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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Joseph Albert ROBERGE, Defendant and Appellant.

No. D034189.

Decided: December 15, 2000

David L. Polsky, under appointment of the Court of Appeal, Fall Brook, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Janelle M. Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury finding beyond a reasonable doubt that Joseph Albert Roberge had been convicted of two prior predatory sexual offenses and had a mental disorder which made it likely he would again commit such offenses, and he was thus a sexually violent predator within the meaning of Welfare and Institutions Code section 6604,1 Roberge was committed to the State Department of Mental Health for a period of two years.   Roberge now argues it was error for the trial judge to have refused a requested instruction amplifying the meaning of “likely.”   We disagree and affirm the judgment.


Our Supreme Court has outlined the provisions of the Sexually Violent Predators (SVP) Act in a case rejecting a challenge to the constitutionality of the Act:  “[Welfare and Institutions Code] Section 6600, subdivision (a) defines an SVP as a convicted sex offender 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.’  (Italics added.)  [A] ‘diagnosed mental disorder’ is defined, in turn, as a condition affecting the ‘emotional or volitional capacity’ and ‘predispos[ing]’ the person to commit criminal sex acts ‘in a degree constituting the person a menace to the health and safety of others.’   [Citation.]  Prior qualifying sex crimes are used as evidence in determining whether the person named in the petition is an SVP beyond a reasonable doubt.   [Citations.]  However, the verdict cannot be based on prior crimes absent evidence of a ‘currently 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), italics added.)

“[T]he statute clearly requires the trier of fact to find that an SVP is dangerous at the time of commitment.   The statutory criteria are expressed in the present tense, indicating that each must exist at the time the verdict is rendered.   In addition, a person cannot be adjudged an SVP unless he ‘currently’ suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior, and which ‘makes' him dangerous and ‘likely’ to reoffend.  [Citation.]

“By defining the qualifying mental disorder in this fashion, the statute makes clear that it is the present inability to control sexually violent behavior which gives rise to the likelihood that more crimes will occur, and which makes the SVP dangerous if not confined.   The danger and threat of harm posed to the community necessarily exist whenever such a mental disorder is found-a finding required for commitment as an SVP. Nothing in the statute permits the trier of fact to conclude that the committed person ‘currently’ suffers from a ‘diagnosed mental disorder’ and is ‘a danger,’ even though he is not likely to commit sexually violent crimes and does not pose a present and substantial threat to public safety.”  (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162, 81 Cal.Rptr.2d 492, 969 P.2d 584, fn. omitted.)


As required by statute, prior to the expiration of Roberge's prison term, the San Diego County District Attorney filed a petition, seeking the involuntary commitment of Roberge as a sexually violent predator.   A jury trial in May 1999 ended in a mistrial, as the jurors were unable to reach a verdict.

A second petition was filed August 6, 1999.   Jury trial began on August 13, 1999, and on August 20, 1999, the jury returned its verdict, finding beyond a reasonable doubt that Roberge was a sexually violent predator as defined in the SVP Act, and the court then ordered Roberge committed to the Department of Mental Health for the statutory term of two years.   Timely notice of appeal was filed.


In 1981 Roberge committed a sexual assault against a woman who was a stranger to him, sodomizing her twice and also forcing her to orally copulate him.   Roberge was convicted of this offense and sentenced to a state prison term of eight years.   In 1986, Roberge sexually assaulted another woman who was a stranger to him, raping her twice, beating her, biting her breasts and sodomizing her.   Roberge was convicted of this offense and sentenced to a state prison term of 18 years.

Dr. Mary Miccio-Fonseca, a clinical psychologist, interviewed Roberge on two occasions to determine whether he met the criteria for classification as a sexually violent predator.   She also administered tests to Roberge in the first interview, in 1996, and concluded Roberge suffered from paraphilia, an incurable sexual disorder making it difficult for Roberge to control his anger and proclivity for rape.

Dr. Miccio-Fonseca also diagnosed Roberge in 1996 as suffering from antisocial personality disorder, but in a 1997 interview, while again concluding Roberge suffered from paraphilia, Dr. Miccio-Fonseca no longer diagnosed Roberge as having an antisocial personality disorder, but instead concluded he suffered from sexual sadism, based in part on the fact the crimes Roberge committed were progressively more serious and violent.   Dr. Miccio-Fonseca also evaluated Roberge using the Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR), a procedure which attempts to provide a mathematical prediction of sexual offender recidivism by weighing prior offenses, victims' gender, a perpetrator's relationship to his victims and a perpetrator's age at release.

Using the RRASOR procedure, Roberge was assigned a score of four, which was then translated into a 32.7 percent probability of his reoffending within five years and a 48.6 percent probability of reoffending within ten years.2  Dr. Miccio-Fonseca believed, however, that these percentages understated the likelihood that Roberge would again commit a sexually predatory offense.   Considering all factors, particularly the fact Roberge did not really believe he had committed sexual offenses, Dr. Miccio-Fonseca believed that it was indeed likely Roberge would reoffend.3

Another psychologist, Dr. Charles Jackson, also interviewed Roberge in 1996 and in 1997.   Dr. Jackson also diagnosed Roberge as suffering from paraphilia and believed he also suffered from antisocial personality disorder.   Dr. Jackson also used the RRASOR procedure and arrived at the same results as had Dr. Miccio-Fonseca.   Dr. Jackson agreed with Dr. Miccio-Fonseca that the RRASOR underestimated the likelihood Roberge would reoffend, particularly in light of Roberge's denial of guilt and other sexually aggressive behavior by Roberge even while incarcerated, and Dr. Jackson thus also believed Roberge would likely reoffend.


Dr. Theodore Donaldson testified that in his opinion Roberge did not suffer from paraphilia or sexual sadism, and thus did not have a “diagnosed mental disorder” rendering him subject to commitment as a sexually violent predator.4  Dr. Donaldson did testify that he also believed there was better than a 50 percent probability Roberge would indeed reoffend, but that if he did so, it would be a volitional act on the part of Roberge rather than a product of a mental disorder.

Dr. Ricardo Weinstein also testified that in his opinion Roberge had an antisocial personality disorder, but did not suffer from paraphilia.


 Roberge argues prejudicial error by reason of the trial judge's refusal to give a requested instruction.   The applicable standard of review has been recently restated:  “Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is however predominantly legal.   As such, it should be examined without deference.”  (People v. Waidla (2000) 22 Cal.4th 690, 733, 94 Cal.Rptr.2d 396, 996 P.2d 46.)


 Prior to instructing the jury, counsel for Roberge requested that the judge instruct the jurors that “likely” to reoffend meant they had to find it was “more likely than not” that Roberge would again engage in sexually violent behavior.   The trial judge refused to so instruct.   Roberge now argues this was prejudicial error.

In numerous cases over the last 35 years, our Supreme Court has reiterated a very straightforward standard for determining when a jury must be given amplifying instructions as to the meaning of a term, as Roberge argues should have been done here:  “As we explained in People v. Poggi (1988) 45 Cal.3d 306, 246 Cal.Rptr. 886, 753 P.2d 1082, ‘[t]he language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction․ If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.’  [Citations.]

 “The rule to be applied in determining whether the meaning of a statute is adequately conveyed by its express terms is well established.   When a word or phrase ‘ “is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.” ’  [Citations.]  A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning.  [Citation.]  Thus, as the court in People v. Richie (1994) 28 Cal.App.4th 1347, 34 Cal.Rptr.2d 200 explains, terms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance.  [Citation.]”  (People v. Estrada (1995) 11 Cal.4th 568, 574-575, 46 Cal.Rptr.2d 586, 904 P.2d 1197, italics omitted.) 5

In Estrada, our Supreme Court considered whether the phrase “reckless indifference to human life” had a statutory meaning which differed from that commonly ascribed to it in ordinary discourse.   The Estrada court held it did not:  “[W]e conclude the generally accepted meaning of the phrase, ‘reckless indifference to human life,’ in common parlance amply conveys to the jury the requirement of a defendant's subjective awareness of the grave risk to human life created by his or her participation in the underlying felony․ The phrase therefore does not have a technical meaning peculiar to the law․” (People v. Estrada, supra, 11 Cal.4th at p. 578, 46 Cal.Rptr.2d 586, 904 P.2d 1197.)

Certainly if the phrase “reckless indifference to human life” does not require explication, then the simple, everyday term “likely” cannot be said to require further definition or amplification.   Indeed, appellate counsel concedes the word “likely” is one of common understanding, citing to both Black's Law Dictionary 6 and to the case of People v. Savedra, supra, 15 Cal.App.4th 738, 19 Cal.Rptr.2d 115.7  In these circumstances, as in Estrada, our inquiry need go no further.   There are, however, additional reasons why the trial judge's refusal to give the requested instruction was correct.

One reason is that the requested amplifying instruction suffers not only from a lack of necessity, it is argumentative.   In another recent SVP case, People v. Ward (1999) 71 Cal.App.4th 368, 83 Cal.Rptr.2d 828, the defendant requested the jury be instructed:  “Because of the need for volitional impairment, a DSM IV [American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994) ] diagnosis is not, standing alone, sufficient proof of a ‘diagnosed mental disorder’ within the meaning of Welfare and Institutions Code section 6600.”  (Id. at p. 375, 83 Cal.Rptr.2d 828, internal quotations omitted.)   The Ward court held the trial court's refusal to so instruct was proper:  “Defendant cites a passage from Kansas v. Hendricks (1997) [521] U.S. 346, 357-361 [117 S.Ct. 2072, 138 L.Ed.2d 501], in which the court commented that legal definitions often do not and need not mirror medical definitions of mental illness.   We do not read this language as an imperative to give the instruction favored by defendant.   Instead, we agree with the People that the requested instruction constitutes argument, not a principle of law, and should not have been given.   [Citation.]”  (People v. Ward, supra, 71 Cal.App.4th at pp. 375-376, 83 Cal.Rptr.2d 828.)

The point is further illustrated by a recent case in which it was argued that to require a jury to find reoffending was “likely” was to dilute the burden of proof, reducing it to a mere preponderance, rather than beyond a reasonable doubt:  “[Appellant] contends that while the SVPA purports to require proof ‘beyond a reasonable doubt,’ it requires the trier of fact to determine simply whether an offender is ‘likely’ to engage in sexually violent criminal behavior. [Citation.]  From this, [appellant] argues that ‘[t]he only thing proven beyond a reasonable doubt is whether a person is more likely than not to commit future offenses-regardless of the reasonable doubt language, the overall standard is still a preponderance of the evidence.’   This circumvention and dilution of the reasonable doubt standard, [appellant] asserts, does not comport with due process.

“We disagree.   The reasonable doubt standard has not been circumvented or diluted.   The meaning of the language of a statute is not to be found in metaphysical subtleties, which may make anything mean everything or nothing.   Here, the phrase, ‘likely [to] engage in sexually violent criminal behavior’ [citation], is not, as [appellant] would have us believe, a standard of proof.   Rather, it is a prediction of dangerousness that the trier of fact must find has been proved beyond a reasonable doubt.   Such a prediction is inherent in a finding of ‘dangerousness,’ and may appropriately be based on ‘seriously dangerous propensities.’  [Citation.]”  (People v. Buffington (1999) 74 Cal.App.4th 1149, 1153, 88 Cal.Rptr.2d 696, fn. omitted.)

The jury instruction requested by Roberge, with its focus upon percentages rather than upon the totality of the evidence, was not only argumentative, but it would also have tended to derogate from, rather than amplify, the high burden of proof which must be met by the People in SVP cases, and thus the trial court's refusal to so instruct was not only proper, it cannot have prejudiced Roberge.

This point is well illustrated in another case, People v. Poe (1999) 74 Cal.App.4th 826, 88 Cal.Rptr.2d 437, in which case the defendant, just as Roberge in the present case, had been assigned a score of four on the RRASOR by two expert witnesses.  (Id. at p. 830, 88 Cal.Rptr.2d 437.)   In Poe it was argued the resultant probabilities of reoffending were insufficient as a matter of law:  “Appellant nevertheless argues that the court's finding that he was likely to reoffend is not supported by the opinions of [the two experts], because both experts reported that, using the RRASOR scale, the risk that he would engage in such behavior over the next 10 years was 48.6 percent.   Appellant argues that, as a matter of law, any percentage under 50 percent is not ‘likely.’   It is unnecessary to engage in a debate about what minimum percent risk using this scale would support the conclusion that it is likely that person will reoffend, because all the experts who testified ․ agreed that the numerical results of this scale should not be used in isolation when assessing the likelihood of reoffending.  [One expert] explained that the RRASOR evaluation ‘doesn't consider a wealth of other information which has been shown to correlate with reoffense.’   For example, it does not consider whether the offender has any insight into his past behavior, or whether he had any empathy for his victims․” (People v. Poe, supra, 74 Cal.App.4th at p. 831, 88 Cal.Rptr.2d 437.)

In this case, as set forth in the factual statement ante, both prosecution experts noted among other factors that Roberge felt no remorse for his conduct (thus clearly demonstrating a lack of “insight into his past behavior”) and had also acted out in other sexually aggressive ways demonstrating a continued dangerousness, and for these reasons both experts testified that it was their opinion Roberge, notwithstanding the percentage predictions of the RRASOR, was indeed likely to reoffend.   The trial judge's refusal to reduce the question whether Roberge was “likely” to reoffend to a merely mechanical application of the RRASOR results, by giving the instruction which was requested below, was proper, and we reject Roberge's contrary assertion.


The judgment (order of commitment) is affirmed.


1.   All further statutory references are to the Welfare and Institutions Code.

2.   A score of five on the RRASOR translates to “a 48.8 percent chance of sexually reoffending within five years and 73.1 percent probability of doing so in 10 years.”  (People v. Turner (2000) 78 Cal.App.4th 1131, 1137, fn. 13, 93 Cal.Rptr.2d 459.)   Of course, the percentage calculations generated by the RRASOR procedure, relying as they do upon a small range of whole-number inputs with a small whole-number result, must necessarily suffer from the logical fallacy of misplaced precision;  that is, a “48.6 percent” probability or a “73.1 percent” probability is a mathematical construct necessarily only generally related to a process by which any individual is assessed.   There is clearly no way in which such a prediction about any particular human's individual behavior can be stated to decimal-point accuracy, which alone would also constitute a proper reason for refusing to instruct the jury in the manner requested by Roberge.

3.   Despite being pressed to do so, Dr. Miccio-Fonseca refused to state that in her opinion it was “more likely than not” that Roberge would reoffend, but simply stated it was her opinion such reoffense by Roberge was “likely.”

4.   Dr. Donaldson had expressed similar views in other SVP cases.   (See, e.g., People v. Turner, supra, 78 Cal.App.4th at p. 1138, 93 Cal.Rptr.2d 459;  People v. Ward (1999) 71 Cal.App.4th 368, 371, 373, 83 Cal.Rptr.2d 828.)

5.   We recognize that the question in Estrada was whether an amplifying instruction should have been given sua sponte, without a request therefor, but the governing principles are applicable also to the situation here, where a requested instruction is refused.  (See, e.g., People v. Smithey (1999) 20 Cal.4th 936, 981-982, 86 Cal.Rptr.2d 243, 978 P.2d 1171;  People v. Mayfield (1997) 14 Cal.4th 668, 781, 60 Cal.Rptr.2d 1, 928 P.2d 485;  and People v. Enriquez (1996) 42 Cal.App.4th 661, 665, 49 Cal.Rptr.2d 710;  see also People v. Coddington (2000) 23 Cal.4th 529, 594, 97 Cal.Rptr.2d 528, 2 P.3d 1081:  “We credit jurors with intelligence and common sense [citation] and do not assume that these virtues will abandon them when presented with a court's instructions.”)

6.   “Likely is a word of general usage and common understanding, broadly defined as of such nature or so circumstantial as to make something probable and having better chance of existing or occurring than not.”   (Black's Law Dict. (6th ed.1990) p. 925.)   This definition reflects the current “common understanding” of the word. “Likely” is also defined as “[h]aving an appearance of truth or fact;  that looks as if it would happen, be realized, or prove to be what is alleged or suggested;  probable” (Compact Edition of the Oxford English Dictionary (OED) (Oxford, 1971) p. 1625);  the suffix “ly” originally meant “having the appearance or form indicated by the first element of the word” (id. at p. 1683).

7.   “[W]e acknowledge, as appellant urges, that in ordinary usage and in many legal contexts ‘likely’ means ‘probable’ or, as the jurors put it, ‘more probable than not.’ ”  (People v. Savedra, supra, 15 Cal.App.4th at p. 744, 19 Cal.Rptr.2d 115.)


KREMER, P.J., and O'ROURKE, J., concur.

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