Supreme Court of California Justia
Docket No. S107266
People v. Williams (Robert)

Filed 8/21/03

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S107266
v.
Ct.App. 4/2 E030384
ROBERT WILLIAMS,
San Bernardino County
Defendant and Appellant.
Super. Ct. No. FSBSS028206

In Kansas v. Crane (2002) 534 U.S. 407, the United States Supreme Court
held that the safeguards of personal liberty embodied in the due process guaranty
of the federal Constitution prohibit the involuntary confinement of persons on the
basis that they are dangerously disordered without “proof [that they have] serious
difficulty in controlling [their dangerous] behavior.” (Id. at p. 413.) California’s
Sexually Violent Predators Act (SVPA or Act; Welf. & Inst. Code, § 6600 et
seq.)1 does not use that precise language in defining who is eligible for
involuntary civil commitment as a sexually violent predator.
In September 2001, before Kansas v. Crane, supra, 534 U.S. 407, was
decided, defendant was committed under the SVPA by a jury that received
instructions in the statutory language. However, the jury was not separately and
specifically instructed on the need to find serious difficulty in controlling

1
All further unlabeled statutory references are to the Welfare and Institutions
Code.
1


behavior. Defendant claims a separate “control” instruction was constitutionally
necessary under Kansas v. Crane.
The Court of Appeal correctly rejected this contention. By its express
terms, the SVPA limits persons eligible for commitment to those few who have
already been convicted of violent sexual offenses against multiple victims (§ 6600,
subd. (a)(1)), and who have “diagnosed mental disorder[s]” (ibid.) “affecting the
emotional or volitional capacity” (id., subd. (c)) that “predispose[ ] [them] to the
commission of criminal sexual acts in a degree constituting [them] menace[s] to
the health and safety of others” (ibid.), such that they are “likely [to] engage in
sexually violent criminal behavior” (id., subd. (a)(1)). This language inherently
encompasses and conveys to a fact finder the requirement of a mental disorder that
causes serious difficulty in controlling one’s criminal sexual behavior. The
SVPA’s plain words thus suffice “to distinguish the dangerous sexual offender
whose serious mental illness, abnormality, or disorder subjects him to civil
commitment from the dangerous but typical recidivist convicted in an ordinary
criminal case.” (Kansas v. Crane, supra, 534 U.S. 407, 413.) Several other state
courts have reached the same result when considering the effect of Kansas v.
Crane on statutes similar to the SVPA.
Moreover, even if instructional error had occurred, the Court of Appeal
properly found no prejudice. On the evidence presented at defendant’s trial, no
rational jury could have failed to find he harbored a mental disorder that made it
seriously difficult for him to control his violent sexual impulses. Hence, the
absence of a “control” instruction was harmless beyond a reasonable doubt.
Accordingly, we will affirm the judgment of the Court of Appeal.
2
FACTS
In January 1981, and again in June 1981, defendant forcibly raped separate
victims. In the first 1981 incident, defendant masturbated in front of a woman in a
laundromat. He then grabbed her, and, as she attempted to flee, she fell.
Defendant recaptured her, dragged her to a nearby park, and began to rape her.
When police arrived, the rape was still in progress, and they had to physically
remove defendant from on top of the victim.
In the second 1981 incident, defendant, who was sitting behind a woman at
a stadium concert, began touching and harassing her. When she got up to use the
restroom, he followed her and dragged her into a men’s room that was posted with
an “out of order” sign. The victim said she needed to take medicine and asked if
she could get into her purse, hoping to retrieve a knife to defend herself.
Defendant replied, “No, bitch. I am no fool.” He then threw her down, beat her
with his fists, tore off her clothes, forced her to orally copulate him, and raped her.
Defendant was convicted of two counts of rape and sentenced to state prison.
He was paroled in early 1987. In June 1987, while still on parole, he
gained entry to a home near where he was staying by telling the female resident
that he needed to use her telephone to get help with his disabled vehicle. When
she left the living room to allow him to make the call in private, he followed her
into her bedroom. He told her he had been watching her and announced his
intentions. When she tried to scream and fight him off, he slapped her. He threw
her down on the bed, spread her legs with his hand, removed her clothing, and
raped her. When he was finished, she persuaded him to leave and called the
police. Before they arrived, he returned to her residence two more times to
attempt to retrieve his eyeglasses. Defendant was convicted of burglary, sexual
battery, and three counts of rape. He was again sentenced to state prison.
3
During both his prison terms, defendant engaged in acts of sexual
misconduct. While serving his first term, he exposed himself to female prison
staff. During his second term, he openly masturbated in the prison library and
exposed himself in groups where females were present.
In June 1999, as defendant approached the parole date for his second term,
the San Bernardino County District Attorney filed a petition alleging that he was a
sexually violent predator. In December 1999, while confined at Atascadero State
Hospital awaiting his SVPA trial, defendant exposed himself and masturbated
publicly in the patient dining room.
At the trial in September 2001, the prosecution called as expert witnesses
Dr. Dennis Sheppard and Dr. Kent Franks, both licensed psychologists. Both
witnesses reviewed documents detailing defendant’s past crimes, as well as his
clinical records. After being informed of his right to do so, defendant had
declined to be interviewed by Dr. Sheppard. Defendant had spoken at some
length on one occasion with Dr. Franks, but he refused to answer specific
questions and declined a second interview. Based on the available information,
both experts testified that defendant met the criteria for commitment under the
SVPA.
Among other things, Dr. Sheppard testified as follows: Defendant suffers
from “paraphilia, not otherwise specified” (paraphilia NOS)—a mental disorder
characterized by intense and recurrent fantasies, urges, and behaviors about sex
with nonconsenting persons, which symptoms persist for six months or more and
cause significant dysfunction or personal distress. Paraphilic rape is “that
obsessive driven rape uncontrollable for the most part that [persons with this
disorder] -- you know, feel driven to commit.” The single-minded determination
with which defendant repeatedly pursued the consummation of his desire for
nonconsensual sex, regardless of circumstances or surroundings, is evidence of
4
defendant’s paraphilia,2 as are his persistent episodes of public exposure and
masturbation in confinement. Another important factor is defendant’s own
acknowledgement of his sexual pathology, “similar to, you know, ‘I feel like a fish
on a hook and I don’t have control.’ ”
Dr. Sheppard explained that paraphilia is a chronic, incurable disorder,
though patients can be helped to control their sexually deviant behaviors.
However, said Dr. Sheppard, defendant’s emotional or volitional control is further
impaired by the fact that he also suffers from a delusional disorder known as
“psychosis, not otherwise specified” (psychosis NOS). According to Dr.
Sheppard, this condition increases his impulsivity and makes him less likely to
appreciate the reality of the situation. In Dr. Sheppard’s view, defendant’s
disorders predispose him to sexually violent criminal behavior, as evidenced by
his repeated misconduct of this nature and the fact that “even in a controlled
setting [he] continues to sexually act out in about the only way he can.”
When asked to explain his understanding of the SVPA’s legal standard for
a diagnosable mental disorder, Dr. Sheppard said he thought that by encompassing
both congenital and acquired conditions, and both emotional and volitional
impairments, the law meant “to indicate that, you know, it doesn’t matter whether
you got this disorder from biology or whether you learned it. And that . . . the
disorder impairs your emotional or volitional control and that because of that
mental disorder that impairs those, that you are likely to commit sexually violent

2
Dr. Sheppard distinguished a rape committed as a crime of opportunity, as
where a burglar enters a home to steal property, but by happenstance encounters a
victim and takes advantage of the circumstance to commit a sexual assault.

5


acts.” Asked to assess defendant’s overall risk of reoffense, Dr. Sheppard opined
that “he has a high likelihood of reoffending” if released without treatment.
Dr. Franks also diagnosed defendant with paraphilia NOS and psychosis
NOS, and he agreed with Dr. Sheppard that defendant’s rapes were of the
paraphilic type. Dr. Franks further concluded that defendant suffers from
polysubstance abuse—i.e., drug and alcohol dependence—and severe “personality
disorder, not otherwise specified,” with paranoid and antisocial features.
According to Dr. Franks, defendant does not “have very good control over his
impulses or his emotions in general because he suffers from a mental illness,” and
his drug and alcohol dependence exacerbates the problem by further reducing
inhibitions.
Assessing the “dynamic” factors affecting defendant’s risk of reoffense
(i.e., those environmental and psychological factors that could be expected to
influence future behavior), Dr. Franks said “the most significant is [that] he has
very poor control over his impulses and . . . very poor control over his emotional
functioning,” as particularly demonstrated by his sexual exhibitionism while
confined. As Dr. Franks recounted, “The records from the prison indicate he was
cited five times for exposing himself, and I counted six instances in three months
at Atascadero of indecent exposure. That doesn’t count other instances where he
cut the crotch of his shorts out so that his penis was exposed. To me that’s
suggesting incredibly poor impulse control. That’s a risk factor.” In sum, Dr.
Franks concluded that defendant “is at really high risk. There is basically no
doubt [that] without supervision and treatment he would reoffend.”3

3
In addition to the other clinical and historical data on which they relied,
both Dr. Sheppard and Dr. Franks rated defendant on the so-called Static-99 scale,
which measures the statistical risk of reoffense based on characteristics of the
(Footnote continued on next page.)
6


The jury was instructed in the language of the SVPA, pursuant to a
modified version of CALJIC No. 4.19. This instruction explained that a sexually
violent predator is one who, inter alia, “has a currently diagnosed mental disorder
that makes him a danger to the health and safety of others in that it is likely that he
will engage in sexually violent criminal behavior,” and that a “ ‘[d]iagnosed
mental disorder’ includes 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.” Defendant requested, and was refused, an additional instruction
that “the diagnosed mental disorder must render the person unable to control his
dangerous behavior.” (Italics added.) The jury found him to be a sexually violent
predator, and he was committed to the custody of the Department of Mental
Health.
Defendant appealed, asserting prejudicial error in the trial court’s failure to
give his “unable to control” instruction. While the matter was pending in the
Court of Appeal, the United States Supreme Court decided Kansas v. Crane,
supra, 534 U.S. 407. That decision held that the mental abnormality or
personality disorder necessary for involuntary civil commitment of dangerously
disordered sex offenders does not require “total or complete lack of [behavioral]
control” (id. at p. 411, italics in original), but there must be “proof of serious

(Footnote continued from previous page.)

subject’s personal history and past offenses as they compare with those of known
criminal sexual recidivists. Both experts agreed that defendant scored a 9 on this
scale, equating to a high risk of reoffense, i.e., 39 percent within five years, 45
percent within 10 years, and 52 percent within 15 years.

7


difficulty in controlling behavior” (id. at p. 413, italics added). Defendant filed a
supplemental brief, arguing that Kansas v. Crane required a “serious difficulty”
instruction.
Thereafter, the Court of Appeal affirmed the judgment. The Court of
Appeal reasoned as follows: Defendant’s requested instruction, which would have
required a finding he was “unable” to control his behavior, was incorrect under
Kansas v. Crane, supra, 534 U.S. 407. To the extent Kansas v. Crane nonetheless
requires “serious difficulty” in controlling behavior, that standard is inherently
encompassed and subsumed by the SVPA’s definitions of “sexually violent
predator” and “diagnosed mental disorder.” Thus, no additional “control”
instruction was needed. Even if instructional error occurred, defendant suffered
no prejudice. Given the “strong, and essentially uncontested, evidence of
defendant’s lack of control over his sexual behavior,” no rational fact finder would
have reached a more favorable result had his requested instruction been given.
Hence, any error in refusing the instruction was harmless beyond a reasonable
doubt.
We granted review. We will affirm the Court of Appeal’s judgment.
DISCUSSION
As in the Court of Appeal, defendant argues that his SVPA commitment is
invalid under Kansas v. Crane, supra, 534 U.S. 407, because the statute’s literal
language fails to express the federal constitutional requirement of proof of a
mental disorder that causes “serious difficulty in controlling behavior” (id. at
p. 413), and the jury was not specifically instructed on the need to find such
impairment of control. For reasons we now explain, we reject this contention.4

4
Though they did not raise the point in the Court of Appeal, the People
suggest here that defendant has waived his instructional argument, because in this
(Footnote continued on next page.)
8


The SVPA, enacted in 1996 (Stats. 1996, ch. 763, § 3) and thereafter
amended, permits the involuntary civil commitment or recommitment, for two-
year terms of confinement and treatment, of persons who are found in jury trials
(§ 6604), and beyond a reasonable doubt (§ 6603, subd. (a)), to be “sexually
violent predator[s]” (§ 6604). The Act defines a sexually violent predator as one
“who has been convicted of a sexually violent offense against two 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).) A “ ‘[d]iagnosed mental
disorder’ includes 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., subd. (c).)
The year after the SVPA was adopted, the United States Supreme Court
considered whether the definition of “mental abnormality” in Kansas’s sexually

(Footnote continued from previous page.)

civil proceeding (see Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1170-
1179 (Hubbart)), he may not complain that the court should have given an
instruction other than the incorrect “unable to control” language he proffered at
trial. (Citing Orient Handel v. United States Fid. & Guar. Co. (1987)
192 Cal.App.3d 684, 699; see also 7 Witkin, Cal. Procedure (4th ed. 1997) Trial,
§ 272, pp. 318-319.) But if the wording of defendant’s proposed instruction was
incorrect, that was confirmed only by the United States Supreme Court’s
subsequent decision in Kansas v. Crane, supra, 534 U.S. 407. Under the
circumstances, the Court of Appeal properly proceeded to address the issue
whether Kansas v. Crane itself imposed some requirement to instruct specifically
on impairment of behavioral control. In reviewing the decision of the Court of
Appeal (Cal. Const., art. VI, § 12, subd. (b); Cal. Rules of Court, rule 28), we may
and should do the same (see Cal. Rules of Court, rule 29(b)(1)).

9


violent predator act satisfied substantive due process requirements for the
involuntary civil commitment of dangerously disordered persons. The court ruled
that this definition—which closely paralleled California’s definition of “diagnosed
mental disorder”—was constitutionally valid. (Kansas v. Hendricks (1997)
521 U.S. 346 (Hendricks)).
As the Hendricks court explained, Kansas had adopted its statute to deal
with a “ ‘small but extremely dangerous group of sexually violent predators . . .
who do not have a mental disease or defect that renders them appropriate for
involuntary treatment pursuant to the [general involuntary civil commitment
statute], [but instead] generally have anti-social personality features which are
unamenable to existing mental illness treatment modalities’ ” and which make
them highly likely to engage in repeated acts of predatory sexual violence.
(Hendricks, supra, 521 U.S. 346, 351, quoting Kan. Stat. Ann., § 59-29a01.)
Accordingly, the Kansas law provided for the involuntary civil
commitment of certain persons who had been convicted of, or charged with,
sexually violent offenses, “ ‘and who suffer[ed] from a mental abnormality or
personality disorder which [made] [them] likely to engage in . . . predatory acts of
sexual violence.’ ” (Hendricks, supra, 521 U.S. 346, 352, quoting Kan. Stat.
Ann., § 59-29a02(a).) A “ ‘mental abnormality’ ” was defined as a “ ‘congenital
or acquired condition affecting the emotional or volitional capacity which
predisposes the person to commit sexually violent offenses in a degree constituting
such person a menace to the health and safety of others.’ ” (Id. at p. 352, quoting
Kan. Stat. Ann., § 59-29a02(b).)
The constitutional challenge arose in the case of Leroy Hendricks, a
lifelong sexual offender who admitted that when he “ ‘[got] stressed out,’ he
‘[could not] control the urge’ to molest children.” (Hendricks, supra, 521 U.S.
346, 355.) Near the conclusion of his latest prison term, on a conviction for
10
“taking indecent liberties” with two adolescent boys, the state petitioned to
confine him civilly as a sexually violent predator. In a jury trial, his extensive
history of criminal sexual conduct was detailed. A state doctor testified, and
Hendricks agreed, that he suffered from incurable pedophilia. The jury
unanimously found he was a sexually violent predator. After determining that
pedophilia satisfied the statutory definition of a “mental abnormality,” the trial
court ordered his commitment. (Id. at pp. 355-356.)
The Kansas Supreme Court reversed. It held that substantive due process
permits involuntary civil commitment only of a person proven, by clear and
convincing evidence, to be both (1) mentally ill and (2) a danger to himself and
others. The Kansas statute’s definition of “mental abnormality,” the state high
court concluded, did not satisfy the necessary “mental illness” component of an
involuntary civil commitment. (Hendricks, supra, 521 U.S. 346, 356.)
The United States Supreme Court disagreed. As it explained, “ . . . States
have in certain narrow circumstances provided for the forcible civil detainment of
people who are unable to control their behavior and who thereby pose a danger to
the public health and safety. [Citations.] We have consistently upheld such
involuntary commitment statutes provided the confinement takes place pursuant to
proper procedures and evidentiary standards. [Citations.]” (Hendricks, supra,
521 U.S. 346, 357.)
The court noted: “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 commitment 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
11
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.
[Citation.] The precommitment requirement of a ‘mental abnormality’ or
‘personality disorder’ is consistent with the requirements of these other statutes
that we have upheld in that it narrows the class of persons eligible for confinement
to those who are unable to control their dangerousness.” (Hendricks, supra,
521 U.S. 346, 358, italics added.)
Hendricks argued that “mental abnormality” was simply a phrase coined by
the Kansas Legislature, not a clinically recognized form of mental illness.
However, the high court admonished, “the term ‘mental illness’ is devoid of any
talismanic significance. Not only do ‘psychiatrists disagree widely and frequently
on what constitutes mental illness,’ [citation], but the Court itself has used a
variety of expressions to describe the mental condition of those properly subject to
civil confinement. [Citations.] [¶] Indeed, we have never required state
legislatures to adopt any particular nomenclature in drafting civil commitment
statutes. Rather, we have traditionally left to legislators the task of defining terms
of a medical nature that have legal significance. [Citations.] As a consequence,
the States have, over the years, developed numerous specialized terms to define
mental health concepts. Often, these definitions do not fit precisely with the
definitions employed by the medical community.” (Hendricks, supra, 521 U.S.
346, 359.)
The Kansas statute, the court noted, set forth “criteria relating to an
individual’s inability to control his dangerousness” that were comparable to other
civil commitment laws the court had upheld. (Hendricks, supra, 521 U.S. 346,
360.) Moreover, the court observed, Hendricks himself amply met these criteria;
he had been diagnosed with pedophilia, “a condition the psychiatric profession
itself classifies as a serious mental disorder,” and he admitted he could not control
12
his urge to molest children. (Ibid.) “This admitted lack of volitional control,
coupled with a prediction of future dangerousness, adequately distinguishes
Hendricks from other dangerous persons who are perhaps more properly dealt
with exclusively through criminal proceedings.” Due process standards for his
commitment, said the court, therefore were satisfied. (Ibid.) Accordingly, the
judgment of the Kansas Supreme Court was reversed. (Id. at p. 371.)5
In Hubbart, supra, 19 Cal.4th 1138, we addressed similar issues in
connection with California’s SVPA. Christopher Hubbart had been convicted in
1973, and again in 1982, of felonies arising from sexual assaults against women
who were strangers to him. His pattern in these crimes was to break into homes in
the early morning hours, bind the sole female occupants, place pillowcases over
their heads, and commit forcible sex acts. In more recent incidents, he had
administered an enema to the victim, or otherwise cleaned the victim’s rectal
cavity.
After the 1973 conviction, Hubbart was committed to Atascadero State
Hospital as a mentally disordered sex offender. There he received intensive
therapy, including treatment for his sexually deviant behavior. He was released as
an outpatient in 1979, but readmitted in 1981 when he began reoffending. In

5
Justice Thomas’s majority opinion in Hendricks, supra, 521 U.S. 346, was
signed by the Chief Justice and by Justices O’Connor, Scalia, and Kennedy.
Justice Kennedy also filed a concurring opinion stating he joined the majority
opinion “in full” (id. at p. 371 (conc. opn. of Kennedy, J.)) and that “[o]n the
record before us,” the Kansas statute conformed to the court’s due process
precedents (id. at p. 373). Justice Kennedy admonished only that “[i]f . . . civil
confinement were to become a mechanism for retribution or general deterrence, or
if it were shown that mental abnormality is too imprecise a category to offer a
solid basis for concluding that civil detention is justified, our precedents would not
suffice to validate it.” (Ibid., italics added.)

13


1990, while on parole after his second conviction, he assaulted a female jogger.
He was convicted of false imprisonment and returned to prison. As Hubbart’s
parole release date approached, an SVPA petition was filed.
At Hubbart’s commitment trial, psychologists diagnosed him with severe
paraphilia NOS, characterized by such features as rape, bondage, sodomy, and
klismaphilia (arousal by administration of enemas). They said the condition had
persisted for over 20 years—Hubbart’s entire adult life—and was accompanied by
significant disruption in other areas of social functioning. Hubbart’s risk of
reoffense was high, the experts opined, as evidenced by the number and frequency
of his violent sexual assaults committed during brief periods of freedom, a lack of
insight into his problem, including means of controlling precipitating stress, and
an inability to empathize with his victims. He was committed as a sexually violent
predator.
On appeal, Hubbart mounted multiple constitutional attacks on the SVPA,
including a claim that the statute violated “substantive due process” guarantees of
the state and federal Constitutions. In his substantive due process attack, he urged
that the SVPA’s definition of a “diagnosed mental disorder” (§ 6600, subd. (c)) is
impermissibly broad, because it is not limited to true “ ‘mental illness,’ ” i.e.,
“ ‘serious cognitive, perceptual or affective dysfunction,’ ” but extends to “mental
disorders characterized primarily by an inability to control sexually violent
impulses and behavior.” (Hubbart, supra, 19 Cal.4th 1138, 1152.)
We rejected this argument. Adhering closely to the reasoning of
Hendricks, supra, 521 U.S. 346, we explained that “civil commitment is
permissible as long as the triggering condition consists of ‘a volitional impairment
rendering [the person] dangerous beyond their control.’ [Citation.]” (Hubbart,
supra, 19 Cal.4th 1138, 1156.) However, we noted, “[t]he [Hendricks] court made
clear that due process does not dictate the precise manner in which this ‘volitional
14
impairment’ is statutorily described.” (Ibid.) Indeed, we stressed, “Hendricks
emphasized the importance of deferring to the legislative branch in an area which
is analytically nuanced and dependent upon medical science.” (Ibid.)
Turning to the SVPA itself, we observed that, aside from “nonsubstantive
differences in grammar,” our statute “tracks the Kansas scheme verbatim in
describing the [required] 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.’ [Citation.] Through this language, the Act targets
sexual offenders who suffer from a diagnosed ‘volitional impairment’ making
them ‘dangerous beyond their control.’ (Hendricks, supra, 521 U.S. 346, 358.)”
(Hubbart, supra, 19 Cal.4th 1138, 1157, italics added.)
Moreover, Hubbart emphasized, “[t]he SVPA also establishes the requisite
connection between impaired volitional control and the danger posed to the public.
Much like the Kansas law at issue in Hendricks, our statute defines [a sexually
violent predator] as a person who has committed sexually violent crimes and who
currently suffers from ‘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.’ [Citation.] Through this language, the SVPA
plainly requires a finding of dangerousness. The statute then ‘links that finding’ to
a currently diagnosed mental disorder characterized by the inability to control
dangerous sexual behavior. (Hendricks, supra, 521 U.S. 346, 358.) This formula
permissibly circumscribes the class of persons eligible for commitment under the
Act.” (Hubbart, supra, 19 Cal.4th 1138, 1158, fn. omitted, italics added.)
Neither Hendricks, supra, 521 U.S. 346, nor Hubbart, supra, 19 Cal.4th
1138, suggested that new elements or requirements, absent from the literal
statutory language, were being read into these schemes as a condition of their
15
constitutionality. (Cf. In re Crane (Kan. 2000) 7 P.3d 285, 290.) On the contrary,
the core holding of each of these cases was that (1) when drafting involuntary civil
confinement laws, states have considerable leeway in describing and defining the
necessary link between a control-impairing disorder and a prediction of future
dangerousness, and (2) the particular language chosen for inclusion in the statutes
under consideration—Kansas’s in the case of Hendricks, and California’s in the
case of Hubbart—satisfied this basic due process requirement.
In other words, these decisions emphasized, the 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.
The recent, narrow decision in Kansas v. Crane, supra, 534 U.S. 407,
dictates no different result. There, the United States Supreme Court revisited, for
limited purposes, the Kansas law it had upheld in Hendricks, supra, 521 U.S. 346.
The case involved Michael Crane, who, within 30 minutes on the same day
in January 1993, exposed himself to a tanning salon attendant and committed an
aggravated sexual battery on a video store clerk. After his felony conviction for
the latter incident, the state sought to commit him as a sexually violent predator.
The experts at Crane’s commitment trial indicated he suffered from
antisocial personality disorder, with some difficulty in controlling sexual impulses.
The jury was instructed in the words of the Kansas statute (1) that commitment as
a sexually violent predator could be based on a “ ‘mental abnormality or
personality disorder’ ” (italics added) which made it likely the person would
reoffend, and (2) that a “ ‘mental abnormality’ ” was a “ ‘condition affecting the
emotional or volitional capacity’ ” that predisposed the person to commit sexually
16
violent offenses to a degree that endangered the health and safety of others. (In re
Crane, supra, 7 P.3d 285, 288.) The jury further heard that a “ ‘personality
disorder’ ”—undefined in the statute—included an “ ‘antisocial personality
disorder.’ ” (Ibid.) Crane was found eligible for commitment.
Crane appealed, arguing, among other things, that there had been no
sufficient determination of his inability to control his behavior. The Kansas
Supreme Court understood Crane’s contention in this regard to be that “the
[United States] Supreme Court [in Hendricks, supra, 521 U.S. 346] read a
volitional impairment requirement into the [Kansas] Act as a condition of its
constitutionality.” (In re Crane, supra, 7 P.3d 285, 290, italics added.)
Inexplicably, the Kansas court accepted this view of Hendricks, supra, 521
U.S. 346, concluding that Hendricks had not endorsed the statute’s literal
language as constitutionally satisfactory. (In re Crane, supra, 7 P.3d 285, 290.)
Thus freed to decide that issue for itself, the court concluded that the plain
language of the Kansas statute did not presuppose a finding of impaired control,
but actually implied otherwise. The court first noted that the statute’s definition of
a committable “mental abnormality” could involve an impairment of either
“emotional” or “volitional” capacity, thus suggesting that the “emotional” prong
did not involve helplessness to control behavior. (Ibid.) Moreover, the court
observed, the Kansas statute allowed commitment on the basis of a “personality
disorder,” a vague condition which (1) had no precise clinical parameters, (2) was
not statutorily defined to require any impairment, emotional or volitional, and (3)
according to one expert’s deposition testimony, was shared by 75 percent of the
prison population. (Ibid.)
The Kansas court concluded that because the Kansas statute’s words did
not themselves convey a requirement of inability to control behavior, the
constitutional necessity for such a finding must therefore be expressed in further
17
instructions. Accordingly, the court held, failure to instruct Crane’s jury
specifically on the need for lack of control was error. The court therefore reversed
Crane’s commitment and remanded for a new trial under proper instructions.
(In re Crane, supra, 7 P.3d 285, 290.)
On narrow grounds, the United States Supreme Court overturned the
Kansas Supreme Court’s decision. The high court interpreted the Kansas court as
holding “that Hendricks[, supra, 521 U.S. 346] insists upon ‘a finding that the
defendant cannot control his dangerous behavior’--even if (as provided by Kansas
law) problems of ‘emotional capacity’ and not ‘volitional capacity’ prove the
‘source of bad behavior’ warranting commitment. [Citations.] And the trial court
had made no such finding.” (Kansas v. Crane, supra, 534 U.S. 407, 411, italics
added.)
In deeming this a misreading of Hendricks, supra, 521 U.S. 346, Kansas v.
Crane, supra, 534 U.S. 407, did not directly confront the Kansas court’s holding,
contrary to Hendricks’s clear implication, that the Kansas statute could be applied
constitutionally only if supplemented by special instructions on the issue of
behavioral control. On the contrary, the Kansas v. Crane opinion assumed the
validity of Hendricks’s core conclusion that, in this respect, the Kansas statute met
constitutional requirements as written.
Thus, at the outset, Kansas v. Crane, supra, 534 U.S. 407, acknowledged
that in Hendricks, supra, 521 U.S. 346, the court had upheld the Kansas statute
against constitutional challenge. This, Kansas v. Crane noted, was because “the
statutory criterion for confinement embodied in the statute’s words ‘mental
abnormality or personality disorder’ satisfied ‘ “substantive” due process
requirements.’ [Citation.]” (Kansas v. Crane, supra, at p. 409, italics added.)
As Kansas v. Crane, supra, 534 U.S. 407 further explained, Hendricks had
found “that the Kansas ‘Act unambiguously requires a finding of dangerousness
18
either to one’s self or to others,’ [citation], 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,’
[citation]. And the Court [in Hendricks] ultimately determined that the statute’s
‘requirement of a “mental abnormality” or “personality disorder” is consistent
with the requirement of . . . other statutes that we have upheld in that it narrows
the class of persons eligible for confinement to those who are unable to control
their dangerousness.’ ” (Kansas v. Crane, supra, at p. 410, italics added.)
Kansas v. Crane, supra, 534 U.S. 407, also reiterated why Hendricks,
supra, 521 U.S. 346, had dismissed arguments that the Kansas statute’s terms
“mental abnormality” and “personality disorder” failed to describe a form of
“mental illness” constitutionally necessary for civil commitment. In this regard,
said Kansas v. Crane, “the Court [in Hendricks] pointed out that we ‘have
traditionally left to legislators the task of defining [such] terms.’ [Citation.] [The
Hendricks court] then held that, to ‘the extent that the civil commitment statutes
we have considered set forth criteria relating to an individual’s inability to control
his dangerousness, the Kansas Act sets forth comparable criteria.’ [Citation.]”
(Kansas v. Crane, supra, at p. 410, italics added.)
Nothing in Kansas v. Crane, supra, 534 U.S. 407, suggests that these clear
earlier rulings were subject to fundamental review or revision. Instead, said the
Kansas v. Crane court, the question now presented was simply whether “the
Kansas Supreme Court [had] interpreted our decision in Hendricks[, supra,
521 U.S. 346] in an overly restrictive manner” (Kansas v. Crane, supra, at p. 409)
by “requiring the State always to prove that a dangerous individual is completely
unable to control his behavior” (id. at p. 411).
The court quickly dismissed such an interpretation of Hendricks, supra,
521 U.S. 346, holding that the earlier decision set forth “no requirement of total or
19
complete lack of control.” (Kansas v. Crane, supra, 534 U.S. 407, 411.)
Hendricks, the court explained, “referred to the Kansas Act as requiring a ‘mental
abnormality’ or ‘personality disorder’ that makes it ‘difficult, if not impossible, for
the [dangerous] person to control his dangerous behavior.’ [Citation.] The word
‘difficult’ indicates that the lack of control to which this Court referred was not
absolute.” (Kansas v. Crane, supra, at p. 411, first italics added.) Such an
extreme approach would be “unworkable,” said the court, given the fine line
between “ ‘an irresistible impulse and an impulse not resisted,’ ” and considering
that “most severely ill people--even those commonly termed ‘psychopaths’--retain
some ability to control their behavior. [Citations.] [Thus,] [i]nsistence upon
absolute lack of control would risk barring the civil commitment of highly
dangerous persons suffering severe mental abnormalities.” (Id. at pp. 411-412.)
On the other hand, the high court noted, the State of Kansas contended that
“the Constitution permits commitment of the type of dangerous sexual offender
considered in Hendricks[, supra, 521 U.S. 346] without any lack-of-control
determination.” (Kansas v. Crane, supra, 534 U.S. 407, 412.) If Kansas’s
argument was an invitation to the court to conclude, contrary to Hendricks, that
impairment of control had no relevance to a constitutional civil commitment
scheme, it did not succeed. The court declined to retreat from this portion of
Hendricks.
As it had in Hendricks, supra, 521 U.S. 346, 360, the court indicated that if
individuals could be civilly confined as dangerous without any disorder-related
difficulty in controlling their dangerous behavior, there would be no adequate
distinction from the general run of dangerous persons who are subject exclusively
to the criminal law. (Kansas v. Crane, supra, 534 U.S. 407, 412.) Indeed, the
court remarked, in Hendricks itself, the offender’s diagnosed paraphilia, deemed a
serious mental illness by the psychiatric profession, and his admitted inability to
20
control his urges, ensured that the Kansas statute had been applied properly there.
(Kansas v. Crane, supra, at pp. 410, 412-413.)
But the court made clear that the references in Hendricks, supra, 521 U.S.
346, to “lack of control” did not ascribe to that term “a particularly narrow or
technical meaning. And we recognize that in cases where lack of control is at
issue, ‘inability to control behavior’ will not be demonstrable with mathematical
precision. It is enough to say that there must be proof of serious difficulty in
controlling behavior.” (Kansas v. Crane, supra, 534 U.S. 407, 413, italics added.)
The court acknowledged that this was not an exact standard, but asserted
that constitutional safeguards are not always best enforced through rigid bright-
line rules. In particular, the court explained, “the States retain considerable
leeway in defining the mental abnormalities and personality disorders that make
an individual eligible for commitment. [Citation.]” (Kansas v. Crane, supra, 534
U.S. 407, 413.) Moreover, “the science of psychiatry, which informs but does not
control ultimate legal determinations, is an ever-advancing science, whose
distinctions do not seek precisely to mirror those of the law. [Citations.]
Consequently, we have sought to provide constitutional guidance in this area by
proceeding deliberately and contextually, elaborating generally stated
constitutional standards and objectives as specific circumstances require.
Hendricks[, supra, 521 U.S. 346] embodied that approach.” (Kansas v. Crane,
supra, 534 U.S. at pp. 413-414, italics added.)
The State of Kansas also argued that its high court should not have
interpreted Hendricks, supra, 521 U.S. 346, to “absolutely forbid[ ]” the
commitment of dangerous persons who suffer only “emotional,” but not
“volitional” impairments. The United States Supreme Court agreed that
Hendricks, supra, 521 U.S. 346 had not discussed emotional impairments, since
the disorder at issue there was not of that kind. (Kansas v. Crane, supra, 534 U.S.
21
407, 414-415.) The court noted that “we likewise have no occasion” in Crane’s
case to “consider whether confinement based solely on ‘emotional’ abnormality
would be constitutional.” (Ibid.) However, the court indicated its reluctance to
eliminate primarily emotional difficulties as a basis for the commitment of
dangerously disordered persons. It said that “[h]ere, as in other areas of
psychiatry, there may be ‘considerable overlap between a . . . defective
understanding or appreciation and . . . [an] inability to control . . . behavior.’
[Citation.] Nor, when considering civil commitment, have we ordinarily
distinguished for constitutional purposes among volitional, emotional, and
cognitive impairments. [Citations.]” (Ibid.)
As its disposition, the court simply vacated the Kansas Supreme Court’s
judgment and “remanded [the case] for further proceedings not inconsistent with
this opinion.” (Kansas v. Crane, supra, 534 U.S. 407, 415.)
Thus, in essence, Kansas v. Crane, supra, 534 U.S. 407, (1) confirmed the
principle of Hendricks, supra, 521 U.S. 346, that a constitutional civil
commitment scheme must link future dangerousness to a mental abnormality that
impairs behavioral control, while (2) making clear that the impairment need only
be serious, not absolute. Kansas v. Crane reiterated Hendricks’s holding that
within wide boundaries, state legislators may define this difficult-to-articulate
concept as they wish, and acknowledged Hendricks’s earlier conclusion that the
Kansas statute articulated it sufficiently.
Nowhere did Kansas v. Crane, supra, 534 U.S. 407, suggest that the
Kansas law so recently upheld as written in Hendricks could be constitutionally
applied only with supplemental instructions, in language not chosen by Kansas’s
legislators, pinpointing the impairment-of-control issue. Though the high court
rejected the State of Kansas’s argument that no impairment-of-control
“determination” was required (id. at p. 412), this language, read in context,
22
appears intended only to verify that a constitutional civil confinement scheme
cannot dispense with impaired behavioral control as a basis for commitment.
As we made clear in Hubbart, supra, 19 Cal.4th 1138, California’s SVPA,
like the Kansas statute at issue in Hendricks, supra, 521 U.S. 346, and Kansas v.
Crane, supra, 534 U.S. 407, does not dispense with that requirement. On the
contrary, 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)). (Hubbart, supra,
at pp. 1152-1161.)
Indeed, in contrast with the Kansas statute, California’s SVPA states no
category of committable disorder which does not expressly require a dangerous
effect on emotional or volitional capacity. We are persuaded that a jury instructed
in the language of California’s statute must necessarily understand the need for
serious difficulty in controlling behavior.6

6
Parsing the statutory language closely, defendant urges that the SVPA’s
definition of a “diagnosed mental disorder” purports to require only an
“[e]ffect[ ]” on emotional or volitional capacity (§ 6600, subd. (c)), without stating
the necessary serious degree of this “[e]ffect[ ].” But insofar as the SVPA
specifies that the diagnosed mental disorder must so “predispose[ ]” the person to
the commission of criminal sexual acts as to “constitute a menace to the health and
safety of others” (ibid.), it clearly conveys that concept.

23


In our view, a judicially imposed requirement of special instructions
augmenting the clear language of the SVPA would contravene the premise of both
Hendricks, supra, 521 U.S. 346, and Kansas v. Crane, supra, 534 U.S. 407, that,
in this nuanced area, the Legislature is the primary arbiter of how the necessary
mental-disorder component of its civil commitment scheme shall be defined and
described. (See Kansas v. Crane, supra, at pp. 410, 413; Hendricks, supra, at
p. 359.) No reason appears to interfere with that legislative prerogative here.
Accordingly, we conclude, Kansas v. Crane, supra, 534 U.S. 407, does not
compel us to hold that further lack-of-control instructions or findings are
necessary to support a commitment under the SVPA.7 For the reasons we have
detailed, we decline to do so.
In other states, courts have divided when considering the effect of
Kansas v. Crane, supra, 534 U.S. 407, on similarly worded schemes for the
commitment of dangerously disordered sex offenders. The more persuasive
decisions have determined, as we do, that the pertinent statutory language—
language sometimes less explicit than California’s on the impairment-of-control
issue—adequately conveys Kansas v. Crane’s requirements, and that

7
In his dissenting opinion in Kansas v. Crane, supra, 534 U.S. 407, Justice
Scalia accused the majority of requiring a separate finding of lack of control (id. at
p. 419 (dis. opn. of Scalia, J.)), and of thus holding, contrary to Hendricks, supra,
521 U.S. 346, “that the Kansas Sexually Violent Predator Act . . . cannot,
consistent with so-called substantive due process, be applied as written” (534 U.S.
at p. 415 (dis. opn. of Scalia, J.)). For the reasons described above, we
respectfully disagree with Justice Scalia’s assessment of the Kansas v. Crane
majority’s ruling.

24


commitments under the statutes at issue are thus constitutionally valid without the
need for additional instructions or specific findings on impairment of control.8
Certain out-of-state cases, when concluding that their statutory language
satisfied Kansas v. Crane, supra, 534 U.S. 407, relied in part on the fact that their
statutes, either explicitly or by judicial construction, allowed commitment only if
it was more likely than not that the person would reoffend if free.9 On the other

8
(Westerheide v. State (Fla. 2002) 831 So.2d 93, 105-109; People v.
Swanson (Ill.App.Ct. 2002) 780 N.E.2d 342, 347-348; In re Detention of Isbell
(Ill.App.Ct. 2002) 777 N.E.2d 994, 998-999; In re Treatment and Care of
Luckabaugh
(S.C. 2002) 568 S.E.2d 338, 348-349 [statute does not mention
impairment of emotional or volitional capacity]; In re Commitment of Laxton
(Wis. 2002) 647 N.W.2d 784, 793-794, cert. den. (2003) ___ U.S. ___ [123 S.Ct.
870]; see In re Dutil (Mass. 2002) 768 N.E.2d 1055, 1059, 1063-1064 [statute
expressly requires future dangerousness as result of demonstrated lack of power to
control sexual impulses, but does not expressly require mental illness]; but see
In re Leon G. (Ariz. 2002) 59 P.3d 779, 781-789 [due process does not require
specific impairment-of-control instructions, but courts are directed to provide such
instructions as matter of Arizona practice]; In re Detention of Barnes (Iowa 2003)
658 N.W.2d 98, 101 [under Kansas v. Crane, instructions must specifically define
requisite mental abnormality as creating “serious difficulty” in behavioral control];
In re Martinelli (Minn.Ct.App. 2002) 649 N.W.2d 886, 889-890 [Minnesota
Supreme Court had previously found, under Hendricks, supra, 521 U.S. 346, that
judicial finding of “lack of control” is required; “lack of control” standard then
adopted for Minnesota cases remains adequate under Kansas v. Crane, supra,
534 U.S. 407]; Thomas v. State (Mo. 2002) 74 S.W.3d 789, 790-792 [under
Kansas v. Crane, instructions must specifically define requisite mental
abnormality as creating “serious difficulty” in behavioral control]; In re
Commitment of W.Z.
(N.J. 2002) 801 A.2d 205, 215-217, 219 [New Jersey statute
upheld under Kansas v. Crane, but case remanded for further findings re “serious
difficulty” in controlling behavior, on grounds that requisite standard had not been
articulated by federal or state courts at time of trial]; Spink v. State (Wash.Ct.App.
2002) 48 P.3d 381, 382 [commitment of sexually violent predator reversed for
failure to include specific impairment-of-control instruction].)

9
(See, e.g., In re Leon G., supra, 59 P.3d 779, 786-788 [construing Arizona
requirement of mental disorder making the person “likely” to engage in acts of
(Footnote continued on next page.)
25


hand, we have interpreted the “likely to reoffend” prong of California’s SVPA10 to
require only “ ‘a substantial danger, that is, a serious and well-founded risk’ ”—
but not necessarily a greater than even chance—that the person’s diagnosed
mental disorder will lead to new criminal sexual violence unless the person is
confined and treated. (People v. Roberge (2003) 29 Cal.4th 979, 988 (Roberge),
quoting People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922 (Ghilotti);
see also Cooley v. Superior Court (2003) 29 Cal.4th 228, 255 (Cooley).)
This difference does not persuade us that specific impairment-of-control
instructions are constitutionally required in California. As we have indicated, the
“mental disorder” prong of the SVPA—at issue here pursuant to Kansas v. Crane,
supra, 534 U.S. 407—is distinct from the prong addressing the degree of future
dangerousness, which was before us in Roberge, supra, 29 Cal.4th 979, Cooley,
supra, 29 Cal.4th 228, and Ghilotti, supra, 27 Cal.4th 888. (See Ghilotti, supra, at

(Footnote continued from previous page.)

sexual violence as requiring “high[ ] probab[ility]” of reoffense]; In re
Commitment of Laxton
, supra, 647 N.W.2d 784, 793-794 [Wisconsin statute
requiring “substantial[ ] probab[ility]” of reoffense means that recidivism must be
“more likely than not”]; see also Westerheide v. State, supra, 831 So.2d 93, 106
[noting that “likely,” as used in Florida statutory phrase “likely to engage in acts
of sexual violence,” has been construed to mean “highly probable or probable and
having a better chance of existing or occurring than not”].)

10
As we have explained, under our statute, a sexually violent predator must
have a “diagnosed mental disorder” (§ 6600, subd. (a)(1)) “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., subd. (c)), and which “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” (id., subd. (a)(1), italics added).

26


p. 921, fn. 12.) Entirely aside from future dangerousness, the SVPA requires a
diagnosed mental disorder affecting the person’s emotional or volitional capacity
that predisposes the person to commit sex crimes in a menacing degree. (§ 6600,
subd. (c).) We intimated in Ghilotti, supra, 27 Cal.4th 888, 921, footnote 12, and
confirm here, that this requirement alone implies “serious difficulty” in controlling
behavior, as required by Kansas v. Crane.
A mental disorder that includes all the above-described elements—
including a dangerous impairment of capacity—must additionally produce an
actual risk of violent reoffense which, under all the applicable circumstances, is
“substantial,” “serious,” and “well-founded.” (Roberge, supra, 29 Cal.4th 979,
988; see Ghilotti, supra, 27 Cal.4th at p. 921, fn. 12.) 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.11
Finally, we are influenced in our interpretation of Kansas v. Crane, supra,
534 U.S. 407, by the South Carolina Supreme Court’s observation in In re
Treatment and Care of Luckabaugh, supra, 568 S.E.2d 338. Noting that 16 states
then had commitment statutes for violent, dangerously disordered sex offenders

11
Defendant’s trial occurred in 2001, before Ghilotti, supra, 27 Cal.4th 888,
and Roberge, supra, 29 Cal.4th 979, defined the “likely to reoffend” prong of the
SVPA to require only a substantial, serious, and well-founded risk of reoffense.
But there is no reasonable chance that jurors instructed without the Roberge-
Ghilotti
clarification would thereby assume that a serious difficulty in controlling
behavior was not required. Certainly defendant has no complaint, on the facts of
this case, that the jury found him to be a sexually violent predator even though it
did not believe he had such serious difficulty. (See discussion post; cf. Roberge,
supra, at p. 989.)

27


(see id. at p. 348, fn. 8), the Luckabaugh court reasoned that “[t]o read [Kansas v.]
Crane as requiring a special finding [of serious difficulty in controlling behavior]
would be to suggest that the United States Supreme Court mandated at least
sixteen states to hold new commitment hearings for over 1,200 individuals
[currently] committed under their [states’] sexually violent predator acts.
[Citation.] We believe the Court’s ruling would have been more explicit if it
intended such consequences.” (568 S.E.2d at p. 348, fn. omitted.)12
For all the reasons indicated, we conclude that a commitment rendered
under the plain language of the SVPA necessarily encompasses a determination of
serious difficulty in controlling one’s criminal sexual violence, as required by
Kansas v. Crane, supra, 534 U.S. 407. Accordingly, separate instructions or
findings on that issue are not constitutionally required,13 and no error arose from
the court’s failure to give such instructions in defendant’s trial.14

12
In a footnote, the majority cited commitment statistics provided in the
amicus curiae brief filed by Illinois and other states. These statistics indicated,
inter alia, that as of the decision in Kansas v. Crane, supra, 534 U.S. 407, some
270 individuals were under SVPA commitments in California. (In re Treatment
and Care of Luckabaugh
, supra, 568 S.E.2d 338, 348, fn. 9.)

13
On appeal, defendant has not articulated whether his due process arguments
are premised on both the federal and California Constitutions; of course, he relies
primarily on a United States Supreme Court decision construing the federal
charter. To the extent defendant seeks to rely on parallel provisions of the state
Constitution, no reason appears to reach a different result. (See Hubbart, supra,
19 Cal.4th 1138, 1152, fn. 19.)

14
Defendant urges that a specific “control” instruction was “upheld” in
People v. Ward (1999) 71 Cal.App.4th 368, a case which predates Kansas v.
Crane
, supra, 534 U.S. 407. But defendant misreads Ward. The Court of Appeal
simply noted that such an instruction was given in that case, and that additional
instructions requested by the defendant were thus not necessary. (Ward, supra, at
(Footnote continued on next page.)
28


Insofar as Kansas v. Crane, supra, 534 U.S. 407, held that one may not be
civilly committed absent some specific “proof of serious difficulty in controlling
[dangerous] behavior” (id. at p. 413, italics added), ample evidence to that effect
was presented here. Both expert witnesses testified that defendant suffers from
paraphilia, a serious, incurable mental disorder, which is characterized by the
obsessive, repetitive, and driven nature of his criminal sexual violence. (See id. at
pp. 412, 414-415.) The experts indicated that defendant continued to exhibit a
marked lack of control over his sexual behavior, as evidenced by his many acts of
indecent exposure and public masturbation while confined as a result of his violent
sex offenses.
There was expert testimony that defendant’s control is further impaired by
other mental disorders, such as psychosis, paranoia, and severe antisocial
personality disorder, which enhance his impulsivity and cloud his judgment.
According to one of the testifying psychologists, defendant frankly admitted that
he lacked control over his pathological sexual behavior. Defendant offered no
contrary evidence. Hence, defendant was clearly established as “ ‘a dangerous
sexual offender [of the kind] subject to civil commitment [as distinguished] “from
other dangerous persons who are perhaps more properly dealt with exclusively
through criminal proceedings.” ’ ” (Kansas v. Crane, supra, 534 U.S. 407, 412,
quoting Hendricks, supra, 521 U.S. 346, 360.)
For similar reasons, we also agree with the Court of Appeal that if
instructional error had occurred under Kansas v. Crane, supra, 534 U.S. 407, it

(Footnote continued from previous page.)

p. 375.) Ward neither stated nor implied that a specific instruction on impairment
of control is constitutionally required.
29


was harmless beyond a reasonable doubt. (People v. Hurtado (2002) 28 Cal.4th
1179, 1194.) Because it was essentially undisputed that defendant’s diagnosed
mental disorder involved serious difficulty in controlling sexual behavior, the
absence of an instruction pinpointing that issue must “beyond a reasonable doubt
. . . have made no difference in reaching the verdict obtained.” (Yates v. Evatt
(1991) 500 U.S. 391, 407.)
The judgment of the Court of Appeal is affirmed.

BAXTER, J.
WE CONCUR:

GEORGE, C.J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

30






CONCURRING OPINION BY KENNARD, J.

In
Kansas v. Crane (2002) 534 U.S. 407, the United States Supreme Court
said that a defendant can be confined as a dangerous sexual predator only upon
proof of “serious difficulty in controlling behavior.” (Id. at p. 413.) California’s
Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.),
enacted before Crane was filed, applies to a person 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.” (Id.,
§ 6600, subd. (a)(1).) A “diagnosed mental disorder” is defined to include a
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., § 6600, subd. (c).) The
SVPA is not expressly limited to defendants who have serious difficulty in
controlling their behavior.
Taking the language of the SVPA literally, a person could be confined as a
sexually violent predator based on a condition that affects his emotional capacity
by making the person likely to engage in sexually violent criminal behavior, even
if he does not have serious difficulty in controlling his behavior. In other words,
California’s SVPA applies literally to persons who have the capacity to refrain
1


from committing predatory acts but choose to commit them anyway. Even though
such persons are a danger to the health and safety of others, under Kansas v.
Crane, supra, 534 U.S. 407, they cannot be confined under the SVPA procedure.
The majority in this case, however, points out the impossibility of
distinguishing between the effects of mental illness on emotional capacity and
volitional capacity. (Maj. opn., ante, at pp. 6-7.) After thorough review of the
precedents from the United States Supreme Court and this court, it concludes that
“California’s statute inherently embraces and conveys the need for a dangerous
mental condition characterized by impairment of behavioral control.” (Id. at
p. 24.) And because the SVPA specifies that the defendant’s mental disorder must
predispose the person to the commission of criminal sexual acts to such an extent
that he becomes “a menace to the health and safety of others” (Welf. & Inst. Code,
§ 6600, subd. (c)), the majority reasons that a defendant’s difficulty in controlling
behavior must be serious. I agree with this construction of the SVPA.
But the jurors in an SVPA case, if instructed solely in the language of the
SVPA, will know nothing of the majority’s sophisticated exercise in statutory
construction, of the precedents on which it based its holding, or the implications
and conclusions it draws. The jurors may apply the literal language of the statute
and find a defendant to be a sexually violent predator without deciding whether
the defendant has serious difficulty in controlling his behavior. The jurors would
not be acting unreasonably in reaching such a result; as the majority points out,
state appellate courts are closely divided on whether statutory language similar to
California’s SVPA does nor does not include an implied requirement that the
defendant have serious difficulty in controlling behavior. (See maj. opn., ante, at
p. 28 & fn. 6.)
A recent Arizona Supreme Court decision addressed this problem. After
holding that due process requirements do not require a jury instruction on serious
2
difficulty in controlling behavior, the court went on to say: “Given the important
interests involved in SVP proceedings for both the state and the individual, no
question should arise as to whether the jury understands the importance of finding
that a mental disorder, rather than a voluntary decision to engage in repetitive
criminal behavior, renders a person dangerous within the meaning of the SVP
statute. To assure that jurors understand this requirement, we direct trial judges to
instruct juries as follows in future SVP proceedings: . . . An individual’s
dangerousness must be caused by a mental disorder which, in turn, causes the
person to have serious difficulty in controlling his or her behavior.” (In re Leon
G. (Ariz. 2002) 59 P.3d 779, 788.)
It would be prudent for California trial courts also to explain to jurors in
future cases that defendants cannot be found to be sexually violent predators
unless they have serious difficulty in controlling their behavior. Such an
instruction will ensure that jurors comply with Kansas v. Crane, supra, 534 U.S.
407, 413, and do not commit defendants as sexually violent predators without
determining that the defendants have serious difficulty in controlling their
behavior. There is a risk that the United States Supreme Court, resolving the
conflict in state court decisions noted by the majority (maj. opn., ante, at p. 28),
may hold that a jury instruction on controlling behavior is constitutionally
required; by anticipating this possibility and mandating such an instruction under
our judicial authority, we can ensure the validity of California SVPA
commitments.
KENNARD,
J.
3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Williams
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 98 Cal.App.4th 642
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S107266
Date Filed: August 21, 2003
__________________________________________________________________________________

Court:

Superior
County: San Bernardino
Judge: Phillip M. Morris

__________________________________________________________________________________

Attorneys for Appellant:

Gerald J. Miller, under appointment by the Supreme Court of Appeal, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Steven T. Oetting, Bradley A. Weinreb, Janelle Boustany and Felicity Senoski,
Deputy Attorneys General, for Plaintiff and Respondent.


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Counsel who argued in Supreme Court (not intended for publication with opinion):

Gerald J. Miller
P.O. Box 432
Agoura Hills, CA 91376-0432
(310) 557-2009

Felicity Senoski
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2001

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Opinion Information
Date:Docket Number:
Thu, 08/21/2003S107266

Parties
1Williams, Robert (Defendant and Appellant)
Represented by Gerald J. Miller
Attorney at Law
P. O. Box 432
Agoura Hills, CA

2The People (Plaintiff and Respondent)
Represented by Attorney General - San Diego Office
Bradley A. Weinreb, DAG
P.O. Box 85266
San Diego, CA

3The People (Plaintiff and Respondent)
Represented by Felicity Ann Senoski
Ofc Attorney General
110 W "A" St #1100
San Diego, CA


Disposition
Aug 21 2003Opinion: Affirmed

Dockets
Jun 3 2002Petition for review filed
  counsel for appellant Robert Williams
Jun 5 2002Record requested
 
Jun 25 2002Received Court of Appeal record
  1-doghouse
Jul 17 2002Petition for Review Granted (criminal case)
  Brown, J., was absent and did not participate. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
Aug 13 2002Counsel appointment order filed
  Gerald J. Miller is herby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before 30 days from the date of this order.
Aug 21 2002Filed:
  Letter from Bradley A. Weinreb, Deputy Attorney General, advising the court that representation of respondent has been transferred to him.
Sep 12 2002Opening brief on the merits filed
  appellant Robert Williams
Oct 4 2002Request for extension of time filed
  respondent requesting to Nov. 14, 2002 to file answer brief on the merits.
Oct 16 2002Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the respondent's answer brief on the merits is extended to and including Nov. 14, 2002.
Nov 14 2002Answer brief on the merits filed
  In San Diego by counsel for Respondent {Robert Williams}.
Dec 5 2002Reply brief filed (case fully briefed)
  by counsel for appellant Robert Williams - - 40K
Dec 11 2002Compensation awarded counsel
  Atty Miller
Dec 23 2002Received letter from:
  Bradley A. Weinreb, Deputy Attorney General, dated 12/19/2002, with attached recently filed authority filed 12/16/2002
Apr 30 2003Case ordered on calendar
  6-4-03, 9am, L.A.
May 16 2003Filed letter from:
  Attorney General dated 5/15/2003. Felicity Senoski, DAG to appear on behalf of respondent at oral argument on June 4, 2003.
May 27 2003Filed document entitled:
  Notice of Supplemental Authority from counsel for appellant. (40k)
Jun 4 2003Cause argued and submitted
 
Aug 21 2003Opinion filed: Judgment affirmed in full
  Majority Opinion by Baxter, J. joined by George C.J., Werdegar, Chin, Brown & Moreno, JJ. Concurring Opinion by Kennard, J.
Sep 24 2003Remittitur issued (criminal case)
 
Oct 2 2003Compensation awarded counsel
  Atty Miller
Oct 2 2003Filed:
  Receipt for remittitur from CA 4/3.
Jan 14 2004Compensation awarded counsel
  Atty Miller

Briefs
Sep 12 2002Opening brief on the merits filed
 
Nov 14 2002Answer brief on the merits filed
 
Dec 5 2002Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website