P. v. Sanchez

Filed 4/13/07 P. v. Sanchez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Fresno County. R. L. Putnam, Judge.

Michael B. McPartland, 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 A. Hokans and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Jesse Sanchez challenges his commitment as a sexually violent predator, contending the commitment order must be reversed because the trial court prejudicially erred and violated his due process rights when it failed to instruct the jury with the statutory definition of a diagnosedmental disorder. We agree there was instructional error, but conclude the error was harmless and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

A petition for civil commitment under Welfare and Institutions Code section 6600 et seq.^[1]was filed against Sanchez on August 24, 2005. The petition alleged that Sanchez qualified as a sexually violent predator.

Trial commenced on April 13, 2006. On April 20 the jury found the allegations of the petition to be true and the trial court ordered that Sanchez be committed to the custody of the California Department of Mental Health.

During the trial, Sanchez stipulated that he had been convicted of three prior qualifying offenses against two or more separate victims. Sanchez previously had been convicted of several counts of violating Penal Code section 288, subdivision (a) against his six-year-old niece, E.R., 10-year-old R.S., and six-year-old A.G. In addition, he had been convicted of two counts of violating Penal Code section 288, subdivision (b) with respect to A.G.

The People presented testimony from two psychologists, Mark Miculian and Bruce Yanofsky, that Sanchez suffered from the mental disorder of pedophilia. Miculian and Yanofsky also opined that Sanchez had a volitional impairment due to this mental disorder in that he would be unable to control himself when in the presence of young girls.

Both Miculian and Yanofsky testified that Sanchez was likely to engage in sexually violent predatory behavior if released into the community. These opinions were based on Sanchezs prior convictions, plus his having committed the offenses against A.G. shortly after being released from custody. They believed that Sanchez met the criteria of having a diagnosed mental disorder as required by section 6600.

Sanchez presented testimony from a licensed psychologist, Raymond Anderson, that Sanchez was a not a pedophile, but a nonpedophilic child abuser. In other words, a situational child abuser. Anderson opined that Sanchez did not fit the profile of a pedophile because he had been married, had children, and his offenses appeared situational. Anderson also believed that Sanchez had the ability to choose not to commit offenses and calculated Sanchezs likelihood of recidivist behavior, if released into society, at 3.5 percent.

Karen Logue, the parole agent who would supervise Sanchez if he were released, testified that Sanchez would be classified as a high-risk sex offender. He would be required to wear an ankle bracelet so his movement could be monitored and attend an outpatient sexual offender treatment program. In addition, Sanchez would be required to report to the parole office on a weekly basis, submit to drug and alcohol testing, and report any address or employment changes. He would not be permitted to live near a school, leave the county, or carry any weapons.

The trial court instructed the jury that in order to establish that Sanchez was a sexually violent predator, the People had to prove beyond a reasonable doubt that:

one, he has been convicted of committing sexually violent offenses against two or more victims; two, he has a diagnosed mental disorder; three, as a result of that diagnosed mental disorder it is likely that he will be a danger to the health and safety of others because he will engage in sexually violent predatory criminal behavior; and four, it is necessary to keep him in custody in a secure facility to ensure the health and safety of others.

The trial court went on to define many of the phrases and terms used in the instruction, but did not define the term diagnosed mental disorder.

DISCUSSION

Sanchez claims the failure to define for the jury the term diagnosed mental disorder deprived him of due process and constitutes prejudicial error. The People contend that any error was harmless.

The trial court instructed the jury with Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 3454. The paragraph that defined a diagnosed mental disorder, however, was omitted. The omitted language tracks the language of section 6600, subdivision (c). The omitted language read:

The term diagnosed mental disorder includes congenital or acquired conditions affecting a persons emotional or volitional capacity and predisposing that person to commit criminal sexual acts to an extent that makes him or her a menace to the health and safety of others. (CALCRIM No. 3454 at p. 1093.)

The People refer to this paragraph as being bracketed, implying that its inclusion in the instruction was optional. The paragraph was bracketed in the 2006 version of the instruction. (CALCRIM No. 3454 at p. 1093.) The 2006-2007 version of the instruction omits the brackets and includes substantially similar language as part of the standard instruction. (CALCRIM No. 3454 (2006-2007 rev.) at p. 1093.)

Sanchez requested that the jury be instructed with CALCRIM No. 3454. There is no indication as to whether the request was meant to include the bracketed language. The trial court, however, indicated that a modified version of CALCRIM 3454 was given to the jury.

It is for the Legislature, and not the trial court, to define what constitutes a diagnosed mental disorder for purposes of civil commitment. (Kansas v. Hendricks (1997)521 U.S. 346, 359.) Section 6600, subdivision (c) requires not only that there be a diagnosed mental disorder, but that the disorder be such that it affects the emotional or volitional capacity to control behavior. Nowhere in the instructions to the jury is the legal definition of a diagnosed mental disorder, as set forth in section 6600, subdivision (c), explained to the jury.

The trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues and to define terms used in an instruction when they have a technical meaning peculiar to the law. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1318.) The trial courts failure to instruct the jury here with the proper definition of a diagnosed mental disorder was error.

A failure to instruct the jury properly is analyzed under the harmless beyond a reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18. (People v. Hurtado (2002) 28 Cal.4th 1179, 1194.)

Here, the expert testimony on both sides included discussions of the definition of a diagnosed mental disorder, and whether Sanchez had such a disorder. All discussed the volitional component of the definition. Anderson testified that situational offenses constituted criminal behavior but that by definition its not a disorder, so he concluded Sanchez did not have a diagnosed mental disorder. Miculian and Yanofsky testified Sanchez did have a diagnosed mental disorder of pedophilia. Also, counsel on both sides thoroughly argued to the jury the appropriate definition and its application to Sanchez.

Although the jury received no instruction defining the term diagnosed mental disorder as used in section 6600, subdivision (c), it was not confused or misled. We conclude beyond a reasonable doubt that the jury would have reached the same result had the proper instruction been given.

DISPOSITION

The judgment is affirmed.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

WISEMAN, Acting P.J.

_____________________

DAWSON, J.

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