From Casetext: Smarter Legal Research

In re D.W.

California Court of Appeals, Fifth District
Feb 3, 2011
No. F059891 (Cal. Ct. App. Feb. 3, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No. JW087992-01. Jon E. Stuebbe, Judge.

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

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

CORNELL, Acting P.J.

A jury found appellant D.W. fell within the civil commitment provisions of Welfare and Institutions Code section 1800. D.W. contends (1) the evidence was insufficient to establish he had serious difficulty controlling his behavior; (2) trial counsel rendered ineffective assistance in failing to challenge expert testimony; and (3) his civil commitment violates the equal protection provisions of the United States and California Constitutions.

All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

We reject his contentions and affirm the civil commitment order.

FACTUAL AND PROCEDURAL SUMMARY

On September 17, 2009, the Kern County District Attorney filed a petition to extend the civil commitment of D.W. for two years pursuant to section 1800. D.W. waived a preliminary hearing. Trial by jury commenced on March 1, 2010.

Dr. Eduardo Morales, the chief psychiatrist for the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (the DJJ) and mental health director of that agency, testified for the People. In May 2009, Morales conducted a one-hour interview with D.W., commonly known as a section 1800 interview. The purpose of such an interview, according to Morales, is to:

“understand how far the patient has gotten along in treatment. I try to understand how likely he is to re-offend, how likely he is to control any urges that he has, and to what degree he has developed remorse over the offense in question, is there a true desire to change his behavior. I kind of look at all of those things, plus testing to try and give a good recommendation as to whether he is still dangerous.”

Morales opined that D.W. was a pedophile and a sexual sadist who also had engaged in exhibitionism, public masturbation, fetishism, voyeurism, child molestation, rape, and transvestism. Morales stated that D.W. was “acting out sexually quite a bit” and was “pretty disinhibited.” Any substance abuse would make it less likely D.W. would control his behavior.

A couple of days after Morales interviewed D.W., he learned that D.W. had engaged in a homosexual act with another male inmate in a garbage dumpster. Morales opined that D.W. engaging in such an act so close to being released “showed … a great lack of control” by D.W. Morales opined that if D.W. were to be released into the general public, many groups could be at risk because D.W. targeted females, males, boys and girls, and he had not completed the sex behavior treatment program.

Morales acknowledged that he had lost his full report on D.W. and was utilizing his summary and the report of Dr. Wesley B. Maram. Morales admitted his summary and Maram’s report showed only one sexual incident, the dumpster incident, during the prior two years and no incidents of sexual violence.

Morales stated that because of his “uneasiness” with the interview with D.W., he asked Maram to conduct a psychological test on D.W. known as the Abel Assessment (Abel test). Morales had already formed an opinion on D.W.’s condition and wanted to see if the Abel test confirmed his opinion.

Maram, a psychologist since 1984, had testified hundreds of times for both the People and the defense. Maram conducted the Abel test on D.W. and concluded the data supported a diagnosis of pedophilia with children under the age of 14 years. In Maram’s report there were 21 different deviant behaviors that D.W. displayed or reported. On the Abel test, D.W. admitted to 50 incidents of child molestation with 14 different victims between the ages of 6 and 14. He also admitted to 50 acts of sadism involving children and to raping two children. All of these acts occurred between three and 15 years earlier.

D.W. reported being sexually aroused by hurting or degrading his sexual partners and admitted to forcing an adult to have sex with him. On the Abel test, however, D.W. claimed he never had fantasies about inappropriate sexual activities. Maram rated D.W. “severe” on the Abel test danger registry. Maram acknowledged he was not D.W.’s treating physician, but added “research indicates that an independent evaluator that is not a treating provider is more likely to have an accurate prediction of future risk than a treating provider.”

Two psychologists, Laurence Stineford and Peggy Grover-Courtney, testified for the defense. Stineford had been treating D.W. for six or seven years. Stineford opined that D.W. did not meet the criteria for a section 1800 commitment and that two other psychologists in his group concurred with this opinion. Stineford stated D.W. was dangerous, but not impulsive, and there were no significant behaviors indicating D.W. was not in control.

Stineford acknowledged that D.W. was a pedophile and sexual sadist, which qualified as mental diseases or defects under section 1800. Stineford also agreed that D.W. posed a substantial danger of physical harm to others, but disagreed that D.W. would have serious difficulty controlling his behavior.

Stineford conceded D.W. had sex in a dumpster with another ward, but stated the other ward probably was the aggressor and that the behavior did not qualify as “being a dangerous behavior to the community, ” even though the behavior was against the DJJ’s policy. Stineford stated the dumpster incident showed “poor judgment but not impulsivity.”

On cross-examination Stineford admitted that D.W. had lied to him on occasion. He also admitted that he had not reviewed any of the interdisciplinary reports on D.W., his files on D.W. apparently had been thrown out by a cleaning crew, and he had not reviewed any other reports on D.W. Stineford also acknowledged that it was possible for D.W. to conceal from his treatment team serious difficulty in controlling his behavior and that D.W. was considered dangerous because he had not completed his treatment program and lacked sufficient insight.

Grover-Courtney reviewed Stineford’s report and noted it did not include any reference to the dumpster incident. When she spoke with D.W. about the dumpster incident, “[h]e was concerned about it, concerned how it would affect these proceedings.” She had reviewed a report from one of D.W.’s counselors, who noted that D.W. “appears at times to obtain some enjoyment from reliving his past behavior.” Grover-Courtney acknowledged she was not an expert on the Abel test, was surprised that when she met with Stineford to discuss D.W. Stineford never mentioned the dumpster incident, and reviewing Maram’s report did not change her opinion that D.W. did not qualify for section 1800 commitment.

On March 8, 2010, the jury found D.W. continued to pose a danger to the public because of a disorder or abnormality, causing D.W. to have serious difficulty controlling his behavior. D.W. was ordered recommitted pursuant to section 1800.

DISCUSSION

D.W. contends the evidence was insufficient to establish he has serious difficulty controlling his behavior, thus the order for commitment must be reversed. He also claims his trial counsel rendered ineffective assistance by failing to object to the Abel test results and Morales’s testimony. His last argument is that section 1800 violates equal protection and, if committed, he should be housed in a mental health institution, not a juvenile facility.

I. Sufficiency of the Evidence

Section 1800 provides that when the discharge of a person under the control of the DJJ “would be physically dangerous to the public because of the person’s mental or physical deficiency, disorder, or abnormality that causes the person to have serious difficulty controlling his or her dangerous behavior, ” the DJJ shall request that a petition be filed requesting civil commitment. D.W. challenges the sufficiency of the evidence only as to the finding that he has serious difficulty controlling his dangerous behavior, not that he has a mental disorder and engages in dangerous behavior.

When reviewing the sufficiency of the evidence in a section 1800 case, this court considers the record in the light most favorable to upholding the judgment and makes all inferences the trier of fact reasonably could have made to support the finding. (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1503.) In reaching their verdict, jurors must weigh conflicting expert testimony, assigning to it the weight they feel it deserves and disregarding any opinion they find unreasonable. (People v. Smithey (1999) 20 Cal.4th 936, 966.)

In order to commit a person under section 1800, the jury need not find a total lack of control. (In re Howard N. (2005) 35 Cal.4th 117, 129.) The phrase “‘“‘lack of control’”’” does not have a particularly narrow or technical meaning. (Ibid.) Where lack of control is at issue, it “‘“will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior.”’” (Ibid.)

The thrust of D.W.’s argument on appeal is that Morales’s “credibility was suspect” and Maram provided no testimony regarding current dangerousness or inability to control behavior. There is a serious flaw with this argument -- it asks this court to reweigh the credibility of witnesses, which we cannot do.

In applying the substantial evidence standard of review, an appellate court adopts all reasonable inferences and presumes in support of the judgment the existence of every fact that a jury reasonably could have deduced from the evidence. Generally, the testimony of a single witness is sufficient to prove a disputed fact. (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) The trier of fact makes credibility determinations and resolves factual disputes. An appellate court will not substitute its evaluation of a witness’s credibility for that of the fact finder. (People v. Vazquez (2009) 178 Cal.App.4th 347, 352.) An appellate court has the power to disregard testimony found credible by the trier of fact only if it is incredible on its face or inherently improbable. (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.)

Essentially, D.W. is asking this court to accept as credible the testimony of his two experts and reject as inherently improbable the testimony of the People’s witnesses. We decline his request.

Morales testified that D.W. (1) failed to complete the sex offender treatment program, (2) was a diagnosed pedophile, (3) engaged in dangerous sexual behaviors, including sexual sadism, rape, and child molestation, and (4) D.W.’s incident of sex in a dumpster, when that was precluded by the DJJ’s rules, indicated an inability to control his sexual behavior, even in a controlled setting. There is nothing about this testimony that is inherently improbable or incredible.

The jury was presented with voluminous evidence of D.W.’s diagnosed mental disorders and his numerous dangerous and deviant sexual acts. It received conflicting expert opinions on whether D.W. would be able to control his dangerous sexual behavior if released. It was within the province of the jury to accept as credible Morales’s testimony that D.W. having sex in a dumpster, against the DJJ’s rules, and thereby jeopardizing his release, demonstrated an inability to control his behavior. It also was within the province of the jury to reject the opinions of Stineford and Grover-Courtney that D.W. would not be a danger if released.

We conclude Morales’s testimony provided substantial evidence upon which a reasonable jury could find that D.W. would have serious difficulty controlling his behavior. (Young, supra, 34 Cal.4th at p. 1181.)

II. No Ineffective Assistance of Counsel

D.W. claims his counsel rendered ineffective assistance by failing to object to (1) admission of the Abel test results, and (2) Morales’s testimony when Morales’s full report was unavailable.

Generally, appellate courts do not address claims of ineffective assistance of counsel on appeal. Such claims generally should be raised by way of a writ petition. (People v. Pope (1979) 23 Cal.3d 412, 426.) If, however, a party raising a claim of ineffective assistance of counsel can establish that the record discloses no conceivable tactical purpose for counsel’s actions, or failure to act, then a claim of ineffective assistance of counsel will be addressed on appeal. (People v. Hines (1997) 15 Cal.4th 997, 1065.)

D.W. fails to establish that counsel had no valid tactical reasons for his actions, or failure to act, and we reject his claim of ineffective assistance of counsel.

Abel Test

D.W. claims the Abel test results were not admissible because they did not meet the scientific requirement for admissibility under People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Frye). (See People v. Leahy (1994) 8 Cal.4th 587, 594-595 [describing the Kelly/Frye test].) His contention fails for two reasons: (1) the Abel test was not admitted into evidence, and (2) expert medical testimony is not subject to Kelly/Frye. (People v. McDonald (1984) 37 Cal.3d 351, 372-373 [expert medical testimony is not subject to Kelly/Frye].)

Until 1993 this state applied a Kelly/Frye test to scientific evidence. In 1993 the United States Supreme Court held that the Federal Rules of Evidence had superseded Frye and our state law rule is now often referred to simply as the Kelly test or rule. (People v. Bolden (2002) 29 Cal.4th 515, 545.)

Maram testified that he administered the Abel test to D.W. The Abel test in part is a computer-driven test consisting of 160 images that are shown to a subject; the subject is asked to view and rank each of the images on an arousal scale. The other half of the Abel test consists of a comprehensive sexual history questionnaire. After administering the Abel test and analyzing the results, Maram prepared a 10-page report setting forth his findings and conclusions. D.W. has not cited, nor can we find, any indication in the record that the Abel test or Maram’s report was admitted into evidence.

Maram’s testimony addressed the Abel test and his professional interpretation of the results of that test. In People v. Stoll (1989) 49 Cal.3d 1136, the California Supreme Court ruled that expert opinion testimony is not subject to Kelly/Frye. (Stoll, at p. 1157.) Expert opinion testimony includes a psychologist’s interview and professional interpretation of standardized personality tests. (Id. at p. 1140.) When an expert testifies, the “issues of test reliability and validity” can be addressed on cross-examination or by calling expert witnesses to testify in rebuttal. (Id. at p. 1159.)

Counsel was not ineffective for failing to object to the Abel test results because the Abel test results were not subject to Kelly/Frye analysis.

Testimony of Morales

Morales revealed during his testimony that he had prepared a 12-page evaluation of D.W. on a standard form, and the evaluation had been provided to “headquarters.” At headquarters, the 12-page standard form would be condensed into a forensic evaluation summary. Morales explained that he was holding a blank, standard 12-page form that is filled out when doing a section 1800 evaluation. Morales had with him the summary that had been prepared from the 12-page form submitted on D.W. D.W.’s counsel noted the 12-page form had not been produced in discovery. Morales stated he could not locate the form he had prepared on D.W. and that it apparently had been lost.

The trial court ruled that defense counsel could cross-examine Morales about what had happened to the 12-page form and whether the summary accurately represented what was in the 12-page form and he could “do with that whatever he wants.” If the document could not be located, the trial court opined “there’s nothing to be produced.”

D.W.’s counsel asked about a possible instruction limiting Morales’s testimony to what had been produced; the trial court agreed that Morales would have to confine his opinions to what was on the summary and could not refer to anything on the 12-page form.

D.W. contends that his counsel should have requested a jury instruction, such as CALCRIM No. 306, informing the jury that failure to produce the 12-page form could be considered by the jury in evaluating Morales’s testimony, or, alternatively, counsel should have moved to exclude all of Morales’s testimony. We reject D.W.’s contentions for two reasons.

First, assuming CALCRIM No. 306 was appropriate, instructing the jury with this instruction would not have served any purpose not already served by cross-examination of Morales. D.W.’s counsel was not precluded from cross-examining Morales regarding what had happened to the 12-page form, why it had not been produced, or any other line of inquiry regarding the missing 12-page form. If there was any indication the form had been destroyed or hidden, or simply not produced, that would have been uncovered on cross-examination for the jury to hear and evaluate.

Second, any exclusion of Morales’s testimony because a standard form 12-page report could not be located and was not produced would have resulted in a similar exclusion of the testimony of D.W.’s expert, Stineford. Stineford testified that he had lost copies of various reports of his meetings with D.W. and that he had not had a chance to review those reports before testifying. Stineford opined that the cleaning crew in his office apparently threw out the reports.

If Morales’s testimony was excluded because a report could not be located, then Stineford’s testimony would have to be excluded for the same reason. Thus, the record discloses a valid reason for D.W.’s counsel not to have sought to exclude Morales’s testimony.

III. Equal Protection Violation

D.W. contends his commitment under section 1800 violates equal protection in that a commitment to a juvenile facility is a more severe consequence than a commitment to a mental health facility. The California Supreme Court rejected this equal protection challenge to section 1800 in In re Lemanuel C. (2007) 41 Cal.4th 33, 47-49, and we are bound by the holding in that case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

D.W. alternatively requests that this court direct he be committed to a mental health institution instead of a juvenile facility. The People have no objection to placing D.W. in a mental health facility rather than a juvenile facility.

Section 1802 provides that the DJJ “shall have the power, in order to protect other persons in the custody of the department to transfer the custody of any person over 21 years of age to the Director of Corrections for placement in the appropriate institution.” Pursuant to section 1802, D.W. must address his request for transfer to another facility to the DJJ.

DISPOSITION

The commitment order is affirmed.

WE CONCUR: GOMES, J., DAWSON, J.


Summaries of

In re D.W.

California Court of Appeals, Fifth District
Feb 3, 2011
No. F059891 (Cal. Ct. App. Feb. 3, 2011)
Case details for

In re D.W.

Case Details

Full title:In re D.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, Fifth District

Date published: Feb 3, 2011

Citations

No. F059891 (Cal. Ct. App. Feb. 3, 2011)