P. v. Johnson

Filed 3/22/07 P. v. Johnson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Carl Louis Johnson appeals from an order of the Sacramento County Superior Court recommitting him for an additional two years to the Department of Mental Health as a sexually violent predator (SVP).

On appeal, defendant contends (1) the trial court prejudicially erred when it refused to permit him to cross-examine an expert witness for the People on the witnesss prior conviction for grand theft, and (2) the evidence is insufficient to support the jurys finding that he remained a danger to others in that he was likely to engage in sexually violent criminal behavior. We reject both contentions.

FACTS

At trial, Dr. Douglas Korpi, a psychologist, testified that based upon defendants records and prior evaluations, including evaluation updates in January 2004, February 2005 and one about a month prior to trial, he concluded that defendant was an SVP. Dr. Korpi diagnosed defendant as having paraphilia not otherwise specified, which is a sexual disorder without a specific name, and pedophilia, which is a subset of paraphilia and refers to an attraction to children under age 13. However, defendants range of victims also included persons over 14 years of age. Both disorders can be controlled, but not cured.

Defendants prior record included the following: In 1966, in Indiana, defendant took 11-year-old William into a bathroom at defendants residence where he kissed him on the mouth, put his penis between the boys legs and simulated intercourse.

In 1971, in Tennessee, defendant engaged in homosexual acts with Jimmy at defendants residence.

In 1971, in Tennessee, defendant approached Gary at a bus stop and told him that his mother had told defendant to bring him home. Defendant took the boy to a church basement where he slapped him around in an effort to force him into having sexual relations. This resulted in defendants conviction for assault.

In 1971, in Tennessee, at knife-point defendant tried to force 14-year-old Randall to engage in sodomy. Defendant was convicted of assault with a knife.

In 1971, in Tennessee, defendant and a companion forced 16-year-old Larry into a car, took him to a church, tied his hands behind his back and performed sex acts with him. Defendant was convicted of sodomy.

In 1972, in Tennessee, posing as a probation officer, defendant knocked on the door of 12-year-old Curtis, told Curtiss father that he needed to take Curtis to identify someone in a burglary, took the boy to a shack where he forced him to have oral and anal relations. Defendant was convicted of oral copulation.

Defendant was arrested in 1975 in Memphis for a sexual offense, however additional facts were not known.

In 1977, in Los Angeles, defendant was convicted of sodomizing 12-year-old Maurice; however, the facts were not known.

In 1979, in Chico, defendant took 16-year-old Casey, a boy with braces on each leg to his home. When Casey wanted to leave, defendant struck him in the face, threatened him with a knife, and engaged in forcible sodomy and oral copulation with him. Defendant was convicted, among other things, of forcible sodomy and forcible oral copulation and received a 20-year sentence.

In 1991, while at defendants apartment, at knife-point defendant forced 15-year-old Dennis to engage in oral copulation. Defendant was convicted of forcible oral copulation.

Using the STATIC 99 diagnostic assessment tool, Dr. Korpi opined there was a 39 percent probability defendant would reoffend in a sexually violent manner within five years.

Dr. MaryJane Alumbaugh, a psychologist, attempted to interview defendant on two occasions but he refused the interviews. On a third occasion, he agreed to be interviewed, but the interview was interrupted by an earthquake and Dr. Alumbaugh was unable to complete it. Dr. Alumbaugh reviewed defendants records and evaluations and concluded that he had committed sexually violent offenses, that he had a strong sexually deviant paraphilia, which drives his actions, which hes not able to control, and that he suffered from alcohol abuse and intermittent explosive disorder. Using the STATIC 99 diagnostic tool she considered defendant a high risk to reoffend, with likelihood of reoffending being 39 percent within five years, 45 percent within 10 years, and 52 percent within 15 years.

Defendant testified, admitting sexual contact with William, but denied such activity with Jimmy, Gary, Larry, and Maurice. He admitted sodomy and oral copulation with Casey and showing him a knife; he admitted orally copulating Dennis and threatening him with a knife; and he admitted sexual conduct with Randall, but denied use of a knife.

Defendants brother, father, sister and niece generally testified to defendants favorably changed attitude, their support for him if released, and their belief that he no longer posed a danger to the community if released.

Similar to defendants family members, several chaplains who knew defendant from Atascadero State Hospital and/or Deuel Vocational Institute testified to defendants changed attitude, his capacity for controlling his anger, and their lack of concern if he was released into their neighborhood. A nurse and a psychiatric technician who worked at Atascadero State Hospital testified to defendants lack of hostility with other patients, his amicability, and their belief that he was a safe patient.

DISCUSSION

I

Prior to trial, the People filed a motion seeking various rulings including an order precluding the defense from making any reference to Dr. Korpis 1985 misdemeanor conviction for grand theft because it was too remote to be probative of credibility. At the hearing on the motion, the defendant argued that (1) it was basically unfair to preclude defendant from bringing up Dr. Korpis felony conduct which was reduced to a misdemeanor, and (2) [t]he other point . . . is that this is personal knowledge on Dr. Korpis part[] [t]hat People can change and no longer engage in their illegal behavior . . . . The court concluded there should be no reference to the prior because it was exceedingly old that its probative value was far outweighed by its consumption of time and its prejudicial effect.

Defendant contends the trial courts ruling denied him his constitutional right to present a defense, to confrontation of the witnesses against him, and to due process. This is so, he argues, because the prior conviction was highly relevant to [Dr. Korpis] credibility and since the court was permitting evidence of defendants criminal behavior in the 1960s and 1970s [], it was startling for the court to determine that [Dr. Korpis] conviction from 1985 was too old to be relevant. The argument is not persuasive.

When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. (See People v. Beagle [(1972) 6 Cal.3d 441], at pp. 453-454 [].) But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor -- or any other conduct not amounting to a felony -- is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value. (People v. Wheeler (1992) 4 Cal.4th 284, 296-297.)

As to the factor of remoteness, Beagle states: The nearness or remoteness of a prior conviction is also a factor of no small importance. Even one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness. (People v. Beagle, supra, 6 Cal.3d at p. 453.)

The Peoples motion to exclude reference to Dr. Korpis misdemeanor conviction included a FACT SHEET, the accuracy of which defendant has never challenged, describing the charges. The charges consisted of 12 felonies based upon Dr. Korpi improperly billing a social worker for eight hours and over billing MediCal during a three-year period between 1979 and 1981, for a total of $616. The disposition was a no contest plea to misdemeanor grand theft, three years probation, $2,500 payment to the court, and his license to practice was placed on probationary status for three years. There were no other listings of criminal activity or ethics violations.

The conduct resulting in Dr. Korpis misdemeanor conviction occurred approximately 20 years prior to defendants trial. Since the conduct ranged over a four-year period, its presentation would obviously entail a large consumption of time. Additionally, he had led a legally blameless life since the conviction. Consequently, the conduct and conviction were a classic fit within Beagles generally stated principle that such a conviction should be excluded. Hence, there was no abuse of discretion by the court in its ruling.

Nor do we find it startling, as claimed by defendant, that the court would admit evidence of defendants prior convictions and conduct which went back to the 1960s and 1970s, but would not permit defendant to elicit evidence of Dr. Korpis theft conviction which was only 20 years old. Defendants multiple and appallingly brutal sexual assaults were factors used by Drs. Korpi and Alumbaugh in arriving at their opinions. (See Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1060 [mental health professional cannot be expected to tender opinion as to defendants current status without fully evaluating defendants background].)

II

Relying on People v. Munoz (2005) 129 Cal.App.4th 421, defendant contends the evidence is insufficient to support the jurys finding that his disorder currently caused him to be dangerous and likely to engage in sexually violent criminal behavior if released. This is so, defendant argues, because the opinions of Drs. Korpi and Alumbaugh impermissibly relied predominantly on [his] past status and that nothing had changed. . . . There was no current evidence of [his] sexual deviancy. The argument is not supported by the record and Munoz is distinguishable.

The standard for review of a challenge to the sufficiency of the evidence in an SVP commitment case is the substantial evidence test, i.e., whether the evidence is of ponderable legal significance . . . reasonable in nature, credible and of solid value. (People v. Mercer (1999) 70 Cal.App.4th 463, 465-466.)

An SVP extension hearing is a new and independent proceeding at which, with limited exceptions, the petitioner must prove the defendant meets the criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous. (People v. Munoz, supra, 129 Cal.App.4th at p. 429.)

In Munoz, two doctors testified that the defendant suffered from paraphilia, that because of this disorder he had difficulty controlling his deviant behavior, and that if he was released he would likely engage in future violent, predatory behavior. (People v. Munoz, supra, 129 Cal.App.4th at p. 425.) The defendant presented two doctors who testified that he did not suffer from a disorder such as paraphilia or pedophilia which would predispose him to commit sexual offenses. (Id. at pp. 425-426.) The trial court permitted the prosecution to elicit evidence that on previous occasions, the defendant had been committed as an SVP and that he had not challenged the prior findings that he suffered from a mental disorder which predisposed him to the commission of sexual offenses. (Id. at pp. 426-428.)

At the end of opening argument, the prosecutor had argued that the defendant was a sexually violent predator and there had been no change in him during his two years at the hospital. (People v. Munoz, supra, 129 Cal.App.4th at p. 428.) In closing argument the prosecutor again emphasized to the jury that the defendant had previously been committed as an SVP and had not contested the findings. (Ibid.)

On appeal from an order of recommitment, the court reversed, observing that while it may be impossible to avoid the jurys learning of prior SVP commitments because it may be necessary for experts to discuss the defendants treatment and behavior in the state hospital, [s]till it is necessary that nothing be done that suggests to the jury that its task is to compare the defendants present mental status with an earlier finding that he or she is an SVP. As we have noted each SVP hearing addresses the defendants current mental state. Nothing must be done to suggest the defendant is required to prove he is no longer an SVP or to effectively lessen the states burden by establishing a datum of mental disorder and dangerousness. (People v. Munoz, supra, 129 Cal.App.4th at p. 432.)

The court then noted that such a suggestion was precisely what had occurred -- The manner in which the prosecutor questioned witnesses, the evidence the trial court admitted, and the manner in which petitioner argued the case suggested that the issue was whether anything had changed since [the defendants] prior SVP commitment. (People v. Munoz, supra, 129 Cal.App.4th at p. 432.) The commitment order was therefore reversed.

In the present case, the prosecutor opened his argument telling the jury, You are to determine if Carl Johnson is a sexually violent predator. The fact that he may have been found in the past to be one is not the issue. The issue is as of today does he still have a current diagnosis of mental disorder that makes him likely to reoffend in a sexually violent predatory manner.

Later, the prosecutor stated, The only thing you have to determine is does he have a current diagnosed mental disorder, and as a result of that current diagnosed mental disorder, is he likely to offend in a sexually violent predatory manner.

And finally, the court instructed the jury that the prosecution has the burden of proving beyond a reasonable doubt that the respondent is a sexually violent predator and that in determining whether defendant is a sexually violent predator the jury should consider all of the evidence introduced in this case, including the prior conviction of one or more crimes previously listed for you. However, you may not find the [defendant] 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.

Obviously, unlike the circumstances in Munoz, here there was no implication, hint, or suggestion that defendant bore the burden of showing that he no longer was a danger to commit violent predatory sexual acts if released. Instead, under the instructions and argument, that burden remained squarely with the prosecution. Thus Munoz is distinguishable.

Defendant also makes the following argument: [T]he prosecutions experts opinions fell below the standard of proof beyond-a-reasonble-doubt because they impermissibly relied predominantly on [defendants] past status and that nothing had changed. The trial improperly focused on [defendant] past. There was no current evidence of [defendants] sexual deviancy. (Italics omitted.) The argument is not persuasive.

Since every SVP extension hearing is a new and independent proceeding (People v. Munoz, supra, 129 Cal.App.4th at p. 429), the prosecutions expert witnesses must review defendants entire record to determine anew whether he is an SVP. If, as defendant posits, nothing had changed it should come as no surprise that based upon the same evidence the experts would arrive at the same conclusion. And in this case that conclusion was that defendant presently suffers from a mental disorder which makes it likely that he will reoffend in a violently sexually predatory manner. That determination constitutes substantial current evidence of [defendants] sexual deviancy.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

NICHOLSON , Acting P.J.

BUTZ , J.

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