Judge Rules Rapist Can Be Held After Serving Sentence

A San Jose judge, refusing to release a notorious serial rapist, upheld as constitutional Friday a new state law that allows sex offenders who have served their sentences to be locked up in mental institutions.

The law was challenged by Christopher Hubbart, 45, who has served his sentence and his parole behind bars. Hubbart, a native of Pasadena, has been linked to about 30 rapes, most of them in Southern California. He has been in and out of prison and mental institutions since 1973.

“I am relieved,” said Santa Clara County Deputy Dist. Atty. Peter Waite. “I am real happy. . . . I was beginning to worry.”

The ruling by Santa Clara County Superior Court Judge Robert Foley came in the first test of the law, passed last year over the objections of civil libertarians and defense lawyers. The law was motivated by public uproar over the releases of rapists who had served their sentences and could no longer be legally confined.

Gov. Pete Wilson, in a prepared statement, commended Foley’s ruling.

“Vicious convicted sexual predators cannot be allowed to roam our streets,” Wilson said. “They belong behind bars or in a secure mental institution to protect our wives, daughters and young children from any repetition of their heinous crimes.”

Hubbart’s lawyers said they will appeal Friday’s decision and expect a higher court to eventually strike down the law. They attributed the ruling to public and political pressure.

“Any time that we reduce the standards of what constitutes mental illness in order to incarcerate some group, everyone has something to worry about,” said Arnold Erickson, a lawyer with the Prison Law Office in San Quentin. “That is really what distinguishes us from totalitarian societies that have historically branded people as mentally ill to imprison them.”

Rowan K. Klein, a Santa Monica lawyer who also represents Hubbart, said he will appeal the ruling to the California Supreme Court and then to federal court if necessary.

“It’s difficult politically,” Klein said. “There was a lot of community pressure.”

Hubbart’s lawyers argued that the law violated the Constitution because it was aimed at punishing Hubbart twice for the same crime and incarcerating him for a longer period than the law prescribed when he was convicted.

Although other laws that allow involuntary confinement require proof that the person presents a danger, the new law only mandates that the individual be found likely to commit another sex crime.

“While the English language . . . does have its limits,” Foley said in a written, three-page decision, “it is an affront to reason to suggest that a person who, as a result of a mental disorder, is likely to commit violent sexual offenses is not presently dangerous.”

Foley’s ruling, if upheld by higher courts, has ramifications for hundreds of other repeat sex offenders now in prison. The state has determined that more than 30 such offenders who are scheduled to be released during the next few months are “mentally defective” and can face civil commitment hearings under the law. About 100 others are being evaluated.

Hubbart, who completed his sentence and parole about two weeks ago, was the first to fall under the new law. Other inmates are also expected to challenge it as their release dates draw near. Erickson said cases are pending in Los Angeles, San Luis Obispo and Alameda County.

The law applies to those sex offenders who assault two or more victims. If found “mentally defective” by two state mental health experts, the offender is referred to the prosecutor in the county where the last offense was committed.

The prosecutor can ask for a jury trial to determine whether the offenders should be committed indefinitely to a mental institution. A unanimous verdict is required.

Foley set a hearing in two weeks to determine whether Hubbart must face such a trial, which could be scheduled within the next few months.

Hubbart was sent to Atascadero State Hospital in 1973 as a mentally disordered sex offender after he was linked to about 20 rapes. Authorities now associate him with about 30 rapes.

On the day of his release in 1979, Hubbart committed another rape and was again incarcerated. He was last convicted in Santa Clara County for grabbing the breast of a female jogger and sentenced to five years in prison. He was released on parole in 1993 but was returned to custody after two months after failing a psychiatric evaluation.

Hubbart has an IQ of 122 and a bachelor’s degree in sociology. His mother, a social worker, and his father, a retired journalist who became a jazz musician, divorced when he was 5. Erickson said Hubbart’s family still lives in Southern California and strongly supports him.

State experts have differed over Hubbart’s mental state. When he was due to be paroled again in 1994, one psychologist found him to be a bright, shy man who was truly sorry for his actions and was trying hard to control his impulses.

But another state psychologist found him dangerous and likely to rape again. Eventually, a third expert agreed that Hubbart was dangerous, and he was forced to spend his parole period in prison. If the new law is overturned or Hubbart persuades a jury that he should not be committed, he would be released to the streets without parole supervision.

Klein said his client’s criminal behavior has decreased drastically over the years. “All the bad stuff was in the 1970s,” Klein said, except when he “freaked out” and grabbed a woman’s breast in 1990.

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