P. v. Gillispie
Filed 2/17/06 P. v. Gillispie CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. GARY WAYNE GILLISPIE, Defendant and Appellant. | D045899 (Super. Ct. No. CRN 21299) |
APPEAL from an order of the Superior Court of San Diego County, Janet I. Kintner, Judge. Affirmed.
A jury found Gary Gillispie was a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) The court committed Gillispie to the Department of Mental Health at Atascadero State Hospital (Atascadero) for two years. On appeal, Gillispie contends the trial court improperly admitted testimony of his prior Atascadero commitments as an SVP. We reject this contention and affirm the commitment order.
FACTUAL AND PROCEDURAL SUMMARY
Background Information
In the early 1990's Gillispie sexually molested four preteen boys, each of whom he had befriended for a short time. The molestations included oral copulation and sodomy. For his conduct with one of the boys, Gillispie pled guilty to four charges of lewd and lascivious acts with a child under age 14 and three charges of oral copulation with a child under age 14. The court sentenced Gillispie to six years in prison. One year later, Gillispie pled guilty to six charges of lewd and lascivious acts with a child under age 14 for his conduct with the other three boys. The court sentenced Gillispie to 16 years in prison, to run concurrently with the six-year sentence.
Gillispie first served his prison sentence at the California Medical Facility of Vacaville (Vacaville) because he claimed to have psychiatric symptoms. In 1991, Gillispie transferred to Atascadero to serve his prison sentence because his antipsychotic medication could not be properly monitored at Vacaville. Gillispie returned to Vacaville in 1997 to complete his prison sentence. Before his release from prison in 2000, a jury found Gillispie to be an SVP and the court committed Gillispie to Atascadero for two years. In 2002, Gillispie was recommitted to Atascadero as an SVP for another two years. In 2004, the prosecutor filed a third petition to recommit Gillispie to Atascadero until 2006. The 2004 recommitment trial is the subject of this appeal.
Recommitment Trial
At trial, the parties stipulated that Gillispie had been convicted of a qualifying sexually violent offense. The primary contested issue was whether Gillispie was likely to engage in sexually violent predatory criminal behavior if released into the community.
Before trial began, the court and counsel discussed the admissibility of expert findings that Gillispie previously met the criteria for SVP status. Defense counsel requested the court to rule that the prosecution experts could not testify about another expert's opinion on this subject. In requesting this limitation, defense counsel explicitly recognized that the prosecution experts were permitted to rely on Gillispie's prior offenses, psychiatric history, and prior Atascadero treatment in reaching their opinions about Gillispie's current status, but defense counsel said she wanted to ensure the experts did not testify about prior expert conclusions pertaining to Gillispie's prior SVP status.
The prosecutor responded that she was not intending to elicit testimony on this subject, except to the extent it was relevant to show that Gillispie had previously lied to his doctors about hallucinations in order to serve his prison sentence at Atascadero rather than at Vacaville. Defense counsel stated she had no objection to this evidence, and said she would further discuss the issue with the prosecutor and would raise any remaining evidentiary objections during trial. The court responded, "Sounds like you both have a lot of expertise. You can probably discuss these things with each other and work out a lot of it if you have a problem." Defense counsel replied: "I would agree with that" and indicated that she was satisfied with the resolution of Gillispie's in limine motion.
Thereafter, the prosecution called two expert witnesses (Dr. Dale Arnold and Dr. Mark Scherrer) and Gillispie's treating psychiatrist (Dr. James Dietch). Dr. Arnold, a psychologist in private practice, stated that he was retained to conduct an evaluation as to whether Gillispie "currently suffered from a mental disorder" and presents a risk of reoffending if released. (Italics added.) Based on this evaluation, Dr. Arnold opined that Gillispie currently suffered from pedophilia and psychosis. Dr. Arnold further opined that Gillispie was at high risk to engage in sexually violent criminal behavior if released. Dr. Arnold did not testify directly about Gillispie's prior SVP status, but referred to Gillispie's psychiatric history and his prior Atascadero treatment in explaining his opinions as to Gillispie's current SVP status. Defense counsel did not object to this testimony.
Dr. Scherrer, a clinical psychologist at Atascadero, also testified Gillispie met the SVP criteria. Dr. Dietch, Gillispie's treating psychiatrist at Atascadero, stated that Gillispie suffers from pedophilia, and that he should complete the treatment program at Atascadero before being released.
In his testimony, Gillispie discussed at length his treatment at Atascadero in an attempt to show he was now able to control his sexual attraction to young boys. He admitted, however, that he continued to have sexually deviant fantasies and said that six months earlier he fantasized about having sex with young boys approximately two or three times a day. These fantasies were triggered by many factors, including seeing children on television, in the movies, or in department store newspaper advertisements. Gillispie testified that six months ago he began taking the drug Paxil and that he now fantasizes about having sex with young boys only a "couple times a week." He said he does not act on those fantasies and that he turns the television off when children appear on a program and he no longer looks at newspaper advertisements. Gillispie admitted that he had dropped out of the sexual offender treatment program at Atascadero for 18 months, from February 2002 to September 2003. He also admitted he had previously lied to prison officials and medical professionals about his experiencing hallucinations.
Gillispie called two expert witnesses. Dr. Christopher Heard, a psychologist in private practice, testified Gillispie did not have a qualifying mental disorder under the SVPA nor was Gillispie a substantial risk to reoffend if released into the community. Dr. William Vicary, a psychiatrist in private practice, testified Gillispie did not meet the SVP criteria because Gillispie did not pose a substantial risk for reoffense.
The court instructed the jury that it could not find Gillispie "to be a sexually violent predator based on prior offenses without relevant evidence of a currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior unless confined within a secure facility." (Italics added.) During closing arguments, both counsel similarly focused on Gillispie's current mental health and risk of reoffending if released. The prosecutor, for example, urged the jury to agree with the expert opinions that "there is a serious and well-founded risk today, a current serious and well-founded risk that Mr. Gillispie will reoffend." (Italics added.) Based on the instructions and the evidence, the jury found Gillispie is a sexually violent predator within the meaning of the SVPA.
DISCUSSION
Gillispie's sole contention on appeal is that the trial court improperly admitted evidence of his prior SVP commitments. Specifically, Gillispie complains of statements made by prosecution expert witness Dr. Arnold and by defense witness Dr. Heard referring to the fact that Gillispie had a prior SVP commitment. Gillispie argues that this testimony created the "real possibility" that he had the burden to prove he was no longer an SVP or that it lessened the prosecutor's burden of proof. As explained below, Gillispie waived this objection by failing to object to the challenged testimony. We further conclude the evidence was relevant and admissible, and did not mislead the jury into misapplying the proof burdens or believing it could base its finding on Gillispie's prior SVP commitments.
Summary of Evidentiary Challenges
Gillispie identifies two alleged evidentiary errors during Dr. Arnold's testimony and one claimed error during the testimony of his expert, Dr. Heard.
The first claimed error occurred when the prosecutor asked Dr. Arnold whether it was important to understand Gillispie's psychiatric history when performing his evaluation. Dr. Arnold responded that Gillispie's psychiatric history was important for the SVP evaluation because an individual's psychiatric history "bears on the ultimate question of whether or not he suffers from a mental disorder predisposing him [to] committing sexual violent crimes in the future." In thereafter discussing Gillispie's psychiatric history, Dr. Arnold noted Gillispie's claims that he experienced auditory hallucinations and paranoia beginning in 1990, and that these claimed symptoms resulted in Gillispie serving his prison sentence at Atascadero beginning in 1991. Dr. Arnold then stated that after 1997, Gillispie was returned to Vacaville from Atascadero, "where he basically remained until he was evaluated for the Sexual Violent Predator Program, and then he was eventually . . . sent back to Atascadero State Hospital . . . in about March of 2000 or so." (Italics added.)
In the second claimed error, the prosecutor asked Dr. Arnold whether it was important to understand any progress Gillispie made in sexual offender treatment at Atascadero. In response, Dr. Arnold testified "Yes." The prosecutor then asked Dr. Arnold to describe Gillispie's treatment history at Atascadero. Dr. Arnold responded, "Since being [at Atascadero] for the purpose of reducing his risk of sexual reoffense, [Gillispie] essentially declined the treatment when he was first there, but then starting in August of 2001, he entered active treatment." (Italics added.)
Gillispie's final evidentiary challenge concerns the prosecutor's reference to Gillispie's 2000 SVP commitment during the prosecutor's cross-examination of Dr. Heard. Dr. Heard testified that Gillispie lied about experiencing auditory hallucinations because Gillispie wanted to serve his criminal sentence at Atascadero rather than in prison. The prosecutor then asked Dr. Heard, "It was then [in 2000] when facing the sexual violent predator commitment Mr. Gillispie began to deny ever having auditory hallucinations?" (Italics added.) Dr. Heard responded, "About that time." The prosecutor then asked: "Might that be an attempt to say hey I am not crazy. I don't have a mental disorder, don't keep me here?" Dr. Heard answered: "Well, it might be anything."
Summary of Applicable Law
The SVPA provides for the involuntary civil commitment of a convicted felon following the completion of his prison term if a jury finds the individual was previously convicted of sexually violent crimes and currently suffers a diagnosed mental disorder that makes him likely to engage in sexually violent predatory criminal behavior. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143-1149 (Hubbart); Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1054.) If the requisite SVP findings are made, the person must be "committed for two years . . . for appropriate treatment and confinement in a secure facility . . . .'" (Hubbart, supra, 19 Cal.4th at p. 1147.)
"Confinement generally cannot exceed two years unless a new petition is filed and an extended commitment is obtained from the court." (Hubbart, supra, 19 Cal.4th at p. 1147.) At the recommitment hearing, the petitioner must prove "a currently diagnosed mental disorder which makes it likely the person will engage in sexually violent criminal behavior." (People v. Munoz (2005) 129 Cal.App.4th 421, 430.) "An SVP extension hearing is a new and independent proceeding at which, with limited exceptions, the petitioner must prove the defendant meets the criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous." (Id. at p. 429.)
In Munoz, this court recently addressed the issue of the admissibility of evidence of a defendant's prior SVP hospital commitment to show the defendant's current diagnosis and likelihood of reoffending. (Munoz, supra, 129 Cal.App.4th at p. 426.) In so doing, we recognized "it is certainly the case that the fact of a prior SVP commitment has some relevance in determining whether a defendant has a currently diagnosed mental disorder. . . . " (Id. at p. 430.) We stated, for example, that it may be relevant to the issue of a defendant's current status "for experts to discuss the defendant's treatment and behavior while in the state hospital [during a prior SVP commitment]." (Id. at p. 432.) We noted that given the relevance of this evidence to the issues in an SVP case, "[i]t may be impossible to avoid the jury learning that the defendant has already been committed as an SVP." (Ibid.) We cautioned, however, that "great care must be taken in admitting evidence concerning the prior commitment" to avoid improperly "suggest[ing] to the jury that its task is to compare the defendant's present mental status with an earlier finding that he or she is an SVP." (Id. at pp. 430, 432.) We explained that the danger in focusing on this comparison "is that it may suggest to a jury that the defendant must prove he is no longer an SVP . . . . [E]ach recommitment requires petitioner independently prove that the defendant has a currently diagnosed mental disorder making him or her a danger. The task is not simply to judge changes in the defendant's mental state." (Id. at p. 430.)
Under these principles, we concluded the trial court prejudicially erred in permitting substantial testimony and attorney argument focusing on the defendant's prior SVP commitments. (Munoz, supra, 129 Cal.App.4th at p. 432.) We explained that the "manner in which the prosecutor questioned witnesses, the evidence the trial court admitted and the manner in which petitioner argued the case suggested that the issue was whether anything had changed since appellant's prior SVP commitment." (Ibid.) On this record, we held the jury was likely misled to believe the prosecution did not have the burden to show the defendant had a current mental disorder that made him a danger if released. (Ibid.)
Analysis
Relying on Munoz, Gillispie argues that the three claimed evidentiary errors similarly misled the jury to believe he had the burden to show a change from his previous SVP status and/or that the prosecutor had a lower burden of proof. We reject this argument.
First, Gillispie waived the argument by failing to object to the challenged testimony. (See People v. Ramos (1997) 15 Cal.4th 1133, 1171.) Relying on the court's statement during trial that "[n]othing is coming out," Gillispie suggests that the evidence of his prior SVP commitment violated the court's prior in limine ruling. This argument is unsupported by the record. Viewed in context, the court's statement referred to the pretrial discussions in which the parties agreed that the prosecutor would not proffer expert opinions about prior expert conclusions of Gillispie's prior SVP status. Consistent with the court's ruling, there was no expert testimony on this subject. The lack of an objection was further consistent with the parties' agreement before trial that background information was relevant and admissible to the issues in the case.
We also conclude that Gillispie's evidentiary contentions fail on their merits. The challenged testimony is precisely the type of evidence that Munoz recognized was probative to prove a defendant's current SVP status. (See People v. Munoz, supra, 129 Cal.App.4th at p. 432.) Dr. Arnold's statement that Gillispie was sent back to Atascadero in 2000 for sexual offender treatment was relevant background information and Dr. Arnold's reference to Gillispie's initial refusal to participate in treatment was relevant to the expert's evaluation of Gillispie's treatment history and current progress. Similarly, the prosecutor's brief reference to Gillispie's denying auditory hallucinations in 2000 when he was subject to an SVP petition was directed at Gillispie's credibility and history of manipulations, rather than the fact that a prior SVP finding was made. Moreover, to support his defense, Gillispie testified at length about the treatment he had received at Atascadero since 2000 when he was first committed as an SVP. Gillispie's defense counsel also elicited testimony from the defense witnesses about Gillispie's treatment history at Atascadero, including his participation in the SVP program.
Unlike in Munoz, the challenged testimony did not suggest the jury should rely on a prior expert opinion or prior jury finding to infer that Gillispie continued to qualify as an SVP. In Munoz, the expert psychologist testified she was asked to evaluate the defendant's "'progress'" and to determine whether he "'continues to meet'" the SVP criteria. (Munoz, supra, 129 Cal.App.4th at p. 427, italics added.) The trial court in Munoz also permitted the prosecutor (over the defendant's objections) to question the defendant at length as to his concessions in a prior SVP proceeding that he was a pedophile and likely to reoffend. (Id. at pp. 427-428.) During closing argument, the Munoz prosecutor focused on this evidence to argue that the defendant remained an SVP because nothing had changed since that time. (Id. at p. 428.) In contrast, in this case Dr. Arnold made clear he was retained to provide an evaluation of Gillispie's current status. Likewise, the prosecutor did not direct any questions to Gillispie about the prior SVP proceeding, and there was no prosecutorial argument suggesting Gillispie had the burden of proving he was no longer an SVP or which lessened the state's burden of establishing Gillispie had a currently diagnosed mental disorder that made him dangerous.
We alternatively conclude that any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; Munoz, supra, 129 Cal.App.4th at p. 432 [applying Watson standard to evidentiary error at SVP proceeding].) The challenged references to Gillispie's prior SVP status were brief and were not a focus of the trial. Moreover, Gillispie and his own witnesses testified about his treatment history at Atascadero as an SVP. Additionally, the testimony showing Gillispie met the SVP criteria was strong; he admitted that he continued to fantasize about having sex with young boys and it was undisputed that Gillispie was only in the very early stages of sexual offender treatment. At closing argument the prosecutor focused on Gillispie's current condition, and the court properly instructed the jury that the prosecution had the burden of proving its case beyond a reasonable doubt and that it must find Gillispie had a currently existing mental disorder making him a danger to others before it could find Gillispie to be an SVP.
On this record, it is not reasonably probable that the outcome would have been different if the court had excluded the few brief references to Gillispie's prior SVP status at trial. (See People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The order is affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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