Opinion
Welfare and Institutions Code 1 section 1800 et seq. delineates procedures governing the extended detention of dangerous persons. In particular, it provides for the civil commitment of a person at the time he would otherwise be discharged by statute from a Youth Authority commitment. We consider whether this extended detention scheme violates due process because it does not expressly require a finding that the person’s mental deficiency, disorder, or abnormality causes serious difficulty in controlling behavior. 2
I. Factual and Procedural Background
Defendant Howard N. was committed to the Youth Authority after he molested a three-and-a-half-year-old boy. His confinement was set to expire on February 19, 2003, which was defendant’s 21st birthday. Pursuant to section 1800, the Kern County District Attorney’s Office filed a petition to extend defendant’s confinement.
At trial, three female correctional officers testified regarding four incidents, between June and November 2002, in which defendant was observed masturbating in his room. On three of these occasions, defendant shut off the light in his room as soon as he noticed the officer observing him. On the other occasion, the incident lasted approximately two to three minutes, and there was no testimony regarding whether defendant indicated any awareness the officer was observing him.
Clinical Psychologist Deborah Leong was a counselor for defendant during his confinement. Defendant told her that during one incident described above, he was “having fantasies” that the female correctional officer “would come down from the tower and would get aggressive with him and that he would then get aggressive with her and pull her into his room and force her to have sex with him. ... He also was fantasizing that she would eventually like it.” “He also admitted he had similar fantasies about” one of the other female correctional officers who had observed him. He said “he began having rape fantasies when he was about 18 at another facility. ... He said that he would use these fantasies to help calm his anger through fantasies of force and making her like it.”
On January 29, 2003, during a sex offender group meeting led by Dr. Leong and Youth Correctional Counselor Williamson, defendant was confronted about a prior incident in which Ms. Williamson had told defendant to go to his room. “He took an aggressive stance. He told her F-U [sz'c] and some other things, gave her the finger. And he began masturbating that finger with his other hand. [Ms. Williamson] told him that she felt quite intimidated and kind of threatened to be standing near him at the time.”
With respect to his outbursts of anger, defendant “expressed some concern about his outbursts and his ability to control it. He felt that it could bring him back to jail.” Defendant told Dr. Leong at one point he became “so angry at staff for not coming to speak with him that he began hitting his arm against the wall and he broke his arm.” He also told Dr. Leong he had previously choked another child and banged the child’s head until he was pulled off. Apparently as a result, he said he was placed in a psychiatric institution. “He also talked about other instances of firing up his anger . . . and being violent. . . [and] about enjoying being angry and rageful.”
Near defendant’s release date, a book and a poster, neither of which was made
Clinical Psychologist Deborah Morris conducted a psychological evaluation of defendant in November 2002. She reviewed his records, and in addition to a number of the incidents above recounted that on November 17, 2001, defendant had “been documented for choking another ward on the unit.” On May 11, 2001, he “received a behavior report for leering at a female staff” member.
Dr. Morris also performed certain psychological tests. Consistent with earlier evaluations, defendant was in an elevated range “in the areas of anxiety and dependent personality disorder.” He also “scored an elevated range on . . . the scale that measures antisocial personality traits.” He scored high on the psychosocial sex inventory, “indicating that he generally denies having . . . deviant sex interests.” Defendant also tends to see “other people as being against him and feels that he is the victim in most circumstances.”
Defendant “scored in the positive direction on two items on the sadomasochistic scale.” “[H]e answered positive to the first statement I’ve used leather whips and handcuffs or sharp things during sexual encounters and the second was there had been quite a few times I daydream about how pleasurable it would be to hurt someone during a sexual encounter.” On the “psychopathy checklist,” defendant scored 25. “A score of 30 is indicative of a psychopath,” and “an average score for an adult male prisoner is 23.”
Dr. Morris discussed defendant’s committing offense with him, and found significant his description of walking into the room where the three-year-old boy was sleeping, spanking the child, and “ ‘wanting to wipe the look of innocence off his face.’ ” “It relates to his behavior [in 2002] because he’s demonstrating a pattern of . . . sadistic qualities and traits in his behavior and his expressions of having thoughts . . . and fantasies of raping female staff at the youth authority.”
Dr. Morris observed that in June 2002, a prior section 1800 evaluation of defendant had been performed by Dr. Minkowski. “[I]n that evaluation he expressed strong concerns about [defendant’s] level of dangerousness,” noting defendant “tended to pair anger and sexuality in a perverse fusion,” and “had elements of hostility and sadism. However, at that time he felt there was a problem with documenting dangerousness because . . . [defendant] hadn’t been acting out in a sexual way. This was right before we saw the incidents of the masturbation and the fantasies.”
Dr. Morris diagnosed defendant with “Paraphilia Not Otherwise Specified,” which she stated was an abnormal mental condition for a person to have. She explained, “That diagnosis is given when the pattern of behavior doesn’t fit into a specific category that’s already established.” Thus, while defendant could be diagnosed as having pedophilia because he molested a toddler, “I felt that wasn’t a very accurate or descriptive diagnosis because the pattern that is consistent throughout time is not only specific to children. It . . . has more of a sadistic quality to it. And so it would be more—more characterized by the diagnosis of sadism, which I also did not give him because . . . these traits and qualities are emerging right now, and I wanted to be conservative in my diagnosis.” Dr. Morris observed, “I gave him that diagnosis
Dr. Morris drew a connection between her diagnosis and defendant’s physical dangerousness. “[B]ecause he continued to act out in a sexual way on the unit, victimizing the female officers, ... he still posed a physical danger[] to the community.” Dr. Morris opined that “his recent behaviors of exposing himself along with the self-report of violent rape fantasies suggestf] that [defendant], due to an untreated sexual disorder, continues to present an imminent danger to his community.”
The jury found defendant was “physically dangerous to the public because of a mental or physical deficiency, disorder or abnormality.” The Court of Appeal reversed without remanding for a new commitment hearing, concluding the extended detention scheme was unconstitutional. It held that while the scheme required the jury to find “that the potential committee must have a mental deficiency, disorder, or abnormality that renders the person dangerous,” it violated due process by not also requiring the jury to “determine whether the mental illness or abnormality causes the potential committee to have serious difficulty controlling his or her behavior and whether this loss of control results in a serious and well-founded risk of reoffense.” The court further concluded the error was not harmless in this case because the jury “was not provided with the necessary information to impose a valid civil commitment.” Because the court reversed on due process grounds, it did not reach defendant’s equal protection claim.
We granted the Attorney General’s petition for review.
II. Discussion
A. Background
1. Relevant Statutory Provisions
Enacted in 1963, the extended detention scheme in section 1800 et seq. provides for the civil commitment of individuals under the control of the Youth Authority. We have observed that the scheme involves neither a juvenile proceeding nor an extension of a prior juvenile court proceeding.
(In re Gary
W. (1971)
If the trier of fact finds the defendant satisfies the statutory criteria, he may be committed for up to two years. (§ 1802.) Following the same procedures outlined above, the defendant may be recommitted for such two-year periods indefinitely. (Ibid.) “These applications may be repeated at intervals as often as in the opinion of the authority may be necessary for the protection of the public, except that the department shall have the power, in order to protect other persons in the custody of the department to transfer the custody of any person over 21 years of age to the Director of Corrections for placement in the appropriate institution.” (Ibid.)
In 1995, California enacted a civil commitment scheme for adults “immediately upon their release from prison” entitled the Sexually Violent Predators Act (SVPA). (§ 6600 et seq.; Stats. 1995, ch. 763, § 3, p. 4611;
Hubbart v. Superior Court
(1999)
In addition, the mentally disordered offender law (MDO) is a civil commitment scheme that applies to certain offenders during or after parole. (Pen. Code, § 2960 et seq.;
In re Qawi
(2004)
2. Due Process Requirements for Civil Commitment
The high court has repeatedly “recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.”
(Addington
v.
Texas
(1979)
Nevertheless, “[s]tates have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety.”
(Kansas v. Hendricks
(1997)
A recent series of cases both in the United State Supreme Court and in this court has clarified that to be involuntarily civilly committed as a sexually violent predator, the person must, as a result of mental illness, have serious difficulty controlling his dangerous behavior.
(Kansas
v.
Crane
(2002)
In
Crane, supra,
In
Hubbart, supra,
We again addressed the California SVPA in
Williams, supra,
B. Analysis
We now consider whether the extended detention scheme violates due process because it does not expressly require a finding that the person’s mental deficiency, disorder, or abnormality causes serious difficulty in controlling his dangerous behavior. As can be seen, the statutory scheme involved in Hendricks and Crane addressed sexually violent predators, persons who suffer from an ailment that typically contains a compulsive element. However, nothing in the language of these high court cases indicates that the lack of control requirement is limited to the sexually violent predator context. Indeed, it is difficult to imagine on what basis the high court could articulate different due process standards for the civil commitment of dangerous mentally ill persons who happen to be sexually violent predators than for those dangerous mentally ill persons who are not sexually violent predators. Thus, while the high court performed its due process analysis in the sexually violent predator context, its constitutional pronouncements are instructive here.
Indeed, in both
Williams
and
Hubbart,
we described
Hendricks
and
Crane
as embodying general due process principles regarding civil commitment.
(Williams, supra,
The high court’s pronouncements are particularly pertinent in this case. Here, defendant was diagnosed with a mental abnormality, paraphilia not otherwise specified, that was described as a sexual disorder, and which was based on his demonstration of elements of pedophilia and sexual sadism. Dr. Morris’s opinion regarding defendant’s dangerousness was based on this diagnosed disorder. Thus, while this is not a sexually violent predator case, there would seem little analytical basis under these circumstances to stray from the due process requirements the high court has established for the civil commitment of sexually violent predators. Moreover, the Attorney General here concedes that to be constitutional, the extended detention scheme must contain a requirement of serious difficulty in controlling dangerous behavior, in order to distinguish those persons who are subject to civil commitment, from those persons more properly dealt with by the criminal law. We therefore conclude such a requirement is constitutionally mandated.
We further conclude that the extended detention scheme should be interpreted to contain a requirement of serious difficulty in controlling dangerous behavior. In so doing, we are mindful that if “feasible within bounds set by their words and purpose, statutes should be construed to preserve their constitutionality.”
(Conservatorship of Hofferber
(1980)
Similarly, here, the extended detention scheme requires a finding that the person is “physically dangerous to the public” because of a “mental .. . deficiency, disorder, or abnormality.” (§ 1801.5.) While the statutory language does not expressly require a demonstration that the person has serious difficulty controlling his dangerous behavior, construing the existing language to include such a requirement does not appear inconsistent with legislative intent. Rather, implicit in the statutory language linking dangerousness to a “mental . . . deficiency, disorder, or abnormality” is a certain legislative understanding that a person afflicted with such a condition may lack a degree of responsibility or control over his actions. In construing the language to include a requirement of serious difficulty in controlling dangerous behavior, we therefore do no violence to the words of the statute; rather the words are susceptible of that interpretation. In that situation, construing the statutory scheme to avoid constitutional infirmity demonstrates greater deference to the Legislature than simply invalidating, as the Court of Appeal did, the legislative scheme.
Moreover, the Legislature has made it clear over the history of the extended detention scheme that it is committed to making the scheme constitutional. Thus, in two cases decided on the same day,
People v. Smith
(1971)
Likewise, in
People v. Superior Court (Vernal D.)
(1983)
We employed a similar approach of construing a civil commitment statute to preserve its constitutionality in
Hofferber, supra,
We noted, “Clearly the Legislature’s focus on violent felony charges reflects a concern as to dangerousness in criminal incompetency cases . . . .”
(Hofferber, supra,
Thus, as we have done before, we can preserve the constitutionality of the extended detention scheme by simply interpreting the scheme to require not only that a person is “physically dangerous to the public because of his or her mental. . . deficiency, disorder, or abnormality,” but also that the mental deficiency, disorder, or abnormality causes him to have serious difficulty controlling his dangerous behavior. This aspect of the person’s condition must be alleged in the petition for extended commitment (§ 1800), and demonstrated at the probable cause hearing (§ 1801) and any ensuing trial (§ 1801.5).
In so doing, we do not impinge on a role properly reserved to the Legislature. We are cognizant of the fact that the definition of mental illness
warranting involuntary civil confinement is primarily a legislative task.
(Williams, supra,
Defendant contends we are precluded from reading a volitional requirement into the statute, because in 1998 the Legislature amended the extended detention scheme to add a definition of mental illness similar to that in the SVPA, and then deleted this language before the bill was enacted. (Compare Sen. Amend, to Sen. Bill No. 2187 (1997-1998 Reg. Sess.) Apr. 13, 1998 [adding definition similar to the SVPA] 7 with Sen. Amend, to Sen. Bill No. 2187 (1997-1998 Reg. Sess.) Apr. 28, 1998 [deleting definition].) One committee report noted that the proposed definition “appears to be . . . broader than the comparable statute applicable to adults,” which the report identified as the MDO definition, “and arguably may overreach in its scope.” (Sen. Com. on Pub. Safety, Analysis of Sen. Bill No. 2187 (1997-1998 Reg. Sess.) as amended Apr. 13, 1998, p. 8.)
The primary purpose of the 1998 amendment was not to define “mental deficiency, disorder, or abnormality,” but to clarify that prosecutors were not required under the extended detention scheme to perform two trials with the standard of proof for both being beyond a reasonable doubt. (Sen. Subcom. on Juvenile Justice, Analysis of Sen. Bill No. 2187 (1997-1998 Reg. Sess.) as amended Apr. 13, 1998, pp. 3-5, 7; id. at p. 7 [“This bill largely would clarify the judicial proceedings associated with 1800 procedures. To the extent current case law can be interpreted to require both a court trial using a standard of proof beyond a reasonable doubt and then an additional jury trial with the same standard of proof, this bill would correct that problem. [][] It also would set forth the initial probable cause hearing for the petition, and a definition of ‘mental deficiency, disorder, or abnormality’ ”].) Indeed, as can been seen, the definition of “mental deficiency, disorder, or abnormality” was a legislative topic for only a brief period during the bill’s five-month legislative journey.
Nor can we know why the definition was added and then removed.
(Graham v. DaimlerChrysler Corp.
(2004)
We next consider whether, despite the absence of a jury instruction addressing the need for the People to demonstrate defendant’s serious difficulty in controlling his dangerous behavior, the jury nevertheless necessarily made such a finding. (See
People v. Roberge
(2003)
In
Williams,
the defendant had to be physically restrained from continuing the rape of one of his victims, even after the crime was interrupted by police.
(Williams, supra,
Here, Dr. Morris did testify that defendant was dangerous, i.e., that defendant’s “recent behaviors of exposing himself along with the self-report of violent rape fantasies suggest[] that [defendant], due to an untreated sexual disorder, continues to present an imminent danger to his community.” There was, however, no testimony that defendant’s mental abnormality caused him serious difficulty controlling his sexually deviant behavior. Whereas in
Williams
there was expert testimony that paraphilia not otherwise specified, the mental abnormality with which defendant was diagnosed, was “a mental disorder characterized by intense and recurrent fantasies, urges, and behaviors about sex with nonconsenting persons, which symptoms persist for six months or more and cause significant dysfunction or personal distress,” no such information was relayed to the jury here.
(Williams, supra,
III. Disposition
The judgment of the Court of Appeal is reversed, and the case remanded to that court for further proceedings consistent with this opinion.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
Notes
All further undesignated statutory references are to this code.
Neither party addresses the last prong of the issue as stated in the petition for review, i.e., whether section 1800 et seq. should require a finding that “the person’s deficiency, disorder, or abnormality causes serious difficulty controlling behavior, resulting in a well-founded risk of reoffense.” This opinion therefore does not address that issue.
Sections 1800 and 1802 were amended in 2003. The changes do not affect our analysis of the issue here, and we therefore refer to these statutes in their current language.
In 2003, the Legislature added section 1800.5, which provides for circumstances in which “the department has not made a request to the prosecuting attorney pursuant to Section 1800” and the Youth Authority Board “finds that the ward would be physically dangerous to the public because of the ward’s mental or physical deficiency, disorder, or abnormality.”
There has been no allegation or evidence in this case defendant suffers from a “physical,” as opposed to a “mental,” “deficiency, disorder, or abnormality,” and we therefore do not discuss further this aspect of the statutory scheme.
The Lanterman-Petris-Short (LPS) Act is a comprehensive civil commitment scheme “designed to address a variety of circumstances in which a member of the general population may need to be evaluated or treated for different lengths of time. (§ 5150 [short-term emergency evaluation]; § 5250 [intensive 14-day treatment]; § 5300 [180-day commitment for the imminently dangerous]; § 5260 [extended commitment for the suicidal]; § 5350 [30-day temporary conservatorship or one-year conservatorship for the gravely disabled].) ...[][] A stated purpose of the LPS Act is to provide ‘prompt evaluation and treatment of persons [from the general population] with serious mental disorders.’ (§ 5001, subd. (b).) ... To achieve this purpose, a number of LPS Act provisions allow a person to be removed from the general population in order to be civilly committed based on a probable cause determination made by a mental health or law enforcement professional, and then to challenge the civil commitment within a reasonable time afterwards.”
(Cooley v. Superior Court
(2002)
The proposed definition provided: “As used in this section and in Section 1801.5, ‘mental deficiency, disorder, or abnormality’ includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal acts in a degree constituting a danger to the health and safety of others.” (Sen. Amend, to Sen. Bill No. 2187 (1997-1998 Reg. Sess.) Apr. 13, 1998.)
Defendant also contends the extended detention scheme is in fact a penal, not a civil, commitment scheme, and hence “its constitutionality should not be judged by the constitutional standards applied to civil commitments but by more rigorous standards of substantive due process.” He further contends the extended detention scheme violates equal protection. Defendant did not raise these issues in an answer to the petition for review. Hence they are not before us. (Cal. Rules of Court, rule 29.1(b)(2), (3).)