, consistency among and between reports over time within the report, as I said the level of detail, witness statements, physical evidence to the extent that there is physical evidence, things of that nature.” He also asked Willmes to give his side of the story on each criminal act. Dr. Patterson testified that defendant admitted his prior misconduct during their interview, which was recorded and transcribed. Willmes had the opportunity to cross-examine both Dr. Patterson and Dr. Rueschenberg as to the “matter upon which his or her opinion is based and the reasons for his or her opinion.” (Evid. Code, § 721, subd. (a)(3); see People v. Stoll (1989) 49 Cal.3d 1136, 1155.) The record on appeal shows that the issue of whether the evidence concerning Willmes’s prior misconduct was reliable was thoroughly explored during cross-examination of the experts.
The trial court also denied the motion to exclude the evidence of Willmes’s prior nonqualifying misconduct under Evidence Code section 352. On the record before us, we find that Willmes has failed to show that the trial court abused its discretion in implicitly finding that the probative value of the evidence was not “substantially outweighed” by the probability that its admission would “create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) And, as the court properly admitted the evidence under Evidence Code sections 801 and 352, no due process violation has been shown. We will not set aside the trial court’s ruling.
The Prosecutor’s Argument
The prosecutor argued to the jury in part: “I mean, look at all the factors with Mr. Willmes. The defense, a very hardworking attorney mounting a defense, looks at each piece. It’s as if you’re looking at a jigsaw puzzle and taking each piece and saying, Well, that’s not the puzzle and that’s not the puzzle and that’s not the puzzle. And when you get done with the 300 or 500 piece jigsaw puzzle, there are all the pieces spread around, and you get to say that’s not the puzzle. That’s not your job. Your job is to put the pieces together.” Defense counsel objected to this argument as improperly “shifting the burden of proof.” The court overruled the objection.
The prosecutor continued: “In fact, the jigsaw puzzle example is one you hear time and time again because it works. Sometimes you read Shakespeare and you say, Gee, that’s a lot of clichés, but he made them up and they’re true. The jigsaw puzzle, you must consider the totality of the evidence. Actually, like a real jigsaw puzzle – not to belittle the importance of this for a moment, I think it’s clear how important you can tell I take this – you don’t have every piece. [¶] This is human affairs. Mr. Willmes hasn’t been watched through his life 24/seven with videotapes and tape recorders. And so you get the jigsaw puzzle together, and if there’s a few pieces missing, what shirt was he wearing on a certain day and exactly who said what to who[m], you still put that picture together, and you can see that, unfortunately, there’s something wrong with Mr. Willmes.” Defense counsel did not object to this latter argument.
Willmes now contends that the prosecutor’s argument “urged the jury to find the government met its burden with proof that is less than the legally correct standard” of proof beyond a reasonable doubt. (§ 6604.) Citing People v. Katzenberger (2009) 178 Cal.App.4th 1260 (Katzenberger), he argues that the prosecutor’s argument “served to lower its burden of proof to deciding everyday activity, decisions that are made by the preponderance of the evidence.”
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales); People v. Ayala (2000) 23 Cal.4th 225, 283-284.)
“Although counsel have ‘broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.]’ [Citation.]” (People v. Mendoza (2007) 42 Cal.4th 686, 702 (Mendoza).) Accordingly, it is misconduct for a prosecutor to suggest to a jury that he or she did not have the burden of proving every element of the allegation that a defendant was an SVP beyond a reasonable doubt. (See People v. Hill (1998) 17 Cal.4th 800, 831-832; § 6604.) “However, arguments of counsel ‘generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.’ [Citation.]” (Mendoza, supra, 42 Cal.4th at p. 703.) “When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for ‘[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 717 (Osband).)
Although the trial court overruled counsel’s objection to the prosecutor’s argument, allowing the prosecutor to go forward with his jigsaw puzzle analogy, the court later instructed the jurors pursuant to CALCRIM No. 222 that they must base their decision only on the evidence presented and that the argument of counsel was not evidence. The court instructed the jurors pursuant to CALCRIM No. 200 that they must follow the law as the court explained it to them, even if they disagreed with it, and that they must follow the court’s instruction if they believe that an attorney’s comments on the law conflict with the instructions. The court also instructed the jurors that, although it was not a criminal trial, the prosecutor had “the burden of proving beyond a reasonable doubt that [Willmes] is a sexually violent predator.” It defined reasonable doubt as “not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt.” The jurors must “feel an abiding conviction that [Willmes] is a sexually violent predator.” Given the overall context of the prosecutor’s remarks and the instructions given, we find that there is not a reasonable likelihood that the jury construed or applied the prosecutor’s complained-of remarks in an objectionable fashion. (Morales, supra, 25 Cal.4th at p. 44.)
Katzenberger, cited by Willmes, does not persuade us otherwise. In that case, the prosecutor used a Power Point presentation of an eight-piece jigsaw puzzle being put together with two pieces missing. The picture was immediately and easily recognizable as the Statute of Liberty. (Katzenberger, supra, 178 Cal.App.4th at p. 1264.) The trial court overruled the defendant’s objection to the presentation, and the prosecutor went on to tell the jury that “ ‘[w]e know [what] this picture is beyond a reasonable doubt without looking at all the pieces of that picture.... And I will tell you in this case, your standard is to judge this case beyond a reasonable doubt.’ ” (Id. at p. 1265.) The appellate court found that the prosecutor committed misconduct because her “use of an easily recognizable iconic image along with the suggestion of a quantitative measure of reasonable doubt combined to convey an impression of a lesser standard of proof than the constitutionally required standard of proof beyond a reasonable doubt.” (Id. at p. 1268.) However, the court found that the misconduct was not prejudicial due to the presumption that the jury relied on the trial court’s later correct definition of reasonable doubt. (Id. at pp. 1268-1269.)
In the case before us, the prosecutor did not use an easily recognizable iconic image or talk about a jigsaw puzzle with two out of only eight pieces missing. Rather, the prosecutor’s argument suggested that Willmes was like a 300- or 500-piece jigsaw puzzle that the jury had to put together even though some pieces might be missing. And, the prosecutor did not argue that after putting the 300 or 500 pieces together the jury would find beyond a reasonable doubt that Willmes was an SVP. Rather, the prosecutor argued that the jury would find that “there’s something wrong” with Willmes after putting the pieces together. As Willmes does not claim that the trial court’s instruction on reasonable doubt was incorrect, and we must presume that the jury followed the trial court’s instruction (Osband, supra, 13 Cal.4th at p. 717), it is not reasonably likely that the jury misconstrued the prosecutor’s argument or misapplied the beyond-a-reasonable-doubt standard of proof.
The Refused Instruction
Willmes requested that the court give the following instruction to the jury: “In order to find that a person has a diagnosed mental condition you must find that the person exhibits current psychological symptoms of the mental condition. If the state has not proven beyond a reasonable doubt that the person exhibits current psychological symptoms of the alleged mental condition, then you must find the allegations in the petition to be not true.” Willmes cited People v. Buffington (1999) 74 Cal.App.4th 1149 (Buffington), in support of his request. The prosecutor argued that People v. Williams (2003) 31 Cal.4th 757 (Williams) supported refusal of the instruction. The trial court denied Willmes’s request, finding that “the instructions as given covered all the important issues in the case.” As given, the instructions informed the jury that “you may not find [Willmes] to be a sexually violent predator based on prior offenses without evidence of a currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior.” “The term diagnosed mental disorder includes conditions either existing at birth or acquired after birth that affect a person’s ability to control emotions and or behavior and predispose that person to commit criminal sexual acts to an extent that makes him a menace to the health and safety of others. You must unanimously agree that [Willmes] has a ‘diagnosed mental disorder.’ ”
On appeal, Willmes contends that the court’s refusal of his requested instruction was prejudicial error. “The court’s instruction did tell the jurors that it must find [he] suffered from a ‘currently diagnosed mental disorder.’ But the law also requires that for there to be a currently diagnosed mental disorder, there must be current symptoms.” “Without showing a current symptom, the state permits committing a person without a current medical disorder in violation of due process.” He also asserts that “[t]here was no evidence of sexually acting out, having fantasies of coercing sex, or presenting an abnormal interest in sex or violence. Because there was a factual basis for concluding there were no current symptoms of a relevant mental illness, the instruction should have been given.”
An involuntary commitment must be supported by a finding of present dangerousness. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1161 (Hubbart); People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 920; Williams, supra, 31 Cal.4th at p. 768.) But, “ ‘dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment.’ [Citation.] ‘[S]ome additional factor’ indicating that the person is dangerous as the result of mental impairment is required. [Citation.]” (Hubbart, supra, 19 Cal.4th at p. 1155; see also Williams, supra, 31 Cal.4th at p. 768 [the SVPA links the finding of dangerousness to a currently diagnosed mental disorder characterized by the inability to control dangerous sexual behavior].) The SVPA does this by requiring that jurors be instructed that they may not find a person is an SVP based on prior offenses unless he “currently” suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior, and which “makes” him dangerous and “likely” to reoffend. (§ 6600, subd. (a)(3); Hubbart, supra, 19 Cal.4th at p. 1162.)
In Buffington, the defendant contended “that the SVPA’s evidentiary requirements for determining who is suffering from a mental disorder and who is likely to reoffend are unconstitutional because they are lower than other civil commitment schemes. Buffington argue[d] that the SVPA does not require ‘any recent objective basis for a finding that an inmate is likely to reoffend.’ No current psychological symptoms are needed and no recent overt act is required, Buffington assert[ed].” (Buffington, supra, 74 Cal.App.4th at p. 1159.) The appellate court disagreed with the defendant’s assertions. The court found that “the SVPA requires ‘recent objective indicia of the defendant’s condition’ and a ‘recent objective basis for a finding that an inmate is likely to reoffend.’ ” (Id. at p. 1161.) The court stated that the SVPA ensures that these conditions are satisfied by setting forth “a comprehensive administrative process for screening and evaluation, requiring professional assessments of various diagnoses and specified risk factors; it then subjects these assessments to a thorough judicial process, including a trial under the standard of proof beyond a reasonable doubt.” (Ibid.) Accordingly, the court concluded that, “[c]ontrary to Buffington’s claim, ‘current psychological symptoms are needed’ to establish that a person is an SVP [under the SVPA].” (Ibid.; see also People v. Poe (1999) 74 Cal.App.4th 826, 833 [the SVPA requires a recent objective basis for commitment in the form of two experts credited by the trier of fact that the person presently suffers from a mental disorder which predisposes him to commit further sexually violent predatory crimes].)
In this case, with regard to the “ ‘current psychological symptoms’ ” needed to establish that a person is an SVPA, the court instructed the jury as required by the SVPA that it could not find that Willmes was an SVP “based on prior offenses without evidence of a currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior, ” and that it must unanimously agree that Willmes has a “ ‘diagnosed mental disorder.’ ” As the court properly instructed the jury concerning what “ ‘current psychological symptoms’ ” were required by the SVPA, and the instructions informed the jury that it could not find Willmes to be an SVP unless it found evidence that he had a “currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely he will engage in sexually violent predatory criminal behavior, ” the court did not err in refusing Willmes’s requested instruction that the jury must find that defendant exhibits “ ‘current psychological symptoms’ ” of the mental disorder. (Buffington, supra, 74 Cal.App.4th at p. 1161.)
Even assuming that the court should have given the instruction requested by Willmes, any error was harmless. There was ample evidence to support the conclusion that Willmes suffered from “ ‘current psychological symptoms, ’ ” (Buffington, supra, 74 Cal.App.4th at p. 1161), that he has a currently diagnosed mental disorder, and that he is currently dangerous as a result of that mental impairment. (Hubbart, supra, 19 Cal.4th at p. 1155.) Dr. Patterson testified that he began his evaluation of Willmes in July 2007, and determined that Willmes suffers from the mental disorder of “paraphilia not otherwise specified, ” that Willmes is an SVP primarily because of that disorder, and that there is a substantial, or serious and well-founded, risk that Willmes will commit sexually violent and predatory offenses without appropriate treatment or custody. Dr. Rueschenberg testified that she diagnosed Willmes in June 2009 with “paraphilia not otherwise specified” and that she believes that Willmes is a serious and well-founded risk to commit a future sexually violent offense due to his mental disorder because he has difficulty following supervision, he is not prepared to control his behavior while in the community, and he does not believe that he is at risk to reoffend. As there is substantial evidence that Willmes currently suffers from a mental disorder which predisposes him to commit further sexually violent predatory offenses, defendant was not prejudiced by the trial court’s refusal to give his requested instruction.
Ineffective Assistance of Counsel
Willmes contends that, “[t]o the extent [that his] claims were not adequately preserved, [he] was deprived of effective assistance of counsel.” As we have addressed all of Willmes’s contentions, we need not address his claim of ineffective assistance of counsel.
Cumulative Prejudice
Willmes contends that reversal is required due to the combined effect of the claimed individual errors. As we have rejected all Willmes’s above claims of error, he has not suffered prejudice, cumulative or otherwise.
Equal Protection
Prior to trial, Willmes objected to any imposition of an indeterminate term, contending in part that the SVPA as amended in 2006 violates the equal protection clauses of the federal and California Constitutions. He argued that SVPs are similarly situated with individuals committed as mentally disordered offenders (MDOs; Pen. Code, § 2960 et seq.), or under the Lanterman-Petris-Short Act (§ 5350), or under the Extended Delinquent Act (§ 1802), or as criminal defendants found incompetent to stand trial on a felony (Pen. Code, §§ 1370, subd. (c)(1), 1370.1, subd. (c)(1)), who are involuntarily committed for one, two, or three years. The People argued that the SVPA does not violate equal protection, and the trial court overruled Willmes’s objection and committed him for an indeterminate term.
On appeal, Willmes contends that SVPs are similarly situated with MDOs and those found not guilty of a criminal offense by reason of insanity (NGIs; Pen. Code, § 1026). He argues that our Supreme Court agreed with this contention in McKee, supra, 47 Cal.4th 1172.
The McKee court determined that SVPs and MDOs are similarly situated for equal protection purposes because they have been involuntarily committed with the objectives of treatment and protection of the public. (McKee, supra, 47 Cal.4th at p. 1203.) The court also determined that SVPs have “different and less favorable procedural protections” than MDOs because SVPs under the amended SVPA “are given indeterminate commitments and thereafter have the burden to prove they should be released (unless the DMH authorizes a petition for release). In contrast, an MDO is committed for one-year periods and thereafter has the right to be released unless the People prove beyond a reasonable doubt that he or she should be recommitted for another year.” (Id. at p. 1202.) The McKee court further found that SVPs and NGIs are also similarly situated and “a comparison of the two commitment regimes raises similar equal protection problems.” (Id. at p. 1207.) Consequently, the court agreed with the defendant in that case that, as with MDOs, “the People have not yet carried their burden of justifying the differences between the SVP and NGI commitment statutes.” (Ibid.)
However, the McKee court did not conclude that the People could not meet its burden of showing the differential treatment of SVPs is justified. It merely concluded that People had not yet done so. (McKee, supra, 47 Cal.4th at p. 1207.) Accordingly, the court remanded the case to the trial court to allow the People an opportunity to 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.)
Under McKee, further proceedings on Willmes’s equal protection argument are appropriate. To avoid an unnecessary multiplicity of proceedings, however, resolution of the equal protection issue here should await resolution of the proceedings on remand in McKee, including any resulting proceedings in the Court of Appeal or Supreme Court. Accordingly, that is what we will order.
Other Constitutional Issues
Willmes also objected prior to trial to imposition of any indeterminate term on due process, ex post facto, and double jeopardy grounds. The trial court also overruled these objections. Willmes raises the same objections on appeal, but acknowledges that the McKee court rejected similar arguments, finding in part that the amended SVPA is not punitive. (McKee, supra, 47 Cal.4th at pp. 1188-1195.) We are bound by our Supreme Court’s decision. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455.) Willmes states that his arguments are made here simply to preserve his federal claims. Accordingly, we need not and will not further address these arguments.
DISPOSITION
The judgment is reversed, and the case is remanded to the trial court for reconsideration of Willmes’s equal protection argument in light of People v. McKee (2010) 47 Cal.4th 1172, and the resolution of the proceedings on remand in that case (id. at pp. 1208-1211), including any proceedings in the Superior Court of San Diego County in which McKee may be consolidated with related matters. The trial court shall suspend further proceedings in this case pending finality of the proceedings on remand in McKee. “Finality of the proceedings” shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.
WE CONCUR: MIHARA, J., MCADAMS, J.