P. v. Clark

Filed 10/27/06 P. v. Clark CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Robert Clark appeals from a trial court order for commitment to the State Department of Mental Health pursuant to a jury verdict finding that he is a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.) (the Act).[1] He contends that (1) the evidence was insufficient to support that he had been convicted of at least two separate sexually violent offenses, (2) the trial court erred by overruling his relevancy and Evidence Code section 352 objections to the admission of evidence that he was HIV positive and had hepatitis C, and (3) the People engaged in misconduct by arguing that he would be released if the jury did not commit him as an SVP. We affirm the judgment.

legal background

“The [Act] provides for the involuntary civil commitment of an offender immediately upon release from prison, for a two-year period, if the offender is found to be an SVP. The civil commitment can only commence if, after a trial, either a judge or a unanimous jury finds beyond a reasonable doubt that the person is an SVP (§§ 6600, 6601, 6603, 6604).” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 243.) In order to sustain a commitment under the Act, the prosecution must prove beyond a reasonable doubt that the defendant (1) had been convicted of at least two separate sexually violent offenses, as defined; (2) had received a determinate term; (3) had a diagnosable mental disorder; and (4) would likely engage in sexually violent conduct if released. (§§ 6600, subd. (a)(1), 6604; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145 (Hubbart); People v. Mercer (1999) 70 Cal.App.4th 463, 466.) No more than one prior juvenile adjudication may be used as a predicate offense and that adjudication must, among other things, result in a commitment to the Department of Youth Authority (CYA). (§ 6600, subd. (g)(4).) An offense committed in another jurisdiction can constitute a predicate offense if that offense includes all elements of a California qualifying offense. (§ 6600, subd. (a)(2)(C).)

sufficiency of the evidence of the predicate offenses

The existence of the requisite prior qualifying convictions for sexually violent offenses “may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health.” (§ 6600, subd. (a)(3).)

Defendant committed the prior qualifying offenses in the State of Washington in 1986 and 1989. He challenges the evidence supporting the 1986 offense, a juvenile adjudication. He essentially claims that the evidence is ambiguous whether he had committed assault, which would not qualify as a predicate offense, or indecent liberties, which he concedes would qualify as a predicate offense.[2]

The People introduced documentary evidence of the 1986 offense that included the following: (1) an information charging defendant with assault (count 1) and indecent liberties (count 2); (2) a guilty-plea statement in which defendant affirmed that he was charged with indecent liberties, defendant wrote in his own words what he did that resulted in his being charged with that offense (“I touch[ed] my son in a way to sexually excite myself”),[3] defendant affirmed that he was pleading guilty to the charge alleged in count 1, and the judge ordered count 1 to be dismissed; (3) an order dismissing count 1 because of a plea bargain, (4) an order of disposition and commitment, which indicated that defendant was found guilty by plea of count 2, indecent liberties (paragraph 1.1), defendant was to be punished for count 1 (paragraph 2.2), and disposition was to be for count 1 (paragraph III); (5) a motion by the prosecuting attorney seeking to amend paragraphs 2.2 and III of the order of disposition and commitment because of clerical error; and (6) an order amending paragraphs 2.2 and III of the order of disposition and commitment to reference count 2 instead of count 1 that is “Approved as to form and Notice of Presentment Waived” by defendant’s attorney.

On the People’s direct examination, defendant admitted sexually molesting the victim involved in his 1986 adjudication and pleading guilty to indecent liberties as to that victim. He also answered “yes” to the following specific question: “You pled to one count, a single count of indecent liberties; correct?”

According to defendant, the documents do not show that he pleaded guilty to committing indecent liberties. He relies on the guilty-plea statement in which he pleaded guilty to count 1, assault, after only admitting being charged with indecent liberties. He reasons that the documents as a whole are ambiguous at most and the ambiguity should be resolved in his favor.[4] Defendant’s analysis is erroneous.

“We review sufficiency of the evidence challenges under the [Act] according to the same standard pertinent to criminal convictions.” (People v. Fulcher (2006) 136 Cal.App.4th 41, 52, citing People v. Mercer, supra, 70 Cal.App.4th at p. 466.) “We examine the documentary exhibits received in evidence at the trial on the prior convictions in the light most favorable to the judgment below to determine whether they disclose substantial evidence--that is, evidence which is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Garrett (2001) 92 Cal.App.4th 1417, 1433.) The trier of fact is entitled to draw reasonable inferences from certified records offered to prove that a defendant suffered a prior conviction. (People v. Henley (1999) 72 Cal.App.4th 555, 561.) Ambiguities in the evidence do not mean that the evidence is insufficient. (See, e.g., In re Merrick V. (2004) 122 Cal.App.4th 235, 249 [“Conflicts between the reporter’s and clerk’s transcripts are generally presumed to be clerical in nature and are resolved in favor of the reporter’s transcript unless the particular circumstances dictate otherwise”].)

Here, the documents support that the Washington judge dismissed count 1 (twice) and found defendant guilty by plea of count 2; the documents also support that two disposition paragraphs had clerical errors that referenced count 1 instead of count 2; the documents further support that defendant’s affirmative plea to count 1 was a clerical error; the documents also support that the judge, the prosecuting attorney, and defendant’s attorney agreed that clerical errors existed and should be corrected; and the documents finally support that the judge corrected the clerical errors in the disposition paragraphs. Moreover, defendant’s own testimony also supports that defendant pleaded guilty to count 2. A rational trier of fact could infer from this evidence that defendant pleaded guilty to and was convicted of count 2 rather than count 1. Defendant was free to argue that such an inference was unreasonable because of the evidentiary conflict and his unamended, affirmative, and written assertion in the guilty-plea statement that he pleaded guilty to count 1. But the jury’s resolution of the point is not open for reargument on appeal. Stated another way, defendant’s point implicates what inference to draw from conflicting evidence rather than whether the evidence is sufficient.

Defendant principally relies on People v. Rodriguez (1998) 17 Cal.4th 253, which considered whether the proof was adequate to establish that a prior assault conviction was a “serious felony” and thus constituted a strike under the Three Strikes law. In Rodriguez, the defendant’s prior assault conviction constituted a serious felony only if the defendant had personally inflicted great bodily injury or personally used a firearm or deadly weapon, but the prosecution proved only that the defendant had been convicted of assault. Here, the question is not whether the evidence establishes a detail about the predicate offense but rather what was the predicate offense.

Defendant also contends that the documents do not show that his commitment to the Washington Department of Social and Health Services, Division of Juvenile Rehabilitation, was the equivalent of a CYA commitment. Again, there is no merit to this claim. The Washington judge committed defendant for a period of 103-129 weeks. And defendant admitted on the People’s direct examination that he had been committed to custody. Absent evidence to the contrary, a rational trier of fact could infer that a juvenile custodial commitment exceeding two years equates to a CYA commitment rather than a less restrictive alternative. Defendant was free to argue that such an inference was unreasonable.

admission of hiv positive and hepatitis c evidence

The People moved in limine to admit evidence that defendant was infected with the HIV and hepatitis C viruses. They asserted that the evidence was relevant to the element whether defendant was likely to engage in sexually violent conduct if released. They pointed out that, in any event, defendant’s expert was relying on defendant’s failing health to opine that defendant had a low to moderate risk of reoffending. Defendant countered that the evidence was irrelevant to his alleged mental disorder and, thus, not probative as to the risk of reoffending. He alternatively urged that the evidence was more prejudicial than probative given that the evidence suggested sexual promiscuity, which, in turn, suggested that he threatened to infect others with his diseases. The trial court granted the People’s motion.

During the People’s direct examination, defendant acknowledged that he had HIV and hepatitis C as a consequence of intravenous methamphetamine use.

During the People’s direct examination, one of the People’s expert witnesses, Dr. Kathleen Longwell, testified on the mental-disorder element of the People’s case. In opining that defendant had all of the seven factors constituting antisocial personality disorder, Dr. Longwell stated: “Then number five is: Reckless disregard for the safety of himself or others. Well, just the fact that [defendant] has got--is both positive for HIV and has chronic, active Hepatitis indicates that he doesn’t seem to have enough sense to know how to take care of himself or to prevent himself from these illnesses. He uses drugs. He has sex with just anybody at any time. This is all indications of not taking care of the safety of himself.”

During defendant’s direct examination, defendant’s expert witness, Dr. Brian Abbott, opined that it was logical to conclude that defendant’s risk of reoffending would be lower due to his serious health problems. And he reiterated this opinion on cross-examination.

Defendant repeats his arguments that the HIV and hepatitis evidence was irrelevant and, alternatively, more prejudicial than probative. The arguments are without merit.

“The trial court is vested with wide discretion in determining the admissibility of evidence.” (People v. Karis (1988) 46 Cal.3d 612, 637.) We therefore review a trial court’s evidentiary rulings for an abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) “When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) “[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.) This rule requires that the reviewing court engage in all intendments and presumptions in support of the decision and consider the evidence in a light most favorable to the prevailing party. (People v. Condley (1977) 69 Cal.App.3d 999, 1015.) It also requires that the party claiming abuse of discretion affirmatively establish the point. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)

Generally, evidence must be relevant to be admissible. (Evid. Code, §§ 210, 350.) “ ‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.)

Here, there can be no question that it is within the bounds of reason to conclude that the HIV and hepatitis evidence was relevant given that the parties’ experts considered the evidence in formulating opinions directed toward elements of the People’s case. Defendant’s claim that his physical condition does not have a tendency in reason to prove his mental condition or likelihood to reoffend is a reargument rather than an explanation why the trial court’s decision was beyond reason.

Even if the evidence is relevant, the court must consider whether its probative value is substantially outweighed by its potential for prejudice. (Evid. Code, § 352; see People v. Zepeda (2001) 87 Cal.App.4th 1183, 1210-1211.)

Under Evidence Code section 352, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

It is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) And the trial court’s exercise of discretion on this issue will not be disturbed on appeal absent a clear showing of abuse. (Ibid.)

Defendant again fails to carry his burden on appeal. Nowhere does he frame an abuse-of-discretion argument. He merely reargues his position instead of focusing on the factors supporting the trial court’s decision and explaining why it was irrational to rely on those factors. For example, he claims that the HIV evidence was bound to have an extremely inflammatory effect upon the jury in the sense that any doubts about his likelihood of reoffending would have been overshadowed by a fear that he would infect children with his disease if he were released.

In any event, the prejudice defendant complains of is not the sort of prejudice referred to in Evidence Code section 352. “Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) Here, the trial court could have rationally concluded that any emotional bias was negligible given that the brief testimony about the evidence had a sympathetic tone rather than an inflammatory tone.[5] Moreover, the People never mentioned defendant’s diseases in their closing argument, which only underscores that the disease evidence turned out to be an insignificant, passing point in a 19-day trial.[6]

Thus, it is not irrational to conclude that the probative value of the disease evidence was not outweighed by the prejudicial impact.

the people’s argument

Defendant finally charges the People with four instances of misconduct during argument that assertedly rendered his trial unfair. These include what defendant calls repeated arguments appealing to the jury’s emotions to the effect that he would be released if not found an SVP.

Misconduct involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Haskett (1982) 30 Cal.3d 841, 866.) And, of course, it is misconduct for a prosecutor to mischaracterize the evidence (People v. Hill (1998) 17 Cal.4th 800, 823), misstate the law (People v. Bell (1989) 49 Cal.3d 502, 538), or appeal to the passion and sympathies of the jurors by asking them to place themselves in the position of the victim (People v. Pensinger (1991) 52 Cal.3d 1210, 1250).[7]

When a statement by the prosecutor is challenged as misconduct, we examine the prosecutor’s statement in the context of the whole argument and all the instructions in order to determine whether there is a reasonable likelihood the jury construed or applied the statement in an objectionable way. (People v. Hill, supra, 17 Cal.4th at p. 832; People v. Morales (2001) 25 Cal.4th 34, 44.) “The court’s instructions are determinative in their statement of law, and we presume the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Sanchez (1995) 12 Cal.4th 1, 70; Boyde v. California (1990) 494 U.S. 370, 384.) “Juries are warned in advance that counsel’s remarks are mere argument, missteps can be challenged when they occur, and juries generally understand that counsel’s assertions are the ‘statements of advocates.’ Thus, argument should ‘not be judged as having the same force as an instruction from the court.’ “ (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21; Boyde v. California, supra, at pp. 384-385.) “This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court. And the arguments of counsel, like the instructions of the court, must be judged in the context in which they are made.” (Boyde v. California, supra, at pp. 384-385.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647.) “[W]e cannot focus exclusively on a few erroneous words . . . and then reverse the conviction unless it is ‘reasonably likely’ that the jury applied the erroneous standard described or implied by those few words. We must examine the overall charge that the jury heard for a better view of the standard the jury took into its deliberations and applied.” (Chalmers v. Mitchell (2nd Cir. 1996) 73 F.3d 1262, 1267; United States v. Park (1975) 421 U.S. 658, 674-675.)

To preserve a misconduct claim a defendant must make a timely objection and request an admonition; only if an objection would have been futile and admonition would not have cured the harm is the misconduct claim preserved for review. (People v. Cook (2006) 39 Cal.4th 566, 598.) In the absence of timely objection, the claim is forfeited. (Ibid.; see also People v. Noguera (1992) 4 Cal.4th 599, 638-639.)

For misconduct to cause a case to be overturned on review, it must have been prejudicial. In order for misconduct by the prosecutor to be prejudicial, the federal standard is it must “ ‘ “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” ‘ [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if the action does not render the trial fundamentally unfair.” (People v. Frye, supra, 18 Cal.4th at p. 969.)

Defendant cites portions of the following remarks.

Remark No. 1: “Cries. Cries of Steven. Cries of Ben. Cries of Andrew. The manipulation of Andrew. And the lies, the lies of [defendant]. All of these are facts that you should consider when looking at the criteria that the People must prove considering whether the defendant is a sexually violent predator. Counsel will want to talk about the elements the People have to prove. Counsel will talk about the burden of proof on the People. Counsel will talk about experts and diagnosis and DSM. Counsel will talk about scientific methods. And the definition of likely to reoffend. Going to talk about those things as well. And I don’t want you to forget one thing. And that’s the cries of Steve. He was three years old. He was spanked. He was abused. He was sexually assaulted. He was three years old. The defendant was 13 years old at the time. This did not happen on one occasion. You’ve heard various estimates from both defendant and other experts. You’ve heard numbers like six times and ten times. You’ve heard about nudity, baths, sexual arousal. Do not forget Steven.”

Defendant failed to object to the portion of remark No. 1 he now cites and does not argue that an objection and admonition would have failed to cure any harm. He has therefore waived the point.

Remark No. 2: “I want to thank you for your time. I have to do this. It’s late Friday and, my gosh, it’s been a difficult trial because we’ve had nothing but experts, and it’s difficult concepts of lay witnesses. You hear some of this and you’ve got to have commonsense to kind of weed through it. Commonsense to look for a thread of consistency. And I want to thank you for your attention because some of you, you didn’t fall asleep on it and you were you [sic] pivoted in your seats. And I thank you for that because this is a serious crime--excuse me--serious allegations, serious decisions that we are sitting here deciding today. Why? Because one of them is a responsibility for you to protect the community. It’s your responsibility to protect the people of this community, protect the children of this community--” At this point, defendant objected and the trial court admonished the jury as follows: “Ladies and gentlemen, you’ve been told what the elements are of this particular finding that you must make and that’s what you should be focused on. I also gave the instructions as to public opinion, public feeling, emotions, that’s to be avoided in your decision making here today.”

Since defendant successfully objected and the trial court admonished the jury to disregard the supposed appeal to emotions in favor of the given applicable instruction, we presume that the jury followed the admonition and instruction. Defendant makes no argument suggesting that the admonition could not have cured the harm. There is no reasonable likelihood that the jury ignored the trial court’s instructions and found SVP status because of what the People urged in remark No. 2.

Remark No. 3: “So, yes, set aside your passion. A child molestation, child abuse, a very difficult. [Sic.] When you set aside your passion, when you set aside your sympathy, don’t forget the facts. Don’t forget Steven, don’t forget Ben, don’t forget Angie, don’t forget Andrew. Don’t forget the 1998 conduct that the defense doesn’t want to talk about.”

Again, defendant failed to object and does not argue that an objection and admonition would have failed to cure any harm.

Remark No. 4: “I just want to ask you something. You know what your standard is, that you’re here to determine the safety of the community, is he ready to go into our homes.” At this point, defendant objected and the trial court sustained the objection. The People then continued: “Is he ready to be released into our community parks?” Defendant again objected, and the trial court admonished the jury as follows: “Ladies and gentlemen, the questions that you will have are contained in the verdict form as they deal with the issues that you’ve heard about for over a week now. That’s what you should be focused on.” The People continued: “Is he ready to be released into our community arcades?” Defendant again objected, but the trial court overruled the objection. The People then concluded: “Is he ready to be released into our community theaters? Is he ready to be released into our community? Thank you. Nothing further.”

In remark No. 4, there is a mixed bag of remark, successful objection without admonition, remark, objection with admonition, remark, and overruled objection, all directed to argument questioning whether defendant should be released into the community. But, even assuming that the People’s statements improperly called upon the jurors’ emotions or public feelings and opinions concerning child molesters, no prejudice by such brief comments can be shown on this record. The Act encompasses the same “ ‘compelling interests in public safety and in humane treatment of the mentally disturbed,’ “ which are found in other involuntary commitment schemes in California. (People v. Buffington (1999) 74 Cal.App.4th 1149, 1164, quoting Conservatorship of Hofferber (1980) 28 Cal.3d 161, 171, and citing Hubbart, supra, 19 Cal.4th at p. 1144.) Among other things, the “Historical and Statutory Notes” to section 6600 state that the Legislature “finds and declares that it is in the interest of society to identify these individuals” who are SVPs because, if released, they “represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence.” (Stats. 1995, ch. 762, § 1 and Stats. 1995, ch. 763, § 1.) “It is the intent of the Legislature that once identified, these individuals, if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, be confined and treated until such time that it can be determined that they no longer present a threat to society.” (Ibid.) Because the Act was thus intended to benefit both society and the individual identified as an SVP for treatment, the statements made by the People highlighting the security of the community were essentially fair comments on the evidence in light of the purposes of the Act.

disposition

The order of commitment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Further unspecified statutory references are to the Welfare and Institutions Code.

[2] At trial, defendant stipulated that the Washington offense commonly known as indecent liberties was equivalent to the California qualifying offense commonly known as lewd act on a child (Pen. Code, § 288, subd. (a)).

[3] The victim was the eight-month-old son of defendant’s girlfriend.

[4] Defendant asserts as an aside that his due process rights were transgressed because the prosecuting attorney obtained the amendment order ex parte. But there was no ex parte order. Defendant’s attorney agreed to the amendment, a fact that defendant overlooks.

[5] Dr. Longwell tied defendant’s diseases to defendant’s inability to take care of himself; Dr. Abbott tied defendant’s diseases to defendant’s unlikelihood of reoffending.

[6] Defendant chose to bring up the point in his closing argument by accusing the People of trying to dehumanize him. He argued the following: “We talk about HIV and Hepatitis C. Why did you hear about that? Is that relevant to whether he is going to reoffend? No, but it scares you. It makes you think of him as a little less human, a little different than you. It scares you.” To this, the People replied: “Ladies and gentlemen, counsel, again, misleads us when he says that another attempt that the prosecution tries to dehumanize the defendant by talking about AIDS or Hepatitis C. That’s misleading. If you remember Dr. Abbott, their expert, the one that these individuals called, testified that the reason he was able in the SVR-20 to reduce him from a moderate level of offense recidivism was because he factored in his AIDS and Hepatitis and reduced it because it was rational to do so and gave it a low ranking. On cross-examination we asked where he got the authority from that and it was minimal. Their experts relied on his health. Their expert reduced the risk based on that health.”

[7] A commitment proceeding under the Act is civil in nature, and the deputy representing the People is the petitioner and not a “prosecutor” in the technical sense. (Hubbart, supra, 19 Cal.4th at pp. 1171-1177.)