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People v. Force

California Court of Appeals, Fourth District, Third Division

August 29, 2019

THE PEOPLE, Plaintiff and Respondent,
STEVEN FORCE, Defendant and Appellant.

          Appeal from an order of the Superior Court of Orange County No. M90013, Steven D. Bromberg, Judge. Reversed and remanded.

          Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski, Deputy Attorney General, for Plaintiff and Respondent.



         Our criminal justice system has only one absolute requirement: the accused must receive a fair trial. As this case demonstrates, prosecutors' understanding of their burden to provide such a trial is more important than their understanding of the burden of proof. And more demanding.

         Judges and juries bear the responsibility of identifying what justice requires. They must decide, through their verdicts and judgments, the outcome of the trial. The prosecutor's job is to provide them the platform for their decisions by presenting the evidence against the defendant clearly and fairly.

         That's it. When you get right down to it, that's the whole job of the trial prosecutor: Provide a fair trial.

         Enforcing the law, protecting the public, supporting crime victims, any phraseology you choose for other aspects of criminal prosecution are subsets of that one job. It's not about convictions, it's not about courtroom mastery, it's not about prison sentences. And it's certainly not about won/lost records. It's about fair trials. Fairness is the sine qua non of the criminal justice system, and no amount of technical brilliance or advocative skill can make up for a failure to provide it.

         The National District Attorneys Association phrases it somewhat differently, adding appropriate eloquence, but the focus is - significantly - aspirational; the goal of the prosecutor is phrased not in terms of obtaining convictions but of seeking justice: “The primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth.” (Nat. Dist. Attys. Assn., National Prosecution Standards (3d. ed. 2009), § 1-1.1.)

         Human systems are not capable of perfection, so we cannot guarantee the criminal defendant justice, although we seek it in every case. But we can - and have - promised fairness. And the prosecutor's job is to fulfill that promise.

         A prosecutor who gives the defendant a fair trial has completed that task, no matter the outcome. Successful prosecution is defined not by the result, but by the process.

         That's not to say it's an easy job. It is not. It is suited only to people who are capable of handling exceptional stress, complicated legal issues, and difficult judgment calls. We are fortunate in this state that our legal history has been informed and shaped by ethical and honorable prosecutorial agencies.

         But we still encounter cases where a prosecutor has lost sight of the one paramount goal: fairness. That's a failure. Acquittals are not failures. Unfair trials are.

         This is such a case. The prosecutor here took his eyes off the prize just long enough to commit misconduct in a way that requires reversal. We publish that reversal not to pillory him, but as a reminder of the unrelenting vigilance and ethical clarity required daily of prosecutors if they are to fulfill our nation's promise of a fair trial.

         Appellant Steven Force is a sexually violent predator (SVP; Welf. & Inst. Code, § 6600, subd. (a)(1)) who is currently receiving treatment at a state mental hospital for pedophilia and exhibitionism. He challenges the trial court's order denying his petition to be placed in the conditional release program known as CONREP. [1] According to appellant, he was denied a fair trial because the prosecutor interfered with his right to testify, and the trial court erroneously refused to admit his release plan into evidence. We agree with both contentions. Accordingly, we reverse the trial court's order and remand the matter for a new trial.


         Having been sexually abused as a child, appellant began committing sex crimes himself when he was a teenager. In 1980, at the age of 21, he exposed himself to a girl on a playground and pressed his erect penis against her buttocks. When the girl tried to get away, he grabbed her arm and made her touch his penis. This resulted in his commitment to Patton State Hospital, where he was treated as a mentally disordered sex offender for two years. In 1985, a few years after he was released, he forced an eight-year-old girl to orally copulate him in an elevator. He served three years in prison for that offense. After he was paroled, he got married in the hope of turning his life around, but ended up molesting his wife's young relatives and found himself sentenced to 20 years in prison.

         Appellant served half of that term before being transferred to Coalinga State Hospital, where he was committed as an SVP. In 2010, he exposed himself to a nurse at Coalinga, and in 2015, his petition for conditional release was denied. He filed the present petition for conditional release two years later, in 2017.

         At trial on the petition, appellant waived his right to a jury. He did not dispute he has a sexual disorder and has committed the predicate offenses to satisfy the first two criteria for his continued commitment at Coalinga. Thus, the only issue before the court was whether appellant could be placed in CONREP without jeopardizing public safety; more precisely, whether there was a serious and well-founded risk he would commit a sexually predatory offense if placed under the supervision of CONREP. (See Welf. & Inst. Code, § 6608, subd. (g); People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.)

         There was conflicting testimony on that issue. Dr. Hy Malinek, a clinical and forensic psychologist, testified appellant was ready for CONREP, even though he had only participated in Coalinga's sex offender treatment program (SOTP) for two years. That program has four modules: 1) treatment readiness, 2) skills training, 3) skills application and 4) community integration, which starts with CONREP. Appellant completed the first two modules but was rejected for advancement to module three because the review panel felt he had yet to fully process his prior offenses and because, by his own admission, he was still having “fleeting thoughts” about sex with children.

         Despite this setback, Dr. Malinek believed appellant was doing very well in treatment. He noted that, in addition to participating in the SOTP at Coalinga, appellant had taken a number of ancillary classes to help him cope with his sexual disorders. In Dr. Malinek's opinion, these classes have enabled appellant to improve his empathy, problem solving and impulse control. He acknowledged appellant still needs work in these areas, especially since he scored in the high-risk group on the Static-99R recidivism test. However, Dr. Malinek found it significant that appellant has been well behaved - a “model patient” by most accounts - since he exposed himself to the nurse in 2010. All things considered, Dr. Malinek felt appellant could be safely maintained at CONREP.

         Dr. Jeannie Brown, a psychologist who has been involved in appellant's SOTP, shared this view. She felt appellant would do well in CONREP because he has meaningfully applied himself in the SOTP at Coalinga, and CONREP is a highly-structured program that has proven very effective for its patients. Indeed, the evidence was undisputed that no one has ever reoffended in a sexually violent manner while they were in the program.

         Nevertheless, the director of CONREP and three other psychologists who evaluated appellant did not consider him a suitable candidate for conditional release. These witnesses expressed concern about appellant's high score on the Static-99R and his inability to advance to module three in the SOTP. They were also troubled by the fact appellant has minimized his sexual history at times, has admitted committing numerous sex crimes that were never reported (mostly of a voyeuristic nature), and has conceded he was at risk of reoffending if he did not monitor his emotions closely.

         In ruling on appellant's petition, the trial judge recognized appellant had made excellent progress in the two SOTP modules he had completed thus far. But the judge felt appellant had not yet progressed to the point where he could be safely released into CONREP. In that regard, the judge made it clear appellant's failure to make it into module three of the SOTP was a concern for him. “From what I'm gathering, ” he said, “people are in these modules for an extended period of time, years, before they're released. And there seems to be a good reason for it. These are stepping stones. And the good news is California has all of that available.” “I have a sense that once [appellant is] in mod three, if he gets ...

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