In Re Pima County Mental Health Cause No. A20020026

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

IN RE PIMA COUNTY MENTAL HEALTH CAUSE NO. A20020026

No. 2 CA-MH 2015-0001-SP
Filed June 23, 2015

Appeal from the Superior Court in Pima County
No. A20020026
The Honorable Richard S. Fields, Judge

AFFIRMED

COUNSEL

Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant

Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Appellee

OPINION

Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Miller and Chief Judge Eckerstrom concurred.
 IN RE PIMA COUNTY MENTAL HEALTH CAUSE NO. A20020026
Opinion of the Court

E S P I N O S A, Judge:

¶1 In this appeal, we consider whether appellant John

Sanchez was properly denied reinstatement of his conditional

release pursuant to A.R.S. § 36-3713(C) following a revocation

hearing. By way of background, in August 2003, a jury found

Sanchez to be a sexually violent person as defined in A.R.S.

§ 36-3701(7) of Arizona's Sexually Violent Persons (SVP) Act, A.R.S.

§§ 36-3701 through 36-3717.1. Pursuant to the jury’s verdict, the trial

court ordered Sanchez committed to the custody of the Arizona

Department of Health Services for placement at the Arizona

Community Protection and Treatment Center (ACPTC). This court

affirmed the jury verdict and commitment order on appeal. In re

Commitment of Sanchez, No. 2 CA-MH 2003-0014-SP (memorandum

decision filed Apr. 6, 2005). In 2009, this court affirmed the trial

court’s denial of Sanchez’s subsequent request for discharge. In re

Detention of Sanchez, No. 2 CA-MH 2009-0003-SP (memorandum

decision filed Oct. 8, 2009).

¶2 Sanchez requested release to less-restrictive alternative

conditions pursuant to §§ 36-3710 and 36-3711, in 2012. The trial

court noted that Sanchez’s “response to sex offender treatment has

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Opinion of the Court

been on a constant upward swing since approximately 2008” and

that his doctors’ reports “have illustrated a positive change over

time.” Citing § 36-3714(A), the court also noted that the state could

“no longer meet its burden of proving beyond a reasonable doubt

that [Sanchez’s] disorder has not changed and that he is likely to

engage in acts of sexual violence if discharged.” See also § 36-

3709(A) (state must prove beyond reasonable doubt that petitioner’s

mental disorder has not changed and petitioner remains danger if

released to less restrictive alternative). But, it determined that

“immediate discharge would not be in the best interests of anyone,

including Sanchez himself.” The court therefore ordered conditional

release to Tucson Counseling and Consulting Services, with specific

conditions of release.

¶3 In July 2014, the trial court revoked the conditional

release after Sanchez had admitted having touched a young girl on

her back and a polygraph examiner had reported indicia of

dishonesty during Sanchez’s testing. The court ordered Sanchez

“returned to Arizona Community Protection and Treatment

Center.” This court granted Sanchez’s special action petition in part,

vacating the court’s decision because it had failed to “conduct a

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Opinion of the Court

hearing in compliance with A.R.S. § 36-3713.” Sanchez v. Fields,

No. 2 CA-SA 2014-0047, ¶ 2 (decision order filed Aug. 8, 2014). In

December 2014, after a multi-day hearing, the court again revoked

Sanchez’s conditional release and committed him to total

confinement.

Discussion

¶4 “Because involuntary treatment proceedings may result

in a serious deprivation of appellant’s liberty interests,” In re

Maricopa Cnty. Superior Court No. MH 2001–001139, 203 Ariz. 351,

¶ 8, 54 P.3d 380, 382 (App. 2002), the applicable statutes must be

strictly followed, In re Maricopa Cnty. Superior Court No. MH 2003–

000058, 207 Ariz. 224, ¶ 12, 84 P.3d 489, 492 (App. 2004). We will

uphold a trial court’s findings of fact in this context unless they are

“clearly erroneous or unsupported by any credible evidence.” In re

Maricopa Cnty. Mental Health Case No. MH 94–00592, 182 Ariz. 440,

443, 897 P.2d 742, 745 (App. 1995).

¶5 Pursuant to § 36-3713(C), a trial court is required, within

five days of notice that the person previously conditionally released

has been detained, to schedule a hearing. To order a return to total

confinement, “[a]t the hearing, the court shall determine if the state

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Opinion of the Court

has proved by a preponderance of the evidence that the person” did

not comply with the conditions of release and that, inter alia, return

to total commitment is appropriate. § 36-3713(C). In making its

determination, “[t]he court may admit hearsay evidence if [it] finds

that the hearsay evidence is otherwise reliable.” Id.

¶6 In a somewhat confusing argument, Sanchez apparently

contends that the evidence was insufficient to prove beyond a

reasonable doubt that he poses a danger to others and that a lower

standard of proof “is improper.” As noted above, the statute

provides a “preponderance of the evidence” standard in this

context. § 36-3713(C). Sanchez’s argument on this point centers on

his assertion that “[t]here was insufficient evidence presented to

prove that [he] continues to qualify as an SVP.” But the hearing here

was not aimed at determining Sanchez’s status as an SVP, see, e.g.,

§§ 36-3707, 36-3709, 36-3714, but rather to determine whether his

release to less restrictive placement should be revoked, see § 36-3713.

¶7 In the context of a hearing on a petition for change of

status filed after an annual review or on a petition for discharge, the

state is required to prove “beyond a reasonable doubt” that the

SVP’s mental disorder is unchanged and he or she remains a danger.

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 IN RE PIMA COUNTY MENTAL HEALTH CAUSE NO. A20020026
Opinion of the Court

§§ 36-3709, 36-3714. But when the issue is revocation of a

conditional release, the burden of proof is lower, and the liberty

interests Sanchez cites are not implicated because the state has

already met the greater burden in establishing his continuing status

as an SVP. Thus, his apparent argument that a lower standard of

proof is unconstitutional fails—he has not explained how a

heightened standard is constitutionally required in this context.

And his reliance on cases addressing the deprivation of liberty in the

first instance is misplaced. See, e.g., In re Winship, 397 U.S. 358, 367-

68 (1970) (juveniles entitled to finding of proof beyond reasonable

doubt); In re Gault, 387 U.S. 1, 41, 55-56 (1967) (juveniles entitled to

counsel, confrontation, privilege against self-incrimination); see also

Kansas v. Hendricks, 521 U.S. 346, 371 (1997) (holding Kansas’s SVP

Act “comports with due process” and double jeopardy principles).

The trial court created some uncertainty in regard to the nature of

the proceeding by initially referring to § 36-3714, but the remainder

of the proceedings, outlined above, make clear that the court’s

statement referred to the state’s ability to meet its burden related to

whether Sanchez posed a continued danger to the community such

that total confinement was required.

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¶8 Sanchez next contends that his therapist, Jennifer

Balistreri, was unqualified to determine whether he “continue[d] to

have a mental disorder” because she is not a licensed psychologist or

psychiatrist, which he argues is required by §§ 36-3702 and 36-3708.

But, § 36-3708 does not require testimony from a psychologist or

psychiatrist, but only a “competent professional.” Further, that

section relates to the annual examination of a committed person, not

to revocation of conditional release. Section 36-3713, which relates

to revocation of release, does not require testimony from any

particular type of mental health expert. Nor does § 36-3702, which

provides the requirements for establishing that a person is an SVP in

the first instance, apply in this context.

¶9 Furthermore, although Sanchez asserts that Balestreri’s

testimony was “improper expert testimony,” he fails to develop any

meaningful argument on this point, and any such claim is therefore

waived. See Ariz. R. Civ. App. P. 13(a)(7); Polanco v. Indus. Comm’n,

214 Ariz. 489, n.2, 154 P.3d 391, 393–94 n.2 (App. 2007) (failure to

develop and support argument waives issue on appeal). We

likewise reject his claim that Balestreri presented improper hearsay

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Opinion of the Court

evidence because, as noted above, § 36-3713(C) specifically allows

hearsay evidence.

¶10 Sanchez next asserts his statements made to Balestreri

should have been suppressed because they were involuntary in that

they violated his rights under the Fifth Amendment to the United

States Constitution. As the state points out, however, SVP

proceedings are “strictly civil in nature” and the “privilege against

compulsory self-incrimination does not apply.”1 In re Commitment of

Conn, 207 Ariz. 257, ¶¶ 7-11, 85 P.3d 474, 476-77 (App. 2004).

¶11 Last, Sanchez argues “there is no reliability in the

polygraph” testing. To the extent Sanchez is claiming the results of

the testing should not have been admitted, we note that Sanchez

offered the polygraph report at the hearing, and the state’s

acquiescence essentially constituted a stipulation by the parties to its

admission. Cf. State v. Hoskins, 199 Ariz. 127, ¶ 69, 14 P.3d 997, 1014

(2000), supp. op. , 204 Ariz. 572, 65 P.3d 953 (2003) (references to

1 United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005), on
which Sanchez relies, is inapposite. That case involved a defendant
who was required to submit to polygraph examinations as part of a
treatment program ordered as a condition of probation in a criminal
matter. Id. at 1131.

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Opinion of the Court

polygraph admissible only upon stipulation). Furthermore, the

purpose of the polygraph test here was to monitor Sanchez’s

treatment pursuant to § 36-3710(E) and did not go to the ultimate

issue, as evidenced in Balestreri’s testimony. Moreover, even if there

were any error in the admission of the polygraph results, it was

invited because Sanchez moved to admit the report. See In re

MH2009-002120, 225 Ariz. 284, ¶ 8, 237 P.3d 637, 640 (App. 2010)

(party who leads court to take action may not assign action as error).

Finally, to the extent he argues it undermines the trial court’s factual

findings, we reject this claim because the findings were supported

by substantial evidence. Maricopa Cnty. No. MH 94–00592, 182 Ariz.

at 443, 897 P.2d at 745. Sanchez himself acknowledged at the

hearing that the polygraph results were correct insofar as they

indicated he had not been forthcoming in relation to the incident

about which he was questioned.

Disposition

¶12 For all of the foregoing reasons, the trial court’s order is

affirmed.

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