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People v. Field

California Court of Appeals, Fourth District, First Division

July 6, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
MARTIN FIELD, Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of San Bernardino, No. FELSS903428 Lorenzo R. Balderrama, Judge.

          Ronald R. Boyer, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

          HUFFMAN, J.

         Martin Field was committed to a mental hospital after a jury found he was a sexually violent predator (SVP) under the Sexually Violent Predators Act (Welf. & Inst. Code, [1] § 6600 et seq. (SVPA or the Act)). Field appeals, contending (1) the court prejudicially erred by failing to provide a certain pinpoint jury instruction; (2) the repeated use of the term "sexually violent predator" during trial violated his due process rights; (3) the court prejudicially erred in failing to properly instruct the jury regarding the meaning of the word "likely"; (4) cumulative error requires reversal; (5) the SVPA violates the equal protection, double jeopardy, due process, and ex post facto clauses of the federal constitution; and (6) his equal protection rights under the state and federal constitutions were violated when the court permitted the District Attorney to call Field as a witness over his objection. Regarding Field's last contention, he argues that because a person found not guilty of crimes by reason of insanity (NGI) may not be compelled to testify at hearings to extend his or her commitment, neither should a person found to be an SVP be compelled to testify.

         We conclude Field's equal protection claim involving testifying at trial may have merit and remand the matter to the superior court for an evidentiary hearing on that issue. We reject Field's other contentions.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. Field's Sexual Misconduct

         Field has a long history of sexual misconduct. In 1972, Field convinced a five-year-old boy that was playing outside to follow Field inside his home. Once inside, Field molested him. Field was convicted of violating Penal Code section 288.

         The following year, Field married a woman named Patricia and lived with her and her three sons, whom he adopted. From around 1974 to 1981, Field molested his adopted son Joseph. Joseph was about five years old at the time Field started molesting him. Field would fondle and orally copulate Joseph and then force Joseph to fondle him. During this time, Field also was regularly molesting one of his other sons, Eric. Field molested Eric over the course of several years, starting when Eric was around four years old. Field forced Eric to submit to and perform oral copulation.

         During this same time period, Field also molested a nine-year-old cousin of Joseph and Eric. Field was convicted of violating Penal Code section 288 for his offenses against Eric. He subsequently was committed to a state hospital for treatment as a mentally disordered sex offender. However, he was kicked out of treatment and sent back to prison because he disregarded the hospital's rules and was "unamenable to treatment."

         After Field was released, Field moved to Montana with his wife and Eric. In 1986, Field was convicted of molesting his young neighbor, who was nine or 10 years old at the time, after he kissed the boy all over his genital area and body. He was sentenced to 16 years in prison with eight years suspended.

         After Field was released for this offense, for the next eight years, Field would have sex with teenage boys in an attempt to "change his sexual attraction" from young boys. The boys were reported to be between 15 and 18 years old. Field claimed they were all over the age of 16.

         Field became a long haul truck driver so that he could reduce his contact with children. While on the road as a truck driver, Field had sex with prostitutes, both male and female, but stated they were all above the age of consent.

         Also, while working as a truck driver Field was at a truck stop when he saw two young children by themselves. He bought them food and gave them money to play video games. When the manager came by and saw Field with the children, he asked Field if he was related to the children. When Field said no, the manager told the children to leave.

         In 1991, Field wrote a letter to Joseph and said that if he had the opportunity, he would molest Joseph's three-year-old son.

         During this time, Field was vocal about his sexual attraction to children.

         In 2006, Field was arrested for possession of amphetamine and controlled substance paraphernalia. While he was in custody, Field started rubbing the leg and genital area of an inmate he was handcuffed to, despite the man's attempts to stop him. The inmate was a young man in his early 20's.

         Field has been housed at Coalinga State Hospital since 2009. He has not participated in treatment there. Between 2012 and 2013, there were three incidents involving Field at the hospital. Field grabbed the hand of another patient and put it on his crotch. Field also gave another patient an enema after the patient asked for one. A nurse was present outside the open door while Field gave the patient an enema. Finally, Field kissed the forehead of a demented, older male patient and put his arm around him. Field claimed the patient needed some support.

         At the time of his trial, Field was 63 years old. He planned to return to work as a truck driver if released.

         Prosecution's Experts[2]

         Drs. Erik Fox and Preston Sims are licensed psychologists who testified for the prosecution. Both worked as SVP evaluators for the Department of State Hospitals, and evaluated Field to determine whether he met the statutory criteria for civil commitment as an SVP. The applicable criteria consists of: (1) was the individual convicted of a qualifying sexually violent offense; (2) does the individual have a diagnosable mental disorder predisposing him to commit criminal sexual acts; and (3) is the individual likely to commit future predatory sexually violent acts.

         Dr. Fox reviewed Field's medical and criminal records as well as his sexual history. He found that the 1972 and 1981 convictions were qualifying offenses under the SVPA. Based on his review of Field's "long history of having an arousal to children and acting on that arousal, " he diagnosed Field with pedophilic disorder, alcohol dependence, amphetamine abuse, and a personality disorder. Dr. Fox explained that pedophilic disorder is a lifelong condition that cannot go into remission. Given that Field's numerous convictions, incarcerations, and attempts to receive treatment did not deter his criminal conduct, Dr. Fox opined that Field's pedophilic disorder caused him serious difficulty controlling his behavior.

         Dr. Sims also diagnosed Field with pedophilic disorder. Dr. Sims noted that, as recently as 2006, Field had told his probation officer that he was a pedophile and, in 2009, he also told his evaluators that he was sexually attracted to children. He also noted that although Field was only convicted for his sexual offenses as to one of his adopted sons, Field had since admitted that he molested all three. Dr. Sims opined that Field was sexually preoccupied and that, given the frequency of his offenses and convictions, Field had emotional and volitional impairment.

         Both doctors opined that, as a result of his mental disorder, Field was likely to engage in sexually violent predatory behavior if released. They based their opinions, in part, on the use of the Static-99R, an actuarial tool used to assess an offender's risk of recidivism. Both doctors independently scored Field as a six on the diagnostic scale, which placed him in the high risk category. Field's risk score placed him within a group of offenders that have a 29.4 percent recidivism risk within a five-year period, which Dr. Fox opined was a "substantial" risk.

         Defense Expert

         Dr. Mary Jane Alumbaugh, a licensed psychologist, evaluated Field and testified in his defense. She diagnosed Field with pedophilic disorder; however, she opined that Field did not have serious difficulty controlling his pedophilic behavior. She based her opinion on the fact that Field is getting older and explained that recidivism literature shows a decline in sexual offenses as a person ages. She noted that Field's last offense was in 1987 and that during the time he was in the community, between periods of incarceration or commitment, he did not offend against children. Using the Static-99R assessment tool, Dr. Alumbaugh scored Field with a three, which put him in the "low/moderate risk category." Based on these considerations, Dr. Alumbaugh opined that Field was not likely to reoffend, and thus that he was not an SVP.

         DISCUSSION

         I

         SVPA

         We need not provide a detailed explanation of the SVPA as the California Supreme Court has done that on numerous occasions. (Reilly v. Superior Court (2013) 57 Cal.4th 641, 646 (Reilly); In re Lucas (2012) 53 Cal.4th 839, 845; People v. McKee (2010) 47 Cal.4th 1172, 1183, 1185 (McKee I); People v. Roberge (2003) 29 Cal.4th 979, 982, 984 (Roberge); People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 893, 902 (Ghilotti).)

         Suffice it to say, the SVPA provides for indefinite involuntary civil commitment of certain offenders who are found to be SVP's following the completion of their prison terms. (McKee I, supra, 47 Cal.4th at pp. 1186-1187.) Except for nonsubstantive differences in grammar, the SVPA tracks verbatim the Kansas SVP law approved in Kansas v. Crane (2002) 534 U.S. 407 (Crane), and Kansas v. Hendricks (1997) 521 U.S. 346 (Hendricks). (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1157 (Hubbart).) Section 6600, subdivision (a)(1), states: " 'Sexually 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."

         To establish that a person is an SVP, the prosecution is required to prove the following: (1) the offender has been convicted of a qualifying sexually violent offense against at least two victims; (2) the offender has a diagnosed mental disorder; (3) the disorder makes it likely the offender would engage in sexually violent conduct if released; and (4) this sexually violent conduct will be predatory in nature. (Roberge, supra, 29 Cal.4th at pp. 984-985.) The prosecutor must establish these elements beyond a reasonable doubt and the jury verdict must be unanimous. (Reilly, supra, 57 Cal.4th at p. 648.)

         II

         JURY INSTRUCTIONS

         Field raises two issues regarding jury instructions. First, he claims the trial court prejudicially erred in refusing to provide a pinpoint instruction telling the jury that Field's mental diagnosis must cause him serious difficulty controlling his behavior. Second, Field contends the court did not properly instruct the jury as to the definition of "likely." We reject both contentions.

         A. The Requested Pinpoint Instruction

         Prior to trial, Field filed a motion requesting the trial court to provide the jury with the following pinpoint jury instruction modifying CALCRIM No. 3454:

         "In order to find that Respondent meets the criteria as a sexually violent predator, as that term is described in these ...


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