P. v. Pegram

Filed 10/23/06 P. v. Pegram CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

Introduction

Appellant Michael Francis Pegram appeals from the order committing him to the Department of Mental Health for two years, based upon a jury’s determination that he is a sexually violent predator (SVP) (Welf. & Inst. Code, § 6600 et seq.).^[1] Appellant contends that: (1) he did not receive an adequate number of peremptory challenges to prospective jurors; (2) the trial court erred in instructing the jury on consciousness of guilt, pursuant to a modified version of CALJIC No. 2.03, based on false pretrial statements; and (3) the jury’s determination that he is an SVP is not supported by substantial evidence. We affirm.

II.

Facts and Procedural History

At the time of trial, appellant was a 36-year-old man with a history of sexually assaulting women. The jury heard descriptions of two of these sexual assaults, both of which resulted in criminal convictions, from appellant himself during his trial testimony. He testified that in the early hours of February 26, 1987, after abusing drugs and alcohol, he climbed up a fire escape in Berkeley and entered a studio apartment through an open window intending to burglarize the apartment. However, when he saw a woman sleeping in bed he decided to rape her. He testified he “thought about it for a minute” and then he “did it.” The victim pretended to be crazy in order to escape, and appellant allowed her to leave. Although he knew she was not crazy, appellant tried to convince the Berkeley police that she was crazy and had escaped from a mental institution. He also told the police that the victim reached up to him and pulled him down to her. Appellant acknowledged that his statements to the police were not true.

After entering a plea, appellant received a prison sentence for his criminal conduct. While in prison, he was disciplined for cursing at a female correctional officer after she asked him to stop talking about “jacking off” in her office. He called her a “suck ass bitch.” Appellant also called another female correctional officer a “bitch.” In addition, he was written up for failing to report to work and aggressive behavior with other inmates.

Appellant was paroled in March 1990. On April 18, 1990, 21 days after he was paroled, appellant raped another woman. He was in a store parking lot in El Cerrito between 11 and 12 p.m., broke and trying to find money. He saw a young Asian woman exit the store with her purchases. As she went to her car, he approached her. He pushed her into her car, a struggle ensued and he angrily told her, “You better listen to me, bitch, do you want to die? I am going to kill you. You better cooperate or else you are going to die.”

Appellant forced the victim to drive to a Wells Fargo ATM, where she withdrew “a couple of hundred bucks.” He then forced her to drive to a secluded area near Wildcat Canyon Park. They struggled again when he told her to get into the back seat of the car. Appellant made her take off all of her clothes. He also told her that he was going to make her feel good, and that she would enjoy it. Appellant orally copulated the victim, and then raped her. After ejaculation, appellant had a cigarette. An hour later, he raped her again. He instructed the victim to say that she loved his “dick,” and he forced her to orally copulate him. They fell asleep in the back seat of the car, and when they woke up the following morning appellant had anal sex with the victim. She complained of pain, but appellant had no problem achieving erection and ejaculation.

Appellant forced the victim to drive him to San Francisco, which he described as his “stomping grounds.” At a stop light, while he wiped his prints off of things he had touched in the car, the victim “saw her chance [and] she took it” and escaped from the car. He tried to pull her back into the car, but when he noticed that people were watching them, appellant ran away.

Appellant was arrested and charged with sexual assault, kidnapping, and robbery. After entering a plea, he was sentenced to prison for a total term of 27 years. After appellant’s prison term commenced, he had more rule violations, fights, and was caught with homemade alcohol. Also, in 1996 while at Pelican Bay State Prison, he tested positive for methamphetamine and marijuana. Appellant testified that when he was assaulted by another inmate in 1996, he realized that he needed to change his behavior. When he was transferred to Mule Creek State Prison he got involved with the prison industry and learned to sew and became involved in the production of prison clothing. He also began playing the guitar and teaching other inmates to play. Appellant did not commit any other rule violations after 1999.

Appellant was due to be paroled from the 27-year term on February 7, 2005. On January 6, 2005, the district attorney filed a civil petition pursuant to section 6604 to have appellant committed as an SVP. A jury trial began in May 2005. The disputed issue at appellant’s trial was whether appellant has a diagnosed mental disorder that makes him a danger to the health and safety of others in that he presents a substantial danger, i.e., a serious and well-founded risk, that he will engage in sexually violent predatory criminal behavior if free in the community. (§ 6600, subd. (a)(1); People v. Roberge (2003) 29 Cal.4th 979 (Roberge); People v. Hurtado (2002) 28 Cal.4th 1179.)

Two psychologists testified for the state, Drs. Dana Putnam and Thomas MacSpeiden. They reviewed documents related to appellant’s childhood, education, disciplinary reports, criminal record, and psychological history. Each psychologist independently diagnosed appellant with paraphilia not otherwise specified (NOS) manifested by sex with nonconsenting individuals and antisocial personality disorder. Both believed that appellant qualified as an SVP and was likely to commit sexually violent predatory offenses if released into the community.^[2]

Appellant offered contrary expert opinions. Defense experts, Drs. Jules Burstein, Laura Petracek and Paul Berg, believed that the diagnosis of paraphilia was made in error. Dr. Petracek believed appellant’s level of risk of reoffending was “low to medium.” Dr. Berg offered his opinion that appellant “is amenable to release with appropriate supervision and treatment.” Dr. Burstein concluded, “Mr. Pegram is not likely to reoffend if released in the foreseeable future.”

As noted, appellant testified on his own behalf. Appellant understood that, if released, he would probably have to wear some type of monitoring device, he would have to participate in substance abuse and anger management treatment, he would need treatment designed for sexually violent offenders, and he may have to undergo phallimetric testing “to ensure that you were not responding in an inappropriate way to whatever imagery they showed you.” He declared his intention to abide by whatever conditions were placed on his release.

On May 17, 2005, a jury returned a verdict establishing that appellant is an SVP and that his currently diagnosed mental disorder makes him likely to engage in sexually violent predatory crimes if released from custody. The trial court committed appellant to the custody of Atascadero State Hospital for a period of two years. Appellant filed a timely notice of appeal.

III.

Discussion

A. Peremptory Challenges to Prospective Jurors

Appellant claims that the trial court erred in ruling, over his objection, that the parties were only entitled to six peremptory challenges each, as allowed in civil cases, rather than ten peremptory challenges as allowed in criminal cases. (Code Civ. Proc., § 231, subds. (a), (c).) Appellant argues that “[h]aving declared that at least ten challenges are required to be allowed any person who faces a substantial term of confinement, the allowance of only six challenges to an SVP defendant facing a minimum of two years’ confinement denies such persons the effective right to an impartial jury” in violation of the guarantee of due process. Appellant further argues that a person alleged to be an SVP and a criminal defendant are similarly situated and equal protection principles require that a defendant facing SVP commitment proceedings be provided the same number of peremptory challenges as a defendant facing criminal prosecution.

Appellant acknowledges that these arguments have been rejected by the First District Court of Appeal, Division One in People v. Calhoun (2004) 118 Cal.App.4th 519, 521, review denied August 25, 2004. While appellant argues that we should not follow Calhoun, he presents no compelling argument why we should depart from its reasoning. As Calhoun points out, the parties are limited to the number of peremptory challenges allowed in a civil proceeding because a sexually violent predator trial is a civil proceeding, or “a special proceeding of a civil nature.” (Id. at p. 527.) We agree with Calhoun and need not repeat its analysis here.

B. Instruction on Consciousness of Guilt

Appellant next contends the trial court erred in instructing the jury on consciousness of guilt, pursuant to a modified version of CALJIC No. 2.03.^[3] He argues that the court erred in giving the instruction because there is no predicate for it here in a civil hearing to determine whether appellant should be adjudged an SVP.

An instruction based on CALJIC No. 2.03 was given to the jury, modified as follows: “If you find that before this trial the respondent made a willfully false or deliberately misleading statement concerning the issues for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness that he is a sexually violent predator. However, that conduct is not sufficient by itself to prove that he is, and its weight and significance, if any, are for you to decide.”

“The giving of CALJIC No. 2.03 is justified only if there exists evidence that defendant prefabricated a story to explain his conduct.” (People v. Rubio (1977) 71 Cal.App.3d 757, 769, disapproved on other grounds in People v. Freeman (1978) 22 Cal.3d 434, 438-439.) The only evidence respondent can point to in support of this instruction is appellant’s statement to the Berkeley police in 1987, following his arrest for the first rape, where he told the arresting officer that the victim reached up and pulled him down to her. During his testimony in this proceeding, appellant admitted that statement was false. However, as appellant argues, the false statements given to police do not necessarily reflect appellant’s consciousness that he is an SVP; moreover, appellant’s subjective belief that he is an SVP is wholly irrelevant to the issues in this case. As appellant aptly points out, “it would be ludicrous for the jury to presume a consciousness of a mental disorder based on that statement.”

“Request for instruction on a legal point should be refused if there is no evidence to which the instruction may be properly related. [Citations.]” (People v. Robinson (1999) 72 Cal.App.4th 421, 428 (Robinson).) Consequently, we believe it would have been better for the trial court to have refused that instruction, and we hereby specifically disapprove of its use in an SVP civil commitment proceeding.

We nevertheless conclude that, given the totality of the instructions, the error in giving CALJIC No. 2.03 was harmless. “It is settled that this type of instructional error does not require reversal unless it is affirmatively shown that defendant was prejudiced thereby and that there is a reasonable probability that, absent the error, the jury would have returned a verdict more favorable to the defendant. [Citations.]” (Robinson, supra, 72 Cal.App.4th at p. 429.)

In the context of the balance of the instructions given, the jurors could not have believed they were permitted to find appellant was an SVP based on the fact that he attempted to evade the consequences of his acts by making false statements to the police after his commission of the 1987 rape.^[4] In arguing to the jury, the state neither highlighted this instruction nor argued its applicability. The focus of the state’s argument was that appellant met the legal qualifications for two-year commitment as an SVP, not because appellant made a false statement to the police in 1987, but because the expert evidence at trial proved that he was an SVP.

Furthermore, the instruction did not create a mandatory inference adverse to appellant. The plain language of the instruction makes clear the instruction was merely permissive; it was for the jury to determine what weight, if any, to give such evidence. (People v. Rankin (1992) 9 Cal.App.4th 430, 436.) Accordingly, appellant has not demonstrated a substantial risk that the jury was misled or that it is reasonably probable he would have obtained a more favorable result had the alleged error not occurred. (People v. Guiton (1993) 4 Cal.4th 1116, 1130 [Watson harmless-error standard applies to analysis of factually inapplicable jury instructions]

.)

C. Sufficiency of the Evidence

Appellant lastly contends the jury erred in concluding he is an SVP because “the state has failed its proof of a current mental disorder that renders him incapable of controlling his actions” and thus its verdict was not based on evidence he is currently a danger to others, as the SVPA requires. In practical effect, appellant argues that the evidence presented by the state at trial was not sufficient to support his commitment as an SVP.

“When a defendant challenges the sufficiency of the evidence to support a finding that he is an SVP, ‘this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be “ ‘of ponderable legal significance . . . reasonable in nature, credible and of solid value.’ “ [Citation.]’ [Citation.] ‘In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment.’ [Citation.]” (People v. Sumahit (2005) 128 Cal.App.4th 347, 352 (Sumahit); see also People v. Fulcher (2006) 136 Cal.App.4th 41, 52 (Fulcher).)

In order to establish that a defendant is an SVP, the state had to prove “(1) [the] defendant was convicted of two separate sexually violent offenses; (2) he had a diagnosable mental disorder that made him a danger to the health or safety of others; (3) his disorder makes it likely he will engage in sexually violent criminal conduct if released; and (4) his sexually violent criminal conduct will be predatory in nature. [Citations.]” (Fulcher, supra, 136 Cal.App.4th at p. 52, italics omitted.)

Appellant does not question that he had been convicted of two sexually violent offenses and he is even willing to accept “as true” that he “was properly diagnosed with paraphilia NOS, based on the expert testimony about the nature of this particular disorder.” Instead, appellant’s principal argument is that the state failed to prove that, at the time of the hearing, he was at high risk to commit other acts of predatory sexual violence because “[t]he evidence presented at trial proved that appellant had learned to control his disorder while in prison.”

The Sumahit court rejected appellant’s contention that a determination that he is an SVP requires that he engage in overt manifestations of sexually predatory behavior while in confinement: “The fact that defendant has not misbehaved in a strictly controlled hospital environment does not prove he no longer suffers from a mental disorder that poses a danger to others. . . . Because he currently lacks access to [victims], his lack of outward signs of sexual deviance is not dispositive of whether he is likely to reoffend if released into society at large. Such an assessment must include consideration of his past behavior, his attitude toward treatment and other risk factors applicable to the facts of his case. [Citation.] This was precisely the methodology followed by the prosecution’s experts.” (Sumahit, supra, 128 Cal.App.4th at p. 353.)

The testimony of a single expert witness that an individual has a diagnosed mental disorder that presents a serious and well-founded risk that the individual will engage in sexually violent predatory criminal behavior if free in the community is sufficient evidence on that issue. (People v. Scott (2002) 100 Cal.App.4th 1060, 1064.) As noted, in this case there were two such experts, Drs. Dana Putnam and Thomas MacSpeiden.

Doctors Putnam and MacSpeiden each diagnosed appellant with the mental disorder of paraphilia NOS, and opined that his control was further impaired by his antisocial personality disorder. They believed appellant’s combined mental disorders made him a high risk for future sexually violent behavior.

In reaching their conclusions that appellant was likely to reoffend if released from confinement, the psychologists relied upon numerous risk factors, such as the underlying facts of the offenses, including appellant’s pattern of predation upon strangers; the rapid reoccurrence of sexually predatory behavior upon release from confinement; appellant’s lack of remorse or concern for the consequences to the victim; appellant’s childhood history of abuse and alienation from his parents; his inability to form intimate relationships; his history of having numerous casual sexual relationships (over 100 sexual partners); his lack of self-awareness and impulsivity; and his relatively young age.

Drs. Putnam and MacSpeiden also relied upon the Static-99 test that utilizes 10 variables, including age, marital status, number of criminal offenses, whether the victims were strangers and whether the offenses involved violence, to assess the risk that sex offenders will commit new crimes upon release from prison.^[5] Appellant’s score on the Static-99 placed him in the highest risk category. Out of individuals with similar scores, 39 percent reoffended within five years, 45 percent reoffended within ten years, and 52 percent reoffended within fifteen years.

Both Drs. Putnam and MacSpeiden concluded there was a serious, substantial, and well-founded risk that appellant would engage in sexually violent predatory behavior without appropriate treatment in custody. As for voluntary outpatient treatment, Dr. Putnam did not believe appellant had adequate interest and motivation in treatment. Although he was willing to undergo treatment as a condition of parole, appellant told Dr. Putnam that he did not believe he was at any risk of reoffending, and that if he went into an inpatient program it would be a waste of time.^[6] For appellant’s sake and the sake of the community, Dr. Putnam opined that inpatient treatment was “the only way to go.” Even appellant’s own expert, Dr. Petracek, recognized that appellant tended to deny problems and lacked insight into his problems and “may not be open to psychological self-evaluation.”

Appellant presented expert witnesses who offered conclusions opposed to those of Drs. MacSpeiden and Putnam, but the jury was well within its power to deem the state’s experts more credible. (See, e.g., People v. Mercer (1999) 70 Cal.App.4th 463, 466-467.) Second-guessing that decision by the jury is not among the powers of a reviewing court. (People v. Maury (2003) 30 Cal.4th 342, 403; People v. Poe (1999) 74 Cal.App.4th 826, 830-831.)

In conclusion, we believe the state’s evidence allowed the jury to conclude, beyond a reasonable doubt, that appellant’s previous violent offenses, his mental disorder, and the resulting serious lack of control, led to the likelihood appellant would engage in future sexually predatory acts if not confined to a secure facility.

IV.

Disposition

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Reardon, J.

_________________________

Sepulveda, J.

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^[1] All undesignated statutory references are to the Welfare and Institutions Code. In 1995 the Legislature enacted California’s Sexually Violent Predators Act (SVPA), which is codified at section 6600 et seq. (Stats.1995, ch. 763, § 3). Under the SVPA, a convicted sex offender who has completed his prison sentence may be civilly and involuntarily committed to a state mental hospital if he is found to be an SVP. The SVPA defines an SVP as someone who has been convicted of sexually violent offenses (as defined in § 6600, subd. (a)(2)) 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 that he or she will engage in sexually violent behavior. (Id. at subd. (a)(1).)

^[2] Because one of appellant’s three contentions involves the sufficiency of the evidence to support the jury’s finding that he met the criteria for an SVP, we will defer a discussion of the trial evidence to the portion of the opinion where we address that issue.

^[3] The standard, unmodified version of CALJIC No. 2.03 states: “If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”

^[4] The jury reached its conclusion after properly being instructed that appellant may not be adjudged a sexually violent predator “based on the prior offenses.” “Absent evidence to the contrary, we must assume that the jury followed the court’s instructions. [Citations.]” (People v. Talhelm (2000) 85 Cal.App.4th 400, 409.)

^[5] The Static-99 test is widely used to assess risk of reoffending in SVPA cases. (E.g., People v. Williams (2003) 31 Cal.4th 757, 762-763, fn. 3; Cooley v. Superior Court (2002) 29 Cal.4th 228, 237; Sumahit, supra, 128 Cal.App.4th at p. 353; People v. Therrian (2003) 113 Cal.App.4th 609, 615-616; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1214-1215.)

^[6] “Evidence 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. [Citations.]” (Roberge, supra, 29 Cal.4th at p. 988, fn. 2.)