by Christopher Zoukis

The First Appellate District for the California Court of Appeals has remanded a lower court's decision to civilly commit a prisoner as a sexually violent predator (SVP).

The Alameda County District Attorney filed a petition to commit Joel Curlee as an SVP in December 2010. During the trial, Curlee was called as a witness during the government's case-in-chief, and forced to testify. In August 2013 he was found by a jury to be an SVP, and was committed for an indefinite term.

Curlee appealed the finding, arguing that his constitutional right to equal protection was violated when he was forced to testify. The gravamen of Curlee's argument was that since a person found not guilty by reason of insanity (NGI) has a statutory right not to testify in civil commitment proceedings, he should have the same right. Curlee noted that in the context of this argument, the California Supreme Court had recently concluded that SVP's and NGI's were similarly situated for purposes of equal protection.

The appellate court agreed that Curlee had been treated differently than an NGI would have been in a civil commitment hearing, and that his right to equal protection may have been violated. However, upon reviewing California case law, the court said that such differential treatment may survive review if the state can provide some justification for the differential treatment.

Because, in the case of Curlee, the state had not met the burden of differential treatment, the court remanded for a hearing to determine whether it could. This might be difficult, because the court did not find the factors that allow for differential treatment with respect to the length of commitment, which had already been litigated, to be germane to the question of forced testimony. While it made sense in commitment-length discussions to consider the treatability of sex offenders, for example, this factor would not necessarily mitigate in favor of forcing a sex offender to testify against himself.

The court did not reverse Curlee's commitment order, however. Instead, if the state was able to justify the differential treatment of SVP's and NGI's with respect to forced testimony, then Curlee's commitment would stand. If not, Curlee would be entitled to a new hearing in which he would not be required to testify.

Interestingly, the court gave no instructions on the evidentiary burden the state would need to meet in order to justify such differential treatment. Given the fact that the question relates to the differential treatment of sex offenders, one assumes that the burden will not be high.

See: People v. Joel Curlee, 237 Cal. App. 4th 709, 188 Cal. Rptr. 3d 421 (Cal. App. 1st Dist. May 20, 2015), review denied.

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