IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
January 24, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
PAUL FRANCIS JENNINGS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 95F03927)
The opinion of the court was delivered by: Hoch , J.
P. v. Jennings
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Paul Francis Jennings to be a sexually violent predator (SVP) under the amended Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code,*fn1 § 6600, subd. (a)(1) et. seq.), and the trial court continued defendant's commitment to an indeterminate term with the Department of Mental Health (DMH). On appeal, defendant contends insufficient evidence supports the SVP finding and the indeterminate recommitment proceedings for SVPs violates his due process rights, prohibition against ex post facto laws, and his equal protection rights.
As to the insufficient evidence claim, we find no reversible error. As to the constitutional claims, the California Supreme Court's recent decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee) is dispositive. Accordingly, we reject defendant's due process and ex post facto claims but reverse and remand for further consideration of his equal protection claim consistent with McKee.
The trial primarily consisted of expert testimony by the People and defense. Two experts testified for the People and two experts testified for the defense. Defendant was called as a witness by the People.
People's Expert Evaluations
Dr. Christopher Matosich, a psychologist under contract with the DMH to perform SVP evaluations, evaluated defendant in February 2010. He reviewed materials related to defendant, including police reports, probation officers' reports, as well as ongoing psychiatric and medical evaluations. Defendant declined a full clinical interview.
Dr. Matosich described defendant's qualifying offenses under the SVPA. In 1984, defendant sustained two convictions for a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)) and was sentenced to six years in state prison. One conviction involved an eight-year-old boy who was molested after defendant posed as a medical expert and said he was going to check the boy's ears. Regarding the second conviction, defendant pulled another eight-year-old boy's pants down and molested him; on two other occasions defendant pulled down his own pants and had the boy touch his erect penis.
In 1995, defendant received a third conviction for a lewd act upon a child under the age of 14 and was sentenced to 12 years in state prison. Defendant employed young males to work for him on his property and in his house, and invited the boys to take showers after getting dirty. He asked one of the boys, an 11-year-old, to lie down on the bed and put a condom and jelly on his penis. Defendant then touched the boy's penis 10 or more times. This was done by defendant in the form of a medical examination. Defendant was not related to any of his victims.
Dr. Matosich diagnosed defendant with pedophilia, a chronic, lifelong condition which does not go into remission. Pedophilia is a qualifying medical disorder under the SVPA. The diagnosis was current even though there had not been any recent episodes. Dr. Matosich also considered defendant's refusal to acknowledge his pedophilia and participate in any treatment. Resistance to treatment is associated with risk of recidivism. Defendant's belief that he does not have the disorder complicates his access to treatment. Dr. Matosich opined that the disorder is "an ongoing life condition with no degree of behavioral control."
Dr. Matosich concluded defendant was likely to reoffend if released, and qualified as an SVP. His opinion was based on a two-pronged approach to determine the overall likelihood of sexual recidivism. Static and dynamic factors are used. Static factors are those factors not subject to change. Dynamic factors are those factors capable of changing, especially through treatment.
The static factors are reflected in actuarial instruments used to predict the likelihood of reoffending in the future (these instruments are referred to as Static-99, Static 99-R, Static-2002, and Static-2002-R). Defendant scored six on the Static-99, placing him at a high risk of reoffending. According to defendant's score, this put him "in the range of 13.4 to 27.7 percent at risk of sexual recidivism" over five years and "16.7 percent to 37.3 percent" over 10 years.
Defendant was 62 at the time of the trial. The risk of offending declines after the age of 60, and, under the Static-99-R (a revised instrument to accommodate the effect of age), defendant's age automatically reduced his score from six to three, placing him "in the low moderate category" for risk of sexual recidivism. Using the Static-2002 and 2002-R instruments (which are similar to the Static-99 and 99-R instruments with some different factors), defendant's age reduced his score from six to three.
Dr. Matosich found several dynamic factors relevant to defendant's risk of reoffending. Defendant never had a meaningful or long-term relationship. He also displayed a severe degree of sexual deviancy, as shown by the number of victims and by reoffending after he was punished. Defendant showed a predatory relationship with his victims by establishing relationships with the boys in order to obtain sexual gratification through them. He also knew his behavior was wrong and illegal, as he told his second 1984 victim not to tell anyone.
Dr. Matosich concluded defendant was likely to reoffend based on a review of the static factors, his pattern of behavior, his failure at previous treatment, the degree of sexual deviancy, his ongoing refusal to engage in treatment, and the severity of his pedophilia. He opined that defendant could not be successfully treated in the community.
Dr. Mary Jane Alumbaugh was a psychologist contracted by DMH to perform SVP examinations. She evaluated defendant in 2007, with updates in 2008 and 2009, and an addendum in 2010. She interviewed defendant in 2007 and 2008, but he declined an interview in 2009.
According to Dr. Alumbaugh, "a hallmark of pedophilia is an enduring kind of pervasive attraction to a sexually deviant form of arousal in the case of a child." Defendant exhibited these symptoms, as shown by his continuing acts of molestation even after being punished for the 1984 offenses. With respect to the 1995 conviction, defendant had a lot of boys around the house and he was spending a lot of time with them, interacting with them on an inappropriate level. With respect to the 1984 incidents, defendant allegedly sodomized one of the victims.
Defendant had a pattern of claiming medical expertise. In 1995, he told the boys he was a retired medical school professor qualified to conduct exams. Equipment for conducting medical examinations was found in his home in 1984, along with records dating back to 1974 referring to boys' names, ages, weights, heights, and the measurements of various body parts, including their penises and testicles.
Dr. Alumbaugh diagnosed defendant with pedophilia. Although sexual recidivism significantly declines with age, defendant was still a pedophile who continued to insist he merely performed medical procedures on his victims.
Regarding his risk of reoffending, defendant was initially assessed as high risk, but his score dropped three points because of his age, putting him in a fairly low category for risk of sexual recidivism. In addition to age, Dr. Alumbaugh factored in health issues associated with old age. Defendant had prostate problems, which impairs sexual function. Defendant had a hip replacement and was not as mobile as he used to be. While defendant was old and stable enough to come up with a plan to stay out of trouble in the community, he had not developed a sensible plan. Defendant's plan of going to China was not practical.*fn2
Defendant satisfied the third criteria of the SVPA because he was unwilling to agree to a treatment plan and therefore was not safe to be released at this time. Defendant completed the first phase, education, of the five-phase program offered at the hospital. However, he refused to participate in the second phase, relapse prevention. Defendant also declared he would not participate in the fifth part of the program, restrictive conditional release, at one point saying death was preferable.
According to Dr. Alumbaugh, the recidivism rates for child molesters does not begin to decline until their late 50s, while recidivism rates for rapists dramatically decline "after 40-ish." Actuarial instruments like the Static-99 do not differentiate between child molesters and rapists when they estimate recidivism rates. In forming her opinion that defendant was likely to reoffend, Dr. Alumbaugh also considered new studies related to the effect of aging on recidivism.
Defense Expert Evaluations
Dr. John Podboy, a psychologist retained by the defense, interviewed defendant in March 2008 and reviewed the relevant records. Dr. Podboy concluded defendant did not meet the criteria for an SVP because he did not qualify for a diagnosis of pedophilia. In support of his opinion, Dr. Podboy noted pedophiles seek visual stimuli related to their target group and their obsession with finding such stimuli creates problems for the staff, and defendant did not display such behaviors in the hospital.
Defendant's refusal to participate in treatment was not evidence of pedophilia, and the success rate of the treatment program was not very good. Dr. Podboy believed defendant's risk of reoffending was "very low" if he was released to the community.
Defense psychologist Dr. Ted Donaldson testified that defendant did not meet all of the criteria under the SVPA, because there was insufficient evidence to support a diagnosis of pedophilia. Dr. Donaldson could not reject the "alternate explanation" for the prior molestations as opportunistic rather than driven by compulsion like pedophilia. Defendant showed no signs of a sexual interest in children since his arrest for the last offense, and refusing to engage in treatment or denying the condition was not evidence of pedophilia. As there was no evidence defendant ever tried to control his behavior, there is "grossly insufficient evidence for a diagnosable mental disorder" as defined by the SVPA.
Dr. Donaldson opined that defendant's risk of reoffending was "very low." Factoring in his age and Static-99 scores, he estimated defendant's risk of recidivism at less than five percent.
Sufficiency of Evidence Claim
Defendant contends there is insufficient evidence that there was a serious and substantial risk of his reoffending. We disagree.
To establish that defendant was a sexually violent predator, the prosecution had to prove beyond a reasonable doubt that he had been convicted of at least two separate sexually violent offenses, he has a diagnosable mental disorder that made him a danger to the health or safety of others, and his disorder makes it likely he will engage in sexually violent predatory conduct if released without treatment. (§§ 6600, subds. (a), (e), 6604); People v. Roberge (2003) 29 Cal.4th 979, 985.) To prove a defendant's likelihood of reoffending, the prosecution need not show he is more likely than not to reoffend, but only that there is a "substantial danger" or "a serious and well-founded risk" that he will do so. (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922-924, italics omitted (Ghilotti).)
Under the SVPA, we review challenges to the sufficiency of the evidence by the substantial evidence standard that applies in criminal cases. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) In reviewing a challenge to the sufficiency of the evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence supporting the verdict. (Ibid.)
Defendant's claim centers on his age. He notes the People's expert witnesses recognized his age placed him in the low to moderate risk category under the static actuarial instruments. In addition, Dr. Alumbaugh acknowledged a study by the Department of Corrections and Rehabilitation (CDCR) from 1997 to 2007 involving 3,557 released sex offenders which yielded a three percent recidivism before factoring for age. Since, according to defendant, "[t]he government experts did not identify anything significant that would alter these percentages," he concludes his chance of reoffending if released was extremely low, probably close to zero, and no higher than 37.7 percent, the high end of the Static-99 reoffense rate. From this, defendant concludes "[n]o rational person could call an event that is on the order of no more than 20 percent probable, and almost certainly well below 20 percent probable '"likely"'" and is thus "'far, far short' of the standard established in Ghilotti."
The People's experts did not rely exclusively on the static actuarial instruments and the CDCR study. In addition to static factors, Dr. Matosich's opinion relied on dynamic factors including defendant's lack of meaningful relationships and the severity of his deviancy. Likewise, Dr. Alumbaugh considered defendant's resistance to treatment and unwillingness to agree to a feasible treatment plan upon release in determining he presented a high danger of reoffending. Dr. Alumbaugh also testified that the Static-99 was just one tool, and at best a moderate predictor of sexual recidivism. She found the CDCR study was of limited relevance because it did not include individuals entering the SVP program during the time period of the study.
The People presented expert evidence that defendant was at substantial risk of reoffending based on actuarial instruments estimating static factors and dynamic factors such as the severity of defendant's deviancy and his unwillingness to be treated or agree to a plan that would protect the public upon his release. Defendant's argument focuses on potential flaws in the actuarial evidence, which is only part of the picture. Defendant does not address the dynamic factors considered by the People's experts in assessing defendant's risk of reoffending. Taking all of the evidence in consideration, we conclude substantial evidence supports the jury's finding that defendant was likely to reoffend.
Defendant contends the amendments to the SVPA in 2006 violated due process and equal protection, as well as the prohibition against ex post facto laws. These challenges are premised largely on changes to the SVPA that eliminated the requirement of a recommitment hearing every two years and instead made sexually violent predator commitments indefinite.
Defendant acknowledges that all of these constitutional arguments were before the California Supreme Court in McKee, supra, 47 Cal.4th 1172. In McKee, the Supreme Court concluded that the SVPA, as amended, "does not violate the due process clause" (id. at p. 1193) and "do[es] not violate the ex post facto clause" (id. at p. 1195). We are bound by McKee on these points (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore defendant's due process and ex post facto challenges to the SVPA are without merit.
On the equal protection issue, however, the Supreme Court in McKee determined that sexually violent predators are similarly situated for equal protection purposes to two other groups of persons committed pursuant to other procedures -- mentally disordered offenders (MDO) committed pursuant to Penal Code section 2960 and criminal defendants found not guilty by reason of insanity (NGI) committed under the Lanterman-Petris-Short Act. (McKee, supra, 47 Cal.4th at pp. 1203, 1207.) The Supreme Court further determined that the People had not yet met their "burden of showing the differential treatment of SVPs is justified." (Id. at p. 1207.) Accordingly, the Supreme Court remanded the case to the trial court to allow the People an opportunity to show "that, notwithstanding the similarities between SVP's and MDO's [and NGI's], the former as a class bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society." (Id. at p. 1208.)
Under McKee, supra, 47 Cal.4th 1172, further proceedings on defendant's equal protection argument are appropriate in this case as well. To avoid unnecessary multiplicity of proceedings, resolution of the equal protection issue should await resolution of the proceedings on remand in McKee, including any resulting proceedings in the Court of Appeal or California Supreme Court.*fn3
The judgment is reversed, and the case is remanded to the trial court for reconsideration of defendant's equal protection argument in light of People v. McKee, supra, 47 Cal.4th 1172 and the resolution of the proceedings on remand in the original McKee litigation. The trial court shall suspend further proceedings in this case pending finality of the proceedings on remand in McKee. "Finality of the proceedings" shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.
We concur: RAYE , P. J. NICHOLSON , J.