APPEAL from an order of the Superior Court of San Diego County, Robert F. O'Neill, Judge. (Super. Ct. No. MH105284)
The opinion of the court was delivered by: Huffman, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In 2007, a jury found that Michael Poulsom did not qualify as a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (the Act or SVPA). (Welf. & Inst. Code,*fn2 § 6600 et seq.) After two subsequent parole violations, the San Diego County District Attorney filed a petition alleging that Poulsom was an SVP under the Act. The jury found the petition's allegations true and the trial court ordered Poulsom committed to Coalinga State Hospital for an indefinite term. Poulsom timely appealed the order.
Poulsom raises multiple issues on appeal. He contends that substantial evidence does not support the court's determination that probable cause existed for this matter to proceed to trial. In addition, he argues that substantial evidence does not support either of the jury's findings of (1) a changed material circumstance after the jury found him not to qualify as an SVP in 2007 or (2) Poulsom's current difficulty controlling his criminal sexual behavior. Poulsom also argues his due process rights were violated because the court limited his number of peremptory challenges to six. He next asserts that his commitment to an indeterminate term under the Act violates his equal protection rights. Finally, Poulsom contends the trial court erroneously instructed the jury.
We conclude none of Poulsom's contentions has merit and affirm the order. We determine substantial evidence supports both the jury's finding of a material change in circumstance and its true finding that Poulsom qualifies as an SVP under the Act. We also conclude that neither Poulsom's due process rights nor his equal protection rights have been violated. In addition, we find no instructional error.
We publish a portion of this opinion to address a few issues. First, we clarify our holding in Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1060 (Turner) on which Poulsom heavily relies in arguing the jury's finding of material changed circumstances since Poulsom's 2007 trial is not supported by substantial evidence. As we discuss in more detail below, in Turner, we did not list the types of facts that are required to support a change in circumstance. Instead, we determined that the People must show, usually through their expert witnesses, what has changed since the last trial and how those changes prove the defendant is likely to reoffend. (Ibid.)
Second, we publish our discussion of Poulsom's posttrial challenge of the court's finding of probable cause to remind defendants that the proper procedure for challenging a probable cause determination based on a lack of evidence is through a petition for writ of habeas corpus. If a defendant waits to challenge a court's probable cause finding for insufficient evidence until after trial, then we will only review his claim under a harmless error standard. Because the People's burden of proof is higher at trial than the burden guiding a court in determining if probable cause exists, it is highly unlikely that any posttrial attack on a probable cause determination based on substantial evidence will be successful if brought, in the first instance, on appeal after the jury's true finding.
Finally, we publish our discussion of Poulsom's claim that he was entitled to 20 peremptory challenges. In concluding his claim lacks merit, we follow the holding of People v. Calhoun (2004) 118 Cal.App.4th 519 (Calhoun).
FACTUAL AND PROCEDURAL HISTORY
First Predicate Act and Conviction (1985 Offense)
In 1984, Poulsom worked as a correctional officer in Georgia. His wife, whom he married in 1982 after knowing her for only a week, had two children, an infant and a two year old. During his time off from work, Poulsom babysat his wife's children and her nieces, C.S., age 8, and P.K., age 9. On multiple occasions, Poulsom molested C.S. and P.K. Poulsom put his hands down the girls' pants, orally copulated them, digitally penetrated them, and forced them to have sexual intercourse with him. Poulsom once threatened to hit one of the girls with a belt if she did not comply.
In 1985, Poulsom was arrested and ultimately convicted in Montgomery County, Georgia, by way of plea bargain, of an offense that is the equivalent of committing lewd and lascivious acts on a child under the age of 14. Poulsom was sentenced to five years in prison. He served two years in custody and the remaining three years under conditional release.
Second Predicate Act and Conviction (1989 Offense)
Poulsom separated from his wife after the 1985 offense and moved to San Diego. One night, Poulsom went into his daughter*fn3 C.P.'s bedroom, lay on her bed, removed her underpants, got on top of her, and orally copulated her. C.P. asked Poulsom to stop because he was hurting her. C.P. finally managed to get away from Poulsom. She ran into the kitchen and hid in a cupboard until her mother came home. Later that evening, Poulsom went back into her bedroom, kneeled by her bed, and masturbated until he ejaculated. On two other occasions, Poulsom touched C.P.'s vagina. C.P. was seven years old at the time of the incidents.
On October 13, 1989, Poulsom was convicted in San Diego County Superior Court, by way of plea bargain, of committing lewd and lascivious acts on a child under the age of 14. The court sentenced Poulsom to prison for eight years.
Third Predicate Act and Conviction (1995 Offense)
Shortly after his release from prison for the 1989 offense, Poulsom started dating a woman with a five-year-old daughter, J.A. Although Poulsom told his girlfriend he was on parole for a narcotic offense, the woman asked Poulsom to baby-sit J.A. after she noticed a lot of children interacting with Poulsom. During the two weeks he acted as a babysitter, Poulsom repeatedly removed J.A.'s clothes and inserted his finger into her vagina. He moved his fingers around while ordering J.A. to sit still. Poulsom told J.A. not to say anything.
On June 30, 1995, Poulsom was convicted in San Diego County Superior Court, by way of plea bargain, of committing lewd and lascivious acts on a child under the age of 14. The court sentenced Poulsom to prison for 15 years.
On August 7, 2007, Poulsom was released on parole after serving his sentence for the 1995 offense. Poulsom signed conditions of parole, which included a requirement that he "not be within 100 yards of the perimeter of places where children congregate (schools, parks, playgrounds, video arcades, swimming pools, etc.) without DAPO [Dept. of Adult Parole Operations] approval." Matthew Holmes was Poulsom's parole agent. Holmes told all of his parolees, "If you have any doubt in your mind whether or not you're supposed to be doing [something] or allowed to be doing [something], call first and ask permission."
On August 20, 2007, Holmes reviewed information from Poulsom's global positioning system ankle monitor (GPS). It showed that on Saturday, August 18, Poulsom was at Wells Park in El Cajon from 10:01 a.m. to 10:14 a.m. Holmes never received a call from Poulsom notifying him Poulsom was there. Holmes went to the area to investigate. The park was in the middle of a residential area. The park had softball fields, basketball courts, and a playground. A Boys and Girls Club and a parking lot were adjacent to the park. There were two Boys and Girls Club signs -- a large banner on top of the building and a small one attached to the side. The signs were clearly visible from the one entrance to the facility.
After speaking with his supervisor, Holmes instructed Poulsom to report to the parole office. He asked Poulsom why Poulsom was at the park. Poulsom said that he was there for a light bulb exchange hosted by SDG&E and that he stayed in the car. He said he noticed the park, but not the Boys and Girls Club. Holmes asked Poulsom why he had not called with any concerns about being in a park. Poulsom said he thought about calling, but decided against it. Holmes took Poulsom into custody for violating parole. Poulsom served a 10-month sentence for the violation.
On November 3, 2009, William Erholtz, owner of a small business known as E.R. Designs, hired two workers through Labor Ready to do some work for him. Poulsom was one of the workers. The work was near the Samburu playground and terrace of the San Diego Wild Animal Park*fn4 and consisted of placing shade cloths over play structures and statues in a children's play area. A nearby sign said, "Caution: Play surfaces can be hot during high temperature days." The work was close to a lunch area, which was open. The workers put up a temporary barricade between themselves and the public, which consisted of 3.5 feet poles, wired together. Six inches of space separated each pole. Occasionally, a parent approached the workers, and asked them what they were doing and when they would finish.
The work started at around 7:30 or 8:00 a.m. and ended at 4:00 p.m. The workers entered through the guard shack at the back entrance. They passed signs which read "Samburu Jungle Gym," "San Diego Wild Animal Park Service and Deliveries," and "Elephant Overlook, Tiger Gardens." They also passed a picture of an elephant, a couple of animal exhibits, and a balloon ride. Poulsom never told Erholtz he was a sex offender, was not allowed in the area, or had to leave because it was a prohibited location.
At the time, Robert White was Poulsom's parole agent. Poulsom wore a GPS device that he was required to charge for one hour every 12 hours. Poulsom failed to properly charge the device on April l3, 2009, May 2, 2009, August 17, 2009, September 8, 2009, September 15, 2009, October 13, 2009, and November 3, 2009. As a consequence, White was unable to properly monitor Poulsom's location.
The afternoon of November 3, White was in the field conducting routine home visits. He checked Poulsom's GPS tracks to see if Poulsom was home. The GPS tracks showed that Poulsom was inside the Wild Animal Park, a prohibited area. White signaled Poulsom's GPS, telling Poulsom to call him, which Poulsom did, sometime between 2:30 and 3:00 p.m. White asked Poulsom where he was. Poulsom said he was working for Labor Ready at a job site in Escondido, digging trenches and laying concrete pipe. Poulsom said he thought he was at a private residence just outside of Escondido. White asked Poulsom to be more specific about his location. Poulsom said he would have to get the address from his employer, and he would give it to White the following day. White looked at an aerial map and saw that Poulsom was clearly inside the Wild Animal Park.
White told Poulsom to report immediately to the Escondido parole office and gave him directions. Instead of reporting, Poulsom returned to Labor Ready in El Cajon, picked up his paycheck, deposited it in the bank, and then drove to Escondido. Poulsom arrived at the parole office after 5:00 p.m. Poulsom told White he was at a job site through Labor Ready and did not know where he was.
White found it difficult to believe Poulsom could drive through the elephant enclosure and past the Wild Animal Park signs, without knowing his location. Moreover, Poulsom had White's cell phone number and never called to see if he could remain on site once he discovered where he would be working.
Psychologist Dawn Starr, Ph.D., believed that Poulsom met the SVP commitment criteria. She diagnosed Poulsom with pedophilia, nonexclusive type, because over a period of at least six months, Poulsom had recurrent, intense, sexually arousing fantasies, urges, or behaviors toward children under age 13. Starr concluded that because of Poulsom's mental disorder, he presented a serious and well-founded risk of committing future sexually violent predatory acts. Starr testified that none of the "protective factors" that would decrease risk existed in Poulsom's case. Specifically, Poulsom was never in the community for more than a year without a new offense. Poulsom didnot have serious medical problems, and Poulsom was under the age of 70. Moreover, given Poulsom's history of dishonesty and manipulative behavior, he would not follow through with voluntary outpatient sex offender treatment.
In Starr's opinion, Poulsom had serious difficulty controlling his behavior. She noted that when she spoke to Poulsom about molesting his daughter, he said he was glad he got caught, because if it was not her, it would have been someone else. He also said that before he touched her, he had fantasies about doing so. Poulsom went to a sex offender treatment program for two or three months as a condition of his 2007 parole. Starr asked Poulsom what he learned from treatment, and Poulsom could not articulate anything in particular. Poulsom told Starr he did not have the ability or desire to attend further sex offender treatment. Moreover, despite the consequences of his conduct (i.e., incarceration), Poulsom committed repeated offenses. Poulsom gave several reasons why he molested girls, telling Starr that they have "soft little bodies," he was "curious," he acted on "impulse" or "opportunity," and he wanted "self-gratification." At one point he blamed his victims, claiming they put his hands down their pants.
Poulsom also told Starr he tried to ignore his thoughts about girls, but realized he could not do that; he had to address or otherwise deal with them. Poulsom felt his time in custody for the parole violations should be short, if at all. In connection with the 1995 offense, Poulsom admitted he was sexually aroused and had an erection.
Starr also testified that Poulsom's wife Sonja, who married him after he was incarcerated for the 1995 offense, was not likely to recognize his risk for sexual reoffense or help lower it. On the contrary, she enabled Poulsom to be in situations where he was likely to reoffend and made excuses for Poulsom. For instance, when Starr interviewed Poulsom about the 2007 parole violation, Poulsom said he was with Sonja. They realized they were near a park and should call Poulsom's parole agent, but they both forgot.
Starr opined that Poulsom's circumstances had changed since the 2007 jury verdict finding him not to be an SVP. In 2007, Poulsom went to a light bulb exchange. The exchange was next to a Boys and Girls Club and a park. There was a large sign outside of the club. Poulsom told Starr he thought no children were there. Starr found this highly unlikely given the fact Poulsom was there on a Saturday morning. Poulsom then failed to report the violation to his parole agent.
Then, on November 3, 2009, Poulsom violated parole again by working at the Wild Animal Park. During his interview with Starr, Poulsom claimed the park was expanding and they were putting up posts for a new animal exhibit so the animals would have shade. Starr asked Poulsom if he went through the park. Poulsom said that was the only way to get to the job site.
Starr noted that both violations involved Poulsom placing himself in situations where there was a high probability he would have contact with children. Starr believed Poulsom should have contacted his parole agent and left the locations immediately. When Starr asked Poulsom why he did not leave the locations, he had no explanation. Moreover, as to the 2009 incident, Starr was troubled that Poulsom took three hours to report to the parole office and showed up after it was closed, despite instructions to report immediately. Poulsom also had a history of failing to charge his GPS, leaving his parole agent without the ability to track him.
Psychologist Robert M. Brook, Ph.D., also evaluated Poulsom. He diagnosed Poulsom with pedophilia, nonexclusive type, because Poulsom had sexual fantasies about children under age 13 that had lasted at least six months. Brook opined that Poulsom's mental disorder predisposed him to commit future crimes, i.e., it caused volitional impairment. Poulsom had repeatedly committed sexual offenses and possessed limited insight into his behavior. He had opportunities to correct what he was doing, but chose not to do so. At the time of his crimes, he had age appropriate, consenting sex partners, but opted to prey on young girls. He dropped out of sex offender treatment and refused to further pursue treatment. He told one evaluator he dropped out because he did not want to confront his feelings. He also said he had no need for treatment. His lack of control was further demonstrated by his statement that if his daughter had not been available to molest, he would have found someone else. In 2006, Poulsom said that if he could have sex as often as he wanted, he would have it every day. Brook explained that higher sexual drive increases one's risk to molest again. Poulsom had difficulty describing the adverse effects of his conduct on the victims.
Poulsom estimated his risk of reoffense at "zero." Brook explained if a pedophile does not recognize at least some risk, he will not avoid situations which might be triggers for new crimes. Poulsom told one evaluator he needed to stay away from places where children congregate, such as parks, yet told another he likes to walk in the park.
Lastly, Brook considered the change in Poulsom's circumstances since the 2007 jury's not true finding. Brook was concerned that Poulsom had two parole violations centered on issues relating to sexual molestation: he was in areas frequented by children. In 2007, only six weeks after his release from prison, he went with his wife and her daughter to a light bulb exchange at a park. He did not need to be there; his wife and her daughter could have participated in the exchange without him. He then did not report the event to his parole agent. He admitted he thought he should, but claimed he forgot. Brook noted that this violation represented high risk behavior close to the time Poulsom was released from prison.
Brook also based his belief of changed circumstances on the 2009 parole violation. Brook was concerned by Poulsom's reaction to his work assignment at the Wild Animal Park. Poulsom's parole agent told him that when he finished work at 3:00 p.m., he should report. Poulsom instead arrived at 6:00 p.m., after the parole office was closed. Poulsom claimed he did not have transportation because his car was in El Cajon. However, once in El Cajon, Poulsom went to pick up a pay slip and then went to the bank. According to the parole agent, Poulsom never called and explained why he would be late. Poulsom lied during his interview with Brook, claiming he called at 4:30 p.m. Brook noted that when told to report, Poulsom could have taken a taxi, asked for a ride, or called his parole agent and requested transportation. By being at the Wild Animal Park, Poulsom was in obvious violation of the conditions of his parole.
Brook noted that Poulsom also violated parole several times by failing to properly charge his GPS device. On each occasion, his parole agent could not track Poulsom's location. Brook explained that his opinion regarding changed circumstances was based not on the parole violations alone, but rather on the conduct which led to them. The violations showed Brook that Poulsom does not pay attention to very important guidelines. Also, Brook stated Poulsom was evasive and put himself in risky situations. Brook explained that a lack of cooperation with supervision (as shown by Poulsom) is a factor which is recognized as being related to the risk of reoffense.