APPEAL from a judgment of the Superior Court of Los Angeles County, Steven A. Marcus, Judge. Affirmed as modified. (Los Angeles County Super. Ct. Nos. ZM009280, ZM006562, ZM004837 & BA058165).
The opinion of the court was delivered by: Kriegler, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
On August 10, 2007, the jury found appellant Javier Castillo to be a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.).*fn2 The trial court ordered Castillo committed to the Department of Mental Health for a two-year period.
In his timely appeal, Castillo contends the trial court erroneously and prejudicially (1) failed to specially instruct the jury that it must find Castillo's mental disorder caused him serious difficulty in controlling his dangerous behavior and (2) admitted prosecution evidence concerning the nature of the treatment programs offered to SVP's at the state mental health hospitals where Castillo had been committed. In supplemental briefing, Castillo claims his commitment was illegal because the Department of Mental Health violated the Administrative Procedure Act (APA) (Gov. Code, § 11340.5, subd. (a)) in promulgating the mental health evaluation protocol used in the evaluations relied on by the People in support of the SVP petition against Castillo. In a related claim, Castillo argues his trial counsel rendered constitutionally ineffective assistance by failing to challenge the legality of the commitment proceeding below. The People oppose those contentions and argue the court's two-year commitment order was invalid because it was made in derogation of the indeterminate commitment period mandated by Proposition 83, also known as Jessica's Law, enacted on November 7, 2006, and effective November 8, 2006 (before Castillo's jury trial and commitment).
We reject Castillo's appellate contentions, but agree with the Attorney General that the two-year commitment order was unauthorized and must be corrected to conform to the unambiguous provisions of the SVPA, which mandated commitment for an indeterminate term of life.
It was stipulated that Castillo had suffered prior convictions for felonies that each qualified as a "sexually violent offense" for purposes of the SVPA-two counts of forcible lewd and lascivious acts upon a child less than 14 years old in December 1985 for which he received a six-year state prison term in February 1986 and one count of that same crime in June 1992 for which he received an eight-year prison term later that month.
On May 17, 2006, Danielle Smeltzer, a deputy sheriff, was assigned to the SVP unit at Twin Towers Jail in Los Angeles. She took part in a search of the cell shared by Castillo and another inmate. Among other things, she recovered several binders filled with photographs of children at play. A picture of a boy pasted to cardboard was found on the wall above or beside the headboard area of Castillo's bunk. A pornographic picture was also recovered. Numerous non-children-themed magazines had been altered by affixing child-related pictures to the inside pages. Deputy Matthew Colin assisted in the search. From a folder bearing Castillo's name and booking number, the deputy recovered a "scrapbook type of collage" made with pictures of children.
Psychologist Dawn Starr was first assigned to evaluate Castillo in 2001. She diagnosed him as having "exclusive" pedophilia, meaning that he had no age-appropriate sexual activity and was sexually attracted to both male and female children. To qualify for that diagnosis under the criteria generally accepted in the medical community, a person must be at least 16 years old and have had recurrent, intense sexually arousing fantasies, sexual urges or behaviors involving prepubescent persons over a period of at least six months.*fn3
Castillo repeatedly and consistently refused Dr. Starr's requests to be interviewed for her mental health evaluations. Nevertheless, Castillo's medical and criminal records provided an adequate basis for her evaluations. Dr. Starr relied on reports that Castillo had been convicted of felony child molestation charges in 1985 when Castillo was a volunteer coach in a parks and recreation program. In an incident with an 11-year-old named Ana, he tried to force her onto his lap. When the girl refused, he grabbed her arm and fondled her buttocks and genitalia. When she tried to escape, he told her "he did this to all the little girls and he likes to screw them." Ana saw him act similarly to another girl. A nine-year-old named Angela reported that Castillo rubbed her buttocks and vaginal area over her pants, telling her that he had undressed "other little girls." It was Castillo's coaching assignment that gave him access to the child victims. According to the psychologist, the only likely explanation for Castillo's conduct was that he found the children sexually arousing and sexually gratifying.
Additional documentation showed that Castillo had been released on parole in July 1989, but was returned to custody in May 1991 after violating the conditions of his parole, including the stricture against being alone with children. Castillo volunteered as a football and basketball coach for children. Parents and the head coach complained that Castillo touched the children inappropriately, spent inordinate amounts of time visiting them at their homes, and collected their telephone numbers, artwork, and belongings. While in custody for the parole violation, he attended sex offender treatment for his acknowledged improper and illegal behaviors. Upon release in 1992, Castillo was referred to sex offender treatment, but did not attend.
Once again, documentation showed Castillo engaged in sexual activities involving children soon after he was paroled. Almost immediately upon his release, Castillo sought out places where children were likely to be, finding work as a handyman and ticket-seller for a circus, and "engaging in various degrees of unwanted touching of children." He responded to an advertisement to help a woman clean out her house. On a pretext, he arranged to be alone with the woman's six-year-old boy. Castillo asked to touch the boy's genitals. When rebuffed, Castillo offered the boy a dollar. Despite the boy's refusals, defendant rubbed his hands and penis against the boy's unclothed buttocks. When the boy complained to his mother, Castillo physically restrained her from reporting the incident.
Dr. Starr also relied on reports that Castillo had a large amount of children's letters and photographs in his possession when he was evaluated in 1998 and in 2001. She noted that on the latter date, Castillo was found with a nudist camp brochure containing photographs of naked children. In 2003, he was again found with a large amount of child-related materials. Dr. Starr detailed how the numerous child-related pictures found in Castillo's jail cell contributed to her diagnosis. Castillo must have spent "hours and hours" carefully compiling and assembling the materials so the child-related collages would be hidden within magazines that would look benign on the outside.
Applying the scientifically validated "Static-99" analysis to predict the likelihood that Castillo would commit future sex offenses, Dr. Starr found Castillo had a score of seven, which placed him in the highest risk category. According to that analysis, persons who scored a point lower had a re-offense rate of 39 percent within five years, 45 percent in ten years, and 52 percent in fifteen years. Based on the totality of her analysis, Dr. Starr had no doubt as to Castillo's current pedophilia diagnosis, including the exclusivity aspect. Given Castillo's history of re-offending soon after being released from custody, the likelihood of Castillo's committing future sex offenses against children was "serious and well-founded," even without reliance on the Static-99 results. Dr. Starr testified that the amount of child-related materials in his possession was so extraordinary-and compiled with such effort and at the high risk of being discovered and used against him in court-that it "screams volitional impairment."
Psychologist Jack Vognsen also testified for the People. He performed four mental health evaluations of Castillo-in May 2003, July 2005, July 2006, and June 2007. On each occasion, Castillo declined to be interviewed.*fn4 Dr. Vognsen relied on prior evaluations, hospital records, probation officer's reports, Department of Corrections and Rehabilitation records, and related documents to make his evaluations. According to Dr. Vognsen, Castillo's current diagnosis was pedophilia of the exclusive variety.
Dr. Vognsen found Castillo exhibited a high risk of committing future sexual offenses, based on application of the Static-99 analysis and the psychologist's special individualized assessment of Castillo. Consistent with Dr. Starr, Dr. Vognsen believed that the Static-99 underestimated the likelihood of re-offending. His diagnosis and opinion were supported by findings on other psychological testing instruments.*fn5
However, even without the Static-99 analysis or those objective instruments, Dr. Vognsen believed Castillo was "obsessed with children sexually and generally" and was an "ongoing risk for sexually violent offending." The nature of Castillo's documented sexual offenses and the escalating degree of violence involved, the fact that he had previously re-offended so quickly after being released, and the nature and amount of the child-related pictures Castillo recently displayed and possessed all contributed to his findings.
Dr. Vognsen had reviewed the evaluation prepared by Castillo's retained mental health expert, psychologist Raymond Anderson. According to Dr. Anderson's evaluation, Castillo disclosed that he had engaged in age appropriate sexual relations. Dr. Vognsen found those representations unreliable. Not only were they inherently contradictory, but the fact that Castillo had only made them to Dr. Anderson-and only after the filing of the underlying petitions-made them suspect.
When called as a witness by the People, Castillo admitted that in 1985 he touched the genitalia of five female children 9 to 11 years old, for which he had been charged with multiple felony offenses. Castillo explained that in each of those incidents of sexual molestation, it was "just a touch" and that he was not sexually aroused. Castillo acknowledged entering guilty pleas to the crime of forcible lewd and lascivious acts against two of the girls; however, he asserted that during the 1985 plea hearing, he did not understand the charges because he did not have a Spanish interpreter.*fn6 Nevertheless, Castillo agreed that his admission to the forcible lewd act incident involving Joshua M. in 1992 was knowingly entered.
According to Castillo, the latter incident occurred on April 5, 1992, in the boy's home. Castillo pulled the victim's pants down and rubbed his penis against the boy's buttocks. He did so because he was confused and depressed about losing his job. Despite having served a prior prison term for a child sex offense, he could not restrain himself-the depression made him "blind." Upon his subsequent release from prison, he violated his parole by engaging in prohibited contact with children. He saw children at a park who appeared sad and frustrated by their poor baseball skills. Castillo could not "resist the sadness in them. So [he] took a risk teaching them how to play baseball." Not only did he knowingly violate a probation condition by doing so, Castillo knowingly failed to comply with the condition that he attend sex offender therapy treatment. Castillo admitted that he re-offended within a year of every release from custody. At the same time, he denied having any sexual attraction to his child victims, claiming that he considered each incident "an accidental touching." As to the documents found by the sheriff's deputies, Castillo testified that the pictures had no sexual attraction for him and were compiled as mere artwork or for other benign purposes.
When examined by his own counsel, Castillo testified that he was 52 years old at the time of trial. Castillo had been a professional musician from an early age. He had girlfriends as a teenager. In his late 20's, he had long term, age appropriate relationships with women. When the court sought clarification of the nature of those relationships, Castillo explained they were sexual "one-night stand[s]" with persons he met at the bars or cantinas where he played.
One of Castillo's sisters, Virginia Drennan, testified on his behalf. She and other family members visited him while he was in custody, both while he was incarcerated and committed to state mental hospitals. Within the past five to six years, Castillo sent Drennan's 11-year-old daughter a number of packages containing scrapbooks of newspaper clippings of animals, landscapes, puppies, and kittens. Drennan showed them to her daughter.
Dr. Anderson testified for Castillo. In the course of making his evaluations, the psychologist interviewed Castillo twice-in 2002 and 2007-for approximately two and a half hours each time. Dr. Anderson's assistant administered a variety of psychological tests to Castillo. Some had scales for diagnosing sexual disorders, others tested for personality disorders, intelligence, and organic brain disorders. The results of the Minnesota Multiphasic Personality Inventory administered in 2002 and 2007 showed none of the characteristics expected for a sexually disordered sexual offender. Castillo tested in the normal range on other personality inventories. On the other hand, the administration of a sex inventory in 2002 showed Castillo's responses approached those indicative of pedophilia.
Dr. Anderson found some of his clinical findings suggested a pedophilia diagnosis, but most did not. He concluded the test results as a whole supported a presumption against a definitive diagnosis of pedophilia. Regarding the question of Castillo's future dangerousness, Dr. Anderson testified that psychologists are "not very good at predicting the behavior of individuals." The objective measures used to predict such offenses are methodologically and statistically flawed as predictors of what a particular person will do. Using federal Department of Justice data, Dr. Anderson placed Castillo's base rate for being convicted of a future offense at seven percent, which he discounted by another three percentage points because of Castillo's age and the trend toward declining rates of re-offending with age. Dr. Anderson explained what he believed were important weaknesses in the Static-99 as a testing instrument for predicting future dangerousness.
On cross-examination, Dr. Anderson testified that Castillo "still wants to associate with children," which the expert deemed unwise. Additionally, Dr. Anderson had stated in his 2007 evaluation, "Any offender with the history one sees in the present case is presumed to pose at least some risk of future uncontrolled sexual behavior."