P. v. Dampier

Filed 7/6/07 P. v. Dampier CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

In a recommitment proceeding under the Sexually Violent Predator Act (Welf. & Inst. Code, 6600 et seq. (SVPA); undesignated section references are to the Welfare and Institutions Code), a jury found on October 12, 2005, that defendant William Dampier was a sexually violent predator (SVP). On October 13, 2005, the trial court extended defendants commitment from September 24, 2004, to September 24, 2006. The parties agree that that commitment has now expired.^[1]

Challenging the legal basis for his 2004 - 2006 commitment, defendant contends: (1) Insufficient evidence supports the jurys finding. (2) The trial court violated the patient-physician privilege and the patient-psychotherapist privilege by admitting the records of defendants psychiatric, psychological, and medical treatment into evidence. (3) The trial court and the prosecutor deprived defendant of due process of law and a fair trial by advising the jury of the consequences of a finding that defendant was an SVP. (4) The expiration of defendants recommitment term has not mooted this appeal.

We conclude that the appeal is not moot, but that defendants arguments lack merit. Therefore, we shall affirm the judgment (order of recommitment).

FACTS

As we explain in part I of the Discussion, defendants insufficient-evidence claim rests on general objections to the states methods of diagnosis and treatment under the SVPA, not on the specific facts of defendants case. Accordingly, we recite the evidence in summary form.

Defendant was committed to Atascadero State Hospital (ASH) as an SVP in September 2000 and recommitted in 2002 after jury trials. The People filed a second recommitment petition in August 2004; in December 2004, the trial court found probable cause that defendant would reoffend if not recommitted again. Jury trial began on September 14, 2005, and ended on October 12, 2005.

Through the testimony of psychologists Dr. Robert Owen and Dr. Harry Goldberg, the People proved that defendant had sustained four qualifying offenses under the SVPA. In 1975, at 22 years of age, he was convicted of forcible oral copulation of two different adult females; in 1992, at 39 years of age, he was convicted of forcible rape and penetration with a foreign object, both involving minor females. He had been in custody since 1992.

Dr. Owen and Dr. Goldberg diagnosed defendant with paraphilia not otherwise specified (NOS) and antisocial personality disorder. Both assigned him a score of eight on the Static-99 (the generally used scale in SVPA cases for predicting the likelihood of reoffense), which placed him in the high-risk category despite his relatively advanced age (51 at time of trial).^[2] Both noted that defendant denied ever committing a sexual offense and had refused treatment since his original confinement at ASH, all of which increased his risk of reoffending if released.

Called as a witness by the People, defendant admitted non-sexual crimes but denied all sexual crimes. He also admitted he had refused treatment at ASH.

The defense expert, psychologist Dr. Theodore Donaldson, agreed with Drs. Owen and Goldberg that defendant had antisocial personality disorder and that his Static-99 score was off the scale; Dr. Donaldson estimated defendants risk of reoffending at 24 percent. However, Dr. Donaldson disagreed with the diagnosis of paraphilia NOS. He opined that defendant did not suffer from any mental disorder which impaired his volition, as required for an SVP finding, but was simply a serial rapist and career criminal.

DISCUSSION

I

Defendant contends that there is insufficient evidence he is likely to reoffend because his commitment has been grounded on evidence arising from unreliable scientific methods. (Capitalization omitted.) He makes two arguments under this heading: (1) The Static-99, on which the states experts relied to predict his likelihood of reoffending, is an unreliable and unvalidated scientific technique under the Kelly-Frye rule.^[3](2) The jury could not properly conclude that defendants refusal to undergo treatment at ASH made him likely to reoffend because the treatment program requires confined persons to submit to other unreliable and unvalidated scientific techniques, specifically lie detectors and penile plethysmograph testing. Defendant admits that he did not present these issues in the trial court, but contends that trial counsels omission constituted ineffective assistance of counsel. As will appear, we reject all of these contentions.^[4]

To establish that defendant was an SVP, the prosecution had to prove beyond a reasonable doubt that he had been convicted of at least two separate sexually violent offenses; he has a diagnosable mental disorder that made him a danger to the health or safety of others; and his disorder makes it likely he will engage in sexually violent predatory conduct if released without treatment. ( 6600, subds. (a), (e); 6604; People v. Roberge (2003) 29 Cal.4th 979, 985.) Defendant attacks only the last of these findings.

To prove a defendants likelihood of reoffending, the prosecution need not show he is more likely than not to reoffend, but only that there is a substantial danger or a serious well-founded risk that he will do so. (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922-923.) We review contentions of insufficient evidence under the SVPA by the substantial-evidence standard that applies in criminal cases. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.)

The Static-99

Defendant contends the experts predictions of his likeliness to reoffend based on his Static-99 scores do not constitute substantial evidence because the Static-99 has not gained general acceptance in the scientific community, as required for forensic use under the Kelly rule (Kelly, supra, 17 Cal.3d 24); defendant also contends that the trial court erred by not conducting a Kelly hearing on the admissibility of testimony based on the test.^[5] Defendant is wrong.

Because defendant made no Kelly objection to this evidence, the issue is forfeited; the only question is whether counsel was ineffective for not objecting. As will appear, he was not.

As defendant admits, this court recently held: [W]hen an experts opinion regarding the likelihood of defendant reoffending is not based solely upon the results of a Static-99 test . . . , a Kelly hearing on the admissibility of experts testimony regarding the test is not required. (People v. Therrian (2003) 113 Cal.App.4th 609, 611 (Therrian).) We explained that absent some special feature which effectively blindsides the jury, expert opinion testimony, in particular expert medical testimony, is not subject to Kelly because juries are normally presumed able to use their common sense and judgment to evaluate such testimony.(Therrian, supra, 113 Cal.App.4th at pp. 614-615, quoting People v. Stoll (1989) 49 Cal.3d 1136, 1157.) We also noted in Therrian that the experts had made clear that the Static-99 is merely the starting point in the experts analysis, that its use was not definitive, and that its procedures were not objective and infallible. Under the circumstances, the trial court did not err by admitting expert testimony based on the Static-99 without a Kelly hearing. (Therrian, supra, 113 Cal.App.4th at pp. 615-616; accord, People v. Ward (1999) 71 Cal.App.4th 368, 374.)

Here, as in Therrian, supra, 113 Cal.App.4th 609, the experts did not rely solely on Static-99 predictions and acknowledged the tests limitations, and the jury was presumably able to use its common sense and judgment in evaluating the experts opinions. Thus, Therrian is on point and controlling.^[6] The experts testimony regarding the Static-99 properly came in without a Kelly hearing. And that testimony constituted substantial evidence in support of the jurys finding.

Trial counsel was not ineffective for failing to request a Kelly hearing.

Defendants refusal of treatment

Defendant also attacks the expert opinions that his refusal to undergo treatment at ASH increased his likelihood of reoffense. Defendant contends that the jury should not have accepted this expert opinion because the evidence established that the treatment protocol at ASH includes testing techniques -- the lie detector and the penile plethysmograph test -- which fail the Kelly rule and produce results which would be inadmissible in court. Thus, according to defendant, clinical judgments based on [defendants] refusal to engage in such a flawed process cannot be considered as substantial evidence. We disagree.

Once again, since no Kelly objection was made, this issue has been forfeited. It also fails on the merits.

The record (which defendant ignores on this issue) proves his argument unfounded: he testified that he did not refuse treatment because he might have to take these tests, but because, in his own mind, he did not belong in the treatment program. Therefore, his appellate claims about the tests invalidity (for which he cites no California authority) are irrelevant. Finally, the experts could reasonably conclude, as they did, that defendants denial was strong evidence he would reoffend if released without treatment.

When asked by his counsel why he refused treatment, defendant gave two answers: (1) The other SVPs at ASH all seem to be child molesters . . . [or] gays, I dont fit into that category. I dont fit there at all. (2) Im not a rapist. I have no intention of going into the phases at all.^[7] In other words, defendant simply denied being a sexual offender and asserted that he did not belong at ASH.

Furthermore, the states experts opined that defendants denial of even the bare facts of his proven convictions for predatory sexual offenses, let alone the proclivity they indicated, showed his future dangerousness if released without treatment. The jury could reasonably have relied on these expert opinions.

Dr. Owen testified: This level of denial after this much time is a bit unusual. Denial is pretty common in sex offenders. But its been 13 years now. I think it is almost ridiculous this many victims identifying him and this clear of a pattern for him to say none of them happened. . . . [] . . . [] . . . He doesnt want treatment because he says he doesnt have a mental disorder because he insists he didnt rape. The level of denial goes up several levels here. Dr. Owen also testified: I would feel better if he got into treatment and finally confronted these 24 years of sexual offending; started being accountable for obvious offenses that hes committed; started to understand that women and girls are not objects to be kicked and raped and sexually abused; and finally, begin to face this very, very deviant, very unhealthy, very pathological part of his psychological makeup. That is what would make me feel better. Because he had refused treatment, even to the extent of admitting his problem, if he were released it would be more of the same.

Similarly, Dr. Goldberg testified that the thought of treatment was threatening to defendant, probably because it would require him to admit his problem for the first time. Because defendant denied his problem and therefore refused treatment, which could give him techniques to use in trying to manage his sexual disorder, he was unlikely to change his behavior if released.

These expert opinions constituted substantial evidence that defendants refusal of treatment, being based on an unrealistic denial of his sexual problems and history of sexual offenses, made him likely to reoffend if released without treatment.

Ineffective assistance of counsel

As we have already suggested, defendant cannot show that his trial counsel was ineffective for failing to raise these issues. An attack on the admissibility of the Static-99 evidence would have failed in light of Therrian, supra, 113 Cal.App.4th 609. And counsel could not have made defendants present argument about refusing to submit to allegedly invalid tests in treatment, given defendants own testimony that he refused treatment simply because he did not think he needed it. Trial counsel need not make meritless arguments simply to avoid being called ineffective by appellate counsel. (People v. Cunningham (2001) 25 Cal.4th 926, 1038.)

Conclusion

For all of the above reasons, defendants attack on the sufficiency of the evidence fails.

II

Defendant contends his commitment is unlawful because it is based on mental health treatment information and records protected by the physician-patient privilege (Evid. Code, 994) and the psychotherapist-patient privilege (Evid. Code, 1014). Anticipating a finding that the contention is forfeited because trial counsel did not raise it, he contends counsels failure to challenge this evidence was ineffective assistance. These claims fail.

As our Supreme Court explained in Albertson v. Superior Court (2001) 25 Cal.4th 796 (Albertson), the Legislature added a provision to the SVPA in 2000 precisely to deal with this issue. Section 6603, subdivision (c)(1) (section 6603(c)(1)), now provides as relevant: If the attorney petitioning for commitment under this article determines that updated evaluations are necessary in order to properly present the case for commitment, the attorney may request the State Department of Mental Health to perform updated evaluations. . . . When a request is made for updated . . . evaluations, the State Department of Mental Health shall perform the requested evaluations and forward them to the petitioning attorney and to the counsel for the person subject to this article. However, updated . . . evaluations shall not be performed except as necessary to update one or more of the original evaluations . . . These updated . . . evaluations shall include review of available medical and psychological records, including treatment records, consultation with current treating clinicians, and interviews of the person being evaluated, either voluntarily or by court order. (Italics added.) This provision clarifies within the SVPA an exception to section 5328s general rule of confidentiality of treatment records, and allows the district attorney access to treatment record information, insofar as that information is contained in an updated evaluation. (Albertson, supra, 25 Cal.4th at p. 805.)

Defendant acknowledges Albertson, supra, but ignores section 6603(c)(1) and its explication in Albertson, supra, 25 Cal.4th 796. Because it is a recent and specific statute governing prosecution evaluations for SVP commitments, its disclosure provision prevails not only over the general confidentiality provision of the Welfare and Institutions Code (Albertson, supra, 25 Cal.4th at p. 805), but also over the earlier and more general Evidence Code privilege provisions on which defendant relies. [A] later, more specific statute controls over an earlier, general statute. (Woods v. Young (1991) 53 Cal.3d 315, 324.) Hence, defendants reliance on the Evidence Code provisions is misplaced.^[8]

Because the SVPA expressly provides for the use of psychological, psychiatric, and medical evidence in the manner to which defendant now objects, his trial counsels failure to raise this objection was not ineffective assistance.

III

Relying on People v. Rains (1999) 75 Cal.App.4th 1165 (Rains) and People v. Shazier (2006) 139 Cal.App.4th 294 (rev. granted Aug. 30, 2006, S144419 (Shazier)), defendant contends his rights to due process and a fair trial were violated when the trial court and the prosecutor informed prospective jurors during voir dire about the consequences of a finding that defendant is an SVP, and again when the prosecutor repeated this information during closing argument. He claims the issue is not waived (i.e., forfeited)^[9]by trial counsels failure to object because a curative instruction would have been futile; alternatively, he claims counsels failure to object was ineffective assistance. We reject these contentions.

To begin with, defendant may not rely on Shazier, supra, 139 Cal.App.4th 294, which the Supreme Courts grant of review (without an order of publication pending review) has rendered uncitable.^[10]

As for Rains, supra, 75 Cal.App.4th 1165 -- which held it was error to admit evidence that the defendant would be confined in a state hospital for two years if found to be an SVP, but concluded the error was harmless (id. at pp. 1170-1171) -- we agree with the People that defendant forfeited his Rains claim by failing to object at any time when the jury was informed on this subject. (People v. Kennedy (2005) 36 Cal.4th 595, 612.)

We also reject defendants waiver argument. Assuming an objection based on Rains would have been meritorious, defendant has not explained why a curative instruction would have been futile: he has only baldly asserted it, which is insufficient on appeal. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)

Finally, we reject defendants ineffective-assistance claim. It was not ineffective to refrain from raising a Rains objection because the objection would have lacked merit. In our view, Rains, supra, 75 Cal.App.4th 1165, is simply wrong on this issue.

As we have recently explained, under the SVPA California hospitalizes sexual predators; the prosecution evaluators must consider the persons progress, if any, in any mandatory SVPA treatment program, as well as the persons expressed intent, if any, to seek out and submit to any necessary treatment; and a persons refusal to cooperate in any phase of treatment may therefore support a finding that he is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community. [Citation.] (People v. Sumahit (2005) 128 Cal.App.4th 347, 354-355 (Sumahit).) Where, as here, the defendants failure to participate in treatment after an original commitment is raised, the jury necessarily learns both that he has been committed to a state hospital and that, due to the failure to participate in its treatment, the prosecution contends that the defendant is not ready to be released from that facility. And since, in a recommitment proceeding, the jury necessarily learns that the defendant has been in the facility for two years already, it will reasonably infer that each commitment period is two years.

Thus, the Rains rule, supra, 75 Cal.App.4th 1165, serves no useful purpose in this case. A court could accomplish the purpose of Rains -- to prevent the jury from discerning the consequences of a true finding -- only by limiting the evidence which could be introduced pursuant to Sumahit, supra, 128 Cal.App.4th 347. That it should not do.

DISPOSITION

The judgment (order of recommitment) is affirmed.

SIMS , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] Defendant asserts that he remains in confinement and a subsequent recommitment petition has been filed against him, but does not support this assertion by citation to the record or to any matter of which we might take judicial notice.

^[2] Dr. Owen estimated the risk of reoffense at 39 percent within five years, 45 percent within 10 years, and 52 percent within 15 years. He acknowledged, however, that once defendant passed the age of 60 (a factor not included among the static factors measured by the Static-99) the chances of reoffense would be lower. He also stated that the Static-99 is a moderate predictor of whether a man is going to reoffend, not a hundred percent.

Dr. Goldberg was not asked to give precise estimates of this risk. He agreed with Dr. Owen, however, that although defendants age reduced his risk of reoffense somewhat, it was not enough to balance out the risk factors defined by the Static-99.

^[3]People v. Kelly (1976) 17 Cal.3d 24 (Kelly); Frye v.United States (D.C. Cir. 1923) 293 F. 1013 (Frye). Since the United States Supreme Court determined in Daubert v. Merrel Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 [125 L.Ed.2d 469] that the Federal Rules of Evidence displaced Frye as to the federal courts, this rule is now more properly termed the Kelly test or rule. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 242, fn. 3.)

^[4]The People contend these contentions are moot. We do not agree.

^[5] Defendant asserts that his counsel repeatedly demonstrated flaws in the STATIC-99 evaluation protocols through examination of [his] own expert and cross-examination of the prosecutions experts. However, he does not cite any such demonstration, either in his argument or in his statement of facts. Therefore we disregard the point. (Cal. Rules of Court, rule 8.204(1)(C).)

^[6] Defendant urges us to reconsider Therrian [b]ased on the inapplicability of STATIC-99. Whatever defendant may mean, he has not stated any reason why we should reconsider Therrian, supra, 113 Cal.App.4th 609. We therefore decline to do so.

^[7] Just before defendant gave this testimony, counsel asked him: [I]snt it true youve been told phase two is going to include the PPG and lie detector? [] . . . [] . . . Would you be willing to try out phase two and see how you do on the PPG and the lie detector? In other words, counsel tried to lay the foundation for defendants present argument, but defendant refused to help him.

^[8]People v. Martinez (2001) 88 Cal.App.4th 465, at page 485, rejected a contention identical to defendants, without considering the effect of section 6603(c)(1). Thus we need not address defendants argument that People v. Martinez, supra, and its antecedent, People v. Lakey (1980) 102 Cal.App.3d 962, were wrongly decided.

^[9] As the United States Supreme Court and the California Supreme Court have repeatedly explained, the failure to preserve an issue for appeal by raising it below is forfeiture, not waiver. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2; People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9; People v. Williams (1999) 21 Cal.4th 335, 340, fn. 1; Cowan v. Superior Court (1996) 14 Cal.4th 367, 371; People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6; United States v. Olano (1993) 507 U.S. 725, 733 [123 L.Ed.2d 508, 519].)

^[10] In his reply brief, he acknowledges the Supreme Courts grant of review but inexplicably continues to rely on the case.