P. v. Self

Filed 4/17/07 P. v. Self CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Jerold L. Turner, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie Hokans, Louis M. Vasquez, Brian Alvarez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Grant Gene Self challenges his commitment as a sexually violent predator on the basis of evidentiary and instructional error. We will affirm.

FACTUAL AND PROCEDURAL SUMMARY

In September 1976, Self was charged with committing lewd and lascivious acts on three boys under the age of 14 years, in violation of Penal Code section 288, subdivision (a).^[1] He pled guilty to one count of contributing to the delinquency of a minor. In September 1979, Self was charged with seven counts of oral copulation with four boys under the age of 14 years, in violation of section 288a, subdivision (c). He pled guilty to one count and served eight years in prison.

Self was found to be a mentally disordered sex offender and transferred to Atascadero State Hospital (ASH) for treatment. While in ASH, a penile plethysmograph^[2]was administered. Self showed a very high sexual arousal to prepubescent boys.

After meeting the requirements of treatment, Self was released in October 1983 to an outpatient program. As part of the conditions of release, Self was required to (1) avoid being near children; (2) register as a sex offender; and (3) participate in outpatient treatment.

Self violated his conditions of release. He used a false address on his sex offender registration card. He moved in with a woman, Glenda, and her seven-year-old grandson, J.D. In March 1984, Self was notified by his treatment coordinator that he was forbidden to continue the relationship with Glenda; Self refused to sever the relationship.

In June 1984, Self was charged with numerous counts of violating section 288, subdivision (a), including digital penetration of J.D. and sodomy of another seven-year-old, J.S. Self was convicted of lewd and lascivious conduct and sentenced to a term of 31 years in prison.

While incarcerated, Self violated prison rules. Among the violations was possession of child pornography in September 1994.

In September 2000, Self was identified as a potential sexually violent predator within the meaning of Welfare and Institutions Code section 6600 et seq. After a jury trial, Self was committed in December 2000 to ASH for treatment. While at ASH for treatment, Self was found to be in possession of photographs of young children, which was a violation of the rules.

In 2001, the penile plethysmograph again was administered and Self showed a high degree of sexual arousal for boys eight and nine years of age, but no significant response to younger or older boys. Although Self appeared to have been making progress in treatment, it was discovered that he had lied during treatment. Self was currently in phase two of a five-phase treatment program.

On September 24, 2004, the Kern County District Attorney filed a petition to extend Selfs commitment as a sexually violent predator.

At trial two psychologists, Dr. Jesus Padilla and Dr. Dawn Starr, testified for the People. Both interviewed Self, reviewed his history and records, and assessed the risk of Self committing future predatory sexual acts. Both diagnosed Self as a pedophile, sexually attracted to males.

Both Starr and Padilla believed that Self was a high risk for future predatory, pedophilic behavior. Their opinions were based upon several factors, including (1) the failure of prior treatment to correct Selfs behavior; (2) commission of new offenses while on probation or conditional release; (3) sexual preoccupation and failure to self-regulate his sexual urges; (4) lack of empathy for his victims; (5) minimization of his own responsibility and blaming of others; (6) deception during treatment; and (7) Selfs belief that it would be appropriate to enter into a relationship with a woman who had young children.

Psychologist Dr. James J. Park evaluated Self and testified for the defense. Park noted that Self had in the past suffered from pedophilia, but opined that presently that diagnosis is in remission. Park testified that Self would not present a substantial risk if released into the community.

On May 22, 2006, the jury found Self was a sexually violent predator. The trial court ordered that Self be recommitted to the State Department of Mental Health for two years and placed at Coalinga State Hospital.

DISCUSSION

Self argues the trial court erred prejudicially in refusing to instruct the jury with a special instruction proffered by the defense. He also contends the trial court erred prejudicially in excluding evidence of recantations by some of Selfs victims.

I. Instructional Error

Self contends that in order to commit him civilly as a sexually violent predator, the evidence had to establish and the jury had to be instructed that he had serious difficulty in controlling behavior. Self offered an instruction that defined the concept of serious difficulty in controlling behavior.

The trial court rejected the instruction offered by Self and instructed the jury with CALJIC No. 4.19, commitment as a sexually violent predator. CALJIC No. 4.19 instructs the jury regarding the elements of the Sexually Violent Predators Act (SVPA), including the volitional control component. (People v. Williams (2003) 31 Cal.4th 757, 763.)

Although Self concedes that this argument has been addressed and rejected by the California Supreme Court in People v. Williams, supra, 31 Cal.4th at page 764, he asks this court to reject the holding of Williams. This we cannot do. We are bound by the Williams decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

A commitment rendered under the plain language of the SVPA, which is set forth in CALJIC No. 4.19, necessarily encompasses a determination of serious difficulty in controlling ones criminal sexual violence and, accordingly, separate instructions or findings on that issue are not constitutionally required. (People v. Williams, supra, 31 Cal.4th at p. 777.) Therefore, we conclude the trial court did not err in declining to instruct the jury with the special instruction proffered by Self.

II. Exclusion of Recantation Evidence

Factual summary

The People filed a motion in limine to preclude the defense from presenting evidence that some victims had recanted their testimony. As set forth in the motion, in 1984 Self and three codefendants were charged with molesting several young boys. Self was convicted of molesting four boys, C.D., J.S., A.G., and J.D. In a later habeas proceeding related to a codefendant, C.D. recanted his testimony. Three other victims whom Self had not been charged with molesting also recanted their testimony in that habeas proceeding.

The four recanting witnesses, including the three whom Self had not been charged with molesting, were listed on the defense witness list. The People asked the trial court to prohibit the defense from introducing evidence that these victims had recanted. If the trial court denied the motion, the People indicated they would rely only upon the convictions relating to J.S. and J.D. in Selfs commitment hearing.

At the initial hearing on the motion in limine, the trial court reserved ruling on the motion. The trial court did state that the recanting witness evidence could not be used to attack the prior convictions collaterally. Because the expert testimony had not been presented, however, the trial court indicated it would reserve ruling on the relevancy of the witness recantations.

The next day, the People indicated that their experts would be asked to rely only upon the convictions pertaining to J.S. and J.D. from the 1984 case. The trial court questioned the relevancy of any testimony regarding recanting victims when the experts would not be relying upon those convictions. The trial court reserved ruling, however, until after the presentation of the expert testimony.

After Padilla testified, the trial court granted the Peoples motion. The trial court indicated that the defense apparently wanted to use the proposed testimony to attack Selfs prior convictions collaterally. The trial court further noted that although the conviction pertaining to C.D. may have been reflected in earlier reports, Padilla did not rely on any prior offenses where the victims had recanted in formulating his current opinion and in his testimony.

The defense again raised the issue after Starr testified. The trial court noted that it had reviewed the transcript of Starrs expert testimony and there was [nothing] that would cause me to reexamine or otherwise rescind my previous ruling regarding collateral witnesses.

Self contends the exclusion of evidence that certain of the 1984 victims recanted was prejudicial error. We disagree.

Analysis

Only relevant evidence is admissible. (Evid. Code,  350.) A trial court has broad discretion to determine the relevancy of evidence. (People v. Heard (2003) 31 Cal.4th 946, 973.) This court reviews a trial courts ruling on the admissibility of evidence for abuse of discretion. (People v. Harris (2005) 37 Cal.4th 310, 337.)

Selfs trying to use the recantations to attack his prior convictions collaterally was improper. A prior conviction can be attacked collaterally on the basis of a denial of constitutional rights, such as denial of the right to counsel. Factual innocence, however, must be addressed through a petition for writ of habeas corpus or coram nobis. (Garcia v. Superior Court (1997) 14 Cal.4th 953, 962-963.)

Furthermore, the trial court did not abuse its discretion in excluding evidence of the recantations because the evidence was irrelevant to the recommitment proceeding. Self never had been convicted of any charges pertaining to three of the four recanting victims. Therefore, any evidence that these victims had recanted was not relevant in Selfs recommitment proceeding. Additionally, Padilla and Starr did not rely on the circumstances surrounding the offense against the fourth recanting victim, C.D., in forming their opinions and in testifying, thus rendering the evidence that C.D. recanted irrelevant.

Self also claims the evidence of recantation was relevant to impeach the experts opinions as their earlier written reports had relied on the now questionable evidence of guilt. Reacting to that contention, the trial court conducted an Evidence Code section 352 hearing and determined the evidence should be excluded. There was a significant danger that the jury would be confused and misled, since three of the recanting victims had not been molested by Self. Additionally, a posttrial offer of a witness to retract sworn testimony should be viewed with caution. (In re Weber (1974) 11 Cal.3d 703, 722.) Recantations by child victims of molestation are not unusual. (People v. Housley (1992) 6 Cal.App.4th 947, 954-957.)

We conclude the trial court properly excluded evidence of the recantations.

DISPOSITION

The judgment is affirmed.

_____________________

CORNELL, Acting P.J.

WE CONCUR:

_____________________

DAWSON, J.

_____________________

HILL, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] This is a test designed to determine sexual arousal as the subject is exposed to a variety of sexually suggestive material.