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The People v. Norman Yartz

September 30, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
NORMAN YARTZ, DEFENDANT AND APPELLANT.



(Super. Ct. No. 17151C)

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

P. v. Yartz

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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."

DISCUSSION

I

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 ...


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