Opinion
Super. Ct. No. 15825C
BUTZ , J.A jury found defendant Ernesto Amayo to be a sexually violent predator (Welf. & Inst. Code, § 6600, subd. (a)), after which he was committed to Atascadero State Hospital for a period of two years. He appeals, urging evidentiary and instructional error by the court. We reject his arguments and shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL BACKGROUND
The jury’s verdict finding defendant to be a sexually violent predator (SVP) was based on three predicate offenses: two lewd and lascivious acts with a child under the age of 14 (Pen. Code, § 288, subd. (a)) committed in 1984 with two girls, M.H. and V.O., and one act of forcible lewd and lascivious conduct with a child under 14 (Pen. Code, § 288, subd. (b)), perpetrated against two-year-old J.S. in 1991.
M.H.
With regard to M.H., the People called two psychologists who testified, based on police reports and interviews with defendant, that M.H., who was then 10 years old, willingly accompanied defendant behind a building because she wanted to “kiss a man.” Defendant pushed her up against the wall, pulled down her pants and underwear, pulled down his pants, and pressed his erect penis against her vagina and rectum. She told interviewers that defendant had penetrated her in both places, but doctors found no seminal fluid in or trauma to either area. One of the clinical psychologists testified that it was not unusual for young girls to believe that there had been penetration when, in fact, there had been only pressure.
V.O.
Several weeks later, a second victim, 13-year-old V.O., was walking down the street when defendant grabbed her and asked her if she wanted to have sex with him. She told him “no,” but he refused to let her go. Defendant then thrust his hand down her pants, forcing the top button open, and touched her lower abdomen. As V.O. tried to push him away, two women ran up and chased him off.
For his crimes against M.H. and V.O., defendant was convicted of two counts of lewd and lascivious conduct with a child under 14 (Pen. Code, § 288, subd. (a)) and one count of assault with intent to commit a lewd act (Pen. Code, § 220), for which he served eight years in state prison.
J.S.
In 1991, defendant molested two-year-old J.S. Defendant, who was on a supervised work project, went through a hole in a fence into J.S.’s yard and cornered her. Defendant then pulled her pants down and masturbated while touching the child’s buttocks. When her mother entered the yard, J.S. was crying. Defendant pleaded guilty to forcible lewd and lascivious conduct with a child under 14 (Pen. Code, § 288, subd. (b)) and was sentenced to 23 years in state prison.
Expert testimony
Two clinical psychologists called by the prosecution, Thomas MacSpeiden, Ph.D., and Donald Viglione, Ph.D., testified that defendant was currently suffering from pedophilia. Based on a review of the files, each expert opined that all three offenses had been committed with the use of force or fear, and in most of the cases, involved substantial sexual conduct. They also testified that defendant’s mental function was that of a person who is borderline or mildly retarded, with an I.Q. of around 71.
The two psychologists independently evaluated defendant using the Static-99 test, the standard risk evaluation tool for the California Department of Mental Health, and ranked his risk as “high.” A ranking of “high” means that, if released, the person has an estimated 52 percent chance of sexually reoffending within 15 years of release from custody. Both doctors opined that, if released, defendant would not be able to control his sexual urges without treatment.
Defense clinical psychologist Raymond Anderson, Ph.D., testified that defendant did not, in his opinion, show sufficient pedophilic tendencies to qualify as having a mental disorder under the law. However, he conceded that a reasonable psychologist could diagnose defendant as a pedophile based on the state criteria, the DSM-IV. Dr. Anderson testified that he disagreed with the Static-99 testing methodology, arguing that it over-reported risk. He rated defendant’s risk of reoffending at closer to 10 percent.
DISCUSSION
I. Overview of the Sexually Violent Predators Act (the SVP Act)
In 1995, the Legislature enacted the SVP Act (§ 6600 et seq.) to deal with certain “‘criminal offenders who are extremely dangerous as the result of mental impairment, and who are likely to continue committing acts of sexual violence even after they have been punished for such crimes. . . .’ [Citation.] [¶] The requirements for classification as an SVP are set forth in section 6600, subdivision (a) and related provisions. [Citation.] As relevant to the issues presented here, first an SVP must suffer from ‘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 criminal behavior.’ (§ 6600, subd. (a)(1); [citation].) Second, an SVP must have been ‘convicted of a sexually violent offense against two or more victims.’ ([Ibid.]) A ‘“[s]exually violent offense”’ refers to certain enumerated sex crimes, including violation of Penal Code section 288 , subdivision (a), ‘committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.’ ([§] 6600, subd. (b); [citation].) In the alternative, and relevant here, ‘If the victim of an underlying offense that is specified in subdivision (b) of Section 6600 is a child under the age of 14 and the offending act or acts involved substantial sexual conduct, the offense shall constitute a “sexually violent offense” for purposes of Section 6600.’ ([Former] § 6600.1, subd. (a).)” (People v. Otto (2001) 26 Cal.4th 200, 205 (Otto), italics added.)
The requirement of “substantial sexual conduct” (former § 6600.1, subd. (b)) was removed by Proposition 83 in 2006.
II. Instructional Error
A. Sexually Violent Offense Instruction
In accordance with CALJIC No. 4.19, the trial court instructed the jury that: “‘Sexually violent offense’ means the following acts when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, and that result in a conviction or finding of not guilty by reason of insanity, Penal Code Section 288[, subdivision] (a), lewd and lascivious acts upon a child under the age of 14. . . . [¶] . . . For purposes of this proceeding, a conviction for a violation of Penal Code Section 288 [, subdivision] (b), forcible lewd acts upon a child under 14, shall be considered a conviction for a sexually violent offense.” (Italics added.)
Defendant finds fault with the language italicized above, which told the jury that his prior conviction for forcible lewd and lascivious behavior with a child under the age of 14 (Pen. Code, § 288, subd. (b)) was a sexually violent offense as a matter of law. He argues that the jury should have been permitted to determine whether the crime was committed by force or fear or whether there was substantial sexual conduct. Because this instruction directed a verdict on an element of the SVP status, he contends his due process rights were violated.
The appellate court reviews jury instructions de novo to determine “whether the jury was fully and fairly instructed on the applicable law.” (People v. Partlow (1978) 84 Cal.App.3d 540, 558.)
Welfare and Institutions Code section 6600, subdivision (b) defines a “sexually violent offense” as a conviction for one of a set of enumerated crimes, including Penal Code 288, when “committed by force, violence, duress, menace, [or] fear of immediate and unlawful bodily injury on the victim or another person.”
Penal Code section 288, subdivision (b)(1), which is an enumerated offense under Welfare and Institutions Code section 6600, requires that the act be committed “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.”
Penal Code section 288, subdivision (b)(1) only differs from subdivision (a) of the same section in that it requires “use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.”
The trial court determined that the instruction given was a correct statement of the law because defendant’s prior conviction for forcible lewd and lascivious conduct with a child under the age of 14 necessarily included force or fear as a proven element. The court concluded that since all of the elements needed to make the conviction a sexually violent offense under section 6600 were necessarily included in defendant’s Penal Code section 288, subdivision (b) conviction, the issue was “res judicata” in the context of the SVP proceeding.
Defendant counters that, because he pleaded guilty to the offense rather than suffer a jury conviction, he should have been able, in the civil commitment proceeding, to have a jury decide whether force or fear were used. This argument is unavailing.
A plea of guilty is an admission to every element of the crime. (People v. Thomas (1986) 41 Cal.3d 837, 844.) By pleading guilty to the force or fear component of Penal Code section 288, subdivision (b), which is identical to the force or fear requirement for a sexually violent offense, defendant admitted that his actions met that element of the statute.
Defendant cites no authority for the proposition that he may relitigate the issue of force or fear when that element is necessarily included in his qualifying plea. “A failure to cite any relevant authority in support of an assertion results in a waiver of the right to appellate review of that assertion.” (People v. Foote (2001) 91 Cal.App.4th Supp. 7, 12, citing People v. Stanley (1995) 10 Cal.4th 764, 793.)
B. Harmless Error
Even assuming the trial court should have allowed the jury to determine whether the offense against J.S. involved force or fear, the error was harmless. Because civil commitment as an SVP involves a significant deprivation of liberty, instructional error must be proved harmless beyond a reasonable doubt. (People v. Hurtado (2002) 28 Cal.4th 1179, 1194.)
The People had to prove convictions of sexually violent offenses against at least two victims. (§ 6600, subd. (a).) The jury heard evidence of sex crimes against three victims, M.H., V.O., and J.S., all of whom were under the age of 14 years. For all three victims there was significant evidence of force or duress, substantial sexual conduct, or both.
The testimony that defendant held M.H. to the wall and touched her genital areas was uncontested. This action alone qualified the conviction as a sexually violent offense based on substantial sexual conduct. (Former § 6600.1, subd. (b).)
In People v. Pitmon (1985) 170 Cal.App.3d 38, 51, the court found use of duress when an adult man molested an eight-year-old boy, noting that (1) the adult was an authority figure, even though he was a stranger to the child; (2) the attacker’s physical size was great in relation to that of the child; and (3) the attack took place in a fairly isolated area.
Each of these factors was present in defendant’s molestations of V.O. and J.S. He was larger and stronger than either one of them. Both incidents occurred in places where the girl was isolated. With respect to the assault on two-year-old J.S., the fact that she was crying when rescued showed that she was frightened. As in Pitmon, these facts show “duress,” which was sufficient to qualify the crime as a sexually violent offense.
Moreover, the jury only needed to find sexually violent offenses against two victims. As stated above, they were fully justified in finding the qualifying offenses in the incidents involving M.H. and V.O. Thus, regardless of whether the incident involving J.S. was a sexually violent offense, there was abundant evidence supporting two other qualifying offenses.
Based on the foregoing, we conclude that any instructional error was harmless beyond a reasonable doubt.
III. Use of Police Reports
A. Admissibility
Defendant claims the trial court erred in denying his motion in limine to prohibit psychologists from using police and crime reports to support their testimony regarding the qualifying offenses. He maintains that the reports were unreliable and inadmissible because they contained hearsay. We disagree.
Sandwiched into this argument, defendant challenges a jury instruction that permitted the jurors to rely on the testimony of the psychologists in determining whether the predicate offenses were committed. However, because the instructional argument was not listed under a separate heading it is forfeited. (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4; Cal. Rules of Court, rule 8.204(a)(1)(B).)
“[S]ection 6600[, subdivision] (a)(3) expressly permits the use of probation and sentencing reports to show ‘[t]he details underlying the commission of an offense.’ This provision implicitly authorizes the admission of hearsay statements in those reports.” (Otto, supra, 26 Cal.4th at p. 207.) In Otto, as in this case, the defendant moved to exclude the prosecution experts’ use of police reports and other reports containing victim statements. (Id. at p. 204.) The trial court denied the motion and the California Supreme Court affirmed. The Supreme Court specifically held that the use of police reports, and other reports containing multiple levels of hearsay, to prove the details of the underlying offenses was permissible. (Id. at p. 203.) The court explained that “[t]he Legislature is undoubtedly familiar with the typical contents of such reports, which include, ‘[t]he facts and circumstances of the crime’ and ‘the victim’s statement or a summary thereof, if available.’” (Id. at p. 207.)
Otto is binding upon us as an intermediate appellate court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Due Process
In a backup argument, defendant asserts that even if the experts’ use of police reports was permissible under the statute, their admission violated his right to due process and to confront witnesses against him, because he had no opportunity to cross-examine or dispute the victims’ statements appearing in the police reports.
“There is no right to confrontation under the state [or] federal confrontation clause in civil proceedings, but such a right does exist under the due process clause.” (Otto, supra, 26 Cal.4th at p. 214.) Because civil commitment can deprive a person of their liberty, heightened scrutiny of the process accorded the defendant is required. (Id. at pp. 209-210.) We find that the process requirement was satisfied here.
Otto claimed, as defendant does, that the victims’ statements in the police reports were unreliable. The Otto court found that, while the hearsay was admissible under the statute, additional indicia of reliability must be present to satisfy due process. (Otto, supra, 26 Cal.4th at p. 210.) Furthermore, “if these facts are unreliable, a significant portion of the foundation of the resulting SVP finding is suspect.” (Id. at pp. 210-211.)
One of the primary indicia of reliability the Otto court found was that the defendant was convicted of the crimes to which the victims’ statements related. (Otto, supra, 26 Cal.4th at p. 211.) That is true here as well. Moreover, as was the case in Otto, defendant points to no evidence that undermined the relevant facts as recited in the police reports.
We also note that defendant had the opportunity to call witnesses at the commitment hearing, cross-examine the People’s witnesses, and testify in his own defense. (Otto, supra, 26 Cal.4th at p. 214.) In fact, defendant called his own psychologist and used excerpts of hearing transcripts, which he argued were more reliable than the police reports, to undermine the testimony of the People’s experts.
Based on our review of the entire record, we conclude that allowing the jury to hear portions of the police reports did not result in a denial of due process.
IV. Refusal of Defendant’s Proposed “Pinpoint Instruction”
The jurors were instructed (CALJIC No. 4.19), in relevant part, that “[i]n order to find that [defendant] is a sexually violent predator, the jury must agree unanimously and beyond a reasonable doubt that each of the following elements is true as to [defendant]: [¶] . . . [¶] [Prior qualifying offenses, determinate sentences for those offenses, a current diagnosed mental disorder, and that this] same diagnosed mental disorder makes [defendant] a danger to the health and safety of others in that it is likely [defendant] will engage in sexually violent predatory criminal behavior. [¶] . . . [¶] The word ‘likely’ as used in this instruction means the person presents a substantial danger, that is a serious and well-founded risk that he will commit sexually violent predatory crimes if free in the community. However, it does not mean that it must be more probable than not that there will be an instance of reoffending. ‘Likely’ as used in this instruction does not mean a percentage or other numerical number.” (Italics added.)
Defendant argues that the trial court erred in refusing to add his proposed addition to this instruction, which read: “‘[L]ikely’ denotes more than the mere possibility that the person will reoffend.” He claims that the proposed language was an accurate statement of the law as stated in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, and therefore should have been given because it “pinpointed” his defense.
“A criminal defendant has the right to instructions that pinpoint the theory of the defense case.” (People v. Gurule (2002) 28 Cal.4th 557, 660.) However, there is no requirement that the court engage in redundancy to articulate a principle of law in the precise terms the defendant desires. (Ibid.)
The jury was told that, in order to find that defendant was an SVP, there had to be a “substantial danger” and a “serious and well-founded risk,” that he would reoffend if released. The instruction, as given, closely tracked the language in People v. Roberge (2003) 29 Cal.4th 979, 988, wherein the court stated that “a person is ‘likely [to] engage in sexually violent criminal behavior’ if at trial the person is found to present a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody.”
No reasonable juror who heard the trial court’s instruction would have concluded that a “mere possibility” of reoffending would suffice to qualify defendant as an SVP. The instruction was accurate as given and defendant’s proposed addition would not have materially enhanced its accuracy. Therefore, the trial court properly refused to give it.
V. Psychologist Opinions About “Force or Fear”
Defendant argues that it was error for the trial court to allow the prosecutor’s psychologists to testify that he used “force or fear” in committing the predicate SVP offenses. (See Evid. Code, § 801.) He contends that this was an impermissible expert opinion under Evidence Code section 801 because the jury was equally as capable of making this assessment as the psychologists were. The experts’ opinions on force or fear were, he argues, not “sufficiently beyond common experience [that the testimony] would assist the trier of fact.” (Evid. Code, § 801, subd. (a).)
When asked whether the offenses against M.H. and V.O. were qualifying offenses, both prosecution psychologists answered in the affirmative. When questioned further as to why they believed this, both experts testified that they believed, based upon the fact that defendant physically restrained both of the girls and would not let them leave when they asked to, indicated that the incidents included force, duress, menace, or fear, as required by the statute.
Whether defendant is a sexually violent predator is a proper subject for expert opinion. (See People v. Miller (1994) 25 Cal.App.4th 913, 917 [whether inmate is a mentally disordered offender is proper subject for expert opinion].) In order to arrive at this opinion, each expert is required to assess whether each of the required criteria for the predicate offenses was met. (Ibid.) Determining whether the offenses against M.H. and V.O. were committed with “force or fear” was necessary, because a conviction of Penal Code section 288, subdivision (a) does not, by itself, contain this element. Because either force or fear or substantial sexual conduct is required for the predicate offenses, a determination of whether those factors were present was necessary in order for each expert to arrive at his opinion.
“An expert may generally base his opinion on any ‘matter’ known to him, including hearsay not otherwise admissible, which may ‘reasonably . . . be relied upon’ for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them.” (People v. Montiel (1993) 5 Cal.4th 877, 918.)
Thus, expert testimony that defendant’s molestations were accompanied by the use of force or fear was properly admitted as the basis for the experts’ ultimate opinions that defendant was an SVP. Defendant’s assertion of evidentiary error is without merit.
DISPOSITION
The order of commitment is affirmed.
We concur: BLEASE , Acting P. J., NICHOLSON , J.
“Substantial sexual conduct” was defined as “penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.” (Former § 6600.1, subd. (b).)
Having deleted former subdivision (b), section 6600.1 now requires only that the underlying offense be against a child under the age of 14.