P. v. Starrett
Filed 10/20/06 P. v. Starrett CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H029423
Plaintiff and Respondent, (Santa Clara County
Superior Court
v. No. 210811)
MICHAEL STARRETT,
Defendant and Appellant.
_____________________________________/
After a jury found appellant Michael Starrett to be a sexually violent predator (SVP), the trial court ordered that he be committed to Atascadero State Hospital (ASH) pursuant to the Sexually Violent Predator (SVP) Act (Welf. & Inst. Code, § 6600 et seq.). On appeal, he raises contentions relating to jury instructions. For the reasons stated below, we affirm.
I. Statement of Facts
Appellant suffered at least two sexually violent predator convictions within the meaning of Welfare and Institutions Code section 6600, subdivision (a). On August 13, 1993, appellant was sentenced in San Mateo County to 12 years in prison for a 1992 child molestation involving a six-year-old girl (Pen. Code, § 288, subd. (a)). On September 12, 1995, appellant was sentenced in Santa Clara County to six years in prison for a 1991 child molestation involving a 13-year-old girl (Pen. Code, § 288, subd. (b)). In 2003, appellant was paroled, and ordered held at ASH during the present SVP commitment proceedings.
Dr. Jack Vognsen, a clinical psychologist, testified that he had evaluated appellant to determine whether he met the criteria for commitment under the SVP Act. Dr. Vognsen interviewed appellant and reviewed his criminal history and medical records. Dr. Vognsen testified that appellant began his history of indecent exposure incidents when he was 16 years old. Appellant admitted that he had engaged in 50 to 100 acts of indecent exposure. In 1981, appellant was arrested for indecent exposure and was involved in outpatient treatment. In 1989, appellant was convicted of indecent exposure and was again involved in outpatient treatment. While appellant was still in therapy in 1991, he sexually molested Charissa, a 13-year-old girl. In 1992, appellant sexually molested six-year-old Amanda and 13-year-old Kathy. He was also accused of sexually molesting Amanda’s four-year-old brother, but he was not convicted of those charges. While appellant was in prison, he exposed himself to a female correctional officer.
Dr. Vognsen diagnosed appellant with pedophilia, exhibitionism, and polysubstance abuse. Dr. Vognsen believed that there was a substantial likelihood that appellant would engage in sexually violent criminal behavior if released from custody. Dr. Vognsen’s opinion was based, in part, on appellant’s score on the Static 99. Appellant received a score of nine, and a score of six or above represents a 52 percent risk of reoffense within 15 years. Dr. Vognsen also considered that appellant committed offenses while in treatment and suffered from deviant sexual preferences. Dr. Vognsen noted that there were no factors that would reduce appellant’s risk of reoffense. Appellant had not been in the community for a significant period of time without committing a sexual offense; he was not old or sick; and he had not successfully completed a “state of the art” offender treatment program.
Dr. Vognsen acknowledged that appellant was actively involved in the sex offender treatment program at ASH, and had moved to phase two of the program. Nevertheless, Dr. Vognsen believed that appellant was at risk for reoffending, because he had previously reoffended while in outpatient treatment. In his view, even if appellant participated in out-of-custody treatment, he would still be a danger to the community.
Appellant testified that he suffers from pedophilia and substance abuse. He believed that he would not reoffend if he were released from ASH, because he would voluntarily continue treatment. According to appellant, his risk factors included not staying in therapy, keeping secrets, and being around children. Appellant had contacted Sharper Future, an outpatient treatment program. He intended to enroll in this program if released from custody. He also intended to live with his mother and accept a friend’s offer of employment with a construction company.
Patricia Blanche Starrett, appellant’s mother, testified that she had been involved in appellant’s treatment at ASH. She believed that appellant was committed to sex offender treatment for the rest of his life. She was also willing to help him pay for treatment.
Paul Starrett, appellant’s brother, testified that he would help appellant financially or emotionally if he was released. He believed that appellant would voluntarily seek treatment for the rest of his life. He also believed that appellant would not reoffend because he did not want to return to prison.
Dr. Gabrille Paladino, a staff psychiatrist at ASH, testified that she was head of the treatment team for appellant’s unit. Since appellant’s arrival in October 2003, Dr. Paladino had reviewed his ASH records on a monthly basis. His behavior was “excellent.” He had no behavior notes, always followed the rules, and was very respectful towards staff. He was actively involved in his treatment at ASH, and his family had also participated. Dr. Paladino believed that appellant would voluntarily continue with treatment if released. However, she also believed that appellant should remain confined in a secure facility in order to finish the ASH treatment program. She explained that community treatment programs were designed for individuals who have not yet been involved in the legal system, and did not offer the level of expertise necessary for successful treatment. While she was not aware of the Sharper Focus program, she acknowledged that some community programs, such as Johns Hopkins, provide a level of care comparable to that at ASH.
II. Discussion
A. CALJIC No. 4.19
Appellant contends that the trial court erred in failing to instruct the jury to consider evidence of his amenability to voluntary treatment in determining the likelihood of his reoffending. He further asserts that he was denied his due process rights to a jury’s determination of this issue. We disagree.
The trial court must instruct the jury sua sponte on the general principles of law which are “closely and openly connected to the facts and that are necessary for the jury’s understanding of the case.” (People v. Carter (2003) 30 Cal.4th 1166, 1219.) In People v. Grassini (2003) 113 Cal.App.4th 765, the reviewing court held that where the alleged sexually violent predator has presented evidence regarding his or her amenability to voluntary treatment, the trial court has a “sua sponte duty . . . to instruct the jury that it is to determine whether custody in a secure facility is necessary to ensure that the individual is not a danger to the health and safety of others.” (Id. at p. 777.) This holding followed our Supreme Court’s ruling in People v. Roberge (2003) 29 Cal.4th 979, that “[e]vidence of the person’s amenability to voluntary treatment, if any is presented, is relevant to the ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody.” (Id. at p. 988, fn. 2; see also People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 926-927; Cooley v. Superior Court (2002) 29 Cal.4th 228, 256.)
Here the trial court instructed the jury that “[t]he term ‘sexually violent predator’ means a person who one, has been convicted of a sexually violent offense against two or more victims, two, has a diagnosed mental disorder, and three, the disorder 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. The word ‘likely’ as used in this definition means the person presents a substantial danger, that is a serious and well-founded risk that he will commit [] sexually violent predatory crimes if free in this community. However, it does not mean that it must be more probable than not that there will be an instance of reoffending.”[1] (Italics added.)
In our view, the challenged instruction correctly informed the jury of the relationship between the definition of an SVP and an alleged SVP’s release from custody. Where an individual’s dangerousness is negated in part by amenability to voluntary treatment in the community, then the trier of fact may consider this factor in determining that it is not likely that this individual would engage in predatory criminal behavior if released from custody. Consequently, he or she would not meet the statutory definition of an SVP. Thus, when the trial court instructs the jury with a definition of an SVP that includes the element that his mental disorder makes him a danger because it is likely that he will engage in sexually violent predatory criminal behavior unless confined within a secure facility, the jury is adequately informed of the general principles of law that are necessary to understand the case. Though it would have been preferable for the trial court to have included the language regarding confinement in the final sentence in the later paragraph of CALJIC No. 4.19, it did instruct the jury to “consider all of the evidence introduced in the case.” Moreover, both defense counsel and the prosecutor focused on appellant’s amenability to voluntary treatment in their arguments to the jury. Under these circumstances, we find no error.
Appellant also contends that the trial court’s error in failing to adequately instruct the jury regarding its duty to consider his amenability to voluntary treatment was compounded when it instructed the jury pursuant to a modified version of CALJIC No. 17.42. The trial court instructed the jury: “In your deliberations it is improper for you to consider what disposition of respondent, Mr. Starrett, may be made or what treatment Mr. Starrett may receive as a result of your verdict. This is a matter which must not in any way influence your verdict.” Appellant argues that this instruction was confusing, because it erroneously informed the jury not to consider evidence of his voluntary treatment plan in making its decision.
In our view, it is not reasonably likely that the jury understood this instruction as forbidding consideration of evidence of appellant’s amenability to voluntary treatment in reaching its verdict. (People v. Ayala (2000) 24 Cal.4th 243, 289.) As previously discussed, the jury was correctly instructed pursuant to CALJIC No. 4.12 on the issue of whether appellant met the commitment criteria under the SVP Act. Here the evidence and counsels’ argument focused on the issue of appellant’s danger to others if he was released from custody. Thus, the jury was required to determine whether appellant’s willingness to participate in voluntary treatment negated his dangerousness. However, the jury could not consider the consequences of this finding, which it was properly instructed not to consider by a modified version of CALJIC No. 17.42. (People v. Rains (1999) 75 Cal.App.4th 1165, 1169.) Thus, it is not reasonably likely that the jury misunderstood the instructions in a manner that was prejudicial to appellant.
B. Appellant’s Requested Instruction
Appellant requested that the following language be inserted into CALJIC No. 4.19: “Unless the petitioner proves beyond a reasonable doubt, that Mr. STARRETT cannot be treated safely in the community, then you must find that he is not a sexually violent predator and the allegation in the petition is untrue. You should consider the following factors with regard to whether the inmate can be effectively and safely treated in the community: I. the availability, effectiveness, safety and practicality of community treatment for the particular disorder the person harbors; II. does the person have the sufficient volitional power to pursue community treatment voluntarily; III. is it reasonable to expect the person to voluntarily pursue community treatment in view of the intended and collateral effects such treatment might entail; IV. has the person demonstrated treatability and progress in any previous mandatory sex offender specific treatment; V. has the person expressed an intent to seek out and submit to any necessary community treatment. You must also decide whether Mr. STARRETT’s evaluator in this case properly considered Mr. STARRETT’s willingness to participate in and accept community treatment to ameliorate any possible substantial danger that he might otherwise pose to the community if released.”
“A criminal defendant is entitled, on request, to an instruction ‘pinpointing’ the theory of his defense. . . . [H]owever, instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative . . ., and the effect of certain facts on identified theories is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.” (People v. Wharton (1991) 53 Cal.3d 522, 570-571, internal citations and quotation marks omitted.)
Here appellant’s requested instruction emphasized facts relating to his amenability to voluntary treatment. However, amenability to voluntary treatment is not the only factor affecting an alleged SVP’s danger to the community. (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 928.) As Dr. Vognsen explained in the present case, other factors affected appellant’s likelihood of reoffense, including his age, health, and the fact that he had committed sexual offenses while undergoing treatment. Since appellant’s requested instruction highlighted the factors supporting his theory of the case and excluded other factors suggested by the evidence, it was impermissibly argumentative. Accordingly, the trial court properly refused to give this instruction.[2]
III. Disposition
The order is affirmed.
_______________________________
Mihara, Acting P.J.
WE CONCUR:
_____________________________
McAdams, J.
_____________________________
Duffy, J.
Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by San Diego County Property line attorney.
[1] The trial court omitted from its version of CALJIC 4.19 the final phrase from the instruction’s paragraph concerning what evidence the jury should consider. The phrase omitted by the trial court from CALJIC No. 4.19 is italicized. “In determining whether the respondent is a sexually violent predator, you should consider all of the evidence introduced in the case, including the prior conviction of one or more crimes previously listed for you. However, you may not find respondent 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.”
[2] We also reject appellant’s argument that the trial court had a duty to tailor his proposed instruction. Unlike the cases upon which appellant relies (People v. Sears (1970) 2 Cal.3d 180, 190; People v. Hall (1980) 28 Cal.3d 143, 159), appellant never made such a request.
