(Super. Ct. No. 95F03927)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...