California Court of Appeals, Fourth District, Third Division
from an order of the Superior Court of Orange County No.
M90013, Steven D. Bromberg, Judge. Reversed and remanded.
Kraft, under appointment by the Court of Appeal, for
Defendant and Appellant.
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.
BEDSWORTH, ACTING P. J.
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.
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
it. When you get right down to it, that's the whole job
of the trial prosecutor: Provide a fair trial.
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.
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.)
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.
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.
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
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.
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.
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.  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.
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.
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
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.)
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.
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
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.
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.
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