Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. ZM006140, Lee Smalley Edmon, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth N. Sokoler and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Erick Avila appeals from an order committing him to the California Department of Mental Health following a jury determination that he was a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6600. Appellant contends: (1) the findings that he currently suffers from a diagnosed mental disorder that makes him a danger to the health and safety of others were not supported by substantial evidence; (2) the trial court made several erroneous evidentiary rulings; and (3) as given, CALCRIM 3454 was inadequate. We affirm.
All undesignated statutory references are to the Welfare and Institutions Code. The current version of section 6600 did not become effective until November 8, 2006. Since Appellant’s trial took place in August 2006, all references to section 6600 are to the version of that statute in effect at the time of trial.
I.
OVERVIEW OF THE STATUTORY SCHEME
Section 6660 et seq. is known as the Sexually Violent Predators Act. The act defines an SVP as “a person who has been convicted of a sexually violent offense against two 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.” (§ 6600, subd. (a).) The purpose of the act is to protect “society from, and [provide] treatment for, that ‘small but extremely dangerous group of sexually violent predators’ who have diagnosable mental disorders identified while they are incarcerated for designated violent sex crimes, and who are determined to be unsafe and, if released, to represent a danger to others through acts of sexual violence. [Citation.]” (Garcetti v. Superior Court (1999) 76 Cal.App.4th 685, 688 (Garcetti); see also Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1166-1167 (Hubbart).)
The act accomplishes this purpose by setting forth a procedure whereby a prison inmate, who is determined beyond a reasonable doubt to be an SVP, is committed to the custody of the State Department of Mental Health for confinement and treatment for an additional two-year term beyond the end of that person’s prison term. (§§ 6601, 6604.) If, at the end of the first two-year term, the person is determined still to be an SVP, the act provides for successive two-year commitments. (§ 6604.1.)
Although it is the District Attorney who brings a petition for commitment as an SVP, proceedings under the act are civil in nature. (Hubbart, supra, 19 Cal.4th at pp. 1166-1167.) Commitment nevertheless requires the People to prove beyond a reasonable doubt that the person meets the criteria of an SVP. (§ 6604; People v. Flores (2006) 144 Cal.App.4th 625, 632 (Flores); see also People v. Mercer (1999) 70 Cal.App.4th 463, 465-466 (Mercer) [construing former § 6601, subd. (a)].)
II.
PROCEDURAL BACKGROUND
In November 1995 appellant was sentenced to 17 years in prison following his conviction of the forcible rapes of Blanca C. and Jacqueline M. A month before his March 25, 2003, parole date, the People filed a petition to have appellant committed as an SVP. On August 1, 2006, the jury found beyond a reasonable doubt that appellant was an SVP.
Appellant filed a timely notice of appeal.
III.
FACTS
We recite the facts in accordance with the usual rules on appeal from a commitment under section 6600, reviewing the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the jury’s verdict. (People v. Fulcher (2006) 136 Cal.App.4th 41, 52 (Fulcher).)
A. The People’s Case
Since SVP proceedings are civil, a defendant may be called as a prosecution witness. (People v. Leonard (2000) 78 Cal.App.4th 776, 792-793.)
Appellant, born in Guatemala to a 15-year-old single mother, described a violent childhood in which he both witnessed his mother and grandmother being physically abused by the men in their lives and in which he himself was subjected to physical abuse. Appellant came to believe that it was acceptable for a man to physically assault a woman, but not to sexually assault a woman.
Appellant also mentioned being “touched” by the lady who did the family’s laundry.
When appellant was nine years old his mother, step-father and half-brother moved to the United States while appellant remained with his grandmother in Guatemala. At 13, appellant reunited with his family in Los Angeles. At 14, he joined a street gang and committed various crimes with them. At 15, he was arrested for possession of heroin for sale; although he sold drugs, he never used alcohol or drugs because of the violent way he saw people behave when under the influence.
Appellant had his first sexual experience when he was 15, with a girl to whom he used to sell drugs. When appellant discovered that she was a prostitute, he stopped seeing her. His second sexual experience occurred when he was 18. The year long relationship ended because, among other reasons, the girl’s mother opposed it. The girl was pregnant when they separated but the mother told appellant that she miscarried. Appellant did not know whether this was true because the girl and her mother moved away.
A few months later, when appellant was 19, he began dating Sylvia, who was then 16. Appellant’s relationship with Sylvia lasted three years and she was the mother of his son. The relationship deteriorated as a result of financial problems. When Sylvia was seven months pregnant, appellant was arrested for battering her. In 1989, after they were apart, appellant was arrested for raping Sylvia. Appellant maintained that the sex had been consensual but claimed Sylvia accused him of sexual assault because she was angry that appellant was not helping her financially.
The record suggests that defendant was not convicted of any charges arising out of the incidents with Sylvia.
Appellant’s next relationship was with Nellie, the 14-year-old daughter of appellant’s mechanic. This relationship began in 1989 and lasted about three years, during which time Nellie gave birth to appellant’s two daughters. It also ended because of financial problems. Before the relationship ended permanently in June 1992, at times they lived separately and appellant was seeing other women.
Appellant testified that the first time he was “unfaithful” to Nellie was when he hugged and kissed a female deputy while he was in jail for stealing a car. Appellant believed the deputy wanted him to kiss her because she talked to him, asked him to clean her office, allowed him to get closer to her than the three foot distance deputies usually maintained between themselves and inmates, and asked him if he thought she was pretty. Appellant knew there were rules against fraternization and he could suffer negative consequences from other deputies and other inmates.
On August 10, 1991, two gang members shot defendant multiple times at close range. At about the same time, his car was vandalized. After these incidents, appellant rewired his car alarm system so that the manual door locks could be operated electronically by a remote control device that appellant kept on his person. When he purchased another car a few months later, he equipped it with a similar locking device. Appellant disabled the car’s manual locking system by removing the locking pins, making the locks operable only by remote control.
In the course of his testimony, appellant provided the following details of the various incidents with his sexual victims.
a. The Blanca C. Rape
In September 1991, appellant was working at a swap meet and living in a converted garage while Nellie was living with her mother. He struck up an acquaintance with Blanca, who worked in the next booth. In December 1991, on the second occasion that Blanca accepted a ride home from appellant, he brought her to an Asian restaurant despite her stated desire to go directly home to her parents. Afterwards, he parked a few blocks from her home and asked her to be his girlfriend. Blanca declined. As she was getting out of the car appellant got close to her and she pushed him away. Angry that she had put her hands on him, appellant pushed Blanca back into the car, slapped her in the face and then raped her. When it was over, he brought Blanca to the apartment where he used to live with Nellie, cleaned himself and made Blanca clean herself. When he later dropped Blanca off near her home he threatened to kill her if she became pregnant and had an abortion.
b. The Iris B. Incident
In May 1992, appellant met 15-year-old Iris. They exchanged phone numbers. About a month later, Iris accepted a ride from appellant, who drove Iris to where she was supposed to meet her mother. When they arrived at the location and Iris saw her mother waiting for her, she told appellant to keep driving – apparently because she did not want to be seen with appellant. Appellant drove a few blocks and then parked. Iris told him that she was not interested in being in a serious relationship but was not opposed to “scamming,” which appellant understood to mean sex. After hugging and kissing for about an hour, appellant drove Iris to his converted garage apartment where they had consensual sex. When the homeowners got home that night, appellant felt he could not leave the apartment with Iris because he was not allowed visitors. The next day, appellant carried Iris in a cardboard box to his car and the two drove off. Iris never said she wanted to leave appellant’s apartment. Appellant never threatened her or told her that she was not free to go. Appellant later was arrested for raping Iris. Charged with multiple counts, he eventually pled no contest to having sex with a minor and served five months in county jail. He was released in November 1992.
Prior to trial, appellant moved to exclude any evidence of the dismissed charges involving Iris, arguing the evidence was not relevant to the qualifying crime element of the SVP petition. The People countered that the evidence was relevant to whether appellant had a mental disorder that predisposes him to commit criminal sexual acts and to the likelihood he will reoffend. The motion was denied.
c. The Jacqueline M. Rape
A few weeks after he was released from jail, appellant met Jacqueline at the McDonald’s restaurant where she worked as a drive-through cashier. Eventually, they exchanged telephone numbers. After twice declining appellant’s offer of a ride home, Jacqueline agreed to accompany appellant and his daughter to a park. After appellant dropped off his daughter with her mother, Jacqueline asked to be taken home but appellant refused. Instead, he drove her to a secluded area in Griffith Park where he parked and asked Jacqueline to be his girlfriend. She declined. Appellant refused her repeated requests to be taken home. Instead, as he did with Blanca, appellant took Jacqueline to an Asian restaurant. On the way to Jacqueline’s home from the restaurant, appellant pulled over and demanded a “good night kiss” as a condition of taking her home; Jacqueline complied. When appellant parked in front of Jacqueline’s house they started kissing again. But when Jacqueline slapped him after he touched her breast, appellant drove a few blocks away and raped her, then drove her home. A day or two later, appellant called Jacqueline and made plans to meet her with the intention of apologizing. Unbeknownst to appellant, it was a set up, and he was arrested.
Following trial, he was convicted of raping both Blanca and Jacqueline. While in prison, appellant did not receive any sex offender therapy. While awaiting trial in the SVP proceedings, appellant was interviewed by a number of doctors. His attorney provided him with copies of their reports.
2. Testimony of Dr. Harry Goldberg
The People’s expert witness was Dr. Harry Goldberg, a clinical and forensic psychologist. Goldberg had performed between 350 and 400 SVP evaluations, finding that about 45 percent of the subjects met SVP criteria.
Goldberg interviewed appellant and reviewed police reports, felony complaints, abstracts of judgments, probation reports, appellate proceedings and the Department of Corrections file relating to appellant’s crimes against Iris, Blanca and Jacqueline.
The diagnostic tool Goldberg used was the Diagnostic and Statistics Manual of Mental Disorders (DSM-IV) which sets forth the criteria of the various mental disorders recognized by the psychological community. In this case, he found appellant suffered from the mental disorder described in the DSM-IV as “paraphilia,” a subcategory of which is paraphilia involving non-consenting persons. People with the disorder are aroused by seeing a victim “in the throes of trauma or suffering or not complying with a request for sex.” The disorder may be persistent or episodic but it is, in any event, chronic, which means that, although a person may learn to cope with it, the disorder is still extant.
In part, the DSM-IV defines “paraphilia” as “recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving . . . nonconsenting persons, that occur over a period of at least six months (Criterion A). . . . The behavior, sexual urges, or fantasies cause clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criterion B).” (Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) pp. 522-523.) The DSM-IV does not expressly include rape as a paraphilia.
Goldberg concluded that appellant suffered from “paraphilia, not otherwise specified, nonconsensual sexual activity” (“paraphilia N.O.S.”). Goldberg acknowledged the existence of some controversy over applying the paraphilia N.O.S. diagnosis to rape offenses.
Goldberg testified that appellant is not merely an opportunistic rapist. Rather, appellant creates the opportunity to commit rape by luring the women into his car. Goldberg characterized appellant as a “power rapist,” i.e. one who enjoys exerting control over his victim. For example, he locked Blanca, Iris and Jacqueline in his car, taunted and humiliated each, physically abused them when they resisted sexual intercourse, and then raped them.
Although appellant characterized his sexual activity with Iris as consensual, she described it as rape. See text, part III, A, 4, post.
Goldberg was familiar with the manual “Evaluating Sex Offenders,” written by Dennis Doren (“the Doren Manual”). Goldberg opined that appellant met six out of the nine criteria listed in the Doren Manual for differentiating between paraphilia and other non-consensual sex. Goldberg disagreed with the Doren Manual’s assertion that (1) a rapist who shows little attention to the plight of his victim suffers only from a personality disorder and not from paraphilia; and (2) it was more likely that a person with a criminal history consisting of only rape offenses suffered from paraphilia. Goldberg opined that a person could suffer from paraphilia and anti-social personality disorder simultaneously.
As described by one of appellant’s experts the nine guidelines are: (1) the person is aroused by the nonconsensual nature of the acts; (2) the person seems to be following a “script;” (3) the person’s criminal history includes only sex offenses; (4) the person would have forced sex even if the victim consented to sex; (5) a short time between sex crimes; (6) circumstances in which it is likely the person will be caught in the act; (7) the person has cooperative sexual partners at the time he rapes; (8) there are various types of victims; and (9) the person maintains a “rape kit” (i.e., handcuffs, rope, duct tape, etc.).
Goldberg believed the fact appellant was aroused despite the non-consensual nature of the acts was one indicator of paraphilia in this case. Goldberg agreed with the Doren Manual that some people have such distorted perceptions that they do not see that what they are doing is non-consensual. But such a distorted perception does not undermine a diagnosis of mental disorder that makes the person a danger because the inability to distinguish between consent and non-consent would lead to repetition of the conduct.
Goldberg’s diagnosis was bolstered by evidence that appellant kissed and hugged a female deputy because it shows that appellant acts in a sexually deviant manner even when living in the highly structured prison environment. That appellant was accused of rape four times in four years indicates that his condition is not episodic; i.e., triggered by stressors such as financial difficulties, etc., but is persistent.
When Goldberg reevaluated appellant in June 2006, it was obvious that appellant had read Goldberg’s prior reports and took issue with his conclusions. Appellant no longer denied raping Blanca and Jacqueline, but continued to maintain that the encounter with Iris was consensual. Appellant told Goldberg that he had an anger problem, not a sexual problem.
Using generally accepted actuarial tools, Goldberg testified that the likelihood appellant will reoffend is demonstrated by, among other things, the relatively short time span between the rapes of Blanca, Iris and Jacqueline.
3. Testimony of Jacqueline M. and Blanca C.
Jacqueline’s and Blanca’s testimony from appellant’s rape trial was read into the record. Both women also testified at the SVP trial. Both women were familiar with appellant before the rapes and both voluntarily got into his car – Blanca to be driven home from the swap meet and Jacqueline to go to the park. Both later found themselves trapped in the car, unable to open the doors or windows. Both asked to be taken home and were instead forced to accompany defendant to a restaurant. Both were brutally raped after declining appellant’s invitation to be his girlfriend.
Appellant called Blanca as a witness.
At the rape trial, Blanca testified that, after the assault appellant said “every time somebody would be with me that I would never see anybody’s face but his.” He also told her to “be grateful that someone had laid a hand on me” and called her ugly and fat. She felt degraded and humiliated. She also testified in the rape trial that appellant had threatened to kill her if she became pregnant and had an abortion.
4. Testimony of Iris B.
At the SVP trial, Iris testified that she was 15 years old when, about a month after she first met appellant, she accepted his offer of a ride from school to meet her mother. As they approached Iris saw her mother waiting and Iris instructed appellant to drive around the corner so she could avoid being seen with him. Appellant parked a few blocks away, and when Iris tried to leave, she found it impossible to open the door. Ignoring her request to be let out, appellant drove Iris to a converted garage apartment. He demanded that Iris take a shower and put on some clothes, and then he raped her. Later, he forced her to orally copulate him. When appellant left Iris alone in the apartment while he went to get some food, he took the telephone with him. Iris tried to leave but the door was locked from the outside. Although she heard people in the attached house, Iris was too afraid to call for help. The next day, appellant took Iris out of the apartment by hiding her in a cardboard box. Appellant dropped Iris off near her friend’s house. Iris’s case never came to trial because appellant pled guilty to statutory rape.
B. Appellant’s Case
1. Testimony of Gerardo Gomez
Gerardo Gomez is a chaplain for the Catholic Archdiocese assigned to the Twin Towers Correctional facility. When he first met appellant in 2003, appellant was a very angry man. In weekly meetings, Gomez tried to act as a sounding board. When appellant told Gomez about his sexual offenses, appellant seemed sad and remorseful. Gomez gave appellant some workbooks dealing with treatment of persons charged with sexual abuse. Gomez also saw appellant with books on anger management. In the last year, Gomez had noticed that appellant seemed less angry.
2. Testimony of Blanca C.
Blanca, whose testimony from appellant’s rape trial was introduced in the People’s case, was called as a witness by appellant. She testified that, prior to the rape, she and appellant were good friends. He seemed charming. The day she accepted a ride from the swap meet, she said she had to go directly home because her parents would worry. She did not want to go with appellant to the restaurant, but he insisted that it would be a quick stop. Back in the car, appellant promised to take her home if she kissed him. When Blanca declined, appellant slapped her. Blanca tried to get out of the car but found the doors and windows locked. Appellant drove to a parking lot and raped her.
On July 4, 2005, Blanca wrote a letter to appellant because she was seeking closure; she wanted to know why appellant had chosen her as his victim. Blanca wrote: “14 years, and I still don’t understand why, why you didn’t know my feelings for you, or was it you chose to disregard them? We were friends, and perhaps it could have been more. . . . Do you remember when we used to say if you take care of me, I’ll take care of you? I trusted you, and I believed in those words. Then in a split moment, you destroyed our friendship, my feelings. Why? I would truly appreciate if you would answer these questions for me. You are under no obligation to respond. However, if you do, I thank you. Blanca.”
3. Testimony of Appellant’s Sister & Mother
Appellant’s sister was a graduate psychology student. She had discussed with appellant his plans to live in Guatemala upon his release from prison and she intended to help him financially for the first month. At appellant’s request, she had looked up psychologists in Guatemala who could treat “dealing with re-integrating into society, stress, anger management, with the grieving process.” Those were the only treatment topics she researched. She had located 10 doctors and determined that their fees were about $10 or $20 per session.
Appellant’s mother confirmed appellant’s description of his childhood in Guatemala and Los Angeles. If appellant were released from prison, he would return to Guatemala to live with his maternal grandmother.
4. Testimony of Dr. Raymond Anderson
One of appellant’s two expert witnesses was clinical and forensic psychologist Dr. Raymond Anderson. Anderson testified that he had done about 110 SVP evaluations; of those, he found about 24 percent met the criteria. He has testified only for respondents in SVP cases.
Anderson assessed appellant for “preferential rape disorder.” According to Anderson, few rapists suffer from the disorder, the main characteristic of which is an admission by the person that he has strong and frequent urges to rape. Anderson testified that there is no consensus in the psychological community as to the symptoms of the disorder; the DSM-IV does not list any criteria for it. Anderson did not assess appellant for paraphilia N.O.S. of non-consenting persons because he believes there is no such diagnosis. Anderson believes that paraphilia N.O.S. is not applicable to assessment of rape offenders. Even assuming paraphilia N.O.S. was applicable to rape offenders, appellant does not qualify because he has no internal disorder predisposing him to commit rapes; rather, the rapes he committed were based on “criminal decisions.”
But SVP commitments have been supported by paraphilia N.O.S. diagnosis. (See e.g., People v. Williams (2003) 31 Cal.4th 757, 761 [SVP commitment based on paraphilia N.O.S.]; People v. Burris (2002) 102 Cal.App.4th 1096, 1110 [SVP commitment based on paraphilia involving rape and antisocial personality disorder]; People v. Butler (1998) 68 Cal.App.4th 421, 430, 442 [SVP commitment based on paraphilic N.O.S.].)
Instead of the DSM-IV, Anderson used a battery of other diagnostic tools to assess appellant for preferential rape disorder. Based on these tests, Anderson concluded that appellant did not suffer from this disorder because appellant “denied having any strong urges or fantasies about forcing women into sexual contact.” Conceding that appellant could be concealing the characteristic urges, Anderson opined that other testing data supported Anderson’s conclusion. For example, persons with the disorder usually: (1) have a criminal history of only rape offenses and only stranger rapes; (2) have committed a great number of rapes; (3) employ ritualistic elements in their attacks; (4) prefer coercive, not consensual sex; (6) spend no time with the victim before the rape (i.e., the rape begins immediately); and (7) premeditate the rape. Appellant had none of these characteristics. Anderson characterized appellant as self-absorbed and sensitive to other people using him, but insensitive to the feelings of other people. At the time of the offenses, appellant thought he had the victims’ implied consent “[s]o he was going to complete the act even though, in his mind, they broke it off and they broke an implicit promise. So he was going to punish them. So the anger and his distorted view of the situation combined to create the rape offense.” Anderson opined that the testing “strongly indicated that [appellant’s] offenses were probably situational offenses in the past. . . . The analysis of the details of the offense behavior also strongly suggests situational offender status. So in my opinion, this is a very clear case of somebody who made a criminal decision to commit rape offenses and does not suffer from a preferential rape disorder.”
Anderson also testified that appellant’s potential for reoffending was low. He explained that appellant currently “has actually very little pinned up anger. He has some but not nearly enough to cause that kind of distortion. He is still self-absorbed, but he’s not to the degree – he’s not even in the improvement desirable range. He’s in the acceptable range.” Appellant has a “more accurate social perception now, he would be less of a threat, but unfortunately, threat analysis has to depend on statistics that do not, at this time, take into account those personal functioning aspects.” Anderson concluded that, statistically, appellant has a 7 percent chance of reoffending.
Anderson testified that the Static 99, the actuarial tool used by the People’s expert (Goldberg), is inapplicable to this case because it covers all sex offenses, not just serious sex offenses; is based on old cases from outside of the United States; is prone to over-prediction and false positives; and is not generally accepted in the forensic psychological community as a predictor of reoffending.
5. Testimony of Dr. Hy Malinek
Appellant’s second expert witness was clinical and forensic psychologist Dr. Hy Malinek. Malinek had performed about 300 SVP assessments; of those, he found about 40 percent met the criteria for SVP. The 40/60 ratio was consistent with statewide statistics.
Malinek explained that “paraphilia” is a sexual deviation disorder which can be characterized by “urges, fantasies about sex with nonconsenting people.” “Paraphilia N.O.S.” is the diagnosis used for a paraphiliac rapist; i.e., a person driven to have nonconsenting sex, sexual intercourse or other forcible acts of sex. It is a chronic, lifelong condition, although it may decrease in intensity with age.
In assessing whether a person is an SVP who suffers from paraphilia N.O.S., the details of the predicate offenses must be analyzed to differentiate between paraphilic rape (i.e., sexually deviant rape) and “an impulsive, thoughtless act that is not necessarily reflective of an internal predisposition” to commit rape. Malinek explained that people with anti-social personality disorder may commit violent crimes, including sexual offenses, but an anti-social personality disorder does not predispose the sufferer to commit sexual offenses, as opposed to any other crime. Anti-social personality disorder and paraphilia are not mutually exclusive and a person may suffer from both simultaneously.
The diagnostic tools Malinek used to evaluate appellant were the Doren Manual, the MMPI II and the PCLR. He considered the details of the rapes of Blanca and Jacqueline, for which appellant was convicted. He did not consider the rape accusations relating to Sylvia and Iris because appellant was not convicted of forcible rape of either woman. Malinek was not persuaded otherwise by Iris’s testimony at the SVP trial because the arrest report and Iris’s own contemporary statement to the police raised doubts about the credibility of her accusations.
Malinek concluded that appellant suffered only from anti-social personality disorder and did not meet the criteria for a separate paraphilia N.O.S. diagnosis. He gave three reasons for this conclusion. First, the circumstances in which the crimes were committed gave them the characteristics of “date rapes” which “typically are not considered to be reflective of a paraphilia, of a sexual deviation driven to rape nonconsenting women or become [sic] excited because they don’t want – or by their nonconsenting behavior to the sex.” Malinek explained that at least 75 percent of paraphilic rapists “target a stranger or someone they don’t know very well.” Second, paraphilic rapists “try to perpetuate or act in accordance with a fantasy,” but this did not appear to be the case when appellant attacked Blanca and Jacqueline. Third, there was no indication that appellant was aroused by the non-consensual nature of the acts relating to Blanca and Jacqueline. On cross-examination, however, Malinek conceded that appellant’s conduct toward his victims could be interpreted to fit the criteria of paraphilia: even assuming the encounters began consensually (i.e. as a “date”), they became non-consensual as soon as the appellant refused to take the victims home; the similarity of the circumstances of each offense (offering the victim a ride, coercing her to accompany appellant to a restaurant, asking her to be his girlfriend, coercing her to kiss him and then raping her when she refused) could be seen as appellant living out a fantasy; that appellant was able to penetrate the victims despite their fighting back could indicate that he was aroused by the non-consenting nature of the encounter.
Malinek testified that appellant exhibited the contra-indications to paraphilia listed in the Doren Manual. For example, the evidence showed that appellant was trying to “court” the victims and believed the encounters were consensual. However, Malinek also testified that, in the context of paraphilia, “grooming” consists of trying to establish a relationship with the victim with the plan of victimizing her later and is considered to be predatory behavior.
Since Malinek concluded that appellant did not have a sexual deviation disorder, Malinek could not say whether appellant would reoffend as a result of a mental disorder. “All in all, I did not believe there was evidence in this case that [appellant] is likely to sexually recidivate.” But Malinek did not use any actuarial tools to assess appellant’s risk of re-offense. Conceding that the Static 99 is considered the best actuarial tool available, Malinek testified that he did not administer it to appellant; however, Malinek “calculated it on [his] own.” He gave appellant a score of 6 on the Static 99, which put appellant in a high risk category. But Malinek believed that this score was artificially inflated because it took into account the multiple sex crimes appellant was charged with relating to Iris, whereas he was convicted of only one statutory rape offense in that case. Malinek conceded, however, that the Static 99 is generally believed to underestimate the risk of re-offense because (1) it does not account for sex offenses that are not detected or reported and there is general agreement on under-reporting of sex offenses; and (2) it does not consider all the relevant risk factors associated with recidivism.
DISCUSSION
A. Substantial Evidence Supported the Findings
Upon a claim of insufficiency of the evidence to satisfy the statutory criteria for commitment as an SVP, we review “ ‘the whole record most favorably to the judgment to determine whether there is substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.’ [Citation.]” (Flores, supra, 144 Cal.App.4th at p. 632.) The credibility and weight of expert witness testimony is for the jury to resolve. (Ibid.; see also Mercer, supra, 70 Cal.App.4th at p. 465.)
To establish that a person is an SVP, the People were required to prove four elements beyond a reasonable doubt: (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. (§§ 6600, subd. (a)(1); 6604; Cooley v. Superior Court (2002) 29 Cal.4th 228, 246, fn. 9.) On appeal, appellant challenges only the sufficiency of the evidence of the second and third elements.
1. Substantial Evidence Supports the Finding That Appellant Currently Suffers From a Diagnosed Mental Disorder
Appellant contends the finding of current diagnosed mental disorder is not supported by substantial evidence. He points to the fact that the People’s expert Goldberg: (1) conceded that there were contra-indications to the diagnosis of paraphilia, (2) credited Iris’s version of events even though appellant was convicted only of statutory rape, and (3) could not say whether appellant would have forced the victims to have sex if they had otherwise consented.
By statute, a “diagnosed mental disorder” includes “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).) Due process requires that the triggering mental condition consist of “a volitional impairment” rendering the person dangerous beyond his or her control. (Hubbart, supra, 19 Cal.4th at p. 1157, citing Kansas v. Hendricks (1997) 521 U.S. 346, 358 (Hendricks).) It is not necessary to prove total lack of control; it is enough to prove the person has “serious difficulty” in controlling his dangerous behavior. (Kansas v. Crane (2002) 534 U.S. 407, 413 (Crane).)
In Hubbart, supra, 19 Cal.4th at page 1162, our Supreme Court explained that “a person cannot be adjudged an SVP unless he ‘currently’ suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior, and which ‘makes’ him dangerous and ‘likely’ to reoffend. (§ 6600, subd. (a).)” Present mental impairment may be shown by evidence of prior dangerous behavior. (Id. at p. 1163.)
Here, the experts had conflicting opinions as to whether appellant currently suffered from a mental disorder within the meaning of the act. The People’s expert, Goldberg, and appellant’s expert, Malinek, agreed that paraphilia is a life-long, chronic disorder. Although Malinek believed that appellant was not suffering from the disorder (and appellant’s other expert, Anderson, believed there was no such disorder), Goldberg opined that appellant was currently suffering from paraphilia N.O.S. His opinion was based on his interviews with appellant, the results of various psychological tests, and the evidence of appellant’s history of sexual offenses. That appellant had not committed any rapes in the past 14 years did not change Goldberg’s opinion because it was most likely attributable to the fact that appellant had been incarcerated the entire period. Goldberg was entitled to credit Iris’s version of events even if appellant’s experts did not. The jury resolved the disagreement in the evidence against appellant’s experts and in favor of Dr. Goldberg’s testimony. Drawing all reasonable inferences in favor of the judgment, as we must, we conclude that Goldberg’s testimony constituted substantial evidence that at the time of trial appellant currently suffered from a diagnosed mental disorder.
2. Substantial Evidence Supports the Finding That Appellant’s Diagnosed Mental Disorder Makes Him a Danger to the Health and Safety of Others
Appellant contends the finding that a diagnosed mental disorder makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent criminal behavior (i.e. reoffend) was not supported by substantial evidence. He argues that paraphilia is a “descriptive title for certain behaviors” and “if the symptoms go away because the afflicted person has learned to cope with the behavior, he or she no longer has a disorder which will make [him or her] do anything.” As we understand appellant’s argument, it is that, based on Goldberg’s testimony that “[i]t’s hard to predict at this point whether he gets out now whether he will be still as persistent or it will be episodic at this point,” there is necessarily a reasonable doubt as to whether appellant will reoffend. We disagree.
Using generally accepted actuarial tools, Goldberg testified that there is a high likelihood that appellant will reoffend. Although not curable, Goldberg opined that paraphilia “may remiss to some degree [with age]. . . .” Goldberg attributed this to the fact that people in their 50’s and 60’s simply have a diminished sex drive. Goldberg rejected the notion that appellant, who was 38 at the time of trial, was then in remission, reasoning that “he hasn’t had the opportunity to commit these crimes. It’s hard to gauge whether he still has these needs and desires. If he would submit to treatment, he could have undergone some testing which could help assess that dynamic. But he didn’t, so it’s hard to know.” Goldberg testified that the persistence of the disorder in appellant’s case was demonstrated by the fact that appellant was accused of rape four times in four years. That appellant had hugged and kissed a female deputy sheriff bolstered Goldberg’s opinion of the disorder’s continuing nature because it meant that appellant acted out even in the highly structured jail environment.
Although he concluded that appellant did not suffer from a mental disorder, Malinek, using the same actuarial tool used by Goldberg, also calculated that appellant fell into the high risk to reoffend category.
Contrary to appellant’s characterization, Goldberg did not testify that it was hard to know whether appellant was currently likely to reoffend. Viewed in the light most favorable to the judgment, Goldberg’s testimony established that paraphilia is a chronic condition the symptoms of which may be treated, but there was nothing to show that appellant had received treatment for the condition and testing revealed that appellant was likely to reoffend. Goldberg’s testimony constitutes substantial evidence that appellant currently suffers from a mental disorder that makes him likely to reoffend.
C. No Error In Evidentiary Rulings
Appellant contends the trial court erred in excluding evidence of the reason appellant intended to return to Guatemala upon his release (because he was being deported) and that treatment was unavailable while he was in prison. He also contends that the trial court erred in failing to exclude evidence that defendant was shot by gang members. We find no merit to these contentions.
Only relevant evidence is admissible and, with certain statutory exceptions, all relevant evidence is admissible. (Evid. Code, §§ 350, 351.) Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid., Code § 210.) The trial court has discretion to exclude even relevant evidence, the probative value of which is substantially out weighed by the probability that its admission will confuse the issues. (Evid. Code, § 352.) We review the trial court’s evidentiary rulings for abuse of discretion. (People v. Mayo (2006) 140 Cal.App.4th 535, 553.)
1. No Error In Excluding Evidence That Appellant Would Be Deported to Guatemala If Released
Prior to trial, the People moved pursuant to Evidence Code section 352 to exclude any evidence that appellant would be deported to Guatemala if released. Appellant countered the evidence was relevant to the likelihood appellant would reoffend and his amenability to voluntary treatment. The People clarified that they had no objection to appellant testifying that he intended to go to Guatemala and what treatment he intended to obtain there, but evidence that he would be deported to Guatemala was more prejudicial than probative because of its potential to turn the trial into a referendum on immigration and deportation policies. The trial court excluded the evidence. Appellant contends that this was an abuse of discretion because the evidence was relevant to explain “why appellant’s plans involved Guatemala and whether appellant constituted a danger, otherwise the jury would speculate as to why appellant chose to leave here and return to a place he left when he was 13 years old.” We find no error.
In People v. Rains (1999) 75 Cal.App.4th 1165, the court held that the consequences of a “true” finding in an SVP proceeding (e.g., that the offender would be committed to a hospital for two years and receive treatment) was not relevant to the issues to be decided – whether the defendant had a diagnosed mental disorder and whether it is likely that he would engage in sexually violent criminal behavior if released.
In People v. Calderon (2004) 124 Cal.App.4th 80 (Calderon), a defense expert was precluded from testifying as to the type of involuntary treatment the expert recommended for the appellant if he were found not to be an SVP and released. (Id. at pp. 87, 89.) The appellate court affirmed, reasoning that the evidence had the potential to confuse the jury, which “might have found appellant not an SVP merely because appellant promised to participate in the involuntary conservatorship program, which promise is unrelated to the question presented to the jury. If no unanimous verdict could be reached finding appellant an SVP, [footnote omitted] the court would have no choice but to release appellant at the end of his prison term, unconditioned on whether he would eventually be subject to the conservatorship. To avoid such a severe consequence, it has been well established that a jury should not consider what will happen as a result of its verdict. [Citation.]” (Id. at p. 91.) The court in Calderon observed, since the excluded evidence implicated the consequences of the jury verdict, it contradicted CALJIC No. 17.42, which instructed the jury to not discuss or consider the consequences that may be imposed on the appellant as a result of their verdict. (See also CALCRIM No. 200 [“You must reach your verdict without any consideration of the consequences of your decision.”].)
Although the focus in Calderon was on the type of future treatment the defendant in that case might receive, the appellate court’s concern for jury confusion is present here as well. Evidence that appellant would be deported if released was not relevant to the issues to be decided: whether appellant suffered from a mental disorder and whether he was a danger to others. The trial court reasonably could have concluded that the testimony might have improperly influenced the jury to find appellant was not an SVP because, if deported, he would no longer pose a threat to the local community. Because the evidence was likely to interject irrelevant consideration of United States immigration policy into the case, the trial court did not abuse its discretion in excluding it.
2. No Error In Excluding Appellant’s Testimony That Sex Offender Treatment Was Not Available to Him In Prison
Appellant contends the trial court improperly excluded on hearsay grounds evidence that sex offender therapy was not available to him while in prison. He argues that appellant’s testimony that he was told that sex offender therapy was not available to him in prison was not hearsay. We find no error.
Evidence of a statement made other than by a witness while testifying at the hearing and offered to prove the truth of the matter stated is inadmissible hearsay. (Evid. Code, § 1200.)
Here, appellant and the prosecutor engaged in the following colloquy: “[THE PROSECUTOR]: At any point in your lifetime, have you received any sex offender therapy? [¶] [THE APPELLANT]: We’re not allowed to receive nothing -- [¶] [THE PROSECUTOR]: The question is have you received any sex offender therapy at any point in your life? [¶] [THE APPELLANT]: No. I was denied it. [¶] [THE PROSECUTOR]: The question is have you received it? [¶] [THE APPELLANT]: No.” The trial court subsequently sustained hearsay objections to questions intended by appellant’s counsel to elicit appellant’s testimony that he was told that he could not participate in sex offender programs because of his prison classification as a gang member.
During deliberations, the jury asked: “For sexual rapist in prison, was treatment available for him? If so, did he deny it.” The trial court responded by telling the jury: “You have received all of the relevant evidence in this case and you may not speculate as to anything you have not heard.” We note that, in a discussion outside the presence of the jury, appellant’s counsel suggested that appellant had elected not to participate in a program at Atascadero for reasons of trial strategy.
Appellant argues the relevancy of the excluded evidence – to counter Goldberg’s testimony that the fact appellant had not participated in sex offender therapy was a significant factor in Goldberg’s opinion that he would not be amenable to out-patient treatment – but does not explain why he believes the evidence did not constitute hearsay or if it falls within some exception to the hearsay rule. By failing to develop the point, we deem it waived. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) Even if improper hearsay was admitted, any error would have been harmless. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1526 [no reasonable probability of a different result had the evidence been excluded].) Appellant testified he was denied treatment in prison, there was no evidence that appellant refused treatment, and any error in excluding further testimony on the subject undoubtedly caused no prejudice.
3. No Error In Admitting Evidence That Appellant Was Shot By Gang Members
Appellant contends the trial court prejudicially erred in admitting evidence that appellant “was shot 10 times in front of his apartment by gang members.” He argues that the only relevancy of this evidence was to impeach appellant and, as such, it was improper examination on a collateral matter. We disagree.
Appellant objected only on relevance grounds. Accordingly, any argument that the evidence was more prejudicial than probative has been forfeited. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015.)
We accept appellant’s basic legal proposition that “[a] party may not cross-examine a witness upon collateral matters for the purpose of eliciting something to be contradicted. [Citations.] This is especially so where the matter the party seeks to elicit would be inadmissible were it not for the fortuitous circumstance that the witness lied in response to the party’s questions.” (People v. Lavergne (1971) 4 Cal.3d 735, 744.) But that is not the situation here.
Here, appellant testified that rape was punishable by death in gang culture. Goldberg testified that whether a person rapes despite experiencing social and occupational dysfunction is a factor to be considered in diagnosing paraphilia N.O.S. He also testified that an “unstable lifestyle as displayed by criminal activity” was a factor in evaluating the likelihood of reoffense.
The prosecutor attempted to impeach appellant’s SVP testimony about the circumstances of the gang shootings by introducing contrary testimony from appellant’s preliminary hearing. The court sustained appellant’s initial relevancy objection. But after a recess, appellant did not object when the prosecutor introduced excerpts of appellant’s prior testimony on different subjects, including that he considered his assailants were “friends;” just before the shooting he discussed with them “going out and mugging people;” he was armed that day because he “always” felt he had to have something with which to defend himself; and he became a gang member at the age of 12. Without objection from appellant, the trial court took judicial notice that this was appellant’s testimony at the preliminary hearing.
Assuming appellant’s argument has been preserved on appeal, the evidence was relevant for impeachment and substantively. From evidence that appellant raped Blanca, Iris and Jacqueline even though he knew rape was punishable by death in gang culture and despite his personal experience with the ruthlessness of gangs as a result of the shooting, the jury could reasonably infer that it was appellant’s paraphilia disorder that compelled him to rape despite the risk of gang retribution. Evidence that appellant was armed and planning with other gang members to commit robberies immediately before he was shot suggests he is engaged in a criminal lifestyle and therefore likely to reoffend.
D. Modified CALCRIM 3454 Was Legally Adequate As Given
Appellant contends that, as given, CALCRIM 3454 was inadequate for several reasons. We disagree.
We note that, with one exception not relevant here, the instructions were jointly agreed upon by appellant and the People. The court gave a modified version of CALCRIM 3454, as follows:
As in a criminal trial, the trial court in an SVP proceeding must instruct on the general principles of law that are necessary to the jury’s understanding of the case. (People v. Roberge (2003) 29 Cal.4th 979, 988.) We review instructional errors under the harmless beyond a reasonable doubt standard. (People v. Hurtado (2002) 28 Cal.4th 1179, 1194 [failure to instruct on need to find likelihood of future predatory acts was harmless beyond a reasonable doubt], citing Chapman v. California (1967) 386 U.S. 18.)
1. Omission of Language Regarding a Currently Diagnosed Mental Disorder Was Harmless Error
The form CALCRIM 3454 instruction includes the following sentence: “You may not conclude that ____ is a sexually violent predator based solely on his alleged prior convictions without additional evidence that he currently has such a diagnosed mental disorder.” (Italics added.) Appellant complains that the trial court prejudicially erred by omitting the italicized phrase. We agree it was error but conclude that the error was harmless beyond a reasonable doubt.
See also CALJIC No. 4.19, which reads in part: “However, you may not find respondent to be a sexually violent predator based on prior offenses without [relevant] evidence of a currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior [unless confined within a secure facility].”
“[A] court fulfills its duty of instructing the jury by defining the elements of a crime in the language of the statute. [Citation.] The rule is subject to the qualification, however, that the ‘trial court must instruct on general principles of law that are . . . necessary to the jury’s understanding of the case.’ [Citation.]” (Calderon, supra, 124 Cal.App.4th at p. 92.)
Section 6600, subdivision (a)(1) defines an SVP as “a person who has been convicted of a sexually violent offense against two 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.” Subdivision (a)(3) provides: “Jurors shall be admonished that they may not find a person an [SVP] based on prior offenses absent relevant evidence of a currently 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.”
“While past qualifying sex crimes are used as evidence in determining whether the person is an SVP, a person cannot be so adjudged ‘unless he “currently” suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior, and which “makes” him dangerous and “likely” to reoffend. [Citation.]’ [Citation.] ‘[T]he statute clearly requires the trier of fact to find that an SVP is dangerous at the time of commitment.’ [Citation.]” (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1289, italics omitted.)
Pursuant to CALCRIM 3454, the jury was instructed that the People were required to prove beyond a reasonable doubt the following three elements: “1. [Appellant] has been convicted of committing sexually violent offenses against one or more victims; [¶] 2. He has a diagnosed mental disorder; and [¶] 3. As a result of that diagnosed mental disorder, he is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavior.” (Italics added.) We conclude that, although the trial court should have also instructed that the jury that they could not conclude appellant was an SVP without “additional evidence that he currently has such a diagnosed mental disorder[,]” the failure to do so was harmless beyond a reasonable doubt. First, by stating the statutory criteria in the present tense (has a mental disorder, is a danger to the health and safety of others, is likely to engage in sexually violent predatory behavior)the instructions clearly communicated to the jury that the People had to prove that defendant was currently suffering from a diagnosed mental disorder. Second, the jury was expressly instructed that it could not find appellant was an SVP “based solely on his alleged prior convictions.” Under these circumstances, the error was harmless.
Although the Supreme Court in Cooley v. Superior Court, supra, 29 Cal.4th at page 246, fn. 9, articulated four elements to SVP status (see text, ante) CALCRIM 3454 combines elements 3 and 4 into a single element.
2. No Error in Failing to Instruct on Amenability to Voluntary Treatment
According to the CALCRIM 3454 Bench Notes, where there has been evidence introduced at trial on amenability to voluntary treatment in the community, the trial court should instruct that the People must also prove beyond a reasonable doubt an additional element: “It is necessary to keep him in custody in a secure facility to ensure the health and safety of others.” Appellant contends CALCRIM 3454 as given was inadequate because it omitted the additional element. We disagree.
We note that appellant’s trial counsel answered in the affirmative when asked by the trial court: “I understand the respondent has decided not to press [the omitted sentence], that you think it’s appropriate to go without it based on the evidence here[.]” In Calderon, the court held that the appellant did not waive the issue by agreeing with an instruction that omitted the relevant language because, inasmuch as the SVPA proceedings involve a potential deprivation of liberty, the instruction affected the Appellant’s substantial rights. (Calderon, supra, 124 Cal.App.4th at p. 92.) Unlike Calderon, here it appears that defense counsel affirmatively asked for the instruction to be given in its final form. Nevertheless we address the merits of appellant’s point.
Evidence of a person’s amenability to voluntary treatment may reflect a reduced risk of reoffense because it suggests the person has “more motivation, ability and opportunity to function lawfully if free in the community despite his mental impairment. [Citation.]” (Calderon, supra, 124 Cal.App.4th at p. 89, citing People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 921 (Ghilotti).) In People v. Grassini (2003) 113 Cal.App.4th 765, 775 (Grassini), the court held that “the presence of [evidence of amenability to voluntary treatment] creates a sua sponte duty in the trial court to instruct the jury that it is to determine whether custody in a secure facility is necessary to ensure that the individual is not a danger to the health and safety of others.” In Calderon, the court found no error in the trial court’s failure to instruct the jury to determine whether custody in a secure facility was necessary where “the jury was exposed to no alternative of treatment in nonsecure settings.” (Calderon, at p. 93.)
Here, the evidence of amenability to voluntary treatment upon which defendant relies is that during the year prior to the trial, he read a number of self-help books that taught him to understand his deficits and how to overcome them; appellant recognized that it was a lifelong process; in Guatemala, appellant planned to continue reading his books and go to church where he intended to “ask if they know anything about sex offender treatment, I would participate. I would like to because I never want to hurt nobody;” appellant believed therapy was necessary because it would help him to achieve his goal of living a normal life; and appellant’s sister, a graduate student in psychology, looked for psychologists in Guatemala who “can treat dealing with re-integrating into society, stress, anger management, with the grieving process.” Although appellant expressed a desire for hypothetical treatment, there was no evidence that there was any practicable treatment, readily available in Guatemala to treat appellant’s paraphilia. At most, the evidence suggested only that general mental health treatment was available. Under these circumstances the trial court properly refrained from giving the omitted portion of the instruction. (Calderon, supra, 124 Cal.App.4th at p. 93.)
3. No Error in Instruction on the Definition of “Sexually Violent Offenses” in Accordance With the Statutory Language
According to section 6600, subdivision (b): “ ‘Sexually violent offense’ means the following acts when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . and result in a conviction . . . ” of a felony violation of any of the following Penal Code sections: 261, subdivision (a)(2) [rape]; 262, subdivision (a)(2) [rape of a cohabitant]; section 264.1 [rape by a foreign object]; section 288, subdivision (a) or (b) [lewd and lascivious acts on a minor or by force]; section 289, subdivision (a) [forcible penetration]; or sections 286 and 288a [sodomy or oral copulation].
Consistent with the statute, CALCRIM 3454 includes the following paragraph: “[Insert name[s] of crime[s] enumerated in Welf. & Inst. Code, § 6600(b)] (is/are) [a] sexually violent offense[s] when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the victim or another person.”
Here, the trial court advised the jury that the parties had stipulated appellant had committed sexually violent offenses against Blanca and Jacqueline. Although there was no evidence that appellant was convicted of any other sexually violent offenses (e.g. there was no evidence he was convicted of rape of a cohabitant as to Sylvia and he was convicted of non-forcible, statutory rape as to Iris), the trial court also listed in its instruction the other Penal Code statutes identified as violent offenses in section 6600, subdivision (b). Appellant contends it was error to do so. As we understand his contention, the enumeration of offenses in the instruction is relevant only to identify the two or more predicate convictions of “sexually violent offense[s]” which the prosecution must prove. The argument continues, since appellant stipulated to having two committed sexually violent offenses against Blanca and Jacqueline, “no further explanation or listing of qualifying prior convictions was necessary . . . .” According to appellant, listing nonconvictions permitted the jury to infer that: (1) appellant had in fact committed additional violent sexual offenses when that was not the case (2) a person who has committed that many sexually violent offenses would be more likely to engage in [future] sexually violent predatory behavior than a person convicted of just two sexually violent predatory offenses. The People counter that “since the jury was being asked to decide . . . whether it was likely that appellant would engage in sexually violent criminal behavior, it needed to know what constituted such behavior. The list of offenses provided the jury with the requisite guidance on this point.” The People’s argument is persuasive.
Defendant concedes that there was evidence that he committed the acts that constitute the named offenses; his focus is on the absence of any convictions arising out of those acts.
We reach this conclusion by considering three closely related terms contained in the act: “sexually violent offense,” “sexually violent criminal behavior,” and “predatory.” In addition to establishing that a person has been convicted of a “sexually violent offense” against two or more victims, the People were also required to prove beyond a reasonable doubt that the person is a danger to others in that it is likely he will engage in “sexually violent criminal behavior.” (§ 6600, subd. (a)(1).) Section 6600, subdivision (b) defines the phrase “sexually violent offense;” it does not define “sexually violent criminal behavior.” In Hurtado, our Supreme Court clarified that the future criminal behavior had to be “predatory” in nature, a term that is also defined in the act. (Hurtado, supra, 28 Cal.4th at p. 1186.) Using language substantially the same as the statute, CALCRIM 3454 describes “predatory” as “sexually violent criminal behavior . . . directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or a person with whom a relationship has been established or promoted for the primary purpose of victimization.” In In re Lemanuel C. (2007) 41 Cal.4th 33, 46, the court observed that the “likely to engage in sexually violent predatory criminal behavior” component is explained in CALCRIM 3454 by the following paragraph: “A person is likely to engage in sexually violent predatory criminal behavior if there is a substantial, serious, and well founded risk that the person will engage in such conduct if released into the community.” But nowhere is the phrase “sexually violent criminal behavior” or “sexually violent predatory criminal behavior” defined in the act or the instruction.
Because the term “sexually violent predatory criminal behavior” is for the most part synonymous with the statutorily defined term “sexually violent offense,” it was not error to include in the instruction the list of statutory offenses to help the jury understand what is meant by future sexually violent predatory criminal behavior. While we see the potential for jury confusion, given that the prosecutor did not argue that defendant had been convicted of offenses other than those to which the parties had stipulated, we conclude the jury was not likely confused. Rather, the instruction given to the jury properly elaborated on the future dangerousness element of the SVP by providing examples of the type of behavior that would be predatory under the law. If anything, the instruction benefited appellant by narrowly defining “sexually violent predatory criminal behavior” to mean future commission of an enumerated sexually violent offense, even though the statute does not expressly use that limiting terminology.
E. No Cumulative Error
Defendant’s final argument is that reversal is required due to the cumulative effect of the errors he has alleged. Since we have concluded that all but one claim of error is without merit – and that one error was harmless beyond a reasonable doubt – we necessarily find no merit in appellant’s cumulative error contention.
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.
“The petition alleges that [Appellant] is a sexually violent predator. To prove this allegation, the People must prove beyond a reasonable doubt that, one, he has been convicted of committing sexually violent offenses against two or more victims;
“Two, he has a diagnosed mental disorder;
“And, three, as a result of that diagnosed mental disorder he is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavior.
“The Parties have stipulated that [Appellant] has been convicted of committing sexually violent offenses against Jacqueline [M.] and Blanca [C.].
“The term diagnosed mental disorder includes congenital or acquired conditions affecting a person’s emotional or volitional capacity and predisposing that person to commit criminal sexual acts to an extent that makes him or her a menace to the health and safety of others.
“A person is likely to engage in sexually violent predatory criminal behavior if there is a serious and well-founded risk that the person will engage in such conduct if released into the community. The likelihood that the person will engage in such conduct does not have to be greater than 50 percent.
“Sexually violent criminal behavior is predatory if it is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or a person with whom a relationship has been established or promoted for the primary purpose of victimization.
“Sexually violent offense means [certain specified acts] when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
“ [List of qualifying offenses].
“You may not conclude [Appellant] is a sexually violent predator based solely on his prior convictions. In order to prove that [Appellant] is a danger to the health and safety of others, the People do not need to prove a recent overt act committed while he was in custody. A recent overt act is a criminal act that shows a likelihood that the actor may engage in sexually violent predatory criminal behavior.”