Filed 1/16/20 P. v. Rhoden CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

LAWTIS DONALD RHODEN,

Defendant and Appellant.

G056184

(Super. Ct. No. M10123-1)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

Lawtis Donald Rhoden is committed for an indeterminate term of treatment as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq., all further statutory references are to the Welfare and Institutions Code). Rhoden appeals from the trial court’s order denying his petition for unconditional discharge. He argues the SVPA violates his federal and state due process and equal protection rights because there is no provision that permits him to seek unconditional discharge in the first instance. We disagree and affirm the order.

FACTS

In 1984, Rhoden raped and sexually penetrated multiple victims, which resulted in numerous convictions and lengthy prison sentences. In January 2004, seven days before Rhoden was scheduled to be released from prison, the Orange County District Attorney filed a petition alleging he was an SVP. In March 2006, the trial court conducted a hearing, found probable cause supported the petition, and ordered a trial.

Before trial, the court ordered a new probable cause hearing because of an intervening court decision. In October 2011, the court conducted a hearing, found probable cause supported the petition, and ordered a trial. In July 2013, the jury concluded he was an SVP. The court ordered him committed to the custody of the Department of State Hospitals (DSH) for an indeterminate term. He appealed. We affirmed the judgment. (People v. Rhoden (Jan. 15, 2016, G048677) [nonpub. opn.].)

While that appeal was pending, Rhoden completed the sex offender treatment program. He subsequently underwent several evaluations. In October 2015, the DSH medical director concluded Rhoden continued to meet SVP criteria, but he was suitable for conditional release. In an April 2017 annual evaluation, the psychologist concluded Rhoden continued to meet SVP criteria, but he was suitable for conditional release. In September 2017, Dr. Brian Abbott, Rhoden’s retained psychologist who

previously evaluated him three times, evaluated him again. Abbott concluded Rhoden did not meet the SVP criteria and was unlikely to engage in sexually violent conduct if unconditionally discharged.

In February 2018, 70-year old Rhoden filed a petition for unconditional discharge from his SVP commitment. Relying on Abbott’s report, Rhoden argued he did not meet the SVP criteria and qualified for unconditional discharge. He also asserted the SVPA violated his due process rights because it prohibited him from seeking unconditional discharge without a DSH recommendation. He also raised an “as applied” federal and state due process claim. He did not raise an equal protection argument. The trial court denied the petition with prejudice because DSH had not determined Rhoden was no longer an SVP and should be considered for unconditional discharge.

DISCUSSION

I. SVPA

Under the federal and state constitutions, an SVP may be held “‘as long as he is both mentally ill and dangerous, but no longer.’ [Citation.]” (People v. McKee (2010) 47 Cal.4th 1172, 1193 (McKee I).) The SVPA authorizes the state to civilly commit persons found to be sexually violent predators (SVP’s) after they conclude their prison terms. (§ 6604.) Section 6600, subdivision (a)(1), defines a sexually violent predator 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.” Commitment is for an indeterminate term. (§ 6604.) DSH must examine the committed person’s mental condition at least annually. (§ 6604.9, subd. (a).)

From 2006 to 2013, the SVPA authorized the committed person to bring a petition for conditional release or for unconditional discharge. (§ 6608, former subd. (a) [“Nothing in this article shall prohibit the person who has been committed as a sexually violent predator from petitioning the court for conditional release or an unconditional discharge without the recommendation or concurrence of the Director of State Hospitals”].) Beginning in 2014, the Legislature amended the SVPA to change the procedures for postcommitment release. (Stats. 2013, ch. 182, § 3.) The SVPA no longer allows the committed person to petition for immediate unconditional discharge without DSH’s recommendation. “Unconditional discharge is still available in the first instance with the recommendation of the Director of State Hospitals.” (People v. LeBlanc (2015) 238 Cal.App.4th 1059, 1069, fn. 7; §§ 6604.9, subds. (b) & (d), 6605, subd. (a)(1).) Without DSH’s recommendation, a committed person may first petition for conditional release (§ 6608, subd. (a)), and after completing one year of conditional release, petition for unconditional discharge (§ 6608, subd. (m)).

II. Due Process

Rhoden argues the SVPA violates federal and state due process principles because it does not allow a person to initially seek unconditional discharge. We disagree.

In McKee I, supra, 47 Cal.4th at pages 1188-1191, the California Supreme Court concluded the SVPA did not violate due process by indeterminate commitment or the requirement the SVP had the burden to prove they should be released. Relying on Jones v. United States (1983) 463 U.S. 354 (Jones), the McKee I court opined, “the requirement that [the committed person], after his initial commitment, must prove by a preponderance of the evidence that he is no longer an SVP does not violate due process.”

(McKee I, supra, 47 Cal.4th at p. 1191.) Although McKee I concluded the SVPA did not violate due process, it did not address the issue before us because it preceded the Legislature’s 2013 amendment of the SVPA.

People v. Beck (1996) 47 Cal.App.4th 1676 (Beck), however, is instructive. In that case, the jury found defendant not guilty by reason of insanity, and he was committed to a mental hospital. Defendant petitioned for release and applied for restoration of sanity. Pursuant to Penal Code section 1026.2, subdivision (e), the trial court concluded defendant was not a danger and ordered him placed in an outpatient program for one year. (Beck, supra, 47 Cal.App.4th at p. 1680.) In rejecting defendant’s argument he was entitled to complete release, the court held the requirement that defendants found not guilty by reason of insanity (NGI’s) spend one year in an outpatient program before being restored to sanity does not violate due process. (Id. at pp. 1682-1684.) The court stated there was “a distinct purpose for ordering [the defendant] to participate in the outpatient program: the public interest in careful evaluation of insanity acquittees before release.” (Id. at p. 1683.)

The Beck court stated there were three justifications supporting the outpatient program. “First, an acquittal by reason of insanity entails a finding that the defendant in fact committed a criminal offense. The commission of the crime in turn supports an inference of potential dangerousness and possible continuing mental illness [citation], which justifies the state in exercising great care in evaluating the offender prior to release into the community. Second, the process of evaluating the defendant for a prolonged period in a noninstitutional setting has obvious merit. It provides a ‘trial run’ for the defendant’s release, conducted under conditions resembling what the defendant will later find in the community. [Citation.] Third, the fact that participation in an outpatient program involves a lesser interference with personal liberty than institutional commitment makes it easier to justify a longer period of restriction. [Citations.]” (Beck, supra, 47 Cal.App.4th at p. 1684.)

Beck is persuasive. First, the indefinite commitment for treatment is based on the fact the committed person previously committed a sexually violent offense and is currently mentally ill and dangerous. (§ 6600, subd. (a)(1); McKee I, supra, 47 Cal.4th at p. 1193.) This justifies the state in exercising great care in evaluating an SVP before releasing him into the community. Second, conditionally releasing an SVP to a noninstitutional setting enables the SVP to readjust to the type of people the SVP targeted and whom the SVP will find in the community. Third, the one-year conditional release requirement interferes less with the SVP’s liberty interests than continued commitment and begins the process of unconditional discharge. Thus, the requirement of a one-year period of conditional release is a reasonable step to ensure the SVP no longer poses a danger to the community.

Rhoden contends Beck does not support the conclusion the SVPA complies with due process because an SVP seeking conditional release has completed his prison sentence whereas the NGI under Penal Code section 1026.2 is still serving his commitment. He adds an SVP is more like the NGI under Penal Code section 1026.5, a person who has completed his maximum commitment but has been placed on an extended two-year term of commitment. We conclude the legislative distinction between SVP’s and NGI’s is of less importance than the Beck court’s sound rationale for the outpatient program, which is instructive in both the NGI and the SVP settings.

Rhoden also claims the lack of an immediate unconditional discharge option violates due process because of the long delays associated with pursuing conditional release. Rhoden did not make this argument in the trial court, and thus it is forfeited. (People v. Saunders (1993) 5 Cal.4th 580, 589-590 (Saunders).) Additionally, the record includes no evidence to support his claim and therefore it is speculative. (United States v. Marion (1971) 404 U.S. 307, 325-326.)

Rhoden claims the SVPA “[e]ffectively . . . imposes what could be a lifetime commitment upon [him] without offering him any reasonable opportunity for release.” Not so. The SVPA authorizes an SVP to seek conditional release and after one year to seek unconditional discharge—this is not an indefinite civil commitment. Two mental health professionals recommended Rhoden was suitable for conditional release but instead of pursuing conditional release he chose to pursue unconditional discharge to challenge the constitutionality of the SVPA. That was exactly two years ago. Rhoden had the opportunity to demonstrate he was not an SVP by pursuing conditional release. (Compare § 6600, subd. (a)(1), with § 6608, subd. (g).) He passed on that chance.

Jones, supra, 463 U.S. at pages 363, 366-368, which concerned NGI’s and the requisite finding of dangerous, standard of proof, and period of incarceration, does not compel a different result. The SVPA’s requirement an SVP first seek conditional release before seeking unconditional discharge does not violate federal and state due process protections.

III. Equal Protection

Rhoden contends the SVPA violates federal and state equal protection principles because it does not allow a person to seek initial unconditional discharge like NGI’s and mentally disordered offenders (MDO’s). Although Rhoden did not raise this claim in his petition and it is forfeited (Saunders, supra, 5 Cal.4th at pp. 589-590), we will consider it because it is a purely legal issue (In re Sheena K. (2007) 40 Cal.4th 875, 888). His claim is meritless.

In People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II), the court rejected this argument. In that case, the court concluded disparate treatment of SVP’s was justified because “the inherent nature of the SVP’s mental disorder makes recidivism significantly more likely for SVP’s as a class than for MDO’s and NGI’s. [Citation.]” (Id. at p. 1340.) The court added SVP’s “pose a greater risk to a particularly vulnerable

class of victims than do MDO’s and NGI’s” because “the victims of sex offenses suffer unique and, in general, greater trauma than victims of nonsex offenses.” (Id. at p. 1342.) The court continued, “SVP’s are significantly different from MDO’s and NGI’s diagnostically and in treatment[]” and are more likely to be deceptive and manipulative.” (Id. at pp. 1344, 1347.) The court concluded SVP’s “‘bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society.’ [Citation.]” (Id. at p. 1347.)

Rhoden concedes there is a compelling governmental interest in protecting the public from SVP’s and treating SVP’s. Additionally, he acknowledges McKee II, but he asserts we need not follow its reasoning because we are not bound by a coequal court, the law has changed, and in that case the SVP refused treatment whereas he “enthusiastically” participated in treatment. Although we are not bound by McKee II (People v. Osotonu (2019) 35 Cal.App.5th 992, 998), and the law has changed, the McKee II court’s well-reasoned analysis is persuasive. Treating SVP’s differently does not violate equal protection because SVP’s pose a much greater danger to society than NGI’s or MDO’s. We decline Rhoden’s request to remand the matter to the trial court for an evidentiary hearing to test the McKee II court’s justifications for treating SVP’s differently than NGI’s and MDO’s. That the SVP in McKee II refused treatment and Rhoden completed treatment is of no consequence in a facial challenge.

We decline Rhoden’s invitation to rewrite the SVPA to allow an SVP to file a petition seeking unconditional discharge without the DSH’s recommendation. (People v. Cook (2015) 60 Cal.4th 922, 934 [we may not sit as super-Legislature and rewrite the statutory scheme].) The trial court properly denied Rhoden’s petition for unconditional discharge.

DISPOSITION

The order is affirmed.

O’LEARY, P. J.

WE CONCUR:

FYBEL, J.

THOMPSON, J.