P. v. Ramos

Filed 7/12/07 P. v. Ramos CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. Phillip S. Gutierrez, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a court trial, appellant was found to be a sexually violent

predator (SVP), within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, 6600 et seq.).[1] He was committed to the Department of Mental Health for two years. This appeal followed.

The SVPA defines a sexually violent predator as a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior. ( 6600, subd. (a)(1).) Pursuant to that definition, the People had to establish: (1) at least two prior sexually violent offenses; (2) a current predisposing mental disorder, and (3) a likelihood that sexually violent criminal behavior would be repeated upon release. (Hubbartv. Superior Court (1999) 19 Cal.4th 1138, 1144-1145, 1162 (Hubbart).)

Appellant contends: (1) There was insufficient evidence that he suffered from a current mental disorder. (2) The trial court relied partly on unreliable, inadmissible hearsay evidence about an earlier uncharged crime. (3) The Static-99 test for predicting sexual recidivism is unreliable. (4) There was insufficient evidence that he was likely to reoffend. (5) The SVPA violates the ex post facto clause. (6) The SVPA violates the equal protection clause.

We find no merit in the contentions, and affirm.

FACTS

1. Introduction

The prosecution and the defense presented conflicting expert evidence on whether appellant currently suffered from a mental disorder. The experts opinions were based on multiple interviews with appellant, psychological testing, and review of voluminous materials about him. The underlying predicate offenses were two violations of Penal Code section 288, subdivision (b)(1) (forcible lewd acts with a child). The two victims (Doe No. 1 and Doe No. 2) were the then 13-year-old and 11-year-old daughters of appellants former girlfriend (the victims mother). Because appellant told all of the experts that he was innocent of the underlying offenses, and pled no contest to avoid the risk of a long prison term, the victims testified at the SVP trial. They were, respectively, 23 years old and 21 years old at that time. There also was testimony from the victims mother and from their older sister, who received communications and gifts for the victims that appellant sent them from prison.

2. Prosecution Evidence

A. The Two Qualifying Offenses

On November 18, 1998, when appellant was 33 years old, he was convicted of the two counts involving Doe No. 1 and Doe No. 2. Pursuant to his plea, he was sentenced concurrently to six years in prison.

The qualifying offenses were described in detail in the experts reports, which summarized the victims statements in the police reports. The victims testimony accorded with the police reports and added further facts.

Appellant befriended the victims and their mother while they were using a public telephone. He became a frequent visitor at their apartment, and moved into the victims mothers bedroom, as her boyfriend. However, he never went out alone with her and insisted that the victims join them. He soon began molesting the victims. The incidents occurred after school, when he was alone with one or the other of them at the apartment, while the victims mother was at work. He began by touching their breasts or vaginas over their clothes. He quickly proceeded to removing their clothing and forcing them to commit various sex acts. They tried to fight him off but he was too strong for them. He held them down, grabbed them by the hair or wrists, and pushed them to their knees. Sometimes he forced them to lie on their backs or stomachs. They did not report him because he threatened that, if they did so, he would hurt them or another member of the family. He also induced their silence by threatening to stop assisting their mother with rent money.

Specifically, Doe No. 1 testified that appellant touched her vagina; forced her to masturbate him until he ejaculated; put his penis into her vagina, and then removed it to ejaculate on her body; and also tried to place his penis into her mouth and anus. She was sure that he put his penis into her vagina, but was unable to say how far he penetrated her. She estimated that there were at least 120 such incidents, as they occurred twice a week, starting at the end of 1996, and continuing throughout all of 1997.

Doe No. 2 (the younger victim) similarly testified that appellant engaged in improper sexual activity with her once or twice a week during that same time period. He made her masturbate him until he ejaculated. He put his penis into her vagina a little bit, and then removed it to ejaculate on her body. He orally copulated her, tried to force her to orally copulate him, and made her watch pornographic movies with him. He told her that he loved her and did not love her mother. He said she would never be with anyone else and he would marry her when she grew up.

After appellant moved out, he drove up to Doe No. 2 at a bus stop and tried to convince her to go to a motel with him. She ran away. When Doe No. 1 heard about that incident, she decided she had to report what appellant did to her to protect Doe No. 2. Doe No. 1 talked to a friend, a school counselor, and the police. Doe No. 2 then made a statement to the police.

The victims were examined at a medical clinic. The medical findings were inconclusive and neither proved nor disproved their complaints.

In 1999, after appellant was in prison, he gave his brother correspondence and presents for the victims. His brother took the items to the victims older sister. Appellants present for Doe No. 1 was a small pink picture frame. On the frame, there was written the year 1999, the names of appellant and Doe No. 1, and the words (in Spanish), I will never forget you, and remembering. Doe No. 1 kept the frame, which was introduced into evidence at the SVP trial. The present for Doe No. 2 was a picture frame with her name and the words I love you. Doe No. 2 threw that gift away.

The victims mother tore up the correspondence that appellant sent the victims from prison. Their older sister testified that she recalled part of it. Appellant wrote that he hated Doe No. 1, loved Doe No. 2, and would kill any man that Doe No. 2 married. He also threatened to hurt other members of the family, even if the victims and their mother hid from him.

B. Dr. Thomas R. MacSpeiden

In addition to his testimony, Dr. MacSpeidens extremely detailed reports were introduced into evidence. In his opinion, appellant currently suffered from the following two mental disorders from the DSM (Diagnostic and Statistical Manual of Mental Disorders): Axis I 302.9 Paraphilia, Not Otherwise Specified, Sexual Activity with Nonconsenting Persons[.] Axis II 301.9 Personality Disorder Not Otherwise Specified With Antisocial Personality Disorder features[.]

Dr. MacSpeidens diagnosis arose partly from appellants pattern of deceitfulness about numerous details of his life, which MacSpeiden discovered by comparing what appellant told him with what appellant had told other interviewers. It was difficult to verify facts, as appellant came to this country from Mexico as an adult. The factual discrepancies included the ages of his parents, how many siblings he had, his education, his employment history, his previous sexual relationships with women, his use of illegal substances, and whether he had been arrested in 1988 for an uncharged sex crime. In addition to those fabrications, the diagnosis resulted from the long period of deceitfulness during which appellant committed the crimes against the victims, use of unnecessary cruelty during the crimes, communications to the victims from prison, denial of the crimes, lack of remorse, pattern of antisocial behavior, and lack of previous intimate relationships.

On the issue of future dangerousness, Dr. MacSpeiden believed that it was highly likely for appellant to commit another sex crime. That belief was based partly on appellants score on a test called the Static-99, which is commonly used to predict the risk of a repetition of sexual offenses. The test involves assigning points to various factors, and adding up the points to produce a total score. Appellant scored in the Medium-Low-Risk category on the test, so that the probability of sexual reoffense was 12 percent within five years, 14 percent within 10 years, and 19 percent within 15 years.

MacSpeiden believed that the risk was actually much greater than the Static-99 test showed, due to factors not considered by that test. Among those factors were that appellant had never been treated as a sex offender, showed pornography to Doe No. 2, drove up to her at a bus stop, and sent strange correspondence and presents from prison. Also, another psychological test showed such problems as an intimacy deficit, lack of sexual and general self-regulation, sexual entitlement, treatment of children as sexual objects, poor cognitive problem-solving skills, and aspects of an antisocial personality disorder. Based on all of those factors, MacSpeiden believed there was a 30 to 40 percent chance of reoffense in the next 15 years. That risk was especially great because the crimes continued for a long period, and appellant continued to have fantasies about the victims after he was incarcerated.

On cross-examination, MacSpeiden indicated that his opinion was not affected by the inconclusive medical findings, as the examinations occurred several months after the crimes ended, and the trauma from the incidents might have caused the victims to err about the amount of penetration.

C. Dr. Christopher Matosich

Like Dr. MacSpeiden, Dr. Matosich wrote a very detailed report which was introduced into evidence. He believed that appellant had demonstrated severe sexual deviancy by acting on recurrent sexual fantasies with nonconsenting and vulnerable victims, without regard for the victims welfare. His diagnosis was pedophilia, sexually attracted to females, nonexclusive type, as well as polysubstance dependence and personality disorder not otherwise specified. His report named this DSM disorder: Axis 1: 302.2 Pedophilia, Sexually Attracted to Females, Nonexclusive.

Dr. Matosich based that diagnosis on what appellant told him, the nature of the offenses, the reports of the other experts, the results of the psychological tests, the communications from prison, appellants maladaptive behavioral pattern, his intimacy difficulties, legal problems, substance abuse, and problems self-regulating behavior and mood.

Dr. Matosich also believed that appellant was likely to reoffend. On the Static-99 test, he scored appellant in the Medium-High Risk Category, with a 26% risk of sexual recidivism over a 5-year period, a 31% risk of reoffense over a 10-year period, and a 36% risk over a 15-year period. Considerations that showed the risk was greater than shown by the Static-99 test included appellants substance abuse, criminal conduct while in prison, inability to maintain an independent life, refusal to take responsibility for the crimes, blaming of the victims and their mother, and disinterest in seeking treatment for his condition.

3. Defense Evidence

A. The Victims Mother

The victims mothertestified that appellant was her boyfriend for 18 months to two years. He moved in with her after they had known each other about six months. She wanted him to live with her, as she loved him and needed his financial assistance. Her daughters did not want him to move in. She never went out with him without her daughters. After he moved in, he shared expenses with her, but did not want to spend any time with her. They sometimes had sex, but she often refused, because she was angry that he did not listen to her and preferred to spend time with her daughters. She did not see him very much, as she worked overtime, cleaning houses, and he was out with her daughters when she came home.

When the victims mother decided that appellant had to move out, she did not give him the rent money and he moved out. Doe No. 1 went to the police eight days later. The victims mother spoke to appellant on the telephone two weeks after his arrest. He threatened her and her daughters. Her daughters did not tell her what he did to them until after the preliminary hearing. She was afraid that he would take revenge on them. She thought he needed treatment, because of what he did to her daughters, and because of what he wrote from prison.

B. Dr. Ronald Markman

Dr. Markman, a medical doctor and psychiatrist, testified and wrote a very brief report. He did not believe that appellant suffered from a current mental disorder. He also was concerned about the lack of a rupture of the hymen or signs of anal trauma, when the victims were examined medically. He did not perform a Static-99 test, but, in his opinion, appellants likelihood of recidivism was minimal. He had not previously been aware of appellants threats and gifts from the prison, but he did not think those facts showed a mental disorder or an increased risk of reoffense.

C. Dr. Raymond E. Anderson

Like Drs. MacSpeiden and Matosich, Dr. Anderson was a clinical psychologist. In his opinion, appellant did not suffer from a sexual disorder, but may have committed sex crimes because he was reacting impulsively to transient circumstances. Anderson disliked the Static-99 test, which he believed overestimated the risk of a new offense. He gave appellant a score on that test which showed a very low potential for reoffense.

DISCUSSION

1. Sufficiency of the Evidence

Appellant contends that there was insufficient evidence that he suffers from a qualifying mental disorder. The contention lacks merit. There was substantial evidence that appellant suffered from a current mental disorder, through the detailed testimony and reports of Drs. MacSpeiden and Matosich, indicating that he currently suffered from paraphilia not otherwise specified; personality disorder not otherwise specified with antisocial personality disorders; pedophilia, sexually attracted to females, nonexclusive type; polysubstance dependence; and personality disorder not otherwise specified. (See People v. Williams (2003) 31 Cal.4th 757, 761, 778; People v. Butler (1998) 68 Cal.App.4th 421, 428, 430.) It is not the role of this court to redetermine the credibility of experts or to reweigh the relative strength of their conclusions. (People v. Poe (1999) 74 Cal.App.4th 826, 831.)

Appellant also argues that there was insufficient evidence to support a diagnosis of pedophilia, because pedophilic actions would not include molestations of postpubescent girls. The argument lacks merit. The molestations of Doe No. 2 began when she was 11 years old, before she began menstruating. In any event, Dr. Matosich testified that puberty involves a time frame of years, and not a specific event.

2. Hearsay

Appellant contends that his due process rights were violated because, along with reviewing many other documents, the experts considered police reports about an uncharged sex crime for which appellant was arrested in 1988 (the 1988 incident). Respondent counters that appellant waived this claim of error because there was no objection on this basis below. (People v. Martinez (2001) 88 Cal.App.4th 465, 486.) Assuming arguendo that the issue was not waived, it lacks merit.

Dr. MacSpeidens report summarized the police reports for the 1988 incident, including the victims complaint and the police investigation. The victim was a 21-year-old woman with a disability that gave her the mental age of a nine year old. Appellant was 22 years old at that time. He and the victim resided in the same apartment complex. The victim told the police that appellant pulled her into an apartment, locked the door, held her wrists, put his hands under her clothing, squeezed her breast, buttock and vagina, and stuck his finger into her vagina. She broke free and ran for assistance to a neighbor, who had heard her screaming Stop and No. Her father believed she was telling the truth, and contacted the police. She identified appellant as the perpetrator, at a field showup. Appellant told the police he was at the apartment of a friend at that time. The friend generally corroborated him. The district attorney did not pursue the matter due to lack of probable cause.

Appellant told Dr. MacSpeiden that he was never arrested for the 1988 incident and it appeared erroneously on his rap sheet. However, when MacSpeiden read the report of another expert who did not testify, Dr. Vicory, MacSpeiden saw that appellant told Vicory that he was arrested for the 1988 offense, but did not do it. Appellants inconsistency on that point was one of the examples MacSpeiden gave of appellants tendency to fabricate facts.

At SVP proceedings, the details of the underlying convictions may be established through documentary evidence, such as a victims statement in a police report. ( 6600, subd. (a)(3); People v. Otto (2001) 26 Cal.4th 200, 206-209.)[2] The 1988 incident was an allegation, rather than a conviction, as Dr. MacSpeiden recognized. The victims statement to the police in 1988 was therefore not admissible as substantive evidence, under section 6600, subdivision (a)(3).

However, the facts about the 1988 incident were not introduced as substantive evidence, but as part of the materials that Dr. MacSpeiden considered, in forming his opinion. An experts opinion can be based on matters that are ordinarily inadmissible, as long as that material is reliable. (People v. Gardeley (1996) 14 Cal.4th 605, 618.) The complete facts of the 1988 allegation and accompanying police investigation were before the trial court. The facts showed that the mentally impaired victim identified appellant, appellants friend gave him an alibi, and the district attorney did not file a charge. No error was committed regarding that incident, as the trial court was free to decide the weight to give to it, as it assessed the value of Dr. MacSpeidens opinion testimony. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)

Assuming there was any error here regarding the 1988 incident, there was no prejudice under People v. Watson (1956) 46 Cal.2d 818, 836. We reach that conclusion for many reasons, including that there is no risk that the trial court confused the 1988 arrest with a conviction, Doe No. 1 and Doe No. 2 testified regarding multiple sex crimes that were far more egregious than the 1988 incident, and the 1988 incident played a very small role in the trial.

3. The Static-99 Test

Appellant contends that there is insufficient evidence that he is likely to reoffend, as the Static-99 test for predicting sexual recidivism is unreliable. The contention lacks merit. If expert testimony on the likelihood of reoffense is not based solely on the results of the Static-99 test, a Kelly[3] hearing is not required. (People v. Therrian (2003) 113 Cal.App.4th 609, 613-616.) Here, as in Therrian, the experts opinions about the risk of sexual recidivism were based on numerous factors besides the Static-99 test, including, most strikingly, the long period during which the crimes continued against the victims, and the correspondence and gifts that appellant sent to them from prison.

Appellants reliance on Cooley v. Superior Court (2002)29 Cal.4th 228 is misplaced, as our Supreme Court did not indicate in Cooley that the Static-99 test is unreliable.

4. Likelihood of Reoffense

Appellant also argues that the combination of the Static-99 test and additional factors was insufficient to establish the likelihood of reoffense.We find substantial evidence of the likelihood of reoffense, through the detailed reports and testimony by Drs. MacSpeiden and Matosich on that issue, summarized at pages 5 and 6, ante.

5. Ex Post Facto

Appellant contends that the SVPA violates the federal ex post facto clause. The argument was rejected in Hubbart, supra, 19 Cal.4th 1138, 1170-1179, which we follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

6. Equal Protection

Appellant contends that the SVPA violates the equal protection clause, because its standard for dangerousness differs from the standard for commitment under the Mentally Disordered Offender Law. The issue was not raised below. Assuming it was not waived, we reject it, under Hubbart, supra, 19 Cal.4th at pages 1168-1170, and Auto Equity Sales, Inc. v. SuperiorCourt, supra, 57 Cal.2d at page 455.

DISPOSITION

The order of commitment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

RUBIN, Acting P. J.

BOLAND, J.

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[1] Further statutory references are to the Welfare and Institutions Code unless otherwise specified.

[2] Section 6600, subdivision (a)(3) states, in pertinent part: Conviction of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination. The existence of any prior convictions 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.

[3]People v. Kelly (1976) 17 Cal.3d 24.