P. v. Howard

Filed 4/6/07 P. v. Howard CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

On August 5, 2004, the Santa Clara County District Attorney filed a petition to extend the sexually violent predator commitment of defendant, Jerry Allen Howard, pursuant to Welfare and Institutions Code section 6604. [1]^,[2]

Following a hearing conducted pursuant to section 6602, the trial court found there was probable cause to believe that defendant had been convicted of a qualifying sexually violent offense against at least two victims, that he had a diagnosable mental disorder that made it likely that he would engage in sexually violent criminal conduct if released, and that the sexually violent conduct would be predatory in nature. The court ordered a trial to determine whether defendant, by reason of a diagnosed mental disorder, was a danger to the health and safety of others in that he would be likely to engage in acts of predatory sexual violence upon his release from a secure facility.

The matter was tried to a jury in March 2006. Before jury selection, the court granted, without objection, the People's motion in limine to preclude the defense under the doctrine of collateral estoppel from relitigating the validity of defendants predicate convictions. The jury was later instructed that [a]s a matter of law the court has determined that Mr. Howard has suffered the requisite qualifying prior convictions. That is not an issue for the jury to decide.

The prosecution called one witness, Dr. Douglas Korpi, a clinical psychologist appointed by the California Department of Mental Health to evaluate the defendant. Dr. Korpi testified that defendant had two diagnosed mental disorders, pedophilia and an anti-social personality disorder with narcissistic traits, and that there was a very high likelihood that, if given the opportunity, he would sexually assault another person. Dr. Korpi based his opinion on the conduct underlying defendant's criminal convictions, his behavior at Atascadero State Hospital (ASH), and his performance on a variety of psychological tests.

In reviewing the criminal convictions, Dr. Korpi described defendant's multiple acts of rape of a 15-year-old girl and oral copulation of her 13-year-old sister in 1986. He also detailed defendants molestations of two girls, ages 8 and 9, in 1991.

In support of his diagnosis of pedophilia, Dr. Korpi also noted various instances of defendant's conduct at ASH, including the following: During a telephone conversation, defendant asked his 15-year-old daughter if she was having sex, and wrote to her suggesting that she help him start an internet sex business; defendant possessed a nudist brochure containing pictures of unclothed or partially clothed children, a catalogue of children's clothing, and a photo album of children; an ASH employee overheard defendant describing how to commit a sexual assault.

Dr. Korpi administered to defendant a number of psychological tests, including the Static 99, the Minnesota Sex Offense Screening Test, the Sex Offender Recidivism Guide, and the Hare Psychopathy Checklist, and concluded that defendant had a high likelihood of reoffending.

Defendant testified as the only defense witness. He admitted sexual activity with the two sisters in 1986, but denied using any force against them. Defendant denied having sexual contact with the eight- and nine-year-old girls in 1991, although he admitted that he pleaded no contest to charges of having sexual relations with both of them and agreed to an 11-year prison sentence.

Defendant acknowledged that he had asked his daughter if she had had sex, but indicated that the question was not inappropriate given the context of the conversation. He also agreed that he had suggested that his daughter start an internet pornography site, and that he had done so out of stupidity. Defendant admitted having a nudist brochure, a children's clothing catalogue, and a photo album of children, but denied that he had any sexual motivation in possessing those items. Defendant denied describing the commission of a sexual assault, stating that was a [c]omplete fabrication by the ASH employee.

Defendant disputed the results of one of the psychological tests, denied that he had a mental disorder, and stated that he was not sexually attracted to children.

The jury returned a verdict finding that defendant was a sexually violent predator within the meaning of section 6600. The court ordered a two-year recommitment to the California Department of Mental Health pursuant to section 6604.

Defendant filed a timely notice of appeal.

On appeal, defendant's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, setting forth the facts of the case and requesting that this court review the entire record on appeal but raising no specific issue. Defendant was notified of his right to submit written argument on his own behalf within 30 days; that period has elapsed and we have received no written argument from defendant.

Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

Mihara, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2]Defendant's original commitment in May of 1997 was the subject of this court's opinion in People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136. Defendant was recommitted for a subsequent two-year term on October 3, 2002.