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For a law that was declared constitutional nearly four years ago, the state’s Sexually Violent Predator Act keeps finding its way back to the California Supreme Court. Seven times since upholding the act in 1999′s Hubbart v. Superior Court, 19 Cal.4th 1138, the high court justices have issued rulings clarifying the SVPA’s muddled passages and interpreting disputed phraseology. And they’re not through yet. Three more SVPA cases are pending before the court. One’s been argued, another is set for next month’s calendar in Los Angeles and the third is still in the briefing stage. None of the three has a high profile, certainly not like the case of Marin County serial rapist Patrick Ghilotti, in which the high court earlier this year tightened the guidelines for involuntary commitment of sexual offenders. But the three pending cases beg the question: Why does the SVPA need so much judicial review? “Part of it is the normal winnowing out and clearing up of the law,” says Century City’s Gerald Miller, the defense lawyer in one of the three pending cases. “Basically what the problem is, is that [the SVPA is] a very vague statute.” San Diego Deputy Attorney General Bradley Weinreb, who’s involved in two of the cases, points out that the SVPA is getting the same kind of scrutiny that the state’s Three Strikes law has undergone. “It took three years before the Supreme Court ultimately validated the constitutionality of the [SVPA],” he says. “Now we’re seeing some fine-tuning of the act. It’s going through the natural process, like any major enactment does.” California’s Sexually Violent Predator Act became effective on Jan. 1, 1996, and gave the state the power to keep certain sex offenders in hospital custody indefinitely even after they completed prison terms. Opponents had argued that the law violated a person’s constitutional rights by imposing a second punishment for the same offense. But the California Supreme Court upheld the law, ruling in Hurtado that the SVPA created a “non-punitive commitment scheme covering persons who are to be viewed not as criminals but as sick persons.” All three pending cases seek further clarification of the SVPA for different reasons: In Cooley v. Superior Court (Marentez), S094676, which was argued Sept. 5, the court is being asked to determine what elements of the act must be proved, and what burden of proof applies, at a probable cause hearing. In People v. Roberge, S094627, being argued on Dec. 3, the parties are debating whether sexually violent predators are entitled to a jury instruction on the meaning of the word “likely,” as in whether a defendant is “likely” to reoffend if released. And in People v. Williams, S107266, the justices will decide whether a civil commitment under the act requires proof beyond a reasonable doubt that the defendant’s mental disorder renders him unable to control his dangerous behavior. The Supreme Court asked for supplemental briefing in Marentez and Roberge on the impact of the court’s April 25 ruling in Ghilotti’s case. And in Williams, both parties are addressing the effect of Kansas v. Crane, 122 S.Ct. 867, the U.S. Supreme Court’s January holding that proof of absolute lack of control is too strict a standard, and therefore not a prerequisite, for civil commitment of sexual predators. “The way I see it is [the justices] see a lot of confusion in the lower courts and they’d like to clear it up,” says Santa Clara University School of Law Professor Gerald Uelmen, a longtime Supreme Court observer. “[The SVPA's] not a particularly well-drafted statute, and they are going to see a lot of cases coming out with different results if they don’t clarify it and kind of settle the issues that are splitting the lower courts.” The attorney general’s office would welcome some guidance. “Any clarity that the courts can further provide on the law will help prosecutors in applying it appropriately and also prevent meritless appeals and attacks on the law that have been increasing in frequency,” AG spokesman Nathan Barankin says. “That’s our hope, that there will be a bit more clarity and there will be some more guidance with respect to how prosecutors can use the law to best protect public safety.” The court has gone a long way toward those goals already in the past three years, issuing seven rulings — including People v. Superior Court (Ghilotti), 27 Cal.4th 888 — that, among other things, have laid out specific criteria that judges and juries must use in determining whether someone is likely to be a repeat sexual offender; concluded that the details of predicate offenses may be proved by the admission of multiple hearsay evidence; and found that defendants have the right to call witnesses and cross-examine the state’s witnesses during annual mental health hearings. Deputy AG Weinreb says the high court has perused the SVPA closely, as it has the Three Strikes law, because it deals with people’s liberty interests. “There’s a balance here between the liberties of these proven predators,” he says, “and the health and safety of society.” Since the act became effective, 383 people have been committed as sexual predators, according to statistics provided by the state Department of Mental Health. Of those, 308 are men currently housed at Atascadero State Hospital and one is a woman at Patton State Hospital. The other 74 have died, been released or are in county jails awaiting hearings. According to the state, another 152 await civil commitment trials. Most lawyers believe that while the number of commitments might increase, the number of cases interpreting the SVPA will begin to shrink. “There’s not much confusion left,” Weinreb says. “The major constitutional issues have been analyzed and upheld.” David Polsky, the defense lawyer in Roberge, says that’s definitely true in his case. At trial, he argued that the judge had a duty to define the word “likely,” as in “likely to re-offend,” to the jury, but that was before the high court in Ghilotti defined that word to mean that the risk of reoffense doesn’t have to be more likely than not. “That transformed my case into a run-of-the-mill instructional case,” the Fallbrook solo practitioner says. “All I’m claiming now is that the definition of ‘likely’ that the Supreme Court created in Ghilotti is not a definition that would be readily known or understood by the general public. “Consequently,” he adds, “it is a definition that is unique to the SVP Act, so the court has a sua sponte duty to instruct the jury.” Polsky’s opponent, Weinreb, says he thinks Ghilotti settled the issue in Roberge. “To the extent the definition of ‘likely’ in Ghilotti controls,” he says, “there’s no need to further instruct the jury on ‘likely.’” Ghilotti also plays a role in the Marentez case. Neither Los Angeles County Deputy District Attorney Fred Klink nor L.A. County Deputy Public Defender Jack Weedin returned calls, but their case turns on whether the trial court judge — pre- Ghilotti — misconstrued the definition of the word “likely.” In the upcoming Williams case, meanwhile, Weinreb and his opponent, Miller, are fighting over the significance of the U.S. Supreme Court’s 10-month-old ruling in Kansas v. Crane. Miller says the case is the first reported decision in California post- Crane. In Crane, the high court held that states, in sentencing sex offenders to civil commitment after their prison terms are served, must prove that a defendant not only is dangerous and is likely to repeat offenses, but also be shown to have “serious difficulty” in controlling behavior. “What my case does,” Miller says, “is address the issue of what the jury has to be told about the issue of control. Is that addressed sufficiently now in the [jury] instructions or does there have to be a modification that the jury specifically be instructed on the issue?” Miller believes the latter and notes that the Missouri Supreme Court ruled as such in a case in May. Weinreb remains fairly confident, however, noting that the Kansas law is “very similar” to the California law. “We read Crane in a very limited fashion,” he says. “And we believe our statute satisfies the concerns expressed in Crane.” No matter which way the California Supreme Court goes on the three pending cases, lawyers and judges dealing with the Sexually Violent Predator Act will appreciate the clarification. “That’s the nature of any new law,” Polsky says. “The Three Strikes law, that thing was tremendously complicated and required all kinds of interpretation. “The SVP Act is not nearly as complicated,” he adds, “but complicated enough that it will require substantial clarification.”

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