P. v. Wright

Filed 1/16/07  P. v. Wright CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from an order of the Superior Court of Imperial County, Juan Ulloa, Judge.  Affirmed as modified.

            In November 2005 a jury found Robert Edward Wright was a sexually violent predator within the meaning of Welfare and Institutions Code^[1] section 6600 et. seq., the Sexually Violent Predators Act (the SVP act).  Accordingly, Wright was committed to the State Department of Mental Health at Atascadero, California, to be confined there for a two-year term.^[2]  Wright appeals, contending the evidence does not support the finding he is a sexually violent predator.  In particular, he believes one of his prior convictions is not a predicate sexually violent offense under the SVP act.  We affirm the judgment.^[3]

FACTUAL AND PROCEDURAL BACKGROUND

            A.  Appellant's Prior Convictions

            Appellant has been twice convicted of committing lewd and lascivious acts with a child under the age of 14 in violation of Penal Code section 288, subdivision (a).  These convictions occurred in 1984 and 1994.  Because appellant only contests the use of the 1984 conviction as a predicate offense under the SVP act, we address that crime in full; we describe the 1994 more briefly.

            1.  1984 Conviction:  Sexual Molestation of A. P.

            Early in the morning on June 3, 1984, appellant walked naked into his stepdaughter's bedroom while she slept.  His stepdaughter, A. P., was 11 years old at the time.  A. P. awoke as appellant sat on her bed with no clothes on.  Appellant tried to take A. P.'s nightshirt off but she held it down and struggled to get out of appellant's reach.  She ran for her bedroom door but realized appellant was blocking it.  Appellant then cornered the child, picked her up and put her back on the bed.  He told A. P. he had a gun full of bullets and would use it on her if she did not do as he said.  Appellant then tried to pull down A. P.'s underpants; she struggled with both hands to hold them up.  Crying in fear, she finally said " Okay" and asked if she could use the bathroom first.  Appellant acquiesced after making A. P. promise to return.  A. P. ran for the front door and tried to leave the house.  But once again, appellant snatched A. P. before she could make it to the door.  Appellant put her back on the bed.

            At this point, appellant gripped A. P.'s face with his thumb and fingers on either side of her lower jaw.  He then forced his penis into the child's mouth.  A. P. began to cry harder.  Appellant removed his penis before ejaculating and went to the bathroom to get a washcloth.  He gave the washcloth to A. P. so she could wash her face with it.  Appellant left A. P.'s room and dressed for work.  But before leaving for work, appellant showed

A. P. some bullets and reminded her that he would use the gun on her if she told anyone.

            After appellant left for work, A. P. reported the assault to her mother who then called the police.  Two weeks later, appellant pleaded guilty to violating Penal Code section 288, subdivision (a), committing a lewd and lascivious act with a child under the age of 14.  He was sentenced to six years in state prison.

            2.  1994 Conviction:  Sexual Molestation of S. K.

            Following appellant's release from prison on the 1984 conviction and termination of his parole, appellant was living with another woman who had a nine-year-old daughter.  The girl, S. K., told her mother that on many occasions appellant " humped" her, put his " pee-pee" in her mouth and inside of her, and put his mouth on her " privates."   After a medical examination of S. K. revealed evidence consistent with her claims, appellant pleaded guilty to violation of Penal Code section 288, subdivision (a), and was sentenced to 15 years in state prison.

            B.  Procedural Background

            Prior to appellant's release from his second prison sentence, the Imperial County District Attorney filed a petition, alleging appellant was a sexually violent predator under the provisions of the SVP act.  A jury found he was a sexually violent predator and he was committed to Atascadero for two years beginning March 18, 2003.

            Before appellant's civil commitment term expired, the district attorney filed a second petition, alleging appellant continued to be a sexually violent predator.  At trial, the district attorney presented expert testimony from two psychologists, Dr. Clark Clipson and Dr. Jack Vogensen.  Dr. Clipson testified " there is a substantial risk that [appellant] will attempt to set up another relationship with a woman in order to gain access to prepubescent girls."   Dr. Clipson also testified that appellant's actions should not be considered " incest-type offenses" because " he has, in essence, broken that mold" by molesting girls in two separate families.

            Dr. Vogensen further stated that because appellant denies he is a pedophile and refuses to enter rehabilitation, there are no controls or conditions other than civil commitment that can be placed on him to protect the public.

            Appellant presented the expert testimony of Dr. Craig Updegrove, the psychologist who testified on his behalf at appellant's first civil commitment trial.  Dr. Updegrove said:  " I still believe . . . [appellant is] not likely to commit sexually violent predatory acts in the future."   Dr. Updegrove came to this conclusion based on appellant's age, 56 at the time, and because he thought appellant was not " going out into the community" to seek victims.

            On November 10, 2005, the jury unanimously found appellant to be an SVP.  Accordingly, the court ordered appellant recommitted to Atascadero State Hospital for a period of two years.

            Appellant filed a timely notice of appeal.

DISCUSSION

            Appellant contends the jury should not have been able to conclude he is a sexually violent predator because he argues his 1984 conviction is not a predicate sexually violent offense under the act.  Although violation of Penal Code section 288, subdivision (a), has at all pertinent times been a sexually violent offense within the meaning of the SVP act, and in 1984 appellant pled guilty to that offense, appellant contends that the later enacted provisions of Penal Code section 288.5 more accurately reflect the crime he committed.  Penal Code section 288.5 was enacted in 1989 and criminalized acts of continuous sexual abuse committed by residents of a victim's household.  Until quite recently, violation of Penal Code section 288.5 was not a predicate sexually violent offense under the SVP act.  Appellant contends the 1984 crime should not make him subject to the SVP act because the Legislature did not intend for nonviolent " 288.5 behavior" to serve as the basis for an SVP finding.  We reject appellant's contentions.

I

            Under section 6604, a person shall be committed to the State Department of Mental Health for two years^[4] of treatment and confinement if a court or jury finds, beyond a reasonable doubt, the person is a sexually violent predator.  A " sexually violent predator" is " 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 he or she will engage in sexually violent behavior."   (§ 6600, subd. (a)(1).)

            Section 6600, subdivision (b), identifies " sexually violent offense[s]" as certain acts " when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person."   In 2005 one of the qualifying acts enumerated in subdivision (b) was conviction under Penal Code section 288, subdivision (a).  As we noted, appellant's 1984 conviction under Penal Code 288, subdivision (a), arose from appellant pleading guilty to forcing A. P. to orally copulate him.  Thus on its face appellant's conviction qualifies as a sexually violent offense.

            Quite recently the Legislature amended section 6600, subdivision (b), to include violations of Penal Code section 288.5 as sexually violent offenses " when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person."   (Stats. 2006, ch. 337, § 53.)  This amendment to the SVP act makes it clear the Legislature intends that violations of Penal Code section 288.5 may be treated as sexually violent acts under the SVP act.  However, even in the absence of this amendment we would not be able to accept appellant's attempt to retroactively change the consequences or character of his 1984 conviction.

            Under Penal Code section 288.5 subdivision (a):  " Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years."   Significantly, Penal Code section 288.5, subdivision (b), provides:  " To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number."

            The overall purpose and intent of the Legislature in enacting Penal Code section 288.5 was to remedy a recurrent problem in the prosecution of so-called resident child molesters.  (People v. Johnson (2002) 28 Cal.4th 240, 242.)  " Because of the age of the victim and the repeated and continual nature of the offenses, trial testimony often failed to identify with specificity the date or place of particular charged acts, and the defense's ability to respond to specific charges arguably was impaired.  A line of Court of Appeal decisions beginning with People v. Van Hoek (1988) 200 Cal.App.3d 811 (Van Hoek) reversed convictions obtained through the use of such 'generic' testimony, concluding that the inability to effectively defend against such charges deprived defendants of due process and that such proceedings improperly compromised the constitutional guarantee of jury unanimity.  [Citations.]  [¶] The Legislature responded to the Van Hoek line of cases by enacting section 288.5.  (Stats. 1989, ch. 1402, § 1, p. 6138.)  In a prosecution under the statute, the trier of fact need unanimously agree only that the requisite number of specified sexual acts occurred, not which acts constituted the requisite number.  [Citation.]"   (Id. at pp. 242-243.)

            Thus, Penal Code section 288.5 was intended to assist the prosecution in obtaining convictions against resident child molesters.  Where, as in cases such as appellant's assault on A. P., the prosecution does not face any difficulty in establishing appellant's guilt for a particular act of lewd and lascivious conduct, nothing in Penal Code section 288.5 prevents the prosecution from obtaining a conviction under the separate provisions of Penal Code section 288.  Indeed, the court in People v. Johnson (1995) 40 Cal.App.4th 24, 26, expressly rejected the contention that liability under Penal Code section 288.5 displaces liability under Penal Code section 288 when both offenses can be charged:  " Section 288.5 was enacted because of problems of proof that can arise where the molester resides in the same house as the child.  Under such circumstances the child may recall she was molested repeatedly over a period of time, but may not be able to recall discrete instances with sufficient precision to prove multiple counts.  The People, however, are not required to prosecute under section 288.5 in order to gain a conviction against a resident child molester even when the evidence is based on 'generic testimony.'  [Citation.]

            " [Appellant] claims the legislative intent behind section 288.5 is to limit the offender's potential liability to a single count against a given victim.  [Citation.]  That may indeed be the effect of section 288.5 when it is charged, but the effect is incidental.  The legislative purpose was to make obtaining significant penalties against a resident child molester easier.  [Citation.]"

            In addition to the fact Penal Code section 288.5 would not have supplanted appellant's liability under section 288, it is well established that " [a]statute is given retroactive effect only when there is clearly expressed legislative intent that it is to have that effect."   (People v. Daniels (1963) 222 Cal.App.2d 99, 101, citing Fountain v. State Board of Education (1958) 157 Cal.App.2d 463, 469.)  Furthermore, " [a] law is not retroactive 'merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.' "   (People v. Grant (1999) 20 Cal.4th 150, 157, quoting Kizer v. Hanna (1989) 48 Cal.3d 1, 7.)  In addition to this general presumption against retroactive application of statutes, the Penal Code explicitly states that " [n]o part of it [the Penal Code] is retroactive, unless expressly so declared."   (§ 3.)  This is a specific rule applied to all Penal Code statutes; and " where the language of a statute specifically limits or prohibits its retroactive application, courts do not hesitate to deny retroactivity."   (Harbor View Hills Community Assn. v. Torley (1992) 5 Cal.App.4th 343, 347, fn. omitted.)  Penal Code section 288.5 does not expressly provide for its retroactive application.  Thus it may not be applied retroactively.

            In short, no part of Penal Code section 288.5, or its legislative history, reveals any intent to apply the statute retroactively or even prospectively to cases such as appellant's assault on A. P. where there was uncontroverted evidence of a specific violation of section 288.  (See People v. Johnson, supra, 40 Cal.App.4th at p. 26.)

II

            In related arguments, appellant claims the SVP act, if applied to his 1984 crime, is unconstitutionally overbroad and violates equal protection principles.

            " The SVPA is narrowly focused on a select group of violent criminal offenders who commit particular . . . sex acts . . . and who are incarcerated at the time commitment proceedings begin. . . .  The problem targeted by the Act is acute, and the state interests--protection of the public and mental health treatment--are compelling."   (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1153, fn. 20, italics added.)  Appellant falls in the select group targeted by the SVP act.  He was charged and convicted of forcing A. P. to orally copulate him; he committed this crime by threatening to kill A. P. if she refused.  Contrary to appellant's claim, his " behavior" in 1984 fell well within the narrow and legitimate focus of the SVP act.  Appellant is not similarly situated to non-violent sex offenders convicted under Penal Code section 288.5 because appellant's crime was sexually violent.  Thus, appellant's overbreadth and equal protection arguments fail.

            As corrected,^[5] the order of commitment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

                                       HALLER, J.

                                   O'ROURKE, J.

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

^[2]           Wright was previously committed as an SVP and placed under a two-year term set to expire on March 18, 2005.  The district attorney petitioned for recommitment of Wright in the instant case on January 18, 2005.

^[3]           We also find, and the parties agree, the trial court erroneously ordered appellant's commitment term to begin March 18, 2006, rather than March 18, 2005. Therefore, we correct the commitment order so that it provides appellant's commitment began on March  18, 2005.  Appellant's current commitment term will expire on March 18, 2007.

^[4]           Effective September 20, 2006, the Legislature amended section 6604 to require an indeterminate commitment term.  (Stats. 2006, ch. 337, § 55.)

^[5]           See footnote 3 infra.