California Criminal Jury Instructions (CALCRIM) (2017)

3454a. Hearing to Determine Current Status Under Sexually Violent Predator Act (Welf. & Inst. Code, § 6605)

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3454A.Hearing to Determine Current Status Under Sexually
Violent Predator Act (Welf. & Inst. Code, § 6605)
The People allege that <insert name of petitioner> currently
is a sexually violent predator.
To prove this allegation, the People must prove beyond a reasonable
doubt that:
1. (He/She) has a diagnosed mental disorder;
[AND]
2. 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 3 when evidence has been introduced at trial on the issue
of amenability to voluntary treatment in the community>
[AND
3. It is necessary to keep (him/her) in (custody in a secure facility/
[or] a state-operated conditional release program) 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 in
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.
<Give the following paragraph if evidence of the petitioner’s failure to
participate in or complete treatment is offered as proof that petitioner’s
condition has not changed>
[You may consider evidence that <insert name of
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petitioner> failed to participate in or complete the State Department of
Mental Health Sex Offender Commitment Program as an indication
that (his/her) condition as a sexually violent predator has not changed.
The meaning and importance of that evidence is for you to decide.]
<Give the following paragraph if the jury has been told about the
petitioner’s underlying conviction>
[You may not conclude that <insert name of petitioner> is
currently a sexually violent predator based solely on (his/her) prior
conviction[s] without additional evidence that (he/she) currently has
such a diagnosed mental disorder.]
In order to prove that <insert name of petitioner> 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 April 2011; Revised 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 petitioner is currently a sexually violent predator.
If evidence is presented about amenability to voluntary treatment, the court has a
sua sponte duty to give bracketed element 3. (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.
AUTHORITY
• Elements and Definitions. Welf. & Inst. Code, §§ 6600, 6605.
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].
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• 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].
• 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].
• State-Operated Conditional Release Program. People v. Superior Court
(George) (2008) 164 Cal.App.4th 183, 196–197 [78 Cal.Rptr.3d 711].
• 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, § 172.
5Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 104,
Parole, § 104.06 (Matthew Bender).
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