California Criminal Jury Instructions (CALCRIM) (2017)

3454. Commitment as Sexually Violent Predator

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3454.Initial Commitment as Sexually Violent Predator (Welf. &
Inst. Code, §§ 6600, 6600.1)
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 one or more victims;
2. (He/She) has a diagnosed mental disorder;
[AND]
3. As a result of that diagnosed mental disorder, (he/she) is a
danger to the health and safety of others because it is likely that
(he/she) will engage in sexually violent predatory criminal
behavior(;/.)
<Give element 4 when evidence has been introduced at trial on the issue
of amenability to voluntary treatment in the community.>
[AND
4. It is necessary to keep (him/her) in custody in a secure facility to
ensure the health and safety of others.]
The term 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 predispose 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 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
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bodily injury to the victim or another person or threatening to retaliate
in the future against the victim or any other 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.]
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
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.]
<H. Conviction Resulting in Commitment to Department of Youth
Authority Pursuant to Welfare and Institutions Code section 1731.5>
[A prior conviction for one of the offenses that I have just described
to you for which the respondent was committed to the Department of
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Youth Authority pursuant to Welfare and Institutions Code section
1731.5.]
You may not conclude that <insert name of respondent> is
a sexually violent predator based solely on (his/her) alleged prior
conviction[s] without additional evidence that (he/she) currently has
such a diagnosed mental disorder.
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.
New January 2006; Revised August 2006, June 2007, August 2009, April 2011,
February 2012
BENCH NOTES
Instructional Duty
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.
Do not use this instruction for extension or status proceedings. Use instead
CALCRIM No. 3454A, Hearing to Determine Current Status Under Sexually
Violent Predator Act.
If evidence is presented about amenability to voluntary treatment, the court has a
sua sponte duty to give bracketed element 4. (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 [21 Cal.Rptr.3d 92].) Evidence of involuntary treatment in the
community is inadmissible at trial because it is not relevant to any of the SVP
requirements. (People v. Calderon, supra, 124 Cal.App.4th at 93.)
The court also must give CALCRIM No. 219, Reasonable Doubt in Civil
Proceedings; 222, Evidence; 226, Witnesses; 3550, Pre-Deliberation Instructions;
and any other relevant post-trial instructions. These instructions may need to be
modified.
Jurors instructed in these terms must necessarily understand that one is not eligible
for commitment under the SVPA unless his or her capacity or ability to control
violent criminal sexual behavior is seriously and dangerously impaired. No
additional instructions or findings are necessary. People v. Williams (2003) 31
Cal.4th 757, 776–777 [74 P.3d 779] (interpreting Welfare and Institutions Code
section 6600, the same statute at issue here).
But see In re Howard N. (2005) 35 Cal.4th 117, 137–138 [24 Cal.Rptr.3d 866, 106
P.3d 305], which found in a commitment proceeding under a different code section,
i.e., Welfare and Institutions Code section 1800, that when evidence of inability to
control behavior was insufficient, the absence of a specific “control” instruction was
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not harmless beyond a reasonable doubt. Moreover, In re Howard N. discusses
Williams extensively without suggesting that it intended to overrule Williams.
Williams therefore appears to be good law in proceedings under section 6600.
AUTHORITY
• 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.
• Impairment of Control. In re Howard N. (2005) 35 Cal.4th 117, 128–130 [24
Cal.Rptr.3d 866, 106 P.3d 305].
• Amenability to Voluntary Treatment. Cooley v. Superior Court (2002) 29
Cal.4th 228, 256 [127 Cal.Rptr.2d 177, 57 P.3d 654].
• Need for Treatment and Need for Custody Not the Same. People v. Ghilotti
(2002) 27 Cal.4th 888, 927 [119 Cal.Rptr.2d 1, 44 P.3d 949].
• Substantial Danger. People v. Ghilotti (2002) 27 Cal.4th 888, 922 [119
Cal.Rptr.2d 1, 44 P.3d 949].
Secondary Sources
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 154,
172.
5Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 104,
Parole, § 104.06 (Matthew Bender).
RELATED ISSUES
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
when 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
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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.)
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