“Sexually violent criminal behavior” as used in the Sexually Violent Predator Act (SVPA) is broader than “sexually violent offense” and includes forcible acts of sexual battery committed during frotteuristic episodes. After a bench trial, the trial court found White to be an SVP. White had previously been convicted of assault to commit rape and a series of sexual batteries arising from frotteuristic episodes (rubbing his erect penis against strangers). White appealed, arguing that the trial court erred by reasoning that the term “sexually violent criminal behavior” was broader than “sexually violent offense” and therefore applied to sexual batteries even though sexual battery is not listed as a sexually violent offense. Held: Affirmed. An SVP is “a person who has been convicted of a sexually violent offense against one or more victims and 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.” (Pen. Code, § 6600, subd. (a)(1).) The first element was satisfied by White’s conviction for assault to commit rape, which is a sexually violent offense. He also has diagnosed mental disorders: frotteuristic disorder, exhibitionist disorder, bipolar disorder, and anti-social disorder. However, White asserted that those disorders only made it likely that he would engage in sexually battery, which is not listed as a sexually violent offense. The terms “sexually violent criminal behavior” and “sexually violent offense” cannot be synonymous or else there would be no reason to use different terms in the statute. While there is not a precise definition of “sexually violent criminal behavior” it “undoubtedly” includes “[a]ggressive frotteurism” such as White’s. The court also rejected White’s argument based on Johnson v. United States (2015) 135 S.Ct. 2551, that the term “sexually violent criminal behavior” is void for vagueness.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B267529.PDF