3454. Commitment as Sexually Violent Predator
The petition alleges that <insert name of respondent> is a sexually violent predator.
To prove this allegation, the People must prove beyond a reasonable doubt that:
1. (he/she) has been convicted of committing sexually violent offenses against two or more victims;
2. (he/she) has a diagnosed mental disorder;
3. As a result of that diagnosed mental disorder, it is likely that (he/she) will be a danger to the health and safety of others because (he/she) will engage in sexually violent predatory criminal behavior(;/.)
<Give element 4 when instructing on confinement in a secure facility.>
4. It is necessary to keep (him/her) in custody in a secure facility to ensure the health and safety of others.]
A person is likely to engage in sexually violent predatory criminal behavior if there is a serious and well-founded risk that the person will engage in such conduct if released into the community. The likelihood that the person will engage in such conduct does not have to be greater than 50 percent.
Sexually violent criminal behavior is predatory if it is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or a person with whom a relationship has been established or promoted for the primary purpose of victimization. <insert name[s] of crime[s] enumerated in Welf. & Inst. Code, § 6600(b)> (is/are) [a] sexually violent offense[s] when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the victim or another person. <insert name[s] of crime[s] enumerated in Welf. & Inst. Code, § 6600(b)> (is/are) also [a] sexually violent offense[s] when the offense[s] (is/are) committed on a child under 14 years old and the offense[s] involve[s] substantial sexual conduct. Substantial sexual conduct means oral copulation, or masturbation of either the victim or the offender, or penetration of the vagina or rectum of either the victim or the offender with the penis of the other or with any foreign object.]
As used here, a conviction for committing a sexually violent offense is one of the following:
<Give the appropriate bracketed description[s] below.>
<A. Conviction With Fixed Sentence>
[A prior [or current] conviction for one of the offenses I have just described to you that resulted in a prison sentence for a fixed period of time.]
<B. Conviction With Indeterminate Sentence>
[A conviction for an offense that I have just described to you that was committed before July 1, 1977, and resulted in an indeterminate sentence.]
<C. Conviction in Another Jurisdiction>
[A prior conviction in another jurisdiction for an offense that includes all of the same elements of one of the offenses that I have just described to you.]
<D. Conviction Under Previous Statute>
[A conviction for an offense under a previous statute that includes all of the elements of one of the offenses that I have just described to you.]
<E. Conviction With Probation>
[A prior conviction for one of the offenses that I have just described to you for which the respondent received probation.]
<F. Acquittal Based on Insanity Defense>
[A prior finding of not guilty by reason of insanity for one of the offenses that I have just described to you.]
<G. Conviction as Mentally Disordered Sex Offender>
[A conviction resulting in a finding that the respondent was a mentally disordered sex offender.]
[The term diagnosed mental disorder includes congenital or acquired conditions affecting a person's emotional or volitional capacity and predisposing that person to commit criminal sexual acts to an extent that makes him or her a menace to the health and safety of others.]
You may not conclude that <insert name of respondent> is a sexually violent predator based solely on (his/ her) alleged prior conviction[s].
In order to prove that <insert name of respondent> is a danger to the health and safety of others, the People do not need to prove a recent overt act committed while (he/she) was in custody. A recent overt act is a criminal act that shows a likelihood that the actor may engage in sexually violent predatory criminal behavior.
The court has a sua sponte duty to instruct the jury about the basis for a finding that a respondent is a sexually violent predator.
If there is sufficient evidence to raise a reasonable doubt as to whether confinement in a secure facility is necessary, the court has a sua sponte duty to instruct on this issue. (People v. Grassini (2003) 113 Cal.App.4th 765, 777 [6 Cal.Rptr.3d 662]; People v. Calderon (2004) 124 Cal.App.4th 80, 93 [4 Cal.Rptr.3d 92].) Give bracketed element 4.
The court also must give CALCRIM No. 220, Reasonable Doubt; 222, Evidence; 226, Witnesses; 3550, Pre-Deliberation Instructions; and any other relevant posttrial instructions. These instructions may need to be modified.
Elements and Definitions. Welf. & Inst. Code, §§ 6600, 6600.1.
Unanimous Verdict, Burden of Proof. Conservatorship of Roulet (1979) 23 Cal.3d 219, 235 [152 Cal.Rptr. 425, 590 P.2d 1] [discussing conservatorship proceedings under the Lanterman-Petris-Short Act and civil commitment proceedings in general].
Likely Defined. People v. Roberge (2003) 29 Cal.4th 979, 988 [129 Cal.Rptr.2d 861, 62 P.3d 97].
Predatory Acts Defined. People v. Hurtado (2002) 28 Cal.4th 1179, 1183 [124 Cal.Rptr.2d 186, 52 P.3d 116].
Must Instruct on Necessity for Confinement in Secure Facility. People v. Grassini (2003) 113 Cal.App.4th 765, 777 [6 Cal.Rptr.3d 662].
Determinate Sentence Defined. Pen. Code, § 1170.
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 193.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 104, Parole, § 104.06 (Matthew Bender).
Different Proof Requirements at Different Stages of the Proceedings
Even though two concurring experts must testify to commence the petition process under Welfare and Institutions Code section 6001, the same requirement does not apply to the trial. (People v. Scott (2002) 100 Cal.App.4th 1060, 1064 [123 Cal.Rptr.2d 253].)
Masturbation Does Not Require Skin-to-Skin Contact
Substantial sexual conduct with a child under 14 years old includes masturbation where the touching of the minor's genitals is accomplished through his or her clothing. (People v. Lopez (2004) 123 Cal.App.4th 1306,1312 [20 Cal.Rptr.3d 801]; People v. Whitlock (2003) 113 Cal.App.4th 456, 463 [6 Cal.Rptr.3d 389].) "[T]he trial court properly instructed the jury when it told the jury that '[t]o constitute masturbation, it is not necessary that the bare skin be touched. The touching may be through the clothing of the child.' " (People v. Lopez, supra, 123 Cal.App.4th at p. 1312.)
(New January 2006)