Supreme Court of California Justia
Docket No. S094627
People v. Roberge

Filed 2/6/03

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S094627
v.
) Ct.App.
4/1
D034189
JOSEPH ALBERT ROBERGE,
San
Diego
County
Defendant and Appellant.
Super. Ct. Nos. CR52925, CR77163

Under California’s Sexually Violent Predators Act (SVPA), convicted sex
offenders who have served their prison terms may be involuntarily committed to a
state mental hospital if found to be “sexually violent predator[s].” (Welf. & Inst.
Code, § 6604; further undesignated statutory references are to this code.) That
finding is made after a trial (§ 6603), based on proof beyond a reasonable doubt
that the person to be involuntarily committed meets the statutory definition of a
sexually violent predator (§ 6604).
The SVPA defines a sexually violent predator as someone 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” if released. (§ 6600, subd. (a)(1), italics added.) At issue here is the
meaning of the statutory term “likely” in section 6600, subdivision (a)’s definition
1


of a sexually violent predator. That definition applies at trial, where the trier of
fact decides whether the convicted sex offender, after serving the requisite prison
term, is to be involuntarily committed.
Recently, in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888
(Ghilotti), we construed a different provision of the SVPA pertaining to the initial
step in the involuntary commitment proceedings: the requirement that two mental
health evaluators agree that the convicted sex offender “is likely to engage in acts
of sexual violence without appropriate treatment and custody.” (§ 6601, subd. (d),
italics added.) That standard, we concluded, is met when “the person presents a
substantial danger, that is, a serious and well-founded risk, that he or she will
commit such crimes if free in the community.” (Ghilotti, supra, at p. 922, original
italics.) We now reach the same conclusion with respect to the word “likely” in
section 6600, subdivision (a).
I
In 1981, defendant was convicted of forcible rape (Pen. Code, § 261, subd.
(a)(2)) and sentenced to state prison for eight years. In 1985, while on parole for
the 1981 offense, defendant again committed forcible rape, for which he was in
1986 convicted and sentenced to a prison term of 18 years. Before defendant’s
eligibility for release on parole for the 1986 rape conviction, the San Diego
County District Attorney petitioned the superior court to have defendant
committed to the Department of Mental Health as a sexually violent predator.
(§ 6601, subd. (a).)
At the jury trial on that petition, the prosecution presented evidence on the
1981 and 1986 rape convictions: Both involved defendant’s violent assaults on
women who were strangers to him. In the 1981 incident, defendant lured the
victim to his home and sexually assaulted her. Four months after his release on
2
parole in 1985, defendant attacked his second victim, whom he beat, bit, and
sexually assaulted.
Prosecution witness Mary Miccio-Fonseca, a clinical psychologist,
diagnosed defendant as suffering from a “paraphilia” or a “paraphiliac disorder,”
which she described as an incurable sexual disorder distinguished by sexual
arousal from perverse or unorthodox encounters. Initially, Dr. Miccio-Fonseca
described the sexual disorder as paraphilia NOS (Not Otherwise Specified) but she
later changed her diagnosis to sexual sadism.1 Defendant’s score of 4 on the
Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR), a clinical tool
for evaluating the probability of a sexual offender’s reoffending, indicated a 32.7
percent likelihood that defendant would commit another violent sexual offense
within five years and a 48.6 percent likelihood of doing so within 10 years.
Another expert witness for the prosecution, clinical psychologist Charles
Jackson, assessed defendant as having two mental disorders: paraphilia NOS
manifested by sex with nonconsenting individuals, and antisocial personality
disorder. In Dr. Jackson’s opinion, defendant continued to pose a danger to
others, which was atypical of sex offenders generally, because the risk of
reoffending tends to decrease as the person grows older.

1
The Diagnostic and Statistical Manual of the American Psychiatric
Association, Fourth Edition, 1998 (“DSM IV”) lists paraphilias as sexual
dysfunctions and describes their general characteristics: “[R]ecurrent, intense
sexually arousing fantasies, sexual urges, or behaviors generally involving 1)
nonhuman objects, 2) the suffering or humiliation of oneself or one’s partner, or 3)
children or other nonconsenting persons, that occur over a period of at least 6
months” which “cause clinically significant distress or impairment in social,
occupational or other important areas of functioning.” (DSM IV, pp. 522-523.)
“Paraphiliac imagery may be acted out with a nonconsenting partner in a way that
may be injurious to the partner (as in Sexual Sadism or Pedophilia)” rendering
“[t]he individual . . . subject to arrest and incarceration.” (DSM IV, p. 523.) The
DSM IV lists nine categories of paraphilia, including the two diagnosed here:
sexual sadism and paraphilia NOS, the residual category. (DSM IV, p. 523.)
3


The defense presented the expert testimony of two clinical psychologists,
Drs. Theodore Donaldson and Ricardo Weinstein. Both disagreed with the expert
testimony presented by the prosecution that defendant suffered from a paraphilia.
Specifically, the defense psychologists did not consider defendant to be a sexual
sadist, because his primary gratification in forcible sex was sexual rather than the
infliction of pain on his victims. Thus, in their view, defendant’s sex offenses
were not a product of a mental illness (a requisite for involuntary commitment
under the SVPA). According to Dr. Donaldson, the likelihood of defendant’s
committing another sexually violent offense was “better than 50 percent
probability,” but his doing so would be entirely volitional.
Defendant sought a jury instruction that would have substituted the phrase
“more likely than not” for the word “likely” in the statutory definition of a
sexually violent predator (§ 6600, subd. (a)). The trial court denied the request. It
instructed the jury in accordance with the statute, and defined a sexual predator as
a person who “has been convicted of a sexually violent offense against two or
more victims for which he or she received a determinate sentence 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” if released. (§ 6600, subd. (a), italics added.) The jury found defendant
to be a sexually violent predator, and the trial court ordered him committed to a
state mental hospital. The Court of Appeal affirmed.
We granted review to decide the meaning of the term “likely” as it appears
in section 6600, subdivision (a), which defines a sexually violent predator.
4
II
We begin with a brief overview of the SVPA, which the Legislature
enacted on October 11, 1995, and which became effective on January 1, 1996.
(Stats. 1995, chs. 762 & 763.) The SVPA provides for “the involuntary civil
commitment of certain offenders, following the completion of their prison terms,
who are found to be [sexually violent predators] because they have previously
been convicted of sexually violent crimes and currently suffer diagnosed mental
disorders which make them dangerous in that they are likely to engage in sexually
violent criminal behavior.” (Ghilotti, supra, 27 Cal.4th at p. 902.) The civil
commitment is for two years, which may be renewed if there is no improvement in
the defendant’s mental condition. (§ 6605, subd. (e); People v. Torres (2001) 25
Cal.4th 680, 683.)
The process of determining whether a convicted sex offender can be
involuntarily committed under the SVPA as a sexually violent predator “ ‘takes
place in several stages, both administrative and judicial.’ ” (Ghilotti, supra, 27
Cal.4th at p. 903, quoting Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145
(Hubbart).) “ ‘Generally, the Department of Corrections screens inmates in its
custody who are “serving a determinate prison sentence or whose parole has been
revoked” at least six months before their scheduled date of release from prison.
(§ 6601, subd. (a).) . . . If officials find the inmate is likely to be [a sexually
violent predator], he is referred . . . for a “full evaluation” as to whether he meets
the criteria in section 6600. (§ 6601, subd. (b).)’ ” (Ibid., italics added.)
Full evaluation, as described in section 6601, subdivision (d) is by “ ‘two
practicing psychiatrists or psychologists, or one practicing psychiatrist and one
practicing psychologist, designated by the Director [of the Department of Mental
Health]. If both evaluators concur that the person has a diagnosed mental disorder
so that he or she is likely to engage in acts of sexual violence without appropriate
5
treatment and custody, the Director . . . shall forward a request for a [commitment]
petition to the county . . . where the offender was convicted of the crime for which
he is currently imprisoned.’ ” (Ghilotti, supra, 27 Cal.4th at p. 903, quoting
statute.) If the county’s legal counsel agrees with the request and files a petition
for commitment in superior court, that filing “ ‘triggers a new round of
proceedings under the Act.’ ” (Id. at p. 904, quoting Hubbart, supra, 19 Cal.4th at
p. 1146.)
First, there is a hearing before the superior court to decide “ ‘whether there
is “probable cause” to believe the person named in the petition is likely to engage
in sexually violent predatory criminal behavior upon release.’ ” (Ghilotti, supra,
27 Cal.4th at p. 904, quoting Hubbart, supra, 19 Cal.4th at p. 1146; see § 6602.)
If the court decides such probable cause exists, the matter proceeds to trial, at
which either party can demand that trial be by jury. (§ 6603, subds. (a) & (b).)
Proof that the person qualifies as a sexually violent predator must be beyond a
reasonable doubt (§ 6604), and a jury’s verdict must be unanimous (§ 6603, subd.
(d)). Moreover, the trier of fact must determine not only that the defendant is
likely [to] engage in sexually violent behavior” (§ 6600, subd. (a)), but also
whether that behavior would be “directed ‘toward a stranger, a person of casual
acquaintance with whom no substantial relationship exists, or an individual with
whom a relationship has been established or promoted for the primary purpose of
victimization.’ (§ 6600, subd. (e).)” (People v. Hurtado (2002) 28 Cal.4th 1179,
1182.)
III
We now turn to the issue on which we granted review in this case: The
meaning of “likely [to] engage in sexually violent criminal behavior” as used in
the SVPA’s section 6600, subdivision (a), describing the findings the trier of fact
must make at trial to determine whether the convicted sex offender, after serving
6
the requisite prison term, should be committed to a state mental hospital as a
sexually violent predator.
While this case was pending before us, we granted review in Ghilotti,
supra, 27 Cal.4th 888, which we decided on an expedited basis. There, we
resolved several issues pertaining to the SVPA, including the meaning of the word
“likely” in section 6601, subdivision (d). That term is also at issue here, albeit in a
different provision of the SVPA, namely section 6600, subdivision (a).
Section 6601, subdivision (d), at issue in Ghilotti, pertains to the evaluation
of the convicted sex offender’s mental condition by two practicing psychiatrists or
psychologists, the first phase of the SVPA’s involuntary commitment proceedings.
(Ghilotti, supra, 27 Cal.4th at pp. 915-924.) The phrase we construed there was
likely to engage in acts of sexual violence without appropriate treatment and
custody.” (§ 6601, subd. (d), italics added.)
We noted that several dictionaries and modern legal references had given
the word “likely” a variety of meanings flexibly covering “a range of expectability
from possible to probable.” (Ghilotti, supra, 27 Cal.4th at p. 916.) We further
observed that as used in section 6601, subdivision (d), the term had to be “given a
meaning consistent with the [SVPA’s] clear overall purpose,” which is “to protect
the public from that limited group of persons who were previously convicted and
imprisoned for violent sex offenses, and whose terms of incarceration have ended,
but whose current mental disorders so impair their ability to control their violent
sexual impulses that they do in fact present a high risk of reoffense if they are not
treated in a confined setting.” (Ghilotti, supra, 27 Cal.4th at p. 921, original
italics.)
Thus, we concluded in Ghilotti: “[T]he phrase ‘likely to engage in acts of
sexual violence’ (italics added), as used in section 6601, subdivision (d), connotes
much more than the mere possibility that the person will reoffend as a result of a
7
predisposing mental disorder that seriously impairs volitional control. [But] the
statute does not require a precise determination that the chance of reoffense is
better than even. Instead, an evaluator applying this standard must conclude that
the person is ‘likely’ to reoffend if, because of a current mental disorder which
makes it difficult or impossible to restrain violent sexual behavior, the person
presents a substantial danger, that is, a serious and well-founded risk, that he or
she will commit such crimes if free in the community.” (Ghilotti, supra, 27
Cal.4th at p. 922, original italics.)
At issue here is the final stage of the SVPA’s commitment process, a trial
to determine whether the convicted sex offender, after serving the requisite prison
term, is to be involuntarily committed as a sexually violent predator. At that trial,
the prosecution must show beyond a reasonable doubt that it is “likely that [the
person] will engage in sexually violent criminal behavior” if released. (§ 6600,
subd. (a), italics added.)
In the trial court, in the Court of Appeal, and in his opening brief in this
court, defendant argued that a sexually violent predator, as defined in subdivision
(a) of section 6600, is one whose likelihood of reoffending is “more likely than
not.” In Ghilotti, supra, 27 Cal.4th 888, we rejected that standard in construing
the meaning of “likely” in subdivision (d) of section 6601, which pertains to a
mental health evaluation at the initial phase of the involuntary commitment
process. After Ghilotti was filed, we asked the parties in this case for
supplemental briefs regarding Ghilotti’s effect here. After considering those
briefs, we conclude that the phrase “likely [to] engage in sexually violent
behavior” in section 6600, subdivision (a), should be given the same meaning as
the phrase “likely to engage in acts of sexual violence without appropriate
treatment and custody” in section 6601, subdivision (d), the provision at issue in
Ghilotti. In so concluding, we apply the general rule of statutory construction that
8
“ ‘ “ ‘identical words’ ” used in different parts of the same act are intended to have
the same meaning.’ ” (Department of Revenue of Ore. v. ACF Industries, Inc.
(1994) 510 U.S. 332, 342; People v. Nguyen (1999) 21 Cal.4th 197, 205.)
Our conclusion here is also consistent with our recent decision in Cooley v.
Superior Court (2002) 29 Cal.4th 228 (Cooley). At issue in Cooley was the
SVPA’s section 6602, subdivision (a), which pertains to a hearing in superior
court to determine whether there is probable cause “to believe the person named in
the petition is likely to engage in sexually violent predatory criminal behavior
upon release.” (Ibid., italics added.) Relying on Ghilotti, supra, 27 Cal.4th 888,
Cooley construed that statutory phrase as “probable cause to believe that a
potential [sexually violent predator] presents a serious and well-founded risk of
committing sexually violent criminal acts that will be of a predatory nature.”
(Cooley, supra, at p. 256.) As Cooley pointed out, nothing in the SVPA or its
legislative history indicates that the Legislature intended “a different definition of
‘likely’ ” to apply at different stages of the SVPA commitment process. (Cooley,
supra, at p. 255.)
Thus, in a trio of recent cases, we have given the same meaning to the word
“likely” in three different provisions of the SVPA. In Ghilotti, supra, 27 Cal.4th
888, we construed section 6601, subdivision (d), pertaining to the first stage of the
SVPA’s involuntary commitment process at which two mental health experts
evaluate the person to be committed. In Cooley, supra, 29 Cal.4th 228, we
construed section 6602, subdivision (a), pertaining to the second stage of the
involuntary commitment process, involving a probable cause hearing. And in this
case, we construe section 6600, subdivision (a), defining a sexually violent
predator; that provision is relevant to the last stage of the commitment process, a
trial to determine whether the person is to be committed to a state mental
institution as a sexually violent predator.
9
To summarize, under section 6600, subdivision (a), which is at issue here, a
person is “likely [to] engage in sexually violent criminal behavior” if at trial the
person is found to present a substantial danger, that is, a serious and well-founded
risk, of committing such crimes if released from custody.2
IV
In his supplemental brief, defendant argues that at his 1999 SVPA trial, the
trial court should, on its own initiative, have instructed the jury that the term
“likely” as used in the SVPA’s statutory definition of sexually violent predator
meant that defendant presented a substantial danger, that is, a serious and well-
founded risk, of committing sexually violent predatory crimes if released from
custody.
The rules governing a trial court’s obligation to give jury instructions
without request by either party are well established. “Even in the absence of a
request, a trial court must instruct on general principles of law that are . . .
necessary to the jury’s understanding of the case.” (People v. Mayfield (1997) 14
Cal.4th 668, 773; People v. Prettyman (1996) 14 Cal.4th 248, 264.) That
obligation comes into play when a statutory term “does not have a plain,
unambiguous meaning,” has a “particular and restricted meaning” (People v.
Mayfield, supra, at p. 773), or has a technical meaning peculiar to the law or an
area of law (see People v. Howard (1988) 44 Cal.3d 375, 408).
As is clear from our recent decision in Ghilotti, supra, 27 Cal.4th 888, the
meaning of the SVPA’s term “likely” is neither plain nor unambiguous. As we
pointed out in Ghilotti, “modern legal references in particular suggest that ‘likely’

2
Evidence of the person’s amenability to voluntary treatment, if any is
presented, is relevant to the ultimate determination whether the person is likely to
engage in sexually violent predatory crimes if released from custody. (See
Cooley, supra, 29 Cal.4th at p. 256; Ghilotti, supra, 27 Cal.4th at p. 927.)
10


may be used flexibly to cover a range of expectability from possible to probable,”
and include as its synonyms “ ‘conceivable,’ ” “ ‘potential,’ ” and “ ‘inclined.’ ”
(Id. at pp. 916-917.) Not all of these dictionary definitions of “likely” are
consistent with the particular and technical meaning the SVPA assigns that term:
the person charged as a sexually violent predator poses a substantial danger, that
is, a serious and well-founded risk of committing a sexually violent predatory
crime if released from custody. Accordingly, in an SVPA trial the court must
instruct the jury on this meaning even without a request by any party.
This case, however, was tried before our recent decision in Ghilotti, supra,
27 Cal.4th 888, clarified the unique meaning that the SVPA assigns to the term
“likely.” The trial court here instructed the jury on the statutory definition of
sexually violent predator, which, as relevant here, requires a finding that it is
likely [the person] will engage in sexually violent criminal behavior” if released.
(§ 6600, subd. (a), italics added.) On the facts of this case, defendant cannot
complain that the jury found him to be a sexually violent predator while
concluding that his risk of reoffense if released from custody was less than
“substantial” or “serious and well-founded,” the standard this court first articulated
in Ghilotti. All of the evidence presented at defendant’s SVPA trial suggested that
the risk of his reoffending was substantial as well as serious and well-founded.
Even defendant’s own expert, Dr. Donaldson, while disputing the prosecution’s
evidence that defendant’s sexually predatory behavior resulted from mental
illness, estimated defendant’s likelihood of committing another sexually violent
offense at “better than 50 percent probability.” On this record, we can easily
conclude, beyond a reasonable doubt (see People v. Hurtado, supra, 28 Cal.4th at
p. 1194), that defendant suffered no possible prejudice from the challenged jury
instruction.
11
DISPOSITION
The judgment of the Court of Appeal is affirmed.
KENNARD,
J.
WE CONCUR:

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

12


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Roberge
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 85 Cal.App.4th 696
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S094627
Date Filed: February 6, 2003
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: David M. Gill

__________________________________________________________________________________

Attorneys for Appellant:

David L. Polsky, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont, Janelle M. Boustany, Laura
Whitcomb Halgren, Robert M. Foster and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and
Respondent.


1

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

David L. Polsky
1119 S. Mission Rd., No. 187
Fallbrook, CA 92028
(760) 451-1773

Bradley A. Weinreb
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2290

2


Opinion Information
Date:Docket Number:
Thu, 02/06/2003S094627

Parties
1Roberge, Joseph Albert (Defendant and Appellant)
Represented by David L. Polsky
1119 S. Mission Rd., No. 187
1119 S. Mission Rd., No. 187
Fallbrook, CA

2The People (Plaintiff and Respondent)
Represented by Bradley A. Weinreb
Deputy Attorney General
110 West "A" Street., Suite 1100
San Diego, CA

3The People (Plaintiff and Respondent)
Represented by Attorney General - San Diego Office
P.O. Box 85266
P.O. Box 85266
San Diego, CA


Disposition
Feb 6 2003Opinion: Affirmed

Dockets
Jan 23 2001Petition for review filed
  counsel for applt / record requested.
Jan 24 2001Received Court of Appeal record
  one doghouse
Mar 14 2001Time Extended to grant or deny Petition for Review
  to and including April 23, 2001
Mar 28 2001Petition for Review Granted (criminal case)
  Votes: George C.J., Mosk, Kennard & Werdegar JJ. Baxter, Chin & Brown, JJ., did not participate.
Apr 17 2001Counsel appointment order filed
  David L. Polsky for appellant (Roberge).
Apr 26 2001Opening brief on the merits filed
  by attorney for appellant (Roberge).
May 23 2001Application for Extension of Time filed
  Respondent (AG) asking to June 25, 2001 to file answer brief on the merits. (Received in San Diego)
May 31 2001Extension of Time application Granted
  to and including June 25, 2001 for respondent to file the answer brief on the merits.
Jun 20 2001Application for Extension of Time filed
  Respondent asking to July 5, 2001 to file answer brief on the merits. (recv'd in San Diego) **OK to grant. Order being prepared***
Jun 22 2001Received:
  errata notice re opening brief on the merits from appellant (Roberge). Providing page 13 that was omitted from brief.
Jun 26 2001Extension of Time application Granted
  to and including July 5, 2001 for respondent to file answer brief on the merits.
Jul 2 2001Answer Brief on the Merits filed with permission
  by respondent (AG). Filed in San Diego. White cover provided in error.
Jul 24 2001Application to file over-length brief filed
  Reply brief on the merits from petitioner. (4 pages over limit)
Jul 25 2001Reply Brief filed with permission(case fully briefed)
  by counsel for petitioner. **40n**
Oct 10 2001Compensation awarded counsel
  Atty Polsky
Jun 26 2002Letter sent to:
  counsel requesting supplemental briefs regarding the recent decision in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888. Counsel for each party should file a supplemental brief on or before July 17, 2002. Each party may file a responsive brief on or before July 26, 2002.
Jul 17 2002Supplemental brief filed
  by respondent with permission. (briefs submitted with yellow covers in error)
Jul 18 2002Supplemental brief filed
  by counsel for petitioner. (timely per rule 40k/certified)
Jul 25 2002Filed:
  Petitioners response to respondent's supplemental brief filed on July 17, 2002.
Oct 31 2002Case ordered on calendar
  12-3-02, 2pm, L.A.
Dec 3 2002Cause argued and submitted
 
Dec 10 2002Received document entitled:
  Application for leave to file supplemental brief from counsel for appellant.
Dec 19 2002Order filed
  Appellant's application for leave to file supplemental letter brief is hereby denied.
Feb 6 2003Opinion filed: Judgment affirmed in full
  Majority Opinion by Kennard, J. George C.J., Baxter, Werdegar, Chin, Brown & Moreno, JJ.
Feb 21 2003Rehearing petition filed
  by counsel for appellant (Joseph Albert Roberge).
Feb 25 2003Order filed
  The time for granting or denying rehearing in the above-entitled case is herby extended to May 8, 2003, or the date upon which rehearing is either granted or denied, whichever comes first.
Mar 11 2003Received document entitled:
  Supplemental Proof of Service - re ptn for rehearing from counsel for appellant.
Apr 9 2003Rehearing denied
 
Apr 9 2003Remittitur issued (criminal case)
  CA4/1
Apr 17 2003Received document entitled:
  Receipt for remittitur from CA4/1.
Jul 30 2003Compensation awarded counsel
  Atty Polsky

Briefs
Apr 26 2001Opening brief on the merits filed
 
Jul 2 2001Answer Brief on the Merits filed with permission
 
Jul 25 2001Reply Brief filed with permission(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