Civil commitment sought for sex offender

Washington Cal. Some protection, however, is more equal than others. Under the Legislature's rules of the game, two strikes were called against Feagley before the jury even began to deliberate. At the outset of the trial the prosecutor stressed that the sole question to be submitted to the jury under the terms of section was whether Feagley was a mentally disordered sex offender.

Thus although Feagley's initial commitment to an "institutional unit" was predicated under section on the court's findings on two distinct issues -- was he a mentally disordered sex offender?


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If so, could he benefit by treatment in a state hospital? The prosecutor also relied on the fact that under former section Feagley had been sent to Atascadero for a day period of observation and diagnosis and had been certified by that institution as not amenable to treatment in a state hospital.

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In such circumstances it was said to be the rule that the only issue at the jury trial "would be whether defendant is an MDSO, since the question whether he is amenable to hospital treatment is for the sole determination of the hospital authorities. Washington supra, Cal. On the very day of Feagley's jury trial, however, legislation took effect which eliminated the day Atascadero observation placement from the mentally disordered sex offender law.

Since that date the trial courts have had no guidance other than the often conclusionary testimony at the commitment hearing on the critical issue of whether the person could benefit from treatment in a state hospital; and even that testimony is no longer based on three months of institutional study, but typically on a prehearing conversation of an hour or less in county jail.

Burnick, supra, ante, pp.

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The second setback came at the close of the trial. Feagley submitted an instruction which would have informed the jury that in order to reach a verdict "all twelve jurors must agree to the decision.


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The court's authorization for its instruction was section , which provides in relevant part that "if tried before a jury the person shall be discharged unless a verdict that he is a mentally disordered sex offender is found by at least three-fourths of the jury. First, it violates the provisions of the California Constitution guaranteeing due process of law art. But "the California Legislature has recognized that the interests involved in civil commitment proceedings are no less fundamental than those in criminal proceedings and that liberty is no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction.

Moreover, the mentally disordered sex offender proceeding here challenged has all the trappings of a criminal prosecution, together with the worst consequences of the latter. Thus at the trial level the proceeding was entitled "The People of the State of California vs. Chester Cummings Feagley, Defendant"; it was assigned to the criminal docket, and was heard by a judge of the criminal division of the superior court.

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The case against Feagley was presented by the district attorney. And pending determination of the issue Feagley had the right to be released on bail. In re Keddy Cal. Similar indicia of the true nature of this proceeding appeared at the appellate level. Both in the Court of Appeal and in this court the case retained its "criminal" title and was given new "criminal" docket numbers. At Feagley's request, counsel was appointed to represent him on appeal, to be paid by the courts. And the entire cost of the transcripts of the proceedings below was paid by the county.

The authority for the latter payment is instructive. In Gross v. Superior Court 42 Cal. Then as now, the sole authorization for such transcripts was Government Code section , providing that "In criminal cases" the fee for a transcript shall be paid out of the county treasury. Because the statute was expressly limited to "criminal cases," the clerk of the superior court refused the request. On the defendant's application for writ of mandate, however, we ordered free transcripts to be prepared.

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We were not misled by the argument of county counsel that this was a civil proceeding: we recognized it was "not strictly a criminal case," but stressed it had certain of "the features pertinent to such cases. We then reviewed the various rights of a defendant charged with being a mentally disordered sex offender -- listed hereinabove -- and concluded ibid. If a defendant charged with being a mentally disordered sex offender is thus entitled to free transcripts on appeal despite the express limitation of the statute to "criminal cases," he must a fortiori be entitled to the far more important right of jury unanimity despite the implied limitation of the Constitution to criminal cases.

In addition to the close procedural similarities between a criminal prosecution and a proceeding to establish that a defendant is a mentally disordered sex offender, the consequences of an adverse determination in each case are no less comparable. Burnick, supra, ante, page , we hold that a mentally disordered sex offender committed for an indeterminate period to a state mental hospital suffers such a massive curtailment of liberty and such lingering moral stigma that he is entitled to the same standard of proof beyond a reasonable doubt accorded to a criminal defendant.

For the same reasons, a mentally disordered sex offender committed to such a hospital is entitled to a unanimous verdict. And just as we have shown in Part I of this opinion that a mentally disordered sex offender committed to an "institutional unit" on the grounds of a state prison is a fortiori entitled to the standard of proof beyond a reasonable doubt, so also a person committed to such a unit is a fortiori entitled to a unanimous verdict.

Because commitment to a [14 Cal. Prominent among those safeguards is "the fundamental right to a unanimous jury verdict. Superior Court supra, 67 Cal. A holding to the contrary would in effect instruct the prosecutor that in order to publicly brand a man as a mentally disordered sex offender and confine him for "life imprisonment in a penal institution" In re Bevill supra, 68 Cal. We cannot believe such a rule would be obedient to either the letter or the spirit of the cited guarantees of the California Constitution. In the Legislature enacted a sweeping revision of the mental health laws of this state Welf.

Thereafter a petition may be filed in the superior court for an order committing the person for "postcertification treatment" on the ground he or she is an "imminently dangerous person. The person is entitled to court-appointed counsel and a jury trial of the issue.

And by a amendment to the original statute the Legislature specifically decreed that "The decision of the jury must be unanimous The issue, therefore, is whether the state may constitutionally deny to persons committed under the mentally disordered sex offender law the right to a unanimous jury which it grants to persons committed under the LPS Act.

As in People v. Burnick, supra, ante, page , we find guidance in decisions of the United States Supreme Court interpreting the equal protection clause of the Fourteenth Amendment to the federal Constitution.

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Baxstrom v. Herold supra, U. The statute did not provide for a jury trial of the issue, although all other classes of persons civilly committed in New York were granted that right. The United States Supreme Court held the denial of a jury trial to be unconstitutional, reasoning at p. Humphrey v. Cady U.

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At the end of that time a series of five-year extensions of the commitment could be ordered upon a finding by the court that the defendant's release would be dangerous to the public because of his mental or physical disorder. No jury trial was provided at either stage, whereas a person involuntarily committed under Wisconsin's general Mental Health Act was granted that right. A defendant undergoing such a five-year extension of his commitment sought federal habeas corpus, and the United States Supreme Court held that his claim of denial of equal protection was so substantial in light of Baxstrom as to require a full evidentiary hearing.

In particular the court noted at p. The equal protection claim would seem to be especially persuasive if it develops on remand that petitioner was deprived of a jury determination, or of other procedural protections, merely by the arbitrary decision of the State to seek his commitment under one statute rather than the other.

We have likewise recognized in California that although it might not be true of all persons, "Many individuals who satisfy the definition of 'mentally disordered sex offender' would be subject to civil commitment to a mental institution under other provisions of the law," citing, inter alia, the LPS Act. In re Bevill supra, 68 Cal. We are aware, of course, that Baxstrom and Humphrey dealt with the denial of the right to any jury rather than a unanimous jury. Yet they declared general principles which we find persuasive in the case at bar.

Similarly, in Jackson v. Indiana U. The court reasoned, "Baxstrom did not deal with the standard for release, but its rationale is applicable here. Neither did Baxstrom deal with the jury unanimity requirement, "but its rationale is applicable here. In Baxstrom the Supreme Court rejected the state's attempted justification of the jury trial discrimination on the ground of the asserted dangerousness of mentally ill persons who have been convicted of a crime, explaining that "Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.

For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments. Here, too, dividing "mentally disordered" persons into two classes according to whether they are or are not assertedly predisposed to commit sex offenses may be a reasonable distinction for determining questions of custody and treatment -- a question on which we express no view -- but it is irrelevant to the question whether they are mentally disordered in the first place.

The substantial distinction between the burden of convincing all the jurors and the burden of convincing only nine of them that a defendant is a mentally disordered sex offender is thus wholly unrelated to "the purpose for which the classification is made," and hence constitutes a denial of equal protection. The People take the position that the issue was settled to the contrary by In re Gary W. That is a considerable overstatement of Gary W.

One of the two dispositive questions in the case was whether the equal protection clause was violated by the denial of a jury trial after a court order extending the control of the California Youth Authority over one of its wards beyond his normal release date. Relying at some length on Baxstrom, we held that the denial of a jury trial to such a person deprived him of equal protection in view of the fact that the same right was accorded in other classes of civil commitments.

That is all we actually decided on the point. Having declared a new right to jury trial, however, we felt impelled to add a brief directive concerning its implementation.

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