Opinion
D039142.
7-1-2003
THE PEOPLE, Plaintiff and Respondent, v. ALVARO A. HERNANDEZ, Defendant and Appellant.
A jury convicted Alvaro A. Hernandez of six counts of lewd and lascivious conduct with an eight-year-old victim and a seven-year-old victim over a two-year period in San Marcos. (Pen. Code, § 288, subd. (a).) The court found he had a prior serious felony conviction, a New Mexico sexual assault. (Former §§ 667, subd. (a), 1192.7, subd. (c)(23)). The court sentenced Hernandez to prison for 21 years: the six-year middle term on one count of lewd conduct and consecutive two-year terms on the five other counts, enhanced five years for the prior serious felony conviction. On September 10, 1999, Hernandez was committed to Atascadero State Hospital as a sexually violent predator (SVP). On June 7, 2001, the People petitioned for recommitment of Hernandez as a SVP.
During trial on the recommitment petition, the jury heard testimony of two psychologists at Atascadero State Hospital who stated that Hernandez has a mental disability and is a danger to reoffend. Hernandez testified he did not commit the sex crime in New Mexico and did not commit the underlying sexual offenses in San Marcos. A psychologist Hernandez presented testified that Hernandez did not meet the criteria of having a mental condition making him a danger to reoffend, and there is no reliable standard for determining whether a charged predator will reoffend. The court included CAJIC No. 4.19 in instructions to the jury. On November 14, 2001, a jury found Hernandez was a SVP. (Welf. & Inst. Code, §§ 6600-6604.) The court committed him to Atascadero State Hospital for an additional two years. Hernandez appeals, contending the trial court erred in including CALJIC No. 4.19 in instructions to the jury. We affirm the order.
FACTS
Hernandez was convicted in 1967 in New Mexico of sexual assault after the eight-year-old victim told police that she went to a store to buy gum, Hernandez gave her several sticks of gum, picked her up, took her to the back of a bar and forcibly raped her. He then took her down an alley behind a church and raped her again. She escaped and ran, but he caught her. He took her to a car and raped her a third time. He then took her behind a house and raped her a fourth time.
Between 1985 and 1987, Hernandez and his wife babysat for Denise L. Hernandez befriended her two young daughters. At various times and places, he rubbed his penis against their buttocks and fondled one childs genital area and buttocks on numerous occasions.
DISCUSSION
Former CALJIC No. 4.19, as read to the jury, provided:
"A petition for commitment has been filed with the court alleging that the respondent Alvaro Hernandez is a sexually violent predator.
"The term `sexually violent predator means a person who, (1) has been convicted of a sexually violent offense against two or more victims for which he . . . received a determinate sentence, and (2) has a 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 criminal behavior.
"In order to find a person to be a sexually violent predator, the following elements must be proved:
"1. The person has been convicted of a sexually violent offense against two or more victims for which he received a determinate sentence, and
"2. The person has a currently diagnosed mental disorder rendering him dangerous beyond his control.
"The inability to control his dangerousness must be to such an extent that he is likely to engage in sexually violent criminal behavior making him a danger to the health and safety of others. "`Sexually violent offense includes a violation of . . . section 288[, subdivision] (a) when the act was committed by force, violence, duress, menace, or fear of immediate, and unlawful bodily injury on the victim or another person, and the act resulted in a conviction.
"A sexually violent crime [also] includes an offense described above when the victim is a child under the age of fourteen years and the offending acts involve substantial sexual conduct. "`Substantial sexual conduct means 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 offender. "`Diagnosed mental disorder includes a congenital or acquired condition affecting the volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of other. "`Danger to the health and safety of others does not require proof of a recent overt act while the offender is in custody. "`Recent overt act means any criminal act that manifests a likelihood that the actor may engage in sexually violent predatory criminal behavior.
"A determinate sentence is a sentence which by statute is for a fixed term of years, although the sentencing judge may have had discretion as to which term to impose.
"In determining whether the respondent is a sexually violent predator, you should consider all of the evidence introduced in the case, including the prior conviction of one or more crimes previously listed for you. However, you may not find respondent 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 he will engage in sexually violent criminal behavior.
"If, after a consideration of all the evidence, you have a reasonable doubt that the respondent is a sexually violent predator, you must find that the allegation in the petition is untrue."
Relying on Kansas v. Crane (2002) 534 U.S. 407, 151 L. Ed. 2d 856, 122 S. Ct. 867 (Crane), Hernandez argues the version of CALJIC No. 4.19 given here denied him due process because it used the term "likely" rather than instructing the jury that the People must prove he will have "serious difficulty" in controlling his sexually violent tendencies. In Crane, the United States Supreme Court rejected a Kansas Supreme Courts conclusion that to find a defendant a sexual predator, the People must prove the defendant is completely unable to control his sexual behavior. The United States Supreme Court said that to meet substantive due process, the People must prove the defendant has serious difficulty in controlling his behavior. (Id. at p. 413.) In People v. Roberge (2003) 29 Cal.4th 979 (Roberge), the Supreme Court held the requirement that the People prove a defendant is "likely" to reoffend does not mean it is more probable than not that the defendant will reoffend, but "is met when `the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community." (Id. at p. 982, quoting People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.)
Like Roberge, the trial court here did not explain to the jury the technical meaning of the ambiguous term "likely." (Roberge, supra, 29 Cal.4th at p. 988.) In Roberge, the Supreme Court found this to be harmless error because, "on the facts of this case, defendant cannot complain that the jury found him to be a sexually violent predator while concluding that his risk of reoffense if released from custody was less than `substantial or `serious and well-founded since even his own witness testified his chances of reoffending were `better than 50 percent probability." (Id. at p. 989.) In Roberge, the defendant was convicted of forcible rape in 1981 ( § 261, subd. (a)(2)) and committed another rape in 1985 while on parole for the first rape. (Roberge, supra, 29 Cal.4th at p. 982.) Here, Hernandez was convicted of sexual assault as part of a plea bargain in which charges of lewd and lascivious conduct with a child under 16 years of age, sexual intercourse with a child under 13 years of age, and a third count that was for a capital offense were dismissed. Between 1985 and 1987, Hernandez befriended two young sisters. He rubbed his penis against their backsides on numerous occasions and fondled one childs genital area and buttocks on numerous occasions. Dr. Starr from Atascadero testified that Hernandez denied all these criminal acts. In her opinion, he was a confirmed pedophile. She evaluated Hernandez on a STAIC-99 scale as a six, the highest likelihood of a repeat offender with a 52 percent likelihood of repeating within 15 years if released. The testimony of another staff psychologist at Atascadero State Hospital paralleled that of Dr. Starr. Dr. Donaldson, called by Hernandez, was critical of the STATIC-99 system. He estimated Hernandezs risk of reoffending was around 10 percent.
The jurys finding that reoffending was "likely" clearly indicates it accepted the view of the Peoples experts and rejected that of Dr. Donaldson. Given that finding and this record, there is no reasonable doubt that the jury would have reached the same result had the trial court instructed the jury that to find Hernandez a sexually violent predator it must find that if released from custody his chance of again being a sexually violent predator was "substantial" or "serious and well-founded." The error is harmless. (See Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.)
II
Hernandez also argues the instruction does not track the statute because it permits the jury to find in the abstract that the defendant is likely to commit a sexual offense, rather than find he is a sexual predator.
In People v. Hurtado (2002) 28 Cal.4th 1179, 1186 (Hurtado), the Supreme Court held that to convict a defendant of being a sexually violent predator, the jury must find he is likely to commit "sexually violent predatory criminal acts." It found former CALJIC No. 4.19 as given here does not properly instruct the jury since it authorizes it to find a defendant is a sexually violent predator if it finds he is likely to engage in sexually violent criminal behavior. (Hurtado, supra, 28 Cal.4th at pp. 1185-1186.) However, applying the Chapman standard (Chapman, supra, 386 U.S. 18), the Supreme Court found the error harmless. In Hurtado, the defendant was adjudged in 1979 to be a mentally disordered sex offender. He was paroled in 1985 and convicted of molesting children while on parole. He was paroled in 1987 and the same year convicted of sodomy and committing lewd and lascivious acts on three children who were strangers to him. He admitted fantasizing about children. Predatory behavior is "behavior directed at a stranger, a casual acquaintance, or someone cultivated for victimization." (Hurtado, supra, 28 Cal.4th at p. 1183.) Here, Hernandez displayed sexually violent predatory behavior in 1967 and again in the 1980s. Beyond a reasonable doubt Hernandezs sexually violent conduct was predatory.
DISPOSITION
The order extending Hernandezs commitment is affirmed.
WE CONCUR: BENKE, J., and OROURKE, J. --------------- Notes: All statutory references are to the Penal Code unless otherwise specified.