Opinion
On February 16, 20Ó5, a jury found appellant Anthony Wayne Carlin to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). 1 The' trial court committed appellant to the custody of the State Department of Mental Health for two years pursuant to the SVPA, section 6604. Appellant appeals from the court’s order of commitment. He claims multiple violations of his due process rights, and challenges the sufficiency of the evidence, the adequacy of the jury instructions, the court’s refusal to bifurcate the trial, and the constitutionality of the SVPA. We find a violation of due process arising from the People’s ■ reliance on hearsay evidence to prove predicate sexually -violent offenses. We therefore reverse the order.
I. Background
At the time of appellant’s trial, to establish appellant as a sexually violent predator, the People were required to prove that appelláñt (1) had been convicted of sexually violent offenses against two or more victims; and (2) had a diagnosable mental
On January 19, 2000, the People filed a petition alleging that appellant came within the provisions of the SVPA for involuntary commitment to the state hospital. The People’s supporting declaration listed three prior convictions as sexually violent offenses under the SVPA. A trial was held in February 2001, but resulted in a mistrial due to a hung jury. Appellant’s second trial commenced on January 18, 2005.
At trial, the prosecution relied on appellant’s 1983, 1987 and 1991 Penal Code section 288(a) convictions to prove the predicate sexually violent offenses. The prosecution’s expert testified that appellant has a pedophilic disorder, that appellant’s sexual interests and urges persisted at the time of trial, and that appellant has a “medium high risk of committing new sexual offenses.” Appellant’s expert testified that appellant is not a pedophile, but is, instead, a situational, .offender. He concluded that appellant has no mental disorders, has self-control, and is at “very low risk” to reoffend. Appellant testified on his own behalf that he is not a pedophile and no longer has any interest in boys.
The jury found the petition true, and the trial court committed appellant to the custody of the State Department of Mental Health. Appellant filed a timely notice of appeal. He challenges the People’s use of his 1987 and 1991 convictions as predicate offenses and focuses on the People’s attempts to prove that the offenses underlying these convictions involved “substantial sexual conduct.” Appellant does not contest the People’s use of his 1983 conviction as a predicate offense.* * 4
II. Discussion
A. 1987 Conviction
Appellant makes two related claims: (1) the People relied on facts other than appellant’s conviction to show substantial
On May 5, 1987, appellant pleaded guilty to a violation of Penal Code section 288(a). According to probation and police reports introduced at trial, appellant was in charge of a weekend jet ski event in March 1987. Appellant hired Thomas H., a 12 year old, to run errands for the event. The night of March 21, Thomas’s grandparents invited appellant and his son to spend the night in their recreational vehicle. (RV) with several other people. During the night, appellant told Thomas to get in bed with him so that Thomas would be warm. Thomas did and fell asleep. Around 5:00 a.m., Thomas awoke because he felt something heavy on his crotch. The blankets had been pushed down and his pants were unsnapped and unzipped. Appellant’s hand was “grasping his crotch area,” inside of Thomas’s pants but on top of his underwear. Thomas tried to move appellant’s hand and could not, so he eventually told appellant he had to use the bathroom, and got out of bed. At trial, appellant testified that he put his left hand between Thomas’s pants and underwear and rested it only, on Thomas’s inner thigh.
Andy T., 11 years old, also reported that appellant touched him in the RV that night. Appellant denied touching Andy and pleaded guilty to only one count of child molestation in regard to the March incidents. He was sentenced to three years in prison.
1. Identification of Act
Appellant objects to the prosecution’s proof of a sexually violent offense involving Thomas, contending that “the record of conviction does not allow us to determine which act appellant was admitting when he pled guilty.”
Two separate police reports recount the events that led to the 1987 complaint and conviction and both describe two offenses on March 22—one against Thomas and one against Andy. One of the reports, the supplemental police report, also references á separate incident of inappropriate touching between appellant and Thomas. The report states that about five weeks earlier, on February 14 or 15, 1987, appellant spent the night in Thomas’s grandparents’ RV and, at one point, “drap[ed] his hand over Thomas and allow [ed] it to lie limp over Thomas’[s] crotch.” The felony complaint that led to the 1987 conviction 5 contains two identical counts alleging violations of Penal Code section 288(a). Both counts state, in relevant part: “[Djefendant(s) did, in the Livermore-Pleasanton Judicial District, Cbunty of Alameda, State of California, on or about March 22, 1987, commit a Felony, to wit: A violation of Section 288 (a) of the Penal Code of California,' in that said defendant did then and there wilfully and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of Thomas #[.] . . . .” (Italics added, capitalization omitted.) Appellant pleaded guilty to count one, and count two was dismissed.
Appellant contends that because two offenses against Thomas are included in the supplemental police report, and because the criminal complaint references Thomas as the victim for both count one and count
There is no indication the February incident was contemplated in the criminal complaint, and it appears that the reference to Thomas in both counts is no more than a typographical error. There is no mention in the criminal complaint of the February date, and there is no indication in either police report that appellant committed more than one lewd or lascivious act against Thomas on March 22. Both police reports refer, however, to a separate offense against Andy on March 22.
It also appears appellant understood the complaint to charge acts against both victims, and that he purposefully pleaded guilty only to the count relating to Thomas. The probation report states: “The defendant denies molesting Andy T[.] As proof that he did not commit that crime, the defendant stresses that he refused to plead guilty to Count Two . . . .” At trial, appellant testified that he was asked to plead guilty to an offense involving Andy, but рleaded guilty to only the count relating to Thomas because he did not molest Andy.
In short, nothing suggests that either the February incident involving Thomas or the March incident involving Andy was the subject of appellant’s guilty plea. We therefore reject appellant’s contention that the prosecution impermissibly relied on acts other than those for which he was convicted in proving the sexually violent offense; the People appropriately relied on the March 22, 1987 incident involving Thomas. We also necessarily reject appellant’s related contention that the prosecutor was allowed to choose which act was involved in the conviction, in violation of due process rights. This contention is not supported by the facts.
2. Substantial Sexual Conduct
Appellant makes two related claims: (a) the People improperly relied on facts other than appellant’s conviction to show substantial sexual conduct in violation of his due process rights, and (b) there is insufficient evidence that the offense involved substantial sexual conduct.
Contrary to appellant’s suggestion, the SVPA does not require that the People plead and prove substantial sexual conduct at the time of the underlying conviction. (See former § 6600.1, subd. (a).) Because an underlying offense may be based on a violation of Penal Code section 288(a), which does not require substantial sexual conduct, courts must look beyond the bare elements of the crime to prove that it involved substantial sexual conduct and qualifies as a sexually violent offense. (See, e.g.,
People
v.
Fulcher
(2006)
Appellant, citing
Blakely y. Washington
(2004)
Finally, appellant’s due process rights were not violated because he was given sufficient notice of the prosecution’s intent to use the March 22 act involving Thomas in the SVP proceeding. The SVP petition and supporting declaration indicate the People intended to rely on that conviction, and appellant was given the opportunity to rebut the People’s evidence at trial. (See
Lachance v. Erickson
(1998)
As there was no uncertainty about which act was the subject of appellant’s conviction, and there was no due process violation in its use, appellant’s only remaining challenge to the 1987 conviction is whether the prosecution presented sufficient evidence the offense involved substantial sexual conduct. In reviewing the evidence sufficient to support a commitment under section 6600, “courts apply the same test as for reviewing the sufficiency of the evidence to support a criminal conviction.”
(People
v.
Mercer
(1999)
“ ‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.” (Former § 6600.1, subd. (b), added by Stats. 1996, ch. 461, § 3, p. 2815.) Masturbation “encompasses any touching or contact, however slight, of the genitals of either the victim or the offender, with the requisite intent.”
(People
v.
Chambless
(1999)
The People’s evidence is sufficient. One police report states appellant’s “hand was inside of [Thomas’s] pants on top of his underwear, grasping his crotch area.” The other police report and the probation report also describe appellant’s hand on Thomas’s crotch. Appellant admitted to the probation officer at the time of the
We conclude there is sufficient evidence of substantial sexual conduct and find no violation of appellant’s due process rights arising from the People’s use of the March 22d act and the 1987 conviction to prove a sexually violent offense.
3. Refusal to Allow Thomas H. to Testify
Appellant argues that the trial court erred in denying his request to call Thomas to testify, in violation of state law and his due process rights. We find no error and no constitutional violation arising from the court’s ruling.
On January 19, 2005, appellant requested he be allowed to call Thomas as a witness. Appellant argued that Thomas’s testimony was relevant to the predatory and substantial sexual conduct issues. As his offer of proof, appellant said that Thomas would testify that the only interaction between them was described in the police reports, which appellant interpreted to mean that he touched Thomas’s “crotch,” but not his penis: “Thomas will. . . state that it is—he does not know as a matter of fact whether I touched his penis or not. He’s never stated that I did.” Appellant also said Thomas would testify that it was a situational offense. The trial court prompted appellant for further offer of proof regarding Thomas’s proposed testimony, but appellant simply stated: “Thomas would give that testimony; that all that occurred between us is all that occurred between us.”
The court rejected appellant’s request, finding the offer of proof inadequate. The court informed appellant it would reconsider appellant’s request to call Thomas and other witnesses if appellant could “produce sdme current statement of theirs that makes it appear that they would have relevant testimony to offer.” Appellant points to nothing in the record indicating that he followed up on the court’s offer.
To preserve an evidentiary ruling for appellate review, the proponent of the evidence must make an offer of proof regarding the anticipated testimony. (See
People v. Whitt
(1990)
We find that the trial court properly rejected appellant’s offer of proof as inadequate. Appellant essentially stated that Thomas’s testimony would be the same as his statements referenced in the police and probation reports. He conceded that he was unaware of any statements Thomas made on the issue (either at the time of the conviction or since) aside from those found in the reports. He also acknowledged that he had not, despite the use of an investigator and the availability of the civil discovery process, obtained a statement from Thomas in line with the proposed testimony. (See
People v. Angulo
Appellant contends that the court’s ruling violated his due process right to present a defense and to be given a meaningful opportunity to be heаrd. We disagree. “[D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.”
(Boddie v. Connecticut
(1971)
In
People
v.
Otto
(2001)
Finally, we note that the trial court left open the possibility that appellant could call Thomas as a witness, provided appellant could show that placing Thomas on the stand would be more than a futilе search for a favorable explanation of otherwise clear statements. In this specific context, we cannot conclude the court’s ruling violated appellant’s due process rights.
B. 1991 Conviction
Appellant challenges the People’s use of the victim’s postpiea descriptions of the
1. Factual Background
Appellant met Ethan E while on parole in 1989 and developed'a relationship with him. Appellant visited Ethan frequently, brought him gifts, and took him camping. In June 1990, appellant took Ethan, then 10 years old, on a trip to an amusement park during which they spent two nights alone together in a Santa Clara motel. According to a 1991 police report that led to charges against appellant, and a probation report related to appellant’s sentencing, appellant offered Ethan money to have sex with him. Ethan said no. After Ethan fell asleep, appellant repeatedly attempted to fondle Ethan, but Ethan climbed out of bed and slept on the floor of the motel room. On December 1, 1991, appellant pleaded guilty to one count of violating Penal Code section 288(a) for the June 1990 incident, and he was sentenced to 16 years in state prison.
In January 2000, after the People filed the SVP petition, an investigator with the Santa Clara District Attorney’s office contacted Ethan to determine whether he remembered additional details regarding the June 1990 crime. A report dated January 11, 2000, memorialized the investigator’s conversation with Ethan. According to the report, Ethan said he had been embarrassed and ashamed at the time of the original investigation and had withheld certain details about the crime. Ethan said that although the details in the 1991 police report were accurate, more sex acts occurred than he originally reported; appellant also touched Ethan’s penis with-his hands, skin to skin, appellant masturbated him and forced Ethan to masturbate appellant, and appellant orally copulated him. Ethan also told the investigator that appellant had attempted anal intercourse with him, but was unsuccessful. A 2001 report by the investigator noted that Ethan later clarified that appellant completed anаl intercourse, but was unsuccessful in ejaculating.
Appellant disputed this account when called as the People’s witness at trial. He testified that he asked Ethan if he wanted to have sex and offered him money to let appellant hold his penis, but Ethan said no. Appellant admitted that he attempted to fondle Ethan, but said he was successful only in holding Ethan and sleeping in bed with him.
Appellant called Joseph Haebe, formerly - of the Santa Cruz Police Department, to testify regarding the incident with Ethan. Haebe interviewed Ethan in 1991 and prepared the police report that led to the 1991 charges. Haebe testified that Ethan told him that appellant offered him money for sex. Ethan said that appellant made repeated attempts to' fondle him inside his underwear, but Ethan did not say that appellant touched his penis or took any other sexually explicit actions.
Kevin Smith, the investigator who interviewed Ethan in January 2000 and prepared the 2000 and 2001 reports, also testified as a defense witness. He confirmed that Ethan told him that appellant touched his penis, made him masturbate appellant, orally copulated him, and unsuccеssfully attempted anal intercourse. Ethan also said that on a separate occasion, appellant masturbated him and forced him to orally copulate appellant: Smith testified it is not uncommon for child molestation victims to recall additional details of the crime years later.
Prior to trial, appellant objected to the People’s request to introduce Smith’s 2000 and 2001 reports detailing Ethan’s updated account of the 1990 incident to prove that the underlying offense for the 1991 conviction
2. Due Process Analysis
Appellant objects generally to the admission of evidence obtained years after the plea to show substantial sexual conduct and contends that admission of the investigator’s 2000 and 2001 reports, in particular, violated his due process rights.
Felony violations of Penal Code section 288(a) that “result in a conviction” may constitute sexually violent offenses. (§ 6600, subd. (b).) Prior to Proposition 83, section 6600.1 provided that.if the victim of the Penal Code, section 288(a) violation “is a child under the age, of 14 and the offending act or acts involved substantial sexual conduct, the offense shall constitute a ‘sexually violent offense’ for purposes of Section 6600.” (Former § 6600.1, subd. (a), italics added.) Section 6600, subdivision (a)(3) provides, in part: “The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including,. but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health.” 6 (Italics added.)
Appellant interprets subdivision (a)(3) of section 6600 as limiting all evidence relating to the underlying offense .to evidence that “led to a prior conviction” and contends that in the case of a guilty plea,only those details known at the time of the plea “led to” the conviction. Appellant thus argues that admission of any postplea evidence to prove a sexually violent offense is contrary to the statute and, on that basis, is a violation of due process rights. We find no basis in the plain language of the statute to limit a determination of whether the “offending act or acts involved substantial sexual conduct” to the specific description memorialized in preplea documents.
“We turn first to the statutory language, giving the words their ordinary meaning. [Citation.] If the statutory language is not ambiguous, then the plain meaning of the language governs. [Citation.]”
(People v. Lopez
(2005)
In
Fulcher, supra,
In this case, the felony complaint alleges only that between June 1 and June 30 of 1990, appellant did “willfully and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of ETHAN [F.] . . . with the intent of arousing, appealing to, and gratifying the lust, passion, and sexual desires of the said defendant and of said child.” Appellant points to no other evidence in the record that appellant pleaded guilty to specific conduct. Thus, the “offense” that led to his 1991 conviction is simply a “lewd and lascivious act” against Ethan, the details of which can be found only in extraneous evidence. (See, e.g.,
Howard, supra,
In sum, we find that admission of postplea evidence is not contrary to the plain language of the statute. We therefore reject appellant’s claim that the court violated his due process rights by admitting the evidence in contravention of the statute. We consider separately, however, the question of whether the use of the 2000 and 2001 hearsay statements in the investigator’s reports to prove substantial sexual conduct.violated appellant’s due process rights.
The California Supreme Court, in
Otto, supra,
“Because civil commitment involvés a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections.”
(Otto, supra,
Applying these factors, we first note that appellant, like all defendants- in SVP cases, will be impacted greatly by the outcome of the proceedings; “the private interests that will be affected by the official action are significant limitations on [appellant’s] liberty, the stigma'of being classified as an SVP, and subjection to unwanted treatment.”
(Otto, supra,
- Consideration of the second factor—the impact of the procedures used on appellant’s due process rights and the value, if any, of alternative procedures—requires a closer examination of the specific circumstances presented.
(Otto, supra,
Here, the circumstances surrounding the 2000 and 2001 statements do not support their reliability. The statements were not spontaneous, are inconsistent with Ethan’s 1991 statements, and have not been corroborated. Additionally, the statements were not made in close proximity to the crime and were elicited as part of the People’s SVP investigation. 7 Although the reports were prepared by an officer in his official capacity, this fact alone is not sufficient to ensure the reliability of the underlying victim statements.
“The most critical factor demonstrating the reliability of the victim hearsay statements,” as determined by the California Supreme Court, also does not support reliability of the statements at issue here.
(Otto, supra,
In finding the victim statements in a probation report reliable, the
Otto
court also noted that the Legislature specifically approved of the use of probation reports, that the California Rules of Court contemplate that presentence reports will use police reports, including victim statements, to prepare crime summaries, and that defendants have an opportunity to review and challenge inaccuracies in presentence or probation reports prior to sentencing.
(Otto, supra,
As part of its consideration of the second due process factor, the
Otto
court further noted that the defendant was aware of the statements’ significance by the time of the SVP proceeding and that all SVP defendants have the opportunity to present the opinions of psychological experts and to cross-examine any prosecution witnesses during the proceeding.
(Otto, supra,
An examination of the additional procedures available in this case, and not utilized, supports the finding of a due process violation. Prior to trial, appellant requested permission to call Ethan to testify regarding the 1990 incident and his subsequent statements. The People objected, arguing, among other things, that requiring Ethan to testify would subject him .to “revictimization.” The People made no showing that Ethan was unavailable and-Ethan, in fact, testified at the prior trial that resulted in a hung jury. The court denied appellant’s request to call Ethan as a witness, noting that Ethan’s testimony from the 2001 mistrial, including cross-examination by appellant’s attorney, 8 was available as an alternative. The People did not call Ethan as a witness at trial, and neither party introduced the 2001 trial testimony.
Although “[tjhere is no right to confrontation under the state and federal confrontation clause in civil proceedings, . . . such a right does exist under the due process clause.”
(Otto, supra,
Unlike the situation in Otto (and with regard to Thomas, above), in which the People relied only on statements made prior to or contemporaneously with the conviction, appellant did not have a meaningful opportunity at the time of the underlying charges to challenge the allegations now levied against him. In this context, the general interest in protecting victims from the trauma of testifying cannot justify the People’s use of unreliable hearsay. The People’s failure to call Ethan to the stand, or even to introduce his prior trial testimony, supports the finding that the People’s reliance on the 2000 and 2001 hearsay statements is constitutionally suspect.
The use of hearsay statements', in place of Ethan’s trial testimony, also implicates
After examination of the four Otto factors, we conclude that even if the hearsay evidence is admissible under section 6600, subdivision (a)(3), rеliance on the 2000 and 2001 hearsay evidence to prove a sexually violent offense violated appellant’s due process rights. 9
3. Harmless Error Analysis
The final question is whether this constitutional error was prejudicial. “Although the SVPA is a civil proceeding, its procedures have many of the trappings of a criminal proceeding”; “[a]n SVPA commitment unquestionably involves a deprivation of liberty, and a lasting stigma . . . .”
(Hurtado, supra,
28 Cal.4th at pp. 1192, 1194.) The test set forth in
Chapman
v.
California
(1967)
The People point to Smith’s testimony and the fact that the People presented evidence of two other sexually violent offenses, the convictions involving Matthew and Thomas, to show that any error was harmless beyond a reasonable doubt. We are not persuaded. Smith’s testimony was based on the same unreliable hearsay discussed above. Moreover, appellant called Smith as a witness because the court admitted the investigator’s reports. To use Smith’s testimony to find that there was no prejudice would require defendants faced with rulings contrary to their constitutional rights to choose between attempting to lessen the impact and preserving their constitutional rights for possible resolution on appeal. This is unacceptable.
The fact that the People alleged two other qualifying offenses to prove the predicate sexually violent offenses in this case also does not convince us that the error was harmless beyond a reasonable doubt. Appellant contested the Thomas conviction and nothing in the record indicates which convictions the jury relied upon in finding the SVP petition true. It also is likely that Ethan’s hearsay statements—which describe the most egregious
Finally, we note that appellant’s first SVP trial resulted in a hung jury. Yet, in that trial, appellant conceded the mental disorder element of the SVP finding and contested only the convictions. One primary difference between the two trials is the fact that Ethan testified and was subject to cross-examination during the 2001 trial.
We cannot conclude that the error in this case was harmless beyond a reasonable doubt, and we reverse. 10
C. Jury Instructions
Although we reverse based on the due process violation, we consider appellant’s claims of instructional error because they relate to the claims addressed above and some of these issues may arise in future proceedings in this case.
1. Failure to Define “Offending Act”
Appellant argues that the jury instruction given in this case regarding the required elements of an SVP determination (a modified version of CALJIC No. 4.19) was inadequate. Appellant claims specifically that the court was required to inform the jury that the requisite “substantial sexual conduct” must be part of the “discrete touching resulting in conviction.” Under the instructions given, appellant argues, the jury could have found substantial sexual conduct in acts other than those to which he pleaded guilty.
The People first contend that appellant’s request is for a “pinpoint” instruction and, therefore, appellant waived the issue by failing to request the instruction at trial. We disagree. Appellant’s request is for a clarification or restatement of the general principles of SVP law. “ ‘Even in the absence of a request, a trial court must instruct on general principles of law that are . . . necessary to the jury’s understanding of the case.’ ”
(People v. Roberge
(2003)
The obligation to instruct the jury, sua sponte, on a general principle of law “comes into play when a statutory term ‘does not have a plain, unambiguous meaning,’ has a ‘particular and restricted meaning’ [citation], or has a technical meaning peculiar to the law or an area of law [citation].”
(People v. Roberge, supra,
The modified version of CALJIC No. 4.19 given in this case states, in part: “ ‘Sexually violent offense’ includes a violation of Penal Code section 288(a) (Lewd Act on a Child) that results in a conviction, when the victim is a child under the age of fourteen years and the offending act or acts involve substantial sexual conduct.” This language closely tracks the language of the SVPA, which at the time of trial provided that a conviction for a violаtion of Penal Code section 288(a) may constitute a sexually violent offense if the victim “is a child under the age of 14 and the offending act or acts involved substantial sexual conduct.. ..” (Former § 6600.1, subd. (a); see also § 6600, subd. (b).) Additionally, the instruction is clear on its face. The instruction states that the “offending act” underlying the conviction must involve substantial sexual conduct. This is an adequate statement of the law. (Cf.
People
v.
Williams
(2003)
Appellant argues, however,. that “[t]he jury was not informed that a ‘conviction’ for a lewd act upon a child had a restricted meaning and a particular technical meaning.” According to appellant, a conviction for Penal Code section 288(a) encompasses only a single touching, and, therefore, the court was required to make clear that the “offending act” is limited to the single touching that led to conviction. We find no support for this argument.
Appellant cites
People
v.
Perez
(1979)
Finally, we observe that appellant’s argument, in essence, is a restatement regarding the relevancy of the later disclosed acts involving Ethan and the alleged ambiguity regarding which acts the 1987 conviction encompassed. These arguments are addressed fully in previous parts. We find no reason to augment the clear language of the statute by narrowly defining an “offending act” and find no instructional error.
2. Unanimity Instructions
Appellant claims the trial court erred in failing to instruct the jurors that they must unanimously agree on which prior convictions involved substantial sexual conduct. Appellant similarly claims that the court еrred in failing to instruct the jurors that they must unanimously agree on which acts constituted substantial sexual conduct. We conclude that the court was not required to give either unanimity instruction.
An SVP proceeding is civil, not criminal, and the unanimity requirement for an SVP proceeding is established by statute. (See
Fulcher, supra,
Even under the unanimity rule applicable to criminal cases, a unanimity instruction is required only in specific circumstances. The instruction is required if the evidence shows that several criminal acts may have been committed, but the defendant was not charged with a separate violation for each act; there must be a unanimous verdict regarding each specific act for which the defendant is convicted.
(People v. Washington
(1990)
In this case, the People presented multiple theories to satisfy the first element required to prove appellant is an SVP—the requirement of two “sexually violent offenses.” Because the 1983, 1987 and 1991 convictions constitute alternative means of satisfying the “sexually violent offense” element, similar to presentation of multiple possible overt acts in a conspiracy case, we conclude the jury need not unanimously agree on which two convictions satisfied the “sexually violent offenses” element. The People’s alleged presentation of multiple acts that could show “substantial sexual conduct,” a relevant factоr in establishing a “sexually violent offense,” is similarly a presentation of alternative theories that does not require unanimity.
Fulcher, supra,
D. Constitutionality of the SVPA
One final contention must be resolved on appeal: appellant^ claim that the SVPA violates ex post facto and double jeopardy principles of the state and federal Constitutions.
In
Hubbart, supra,
19 Cal.4th at pages 1171-1178, the California Supreme Court concluded that the SVPA is not punitive in
in. Disposition
The order is reversed.
McAdams, J., and Duffy, J., concurred.
Notes
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
On November 7, 2006, California voters approved Proposition 83, also known as Jessica’s Law, which made substantive changes to the SVPA, effective November 8, 2006. For example, as amended, section 6600 requires that the People prove a sexually violent offense against only one or more victims. (§ 6600, subd. (a)(1); Prop. 83, § 24, approved by voters, Gen. Elec. (Nov. 7, 2006) eff. Nov. 8, 2006.) We apply the statute in effect at the time of appellant’s trial in January 2005, but cite the current statute if the relevant language or provision was unaltered by Proposition 83.
Proposition 83 broadened the category of convictions that constitute a sexually violent offense by omitting the section 6600.1 requirement that the offending act or acts involve substantial sexual conduct. The statute now reads: “If the victim of an underlying offense that is specified in subdivision (b) of Section 6600 is a child under the age of 14, the offense shall constitute a ‘sexually violent offense’ for purposes of-Section 6600.” (§ 6600.1; Prop. 83, § 25, approved by voters, Gen. Elec. (Nov. 7, 2006) eff. Nov. 8, 2006.)
In August 1982, appellant met 11-year-old Matthew J. through Trail Blazers. During a camping trip with the group, appellant fondled Matthew’s penis under his underwear. In 1983, appellant was convicted of a violation of Penal Code section 288(a) related to this incident.
The 1987 criminal complaint was discussed at trial and referred to as part of People’s exhibit 2; however, it appears to have been inadvertently omitted from the documents received into evidence as part of the exhibit. The complaint is found in the appellate record as an exhibit to appellant’s August 2002 motion in limine to bar evidence of the 1987 conviction to prove a predicate offense. That motion in limine, with exhibits, was refiled as part of appellant’s January 2005 motion in limine to bar evidence of the 1987 conviction. .
This section was not altered by Proposition 83.
A letter from Smith to Ethan in January 2000 preceded Ethan’s 2000 account of the offense. It states, in relevant part: “The Santa Clara County Office of the District Attorney is currently attempting to block the release of a potentially violent sex offender. During pre-trial investigation, it was determined that you may have been a witness/victim of a similar incident involving this same defendant. [H It is very important that our office speak to you about this case.” Smith’s phone conversation with Ethan followed, during which Smith obtained the contested statements found in the 2000 report.
During cross-examination in the 2001 trial, Ethan testified, among other things, that the 2000 report was not entirely correct and did not accurately reflect his statements to Smith. -
Throughout the respondent’s brief, the People stress that appellant was given the option of introducing Ethan’s 2001 trial testimony. The burden, however, was on the People to prove all SVP elements beyond a reasonable doubt. We do not place the onus on appellant to introduce incriminating evidence in an effort to protect his rights. Because the People did not introduce Ethan’s 2001 trial testimony to establish substantial sexual conduct, we do not consider whether, as a substitute to live testimony, the transcript would satisfy due process. We hold only that the fact that appellant was given the option of introducing such a transcript in his defense is inadequate.
Appellant also claims that the trial court’s refusal to allow him to call Ethan to testify violated his due process rights and that because the jury should not have been allowed to rely on the investigator reports, there is insufficient evidence of substantial sexual conduct. We do not reach these claims. Appellant sought to call Ethan to rebut the 2000 and 2001 reports, which we conclude were improperly admitted. Had the court properly excluded the reports, the People may have called Ethan to testify or introduced his prior trial testimony. Thus, any analysis of the sufficiency of the evidence would be speculative. Additionally, because we reverse, we do not reach appellant’s additional claim regarding bifurcation of the trial.