*1 No. 16554. In Bank. May [Crim. 1975.] PEOPLE,

THE Plaintiff Respondent, BURNICK,

CHARLES R. Defendant Appellant.

,309 *4 Counsel David Kohn for Defendant and

Barry Appellant. Evelle J. General, Jr., Hinz, Edward A. Younger, Herbert Attorney L. Chief General, James, Assistant Ashby, William E. Attorneys General, Assistant Moskowitz, William R. Pounders and Joel S. Attorney General, for Plaintiff and Deputy Attorneys Respondent.

Opinion MOSK, J.Professor observes that “The mental Wigmore perceptively condition of one whose mind is so as to deranged require imprisonment for his own and others’ is indeed But the mental attitude good pitiable. falsely of one who is found insane and life relegated imprisonment [May 1975] name of can be committed No greater cruelty

beyond conception. rev. 1974) on Evidence § the law.” (5 (Chadbourn Wigmore a man to be a it is less cruel to find no “mentally falsely Surely in a sex and confine him offender” indefinitely prison-like the law has erected state mental institution. such errors grievous Against In the bulwarks of example, paragraph, sturdy procedure. quoted of confrontation. Professor stresses the importance right Wigmore No critical the standard of less degree persuasion proof—the in order must achieve minds of jury judge plaintiff The law the defendant. invoke the coercive state against powers this standard consequences wisely gravity proportions thus criminal must be erroneous charge proved judgment: of contract doubt, while an claim breach reasonable ordinary re evidence. (See established generally preponderance ' 368, 378-380, 90 S.Ct. 369-372 Winship J., (Harlan, concurring).) 1068] standard we are to determine

In the case bar called proper upon we shall As disordered sex offender proceedings. *5 a man to brand the asserted of the state we reject right publicly explain, for an and him disordered sex offender lock as a up mentally a mere in a mental on indeterminate maximum security hospital period i.e.; evidence, of “under the same standard preponderance omit- to automobile actions.” (Fn. run-of-the-mill applicable negligence 355, 359 Criminal Court 407 U.S. v. Baltimore ted.) (Murel City J., 791, 794, from 92 S.Ct. dissenting (Douglas, 2091] hold, rather, to We order certiorari).) dismissal of comply and federal the due of California of clauses requirements Constitutions, and so drastic reputation liberty impairment a reasonable doubt. an individual must be by proof beyond justified Code, us on an defendant Burnick (Pen. The case is before appeal by him to be disordered subd. an order a 1) from mentally § adjudging section and Institutions Code within the Welfare sex offender meaning offense when a is convicted The 6300.1 code person provides reason sex offender who by a “any person 1Section defines mentally disorder, defect, disease, to the commission sexual offenses of mental predisposed others.” The earlier to health and that he is dangerous safety such a degree (See 5500.) former § was “sexual term for such a psychopath.” statutory person are to the Welfare all references in this statutory opinion Unless otherwise specified, and Institutions Code. the trial and judge may adjourn certify proceedings court for a if it there is superior hearing appears judge probable him to be a disordered sex offender. cause believing mentally bar.2 The court found This was followed in the case at 6302.) (§ procedure offender, Burnick to be a and committed him disordered sex mentally Atascadero State for an indeterminate Burnick (§ Hospital period. demanded a trial of the issue but waived a 6318), (§ jury subsequently and went to trial before the court. Prior to the jury taking testimony Burnick that the court the standard of requested apply proof beyond reasonable doubt its determination. The court refused the making and ruled that it would decide the case request preponderance standard, the evidence. Under that Burnick was found to be a again disordered sex offender and a second order was made him to Atascadero for an indefinite (§ 6321.) committing period.

I of the standard of disordered sex importance offender is well illustrated the case at bar. The facts are From interviews evidentiary uncomplicated. psychiatric and other that at Burnick had probation reports developed age married, certain limited sexual contacts with men. He while apparently still a but his wife died in childbirth. For several after her teenager, years death he had no sexual relations with women. At the time of the events old, he was 28 and was in a question years employed shop selling art and materials. He became with two psychedelic acquainted boys aged and the three were friends for years, approximately year. the course of the latter months of that in four to six year they engaged acts, consensual sexual which were the basis of the charges brought violence, Burnick. He has no record whatever of or of *6 against previous violations of law.

From these facts three all psychiatrists, eminently qualified by training and as on the disordered sex experience experts subject offenders, drew conclusions as to both Burnick’s widely differing and diagnosis prognosis.. 2The record before us is silent as to the offense of which Burnick was particular

convicted. General states—and for we take it Attorney present purposes he true—that was convicted in the court of violations Penal Code section municipal 18) (conduct 647a or molests” a under the and section 272 “annoys person age 21). under Each is a (contributing delinquency age misdemeanor, a fine a brief and/or sentence. punishable by county jail Davis,

Dr. Alvin the sole witness for the as his prosecution, gave that Burnick was a i.e., homosexual opinion a man who pedophile, in sexual activities with adolescent engages that he was boys; likely future; such acts and that the repeat conduct would be “dangerous to the health and of others” 6300), but (§ safety sense that only who were still “undecided” youths about their sexual identity might influenced towards because of their homosexuality experiences Burnick. On cross-examination, Dr. Davis conceded that a child’s sexual to be life, formed identity begins before that it early long puberty; Burnick would limit his possible contacts to who were youths already oriented; and that his conduct homosexually would no pose danger those who were either heterosexuals or confirmed homosexuals.

Two defense, testified for the and their views were psychiatrists clear conflict with those of Dr. Davis. Dr. Michael Coburn denied that Burnick was a homosexual: he had in both although participated heterosexual occasion, and homosexual conduct on “he is not a understood, homosexual of the term. He is commonly meaning heterosexual in his Nor “I was he don’t predominantly past.” pedophilic: find him to be attracted to human of either sexually pre-pubital beings sex. . . . individuals, His interest is not in children but in mature sexually whether or not their be mature.” Dr. Coburn’s was age diagnosis twofold: Burnick had a immature and that he highly personality, suffered from a from an long-standing depression resulting inability deal in a realistic with the death of his wife. way

The witness that in standard nomenclature acknowledged psychiatric both immature are classified as “character personality depression disorders.” But whether or not that term is the general equivalent defect, disease, “mental (§ or disorder” Dr. statutory 6300), phrase, Coburn concluded that Burnick was not to the health firmly “dangerous of others.” it was that he safety Although “possible” might again in acts such as those it was not because the engage charged, “likely” events had caused him increased and decreased sexual guilt feelings case, Dr. Coburn was of the that isolated acts pleasure. opinion such as here involved would have no more than a effect on the slight sexual of even an “undecided” adolescent.3 development *7 3The doctor that such “a contacts could be factor” explained youth’s but “So is how his first three or four . . . heterosexual dates treat Ahim. development, of bad a heterosexual would do more as far couple rejections by partner maybe damage have further heterosexual relations.” unable to making person [him] homosexual, Andre Dr. Tweed also refused to Burnick as a classify Rather, his heterosexual activities. he found Burnick to be an stressing immature whose homosexual were situation- experiences entirely al. The witness that immature is classified as recognized personality “character disorder” in but professional terminology, explained label means behavior does not conform to that which merely “your sets at that moment as the so-called norm.”4 society up particular being Tweed Dr. further stated that in his Burnick was not a opinion The children, with whom he was involved were not pedophile. youths and in the doctor’s had initiated the encounters opinion probably themselves. Adolescents were not Bumick’s “I interest: don’t primary that he believe is the of individual who would out and type go actively Rather, solicit activities with that his sexual particular age group.” event, were “directed more toward adults.” feelings consenting Tweed, to Dr. adolescent has had according average today generally “some homosexual, sexual heterosexual or and it type experience, doesn’t affect him one or other.” way

For these reasons Dr. Tweed with Dr. Cobum’s conclu- fully agreed sion that Burnick was not to the health and of others” “dangerous safety and was not a disordered sex offender. testified,

No other witness and no evidence was intro- documentary duced. In oral defense counsel the ade- argument sharply challenged case, of each element of their quacy People’s proof urging that when we deal with “the example possible deprivation liberty an individual for his natural life ... we need more than something just disorder,” mere and that the risk of his influenc- personality speculative some towards “a is not sufficient ing youths homosexuality danger take Mr. Burnick’s for such a of time.” away liberty prolonged period The found, court nevertheless an asserted preponderance evidence, that Burnick was a disordered sex offender within the of section 6300. meaning

II record shows that the trial court felt to decide the issue compelled evidence because of the directive preponderance statutory tomorrow, stated, the doctor “if the were 4By way example Legislature say today tomorrow, that it’s all in homosexual activities ... it would perfectly right engage no be characterized as a longer character disorder. It would become so-called normal behavior because would not then be in conflict with because society, society [would its'standards at that changed time.” particular have] *8 that in disordered sex offender “The trial shall be mentally had as law for trial of civil causes ....” But it is 6321.) (§ by provided from the face of the statute that it does not mandate any apparent - standard of nor does other particular proof, provision disordered sex law. 6316.) offender (See, § mentally e.g., matter is therefore controlled of section 115 of by general provisions Code, the Evidence which declares in relevant that part “Except law, otherwise the burden of provided by proof by requires proof of the evidence.” (Italics added.) preponderance According comment to that section Committee on by Assembly Judiciary, the means, “unless a heavier or lesser burden of exception proof constitutional, in a case specifically required particular by statutory, decisional law.” (Italics added.) Evidence Code section 160 “law” defines terms, in the same and the draftsman’s comment thereto tripartite reiterates that “a reference the Evidence to law’ includes the [in Code] law established decisions as well as constitutional and by judicial by Nor is this as the choice of standard of statutory provisions.” surprising, “is the kind of which has been left to the proof question traditionally to resolve . . . .” (Fn. omitted.) Service judiciary (Woodby Immigration 362, 368, 385 U.S. 483].) S.Ct. That is not answered reliance on question, accordingly, People’s disordered sex offender general proposition proceed are “civil nature.” re Bevill 68 Cal.2d 68) (See, (19 ings e.g., 599, 442 P.2d it Nor is into the 679].) Cal.Rptr. necessary inquire of section 6321 or Evidence constitutionality quoted language statutes, Code section 115. we Rather those apply proceed determine whether the standard of a reasonable doubt is proof “otherwise disordered sex offender required” proceedings. Yet in so we are moved constitutional considerations of the doing order, inasmuch as we our to insure that no highest discharge duty of his without the due of law deprived liberty process I, article section subdivision of the California (a), guaranteed by Constitution, and the Fourteenth Amendment to the United States Constitution.5 the standard of has not 5SimilarIy, Legislature specified involuntary Code, (Welf. commitment of under our mental health law & Inst. § persons general Act), et known as the has Lanterman-Petris-Short but such seq., provided shall be conducted “in accordance with constitutional due guarantees

proceedings' (a)] of law and the under Section 13 subd. § procedures [now required bar, (§ As in the case at Article Constitution of State California.” will be for the courts to decide which standard of is necessary comport in view of the to the individual of a those “guarantees procedures” consequences commitment under the" Lanterman-Petris-Short Act.

315 In the absence of California cases we find in recent guidance point, of the States The first decisions United Court. Specht Supreme 386 U.S. 605 L.Ed.2d Patterson (1967) S.CT. 1209], dealing [18 with a “sexual statute similar in outline and psychopath” essentially here The Colorado Sex Offenders purpose legislation challenged. Act that if the trial court was of the that a defendant provided opinion convicted of a sex offense “constitutes a threat of harm specified bodily ill,” an to members or is habitual offender and he public, could be sentenced to indeterminate term of one to life day upon examination and There was no formal under psychiatric report. hearing the statute.

A defendant who had been thus sentenced federal habeas sought and the United States Court reversed a corpus, Supreme unanimously denial of that The court declined (at remedy. expressly p. [18 L.Ed.2d at 329]) to extend to this area its in Williams v. New holding York 1337, 1343-1344, U.S. 249-250 93 (1949) L.Ed. 69 S.Ct. [ that due 1079], does not a full process require hearing right Rather, cross-examination at the time of sentence. the court fixing reasoned, “These commitment whether denominated civil or criminal are both to the Protection Clause of the subject Equal Herold, Fourteenth Amendment as we held in Baxstrom v. U.S.

and to the Due Process Clause. We hold that the of due requirements were not here. satisfied

“The Sex Offenders Act does not make the commission of a specified crime the basis for It makes one conviction the basis for sentencing. another under Act another to determine commencing proceeding whether a constitutes a threat of harm to the or is bodily public, an habitual offender and ill. That new is a finding of fact that was not an ingredient [citation] charged. punish offense ment under the second Act' is criminal even it is punishment though not so much as retribution as it is to individuals from designed keep added; future harm.” fn. (Italics omitted.) inflicting (386 608-609 L.Ed.2d 329].) pp. at p. with,

This close examination. To the court here language repays begin the “civil label of convenience” one month before its disregarded decision in In re Gault 387 U.S. 1 landmark S.Ct. Nor was the court deceived that the fact 1428].6 purpose Gault, course, 6In the court interred that label for all constitutional purposes. firmly A be the court’s conclusion that “commitment is a fitting epitaph might deprivation was the court

the confinement not retribution. Instead pene primarily and examined the trated the substance directly proceeding conviction commit between the ensuing relationship original *10 the latter must both ment that protection satisfy equal inquiry, holding noted that the of the commitment due The and court purpose process. the a was to whether defendant “constitutes” determine proceeding or ill offender. That determina to others “is” a habitual mentally danger tion, court, new of . . that was not an “is a fact . said finding ”7 of the offense charged. ingredient An identical to the California disordered sex analysis mentally applies offender law. We with the fact that our begin simple grammatical than statute rather the future tense: section 6300 speaks present suffers, who (1) defines a sex offender disease, i.e., time, defect, at the from a “mental or disorder” and present commit to such a who “is” to sex crimes (2) thereby degree predisposed into he “is” a others. that These are (3) inquiries danger harm, of mind and are defendant’s state risk they present in from raised involved the issues the statute Specht, indistinguishable i.e., offender or whether defendant “is” a ill habitual resolution, therefore, their “constitutes” to others. As danger Specht, “new . . that in the commitment is a of fact. was not proceeding finding offense ingredient charged.” The court the several then listed in which Colorado Specht respects statute failed to due that constitutional provide process: guarantee counsel, that be with have an “requires present [the oppor- defendant] heard, him, to be be confronted witnesses have the tunity against cross-examine, and to offer evidence And there of his own. must right to make that is allowed.” adequate meaningful findings any appeal 610 at that the 330].) U.S. at L.Ed.2d We (386 p: p. right [18 recognize doubt trial and standard a reasonable are not proof beyond jury reasons, two mentioned thus enumerated. For at least among the. rights ” will, (Id. or ‘civil.’ whether it called ‘criminal’ It is incarceration one’s liberty. against of such (For at of the use and abuse labels 558].) at 50 L.Ed.2d p. witty critique [18 Dershowitz, A civil commitment see Preventive Suggested proceedings, Confinement: 1277, 1295-1299.) 51 (1973) Tex. L. Rev. Framework Constitutional Analysis for (1972) 405 was reiterated in a passage Humphrey Cady 7This holding 394, 403-404, that 1048], in which the court under 511 92 S.Ct. emphasized who are Act renewal commitments persons the Wisconsin Sex Crimes five-year mental or of their to be to the because physical determined “dangerous” public of fact ....’’ are “based on new findings disorder abnormality” “deficiency, L.Ed.2d], of 405 U.S. cites [page opinion Specht page Humphrey however, such omission of matters from the Specht opinion without significance.

First, a careful court the lower in that reading Specht opinions did case shows not claim the to a petitioner specifically right jury issues, doubt; trial or a reasonable those were proof beyond accordingly, not States United Court. the federal Supreme presented California, no less than in cases are not system authority propositions re not considered. Tartar Cal.2d P.2d 553], {In Second, and cases cited.) was precise Specht holding Colorado statute was deficient due “as measured *11 of the Fourteenth Amendment.” U.S. at 611 (386 requirements p. [18 at L.Ed.2d But of the date 331].) as of the (1967) p. Specht Supreme Court had not the held that due of clause the federal yet process Constitution to the states a trial in criminal cases requires guarantee jury and the of a doubt.8 reasonable The awaited protection beyond proof federal court did not come until 1968 in the case of rulings high Louisiana, 145, trial v. 391 (Duncan 491, 496, U.S. 149 L.Ed.2d jury [20 88 S.Ct. and 1970 for 1444]) (In a reasonable doubt re proof beyond 364 U.S. L.Ed.2d see Winship, 375]; v. supra, People Vann (1974) Cal.3d 227-228 524 P.2d 824]). [115 Cal.Rptr. if each Yet did not and future every Specht step prophesy of due in these the role that must commitment development process play the The court way. quoted proceedings, clearly pointed following from United v. 1966) States Cir. F.2d (3d Maroney language supra, 302, 312: “It is a criminal which be invoked separate proceeding after conviction of one of the crimes. Petitioner therefore was specified to a full entitled before the sentence was hearing magnified judicial At such a of due cannot be imposed. requirements process hearing A satisfied defendant in by partial procedural niggardly protections. such a is entitled the relevant proceeding panoply protections full of 1966) in (3d 8This is United Cir. 355 F.2d chronology Maroney States emphasized 302, a decision in relied on There a sexual strongly Specht. Pennsylvania psychopath the Colorado in identical to law was attacked proceeding essentially Specht challenged alia, on the inter that its lack a trial violated due The court was ground, jury process. “the trial would to opinion guarantee jury Pennsylvania] [the apply cases,” if the in state criminal Fourteenth Amendment makes it proceeding applicable that the “whether trial but remained question by jury, guaranteed explained right Amendment, as it the Sixth within the Fourteenth Amendment byis is protection (Id. law.” without due at against liberty prohibition deprivation process p. the United Court had answered that squarely States not Supreme yet Noting the court deferred in the meanwhile to the views of the courts on Pennsylvania question, the matter. He must criminal due state which proceedings. process guarantees essential all which are afforded those rights safeguards fundamental trial, confront cross-examine right including fair The court added.) witnesses him.” (Italics Specht unequivocally against (386 own, “We that view.” its this agree saying, language adopted at at 330].) U.S. p. between sexual fundamental psychopath similarity light bar, the case and in question Specht challenged the “full reasonable doubt is us whether among

before beyond in state due of the relevant process guarantees protections panoply was answer criminal definitively given proceedings.” In re the second case here Court in Winship point, Supreme 358. supra, above,

As noted the due declared that criminal cases Winship clause the accused conviction protects against except upon proof reasonable doubt. for our beyond Particularly important purposes court’s dual for that rule: “The justification requirement a reasonable doubt has vital role in our this criminal procedure *12 for reasons. The a criminal has accused cogent during prosecution stake interests of immense both because of importance, possibility that he lose his conviction and because may liberty certainty upon (397 that he would the conviction.” added.) be (Italics stigmatized by (at L.Ed.2d at U.S. at 363 recalled 375].) court then p. p. [25 365-366 Gault had L.Ed.2d shown how the same 375-377]) atpp. pp. [25 an two flow from consequences juvenile delinquency.9 adjudication 367 377]) the court concluded L.Ed.2d at (at Accordingly, p. [25 reasonable must extend a doubt safeguard life for as well: intervention in the child’s judicial juvenile proceedings court, his own said the “cánnot take the form of subjecting good, violated a criminal law and child to of a that he finding stigma convict confinement on insufficient to of institutional possibility him were he adult.” omitted.) (Fn. not more Court’s analysis applies equally—if

Again Supreme First, sex offender law. so—to California disordered mentally 816, 821 we in Gross v. Court Cal.2d (1954) recognized Superior do not labels and intentions good 9“We made clear in that decision that civil courts, for themselves obviate the need for criminal due safeguards juvenile will be found the issue is whether the child to be “delinquent” where proceeding ‘[a] to a felony is seriousness the loss of his liberty years comparable subjected ” prosecution.’ when man a P.2d a is 1025], being mentally charged [270 in the order That threat is fulfilled “His at stake.” sex offender liberty their will for those confined In common with all of commitment. against illness, our statute suffers committed under of mental a treatment (1972) curtailment supra, “massive Cady liberty” (Humphrey Indeed, 394, his L.Ed.2d 402]). U.S. deprivation personal to be a of that juvenile far excess by youth adjudged experienced delinquent. in an be confined with, not

To juvenile may begin available, institution; of control are less drastic methods other including (Welf. release & home” or on in a “suitable probation. family placement contrast, that a Code, if the court determines Inst. 727 et § seq.) By and that offender could benefit from treatment disordered sex resumed, it has not no him should criminal against him “for in a state but to order committed hospital.” placement option house, no alternative. There is no (§§ half-way outpatient Nor doubt commitment to a “state is there that such hospital” results Like all found to be in a real of liberty. deprivation persons California, Burnick was treatable disordered sex offenders committed the court to Atascadero State Let us not deceive Hospital. as to the nature of In re Gault (Cf. ourselves that institution. supra, It described as was 545-546].) frankly “In follows of the medical its distinguished body profession.10 this is more like a than a much hospital. physical appearance, prison its the modern architectural concept disregards planning, psychiatric bars, corridors, *13 iron the There are bare gates, community. therapeutic than treatment. rows the rather of cells—all stigmata punishment the are locked of them Patients who individual rooms out during occupy Patients wards no to withdraw and have day privacy. opportunity one the from area of have a reasonable amount of hospital mobility . . another, are in evidence . everywhere. security although precautions ^[11] Externally, the plant has a misleadingly attractive appearance. attributes, it and well-maintained its is Internally, despite dehumanizing a Other and be characterized as sanitary dungeon.” might well-equipped 10Observations and Comments on a Mental Based California State Facilities Survey Association, 18, 1965, the This California Medical 21. was by January survey page conducted the California Medical Association at by Department request case Mental of the In the a resolution state Senate. Hygiene, supplemented by of whom Atascadero the institution was visited a team of five four were physicians, by psychiatrists.

observers have confirmed this And lest it description.11 thought outsiders characterize this institution as only essentially indistinguishable from a consider the of Dr. Harold M. senior prison, testimony Rogallo, on the Atascadero staff:12 Dr. psychiatrist identified Atascadero Rogallo as the “maximum only of Mental security” hospital Department the fact that “it is all locked and it is under Hygiene; noting strict and we have supervision, officers for a approximately fifty security of about thirteen hundred and Dr. population fifty patients,” Rogallo concluded “Our is much unequivocally, hospital pretty bordering, you a correction . .” . We say, shall not might facility. [on] presume contradict this a senior staff member of the by institution appraisal very in question.

Not is the disordered sex loss of offender’s freedom only more severe than that of the it a much is also of juvenile, longer duration. confinement of the limited law to Any juvenile ordinarily most, a few at when he reaches 21 or years terminating automatically age Code, 1769-1771; thereafter. & Inst. but (Welf. see shortly §§ A 1800-1803.) a §§ disordered sex person adjudicated mentally however, offender, is committed “for (Welf. an indeterminate & period” 11“The itself is combination of and physical facility unique prison hospital, of the uncertain the institution between the seemingly symbolic forces position occupies Atascadero, of law and Situated three miles of the small psychiatry. town of on a south acres, tract of from isolated from and and Angeles Los San Francisco cut off equally the outside any great hospital university. Although appearance building modern, and the conveys lobby visitor to the stark impression an ordinary furnished hospital tastefully idea, this entrance the double-doored complements through ‘sallyport’jolts corridors, that this is maximum reality Two immense security prison. men, painted filled with lead at depressing prison from the gray right angles away entrance and access sally-port wards." give cells dormitories of twenty-seven Silbert, Dezzani, (Nasatir, & Atascadero: a Maximum Security Ramifications of Treatment Institution 30-31.) 2 Issues Criminology institution, After certain noting hospital-like aspects areas of “public” (at 31): authors continue this fades “Unfortunately impression wards upon viewing and cells which are the home their patients’ this during stay facility. coffin-like cells are individual devoid of any element of homeliness or individuality. Hospital forbid regulations to decorate or his patient humanize cell. The bars attempt windows, outside, on the concealed from the are cleverly evident from within. painfully The ward room day serves as room for entire ward living center population, therapy treatment, for those and a those undergoing bedroom for for whom there is no space *14 or cells dormitories. Most in dormitories that house twelve to fifteen patients sleep ward, these men are shifted from ward to their patients. Periodically taking meagre (Fn. omitted.) with them a box as personal possessions they go.” 12Dr. this gave the trial of the case of Rogallo testimony during companion People v. 509, . 373], It in the Feagley, that case filed with page P.2d is transcribed record of post, Cal.Rptr. [121 court, (Evid. and this we therefore take of it. notice may judicial 452, Code, (d)(1), 459.) subd. §§ Code, means what it the individual 6326). The statute Inst. says: §§ for life. of time can be detained whatever—potentially length the end Moreover, a certain release not on his reaching age depends term, of a but on fixed hospital superintendent “opinion” “a from treatment and is no he will not “benefit” further danger” longer difficult review. Under our standard (§ 6325)—a highly discretionary therefore, deliver- scheme, sex offender's disordered mentally statutory future.13 ance the uncertain can be many years a reasonable

The for the standard of second proof beyond justification (397 loss name” is the and doubt relied on in “good Winship “stigma” 374, 375, 363, 364, which follow L.Ed.2d at 377]) pp. pp. from a criminal conviction or an juvenile delinquency. adjudication from a results no less a judicial pronouncement stigma Surely In the and a offender.” that a is both disordered” “sex man “mentally and ill ideal would be the of understanding mentally subjects society, rather than and aversion. But that ignorance enlightened compassion view, does borne not by unfortunately, yet prevail. stigma in the “a former ill has been identified literature: mentally frequently mental suffer from the attaches to social may patient opprobrium illness have treatment for mental and which more severe conse may than do disabilities. have .formally quences imposed Many people ‘irrational fear of the ill.’ The former mental likely patient treated with distrust even he ostracized bemay socially loathing; and victimized and educational discrimination. Finally, employment the individual’s hospitalization posthospitalization experience cause and social him to lose self-confidence and self-esteem. The legal [¶] illness, a of commitment constitute mental stigma consequences as of a criminal that could be as debilitating stigma socially Commit omitted.) conviction.” Law—Civil (Fns. (Developments accord, 1200-1201; ment III 87 Harv.L.Rev. (1974) Mentally Rosenhan, Clara Law. Sane in Insane Places 13 Santa (1973) On Being 379, 385, fn. 11.) and authorities cited in behavior, of unlawful sexual to that is added

When charge stigma California, our This not an the shame is question open complete. the status attaches to the odium which courts have commonly recognized Thus in v. Fuller sex offender. People the court noted 25], Legislature Cal.Rptr. Cal.App.2d of the court to obtain 13This conclusion is unaffected statutory authority (§§ state reports on the from the progress superintendent hospital. discretionary. wholly In each case intervention is judicial *15 be taken “before the care is to has that stigma greatest provided individual . . . .” And a attached to an is sexual finally psychopathy his that commitment does not moot from discharge appeal subsequent because, 67 Cal.2d v. we People Succop explained is entitled to the 433 P.2d the defendant 473], opportunity Cal.Rptr. a disordered that he is to “clear his name” mentally adjudication sex offender. that of fact, is than

In of such an adjudication greater stigma conducted in The latter are privacy: proceedings juvenile delinquency. (Welf. shall not be admitted” declares that “the the statute public flatly Moreover, Code, 676; five after 675). see also & Inst. years § § terminates, officer or court’s judge probation jurisdiction juvenile records and concerning all proceedings destroy papers “may a surrounds No such (a).) mentally minor.” subd. confidentiality (§ trial, and hence which is sex offender disordered open public course, trial, media; results and such news permanently and its outcome. of the event records accessible public known, to the extent do become acts juvenile Secondly, they misconduct are often minimized or on such commonplace forgiven will will'be or have its rationalizations as fling,” “boys boys” “youth with belief of folk miscreant just “going psychology coupled his bad habits. No and with will “outgrow” maturity through stage” sex the convicted such is shown towards indulgence remains forever offender, he be. He however immature impulsive twin marks of mental and sexual branded abnormality. pariah, the standard It follows from the foregoing must be as disordered sex offender high wit, a reasonable juvenile delinquency proceedings—to the level of due less will fall short of doubt. providing Anything and federal Constitutions. the California required Court decisions has been clearly message Supreme of a sexual our brethren on the federal bench. understood Speaking commitment, the First for indeterminate law providing psychopath avoid a “the inmate’s Court of Circuit right recognized Appeals the most and lifetime under loss of liberty stigma except grievous Cir. 489 F.2d 1973) (1st (Sarzen Gaughan rigorous safeguards.” mental committed to a state that a involuntarily holding treatment, the Fifth Circuit Court of has a constitutional right hospital *16 commitment that civil “the fact note of took indisputable Appeals special in the constitutional sense. curtailment of a ‘massive entails liberty’ 1048, 509, 31 L.Ed.2d 504, 1972, 405 S.Ct. v. Cady, Humphrey effected freedoms by an individual’s 394. The destruction of personal confinement total than that effected less by civil commitment scarcely an commitment, for Indeed, because civil in a penitentiary. a more serious term, involve abridgement in some indefinite may ways a crime commission of usually for than freedom imprisonment personal individuals, affected involves Civil commitment does. stigmatizing than the attached, in less severe stigma and the theory stigma though severe, or more so.” conviction, in be to criminal attached reality 520, F.2d 1974) Cir. v. O’Connor (5th omitted.) (Donaldson (Fn. cert, 171].) L.Ed.2d 95 S.Ct. 419 U.S. 894 (1974) [42 granted From these the courts have drawn the conclusion that premises due clause reasonable doubt in beyond process requires proof commitment of found to be leading involuntary persons both ill and Thus an authored Judge mentally dangerous. opinion A. Robert of the Seventh Circuit Court of for a Sprecher Appeals court, district it was declared that the reasons for the holding three-judge as to a fortiori commitments of Winship juvenile delinquents apply standard of ill: “The mentally argument stringent Winship] [ is more in the case of a civil commitment compelling civil individual will be of basic certainly deprived rights We the lack of stigmatized by confidentiality adjudication. hold that a reasonable doubt all therefore the state must prove beyond facts to show that an individual is ill and necessary dangerous.” 1078, 1095, vacated on v. Schmidt (Lessard (E.D.Wis. 1972) F.Supp. 414 U.S. 473 other sub nom. Schmidt Lessard (1974) grounds accord, 1964) S.Ct. Denton v. Commonwealth 713]; (Ky. 383 S.W.2d 681.) Circuit of Columbia the Court of the District of Appeals

Again, re 482 F.2d 648 held so Ballay App.D.C. unanimously commitment because was jury Reversing judgment 59]. of the evidence that find a mere Ballay permitted preponderance held the due was ill and to be the court likely dangerous, a reasonable such issues to be clause beyond requires proved Its well reasoned makes doubt. detailed and many points opinion concern, additional relevant to our absence including present a reasonable if the administrative burden standard used and the fact that 663) testimony doubt is (id. psychiatric pp. *17 either mental or disorder future diagnosing is predicting dangerousness “far from “never has been characterized a satisfactory” high of at (Id. degree accuracy.” pp.

In its the court the concluding argument analyzed Ballay Winship decision and the Court’s rationale to the case at hand applied Supreme at of 668): “the loss interest (id. of value’ p. liberty—the ‘transcending Randall Ú.S. (2 [citing Speiser 1472)]—is those for committed as the obviously great civilly Indeed, criminal or in the former juvenile delinquent. greater the since statute for indefinite The commitment. provides only question is whether the associated civil commitment is as ‘stigma’ involuntary severe as the of that an a individual committed crime. stigma finding Even advances, recent medical current studies indicate accepting clearly the of that most view mental illness as a fallacy contending people disease similar to ailment of the (Fns. omitted.)14 any physical body.” The court then reasoned as at (id 669): follows “In the Court Winship, concluded that the while of a consequences juvenile being adjudged criminal, were not identical a delinquent being adjudged differences were not sufficient to a distinction standard of support that, This was the fhct unlike civil commit- proof. ment, despite involuntary did not the child of his civil being adjudged delinquent deprive statute, nor did which called for him to rights confidentiality, expose of a We cannot but that conclude stigma public hearing. help committed civil has at stake interests of forcefully patient equivalent proportions.” summarize,

To us that “whether civil teaches denominated Specht criminal,” are sexual to the “full subject psychopath proceedings clause, of the due and an adverse panoply” protections process fact”; turn, in determination such is “a new proceedings finding instructs that due clause a Winship proof beyond process requires reasonable doubt not of the defendant a traditional only guilt but also of the fact or facts prosecution criminal dispositive in which the state threatens to an individual his proceeding deprive decisions, name freedom.” The two down handed less than “good three thus each other and years apart, complement point proper resolution of case at bar: under this defendant is entitled to Specht, law, all the of due and under those safeguards Winship 14In cases and footnote this addition numerous point opinion, citing commentaries, on reminds us of the- mental illness stigma effect aptly prior Thomas F. vice-presidential Senator candidacy Eagleton. a reasonable must the standard of include proof beyond safeguards doubt.15

III not are Running People persuasive. contrary arguments the standard of the view position throughout People’s because not doubt a reasonable required i.e., inasmuch as in nature”: are offender sex “predictive committed the defendant particular not state is prove trying *18 in to sex crimes commit rather is in the but act “predisposed” past illegal facile The future, factual error are fewer the required. safeguards against its of however, the weakness masks of this attractiveness theory, are that The is predictive judgments assumption underlying assumption. is valid, error in such and that the of judgments truly probability in less the of error determining than judgments probability significantly most our As to that events occurred. sometimes happens past specific cherished is otherwise. reality preconceptions, the to the of it is recent studies no heresy question light longer be of themselves would

reliability psychiatric predictions. Psychiatrists 15In extensive their the in the Law—Civil Commitment study Developments authors.of (1974) the Ill likewise that the Harv.L.Rev. conclude Mentally proper of standard in and to both commit Mío are persons mentally is on the to others a reasonable doubt. Their based analysis is dangerous proof in at (397 Justice his in Winship of Harlan approach concurring opinion 378-380]). Justice the of standard L.Ed.2d at Harlan choice 370-372 pp. pp. posited the the social of erroneous outcome: of should reflect an “comparative disutility” the cost of a the interests has at in the the social stake greater party proceeding, greater The law review mistaken decision and the the standard of higher appropriate proof. ... be may authors reason social costs of errors in the civil commitment process “The the harm the disadvantaged party. determined extent of to resulting examining is in commitment are with which the individual threatened comparable deprivations in to both the threatened loss of and stigmatization, magnitude, respect liberty omitted.) in (Fn. (87 criminal Harv.L.Rev. at cases.” deprivations potential state’s interest in an determination in the individual’s 1298.) The erroneous avoiding p. that he is highly favor be if the authorities can will substantial only accurately predict However, of if “Current standards dangerousness to cause serious harm released. likely harm, do not and because of the poor or probabilities predictive specify magnitudes for committed individuals class of psychiatrists, persons presently capabilities error disutilities of are to commit acts. The dangerousness relatively unlikely dangerous state, and are much for the individual than are for they therefore greater 1300; omitted.) at for other (Fns. doubt should be reasonable standard applied.” {Id. writers for in disordered sex offender proceedings, this standard calling Litwack, Coins Expertise: see Ennis & and the Psychiatry Presumption Flipping Note, 750-751; Benevolent Toward Less Courtroom 62 Cal.L.Rev. (1973) 13 Santa Clara The Case Abolition MDSO Laws Despotism: California’s 579, 604-608; Comment, (1970) 11 Santa Law. The MDSO—Uncivil Civil Commitment Clara Law. admit first to that however desirable infallible ball crystal might

be, it is not tools their It be must conceded that among profession. still considerable psychiatrists experience difficulty confidently mental Yet illness.16 those difficulties are multi- accurately diagnosing when venture from manyfold plied psychiatrists diagnosis prognosis “ and undertake to of such ‘A illness: predict consequences diagnosis of mental illness tells us about whether the so nothing person diagnosed is or is not Some mental are some are dangerous. patients dangerous, not. is an at whether a Perhaps psychiatrist expert deciding ill, but is he an at which of the so expert predicting persons too, are Sane are and it diagnosed dangerous? people, dangerous, education, whether there legitimately inquired anything which renders them experience psychiatrists training particularly behavior. Predictions of adept predicting dangerous dangerous behavior, them, inaccurate, no matter who makes are incredibly there is a consensus that are not growing psychiatrists uniquely qualified are, fact, behavior and accurate less in their predict dangerous ” *19 than other v. Baltimore Criminal (Murel predictions professionals.’ City 355, 364-365, Court 2 fn. (1972) supra, 796-797] J., from dismissal of certiorari).)17 (Douglas, dissenting 16The has been point dramatically illustrated recent conducted Dr. by experiment Rosenhan, D. L. of and law at professor Stanford psychology sane University. Eight three people, including and a psychologists, psychiatrist, pediatrician, applied admission to different mental hospitals, to have heard feigning only voices saying “hollow,” and In “empty,” “thud.” other the every respect behaved pseudopatients and furnished normally the their actual examining physicians life histories. Yet all 12 admissions, institutions admitted them as of patients: the II were as diagnosed words, and one as In schizophrenic other one was manic-depressive. every incorrectly Moreover, as from a severe diagnosed mental illness. suffering immediately upon admission all ceased of pseudopatients simulating any Yet symptoms abnormality. released, “cured”; when were none they was deemed each was eventually discharged, rather, short, awith of “in In each diagnosis schizophrenia remission.” pseudopatient sane, nor, view, “was not (Rosenhan, institution’s had he ever been sane.” On 384; (1973) Insane Sane Places Santa Clara Law. Litwack, for other Being studies conclusions, 708-711.) similar see Ennis & cit. reaching fn. op. supra pp. Ennis, is from of Bruce J. staff 17Justice Douglas’ testimony attorney quotation Union, Civil on New York Liberties before Subcommittee Constitutional given on the Mr. of the United States Senate Committee Ennis is an Rights Judiciary. law, in. field of and the and has authored such practitioner psychiatry experienced n worksas (1973), of Mental Patients Legal Rights Mentally Rights Handicapped Patients. (1973), and Law Psychiatrists, aad RHSoners-of~P,s.ychiatrv-:-Mental (1972). (at 227), “In New the latter book Mr. Ennis states a well-known York p. study, could that 989 were so not be psychiatrists predicted persons dangerous they kept even in mental but would have civil to maximum kept security hospitals hospitals, Then, run of a United Department Corrections. because States Court Supreme (1966) 107], decision v. Herold 383 U.S. were transferred civil persons [Baxstrom those After a of Mental that one-fifth year, reported hospitals. Department Hygiene have trans-— studies further several years empirical During past “The an into unanimity: the earlier trend formed impressive opinion scientific evidence, consensus of as as the well by responsible opinion Prediction authorities, (Diamond, now Psychiatric unequivocal.” In the words 451.) L.Rev. U.Pa. Dangerousness itself, this “Unfortunately, for the profession psychiatric spokesmen have nor else reliably of the art. Neither the státe anyone psychiatrists future violence ‘dangerousness.’ demonstrated ability predict this area been estab- Neither has psychiatric ‘expertise’ any special of the Violent Individual Force Clinical lished.” (Task Aspects Report, Assn., And studies which the same 1974) (American Psychiatric have demonstrated predictions inaccuracy psychiatric proved manner in which such the no less disturbing prophecies beyond dispute not in take of violence which will fact err: acts consistently they predict thus (“false many persons branding “dangerous” place positives”), 23-30.) who are in harmless. id. at (See pp. reality totally generally We need not this the various reasons forth lengthen opinion by setting for these are limitations on present-day they practice psychiatry; discussed in the Nor do we as to literature.18 so far fully go join them had been and over had to remain as discharged half community, agreed 7 of the or threatened act voluntary patients. During that was year, 989 committed only retransfer to the maximum sufficiently dangerous require security hospital. Seven correct out of almost a thousand is not a record. predictions very impressive studies, “Other there are have reached the same conclusion: many, psychiatrists cannot are often than are simply predict behavior. more dangerous They they wrong *20 And err right. they behavior.” always by overpredicting dangerous A number of on the of the Baxstrom have been reports consequences experience J. Steadman of the published, e.g., New York State of Mental by Henry Department the the duration the Hygiene. vary somewhat to of Although figures according considered, the overall results remain a small period constant: post-release only very of the committed acts of violence. proportion allegedly dangerous patients subsequent 18A of and articles representative outpouring by psychiatrists sample copious Diamond, on these would include: The Prediction Psychiatric psychologists topics of Monahan, 439; Violence, in (1975) 123,U.Pa.L.Rev. The Prevention Dangerousness of 1975) (Monahan edit. the System p--; and Criminal Justice Health Community Mental 32; Cocozza, (1975) & We Can’t Predict Who is Psych. Today Steadman Dangerous Steadman, and Determination Some on the Concept Evidence Inadequacy of of Rubin, 409; Prediction (1973) in and 1 J. & L. Psychiatry Law Psychiatry Dangerousness 397; Gen. (1972) Ill 27 Archives of Psychiatry in Criminals Mentally Dangerousness of Wenk, Smith, & Del. (1972) Crime 393. Can Violencebe Predicted? Robison & writers, on the generally in this field by legal reporting recent articles principal Litwack, cit. fn. op. supra studies are: Ennis & and their juridical implications, foregoing Hirsch, 15, 711-734; and Preventive Criminal Conduct von at Prediction pp. of Dershowitz, 717; The Law Buffalo L.Rev. (1971) 21 ConvictedPersons of of Confinement 42-47; Ed. (1970) 23 J. Legal About Predictions Fictions Some Dangerousness: (1968)4 Trial Dershowitz, 29; Both Ways A That Cuts in the Process: Psychiatry Legal Knife Meehl, (1968) Livermore, Civil Commitment & theOn Malmquist for Justifications

conclusion of certain well-known in writers that civil commitment no should be to their as proceedings psychiatrists permitted give opinions to future and that commitment on based such an dangerousness constitutes of without due of opinion deprivation liberty law. 19 For our it is to hold that present enough purposes of a reasonable doubt requirement sex offender is not content of proceedings negated by “predictive” the ultimate If that of reinforces finding. anything, aspect judgment our determination to standard of on this issue: as a require high context, federal circuit court a related “the explained inherently of nature in confinement speculative psychiatric predictions, resulting do, not for what one has done but what one will demands more than minimal when such confinement is accom procedures, particularly outside the traditional criminal with its to trial plished process, jury right and other (1st ancient (Sarzen 1973) Cir. safeguards.” Gaughan supra, 489 F.2d 1086.)20 75, 81-85; 117 U.Pa.L.Rev. Developments Law—Civil Commitment the Mentally of

Ill 87 Harv.L.Rev. 1240-1245. are 19These not the views of a radical of either the fringe psychiatric legal Diamond, Dr. Bernard L. and and professions. law clinical professor of criminology California, at professor known psychiatry University nationally specialist this field. After a review relevant studies he concludes: “Neither nor psychiatrists other behavioral scientists are able to occurrence violent behavior with predict sufficient to the restriction of freedom of on basis of reliability justify persons label of it is recommended that courts no potential Accordingly, dangerousness. longer ask such their and experts give opinion potential dangerousness any person, and other behavioral scientists their to make psychiatrists acknowledge inability (Diamond, such when so called to do courts or other predictions upon legal agencies.” 18, cit. fn. op. supra, p. reasons, 735-738) For the same Ennis and Litwack cit. fn. (op. supra pp. urge not be civil commitment psychiatrists permitted testify experts (at because of their demonstrated and conclude judgments, inaccuracy predictive 743): of an individual’s on the basis “Justifying deprivation liberty judgments that have not been to be valid shown reliable and should be considered a opinions of both violation substantive due a procedure by procedural process. Certainly coins determine who would committed would offend our judges flipped sense of fundamental fairness. It is contention have not our that psychiatric judgments *21 (Fn. omitted.) (See been shown to be more and reliable valid.” substantially generally Ziskin, 1975) (2d and ed. Testimony passim.) Coping Psychiatric Psychological above, of as 20Part the a number of the writers cited lies in the problem, recognized by of the definition of disordered sex offender declared section mentally by imprecision 18, 450, 52; 1, Diamond, (fn. ante). cit. see (See, 6300 fn. fn. e.g., op. supra generally (1974) Ill in the Law—Civil Commitment the 87 Harv.L.Rev. Mentally Developments of Swanson, 1190, 1253-1258; (I960) 51 Sexual Statutes: and Summary Analysis Psychopath 215, 220-222; Fahr, & J.Crim.L.C. P.S. Iowa's New Sexual Law—An Psychopath 523, 532-539.) (1956) in 41 Iowa L.Rev. The court in Purpose? Noble Experiment Ballay saw a connection between this and the for a necessity beyond imprecision proof reasonable “While a more standard of not infirmities in allay doubt: rigorous may proof

329 sex offender that disordered next mentally People, emphasize to a conviction as a valid criminal prerequisite presuppose proceedings in each and that 854), 68 Cal.2d re Bevill (In (1968) supra, jurisdiction here, reason case, conviction was a as such necessarily proved be a If mean a found to doubt. the that able mentally person People a reasonable of the has had one bite sex offender “beyond disordered another, their as not so and should doubt” expect apple greedy refuted the code itself. is point no need have the defendant was found

The crime of which guilty states with sex at all: the statute mentally connection explicitly “When a be instituted sex disordered offender 6302, (§ offense, offense” whether or not a sex convicted of criminal any theft or a subd. (a)). grand robbery burglary Manifestly, charge definition even in the elements of the does not issue statutory put any 6300, fn.T, those ante.) sex Even in of a offender. (§ mentally offense, in which conviction of a sex the issues cases was adjudicated in the from those in the criminal trial remain different fundamentally the former trial the in disordered sex offender proceeding: act violative of for are whether a sexual the jury specific questions so, committed, in and if whether defendant was statutory prohibition Code, Pen. act with the intent. (See § fact committed that requisite not establish that of sexual misconduct does But instance single disease,” he is nor that defendant is afflicted with “mental dangerously Even forcible such future. offenses rape, “predisposed” repeat crimes, is often situational the most serious sex wholly perhaps of circumstances of a fortuitous concatenation takes because place only doubt substantive elements reasonable standard may, statutory certainly to, (In risk of factual re offset them error.” designed particularly partially by reducing “offset,” however, 648, 482 (1973) 59].) No is found F.2d such Ballay App.D.C. [157 (1974) the authors of Ill Law—Civil Commitment Developments Mentally 1296-1297, 1190, 190, Harv.L.Rev. who that the doubt footnote out reasonable point “will not render commitment standards less conclude vague.” They requirement (ibid.) that “the not to commitment standards is demand high proper response vague standard but to declare statute unconstitutional.” While vel non of section 6300 lurks consideration vagueness question standard of disordered sex offender proceedings, proper on this does not we not reach—the contention defendant raise—and therefore do appeal clause, Constitution under the the section violates the due California process 364, (1960) Cal.Rptr. of such In re Newbern 53 Cal.2d 792-797 rules cases as [3 17], due (1948) P.2d or the 116], and Perez 32 Cal.2d 728-731 P.2d v. Sharp [198 v. decisions Papachristou clause the federal Constitution as such applied 839], and v. 92 S.Ct. Giaccio (1972) Jacksonville 405 U.S. 156 L.Ed.2d City of (see 447. also United States 86 S.Ct. 382 U.S. Pennsylvania 518] statute held void (W.D.Mo. 1974) offender” F.Supp. (“dangerous Duardi vagueness)). *22 not to recur. the fact that the issues at the likely Accordingly, has no criminal trial were the reasonable doubt standard by judged on how the distinct issues at the disordered sex offender bearing must be proceeding proved. of the evidence

The also assert that by preponderance People proof is sufficient in disordered sex offender “because in confirm is asked to what is essentially psychiatric jury reality claim indeed. we have not so This is a dismaying Surely gone diagnosis.” far towards 1984 and Orwell’s bleak “government by prospect that in a in which human is at stake liberty experts” proceeding of our reduced to of doctors function is “confirming” guesses juries A man indefinite confinement hired the state. by facing because of what he is maximum state mental institution security to do is entitled to a weighs impartially jury allegedly predisposed evidence, mind the with an credibility persua appraises open witnesses, siveness all the and reaches its own independent judgment on the issues submitted to it. less would make a mockery Anything observed, the entire As a recent “If the commentator proceeding. astutely the MDSO statute is afforded safeguard presently purpose jury more than to opinion presented, nothing rubber-stamp psychiatric the burden now a sham and is proof meaningless safeguard irrelevant, added; (Note, fn. omitted.) since (Italics nothing proved.” The Case Abolition Toward a Less Benevolent Despotism: of Califor MDSO Laws Santa Clara Law. nia’s contend, Nor is there reason as the further why, People state’s burden of should be no than “the greater degree assurance with which themselves.” reputable psychiatrists express witnesses, other for that matter—are entitled to Psychiatrists—or any themselves court with of assurance” express any “degree they please. The law is not concerned with how believe what are firmly they they because are not the ultimate arbiters of the defendant’s fate. saying, they evaded; That awesome rests on the and it cannot be responsibility jury, be, however tentative the the witnesses testimony may jury oath bound to reach a decision or make effort to do so. It is every therefore the of assurance in the minds which matters. Of degree jurors’ course, well hesitant or doubt conflicting testimony may jury put as to where the truth lies. But difficult as the task be in that jury’s event, the effect of an erroneous decision on the defendant is immeasur law, short, does not weaken the standard of ably greater. because the evidence is weak. merely

331 It for is from this No justified psychiatrists. principle special exception need witnesses, other like medical experts, we have held that is true have on which trials to matters in criminal they not limit their testimony 64 (1966) v. doubt.” a reasonable Phillips (People “beyond opinions not 225, But does 579, 353].) 2 414 P.2d 574, fn. Cal.2d Cal.Rptr. [51 its is relieved of that duty. follow that the higher testimony jury weighing the “We do not believe that As in (ibid.), we questions Phillips explained should to the effect of the a answered surgery [by witness] physician doubt,’ a reasonable have been framed ‘beyond terminology determination the the ultimate issue the jury.” expresses for added.) (Italics standards of this of two different Other joint operation examples the diminished abound. the most relevant is defense of capacity Perhaps results in The of such defense in murder trials. assertion a typically the on the crucial for and defendant both psychiatrists’ testifying against mental the lacked the issue of whether at the time of he necessary killing in On that issue the murder the first to be degree. capacity guilty than “the with no more witnesses degree may speak properly But themselves.” assurance with which psychiatrists express reputable is nevertheless when the case submitted body required jury a of first murder to determine the defendant’s degree guilt on tentative doubt, the turn even determination reasonable though (See, v. Bassett of the medical People e.g., conflicting opinions experts. 193, 443 and cases 777], 139-140 P.2d Cal.2d (1968) Cal.Rptr. [70 rule in case bar.21 same cited.) applies (1968) 21The draw their latter two from Valdez People arguments People that, 583], in which the Court of held in case Cal.App.2d Cal.Rptr. Appeal Code, (Welf.

narcotics addict commitment Inst. 3000 et seq.) § & proceedings of due do not include reasonable doubt. requirements same proof beyond this court v. Moore conclusion in year uncritically accepted People 800], Cal.2d 446 P.2d there was “no sound Cal.Rptr. briefly noting evidence. reason” from the civil standard of a depart ordinary preponderance course, We do not here whether such a “reason” for adjudicate, question two later in different rule in narcotics addict commitment years proceedings appeared Moore—i.e., in decision. But we note that issue Winship resolving principal narcotics addict commitment whether obtained evidence is admissible illegally “It has been terms foreshadowing Winship: proceedings—we spoke remarkably of the addict and that that the narcotic addict is for the benefit suggested proceeding in violation of not its .when evidence obtained therefore the state does from wrong profit Certainly, is admitted in such a Fourth and Fourteenth Amendments proceeding. addict, is not determinative. for the benefit of the but this proceeding part fact that the end of our Rehabilitation is one of the goals penal system, prime for the no to the inmate furnishes ground result of incarceration in beneficial jail may convictions. evidence obtain criminal view that the state does not by using profit are and the proceedings addict involve a loss liberty, Narcotic benefit *24 . IV For the we reasons hold that the standard of foregoing a reasonable doubt in is sex disordered required mentally offender I, 7, the due clauses of article section by proceedings subdivision of the (a), California Constitution and Fourteenth to Amendment the United States Constitution. case Although present of order commitment made after a trial of the issue challenges 6321, to section the same rule to pursuant manifestly applies any stage in which the is committed or recommitted to the proceedings person State of Health to a he that is a Department pursuant finding 6326, sex offender And 6327). §§ because (e.g., of this rule is to overcome an of those major purpose aspect function,” our decision “substantially impairs truth-finding be (Ivan must retroactive effect. V v. New today given complete City of 659, 661, York 407 U.S. 92 S.Ct. 1951] retroactive).) (holding Winship fully herein,

In view our to reach Burnick’s disposition unnecessary additional contentions.

The order from is reversed. appealed J., J., Tobriner, J., Sullivan, C. concurred.

Wright, BURKE, J.* I dissent. The a reasonable doubt” standard is “beyond to determine whether a is a wholly inappropriate disordered sex offender who to the commission of sex predisposed offenses, others, in to need of treatment dangerous appropriate state institutions. In view of the considerable uncertainties inherent behavior, human and the state interest attempting predict compelling offenders, sex found, it should be sufficient that the has treating jury evidence, is an by the defendant MDSO. preponderance Welfare and Institutions Code section that the MDSO provides trial shall conform for the civil trial of causes. procedures cases, course, criminal a defendant is and the state innocent presumed as well as the society addict. Whatever label to those attached [Citations.] isit proceedings, that there is a close criminal apparent aims and identity objectives of added.) law [citation],...” (Italics (Id. 682.) at p. enforcement *Retired Associate Justice Court under Supreme sitting assignment Chairman Judicial Council. (Pen. doubt. a reasonable him has the burden guilty beyond proving law, cases, unless otherwise Code, But civil provided § 115; Code, see § will suffice. (Evid. evidence a by preponderance Franklin, 148.)1 Cal.3d In re In re upon Winship, majority rely primarily *25 Patterson, 386 605 368, v. U.S. 1068],

L.Ed.2d 90 S.Ct. and Specht [18 In 326, 87 neither case is 1209], L.Ed.2d S.Ct. but controlling. Winship, as a of constitutional the United States Court matter required, Supreme be due that the a reasonable doubt” standard applied process, “beyond (See juvenile proceeding. during adjudicatory phase delinquency W., 1120, In 12 1122 In re 702]; also Kenneth re Cal.Rptr. [91 Cal.App.3d C.D.H., Z., 565, In re 7 246]; 10 569 Samuel Cal.Rptr. [89 Cal.App.3d 230, 365 234 The court reasoned 565].) (p. [25 Cal.App.3d Cal.Rptr. [86 extreme “The that demand 376]) L.Ed.2d same considerations p. to the to the innocent adult as well caution in apply protect factfinding Gault, 1, (18 . . . made clear in . . re U.S. innocent child. We . [In 527, 551, intentions do 87 S.Ct. that civil labels and 1428)] L.Ed.2d good for not themselves obviate the need criminal due process safeguards courts, for the issue is whether child where juvenile proceeding ‘[a] loss his to will be found be liberty “delinquent” subjected ” to a for is in seriousness felony years comparable prosecution.’ however, Unlike criminal or wherein juvenile proceedings, factual resolved,2 issue of innocence must be the issue before the guilt prior nature, at court MDSO is aimed proceedings essentially predictive whether a who has convicted of one been already forecasting criminal offense to to others reason of a is be by likely dangerous Code, to sexual Inst. In 6300.) commit offenses. & (Welf. § predisposition function, this the court and must necessarily performing predictive jury nature, which, be its guided large very part psychiatric opinion is seldom conclusive all reasonable doubt. beyond that, criminal or

It should also be out unlike juvenile pointed a criminal trial take MDSO following place proceedings, proceedings Witkin, is defined in of evidence’ usually to “The According phrase ‘preponderance as, truth; when with that opposed ‘such evidence weighed terms it, probability e.g., force, which that the greater probability has and from it results more convincing Evidence, 208, (Witkin, Cal. § truth lies therein.’ [Citations.]” 375], “The L.Ed.2d re 397 U.S. 2As stated in Winship, supra, criminal American áfcheme vital role in the standard reasonable-doubt plays on of convictions resting the risk It is a instrument for reducing prime procedure. factual added.) (Italics error." which defendant has been found of a criminal offense guilty beyond reasonable doubt. The MDSO could viewed subsequent as alternative the time under sentencing, penal spent indeterminate commitment an MDSO must be credited in fixing sentence, term of event MDSO returned court ultimately Code, 6325; on criminal & see Inst. v. (Welf. § charges. Humphrey 394, 403-404, (It 510-511 1048].) 92 S.Ct. Cady, true that an MDSO commitment could extend the term of sentence would been have for the criminal offense. But imposed below, Ias out exist to term assure point adequate safeguards commitment will not be unduly prolonged.) Patterson,

Nor is case, 386 U.S. on In that Specht supra, point. the United States Court certain Supreme specified procedural rights *26 must, which as a matter of due be afforded in MDSO process, counsel, the to a the to the proceedings, including right hearing, right to confront witnesses, and cross-examine the to right right present evidence, and the to demand the court. right by adequate findings Specht not trial, did mention the to a much indicate less right jury standard be should to the deliberations.3 Under the applied guide jury’s however, California be to committed as procedure, persons sought trial, MDSOs are a with the other in provided jury along rights specified the decision. this would Specht Accordingly, procedure appear satisfy the essential demands of due of law. process

I believe (see that can be found Welf. apt analogy procedures & Inst. 3100 et for the commitment of § who seq.) involuntary persons have been found to be narcotics addicts or in imminent danger Moore, 674, 800, addiction. In v. 69 Cal.2d 685 People Cal.Rptr. [72 P.2d 800], we the contention that facts expressly rejected supporting be commitment such had to established reason- persons beyond Moore, able doubt. weAs out in “The . . . are pointed proceedings nature, civil in sound no reason fundamentally appears depart that from civil rule here.” ordinary [preponderance evidence] Valdez, 895, v. 902-904 (Accord: People Cal.App.2d Cal.Rptr. 583].)____ held 405 U.S. the court that Cady, v. 3Subsequently, Humphrey supra, principles a to be trial for equal jury persons sought protection require availability MDSOs, civil committed as since such trial was available in commitment ordinary however, court at issue

cases. that under acknowledged procedure Significantly, case, in that “If the State establishes the need for treatment by preponderance of evidence, lieu . the court must commit the defendant for treatment of sentence . . .” invalid, The court made no this would that suggestion procedure jury should be to a standard. higher held MDSO are civil in nature and are Similarly, proceedings essentially Bevill, collateral re to criminal 68 Cal.2d (In only proceedings. 599, 442 P.2d And In re 679].) Cal.Rptr. although Winship, supra, cautions us to scrutinize with care the “civil” label of

convenience, on balance that the basic demands of due I.believe are satisfied in MDSO use of a of evidence test preponderance Valdez, cases. The court’s observations People supra, 895, 903-904, narcotics addicts commitment Cal.App.2d regarding proce dures seem here: to due we especially pertinent “Turning may process, assume that in cases it is of the due criminal part process guaranteed Amendment must Fourteenth be established guilt O., reasonable doubt. In re De La 59 Cal.2d 136-150 [Fn. omitted.] ... other have described narcotic commitment [and cases] ‘civil,’ A ‘remedial.’ situation well arise where ‘nonpunitive’ may such characterization break down in the face of the reality addict’s confinement. In re Gault 387 U.S. (Cf. 1....) involuntary [supra], We believe, however, do not that the distinction between confinement as a criminal and loss of as an addict whom the state liberty hopes cure is artificial to a difference in the burden of sufficiently prohibit It must be remembered that in a narcotic commitment case the proof. is in asked to confirm what is a medical jury reality essentially diagnosis. burden of to be no than the People’s persuasion ought greater *27 of assurance with which themselves. degree reputable physicians express [Citation.]” out,

IAs have the trier of fact in MDSO is also pointed proceedings future behavior and what is essen- charged predicting confirming a medical I with the of Valdez that the tially diagnosis. agree reasoning state’s burden of should with “the correspond realistically degree of assurance with which themselves.” The reputable physicians express is even more in cases reasoning compelling involving psychiatric Of reasonable doubts to diagnoses. necessity, accompany any attempt human behavior. predict herein,

The that MDSO commitment majority contending nature, are “criminal” in the fact that the MDSO rely primarily upon be ordered committed to state for an indefinite Yet may hospital period. the scheme contains an abuse of statutory ample protection against discretion authorities in whether or not to by hospital determining release an MDSO. to courts are all, the trial under section empowered

First to make of the state reports the periodic hospital superintendent “require More- towards recovery.” the to the court progress concerning person’s for a confined has been the MDSO over, after under section on its own months, court the may, than six of not less committing period the MDSO, the or on motion superintendent motion “require his court, within days, forward to the to committing state hospital... MDSO’s of Section under or (b) (a) [regarding opinion toward recovery], including to treatment progress amenability recommendation person’s therein a concerning diagnosis report, of the care, After or treatment. report, future receipt supervision, the court for order the return court person committing sex is still a whether as to person hearing on his MDSO additional offender . . . .” The hearings may request at six-month intervals. progress of sections 6317 and 6327 to vest the

Although provisions appear court with some discretion whether or not to committing require sections, officials to submit in those hospital reports specified courts should utilize these whenever a doubt arises procedures regarding committed to seek relief on his own behalf. As ability Davis, 798, 806-807, we in In re noted 8 Cal.3d footnote 6 Cal.Rptr. 178, 505 P.2d such 1018], may “inappropriate place upon . .” the burden . [mentally persons initiating proceedings disordered] to secure habeas relief. corpus assure that seem persons quite adequate foregoing safeguards of treatment. after a reasonable as defendant will be released

such period however, will such tÉe escape Under persons majority’s holding, conclude unless treatment and confinement jurors altogether hospital *28 doubt. The a reasonable MDSO has been status proved and this unnecessary constitutionally holding regard majority’s of the MDSO the effective interfere with could functioning drastically treatment program. * case, and in the in this case companion People majority suggest, 509, 535 P.2d that the 373], Cal.Rptr. page

Feagley, post, present If care and treatment for MDSO. fails to system provide adequate on the in these cases is insufficient true the record (and point), wholly is, and enforce which I to establish solution safeguards suggest, proper not to erect and assure that such treatment procedural forthcoming, both standards) deprive barriers (such impractical MDSO the benefits himself of program. defendant and the public affirm of commitment. the order I would Wood, J.,* J., concurred.

McComb, Clark, 11, 1975. June was denied rehearing petition Respondent’s should that the Richardson, J., were of the petition J., opinion granted.

* Judicial the Chairman of the Council. Assigned by