P. v. Gonzalez

Filed 8/29/07 P. v. Gonzalez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Jose Manuel Gonzalez appeals from a judgment recommitting him to Atascadero State Hospital as a sexually violent predator (SVP). (Welf. & Inst. Code,  6600 et seq.)[1] He contends that the trial court erroneously admitted hearsay evidence. We affirm.

FACTUAL AND PROCEDURURAL HISTORY

Appellant was first committed as an SVP in 1999. During recommitment proceedings in 2006, the parties stipulated that appellant was convicted of rape in Washington on October 7, 1976, and on May 8, 1979.

Appellant objected when the prosecution offered probation reports that discussed his "arrest for an alleged Rape [in Wisconsin] in late 1975, in which a girl was threatened with a knife." Wisconsin authorities did not prosecute appellant after he was sentenced in Washington. He urged the trial court to redact the summary of his criminal history other than that relating to the qualifying Washington rape convictions from the probation report. He argued that because the recommitment proceedings were based on the Washington rapes, the statements concerning other crimes constituted inadmissible hearsay. The court admitted the probation report without redacting any portion of appellant's criminal history.

DISCUSSION

Appellant contends that the admission of the probation report, including the summary of his criminal history, was prejudicial error. Respondent requests that we dismiss this appeal as moot because appellant's recommitment expired on May 14, 2007. Appellate courts regularly decide issues that may arise in subsequent proceedings. (See, e.g., People v. Quartermain (1997) 16 Cal.4th 600, 623.) The admissibility of the challenged evidence may arise in future SVP recommitment proceedings. We therefore deny respondent's request to dismiss this appeal.

Appellant acknowledges that section 6600, subdivision (a)(3) allows probation reports to be admitted in SVP proceedings to prove the details of prior qualifying convictions. He argues, however, that subdivision (a)(3) does not authorize the admission of probation report references to other crimes, such as those concerning his Wisconsin rape arrest. We agree, but not with appellant's argument regarding prejudice.

Appellant argues that the Wisconsin rape evidence was especially prejudicial because it suggested that (1) he used a weapon to threaten the victim in a "complete departure" from his other sex crimes where he used verbal threats; and (2) he was a child molester as well as a rapist because the alleged victim was a "girl," unlike his other victims who were adults.

While there is no evidence that appellant used a knife or a similar weapon during the qualifying rapes, his conduct during those crimes was violent. For example, appellant testified that he hit the 1976 Washington rape victim. Further, he dragged that victim from her car and raped her on a picnic table. He also admitted that he had threatened to break the neck of the 1979 Washington rape victim. He made that threat just after grabbing her and throwing her onto the hood of a car. In addition, he told a psychologist that he had used a stick when he tried to rape a woman in Seattle in 1974. The jury also heard appellant admit that he had sex with a 16-year-old "underage girl" in San Francisco. It is not reasonably probable that the verdict would have been different if the summary of his criminal history, including his arrest for the Wisconsin rape, had been redacted from the probation report. The erroneous admission of that evidence was, therefore, harmless. (See People v. Reed (1996) 13 Cal.4th 217, 231; People v. Watson (1956) 46 Cal.2d 818, 836.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Christopher G. Money, Judge*

Superior Court County of San Luis Obispo

______________________________

Chris Truax, 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, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Welfare and Institutions Code.

*(Retired Judge of the San Luis Obispo Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)