IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
September 30, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
NORMAN YARTZ, DEFENDANT AND APPELLANT.
(Super. Ct. No. 17151C)
The opinion of the court was delivered by: Robie , J.
P. v. Yartz
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After a jury found that defendant Norman Yartz is a sexually violent predator (SVP), the court recommitted him to the custody of the state Department of Mental Health for an indefinite term.
Defendant appeals, raising eight constitutional challenges to the Sexually Violent Predator Act (SVPA) and eight other challenges to his recommitment. Finding his constitutional challenges forfeited and his other challenges meritless, we affirm the recommitment order.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was born in 1948 and was 61 years old at the time of trial.
From age eight until his "late teens," defendant "engaged in sexual behaviors" with his younger sisters. In his teens, he began to molest others. When he was 16, defendant went into the bedroom of a four-year-old girl named L. whom he was baby-sitting, removed her panties, fondled her, and digitally penetrated her. When the girl's father confronted defendant, defendant threatened him with a fire poker. Defendant later told police he "fondled only her buttocks," and had he "touched [her,]" "[h]is sexual desires would have taken a hold of him" and he would have "raped her." He was sent to the California Youth Authority*fn1 for these sex offenses. He was released at age 18.
At age 23, defendant sexually assaulted K., the nine-year-old daughter of his live-in girlfriend. He sodomized her, had oral sex with her, raped her, and "stiffled [sic] her screams" by putting his hand over her mouth and choking her. He was sent to prison and then released on parole at age 27.
At age 29, after fleeing California to Oklahoma to evade charges of child molestation, defendant sexually assaulted T., a 10-year-old girl whom he had been living with in the same house. He "stuck his finger in her anus" and then sodomized her. When she resisted, he told her, "'Just let me do it,'" and offered her $20. He was sent to prison and then released on parole at age 33.
At age 36, defendant sexually assaulted his five-year-old daughter and her eight-year-old friend, L., who had come over to spend the night. L. was described by defendant as somebody who was "always at [his] house." Both at night and again the next morning, defendant held L.'s hands down, put Vaseline on her vagina, got on top of her, and tried to penetrate her with his penis. While investigating the incidents with L., police learned defendant had been sodomizing and orally copulating his daughter for the past year. Defendant was sent to prison and then released on parole at about age 46.
At age 47, defendant violated parole by possessing pornography and a teddy bear. In 1996, at age 48 before he was due to be released, he was sent to Atascadero State Hospital under the SVPA.
At age 52 in 2000 while still at Atascadero, defendant possessed a library book containing two pictures of "naked little girls."
For his current recommitment proceedings in 2009, defendant was interviewed by two psychologists hired by the prosecution -- Dr. LC Miccio-Fonseca and Dr. Jack Vognsen. Defendant told the psychologists the following: "[H]e's a pedophile" who orally copulated children, but he had not penetrated them or sodomized them because "he had . . . a nine inch cock and . . . they were little girls and it would hurt them." He likes little girls because "'[t]hey taste better . . . than women.'" He did not want to have other victims, but he "does not engage in treatment" because he "doesn't believe in treatment."
At trial, defendant testified he will "be a pedophile to the day [he] die[s]." He still fantasizes about little girls. He fantasizes about orally copulating them and "find[ing] a child lover." He is in control of his actions and was in control of his actions when he molested his past victims.
Both Dr. Miccio-Fonseca and Dr. Vognsen were of the opinion defendant was likely to reoffend in a sexually violent predatory manner, based on his history of prior predatory offenses. Dr. Miccio-Fonseca assessed defendant's risk of reoffense as "high" using one of the actuarial tools, the Static-99. Dr. Vognsen concluded that based on the three actuarial instruments he used, he was on "reasonably firm ground in saying that [defendant was] somewhere about 20 percent chance of being reconvicted, recharged . . . . I would say that his chance of reoffending is at bottom 20 percent but very likely to be much higher than that over the next ten years."
Defendant's Constitutional Challenges Have Been Forfeited
For the first time, defendant raises eight constitutional challenges to the SVPA statute. Specifically, he contends: (1) the term "casual acquaintance" in the SVPA's definition of "predatory" is void for vagueness; (2) the word "likely" in the SVPA's definition of a sexually violent predator is void for vagueness; (3) the SVPA is not narrowly tailored to serve a compelling state interest; (4) the SVPA violates due process because it "permits a denial of liberty . . . based on the quality of the possible harm and the quality of the evidence"; (5) the SVPA violates equal protection because persons committed under the Mentally Disordered Offender Act and persons committed because they were found not guilty by reason of insanity are not subject to indeterminate commitments and can obtain judicial review of their commitments; (6) the SVPA violates the double jeopardy clause because indeterminate commitments are punitive in nature; (7) the SVPA violates the ex post facto clause because indeterminate commitments are punitive in nature; and (8) the SVPA violates the due process clause because it permits the indefinite confinement of an individual.
Defendant did not raise any of these claims in the trial court. Although we have discretion to consider these constitutional claims, we will not. By not raising the claims in the trial court, defendant deprived the court of the opportunity to provide him with the constitutional safeguards he now contends he was denied. Accordingly, defendant has forfeited these constitutional claims. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1061; People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.)
There Was Sufficient Evidence
Defendant Was Likely To Commit Future "Predatory" Acts
"[B]efore a defendant can be committed or recommitted under the [SVPA], the trier of fact must find, beyond a reasonable doubt, that the defendant is likely to commit sexually violent predatory behavior upon release." (People v. Hurtado (2002) 28 Cal.4th 1179, 1182, fn. omitted.) "'Predatory' means an act is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." (Welf. & Inst. Code, § 6600, subd. (e), italics added.)
Defendant contends there was insufficient evidence he was likely to engage in behavior that was not only sexual and violent but that was also predatory. We disagree.
Both Dr. Miccio-Fonseca and Dr. Vognsen testified defendant was likely to reoffend in a sexually violent predatory manner, based on his history of prior predatory offenses. Specifically, Dr. Miccio-Fonseca explained defendant's behavior toward all his victims except his daughter was predatory because "these are individuals . . . he's known very casually." "For example," he preyed on T. when defendant "had only been living in the household for about, maybe, three weeks"*fn2 and on L. because she was "the friend of [his] daughter." Similarly, Dr. Vognsen believed defendant's future acts would be predatory because "[a]ll of his offenses . . . [ex]cept the offense against . . . his daughter . .. were predatory in that they were committed against children with whom he only had a casual relationship. There was no long-term bonded relationship between him and any of the young girls. [¶] If he was a step dad [who] had been involved with somebody for two years, taken the girl for school, sat with her during homework, you can say, well, there's a solid relationship here. No, these were by and large predatory offenses because the relationships were casual." Dr. Vognsen expected to find similar behavior in defendant's future.
Defendant acknowledges this expert testimony, but he argues "these opinions [we]re unsupported by the facts admitted for their truth." That is irrelevant. It was up to the jury to decide whether defendant was likely to commit sexually violent predatory behavior if released. It could have accepted the psychologists' opinions on this issue, regardless of the admissibility of evidence underlying the opinions. (Indeed, the evidence on which the psychologists based their opinions was that of defendant's prior sexual offenses, and the jury here was asked to consider defendant's likelihood of committing a future predatory offense.) Or it could have rejected the psychologists' opinions and believed defendant was likely to commit predatory offenses based on defendant's own testimony, which included testimony he is a pedophile for life and fantasizes about orally copulating young girls and finding a child lover. None of this testimony described defendant's desire to molest a child with whom he had a substantial relationship. Or, it could have based its finding on a combination of this evidence.*fn3 In short, there was substantial evidence defendant is likely to commit future predatory acts.
There Was Substantial Evidence Defendant Was "Likely" To Engage In Sexually Violent Criminal Behavior
A "'[s]exually violent predator'" "means 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." (Welf. & Inst. Code, § 6600, subd. (a)(1), italics added.)
Defendant argues there was insufficient evidence he was likely to engage in sexually violent criminal behavior because his risk was assessed at 20 percent and, as a matter of law, a 20 percent chance of reoffense is insufficient to support a finding he was likely to reoffend. The factual and legal predicates of defendant's argument are incorrect.
Factually, defendant is wrong the experts assessed his risk of reoffense at 20 percent. Dr. Miccio-Fonseca assessed defendant's risk of reoffense using the Static-99 as "high," which she explained meant that in five years defendant had a 39 percent risk of reoffending, in ten years it was 45 percent, and in 15 years it was 52 percent. She based her assessment on the following facts: defendant did not have long periods with an absence of criminality; he threatened his victims; he had prior sex offenses; he had prior non-sexual violent convictions; and his victims were unrelated. Dr. Miccio-Fonseca did clarify the percentages were either overestimates "depending on the base rate" or were underestimates if there was underreporting of the sex crimes. But she was still of the opinion that it was a "rough estimate." Dr. Vognsen concluded that based on the three actuarial instruments he used, he was on "reasonably firm ground in saying that [defendant was] somewhere about 20 percent of being reconvicted, recharged . . . . I would say that his chance of reoffending is at bottom 20 percent but very likely to be much higher than that over the next ten years."
Legally, defendant is wrong in basing his insufficiency of evidence argument on a bright line numerical threshold. The SVPA "does not require a precise determination that the chance of reoffense is better than even. Instead, an evaluator applying this standard must conclude that the person is 'likely' to reoffend if, because of a current mental disorder which makes it difficult or impossible to restrain violent sexual behavior, 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." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.) Here, both Dr. Miccio-Fonseca and Dr. Vognsen testified their estimates showed defendant posed a serious and well-founded risk he would reoffend.
On this record, there was substantial evidence defendant was likely to engage in sexually violent criminal behavior.
Trial Counsel Was Not Ineffective For Failing To Object To Use Of The Term "Sexually Violent Predator" During Trial
Defendant contends use of the "gratuitously and prejudicially ominous" term "sexually violent predator" throughout defendant's trial denied him due process, and his trial counsel was ineffective for failing to object.
Defendant's trial counsel was not deficient. (See Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] [first prong of an ineffective assistance claim is deficient performance].) The People and the court did not "gratuitously" label defendant a "sexually violent predator." Rather, they (and others during trial) referred to him as such because it was the technical term defendant was alleged to be. The People's petition to recommit defendant was filed pursuant to Welfare and Institutions Code section 6601, a statute which itself refers to the person being committed as a "sexually violent predator." In turn, that term is defined by statute. (Welf. & Inst. Code, § 6600, subd. (b).) The jury therefore had to determine whether defendant fit the definition of a "sexually violent predator." The form instruction as given used that term as well. (CALJIC No. 4.19.) In short, there was nothing wrong with using that term at trial and nothing required sanitizing this statutory term.
Defendant analogizes using the term "sexually violent predator" at trial to using the term "'violent wildman'" in an "LPS" proceeding or "'vicious maniac'" in an "MDO" proceeding. The problem with this analogy is that "'violent wildman'" and "'vicious maniac'" are not the names of the relevant commitment schemes. Here, the commitment scheme itself is called the Sexually Violent Predator Act. Because there was nothing wrong with referring to defendant by the terms of the statutory scheme, counsel was not deficient in failing to object.
The Court Did Not Err In Its Treatment Of Defendant's Leg Restraint
Before jury selection, the court ruled defendant would be restrained using an "invisible leg brace" and a "restraint chair" that was "not seen by the jury" but that would prevent defendant from "stand[ing] up without approval by the bailiff." Trial counsel had objected to "any restraint in excess of . . . the invisible leg brace" because it would prejudice him and deny him a fair trial.
Thereafter, during jury selection, the court introduced the prosecutor and said, "I will have him stand."
The court then introduced the defense as follows:
"Mr. Yartz, the respondent in this case. Mr. Yartz, turn around, if you can.
"Mr. Lauper [who was trial counsel]."
"That is the defense side of the equation. . . ."
Out of the presence of the prospective jurors, the court and trial counsel had the following exchange:
"[TRIAL COUNSEL]: I did want to object to the Court asking my client to stand and there was a pregnant pause.
"THE COURT: I'll note that.
"[TRIAL COUNSEL]: It was obvious he was unable to get up. [¶] Of course, I couldn't get up to emphasize. [¶] I move for mistrial.
"THE COURT: I'll note that. That was a minor matter. No big issue of prejudice or problem. I'll note the objection, deny the request."
On appeal, defendant contends the trial court denied him due process of law when it "alert[ed] the jury that [he] was physically restrained" and then later erred when it "fail[ed] to instruct the jury not to consider the fact that [he] was restrained."
The factual premise of defendant's argument, namely, that the jury knew he was restrained, is not supported by the record. There is no evidence that from the exchange described above the jury knew defendant was restrained. Rather, it knew defendant was asked by the court to "turn around, if you can." While it is reasonable to infer the jury presumed defendant could not stand (given that the court had just asked the prosecutor to stand and then did not make that same request of defendant), it is not reasonable to assume the jury presumed defendant could not stand because he was restrained. For example, a physical disability may have prevented him from standing. Because there is no evidence from this exchange the jury knew defendant was restrained, there was no denial of his due process rights and there was no reason for the court to instruct the jury regarding his restraint.*fn4 (See People v. Pride (1992) 3 Cal.4th 195, 233 [rejecting defendant's claim that shackling violated his constitutional rights because his assertion the jury saw his shackles was "speculative"].)
The Jury Instructions Did Not Diminish The People's Burden Of Proof
Defendant contends the court denied him due process in "repeatedly instruct[ing] the jury in terms that diminished the burden of proof."*fn5 He makes two claims we address in turn.
Defendant's first claim is based on the following instruction: "The jury must determine whether custody in a secure facility is necessary to ensure that the [defendant] is not a danger to the health and safety of others."
Defendant argues that "[r]equiring the jury to determine whether the health and safety of others is 'ensured' is to place a burden on the individual, not the state." He continues: "This element reverses the burden of proof [because] in the absence of evidence, it is the district attorney, not the [defendant] who prevails on this element."
Nothing in this instruction or the instructions as a whole placed the burden of proof on defendant. To the contrary, the court specifically instructed the jury, "the [People] ha[ve] the burden of proving beyond a reasonable doubt that the [defendant] is a sexually violent predator. The [defendant] is not presumed to be a sexually violent predator until the cont[rary] is proved."
Defendant's second claim is based on the following instruction: "A person is likely to engage in sexually violent predatory criminal behavior if there is a serious well-founded risk that the person will engage in such conduct if released into the community."
Defendant argues, "[t]o ask whether the evidence of a possible future offense by [defendant] is 'well founded' is to place a burden of proof on the state . . . below that required by statutory and constitutional law." As defendant himself concedes, the California Supreme Court has ruled that defining "likely" in terms of a "serious well-founded risk that the person will engage in such conduct if released into the community" does not violate due process. (See People v. Superior Court (Ghilotti), supra, 27 Cal.4th at pp. 923-924.) We therefore reject defendant's argument.
The Court Did Not Err In Informing The Jury The Consequences Of A True Finding Was Commitment To A State Mental Hospital
Defendant contends the court erred in instructing the jury to "consider the consequences of [its] verdict," namely whether defendant would be committed or released from the state mental hospital, and in otherwise "alert[ing] [it] to those consequences."
In making his argument, defendant relies on People v. Rains (1999) 75 Cal.App.4th 1165. Rains involved a defendant's first SVP commitment. (Id. at p. 1167.) When the People's experts were asked what would happen if the jury found the defendant to be an SVP, they testified he "'will receive a civil commitment to a psychiatric facility and receive treatment there'" and explained the commitment would be subject to review every two years. (Rains, at p. 1171.) They also testified briefly about the type of treatment defendant would likely receive. (Ibid.) The Court of Appeal held that evidence of the consequences of a true finding had no relevance to the issues at hand. (Id. at p. 1170.)
Rains is inapplicable because defendant's proceeding was a recommitment. In a recommitment proceeding, those evaluating a person for recommitment should consider "the person's progress, if any, in any mandatory SVPA treatment program he or she has already undergone." (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 929.) "The availability of treatment is at the heart of the SVPA. [Citation.] 'Through passage of the SVPA, California is one of several states to hospitalize or otherwise attempt to treat troubled sexual predators.' [Citation.] Accordingly, one of the key factors which must be weighed by the evaluators in determining whether a sexual offender should be kept in medical confinement is 'the person's progress, if any, in any mandatory SVPA treatment program he or she has already undergone; [and] the person's expressed intent, if any, to seek out and submit to any necessary treatment . . . .' [Citation.] A patient's refusal to cooperate in any phase of treatment may therefore support a finding that he 'is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community.'" (People v. Sumahit (2005) 128 Cal.App.4th 347, 354-355, italics omitted.) Therefore, what was going to happen to defendant as a result of a true finding was relevant. The court did not err in instructing the jury to consider it.
There Was No Cumulative Error
Defendant argues the cumulative effect of the errors he has alleged require reversal. Because we have found no errors, there are none to accumulate.
The recommitment order is affirmed.
We concur: BLEASE , Acting P. J. MURRAY , J.