Stanford Law School - Robert Crown Law Library

Filed 2/24/05

IN THE SUPREME COURT OF CALIFORNIA

In re HOWARD N., a Person Coming
Under the Juvenile Court Law.
——————————————————)
THE PEOPLE,
Plaintiff and Respondent,
S123722
v.
) Ct.App.
5
F043006
HOWARD N.,
Kern
County
Defendant and Appellant.
Super. Ct. No. JW081822-03

Welfare and Institutions Code1 section 1800 et seq. delineates procedures
governing the extended detention of dangerous persons. In particular, it provides
for the civil commitment of a person at the time he would otherwise be discharged
by statute from a Youth Authority commitment. We consider whether this
extended detention scheme violates due process because it does not expressly
require a finding that the person’s mental deficiency, disorder, or abnormality
causes serious difficulty in controlling behavior.2

1
All further undesignated statutory references are to this code.
2
Neither party addresses the last prong of the issue as stated in the petition
for review, i.e., whether section 1800 et seq. should require a finding that “the
person’s deficiency, disorder, or abnormality causes serious difficulty controlling
behavior, resulting in a well-founded risk of reoffense.” This opinion therefore
does not address that issue.
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We conclude the extended detention scheme should be interpreted to contain
such a requirement in order to preserve its constitutionality. However, because the
jury was not instructed on this requirement, and there was little evidence
defendant’s mental abnormality caused him serious difficulty controlling his
dangerous behavior, we further conclude defendant is entitled to a new
commitment proceeding. We therefore reverse the Court of Appeal’s judgment,
which reversed the trial court’s judgment without remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Howard N. was committed to the Youth Authority after he
molested a three-and-a-half-year-old boy. His confinement was set to expire on
February 19, 2003, which was defendant’s 21st birthday. Pursuant to section
1800, the Kern County District Attorney’s Office filed a petition to extend
defendant’s confinement.
At trial, three female correctional officers testified regarding four incidents,
between June and November 2002, in which defendant was observed masturbating
in his room. On three of these occasions, defendant shut off the light in his room
as soon as he noticed the officer observing him. On the other occasion, the
incident lasted approximately two to three minutes, and there was no testimony
regarding whether defendant indicated any awareness the officer was observing
him.
Clinical Psychologist Deborah Leong was a counselor for defendant during
his confinement. Defendant told her that during one incident described above, he
was “having fantasies” that the female correctional officer “would come down
from the tower and would get aggressive with him and that he would then get
aggressive with her and pull her into his room and force her to have sex with
him. . . . He also was fantasizing that she would eventually like it.” “He also
admitted he had similar fantasies about” one of the other female correctional
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officers who had observed him. He said “he began having rape fantasies when he
was about 18 at another facility. . . . He said that he would use these fantasies to
help calm his anger through fantasies of force and making her like it.”
On January 29, 2003, during a sex offender group meeting led by Dr. Leong
and Youth Correctional Counselor Williamson, defendant was confronted about a
prior incident in which Ms. Williamson had told defendant to go to his room. “He
took an aggressive stance. He told her F-U [sic] and some other things, gave her
the finger. And he began masturbating that finger with his other hand. [Ms.
Williamson] told him that she felt quite intimidated and kind of threatened to be
standing near him at the time.”
With respect to his outbursts of anger, defendant “expressed some concern
about his outbursts and his ability to control it. He felt that it could bring him back
to jail.” Defendant told Dr. Leong at one point he became “so angry at staff for
not coming to speak with him that he began hitting his arm against the wall and he
broke his arm.” He also told Dr. Leong he had previously choked another child
and banged the child’s head until he was pulled off. Apparently as a result, he said
he was placed in a psychiatric institution. “He also talked about other instances of
firing up his anger . . . and being violent . . . [and] about enjoying being angry and
rageful.”
Near defendant’s release date, a book and a poster, neither of which was
made available at trial, were found in his room. Defendant was given the book,
entitled Forcible Rape, by staff, and it was apparently a staff library or office book
intended for training purposes for the youth correctional counselors. The poster
was of a clothed woman standing above two men. The men did not have shirts on
and were tied together. Dr. Leong opined, “[i]t definitely had features of
sadomasochism.”
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Clinical Psychologist Deborah Morris conducted a psychological evaluation
of defendant in November 2002. She reviewed his records, and in addition to a
number of the incidents above recounted that on November 17, 2001, defendant
had “been documented for choking another ward on the unit.” On May 11, 2001,
he “received a behavior report for leering at a female staff” member.
Dr. Morris also performed certain psychological tests. Consistent with
earlier evaluations, defendant was in an elevated range “in the areas of anxiety and
dependent personality disorder.” He also “scored an elevated range on . . . the
scale that measures antisocial personality traits.” He scored high on the
psychosocial sex inventory, “indicating that he generally denies having . . . deviant
sex interests.” Defendant also tends to see “other people as being against him and
feels that he is the victim in most circumstances.”
Defendant “scored in the positive direction on two items on the
sadomasochistic scale.” “[H]e answered positive to the first statement I’ve used
leather whips and handcuffs or sharp things during sexual encounters and the
second was there had been quite a few times I daydream about how pleasurable it
would be to hurt someone during a sexual encounter.” On the “psychopathy
checklist,” defendant scored 25. “A score of 30 is indicative of a psychopath,”
and “an average score for an adult male prisoner is 23.”
Dr. Morris discussed defendant’s committing offense with him, and found
significant his description of walking into the room where the three-year-old boy
was sleeping, spanking the child, and “ ‘wanting to wipe the look of innocence off
his face.’ ” “It relates to his behavior [in 2002] because he’s demonstrating a
pattern of . . . sadistic qualities and traits in his behavior and his expressions of
having thoughts . . . and fantasies of raping female staff at the youth authority.”
Dr. Morris observed that in June 2002, a prior section 1800 evaluation of
defendant had been performed by Dr. Minkowski. “[I]n that evaluation he
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expressed strong concerns about [defendant’s] level of dangerousness,” noting
defendant “tended to pair anger and sexuality in a perverse fusion,” and “had
elements of hostility and sadism. However, at that time he felt there was a
problem with documenting dangerousness because . . . [defendant] hadn’t been
acting out in a sexual way. This was right before we saw the incidents of the
masturbation and the fantasies.”
Dr. Morris diagnosed defendant with “Paraphilia Not Otherwise Specified,”
which she stated was an abnormal mental condition for a person to have. She
explained, “That diagnosis is given when the pattern of behavior doesn’t fit into a
specific category that’s already established.” Thus, while defendant could be
diagnosed as having pedophilia because he molested a toddler, “I felt that wasn’t a
very accurate or descriptive diagnosis because the pattern that is consistent
throughout time is not only specific to children. It . . . has more of a sadistic
quality to it. And so it would be more – more characterized by the diagnosis of
sadism, which I also did not give him because . . . these traits and qualities are
emerging right now, and I wanted to be conservative in my diagnosis.” Dr. Morris
observed, “I gave him that diagnosis because he did fit in a couple of different
areas, pedophilia and sexual sadism; however, it’s a very serious thing to diagnose
somebody with sexual sadism.” Dr. Morris responded affirmatively when asked
whether “a person could progress to a point where they could stop their behavior.”
She noted that while defendant was “disclosing a lot of very disturbing things . . .
this may be the first step in his treatment . . . and that he could possibly, therefore,
benefit from further treatment” provided by the Youth Authority.
Dr. Morris drew a connection between her diagnosis and defendant’s
physical dangerousness. “[B]ecause he continued to act out in a sexual way on the
unit, victimizing the female officers, . . . he still posed a physical danger[] to the
community.” Dr. Morris opined that “his recent behaviors of exposing himself
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along with the self-report of violent rape fantasies suggest[] that [defendant], due
to an untreated sexual disorder, continues to present an imminent danger to his
community.”
The jury found defendant was “physically dangerous to the public because of
a mental or physical deficiency, disorder or abnormality.” The Court of Appeal
reversed without remanding for a new commitment hearing, concluding the
extended detention scheme was unconstitutional. It held that while the scheme
required the jury to find “that the potential committee must have a mental
deficiency, disorder, or abnormality that renders the person dangerous,” it violated
due process by not also requiring the jury to “determine whether the mental illness
or abnormality causes the potential committee to have serious difficulty
controlling his or her behavior and whether this loss of control results in a serious
and well-founded risk of reoffense.” The court further concluded the error was not
harmless in this case because the jury “was not provided with the necessary
information to impose a valid civil commitment.” Because the court reversed on
due process grounds, it did not reach defendant’s equal protection claim.
We granted the Attorney General’s petition for review.
II. DISCUSSION
A. Background
1. Relevant Statutory Provisions
Enacted in 1963, the extended detention scheme in section 1800 et seq.
provides for the civil commitment of individuals under the control of the Youth
Authority. We have observed that the scheme involves neither a juvenile
proceeding nor an extension of a prior juvenile court proceeding. (In re Gary W.
(1971) 5 Cal.3d 296, 305 (Gary W.).) As relevant here, if the Department of the
Youth Authority determines that discharge of a person from the control of the
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department at the time otherwise required by other statutes “would be physically
dangerous to the public because of the person’s mental or physical deficiency,
disorder, or abnormality,” the department shall request that a petition be filed
seeking continued commitment of the person. (§ 1800.)3 The “petition shall be
accompanied by a written statement of the facts upon which the department bases
its opinion that discharge from control of the department at the time stated would
be physically dangerous to the public.”4 (§ 1800.)
If the court determines that the petition on its face supports a finding of
probable cause, the court orders a probable cause hearing. (§ 1801.) At this
hearing, the court determines whether there is “probable cause to believe that
discharge of the person would be physically dangerous to the public because of his
or her mental or physical deficiency, disorder, or abnormality.” (Ibid.) If
probable cause is found, the person is entitled to a jury trial. (§§ 1801, subd. (b),
1801.5.) At trial, the jury or other trier of fact is required to answer the following
statutory question: “Is the person physically dangerous to the public because of
his or her mental or physical deficiency, disorder, or abnormality?”5 (§ 1801.5.)
The person is entitled to “all rights guaranteed under the federal and state

3
Sections 1800 and 1802 were amended in 2003. The changes do not affect
our analysis of the issue here, and we therefore refer to these statutes in their
current language.
4
In 2003, the Legislature added section 1800.5, which provides for
circumstances in which “the department has not made a request to the prosecuting
attorney pursuant to Section 1800” and the Youth Authority Board “finds that the
ward would be physically dangerous to the public because of the ward’s mental or
physical deficiency, disorder, or abnormality.”
5
There has been no allegation or evidence in this case defendant suffers from
a “physical,” as opposed to a “mental,” “deficiency, disorder, or abnormality,” and
we therefore do not discuss further this aspect of the statutory scheme.
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constitutions in criminal proceedings.” (Ibid.) A reasonable doubt standard of
proof applies, and any jury verdict must be unanimous. (Ibid.)
If the trier of fact finds the defendant satisfies the statutory criteria, he may
be committed for up to two years. (§ 1802.) Following the same procedures
outlined above, the defendant may be recommitted for such two-year periods
indefinitely. (Ibid.) “These applications may be repeated at intervals as often as
in the opinion of the authority may be necessary for the protection of the public,
except that the department shall have the power, in order to protect other persons
in the custody of the department to transfer the custody of any person over 21
years of age to the Director of Corrections for placement in the appropriate
institution.” (Ibid.)
In 1995, California enacted a civil commitment scheme for adults
“immediately upon their release from prison” entitled the Sexually Violent
Predators Act (SVPA). (§ 6600 et seq.; Stats. 1995, ch. 763, § 3, p. 5922; Hubbart
v. Superior Court (1999) 19 Cal.4th 1138, 1142, 1144 (Hubbart).) An offender is
subject to commitment if certain conditions are met, including that the person 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 “ ‘diagnosed 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.”
(§ 6600, subd. (c).)
In addition, the mentally disordered offender law (MDO) is a civil
commitment scheme that applies to certain offenders during or after parole. (Pen.
Code, § 2960 et seq.; In re Qawi (2004) 32 Cal.4th 1, 23.) An offender is subject
to commitment under the MDO if certain conditions are met. One condition is
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that the offender has a “severe mental disorder that is not in remission or cannot be
kept in remission without treatment.” (Pen. Code, § 2962, subd. (a).) “ ‘Severe
mental disorder’ ” is defined as “an illness or disease or condition that
substantially impairs the person’s thought, perception of reality, emotional
process, or judgment; or which grossly impairs behavior; or that demonstrates
evidence of an acute brain syndrome for which prompt remission, in the absence
of treatment, is unlikely. The term ‘severe mental disorder’ . . . does not include a
personality or adjustment disorder, epilepsy, mental retardation or other
developmental disabilities, or addiction to or abuse of intoxicating substances.”
(Ibid.)
2. Due Process Requirements for Civil Commitment
The high court has repeatedly “recognized that civil commitment for any
purpose constitutes a significant deprivation of liberty that requires due process
protection.” (Addington v. Texas (1979) 441 U.S. 418, 425.) “Moreover, it is
indisputable that involuntary commitment to a [psychiatric] hospital after a finding
of probable dangerousness to self or others can engender adverse social
consequences to the individual. Whether we label this phenomena ‘stigma’ or
choose to call it something else is less important than that we recognize that it can
occur and that it can have a very significant impact on the individual.” (Id. at
pp. 425-426.)
Nevertheless, “[s]tates 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.” (Kansas v. Hendricks
(1997) 521 U.S. 346, 357 (Hendricks).) The high court has “consistently upheld
such involuntary commitment statutes provided the confinement takes place
pursuant to proper procedures and evidentiary standards. [Citations.] It thus
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cannot be said that the involuntary civil confinement of a limited subclass of
dangerous persons is contrary to our understanding of ordered liberty.” (Ibid.)
A recent series of cases both in the United State Supreme Court and in this
court has clarified that to be involuntarily civilly committed as a sexually violent
predator, the person must, as a result of mental illness, have serious difficulty
controlling his dangerous behavior. (Kansas v. Crane (2002) 534 U.S. 407, 412-
413 (Crane); Hendricks, supra, 521 U.S. at pp. 358, 360; People v. Williams
(2003) 31 Cal.4th 757, 759, 772, 774 (Williams); Hubbart, supra, 19 Cal.4th at
pp. 1156, 1158.) Thus, in Hendricks, the high court stated, “A finding of
dangerousness, standing alone, is ordinarily not a sufficient ground upon which to
justify indefinite involuntary commitment. 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.’ See, e.g.,
Heller [v. Doe (1993) 509 U.S. 312,] 314-315 (Kentucky statute permitting
commitment of ‘mentally retarded’ or ‘mentally ill’ and dangerous individual);
Allen v. Illinois, 478 U.S. 364, 366 (1986) (Illinois statute permitting commitment
of ‘mentally ill’ and dangerous individual); Minnesota ex rel. Pearson v. Probate
Court of Ramsey Cty., 309 U.S. 270, 271-272 (1940) (Minnesota statute permitting
commitment of dangerous individual with ‘psychopathic personality’). These
added statutory requirements serve to limit involuntary civil confinement 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
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
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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, at p. 358.)
“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 and Hendricks’ condition doubtless
satisfies those criteria. . . . [His] 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.” (Id. at p. 360.)
In Crane, supra, 534 U.S. 407, the high court revisited the Kansas Act,
noting that Hendricks did not set forth any requirement of total or complete lack of
control. (Id. at p. 411.) The court also noted, “We do not agree with the State,
however, insofar as it seeks to claim that the Constitution permits commitment of
the type of dangerous sexual offender considered in Hendricks without any lack-
of-control determination. [Citation.] Hendricks underscored the constitutional
importance of distinguishing a dangerous sexual offender subject to civil
commitment ‘from other dangerous persons who are perhaps more properly dealt
with exclusively through criminal proceedings.’ [Citation.] That distinction is
necessary lest ‘civil commitment’ become a ‘mechanism for retribution or general
deterrence’—functions properly those of criminal law, not civil commitment.
[Citations.] The presence of what the ‘psychiatric profession itself classifie[d]
. . . as a serious mental disorder’ helped to make that distinction in Hendricks.
And a critical distinguishing feature of that ‘serious . . . disorder’ there consisted
of a special and serious lack of ability to control behavior. [¶] In recognizing that
fact, we did not give to the phrase ‘lack of control’ 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
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precision. It is enough to say that there must be proof of serious difficulty in
controlling behavior. And this, when viewed in light of such features of the case
as the nature of the psychiatric diagnosis, and the severity of the mental
abnormality itself, must be sufficient 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.” (Crane, supra, 534 U.S. at pp. 412-413.)
In Hubbart, supra, 19 Cal.4th 1138, we relied on Hendricks extensively in
rejecting the defendant’s constitutional challenges to the California SVPA. As
relevant here, we stated, “Much like the Kansas law at issue in Hendricks, our
statute defines an SVP 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.’ (§ 6600, subd. (a).) 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. [Citation.] This formula
permissibly circumscribes the class of persons eligible for commitment under the
Act.” (Hubbart, at p. 1158, fn. omitted; see ibid. [“due process requires an
inability to control dangerous conduct”].)
We again addressed the California SVPA in Williams, supra, 31 Cal.4th
757, which was decided after Crane. While the SVPA did not use Crane’s
“precise language in defining who is eligible for involuntary civil commitment as
a sexually violent predator,” i.e., “ ‘proof [that they have] serious difficulty in
controlling [their dangerous] behavior,’ ” we nonetheless concluded the SVPA
“inherently encompasses and conveys to a fact finder the requirement of a mental
disorder that causes serious difficulty in controlling one’s criminal sexual
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behavior.” (Williams, at p. 759.) In so doing, we observed that to be committed
as a sexually violent predator under the SVPA, one must, among other things,
have 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).)” (Williams, at p. 764.) Based on this language, we concluded that “a
jury instructed in the language of [the SVPA] must necessarily understand the
need for serious difficulty in controlling behavior.” (Williams, at p. 774; id. at
p. 776.) “The SVPA’s plain words . . . ‘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.’ [Citation.]” (Williams, at pp. 759-760.) “Accordingly, separate
instructions or findings on that issue are not constitutionally required, and no error
arose from the court’s failure to give such instructions in defendant’s trial.” (Id. at
p. 777, fn. omitted.)
B. Analysis
We now consider whether the extended detention scheme violates due
process because it does not expressly require a finding that the person’s mental
deficiency, disorder, or abnormality causes serious difficulty in controlling his
dangerous behavior. As can be seen, the statutory scheme involved in Hendricks
and Crane addressed sexually violent predators, persons who suffer from an
ailment that typically contains a compulsive element. However, nothing in the
language of these high court cases indicates that the lack of control requirement is
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limited to the sexually violent predator context. Indeed, it is difficult to imagine
on what basis the high court could articulate different due process standards for
the civil commitment of dangerous mentally ill persons who happen to be sexually
violent predators than for those dangerous mentally ill persons who are not
sexually violent predators. Thus, while the high court performed its due process
analysis in the sexually violent predator context, its constitutional pronouncements
are instructive here.
Indeed, in both Williams and Hubbart, we described Hendricks and Crane as
embodying general due process principles regarding civil commitment.
(Williams, supra, 31 Cal.4th at p. 759 [in Crane, “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. 772
[in Crane and Hendricks, the high 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”]; id. at
p. 774 [Crane’s language intended to “verify that a constitutional civil
confinement scheme cannot dispense with impaired behavioral control as a basis
for commitment”]; Hubbart, supra, 19 Cal.4th at p. 1156 [“According to
Hendricks, civil commitment is permissible as long as the triggering condition
consists of ‘a volitional impairment rendering [the person] dangerous beyond their
control’ ”]; Hubbart, at p. 1158 [“due process requires an inability to control
dangerous conduct”]; Hubbart, at p. 1161 [Foucha v. Louisiana (1992) 504 U.S.
71 “is not inconsistent with the general due process principles set forth in
Hendricks”]; see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 920
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[“The SVPA thus consistently emphasizes the themes common to valid civil
commitment statutes, i.e., a current mental condition or disorder that makes it
difficult or impossible to control volitional behavior and predisposes the person to
inflict harm on himself or others, thus producing dangerousness measured by a
high risk or threat of further injurious acts if the person is not confined”].)
The high court’s pronouncements are particularly pertinent in this case.
Here, defendant was diagnosed with a mental abnormality, paraphilia not
otherwise specified, that was described as a sexual disorder, and which was based
on his demonstration of elements of pedophilia and sexual sadism. Dr. Morris’s
opinion regarding defendant’s dangerousness was based on this diagnosed
disorder. Thus, while this is not a sexually violent predator case, there would
seem little analytical basis under these circumstances to stray from the due process
requirements the high court has established for the civil commitment of sexually
violent predators. Moreover, the Attorney General here concedes that to be
constitutional, the extended detention scheme must contain a requirement of
serious difficulty in controlling dangerous behavior, in order to distinguish those
persons who are subject to civil commitment from those persons more properly
dealt with by the criminal law. We therefore conclude such a requirement is
constitutionally mandated.
We further conclude that the extended detention scheme should be
interpreted to contain a requirement of serious difficulty in controlling dangerous
behavior. In so doing, we are mindful that if “feasible within bounds set by their
words and purpose, statutes should be construed to preserve their
constitutionality.” (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 175
(Hofferber); see generally Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th
607, 615, 641-661 (lead opn. of Lucas, C.J.).)
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As noted above, the high court has observed that historically it has “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 confinement to those who suffer from a volitional impairment
rendering them dangerous beyond their control.” (Hendricks, supra, 521 U.S. at
p. 358.)
Similarly, here, the extended detention scheme requires a finding that the
person is “physically dangerous to the public” because of a “mental . . . deficiency,
disorder, or abnormality.” (§ 1801.5.) While the statutory language does not
expressly require a demonstration that the person has serious difficulty controlling
his dangerous behavior, construing the existing language to include such a
requirement does not appear inconsistent with legislative intent. Rather, implicit
in the statutory language linking dangerousness to a “mental . . . deficiency,
disorder, or abnormality” is a certain legislative understanding that a person
afflicted with such a condition may lack a degree of responsibility or control over
his actions. In construing the language to include a requirement of serious
difficulty in controlling dangerous behavior, we therefore do no violence to the
words of the statute; rather the words are susceptible of that interpretation. In that
situation, construing the statutory scheme to avoid constitutional infirmity
demonstrates greater deference to the Legislature than simply invalidating, as the
Court of Appeal did, the legislative scheme.
Moreover, the Legislature has made it clear over the history of the extended
detention scheme that it is committed to making the scheme constitutional. Thus,
in two cases decided on the same day, People v. Smith (1971) 5 Cal.3d 313, 317-
319 and Gary W., supra, 5 Cal.3d at page 307, we held that a person subject to
commitment under the extended detention scheme was constitutionally entitled to
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a jury trial, and could not be civilly detained longer if he were committed after
criminal conviction than if by the juvenile court. Both cases were remanded to the
superior court for new commitment hearings. (Smith, at pp. 317, 319; Gary W., at
pp. 308-309, 312.) In response to these two decisions, the Legislature amended
the extended detention scheme to expressly provide for a jury trial and a two-year
commitment limitation for all persons. (See Dept. of Youth Authority, Enrolled
Bill Rep. on Assem. Bill No. 1845 (1971 Reg. Sess.) Nov. 22, 1971, p. 1 [“The
California Supreme Court, in the Harry Coley Smith case, . . . and in the Gary W.
case, . . . held that a person who has been declared a dangerous person under [the
extended detention scheme] is entitled to a jury trial to conform with due process.
. . . This bill merely enacts the provisions as dictated by the court”]; Assem. Com.
on Ways and Means, analysis of Sen. Bill No. 1877 (1979-1980 Reg. Sess.) as
amended July 2, 1980, pp. 1-2 [“reduces from 5 to 2 years the length of time the
Youthful Offender Parole Board can request continued detention of a ward
committed from criminal court. [¶] . . . [¶] . . . [T]here would be no fiscal impact
on the Youth Authority because the reduction in law on extended commitments
simply reflects existing practice”]; Dept. of Youth Authority, Enrolled Bill Rep.
on Sen. Bill No. 1877 (1979-1980 Reg. Sess.) Sept. 8, 1980, p. 2 [“There is a
problem with [the] current statute which is misleading to judges, district attorneys,
defense lawyers and the public. Section 1802 W&IC currently indicates that a
person committed to the Youth Authority from the criminal court may have his
jurisdiction extended by five years if he is found to be a dangerous person . . . .
Case law, People v Smith (1971) 5 C.3d 313, limits the extension of jurisdiction to
two years. [¶] . . . [T]he bill would amend § 1802 W&IC to reduce the extended
detention of dangerous . . . wards committed by adult courts from five to two years
and conforms [the] statute to case law”].)
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Likewise, in People v. Superior Court (Vernal D.) (1983) 142 Cal.App.3d 29,
35-36, the Court of Appeal held that the extended detention scheme was
unconstitutional to the extent it authorized a commitment based on less than a
unanimous jury verdict. For the guidance of the trial court on remand, the Court
of Appeal also concluded that the reasonable doubt standard of proof applied. (Id.
at p. 36, fn. 3.) While the trial court had dismissed the petition for extended
commitment, the Court of Appeal concluded dismissal was erroneous, and that
instead Vernal D. was entitled to a jury trial on the dangerousness issue. (Id. at
p. 31.) The court further held that “his dangerousness must be established by
proof beyond a reasonable doubt; and he may not be involuntarily committed on
anything less than a unanimous verdict of that jury.” (Id. at p. 37.) The
Legislature promptly responded by amending the extended detention scheme to
provide for proof beyond a reasonable doubt and a unanimous verdict. (Assem.
Com. on Crim. Law and Public Safety, analysis of Assem. Bill No. 2760 (1983-
1984 Reg. Sess.) as introduced Feb. 7, 1984, p. 1 [“The purpose of the bill is to
codify judicially mandated due process safeguards in the statute to insure that
extension proceedings are conducted properly. (See People v. Superior Court
(Vernal D.) 142 Cal.App.3d 29.) . . . This is a rather rare proceeding and it can’t
be assumed most prosecutors are familiar with it. Therefore, it is important to
correct the statutes which currently inaccurately reflect what procedural
safeguards are necessary”]; Sen. Com. on Judiciary, analysis of Assem. Bill No.
2760 (1983-1984 Reg. Sess.) as introduced Feb. 7, 1984, pp. 1-2 [“The statute
now requires that three-fourths of the members of the jury agree by a
preponderance of evidence that the ward is dangerous. An appellate court
decision, however, has held that due process and equal protection require a
unanimous jury verdict beyond a reasonable doubt. [¶] This bill would codify
these procedural requirements . . . . [¶] The purpose of this bill is to conform
18

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statutory and case law”]; see also Assemblyman Rusty Areias, letter to Governor
Deukmejian re Assem. Bill No. 2760, July 9, 1984, p. 1 [“AB 2760 incorporates
safeguards necessary to meet constitutional requirements, thereby preserving a
procedure that is vital to protect the public from dangerous, mentally-unbalanced
youthful offenders”].)
We employed a similar approach of construing a civil commitment statute to
preserve its constitutionality in Hofferber, supra, 28 Cal.3d 161. In that case, we
concluded that “the state may confine incompetent criminal defendants, on
grounds that they remain violently dangerous, when a magistrate or grand jury has
found probable cause to believe that they have committed violent felonies.” (Id. at
p. 174.) We observed, however, that the relevant statutes did “not expressly
require a showing of continuing dangerousness,” but appeared “to permit
indefinite maintenance of [Lanterman-Petris-Short Act] conservatorships solely
because the incompetence continues and the violent felony charges have not been
dismissed.”6 (Hofferber, at pp. 174-175.) Therefore, in order to preserve the

6
The Lanterman-Petris-Short (LPS) Act is a comprehensive civil
commitment scheme “designed to address a variety of circumstances in which a
member of the general population may need to be evaluated or treated for different
lengths of time. (§ 5150 [short-term emergency evaluation]; § 5250 [intensive 14-
day treatment]; § 5300 [180-day commitment for the imminently dangerous];
§ 5260 [extended commitment for the suicidal]; § 5350 [30-day temporary
conservatorship or one-year conservatorship for the gravely disabled].) . . . [¶] A
stated purpose of the LPS Act is to provide ‘prompt evaluation and treatment of
persons [from the general population] with serious mental disorders.’ (§ 5001,
subd. (b).) . . . To achieve this purpose, a number of LPS Act provisions allow a
person to be removed from the general population in order to be civilly committed
based on a probable cause determination made by a mental health or law
enforcement professional, and then to challenge the civil commitment within a
reasonable time afterwards.” (Cooley v. Superior Court (2002) 29 Cal.4th 228,
253-254.)
19

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constitutionality of the statutory scheme, we construed it to require current
dangerousness. (Id. at pp. 175, 176-178.)
We noted, “Clearly the Legislature’s focus on violent felony charges reflects
a concern as to dangerousness in criminal incompetency cases . . . .” (Hofferber,
supra, 28 Cal.3d at p. 175.) Moreover, while there were “several ‘danger’
definitions appearing in California statutes” regarding involuntary commitment,
we concluded that “[t]he distinctions among those definitions appear more form
than substance,” and chose as most closely analogous the definition of danger
found in the “criminal insanity provisions.” (Id. at p. 176.) We therefore held
“that every judgment creating or renewing a conservatorship for an incompetent
criminal defendant . . . must reflect written findings that, by reason of a mental
disease, defect, or disorder, the person represents a substantial danger of physical
harm to others,” and upheld the relevant statutory scheme as so construed. (Id. at
pp. 176-177.) However, because Hofferber had apparently not had a hearing at
which his current dangerousness was so demonstrated, we reversed the
conservatorship order entered below. (Id. at p. 178.)
Thus, as we have done before, we can preserve the constitutionality of the
extended detention scheme by simply interpreting the scheme to require not only
that a person is “physically dangerous to the public because of his or her
mental . . . deficiency, disorder, or abnormality,” but also that the mental
deficiency, disorder, or abnormality causes him to have serious difficulty
controlling his dangerous behavior. This aspect of the person’s condition must be
alleged in the petition for extended commitment (§ 1800), and demonstrated at the
probable cause hearing (§ 1801) and any ensuing trial (§ 1801.5).
In so doing, we do not impinge on a role properly reserved to the Legislature.
We are cognizant of the fact that the definition of mental illness warranting
involuntary civil confinement is primarily a legislative task. (Williams, supra, 31
20

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Cal.4th at p. 774 [“the premise of both Hendricks, supra, 521 U.S. 346, and
Kansas v. Crane, supra, 534 U.S. 407, [is] 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”].) For that reason,
we have not found persuasive the Attorney General’s argument we read into the
extended detention scheme “definitions for a mental disorder found in analogous
MDO and/or SVPA civil commitment schemes.” (See ante, at pp. 8-9.) Rather
than define such conditions, which we are ill-equipped to do, we simply conclude
that however the Legislature does or does not choose to define “mental . . .
deficiency, disorder, or abnormality,” due process principles require that the state
demonstrate that the “mental . . . deficiency, disorder, or abnormality” causes the
person to have serious difficulty controlling his dangerous behavior.
Defendant contends we are precluded from reading a volitional requirement
into the statute, because in 1998 the Legislature amended the extended detention
scheme to add a definition of mental illness similar to that in the SVPA, and then
deleted this language before the bill was enacted. (Compare Sen. Amend. to Sen.
Bill No. 2187 (1997-1998 Reg. Sess.) Apr. 13, 1998 [adding definition similar to
the SVPA]7 with Sen. Amend. to Sen. Bill No. 2187 (1997-1998 Reg. Sess.)
Apr. 28, 1998 [deleting definition].) One committee report noted that the
proposed definition “appears to be . . . broader than the comparable statute
applicable to adults,” which the report identified as the MDO definition, “and

7
The proposed definition provided: “As used in this section and in Section
1801.5, ‘mental deficiency, disorder, or abnormality’ includes a congenital or
acquired condition affecting the emotional or volitional capacity that predisposes
the person to the commission of criminal acts in a degree constituting a danger to
the health and safety of others.” (Sen. Amend. to Sen. Bill No. 2187 (1997-1998
Reg. Sess.) Apr. 13, 1998.)
21

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arguably may overreach in its scope.” (Sen. Com. on Pub. Safety, analysis of Sen.
Bill No. 2187 (1997-1998 Reg. Sess.) as amended Apr. 13, 1998, p. 8.)
The primary purpose of the 1998 amendment was not to define “mental
deficiency, disorder, or abnormality,” but to clarify that prosecutors were not
required under the extended detention scheme to perform two trials with the
standard of proof for both beyond a reasonable doubt. (Sen. Subcom. on Juvenile
Justice, analysis of Sen. Bill No. 2187 (1997-1998 Reg. Sess.) as amended
Apr. 13, 1998, pp. 3-5, 7; id. at p. 7 [“This bill largely would clarify the judicial
proceedings associated with 1800 procedures. To the extent current case law can
be interpreted to require both a court trial using a standard of proof beyond a
reasonable doubt and then an additional jury trial with the same standard of proof,
this bill would correct that problem. [¶] It also would set forth the initial probable
cause hearing for the petition, and a definition of ‘mental deficiency, disorder, or
abnormality’ ”].) Indeed, as can been seen, the definition of “mental deficiency,
disorder, or abnormality” was a legislative topic for only a brief period during the
bill’s five-month legislative journey.
Nor can we know why the definition was added and then removed.
(Graham v. Daimlerchrysler Corp. (2004) 34 Cal.4th 553, 573, fn. 5 [“ ‘Unpassed
bills, as evidence[] of legislative intent, have little value’ ”].) There is some
indication certain legislators may have preferred the MDO definition be used
instead. However, it might also be that neither the SVPA nor the MDO standards
(see ante, at pp. 8-9), which derive from statutory schemes designed to target
particular groups of individuals, readily work in the context of the more generally
applicable extended detention scheme. Thus, the 1998 addition and then deletion
of a definition of “mental deficiency, disorder, or abnormality” does not preclude
us from construing the current extended detention scheme to include an impaired
volitional capacity requirement. It simply means that while primarily addressing a
22

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completely different and unrelated issue, the Legislature rejected a definition
based on the SVPA for unknown reasons.
We next consider whether, despite the absence of a jury instruction
addressing the need for the People to demonstrate defendant’s serious difficulty in
controlling his dangerous behavior, the jury nevertheless necessarily made such a
finding. (See People v. Roberge (2003) 29 Cal.4th 979, 989 [trial court must
instruct on the meaning of “likely” in definition of sexually violent predator “even
without a request by any party”].) Here, defendant does not contend he does not
suffer from a “mental . . . abnormality” within the meaning of the extended
detention scheme. He merely contends that unlike Williams, on which the
Attorney General relies, the evidence here was not such that “no rational jury
could have failed to find [defendant] harbored a mental disorder that made it
seriously difficult for him to control his violent . . . impulses. . . . [making] the
absence of a ‘control’ instruction . . . harmless beyond a reasonable doubt.”
(Williams, supra, 31 Cal.4th at p. 760.) We agree.
In Williams, the defendant had to be physically restrained from continuing
the rape of one of his victims, even after the crime was interrupted by police.
(Williams, supra, 31 Cal.4th at p. 760.) Two experts testified he suffered from a
largely uncontrollable obsessive drive to rape. (Id. at pp. 761-762.) One expert
contrasted this with “a rape committed as a crime of opportunity, as where a
burglar enters a home to steal property, but by happenstance encounters a victim.”
(Id. at p. 761, fn. 2.) He also recounted the defendant’s statement regarding his
sexual pathology that he felt “ ‘like a fish on a hook and I don’t have control.’ ”
(Id. at p. 761.) The other expert noted the defendant had “ ‘very poor control over
his impulses.’ ” (Id. at p. 762.) Moreover, while incarcerated, the defendant
“openly masturbated in the prison library and exposed himself in groups where
females were present.” (Id. at p. 761.) Based on this “essentially undisputed”
23

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evidence “that [the] defendant’s diagnosed mental disorder involved serious
difficulty in controlling sexual behavior,” we concluded, “the absence of an
instruction pinpointing that issue must ‘beyond a reasonable doubt . . . have made
no difference in reaching the verdict obtained.’ ” (Id. at p. 778.)
Here, Dr. Morris did testify that defendant was dangerous, i.e., that
defendant’s “recent behaviors of exposing himself along with the self-report of
violent rape fantasies suggest[] that [defendant], due to an untreated sexual
disorder, continues to present an imminent danger to his community.” There was,
however, no testimony that defendant’s mental abnormality caused him serious
difficulty controlling his sexually deviant behavior. Whereas in Williams there
was expert testimony that paraphilia not otherwise specified, the mental
abnormality with which defendant was diagnosed, was “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,” no such information was
relayed to the jury here. (Williams, supra, 31 Cal.4th at p. 761.) Moreover,
defendant’s committing offense, unlike those in Williams, was one of opportunity;
his mother was babysitting the sleeping victim. (See Williams, at p. 761, fn. 2.) In
addition, his incidents of masturbation occurred in his room, not in a public setting
such as a library, as in Williams. Although defendant undoubtedly intended his
behavior to be provocative and disturbing, he discontinued visibly masturbating as
soon as he was sure the female officers observed him. Thus, the evidence was not
such that “no rational jury could have failed to find [defendant] harbored a mental
disorder that made it seriously difficult for him to control his violent . . .
impulses. . . . [making] the absence of a ‘control’ instruction . . . harmless beyond
a reasonable doubt.” (Williams, at p. 760.) We therefore conclude that to the
extent defendant does not prevail on any remaining claims in the Court of Appeal
24

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on remand, he is entitled to a new petition, probable cause hearing, and if
necessary, trial, under the correct due process standard.8
III. DISPOSITION
The judgment of the Court of Appeal is reversed, and the case remanded to
that court for further proceedings consistent with this opinion.
BROWN, J.
WE CONCUR:

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

8 Defendant
also
contends
the extended detention scheme is in fact a penal,
not a civil, commitment scheme, and hence “its constitutionality should not be
judged by the constitutional standards applied to civil commitments but by more
rigorous standards of substantive due process.” He further contends the extended
detention scheme violates equal protection. Defendant did not raise these issues in
an answer to the petition for review. Hence they are not before us. (Cal. Rules of
Court, rule 29.1(b)(2), (3).)
25

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

Name of Opinion In re Howard Kenneth N.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 115 Cal.App.4th 1134
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S123722
Date Filed: February 24, 2005
__________________________________________________________________________________

Court:

Superior
County: Kern
Judge: Jon E. Stuebbe

__________________________________________________________________________________

Attorneys for Appellant:

Linnéa M. Johnson, under appointment by the Supreme Court, and Francia M. Welker, under appointment
by the Court of Appeal, for Defendant and Appellant.

Margaret Roberts for Protection and Advocacy, Inc., as Amicus Curiae on behalf of Defendant and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter, Janet E. Neeley,
Louis M. Vasquez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

26

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

Linnéa M. Johnson
Central California Appellate Program
2407 J. Street, Suite 301
Sacramento, CA 95816
(916) 441-3792

Kathleen A. McKenna
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1670

27

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Opinion Information

Date:	Docket Number:
Thu, 02/24/2005	S123722

Disposition
Feb 24 2005	Opinion: Reversed

Dockets
Mar 29 2004	Petition for review filed   by counsel (AG) for respondent (The People).
Apr 1 2004	Received Court of Appeal record   1 doghouse
May 12 2004	Petition for review granted (criminal case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Morneo, JJ.
May 26 2004	Counsel appointment order filed   Upon request of appellant for appointment of counsel, the Central California Appellate Program is hereby 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 thirty (30) days from the date respondent's opening brief on the merits is filed.
Jun 3 2004	Request for extension of time filed   by Respondent People for a 30-day extension to 7-11-2004 to file the opening brief on the merits.
Jun 4 2004	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Opening Brief on the Merits is extended to and including July 11, 2004. No further extensions of time will be granted.
Jul 8 2004	Opening brief on the merits filed   (in Fresno) by the Attorney General for Respondent People
Jul 28 2004	Request for extension of time filed   (in Sacramento) by counsel for appellant to 9-7-2004, to file the answer brief on the merits.
Aug 10 2004	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 7, 2004. No further extensions of time will be granted.
Aug 23 2004	Request for judicial notice filed (granted case)   Appellant ( Howard N.) Legislative History of Calif. Welfare & Inst. Code. One Binder
Sep 7 2004	Received:   (in Sacramento) Appellant's application to file oversized answer brief on the merits (17,828 words, over the 14,000 word limitation (CRC29.1(c)(1) Brief submitted separately
Sep 10 2004	Answer brief on the merits filed   Appellant's (with permission)
Sep 27 2004	Received:   Kern County Superior Court copy of page 64 of Reporter's Transcript and People's exhibit #1.
Sep 30 2004	Reply brief filed (case fully briefed)   Respondent ( People).
Oct 6 2004	Received application to file Amicus Curiae Brief   PROTECTION AND ADVOCACY in support of Appellant; brief included.
Oct 8 2004	Received:   Separate supplemental authorities of amicus Protection and Advocacy.
Oct 12 2004	Permission to file amicus curiae brief granted   PROTECTION AND ADVOCACY, INC. in support of appellant. Answer due in 20 days.
Oct 12 2004	Amicus curiae brief filed   PROTECTION AND ADVOCACY in support of appellant. Answer due within 20 days.
Oct 12 2004	Order filed   The application of PROTECTIN AND ADVOCACY for permission to file supplemental authorities in support of their amicus curiae breif is hereby granted.
Oct 12 2004	Filed:   Supplemental Authoriteis in support of PROTECTION AND ADVOCACY 'S amicus curiae brief.
Oct 28 2004	Request for judicial notice granted   Appellant's request for judicial notice, filed August 23, 2004.
Nov 3 2004	Case ordered on calendar   12/8/04 @ 9am., San Diego
Dec 8 2004	Cause argued and submitted
Feb 24 2005	Opinion filed: Judgment reversed   and remanded to that court. Opinion by: Brown, J. -- joined by George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Apr 11 2005	Remittitur issued (criminal case)
Apr 15 2005	Returned record
Apr 18 2005	Received:   Receipt for remittitur
Jun 14 2006	Compensation awarded counsel   Atty Johnson - Central California Appellate Prgm

Briefs
Jul 8 2004	Opening brief on the merits filed
Sep 10 2004	Answer brief on the merits filed
Sep 30 2004	Reply brief filed (case fully briefed)
Oct 12 2004	Amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website