Filed 7/16/13 P. v. Watson A1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135300
v.
WALTER WATSON,                                                       (San Francisco County
                                                                     Super. Ct. No. 197031)
         Defendant and Appellant.


         Walter Watson appeals from the judgment of the trial court, following a jury trial,
committing him to the custody of the Department of Mental Health (DMH), pursuant to
provisions of the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code
sections 6600 et seq.1
         Watson contends that the trial court committed prejudicial error by instructing the
jury with a pinpoint instruction, at the People‟s request, concerning the definition of a
“diagnosed medical condition.” We conclude that while it was error to instruct the jury
with the challenged instruction, such error was harmless.
         Watson also contends that the SVPA violates a number of his constitutional rights.
We reject Watson‟s constitutional challenges to the SVPA because prior cases have
already dealt with these challenges and rejected them.
         We affirm the judgment of the trial court.



         1
         Unless otherwise indicated, all subsequent code references are to the Welfare
and Institutions Code.

                                                             1
                                    BACKGROUND
       In 2006, Watson was sentenced to five years in state prison following conviction
of one count of an act of sexual intercourse with a person, not his spouse, against that
person‟s will, by means of force, violence and fear of immediate unlawful bodily injury
on that person (Pen. Code, § 261, subd. (a)(2)), and admission to two prior prison term
enhancements (Pen. Code, § 667.5, subd. (b)).
       Watson was released on parole in December 2009, but was returned to custody in
October 2010, after violating parole by possession of a pocket knife, a can of malt liquor,
and 0.1 gram of rock cocaine. Watson was remanded to state prison for 120 days for the
violation.
       The Department of Corrections and Rehabilitation requested screening reports for
a possible DMH recommendation that SVPA proceedings be commenced. Drs. Jeremy
Coles and Kathleen Longwell assessed Watson and concluded that he met the statutory
definition of a sexually violent predator (SVP). On February 16, 2011, DMH
recommended that SVPA proceedings be filed against Watson. On February 22, 2011, a
petition was filed against Watson requesting a probable cause hearing. A hearing was
held and, in October 2011, the court found probable cause to believe that Watson met
commitment criteria.
       A jury trial commenced on March 26, 2012, to determine whether Watson met the
commitment criteria. Longwell testified for the People and stated her diagnosis that
Watson suffered from three mental disorders: paraphilia not otherwise specified
(paraphilia NOS), cocaine dependence in institutional remission or in a controlled
environment, and antisocial personality disorder (APD). She stated her conclusion that
these diagnoses predisposed Watson “to the commission of sexually violent offenses, by
impairing his emotional volitional controls, rendering him a danger to the health and
safety of others.” Specifically, Longwell opined that Watson‟s sexual deviancy in
combination with APD predisposed him to commit sex offenses.
       Coles also testified for the People and diagnosed Watson as suffering from APD,
with significant sexual deviation, cocaine dependence, and alcohol dependence. He


                                             2
described APD as a disorder that is marked by “an inability to conform to social norms
with respect to lawful behavior.” When Coles was asked whether APD in “Watson‟s
case make[s] him likely that he be undeterred from criminal punishment, and hence more
likely to re-offend,” he answered in the affirmative. Coles opined that because Watson‟s
“particular [APD] has a very strong sexually aggressive component,” his diagnosis
carried “the qualifier with significant sexual deviation” and that Watson was
“predisposed to commission of sex crimes in addition to other crimes.”
       Dr. Edward Hyman testified for the defense. Hyman diagnosed Watson with APD
and cocaine dependence in remission, but did not believe that these disorders would
contribute to a lessening of Watson‟s volitional control and would not contribute to the
likelihood of recommitting a sexual offense.
       Dr. Garrett Essres also testified for the defense. Essres had first evaluated Watson
in December 2009. At that time, Essres‟s diagnosis was that Watson suffered from
cocaine dependence, alcohol abuse, and APD. Essres did not find that any of these
diagnoses would predispose Watson to sex offenses specifically.
       Essres interviewed Watson again in January 2012. Essres did not believe that
paraphilia NOS was an appropriate diagnosis for Watson. He believed that Watson‟s sex
offenses reflected severe criminality, but not a sexual mental disorder.
       On April 10, 2012, the jury found that Watson met the commitment criteria as an
SVP. On April 11, 2012, the trial court committed Watson to the custody of the DMH.
       Watson filed a timely notice of appeal on April 18, 2012.
                                       DISCUSSION
I. Instruction on a Diagnosed Mental Disorder
       The SVPA defines an SVP as “a person who has been convicted of a sexually
violent offense against one or more victims and who has a diagnosed mental disorder that
makes the person a danger to the health and safety of others in that it is likely that he or
she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).)
“ „Diagnosed mental disorder‟ includes a congenital or acquired condition affecting the
emotional or volitional capacity that predisposes the person to the commission of


                                               3
criminal sexual acts in a degree constituting the person a menace to the health and safety
of others.” (§ 6600, subd. (c).)
       The trial court instructed the jury with the standard SVP jury instruction, which
closely follows the statutory language: “The petition alleges that [Watson] is a sexually
violent predator. To prove this allegation, the People must prove beyond a reasonable
doubt that: [¶] One, he has been convicted of committing sexually violent offenses
against one or more victims; [¶] Two, he has a diagnosed mental disorder; [¶] And
three, as a result of that diagnosed mental disorder, he is a danger to the health and safety
of others because it is likely that he will engage in sexually violent predatory criminal
behavior; [¶] And four, it is necessary to keep him in custody in a secure facility to
ensure the health and safety of others. [¶] The term „a diagnosed mental disorder‟
includes conditions either existing at birth or acquired after birth that affect a person‟s
ability to control emotions and behavior and predisposes that person to commit criminal
sexual acts to an extent that makes him or her a menace to the health and safety of others.
[¶] A person is likely to engage in sexually violent predatory criminal behavior if there is
a substantial danger, that is a serious and well-founded risk that the person will engage in
such conduct if released into the community. The likelihood that a person will engage in
such conduct does not have to be greater than 50 percent.” (See CALCRIM No. 3454.)
       Over Watson‟s objection, the trial court also gave a pinpoint instruction requested
by the People: “Any current mental illness which makes [Watson] unlikely to be deterred
by the threat of criminal punishment and hence likely to re-offend is a diagnosed mental
disorder.”2
       Watson contends that the pinpoint instruction was erroneous because “it changed
the definition of „diagnosed mental disorder‟ to exclude any connection to sexually
violent conduct. In doing so, the jury instruction lessened the burden on the prosecution


       2
         The pinpoint instruction was modified by the court from that originally
requested by the People: “An antisocial personality disorder, or any mental illness which
makes the respondent unlikely to be deterred by the threat of criminal punishment, and
hence likely to reoffend, is a „mental disorder‟ within the meaning of these instructions.”

                                              4
. . . .” Watson claims that the alleged error violated his due process rights and his right to
a jury trial under the United States Constitution and that the error was not harmless,
beyond a reasonable doubt.
       We conduct a de novo review of a claim that an instruction to the jury was in
error: “Whether or not to give any particular instruction in any particular case entails the
resolution of a mixed question of law and fact that, we believe, is however predominantly
legal. As such, it should be examined without deference.” (People v. Waidla (2000) 22
Cal.4th 690, 733.)
       If we find that instructional error occurred, we may not reverse the judgment
unless we also find that the defendant was prejudiced by the error. (See, e.g., People v.
Lee (1987) 43 Cal.3d 666, 671.) If the error rises to constitutional dimension, amounting
to a denial of the defendant‟s due process rights, we determine prejudice using the
Chapman test: prejudice arises unless the error was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24.) Otherwise, we determine prejudice
using the Watson test: prejudice arises if it is “reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the error.”
(People v. Watson (1956) 46 Cal.2d 818, 836.)
       In Kansas v. Hendricks (1997) 521 U.S. 346, 358 (Hendricks), the United States
Supreme Court, affirming a Kansas law for the civil commitment of certain sexually
dangerous individuals, wrote: “We have sustained civil commitment statutes when they
have coupled proof of dangerousness with the proof of some additional factor, such as a
„mental illness‟ or „mental abnormality.‟ [Citations.] These added statutory
requirements serve to limit involuntary civil confinement to those who suffer from a
volitional impairment rendering them dangerous beyond their control. The Kansas Act is
plainly of a kind with these other civil commitment statutes: It requires a finding of
future dangerousness, and then links that finding to the existence of a „mental
abnormality‟ or „personality disorder‟ that makes it difficult, if not impossible, for the
person to control his dangerous behavior.”



                                              5
       The California Supreme Court has held that “[a]ccording to Hendricks, civil
commitment is permissible as long as the triggering condition consists of „a volitional
impairment rendering [the person] dangerous beyond their control.‟ ” (Hubbart v.
Superior Court (1999) 19 Cal.4th 1138, 1156.) The Hubbart court also noted that “[w]ith
the exception of nonsubstantive differences in grammar, the SVPA tracks the Kansas
scheme verbatim in describing the requisite mental disorder as a „congenital or acquired
condition affecting the emotional or volitional capacity that predisposes the person to the
commission of criminal sexual acts in a degree constituting the person a menace to the
health and safety of others.‟ ” (Id. at p. 1157.)
       “[T]he words used by the Kansas and California laws themselves inherently and
adequately convey the crucial class-restricting elements of future dangerousness linked to
a disorder-related inability to control behavior. It necessarily follows that, if supported
by substantial evidence, any finding of eligibility for commitment under these statutes,
when made pursuant to the statutory language itself, also meets constitutional standards.”
(People v. Williams (2003) 31 Cal.4th 757, 769 (Williams).)
       The People argue here that the pinpoint instruction at issue “simply clarified or
provided an additional definition of element 2—the „diagnosed mental disorder.‟ ”
However, despite the language of section 6600, subdivision (c), which might invite other
examples of a “diagnosed mental disorder,” the statutory language is regarded by the
California Supreme Court as a definition, which conveys the concepts necessary for the
SVPA to satisfy due process requirements: “California‟s statute inherently embraces and
conveys the need for a dangerous mental condition characterized by impairment of
behavioral control. As we have seen, the SVPA accomplishes this purpose by defining a
sexually violent predator to include the requirement of a diagnosed mental disorder
(§ 6600, subd. (a)(1)) affecting the emotional or volitional capacity (id., subd. (c)), which
predisposes one to commit criminal sexual acts so as to render the person a menace to the
health and safety of others (ibid.), such that the person is „likely [to] engage in sexually
violent criminal behavior” (id., subd. (a)(1)).” (Williams, supra, 31 Cal.4th at p. 774.)



                                              6
       Because the statutory definition of “diagnosed mental disorder” plays such a
central role in guaranteeing the constitutionality of the SVPA, and because the definition
inherently and adequately conveys the required elements, any other definition,
unsanctioned by the Legislature, would be error if not backed by solid judicial authority.
We find no such authority for the People‟s pinpoint instruction.
       The People argue that the language of the pinpoint instruction was “taken directly”
from People v. Burris (2002) 102 Cal.App.4th 1096 (Burris). In Burris, the defendant
argued that “reoffending impulsively or without considering the consequences is
distinguishable from reoffending due to lack of control.” (Id. at p. 1106.) The Burris
court disagreed and held that “a recidivist violent sexual offender who, due to a mental
disorder, is unlikely to be deterred by the risk of criminal punishment lacks control in the
requisite sense.” (Id. at pp. 1106-1107.) The court concluded that “there was sufficient
evidence that defendant had a mental illness which made him unlikely to be deterred by
the threat of criminal punishment, and hence likely to reoffend. This amounted to
sufficient evidence of lack of control.” (Id. at pp. 1110-1111.)
       That the instruction at issue was “taken directly” from Burris “certainly does not,
as the [People argue], justify its use as an instruction.” (People v. Hunter (2011) 202
Cal.App.4th 261, 277.) The issue in Burris was whether there was sufficient evidence of
lack of control, not the definition of “diagnosed mental disorder.” Burris had nothing to
do with jury instructions. We find in Burris no justification for an instruction that would
subvert the California Supreme Court‟s observation that “California‟s SVPA states no
category of committable disorder which does not expressly require a dangerous effect on
emotional or volitional capacity.” (Williams, supra, 31 Cal.4th at p. 774.)
       We conclude that it was error for the trial court to instruct the jury with the
prosecution‟s pinpoint instruction.
       Watson argues that “the essence of [his] defense was that his [APD] was
something that could not be treated under the SVPA as it was unrelated to sexually
violent behavior.” It seems that Watson‟s argument is that he lacks volitional control, but
that lack of control does not have a sexual object or motivation. Thus, if the jury


                                              7
believed Hyman and Essres, rather than the People‟s experts, they could not find that
Watson had a “diagnosed mental disorder” under the definition contained in the SVPA
because his APD did not predispose him to commit sexually violent offenses. However,
under the People‟s pinpoint instruction, the connection of the disorder to sexually violent
offenses was removed and was replaced with reoffense of an unspecified nature, so that
the jury could find that Watson had a “diagnosed mental disorder” even if they believed
Hyman and Essres.
       The problem with Watson‟s argument is that it ignores the instruction that the jury
was required to find that “as a result of that diagnosed mental disorder, he is a danger to
the health and safety of others because it is likely that he will engage in sexually violent
predatory criminal behavior.” (See CALCRIM No. 3454.) Nothing in the People‟s
pinpoint instruction would work to change that requirement. Because the jury found this
element to be true, it must have found a causal connection between the diagnosed mental
disorder and the likelihood that Watson would engage in sexually violent criminal
behavior and thus pose a danger to others. Accordingly, we must conclude that Watson
was not prejudiced, under any standard, by challenged instruction.
II. Equal Protection Challenge
       As originally enacted, the SVPA provided for the involuntary civil commitment of
SVP‟s for two-year terms of confinement and treatment. (Stats. 1995, ch. 763, § 3, p.
5922; former § 6604.) A commitment could not be extended beyond a two-year term
unless a new petition was filed requesting a successive two-year commitment. (Former
§§ 6604, 6400.1.) In 2006, California voters amended the SVPA by approving
Proposition 83, entitled “The Sexual Predator Punishment and Control Act: Jessica‟s
Law.” (People v. McKee (2010) 47 Cal.4th 1172, 1186 (McKee I); see Stats. 2006, vol.
1, p. A-299.) “[U]nder Proposition 83, an individual SVP‟s commitment term is
indeterminate, rather than for a two-year term as in the previous version of the Act. An
SVP can only be released conditionally or unconditionally if the DMH authorizes a
petition for release and the state does not oppose it or fails to prove beyond a reasonable
doubt that the individual still meets the definition of an SVP, or if the individual,


                                              8
petitioning the court on his own, is able to bear the burden of proving by a preponderance
of the evidence that he is no longer an SVP. In other words, the method of petitioning the
court for release and proving fitness to be released, which under the former Act had been
the way an SVP could cut short his two-year commitment, now becomes the only means
of being released from an indefinite commitment when the DMH does not support
release.” (McKee I, supra, 47 Cal.4th at pp. 1187-1188; see § 6604.)
       In McKee I, defendant McKee attacked the constitutionality of the amended SVPA
on due process and equal protection grounds. (McKee I, supra, 47 Cal.4th at p. 1184.)
The court rejected McKee‟s due process arguments (id. at p. 1194), but determined that
SVP‟s are similarly situated to mentally disordered offenders (MDO‟s), who may be
committed under the Mentally Disordered Offender Act (McKee I, at p. 1203; Pen. Code,
§ 2960 et seq.). Because the terms of commitment for SVP‟s are substantially less
favorable than those for MDO‟s, the state must provide justification for the differential
treatment. (McKee I, at p. 1203.) The court also found that SVP‟s are similarly situated
to those committed after a finding of not guilty by reason of insanity (NGI‟s) and that, as
with MDO‟s, “the People have not yet carried their burden of justifying the differences
between the SVP and NGI commitment statutes.” (Id. at p. 1207.) The case was
remanded to the trial court to determine whether the People could demonstrate “the
constitutional justification for imposing on SVP‟s a greater burden than is imposed on
MDO‟s and NGI‟s in order to obtain release from commitment.” (Id. at pp. 1208-1209.)
       On remand, the trial court held an evidentiary hearing, following which it issued a
statement of decision “finding the People had met their burden to establish, by a
preponderance of the evidence, that the disparate treatment of SVP‟s under the Act was
based on a reasonable perception of the greater and unique dangers they pose compared
to MDO‟s and NGI‟s.” (People v. McKee (2012) 207 Cal.App.4th 1325, 1332, review
den. Oct. 10, 2012, S204503 (McKee II).) On review, the appellate court affirmed the
finding of the trial court: “We, like the trial court, conclude the disparate treatment of the
SVP‟s under the Act is reasonable and factually based and was adequately justified by the
People at the evidentiary hearing on remand. Accordingly, we conclude the Act does not


                                              9
violate McKee‟s constitutional equal protection rights.” (Id. at p. 1348.) The Supreme
Court denied review and McKee II is now final.
         Watson maintains that the SVPA violates the constitutional guarantee of equal
protection and that McKee II was wrongly decided because the McKee II court
“improperly applied the strict scrutiny standard applicable to equal protection claims in
the civil commitment context and erroneously concluded the State met its burden of
justifying the disparate treatment of SVP‟s and similarly situated persons committed
under two of the State‟s other civil commitment statutes.” He asks this court for the
remedy the California Supreme Court granted in McKee I—remand to the trial court to
conduct a hearing to determine whether the government can demonstrate the
constitutional justification for differential treatment of SVP‟s as compared to MDO‟s and
NGI‟s.
         Watson bases his argument that the McKee II court failed to properly conduct a
proper analysis using the standard of strict scrutiny on the basis of two isolated quotations
from the court‟s opinion. We decline Watson‟s invitation to reopen the issue of whether
the SVPA violates equal protection guarantees. The Fourth District Court of Appeal
examined McKee II and concluded that it “applied both the correct standard of appellate
review and the equal protection strict scrutiny standard.” (People v. McDonald (2013)
214 Cal.App.4th 1367, 1371.) This district has followed the holding of McKee II and
agreed with its equal protection analysis. (People v. McKnight (2012) 212 Cal.App.4th
860, 863.) Watson does not provide a compelling reason for us to reach a different
conclusion.
         Watson also maintains, to preserve the issue for federal review, that the
indeterminate commitment and conditional release provisions of the SVPA violate his
right to due process. We reject this contention because, as Watson acknowledges, McKee
I determined that the SVPA does not violate due process rights and we are bound by that
holding.
         Also for the purpose of preserving the issues for federal review, Watson contends
that commitment for an indeterminate term violates “the federal constitutional prohibition


                                              10
against ex post facto laws [citation], the federal constitutional prohibition against double
jeopardy [citation], and the federal constitutional proscription against cruel and unusual
punishment [citation].” Because McKee I held that the SVPA is civil in nature and does
not amount to punishment, we must reject these constitutional challenges to the SVPA.
(McKee I, supra, 47 Cal.4th at pp. 1194-1195.)
                                      DISPOSITION
       The judgment of the trial court is affirmed.




                                                  _________________________
                                                  Lambden, J.


We concur:


_________________________
Haerle, Acting P.J.


_________________________
Richman, J.

)




                                             11
