California Court of Appeals, Fourth District, First Division
from a judgment of the Superior Court of San Bernardino, No.
FELSS903428 Lorenzo R. Balderrama, Judge.
R. Boyer, under appointment by the Court of Appeal, for
Defendant and Appellant.
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.
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,  § 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.
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.
AND PROCEDURAL BACKGROUND
Field's Sexual Misconduct
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.
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.
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
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.
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.
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.
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.
1991, Field wrote a letter to Joseph and said that if he had
the opportunity, he would molest Joseph's three-year-old
this time, Field was vocal about his sexual attraction to
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.
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
time of his trial, Field was 63 years old. He planned to
return to work as a truck driver if released.
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.
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.
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.
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.
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.
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).)
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."
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.)
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.
Requested Pinpoint Instruction
to trial, Field filed a motion requesting the trial court to
provide the jury with the following pinpoint jury instruction
modifying CALCRIM No. 3454:
order to find that Respondent meets the criteria as a
sexually violent predator, as that term is described in these