Opinion
C050933
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. BRUCE L. CLOTFELTER, Defendant and Appellant.
NOT TO BE PUBLISHED
After a jury found that defendant Bruce L. Clotfelter is a sexually violent predator (SVP), the court recommitted him to the custody of the state Department of Mental Health for an additional two years.
Defendant appeals and raises the following six contentions: (1) the court prejudicially erred in excluding testimony of two defense witnesses; (2) the court erred in admitting evidence that defendant previously had been committed as an SVP; (3) the court erred by admitting evidence of Atascadero State Hospitals conditional release program; (4) the court erred in refusing defendants pinpoint jury instruction; (5) the court erred in allowing a clinical psychologist at Atascadero to testify as an expert witness regarding castration; and (6) the courts cumulative errors require reversal. Disagreeing with these contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We begin with a brief overview of the facts relating to defendant and expert witness testimony supporting his commitment. We will provide further factual and procedural details in the Discussion section as necessary.
As is relevant here, defendant was "caught" in 1989 molesting three boys and admitted molesting at least two others. He was sentenced to 10 years in prison. Toward the end of his prison term, defendant participated in two years of sex offender treatment at Atascadero.
When defendant was released from confinement in 1994, he went to live with his parents and, without their knowledge, began posing as a naval officer, becoming the fictitious character, "Commander Talon Fox." While in character, he visited 27 schools and talked to children about his alleged experience as a "navy flier." He was good at lying because in high school he had performed in school plays.
Because of his impersonation of a naval officer and interaction with children at the schools, defendant was found in violation of his parole and incarcerated in January 1995. He was sent to Atascadero in July 1997 for three or four months and again from 1998 to 2001 for more sex offender treatment, progressing to phase two of the treatment program.
While at Atascadero, defendant spoke to the hospital psychiatrist about statistics on the effectiveness of castration on reducing sexual recidivism, which, according to defendant, showed there was about a 1 to 3 percent rate of recidivism. Defendant decided to be physically castrated but was "le[ft] . . . cosmetically to where no one would really be able to tell." According to defendant, the results of castration were "[a]bsolutely unbelievable." The 20-plus years of "struggl[ing] with deviant fantasies and thoughts about kids" were over. "There are no urges. There are no desires. Theres no intensity whatsoever."
In response to this evidence, the People called Atascadero clinical psychologist Jesus Padilla to testify regarding his opinion that castration does not necessarily reduce sexual functioning.
After castration, defendant asked the doctors at Atascadero if he could be placed in phase three of sex offender treatment. When they said "no," defendant decided to leave therapy because he "c[ould not] stand the idea of going back into that particular class that talks about all the worst things that people have ever done." Two years later, defendant reentered therapy and at the time of trial was in phase three and doing "[g]ood."
If released from Atascadero, defendant had three alternative plans. Plan A (his first choice) was to live and work with his parents in Citrus Heights where he would "assist [his] mother in moving new cars from dealership to dealership and work with [his] dad who . . . is starting a new business of building barns." Plan B was to live and work with Bob Sterling — a released SVP whom defendant met at Atascadero who now was living in Oakland and working as an electrical contractor — and be treated in Napa by Dr. Charlene Steen. Plan C was live and work with Kimball Vandershuit — another released SVP whom defendant had met at Atascadero who was now living in Bishop and who owned his own business buying and selling antiques and rare books — and be treated by a "nearby" therapist.
Psychologist Dale Arnold testified as one of the Peoples expert witnesses. According to Dr. Arnold, defendant currently is a pedophile who is sexually attracted to boys. Although castration would have reduced defendants "sexual intensity," defendant reported to another doctor in 2004 that "he still has thoughts and urges of sexual activity with children."
In addition to defendants pedophilia diagnosis, Dr. Arnold believed defendant had narcissistic and antisocial personality disorders that gave him a sense of entitlement and a belief that not all "the rules" applied to him. Dr. Arnold thought that defendant was likely to reoffend without appropriate treatment in custody. As Dr. Arnold explained, defendant "has been supporting his self-esteem for years and years through the admiration of the boys he interacted with. And I dont think that has gone away, nor will it go away any time soon." In other words, "its not so much the sexual contact for him, but its the excitement of the chase, of seeing if he can put himself in a situation where he can touch the boys."
DISCUSSION
I
The Error In Excluding The Testimony Of Two Defense Witnesses Did Not Prejudice Defendant
Defendant contends the trial court abused its discretion and denied him the right to present a defense when it excluded the testimony of two witnesses — Bob Sterling and Kimball Vandershuit — who defendant claims "would have provided information pertaining to [his] employment, living arrangements and the availability of treatment if he had been released." We agree with defendant that the court abused its discretion in excluding the evidence because it was relevant, but disagree that the error violated his right to present a defense or that it was prejudicial.
We begin with the procedural and factual context in which this issue arose in the trial court. After the People rested, the court told defense counsel it would "exclude any witnesses in the case . . . that relate solely to plans upon release based upon [the defenses] proposed [special] instruction [No. 1]." The court stated it would admonish the jury "not to take into account the consequences of [its] findings during deliberations" and that with such an admonition, "any evidence relating to support persons or future plans would become irrelevant." The court then excluded the testimony of Bob Sterling and Kimball Vandershuit. The court erred in excluding their testimony because it was relevant.
Special instruction No. 1 would have told the jury that "you must not consider, in any fashion, what will or will not happen to [defendant] as a result of finding the petition to be either true or untrue. It would be improper for you as jurors [to] take into account the consequences of your findings during your deliberations." The court later refused special instruction No. 1 and instructed instead with a modified version of CALJIC No. 17.42 that told the jury "not [to] discuss or consider the consequences of your findings as a penalty or punishment. That subject must not in any way affect your verdict." We address the courts rejection of special instruction No. 1 in part IV of the Discussion.
Relevant evidence includes evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) A defendants "amenability to voluntary treatment is a factor in determining whether commitment is necessary" because it relates to the likelihood defendant would reoffend if released. (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 928.) The evidence of defendants plans with Sterling and Vandershuit had some tendency in reason to prove defendant was not likely to reoffend because it would show that he had a support network in two communities where he was considering living that might prevent him from reoffending. To the extent Sterling and Vandershuit could have spoken about their plans to have defendant live and work with them, their testimony was relevant. The court therefore abused its discretion in excluding their testimony as irrelevant. (See People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [decision to admit or exclude evidence is reviewed for abuse of discretion].)
Defendant did not make an offer of proof as to Sterlings or Vandershuits proposed testimony. While normally this would be fatal to appellate review, where, as here, "the trial court has clearly intimated it will receive no evidence of a particular class or upon a particular issue, an offer of proof is not a prerequisite to raising the question on appeal." (Beneficial etc. Ins. Co. v. Kurt Hitke & Co. (1956) 46 Cal.2d 517, 522.) The People do not contend otherwise.
We note that in addition to being incorrect, the courts ruling was also inconsistent because the court allowed defendants father and sister to testify about their plans for defendant if he were released.
While an abuse of discretion, the exclusion of this testimony did not deprive defendant of his right to present a defense as he claims on appeal. Simply because the exclusion of the testimony "may have adversely affected the defense, . . . it did not deprive [defendant] of the right to present one." (People v. Humphrey (1996) 13 Cal.4th 1073, 1089.) We therefore turn to whether the error in excluding the testimony was prejudicial under state law.
"When the reviewing court applying state law finds an erroneous exclusion of defense evidence, the usual standard of review for state law error applies: the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant." (People v. Humphrey, supra, 13 Cal.4th at p. 1089, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Probability under Watson "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 918.)
Here, there was no reasonable probability that the exclusion of Sterlings and Vandershuits testimony affected the verdict adversely to defendant for at least two reasons.
One, defendants first choice if he was released was not to live with either Sterling or Vandershuit but, rather, to live with his own family. To this end, the jury had already heard detailed testimony about defendants plan A, including defendants sisters and defendants fathers testimony. They had rejected it.
Two, the jury also heard detailed testimony about defendants two fallback plans. Defendants plan B if released was to live and work in Oakland with Sterling who was an electrical contractor and to be treated in Napa by Dr. Charlene Steen. Defendants plan C was live and work in Bishop with Vandershuit who owned his own business buying and selling antiques and rare books. The problem with the testimony about these plans was not, as defendant contends on appeal, that he lacked "credibility" and that his plans were not "genuine" because he "was painted throughout the trial as a liar," but rather that defendant had not thought through the plans and defendant had not researched outpatient treatment if he was released and moved in with either Sterling or Vandershuit. In this regard, as to plan B, defendant admitted that Dr. Steen was retired from practice and was not taking patients and he had no "specific" plan "to see a particular therapist in Oakland." As to plan C, defendant conceded he had not "lined up" a therapist in Bishop and simply believed "there are several [who] are on the panel . . . that are nearby." Given this evidence, even if Sterling and Vandershuit could have testified they would have provided a support system for defendant and there were treatment plans available in their areas, there was no reasonable chance their testimony would have affected the outcome of defendants case.
For these reasons, the error in excluding the testimony did not prejudice defendant.
II
The Court Did Not Err In Admitting Evidence Defendant Had Previously Been Committed As An SVP
Defendant contends the trial court erred in admitting evidence he had previously been committed as an SVP. He relies primarily on a case which held that in a recommitment proceeding, the People are required "to prove beyond a reasonable doubt that the defendant is an SVP, not that he is still an SVP." (People v. Munoz (2005) 129 Cal.App.4th 421, 430 (Munoz).) We find Munoz distinguishable and reject defendants argument.
In Munoz, the appellate court reversed the order recommitting the defendant as an SVP because "[t]he 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" and it was "reasonably probable that but for these errors a finding more favorable to appellant might have been returned." (Munoz, supra, 129 Cal.App.4th at p. 432.) Specifically, in Munoz the prosecutor asked the states expert if she had been assigned to evaluate defendants "progress" and to determine whether he "continues" to meet the criteria under the Sexually Violent Predator Act (SVPA), and the expert answered "`Yes." (Munoz, at p. 427.) The prosecutor also questioned the defendant at length about his concessions in prior SVP proceedings that he was a pedophile, that he was likely to reoffend, and that he had waived a trial on a prior petition. (Id. at pp. 427-428.) The court allowed into evidence a minute order that the defendant personally waived his right to a trial on the prior SVP proceeding and that the court committed the defendant to the state hospital as an SVP. (Id. at p. 428.) Finally, in closing, the prosecutor repeatedly reminded the jury of this evidence and argued that there had been "no change in [defendant] during his two years at the state hospital." (Ibid.)
This case bears little resemblance to Munoz. Unlike in Munoz, the court here did not admit factual evidence from the prior commitment and the prosecutors focus in questioning the witnesses did not suggest the issue was whether defendant continues to be an SVP. When questioning Dr. Arnold, the prosecutor repeatedly asked him about defendants "current" diagnosis and focused on whether the doctor believed defendant was "currently" an SVP. When questioning defendant, the prosecutor did not ask about the prior SVP commitment proceedings that occurred in the trial court. In closing and rebuttal arguments, the People focused on the jurys need to determine whether defendant has a current diagnosed mental disorder that makes him presently dangerous.
While the trial court did take judicial notice that defendant "was committed after a jury finding for commitment on April 19, 2001," even Munoz states this is not improper and that it may be impossible for the jury not to learn that the defendant has previously been committed as an SVP because experts may need to discuss the defendants treatment and behavior while in the state hospital. (Munoz, supra, 129 Cal.App.4th at pp. 430, 432.) Such was the case here.
Finally, the trial court instructed the jury that an SVP finding required "relevant evidence of a currently diagnosed mental disorder that makes [defendant] 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 secured facility."
Based on this record, the court did not err, constitutionally or otherwise, in admitting evidence defendant previously had been committed as an SVP.
III
The Court Did Not Abuse Its Discretion In Admitting Evidence Of The Conditional Release Program
Defendant contends the court erred in admitting evidence of the conditional release program, which is the fifth and final phase of sex offender treatment at Atascadero. This evidence included defendants testimony that phase five was not a "viable option" for him because the four or five offenders who were in phase five were "stuck" in the program, could not find housing, and could not "get released." On appeal, defendant argues the evidence was irrelevant, and even if relevant, it should have been excluded because its probative value was substantially outweighed by its prejudicial effect. We disagree that the evidence was irrelevant or that it should have been excluded.
As the trial court correctly determined, evidence regarding the conditional release program, i.e., evidence regarding defendants attitude toward the program, was relevant to show whether defendant was amenable to voluntary treatment. The relevance of this evidence was explained by our Supreme Court as follows: "[I]t would be reasonable to consider the persons refusal to cooperate in any phase of treatment provided by the Department, particularly a period of supervised outpatient treatment in the community, as a sign that the person is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community." (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 929, italics added.) Consistent with Ghilotti, the jury here was instructed that it could consider defendants refusal to cooperate in any phase of treatment provided by the state Department of Mental Health as a sign the person is not prepared to control untreated dangerousness by voluntary means if released unconditionally to the community. Given the language in Ghilotti, we disagree with defendant that the evidence was irrelevant.
Despite this authority from our Supreme Court, defendant contends this case is like People v. Rains (1999) 75 Cal.App.4th 1165, where the appellate court held that the consequences of a true finding on an allegation that the defendant is an SVP was not relevant to whether the defendant had a diagnosed mental disorder and whether the disorder made him dangerous to the health and safety of others. (Id. at pp. 1169-1170.) Rains is inapposite because, here, the evidence was relevant for the purpose of defendants amenability to voluntary treatment.
Despite the relevance of this evidence, defendant contends it should have been excluded as substantially more prejudicial than probative under Evidence Code section 352. Again, we disagree.
Evidence Code section 352 gives the trial court discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." These factors were not present here. The evidence was not time-consuming, as it took up only about 24 of 1,161 pages of trial transcript. Any danger of prejudice, confusing the issues, or misleading the jury based on defendants belief that "disclosure of this alternate release procedure suggest[ed] to the jury that a reasonable compromise may exist to allow both for [defendants] release and post-release supervision" was minimized by the courts instruction that the jury could not consider the consequences of its findings and that the consequences must not affect the verdict in any way.
Defendant takes issue with the courts refusal to allow him to introduce expert witness testimony "to substantiate the facts and circumstances being relied upon by him to support his opinion of the [conditional release] program." While the court did exclude such testimony, defendant was permitted to elicit similar testimony from the Peoples expert, Dr. Arnold, that confirmed defendants statements that there were approximately five offenders in phase five and that the offenders who had been recommended to phase five had yet to be placed into the community.
In sum, given these factors and the relevance of the evidence, the court did not abuse its discretion in admitting the evidence. (See People v. Waidla (2000) 22 Cal.4th 690, 724 [trial courts evidentiary rulings are reviewed for abuse of discretion].)
IV
The Court Properly Refused Defendants Pinpoint Instruction
Defendant contends the court erred in refusing his pinpoint instruction (special instruction No. 1), which would have told the jury that "you must not consider, in any fashion, what will or will not happen to [defendant] as a result of finding the petition to be either true or untrue. It would be improper for you as jurors [to] take into account the consequences of your findings during your deliberations." The court instead instructed with a modified version of CALJIC No. 17.42 that told the jury "not [to] discuss or consider the consequences of your findings as a penalty or punishment. That subject must not in any way affect your verdict." We find the court properly refused defendants pinpoint instruction because modified CALJIC No. 17.42 adequately addressed defendants concerns.
A defendant is not entitled to instructions that merely duplicate a point adequately covered by other instructions. (People v. Catlin (2001) 26 Cal.4th 81, 152.) "The practice of repeating instructions in a different way and thus loading the case with innumerable forms of instructions upon a particular subject is not to be commended." (People v. Ruiz (1928) 88 Cal.App. 502, 505.) Here, modified CALJIC No. 17.42 was sufficient because it told the jury not to consider the consequences of its findings, which was the crux of defendants pinpoint instruction.
Defendant argues modified CALJIC No. 17.42 did not "fully instruct on the issues [he] wished to address" because reference was made only to "`penalty or punishment" and he was concerned with the jurys consideration of the "consequences [that] might arise as a result of [its] finding." In support of his argument, he relies on People v. Rains, supra, 75 Cal.App.4th at page 1165 and People v. Allen (1973) 29 Cal.App.3d 932. Both cases are inapposite.
In those cases, the appellate courts concern was that the jury would resolve the issue of whether a defendant met the criteria of an SVP or a mentally disordered sex offender (MDSO) not on the merits but on whether he would receive treatment. (People v. Rains, supra, 75 Cal.App.4th at p. 1171; People v. Allen, supra, 29 Cal.App.3d at p. 938.) The instruction given here, which told the jury not to consider the consequences of its findings during its deliberations, was adequate to address this concern. The court therefore did not err in failing to give defendants pinpoint instruction.
V
The Trial Court Did Not Abuse Its Discretion In Allowing A Clinical Psychologist From Atascadero To Testify As An Expert
Defendant contends the trial court erred in allowing Dr. Jesus Padilla, a clinical psychologist from Atascadero, to testify as a rebuttal expert witness for the People. Dr. Padilla testified that he had reviewed approximately 120 articles on people who had been castrated, including sex offenders, wounded veterans, cancer patients, and male-to-female transsexuals. Based on his review of the literature, Dr. Padillas opinion was that castration does not necessarily reduce the likelihood of sexual functioning.
Defendant argues that Dr. Padilla should not have been allowed to testify for three reasons: (1) Dr. Padilla did not have "sufficient qualifications" to render an opinion about the relationship between castration and sexual functioning as it related to sex offenders, transsexuals, cancer patients, and wounded veterans; (2) the testimony of Dr. Padilla based on his review of articles on these matters "did nothing more than allow the introduction of inadmissible hearsay"; and (3) the evidence to which Dr. Padilla testified should have been excluded under Evidence Code section 352. We disagree with defendant because the court did not abuse its discretion in allowing Dr. Padilla to testify as an expert witness on these topics.
Dr. Padillas background qualified him as an expert witness in this case. Dr. Padilla received a Ph.D. in clinical psychology from the University of Oregon in 1994. He has been a clinical psychologist at Atascadero since 2000 where he conducts forensic evaluations of SVPs for the courts and cochairs the "SVP Program Evaluation and Research Committee." He has been on the faculty of Lewis and Clark College, Pacific University, and the University of Oregon, where he taught "research methodology." He had worked as a clinical psychologist in Oregon for approximately six years — both as a staff psychologist at Oregon State Hospital and in his own private practice. And he has written a variety of scientific and psychological articles, including one on the "[s]exual arousal patterns and plethysmograph findings pre-and post drug therapy." From this evidence, the trial court reasonably could have concluded that Dr. Padilla had sufficient expertise to evaluate the methodology used in the studies he was reviewing in this case, summarize their contents, and offer his expert opinion on their validity. The court therefore did not abuse its discretion in allowing Dr. Padilla to testify as an expert witness. (See People v. Kelly (1976) 17 Cal.3d 24, 39 ["The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown"].)
Based on this conclusion, defendants related argument that allowing Dr. Padilla to testify "based on his review of articles dealing on the matter did nothing more than allow the introduction of inadmissible hearsay" also fails because it is based on the erroneous assumption that Dr. Padilla was not qualified as an expert and instead was testifying as a lay witness.
We turn then to defendants final argument on the issue of Dr. Padillas testimony — that the court abused its discretion under Evidence Code section 352 in admitting his testimony. Defendant contends: (1) Dr. Padillas testimony as to the "sexual functioning of castrates other than sexual predators or offenders" had "little if any relevance" because "there was utterly no evidence provided linking alleged sexual functioning in war wounded soldiers, cancer patients and transsexuals to sexual recidivism"; and (2) Dr. Padillas testimony "that transsexuals and other non-sex offenders may have increased sexual functioning was likely to mislead the jury or confuse the jury regarding the effect of castration on recidivism by castrated sex offenders." We disagree with both of these contentions.
As to defendants first claim, as the People concede, "there was no evidence that linked sexual functioning in war-wounded soldiers, cancer patients, and transsexuals to sexual recidivism." This fact, however, did not render the evidence only "minimally relevant" as defendant contends, because Dr. Padilla testified that the studies on sexual functioning after castration rely on self-reporting, and sex offenders tend to be biased toward reporting a lack of sexual functioning postcastration. Therefore, studies on castrated individuals who do not have the same bias as sex offenders, i.e., cancer patients, wounded veterans, and transsexuals, tend to provide more accurate data about sexual functioning postcastration.
We are left with defendants claim that Dr. Padillas testimony "that transsexuals and other non-sex offenders may have increased sexual functioning was likely to mislead the jury or confuse the jury regarding the effect of castration on recidivism by castrated sex offenders." As the People observe, defendant "appears to be suggesting that the jury may have understood Dr. Padillas testimony to mean that castration actually increases a sex offenders likelihood for recidivism." However, as the People correctly point out, "[t]here is simply no reasonable possibility the jury understood Dr. Padillas testimony in such a manner." Dr. Padilla testified that cancer patients had a "wide variability" in their sexual functioning postcastration "depending on the type of cancer they had and the type of operation that they received." The findings with wounded veterans were "pretty much the same." The findings with male-to-female transsexuals were also "the same thing," although some studies indicated about 70 to 100 percent of them continued to have "clitoral orgasms" that "improved even more with the use of a procedure called clitoroplasty." Dr. Padilla concluded that in his review of the literature, castration does not necessarily reduce the likelihood of sexual functioning and "[i]n fact it looks like in the other direction."
Dr. Padilla explained that a clitoroplasty is "where the nerves that innervate the penis . . . are conserved in the operation in the removal of the penis. When those nerves are conserved and placed where the now new clitoris is, they have a very good response to that."
RAYE, J.
I concur except as to part IV of the Discussion in which I concur in the result.
In our view, the jury would have understood that Dr. Padilla was referring to the fact that at least some transsexuals had experienced increased sexual functioning postcastration due to clitoroplasty but not that the results would be the same or similar for castrated sex offenders, wounded veterans, or cancer patients who had not had this procedure. Our conclusion is supported by Dr. Padillas additional testimony that he did not know whether there was a relationship between castration and recidivism "because the studies are so poor."
On this record, the court did not abuse its discretion in admitting Dr. Padillas testimony.
VI
There Was No Cumulative Prejudice
Defendant contends the cumulative effect of the errors requires reversal of the judgment. Having found only one harmless error, there are no errors to accumulate and defendants contention fails.
DISPOSITION
The judgment is affirmed.
I concur:
SCOTLAND, P.J.