P. v. Gonzales
Filed 3/30/06 P. v. Gonzales CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. FRANZ GONZALES, Defendant and Appellant. | A111003 (Humboldt County Super. Ct. No. CV040548) |
Franz Gonzales appeals from an order extending his commitment at Atascadero State Hospital based upon a jury verdict that he is a sexually violent predator (SVP). (Welf. & Inst. Code, § 6600 et seq.)[1] He contends the trial court erred in failing to instruct the jury sua sponte to assess his amenability to voluntary treatment in considering whether he was likely to reoffend if released from a secure facility. He also contends that substantial evidence does not support the conclusion he is likely to reoffend upon his release. We affirm.
Factual and Procedural Background
Gonzales was initially found to be an SVP on August 8, 2002. On July 29, 2004, the District Attorney of Humboldt County petitioned to have Gonzales recommitted as an SVP for an additional two-year term. A jury found the petition to be true on May 4, 2005, and the trial court consequently extended Gonzales's commitment at Atascadero State Hospital to August 2, 2006. Gonzales was 59 at the time of his recommitment hearing.
Prior offenses
Gonzales's first qualifying offense occurred in October 1982 in Placer County. Based on allegations that he orally copulated and touched the genitals of a five-year old girl he was babysitting, Gonzales was charged with one count of lewd and lascivious conduct with a child under age 14 (Pen. Code, § 288, subd. (a)). He pleaded guilty and received five years' probation and one year in county jail. He was found to be in violation of his probation on September 27, 1984, after testing positive for alcohol.
Gonzales committed his next qualifying offense in Del Norte County on December 31, 1987, while still on probation. He had attended a New Year's Eve party in his apartment building and entered a bedroom in which two eight-year-old girls were playing. After telling the girls he would teach them about sex, Gonzales slid his hand under one victim's clothes until he touched her genitals, and then he placed his hand under the other victim's clothes and touched her buttocks. Gonzales pleaded guilty and received a sentence of eight years in prison for two counts of lewd and lascivious conduct with a child under age 14 (Pen. Code, § 288, subd. (a)).
Gonzales served four years in prison. Within a month of being paroled in 1992, he violated the conditions of his parole by living with a woman who had a four-year old daughter. Despite the parole officer's concern about Gonzales, he remained on parole until February 1993, when he again violated the terms of his parole by using alcohol and committing an assault with a deadly weapon. Officers summoned to his home also found pornographic material next to his bed, including a picture of a minor female that Gonzales admitted using while he masturbated. Gonzales was returned to custody for one year and was discharged from parole in 1996.
In April 1999, Gonzales attempted to stab a roommate with a knife. He attributed his behavior to his intoxicated state. In an action filed in Humboldt County, he was found guilty of assault with a deadly weapon likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)), and he was sentenced to five years in prison. It was following his incarceration for the assault conviction that he was first committed to Atascadero State Hospital as an SVP.
People's Witnesses
Dr. Mark Scherrer, one of two forensic psychologists at Atascadero State Hospital, testified for the People at the jury trial on the recommitment petition. He opined that Gonzales met the definition of an SVP.
Before preparing his evaluation, Scherrer interviewed Gonzales for four and a quarter hours over the course of two days. He then read all of Gonzales's records, consulted with his treating psychiatrist, and prepared a formal risk assessment. Overall, he spent over 40 to 50 hours on the case.
Dr. Scherrer relied in part on the â€
