In re BRIAN J.,

Filed 4/24/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

Story Continued from Part I ..

. Talbert tested defendant and found no indications of organic impairment.  On the personality assessment inventory, his score on the violence potential index was one of the highest Dr. Talbert had seen, indicating defendant has a greatly high risk of violent behavior. A violence risk appraisal based on defendants file information showed a 55 percent probability of violent recidivism in seven years after release and a 64 percent probability in 10 years after release.  A sex offender risk appraisal based on his file information showed a 58 percent probability of violent recidivism after seven years of release and a 76 percent probability after 10 years of release.

Dr. Talbert also gave defendant a multiphasic sex inventory.  The results indicated that he may have some problems controlling his sexual thoughts and impulses, and he appeared to be actually obsessed with sex. On the motivation for treatment scale, he answered False to the statement, Even without any treatment, I know that I can control my sexual behavior, and True to the statement, I need help because Im not able to control my sexual behavior. Overall, the test showed that defendant is interested in sex with children, and he has sexual urges, fantasies, and behaviors consistent with pedophilia and child molestation, and rape fantasies tied to sexual sadism.  Defendants overall profile on the test was not even close to meeting the criteria for one who has completed treatment for being a sex offender. On the Hare psychopathy checklist, defendants score was in the psychopathic range, meaning he has [a]n elevated risk of future violence and recidivism.

Dr. Talbert diagnosed defendant with (1) pedophilia, sexually attracted to both, nonexclusive type; (2) sexual sadism; (3) sexual masochism; (4) sexual disorder, not otherwise specified; (5) paraphilia, not otherwise specified; (6) ADHD, predominantly hyperactive impulsive type; (7) sexual abuse of a child; and (8) antisocial personality disorder.  She also believed he should be diagnosed with exhibitionism, frotteurism, and posttraumatic stress disorder.

In Dr. Talberts view, pedophilia is a lifelong problem, like an addiction, and people who are not treated have significant difficulty in controlling their behavior.  Sexual sadism is a rare disorder, and defendant was very young when he committed his offense.  Sexual sadists may control their behavior in a controlled setting, but have no incentive to stop when released to the community unless they have been treated. Adults with ADHD are more likely to act out sexually than persons without the disorder, and ADHD can exacerbate other disorders, making it more difficult for one to control his or her behavior.  Medication is not generally enough to control impulsive behaviors.

Dr. Talbert stated her opinion that based on the severity of the diagnoses and lack of treatment, defendant would not be able to control his behavior, and he is physically dangerous.  She believed he could successfully be treated, and treatment options are available in CYA.  She believed defendant has the capacity to control his behavior, but there was no evidence he had learned the proper coping tools and mechanisms to help him succeed in the community, and he therefore had an increased risk of being unable to control his behavior. Dr. Talbert based her opinion on defendants history, his CYA writing assignments, her interview of defendant, and psychological tests.

In preparing her section 1800 evaluation, Dr. Talbert discussed defendants treatment with Dr. Johnson. Dr. Johnson told Dr. Talbert that defendant was attentive in group and was making progress. He was learning concepts, but not applying them to his behavior. Dr. Johnson told Dr. Talbert that defendant was a very dangerous ward and that he has not completed his treatment and that he doesnt really seem to be motivated to work on his issues. Dr. Johnson also reported that defendant stalks female staff often and had acted out sexually with males while in CYA and that he still has a lot of work to do in his treatment before he would be ready for release.

In his defense, defendant presented the testimony of Richard Alvarado, a treatment team supervisor, who had investigated the incident involving the cook. After interviewing the cook, other witnesses, staff members, and defendant, Alvarado modified the original complaint from attempted assault on a staff member to a security violation for being in an out-of-bounds area.  However, Alvarado testified that the evidence presented to him had not included defendants later admission that he had intended to rape the cook. If Alvarado had had that information, he would have sustained the original allegation.

Following trial, the jury found that defendant is physically dangerous to the public because of his mental or physical deficiency, disorder, or abnormality which causes him to have serious difficulty controlling his dangerous behavior, and this inability to control his behavior results in a serious and well-founded risk that he will reoffend. The trial court ordered that defendants CYA commitment be extended for not more than two years.

III. DISCUSSION

In keeping with the principle that we do not reach constitutional issues if the case may be decided on another basis (see, e.g., Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230), we will first consider defendants challenge to the sufficiency of the evidence and his argument that the prosecutor committed prejudicial misconduct. We will then turn to defendants various constitutional challenges to his extended detention.

A. Sufficiency of Evidence

Defendant contends the evidence was insufficient to establish that his mental disorder causes him to have serious difficulty in controlling his behavior and that there was a resulting serious and well-founded risk he would reoffend.

1. Standard of Review

When reviewing the sufficiency of the evidence in an EDA case, we view the record as a whole in the light most favorable to the judgment, drawing all inferences the trier of fact could reasonably have made to support the finding. (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1503 (Anthony C.).) In a case such as this, relying largely on expert testimony, experts must base their opinions on relevant, probative facts rather than conjecture (Id. at pp. 1503-1504), but the jurors are not bound by any experts opinion. In reaching their verdict, jurors must weigh the conflicting expert or lay opinions based on the qualifications and believability of each witness, the reasons for the opinion, and the matter upon which it is based. The jurors should give each expert opinion the weight they feel it deserves and may disregard any opinion they find unreasonable. (See, e.g., People v. Smithey (1999) 20 Cal.4th 936, 966.)

2. Analysis

In In re Howard N. (2005) 35 Cal.4th 117 (Howard N.), the California Supreme Court established stringent requirements for an extended detention consistent with the recent United States Supreme Court cases of Kansas v. Crane (2002) 534 U.S. 407 (Crane) and Kansas v. Hendricks (1997) 521 U.S. 346, both of which addressed Kansass sexually violent predator (SVP) laws.^[1] The Howard N. court held that for the EDA to be constitutional, it must be construed as requiring that the defendants mental deficiency, disorder, or abnormality causes serious difficulty in controlling behavior. (Howard N., supra, 35 Cal.4th at pp. 122, 136, italics added.)

However, as defendant concedes, a total lack of control is not necessary. (Crane, supra, 534 U.S. at p. 411; Howard N., supra, 35 Cal.4th at p. 129.) The Supreme Court in Crane stated: It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. (Crane, supra, 534 U.S. at p. 413.)

The Howard N. court explained, Hendricks [supra, 521 U.S. 346] underscored the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings. [Citation.] That distinction is necessary lest civil commitment become a mechanism for retribution or general deterrence -- functions properly those of criminal law, not civil commitment. [Citations.] The presence of what the psychiatric profession itself classified . . . as a serious mental disorder helped to make that distinction in Hendricks. And a critical distinguishing feature of that serious . . . disorder there consisted of a special and serious lack of ability to control behavior. [] In recognizing that fact, we did not give to the phrase lack of control a particularly narrow or technical meaning. And we recognize that in cases where lack of control is at issue, inability to control behavior will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior. . . . [Citation.] (Howard N., supra, 35 Cal.4th at p. 129.)

Thus, to extend an adult wards CYA commitment beyond the date CYA jurisdiction would normally expire, there must be proof beyond a reasonable doubt that the person has a mental, physical, or psychological disorder that makes him physically dangerous to the public and that causes him serious difficulty in controlling his dangerous behavior. ( 1801.5; Howard N., supra, 35 Cal.4th at pp. 134-135.) In In re Michael H., supra, 128 Cal.App.4th at p. 1091, the court held that an additional finding is required that the persons inability to control his behavior results in a serious and well-founded risk he will reoffend. Here, the jury was instructed that all these elements must be proved beyond a reasonable doubt, and the jury returned a verdict finding all the required elements.

Defendant contends, however, that the evidence is insufficient to prove that his mental disorder causes him to have serious difficulty in controlling his behavior, and as a result, there was no proof of the fourth element, a serious risk of reoffense.

However, defendant acknowledges that the expert testimony on the issue of whether his mental disorder causes him to have serious difficulty in controlling his behavior was conflicting. Dr. Talbert testified that pedophilia is a lifelong problem, and pedophiles are at high risk to continue their behavior if not treated. Sexual sadists may be able to control their behavior in highly controlled settings, but if released to the community without the necessary tools, they have no incentive to stop their behavior. Dr. Talbert stated her opinion that defendant is physically dangerous and will not be able to control his behavior. Dr. Talbert also performed a risk analysis that showed a well-founded risk defendant would reoffend, and she tied that risk to his diagnosed disorders.

Nonetheless, defendant argues that the evidence at trial did not meet the stringent criteria for extended detention as established in Howard N., supra, 35 Cal.4th 117.He relies primarily on the testimony of Dr. Johnson, who testified that defendants disorder did not cause him serious difficulty in controlling his behavior but that instead, he planned his behavior. Dr. Johnson further testified that the Howard N. case had changed her opinion as to whether section 1800 proceedings were appropriate in defendants case. She explained, [This] case seems to have really changed the issues at hand. While somebody may appear to be dangerous and might be dangerous, the fact is my understanding of this case law requires the person to have a mental illness, for example, as [defendant] does, but the mental illness must affect his volitional behavior and that would take more of like a psychotic disorder or it may be mental retardation. Something very severe to affect his behavior. Thats my interpretation of the new case law. (Italics added.) She further explained that she believed the disorder has to be of a nature where hes not able to exercise free will. (Italics added.)

Defendant also notes that Dr. Talbert opined that although defendant is physically dangerous, he does have the capacity to control his behavior and has shown that he can control his behavior. YCC Gutierrez testified that after defendants return to Chaderjian in 2004, defendants behavior and maturity had improved he seemed better able to manage himself, and he no longer was engaging in verbal or aggressive behavior. Dr. Johnson also noted improvements in defendants behavior and in his participation in therapy after his return to Chaderjian. Defendants anger had subsided or was less apparent, he could subdue his anger more easily, and he did not have any behavior problems in group therapy. Dr. Poncin testified defendant had the capacity to control his behavior. Although she testified that every pedophile and sexual sadist bears a risk of having a serious difficulty of controlling his behavior, she concluded that defendants mental disorders did not render him incapable of controlling his behavior.

In citing this evidence, defendant has merely pointed out conflicts in the evidence, and the jury resolved those conflicts against defendant. In fact, defendants trial counsel acknowledged in argument to the jury that the experts opinions were in conflict. Moreover, the evidence in this case is in sharp contrast to that in the one published case in which evidence was found insufficient to support an extended detention under the EDA.

In Anthony C., the Court of Appeal held that the evidence was insufficient to support a finding beyond a reasonable doubt that the defendant had serious difficulty controlling his sexually deviant behavior. (Anthony C., supra, 138 Cal.App.4th at p. 1509.) In that case, the defendant had been in his teens when he confessed to a sex crime against a child and was committed to the custody of the CYA. Before CYA jurisdiction expired, a petition was filed to extend his commitment under the EDA. (Id. at p. 1500.) At the ensuing trial, a CYA psychologist, Dr. Herskovic, testified that the defendant had pedophilia and ADHD and posed a moderate risk of reoffending; however, Dr. Herskovic acknowledged he had not conducted a formal risk assessment. (Id. at p. 1502.) The defendants youth counselor stated that the defendant generally behaved well, but he needed close supervision and had difficulty telling the truth. (Ibid.)

The jury found the defendant to be dangerous, and the trial court extended his commitment for two years. (Anthony C., supra, 138 Cal.App.4th at p. 1502.) On appeal, the court noted that clear evidence showed that the defendant had a mental disorder, based on the diagnoses of pedophilia and ADHD, but the psychologist failed to testify about the extent or degree of the disorder, never discussed whether or not it could be cured, never characterized it as a repetitive compulsive disorder, and never prepared a formal risk assessment. (Id. at p. 1506.) Another expert had been requested to make such an assessment, but shortly before the hearing, he announced that he was unavailable to appear, and his conclusions or report were not introduced as evidence. Dr. Herskovic had seen the second experts report, but could not recall many of the factors that expert had relied on and was uncertain as to the degree of risk the defendant posed. (Id. at pp. 1506-1507.) Thus, the court concluded, Dr. Herskovics testimony did not amount to substantial evidence that the defendant had serious difficulty controlling his behavior, and no evidence indicated that the defendants mental problems caused him serious difficulty controlling sexually deviant behavior. (Id. at p. 1507.) In addition, Dr. Herskovic suggested that any impulsivity arising from the defendants ADHD might be controlled with medication. (Ibid.) The defendants behavior during confinement did not support a finding of current lack of control, because he had no history of acting on fantasies while committed, he understood he had a mental illness, he participated in the sex offender program, and he was serious about his treatment. (Id. at p. 1508.) The defendants own statement that he believed he needed more treatment before he would feel comfortable about release from commitment did not necessarily prove he was dangerous, but could just as easily be an indicator he is on the road to rehabilitation. (Ibid.)

Here, in contrast, Dr. Talbert did prepare a formal risk assessment. The violence risk appraisal based on defendants file information showed a 55 percent probability of violent recidivism in seven years after release and a 64 percent probability in 10 years after release.  The sex offender risk appraisal based on his file information showed a 58 percent probability of violent recidivism after seven years of release and a 76 percent probability after 10 years of release.

Moreover, unlike the defendant in Anthony C., supra, 138 Cal.App.4th 1493, defendant had an extensive history of acting on his fantasies while committed. This included keeping child pornography to help him masturbate, yelling obscenities at visiting children while masturbating through the visitors window, making rude comments to his peers, touching their genitals, writing sexual letters, masturbating another ward, exposing himself to female staff members, and masturbating twice a day to sexual fantasies about young boys. Although defendant showed some progress in treatment, he admitted masturbating another ward in a classroom in January 2002, and he exposed himself twice to a female supervisor in 2004. Dr. Johnson recommended defendant be tracked for a section 1800 report because of his lack of participation in sex offender treatment, his level of aggression and inability to control it, his ongoing sexual acting out, and the danger he posed to the community. Thus, Dr. Johnsons testimony at trial was contradictory to her own earlier written notes and incident reports.

Osei Yaw, defendants youth counselor from September 2003 through April 2004 reported that defendant acknowledged he was a pedophile not anywhere near recovery. Defendant stated that being around children, using pornography, and his own deviant fantasies could trigger him into molesting children again. He still acted out sexually in his living unit, wrote inappropriate notes, and stalked other wards. He acknowledged having sexual fantasies about other wards while watching them from his room. Yaw opined defendant still posed a danger to children because he was sexually attracted to them, and he had very little impulse control over his urges. In tests conducted by Dr. Talbert, defendant admitted he could not control his sexual behavior without treatment and that he needed help because he was not able to control his sexual behavior.

In People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 921, footnote 12, the court explained the distinction between the elements of a qualifying mental disorder that makes it seriously difficult to control violent sexual impulses and a likelihood of reoffense in the context of the SVPA. The court noted that an offender who does not have the required mental disorder may not be committed regardless of the risk of reoffense. (Ibid.) The court continued, [T]he SVPA requires both a qualifying mental disorder and a likel[ihood] of reoffense, and the one does not predetermine the other. That ones mental disorder causes serious difficulty in controlling violent sexual impulses does not mean that such control is impossible. [Citation.] Many factors, including amenability to voluntary treatment . . . may influence the disordered offenders motivation, ability, means, and opportunity to function lawfully without supervision or restraint despite the impairment. The SVPA seeks to identify, confine, and treat only those volitionally impaired sex offenders whose chances of doing so are sufficiently low to present a serious, well-founded risk of reoffense. (Ibid.) We believe the same criteria should apply to EDA commitments.

We thus conclude the evidence amply supported the jurys findings that defendants mental disorder causes him serious difficulty in controlling his dangerous behavior and that the risk of reoffense is a result of a mental disorder.

Moreover, we observe that although neither party objected on that basis, Dr. Johnsons testimony giving her interpretation of Howard N., supra, 35 Cal.4th 117, was a conclusion of law that was essentially irrelevant and inadmissible. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Distinction: Opinion on Issue of Law,  97, pp. 644-646 [as a general rule, expert testimony on legal conclusions is inadmissible]; see also People v. Torres (1995) 33 Cal.App.4th 37, 45-46 [holding that expert testimony on the meaning of a statute was generally inadmissible and that instructing the jury on pertinent principles of the law was the duty of the trial court].) Dr. Johnson appears to have interpreted Howard N. as requiring that a defendant be unable to control his behavior as a prerequisite to extended detention. As we have explained above, and as the jury was instructed, only a showing of serious difficulty in controlling behavior is required.

B. Prosecutorial Misconduct

Defendant next contends the prosecutor committed reversible error by (1) appealing to the jurors passions and prejudices by implying they could protect society with their verdict, and (2) interjecting his personal views into his argument by giving the jurors his own definition of addiction. In addition, defendant argues the prosecutor used first person pronouns when discussing the likelihood defendant would reoffend in the absence of further treatment, and posited a scenario in which defendants victim could later use his victimization to defend himself against molestation charges, although there was no evidence that the victim had molested or was likely to molest another.

1. Factual Background

During argument, the prosecutor summarized some of the counselors and therapists assessments of defendant as follows: After [defendants] evaluation, he went back to [Chaderjian]. And while there were some bumps in the road there, Dr. Johnson, Mr. Gutierrez said you know what? I saw improvement of this guy. I saw maturity that hadnt been there before. I saw at least a willingness to engage in the treatment process that wasnt there before. [] Is he done? Dr. Johnson said no. Hes got a lot of work to do. But she saw a maturity and a willingness on his part to try. The prosecutor then stated, I think we can serve both interests here by finding true. We can protect our community and insure that there are no other victims out there.

Defense counsel objected, the court sustained the objection, and defense counsel moved for a mistrial. The court took the motion under submission.

The prosecutor then concluded argument as follows: By a finding of true, we can help that those four elements that youre saying are true, that he has a mental disorder, that hes physically dangerous to the public, that he has a problem, significant difficulties controlling that and that hes likely to reoffend. We can try our best to make sure that doesnt happen. [] Id ask that you find the Petition true.

During a recess, defense counsel argued in support of the motion for a mistrial that the prosecutor had committed prejudicial misconduct in appealing to the jurors passions, prejudices and fears by appealing to them to render a true finding in order to insure the safety of their community. The court found the prosecutors argument to be totally improper and misconduct, and asked the prosecutor to address whether a mistrial should be granted.

The prosecutor argued that a curative instruction would be sufficient. Defense counsel disagreed, arguing that a mistrial was the only effective remedy: I dont think a curative instruction is going to unring the bell. That was a damning appeal to their passions and to their fears. The trial court acknowledged that the prosecutor had interjected personal opinions into argument on multiple occasions. For example, the prosecutor had stated, Is it possible hes not going to go out and reoffend without any further treatment? Thats possible. I dont think its likely. And I dont think thats what the testing supports. The prosecutor had also given his own definition of addiction: What is an addiction? My understanding of an addiction is that you engage in behavior, you want to engage in behavior and you have a hard time not engaging in that behavior. The prosecutor had further argued that defendants victim might someday victimize another and urged the jury to try and break the cycle.^[2]

After further argument on the motion, the trial court denied the motion for mistrial, but stated it would give a curative instruction. The trial court thereafter instructed the jury as follows: You know, as I told you before, statements by the lawyers in argument are not evidence, but theres a couple [of] things I need to clarify. [] One, theres no evidence before you that [the victim] has molested anyone. And the second thing is your duty is not to insure the protection of society as was implied in the argument. Your duty is to determine whether the Petition is true beyond a reasonable doubt. And thats what you must focus on in rendering your decision.

Story Continued as Part III ..

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^[1] It is settled that the constitutional principles [of state and federal SVP cases] apply equally to all civil commitment schemes, including section 1800 . . . . [Citation.] (In re Michael H., (2005) 128 Cal.App.4th 1074, 1089.)

^[2] The prosecutor had argued: And then eight-year-old [victim], thats another story that you guys dont know the ending to and you wont know the ending to because its not an issue before you. But can you imagine a scenario where a person charged with child molestation comes before the court or the jury and says, I was a victim, too. So dont pay attention to what I did. Pay attention to what happened to me. And, as a society, we simply cannot hold to that standard.

We need to make attempts to try and break the cycle as best we can. Theres no evidence that every person who was molested goes on to molest. But theres really strong evidence that says those who do go on to molest almost always were molested as a child in some form or fashion. Its rare that somebody was not exposed to this type of behavior but yet then goes out and engages in it. So I mean we need to do something to try and stop that.