Appeal from a judgment of the Superior Court of San Bernardino County, Gilbert G. Ochoa, Judge. Affirmed. Original proceedings; petition for writ of habeas corpus, after judgment of the Superior Court of San Bernardino County. Petition denied. (Super. Ct. No. FMBMS007714).
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
James Roy Glenn was adjudged a sexually violent predator (SVP) under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA),*fn1 and was placed in involuntary commitment for an indeterminate term. Glenn was 82 years old at the time of trial. He appealed, and later filed a petition for writ of habeas corpus also challenging the commitment order. We issued an order to show cause and consolidated the writ petition with the appeal. We affirm the judgment and deny the writ petition.
Glenn was committed as an SVP following initial evaluations under section 6601, subdivision (a) conducted in accordance with a standardized assessment protocol developed by the California Department of Mental Health (DMH). In 2008, the Office of Administrative Law (OAL) determined the 2007 standardized assessment protocol constituted an invalid "underground" regulation.
First, we conclude the trial court did not err by precluding one of Glenn‟s expert psychologists from testifying about studies and research conducted by non-testifying mental health experts concerning whether pedophilia is chronic.
Second, even assuming for sake of argument the OAL was correct in its determination the assessment protocol is invalid, we hold any error in using evaluations based on that protocol did not deprive the trial court of fundamental jurisdiction over the SVPA commitment petition. Accordingly, we apply a harmless error analysis to use of the invalid assessment protocol and conclude Glenn received a fair trial and suffered no prejudice. His challenge to the assessment protocol, and his claim his trial counsel was ineffective for not challenging the assessment protocol, therefore fail.
Third, we hold the amendments to the SVPA added in 2006 by the Legislature and by passage of Proposition 83 do not violate the due process, equal protection, ex post facto, and double jeopardy clauses of the United States Constitution and the California Constitution.
The SVPA provides for involuntary civil commitment of an offender immediately upon release from prison if the offender is found to be an SVP. (People v. Yartz (2005) 37 Cal.4th 529, 534.) The SVPA "was enacted to identify incarcerated individuals who suffer from mental disorders that predispose them to commit violent criminal sexual acts, and to confine and treat such individuals until it is determined they no longer present a threat to society." (People v. Allen (2008) 44 Cal.4th 843, 857; see Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1171 [SVPA proceedings are designed "to provide "treatment‟ to mentally disordered individuals who cannot control sexually violent criminal behavior"].) ""[A]n SVPA commitment proceeding is a special proceeding of a civil nature, because it is neither an action at law nor a suit in equity, but instead is a civil commitment proceeding commenced by petition independently of a pending action.‟" (People v. Yartz, supra, 37 Cal.4th at p. 536.)
An SVP is defined as "a person who has been convicted of a sexually violent offense against one or more victims and who has 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).) A "diagnosed mental disorder" is defined to include "a congenital or acquired condition affecting the emotional or 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 others." (§ 6600, subd. (c).)
The procedure for determining whether a convicted sex offender is an SVP typically begins when an inmate is scheduled to be released from custody. (Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1054.) ""Under section 6601, whenever the Director of Corrections determines that a defendant serving a prison term may be a sexually violent predator, the Department of Corrections and the Board of Prison Terms undertake an initial screening "based on whether the person has committed a sexually violent predatory offense and on a review of the person‟s social, criminal, and institutional history." (§ 6601, subd. (b).)‟" (People v. Hurtado (2002) 28 Cal.4th 1179, 1182-1183.)
The screening is conducted in accord with an assessment protocol developed by the DMH. (People v. Hurtado, supra, 28 Cal.4th at p. 1183.) ""If that screening leads to a determination that the defendant is likely to be a sexually violent predator, the defendant is referred to the Department of Mental Health for an evaluation by two psychiatrists or psychologists. (§ 6601, subds. (b) & (c).) If both find that the defendant "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody" (§ 6601, subd. (d)), the department forwards a petition for commitment to the county of the defendant‟s last conviction (ibid.). If the county‟s designated counsel concurs with the recommendation, he or she files a petition for commitment in the superior court. (§ 6601, subd. (i).)‟" (People v. Hurtado, supra, 28 Cal.4th at p. 1183.)
The trial court holds a hearing on the petition to determine whether "there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6602, subd. (a).) The probable cause hearing is an adversarial hearing where the person named in the petition has the right to counsel. (Ibid.) If the court finds probable cause, it orders a trial to determine whether the person is an SVP under section 6600. (§ 6602, subd. (a).) The person named in the petition must remain in a secure facility between the time probable cause is found and the time trial is completed. (Ibid.)
The person named in the petition is entitled to a trial by jury, and the jury‟s verdict must be unanimous. (§ 6603, subds. (a) & (f).) The person named in the petition also is entitled to retain experts or professional persons to perform an examination on his or her behalf. (§ 6603, subd. (a).) At trial, the trier of fact determines whether, beyond a reasonable doubt, the person named in the petition is an SVP. (§ 6604.)
The SVPA grants the person named in the petition the right to be present at the commitment proceeding and "the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding." (§ 6605, subd. (d).) If the trier of fact determines the person named in the petition is an SVP, the person is committed for an indefinite term to the custody of the DMH for appropriate treatment and confinement in a secure facility. (§ 6604.)
In 2005, the Office of the District Attorney of San Bernardino County filed a petition for Glenn‟s commitment as an SVP pursuant to section 6600 et seq. At the jury trial, conducted in January and February 2008, the deputy district attorney called Jeffery Hart and licensed psychologists Mark A. Schwartz and Dawn Starr as witnesses. Hart had been Glenn‟s former neighbor in North Carolina, and Schwartz and Starr had evaluated Glenn and testified he qualified as an SVP. The deputy district attorney also called Glenn to testify as an adverse witness.
In 2000, Glenn purchased two acres in rural North Carolina and lived there in a mobilehome. Jeffery Hart was Glenn‟s neighbor. Hart and Glenn initially got along well, but they had a falling out because Glenn wandered around his property in the nude. Glenn cut down the trees on his property, and would situate himself in his yard or on his roof to make himself visible. On several occasions, Hart‟s mother, who lived with Hart, saw Glenn naked. Hart asked Glenn not to appear naked in front of her. According to Hart, Glenn "just got bolder and bolder every day."
One morning, Hart informed Glenn that four women were coming to look at nearby property and asked that he wear clothing when they arrived. When the women drove up the road, Glenn, wearing only fishnet underwear, blocked the road with his backhoe. Glenn got down from the backhoe and walked over to talk with the women.
Glenn twice told Hart that Glenn needed "a young boy" to help with work around the house. Hart did not recommend anyone to Glenn and testified, "by the way he was acting, I wouldn‟t subject any kid to that."
Mark A. Schwartz holds a Ph.D., had been a licensed psychologist for 27 years, and worked under contract for the DMH. He interviewed Glenn in 2005 and 2006 and prepared reports in January and November 2007. Schwartz considered three criteria:
(1) whether Glenn committed qualifying predicate offenses; (2) whether he has a mental disorder predisposing him to commit future sexual offenses; and (3) whether he is at risk of committing future sexual offenses.
Under the first criterion, Schwartz concluded Glenn had committed four predicate offenses against three victims, all of whom were under 14 years of age. In 1988, Glenn invited a nine-year-old boy and an 11-year-old boy to his house, where he gave them treats, showed them sexually explicit movies, exposed himself, and touched them. As a result, a jury convicted him of two counts of committing lewd and lascivious acts with a child under the age of 14. Also in 1988, Glenn molested a seven-year-old girl by exposing himself and masturbating in front of her, for which another jury convicted Glenn of two counts of the same crime.
Schwartz also explained that Glenn had been convicted of offenses that did not qualify as predicate offenses for an SVP determination. Glenn had been convicted of an attempt to commit lewd and lascivious acts with a child under the age of 14 for exposing himself to and masturbating in front of a boy. Glenn also had been convicted on two indecent exposure charges involving two girls. Schwartz testified he "really didn‟t have to" consider those incidents, but they "just hardened the fact that [Glenn] was a pedophile."
Under the second criterion, Schwartz concluded Glenn suffers from pedophilia, nonexclusive, with sexual attraction to both male and female children.*fn2
Schwartz based his conclusion of pedophilia on Glenn‟s qualifying and non-qualifying offenses, and incidents appearing in police reports that did not lead to charges. Schwartz concluded Glenn was volitionally impaired from pedophilia because he continued to engage in pedophilic behavior even after being arrested and imprisoned for sex crimes.
Under the third criterion, Schwartz concluded there was a serious and well-founded risk that Glenn would commit sexually violent criminal acts in the future. Schwartz considered Glenn‟s score on the Static-99, an actuarial tool used to predict recidivism in sex offenders. Although Glenn‟s score of seven on the Static-99 usually would place him in the high risk category, Schwartz was not certain whether Glenn would fall into that category because he was much older than all but one person in the data set on which the Static-99 was based. Schwartz testified: "We don‟t have a lot of data on 82-year-old-guys. When you look at the number of people in these data sets that are past 60, 75, 80, very, very few."
Schwartz testified he initially did not believe Glenn qualified as an SVP because of his advanced age and because the qualifying offenses occurred a long time ago. Schwartz ultimately concluded Glenn was an SVP based on his score on the Static-99, the fact Glenn had continued to act out sexually, and Schwartz‟s opinion that pedophilia is a compulsive and chronic condition. Schwartz considered "the incidents in North Carolina and the indecent exposure in North Carolina as an indication that he was still... sexually acting out and at risk." Despite studies suggesting recidivism rates for pedophiles decrease after age 60, Schwartz believed Glenn posed a risk of reoffending because he had engaged in serious acts of pedophilia at age 62.
Schwartz also diagnosed Glenn with exhibitionism.*fn3 Schwartz initially "wavered back and forth" on that diagnosis because it requires exposing oneself to unsuspecting strangers. Ultimately, Schwartz concluded the women in North Carolina who saw Glenn in fishnet underwear were strangers, thus satisfying the definition of exhibitionism.
Dawn Starr holds a Ph.D. in psychology and had been a licensed psychologist for over 20 years when she testified. She served on the DMH‟s SVP panel of evaluators and had conducted over 1,000 SVP evaluations. She conducted an SVP evaluation of Glenn in July 2005 and conducted follow-up evaluations of him in August 2006 and September 2007.
Starr concluded Glenn committed qualifying predicate offenses, had a mental disorder predisposing him to commit future sexual offenses, and was likely to commit future sexually violent predatory offenses as a result of his mental disorder.
Starr diagnosed Glenn with "pedophilia, sexually attracted to male and female children, but a non-inclusive type, meaning he‟s had adult sexual partners." Starr testified, "[t]hat was an SVP diagnosis because I thought that he showed both volitional and emotional impairment with regards to that diagnosis." She believed Glenn was volitionally impaired because he "gets in very little trouble with the law" and "[i]s not a rule breaker," yet had serious difficulty controlling his sexual behavior. As to emotional impairment, Starr testified: "[H]e is taking advantage of these children, most of whom were either in situations where they were low income or the parents were maybe neglectful or not around very much. And he would groom them, give them candy, put on cartoons maybe and then switch over to sexually explicit movies. Fix the boys‟ bikes. [¶] And then he would sexually abuse them for his own personal gratification with little or no regard to the adverse consequences of these children."
Starr considered several non-qualifying crimes and victims because "under the diagnostic criteria... we‟re supposed to look at whether the person has recurrent intense sexually arousing deviant fantasies or urges or behaviors towards prepubescent children. So I‟m interested to see how many people or young children he‟s had sexual contact with over what period of time."
Starr‟s conclusion that Glenn committed the qualifying predicate offenses was based on his convictions in 1988 for committing lewd and lascivious acts with a child under the age of 14 involving the girl and the two boys. Starr also considered these non-qualifying crimes and victims in reaching her diagnosis:
In the 1950‟s or 1960‟s, one of Glenn‟s daughters reported that Glenn had sexually molested her when she was a child.
In 1976, when Glenn was 50 years old, he was arrested and charged with two counts of lewd and lascivious behavior with a child under 14 years old in violation of Penal Code former section 288. (Ultimately, he was convicted of contributing to the delinquency of a minor.)
In 1977, Glenn took a nine-year-old girl and a seven-year-old boy to Big Bear, where he exposed himself to them, bathed with them, fondled and orally copulated the girl, and had the boy use a relaxer on Glenn until he ejaculated.
In 1986, a mother left her three children with Glenn while she moved into a new home. Glenn licked the 10-year-old girl between the legs, then tried to "hypnotize" her. Glenn touched her six-year-old brother‟s penis.
In 1987, Glenn molested his seven-year-old granddaughter and four-year-old grandson. The granddaughter reported that Glenn carried her to the living room, put his hand over her mouth, pulled down her underwear, and touched her groin. The grandson reported that Glenn touched his penis.
Starr concluded Glenn currently suffers from pedophilia, despite his age, because it is a chronic and lifelong condition. Significant too, Starr found, was that Glenn used the victims for his own gratification, did not accept responsibility for his conduct, and showed no remorse.
Starr also diagnosed Glenn with exhibitionism, which she described as a type of paraphilia. Her diagnosis of exhibitionism was based on Glenn‟s claim to be a nudist and a pattern of conduct in which he appeared to go out of his way to expose himself to others.
Starr concluded Glenn likely would engage in future sexually violent predatory behavior as a result of his mental disorder. Like Schwartz, Starr used the Static-99 and gave Glenn a total score of eight, placing him in the highest risk of reoffense category. She placed Glenn in the "rare group of people" who, despite advanced age, would continue to sexually reoffend. She considered Glenn‟s age, good health, and family history of longevity to conclude a five- to eight-year risk prediction period to be appropriate.
Starr believed Glenn‟s age lowered the risk of reoffense a little, but not enough to take Glenn out of the high risk category. She explained: "[H]e is exactly the same man he is today as he was when he committed the offenses in the late 1980s. His personality is the same; his attitude about them is the same. Either it was no big deal or I did not do it. [¶] He has not done anything to try to get treatment for that in the community or now that it‟s available to him at absolutely no cost where he‟s staying. He doesn‟t go do that. He is in pretty good physical health. He has good mental capacity. So the only thing is, he is a little older and he is still sexually preoccupied."
The deputy district attorney called Glenn as an adverse witness. He testified he was a nudist and denied committing all but one of the qualifying and non-qualifying offenses.
Glenn claimed he had been falsely accused in each instance and gave various reasons why. As to the incident in Big Bear in 1977, Glenn claimed the mother told her children to accuse Glenn of molesting them because he had kicked her out of his house. As for the incident in 1986, Glenn claimed the 10-year-old girl made obscene telephone calls to him, and falsely accused him of molestation for fear he would tell her mother about the calls. Glenn denied molesting his grandchildren, claiming his son had been "wasted on drugs."
Glenn asserted he did not commit the crimes for which he was convicted in 1989. Glenn claimed the two boys came over to his house to repair their bicycles. Glenn showered, and when he came out of the shower, the boys were on his bed watching a pornographic video and the 11-year-old boy had an erection. Glenn claimed he ran the boys out of the house. According to Glenn, the pornographic video belonged to a friend.
As for the conviction involving the girls, Glenn testified they would come into his apartment without knocking. On one occasion, he stepped out of the shower to find three girls in his bathroom looking at him. On another occasion, one of the girls walked into his apartment, unannounced, and Glenn, a nudist, was naked. The girl said, "[g]et some clothes on"; Glenn replied, "you better start getting use to it if you don‟t start knocking."
Glenn was arrested, convicted by two separate juries, and sent to prison. He was released in 1995, and, in 1998, bought two acres of land in North Carolina, where he continued to practice nudism. He contended Hart‟s mother would hide in the bushes with binoculars to watch him naked. She had tried to "put the make on [him]," but he was not interested in her, and she complained to the police in anger. According to Glenn, none of the 13 people who complained to the police about his nudity had ever seen him naked. He also claimed Hart‟s testimony that Glenn had asked about finding a young boy to work for him was a lie.
On the day the women came by to inspect property, Glenn wore the fishnet underwear because "from a distance it just looks like regular shorts." He did not expect he would have to step down from his backhoe to see anyone.
Glenn testified he had been impotent since undergoing chemotherapy for colon cancer in 1996. He testified he loved children, and "[w]hen I see children with a problem, my heart bleeds for them."
Glenn called licensed clinical psychologists Brian Abbott and Craig Updegrove to testify on his behalf.
Brian Abbott testified he is a licensed clinical psychologist, has a forensic psychological practice, and primarily evaluates sex offenders, including SVP‟s. Abbott reviewed Glenn‟s medical and hospital records, law enforcement reports, probation reports, DMH evaluator reports, and investigative reports prepared by the district attorney‟s office and by the public defender‟s office. Abbott interviewed Glenn three times, and administered a general personality test, the Millon Clinical Multiaxial Inventory-III, The Abel Assessment for sexual interest-2, and a cognitive functioning test.
Abbott concluded, "[t]here‟s absolutely no information to substantiate a current diagnosis of pedophilia or to substantiate a current mental disorder under the Sexually Violent Predator Act." In reaching that conclusion, Abbott observed that Glenn had displayed no symptoms of sexual interest in children for 20 years and found it critical that no reports were made of Glenn engaging in inappropriate conduct with children during the seven-year period in which he was not in custody. There was no evidence that, since Glenn had been committed as an SVP, he had engaged in the type of conduct typical of someone with a current diagnosis of pedophilia. Because Glenn interacted sexually with both adults and children, Abbot believed his conduct might be the result of sexual compulsiveness rather than pedophilia.
Abbott testified that sex drive decreases dramatically in people over 50 years old. He acknowledged pedophilia is a chronic condition for some people, but testified it was not chronic in Glenn‟s case. He found no indication that Glenn currently had any sexual interest in prepubescent children and was not likely to reoffend in a sexually violent manner. Abbott declined to diagnose Glenn with exhibitionism because he did not expose himself for sexual gratification or to unsuspecting strangers.
Craig Updegrove holds a Ph.D. in clinical psychology, was a licensed psychologist, and, since 1996, had served on the DMH‟s panel of SVP evaluators.
Under appointment by the DMH, Updegrove conducted an evaluation of Glenn in July 2005. Updegrove concluded Glenn did commit the qualifying offenses, had a diagnosable mental disorder within the meaning of the SVPA, but was not likely to reoffend in a sexually violent, predatory manner.
Updegrove reached the same conclusions after reevaluating Glenn in October 2006. Again diagnosing Glenn as having pedophilia, Updegrove acknowledged, "he‟s had this recurrent pattern of sexually aroused behavior around prepubescent children" and recognized Glenn‟s score on the Static-99 placed him in the high risk of reoffense category.
Updegrove concluded nonetheless that Glenn did not pose a serious and well-founded risk of sexually reoffending. In reaching that conclusion, Updegrove considered Glenn‟s age, the lack of evidence of offending behavior after 1988, and chemotherapy in 1996, which, according to Glenn, had left him impotent. Updegrove found it significant that Glenn had no known sexual offenses against children in the eight-year period from his release from prison to his conviction for indecent exposure. Updegrove did not ...