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People v. McRoberts

November 2, 2009


APPEAL from a judgment of the Superior Court of Tehama County, Dennis E. Murray, Judge. Affirmed. (Super. Ct. No. CI59446).

The opinion of the court was delivered by: Nicholson , J.


Shortly before the scheduled parole date of defendant Daniel McRoberts, the district attorney filed a petition for his civil commitment as a person coming within the provisions of the Sexually Violent Predator Act, or "SVPA" (Welf. & Inst. Code, § 6600 et seq. [undesignated section references are to this code]). A jury sustained the petition. Following its denial of defendant‟s motion in arrest of judgment or for acquittal (which asserted his juvenile adjudication was not a qualifying offense under the SVPA because it was not sexually violent), the trial court ordered his commitment to Atascadero State Hospital for an indeterminate term of treatment and confinement.

On appeal, defendant renews his challenge to the status of his juvenile adjudication as a qualifying offense, contends the trial court abused its discretion in excluding the testimony of his lay witnesses, and argues that the court erred in refusing his request for an instruction requiring the jury to find it was necessary to keep him in a secure facility for the protection of the health and safety of others. We affirm.


The defendant, born in August 1983, committed his first offense in May 1998. A girl whom the defendant knew encountered him in her bedroom. He had items of her clothing, including a bra, in his backpack. The juvenile court placed defendant on probation for burglary. Five months later, defendant walked up to a nine-year-old girl on a playground, made a sexual remark, and penetrated her vagina with his finger. This time, the juvenile court found he had committed a sexual battery and ordered unspecified treatment.

In May 1999, defendant walked up to a 14-year-old girl whom he found attractive and brushed against her buttocks and vaginal area, leading to another finding that he had committed sexual battery. In September 1999, defendant was riding his bicycle on the way to a treatment session when he saw a 13-year-old girl standing near a soda machine on school grounds. He approached her and told her she was pretty, and then reached inside her shirt to fondle her breast. When he tried to do it a second time, she kicked or pushed him away. Calling her a bitch, he rode off. This time, the court found he had committed child molestation and ordered his placement in the (then-named) California Youth Authority (CYA), where he participated in "pretty intensive treatment" for sex offenders until his release in 2004.

Two months after his release on parole, defendant was driving down the street and pulled up to a woman and her young child. As he purported to ask for directions, the woman noticed that he was masturbating. Making a vague threat about kidnapping the child, he drove off, still masturbating. He served a two-month jail term for indecent exposure. Ten days after his release from jail, defendant drove up to an 11-year-old girl who had just gotten off the school bus near her driveway. He got out of the car and offered her money for her underwear. When she retreated into her yard, he grabbed her hand. She either kicked him or fell backward, at which point defendant released her and drove off. He admitted his actions to his therapist, who contacted investigators. A jury found him guilty of attempted kidnapping and child molestation, and the court sentenced him to state prison for the term he was serving at the time of the filing of the present petition.*fn1

Dr. Michael Musacco, the first psychologist who testified in support of the petition, initially diagnosed pedophilia and hebephilia, but ultimately concluded the age of the victims was not the stimulus driving defendant‟s behavior. Rather, he simply wanted victims he could demean, so the first psychologist believed defendant suffered from a nonspecific sexual deviance ("paraphilia") that had elements of sexual sadism. This condition would persist throughout his life even with treatment. The first psychologist believed that defendant presented a serious risk of reoffending if released to the community because of the numerous offenses he committed despite treatment and punishment that was increasingly more severe. He did not believe defendant was suitable for an outpatient treatment program because of this serious risk of reoffending.

Dr. Robert Owen, the second psychologist testifying in support of the petition, concurred in the diagnosis of a nonspecific sexual deviance. It was extremely significant that the deviance persisted despite treatment and custody, indicating highly deficient volitional control, for which reason defendant presented a substantial risk of reoffending. Because defendant had committed these offenses on release from custody, the second psychologist also concluded that he was not suitable for release into the community.

Dr. Robert Halon, the defense psychologist, who has a full-time forensic practice, asserted that the standard diagnostic manual contained a recognized error in its definitional criteria for paraphilia, which allowed psychologists to base this diagnosis only on observed behaviors without any evidence of underlying recurrent intense sexual fantasies and urges. As a result, he believed that there were repeated instances of psychologists testifying in support of SVPA petitions who diagnosed people improperly as sexually violent predators based solely on the existence of their criminal convictions. This practice was not commonly accepted in the psychiatric community. This group included the two SVPA psychologists in the present case.

In the opinion of the defense psychologist, defendant presented "a continuing danger" of impulsive, opportunistic, immature, and angry behavior,*fn2 acting out aggressively "in all kinds of ways, not just [sexually]," but this behavior did not have a basis in a mental disorder of recurrent sexually arousing fantasies and urges. It simply reflected antisocial attitudes compensating for a sense of inferiority.*fn3 The defense psychologist also did not find any evidence of sexual sadism. He had not seen any indication of defendant attempting to control this behavior. He believed the opinions of the SVPA psychologists simply pathologized defendant‟s criminal behavior without any evidence of a mental disorder.

Defendant expressed regret and shame for his past behavior. He could not explain why he exposed himself to the woman and her child after his release from CYA and his first outpatient treatment session or why, after his subsequent release from jail and two group sessions, he felt the need to startle or scare the girl whose underwear he had offered to buy. He believed the treatment he had received in CYA gave him the tools to help modify his behavior, and had stopped him from going any further with the girl. Now that he was four years older, he felt better equipped to deal with his feelings of inadequacy and anger, and he was committed to participating in continued treatment and complying with the registration requirements for ...

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