Opinion
C075739
03-02-2017
THE PEOPLE, Plaintiff and Respondent, v. RONNIE EDWARDS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 96902)
Ronnie Edwards filed a petition for a show cause hearing pursuant to Welfare and Institutions Code former section 6605 to determine whether there was probable cause to believe that his diagnosed mental disorder of paraphilia had so changed that he was not a danger to society and was not likely to engage in sexually violent criminal behavior if discharged. Following a hearing, the trial court found beyond a reasonable doubt that Edwards's diagnosed mental disorder remained such that he posed a danger of reoffending.
Undesignated statutory references are to the Welfare and Institutions Code.
Edwards now contends the trial court erred in applying the wrong standard, improperly shifting the burden of proof, considering evidence in violation of due process, and considering an irrelevant and unduly prejudicial 2012 report. He also claims there is insufficient evidence to support the trial court's denial of his petition. In the alternative, he claims he was denied effective assistance of counsel.
We conclude the trial court did not abuse its discretion in considering the 2012 report, but in other ways it did not follow applicable statutory procedure. We will reverse and remand to permit the trial court to decide whether Edwards has established probable cause under former section 6605, subdivision (c), and to set the matter for a trial if it determines the requisite probable cause exists.
BACKGROUND
Edwards has a history of sexual offenses dating back to 1974 when he was 24 years old. In 1974, Edwards cut off the main power switch to a house, entered the house armed with a gun, and forced 16-year-old Marianne A. to orally copulate him twice. He also attempted to rape her after threatening to kill her. Defendant was convicted of sexual perversion and sentenced to 3 to 15 years in prison.
Edwards was paroled in 1977. Months later he raped a prostitute while on parole. He was charged with rape by force but was not prosecuted because of the victim's criminal history.
In 1979 Edwards lured 19-year-old Joan H. to a house under pretense and raped her. He wore a stocking over his head, showed the victim a blade or knife, and threatened to slit her throat when she protested. Edwards was convicted of rape and assault with a deadly weapon and sentenced to 12 years in prison.
Edwards was again paroled in 1987. At the time 19-year-old Bobbi M. lived with Edwards, his girlfriend and the girlfriend's son. Edwards raped Bobbi M. when the two were home alone. He threatened to cut her with a knife when she resisted. He was convicted on two counts of forcible rape with enhancements for the use of a weapon and sentenced to 38 years in prison. Edwards admitted he had even more victims.
Edwards was diagnosed with Paraphilia, Not Otherwise Specified (NOS), Sex with Non-consenting Partners. He was found to be a sexually violent predator within the meaning of section 6604 and was ordered confined for treatment at Coalinga State Hospital (CSH) for an indeterminate term. Edwards was admitted to CSH in 2009.
In 2013 the Department of State Hospitals (DSH) (formerly known as the Department of Mental Health) submitted an annual report regarding Edwards pursuant to section 6605, subdivision (a). Dr. Scott J. Van de Putte opined that Edwards did not meet the definition of a sexually violent predator and did not present a serious and well founded risk of committing a sexual assault because he lacked the symptoms of a diagnosable mental illness and had appropriately used skills learned in therapy that mitigated his risk of reoffending. The doctor said Edwards's best interest and the adequate protection of the community could be assured if Edwards was released to a less restrictive treatment setting. Although Edwards had not completed sexual offense treatment, Dr. Van de Putte said unconditional release to a less restrictive alternative treatment setting was appropriate. Dr. Van de Putte added that unconditional release within the restrictions of Penal Code section 290 was appropriate. The medical director of DSH concurred in the recommendation to release Edwards to a less restrictive environment.
Edwards filed a petition for unconditional release or conditional release pursuant to former section 6605. He asked the trial court for a hearing to determine whether, based on Dr. Van de Putte's 2013 report, there was probable cause to believe Edwards's diagnosed mental disorder had so changed that he was not a danger to the health and safety of others and was not likely to engage in sexually violent criminal behavior if discharged.
The trial court conducted a hearing on the petition on December 20, 2013. Edwards was not present at the hearing but his counsel appeared and argued on his behalf. His counsel argued Edwards bore the burden of proof, but the only evidence presented -- Dr. Van de Putte's 2013 report and the director's concurrence -- established the requisite probable cause. The prosecutor responded that Dr. Van de Putte did not say Edwards was no longer a sexually violent predator, he said defendant was never a sexually violent predator, which put his opinion at odds with every other annual report and the findings leading to the initial civil commitment. The prosecutor added that the DSH director recommended release to a less restrictive environment, not the unconditional discharge recommended by Dr. Van de Putte.
The prosecutor asked the trial court to take judicial notice of the case file and the prior annual reports, but did not submit any additional evidence. When the trial court asked whether the prosecutor had any current information for the court, the prosecutor answered "Not at this time." The prosecutor said she was relying on the documents Edwards submitted "[e]specially in light of the fact that the OSC stage is supposed to be largely documentary." Counsel for Edwards said the previous annual reports were not current and Dr. Van de Putte's report was the only current report.
The trial court took the matter under submission and ultimately denied Edwards's petition. It considered Dr. Van de Putte's 2013 report, the accompanying letter by the director of DSH, and Dr. David S. Wildman's 2012 report. Dr. Wildman opined in 2012 that Edwards was a sexually violent predator in that he suffered from a diagnosed mental disorder -- Paraphilia, Not Otherwise Specified (NOS), Sex with Non-consenting Partners -- that made him a danger to the health and safety of others and he was likely to engage in sexually violent predatory criminal behavior in the future without adequate supervision and treatment. Dr. Wildman reported that Edwards had not completed sexual offense treatment and had not had sufficient treatment for his diagnosed mental condition and risk factors. Dr. Wildman's 2012 report concluded that the best interest of Edwards and adequate protection of the community could not be assured in a less restrictive treatment setting, and neither conditional nor unconditional release was appropriate at that time.
The trial court said the State bore the burden of proving beyond a reasonable doubt that Edwards's diagnosed mental disorder remained such that he was a danger to the health and safety of others and was likely to engage in sexually violent criminal behavior if discharged. It said former section 6605, subdivision (d) allowed the trier of fact to consider a committed person's failure to participate in or complete the State's Sex Offender Commitment Program as evidence that the committed person's condition had not changed. It was uncontested that Edwards had not completed Phases IV and V of his treatment program and, according to Dr. Wildman, Phase IV was an important part of treatment and would assist Edwards to make an effective transition into the community. The trial court determined Phase IV was particularly relevant for Edwards because Edwards had identified failure to seek support and appropriate coping assistance as a primary contributing factor for his past offenses. The trial court said it placed substantial weight on Edwards's failure since 2012 to complete Phases IV and V of his treatment program. It concluded that unconditional discharge or conditional release was premature. Additionally, the trial court said it was persuaded by Dr. Wildman's diagnosis of paraphilia. The trial court found beyond a reasonable doubt that Edwards's diagnosed mental disorder remained such that he was a danger to the health and safety of others and was likely to engage in sexually violent criminal behavior if discharged.
DISCUSSION
I
Edwards contends the trial court erred in applying the wrong standard, improperly shifting the burden of proof, and considering evidence in violation of due process.
A
The Sexually Violent Predators Act (§ 6600 et seq.) (the Act) provides for the confinement and treatment of sexually violent predators. (Historical and Statutory Notes, 73E West's Ann. Welf. & Inst. Code (2010 ed.) § 6600, p. 41.) The Legislature determined that a person adjudicated to be a sexually violent predator is a danger to society and should be confined and receive treatment for his or her diagnosed mental disorder which predisposes him or her to engage in sexually violent criminal behavior as long as the disorder persists and until it can be determined that he or she no longer presents a threat to society. (Ibid.) The Act was enacted to treat sexually violent predators and not for punitive purposes. (Ibid.)
A "sexually violent predator" is "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a).) A " '[d]iagnosed 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).) " 'Danger to the health and safety of others' does not require proof of a recent overt act while the offender is in custody." (§ 6600, subd. (d).)
A person who has been found by a court or jury to be, beyond a reasonable doubt, a sexually violent predator is committed for an indeterminate term to the custody of DSH for appropriate treatment and confinement in a secure facility designated by the director of DSH. (§ 6604.) A committed person must have a current examination of his or her mental condition made at least once every year. (Stats. 2012, ch. 24, § 144 [former § 6605, subd. (a); currently found in § 6604.9]. The parties agree former section 6605 governs our analysis. The report must be in the form of a declaration and be prepared by a professionally qualified person. (Stats. 2012, ch. 24, § 144 [former § 6605, subd. (a); currently found in § 6604.9].) The report must consider whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional discharge is in the best interest of the person and whether conditions can be imposed that would adequately protect the community. (Ibid.) The committed person may retain or, if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the committed person. (Ibid.)
DSH must file the report required under section 6605 with the trial court that committed the person under the Act. (Stats. 2012, ch. 24, § 144 [former § 6605, subd. (a); currently found in § 6604.9].) A copy of the report must be served on the prosecuting agency involved in the initial commitment and upon the committed person. (Ibid.)
Pursuant to the version of section 6605 applicable to Edwards's 2013 petition, if DSH determines (1) the committed person's condition has so changed that he or she no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the committed person and conditions can be imposed that adequately protect the community, the director must authorize the committed person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge. (Stats. 2012, ch. 24, § 144 [former § 6605, subd. (b); currently found in § 6604.9].) The director of DSH must authorize a committed person to file a petition when the annual report by an evaluator concludes the committed person no longer qualifies as a sexually violent predator or that conditional release is in the best interest of the committed person and the community can be adequately protected by the imposition of conditions to the release, even if the director disagrees with the conclusion of the evaluator. (People v. Landau (2011) 199 Cal.App.4th 31, 38-39 (Landau).)
Pursuant to former section 6605, the trial court must order a show cause hearing upon receipt of a petition for conditional release to a less restrictive alternative or for unconditional discharge. (Stats. 2012, ch. 24, § 144 [former § 6605, subd. (b); currently found in §§ 6604.9, subd. (f) and 6605, subd. (a)(1)].) At the show cause hearing, the trial court can consider the petition and any accompanying documentation provided by the medical director, the prosecutor, or the committed person. (Ibid.) The committed person has the right to call witnesses and cross-examine the State's witnesses. (People v. Cheek (2001) 25 Cal.4th 894, 897, 900, 903.) The committed person bears the burden of establishing the probable cause required under section 6605. (People v. Hardacre (2001) 90 Cal.App.4th 1392, 1402.) The trial court must determine whether a reasonable person could entertain a strong suspicion that the committed person (1) has a diagnosed mental disorder which has so changed that (2) he or she is not a danger to the health and safety of others and (3) is not likely to engage in sexually violent criminal behavior if discharged. (Id. at p. 1400 [probable cause is " ' "a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion" ' " of the fact to be proved]; see Cooley v. Superior Court (2002) 29 Cal.4th 228, 236, 251-252 (Cooley) [construing § 6602, subd. (a), which provides for a probable cause hearing in connection with an initial commitment under the Act]; Cheek, supra, 25 Cal.4th at pp. 899-900 [analogizing §§ 6602 and 6605].) The trial court must set a trial on the issue if it determines the requisite probable cause exists. (Stats. 2012, ch. 24, § 144 [former § 6605, subd. (c); currently found in § 6605, subd. (a)(2)].)
Former section 6605, subdivision (d) describes the trial that must follow a probable cause finding under former section 6605, subdivision (c). Under that subdivision, the committed person has the right to be present at such a trial. (Stats. 2012, ch. 24, § 144 [former § 6605, subd. (d); currently found in § 6605, subd. (a)(3)].) The committed person also has a right to trial by jury, to the assistance of counsel, to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. (§ 6603, subd. (a); Stats. 2012, ch. 24, § 144 [former § 6605, subd. (d); currently found in § 6605, subd. (a)(3)].) The State bears the burden of proving beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged. (Stats. 2012, ch. 24, § 144 [former § 6605, subd. (d); currently found in § 6605, subd. (a)(3)].)
If the trial court or jury rules against the committed person following the section 6605 trial, the term of commitment of the person shall run for an indeterminate period from the date of that ruling and the committed person may not file a new petition until one year has elapsed from the date of the ruling. (Stats. 2012, ch. 24, § 144 [former § 6605, subd. (e); currently found in § 6605, subd. (b)].) If the court or jury rules for the committed person, he or she must be unconditionally released and unconditionally discharged. (Ibid.)
B
The issue before the trial court at the 2013 hearing was whether, based on the 2013 annual report, there was probable cause to believe Edwards's diagnosed mental disorder had so changed that he was not a danger to society. Edwards asked the trial court to set the matter for a trial pursuant to section 6605 if the trial court found probable cause. The prosecutor acknowledged the hearing was at the "OSC stage."
Edwards argues the trial court made an implicit finding of probable cause at the hearing and then improperly proceeded to the ultimate issue without affording Edwards the right to a jury trial or to be present. The Attorney General responds that although the trial court misunderstood the question before it, the error is harmless because the trial court would undoubtedly have found that Edwards failed to prove the requisite probable cause.
The trial court erred in denying Edwards's section 6605 petition without following the procedure set forth in the statute. That procedure required the trial court to first make a determination of probable cause. (Stats. 2012, ch. 24, § 144 [former § 6605, subd. (c)].) The probable cause hearing is a preliminary step, analogous to a preliminary hearing in a criminal case. (Stats. 2012, ch. 24, § 144 [former § 6605, subds. (c) and (d)]; see also Cooley, supra, 29 Cal.4th at p. 247 [construing §§ 6602 and 6604].) The ultimate determination whether Edwards's mental disorder remains such that he is a danger to society and is likely to engage in sexually violent criminal behavior if discharged is made only after a trial. (Ibid.) Edwards's 2013 petition was clearly limited to the probable cause determination under former section 6605, subdivision (c). The trial court's failure to follow the procedure set forth in former section 6605 and the absence of an indication in the record that Edwards waived his right to trial by jury requires reversal of the trial court's order. (See also People v. Blackburn (2015) 61 Cal.4th 1113, 1132-1135 [denial of statutory right to a jury trial in a case brought under the Mentally Disordered Offender Act is a miscarriage of justice, requiring automatic reversal].)
Edwards cites an unpublished opinion in support of his claim of error. Except in circumstances inapplicable here, an opinion of a California Court of Appeal that is not certified for publication or ordered published must not be cited or relied on by a court or a party. (Cal. Rules of Court, rule 8.1115(a).) We do not rely on the unpublished opinion Edwards cites.
Edwards urges us to reverse the trial court's order and direct the trial court to conduct a trial if we conclude the trial court conducted a probable cause hearing on December 20, 2013. In the alternative, he asks us to reverse the trial court's order and order that he be immediately and unconditionally discharged or conditionally released to a less restrictive setting if we conclude the trial court conducted a trial on December 20, 2013. The Attorney General responds that the matter must be remanded for the trial court to determine whether Edwards satisfied his burden of showing probable cause under former section 6605, subdivision (c) and to conduct a trial under former section 6605, subdivision (d) if it answers that question in the affirmative.
We agree with the Attorney General on the appropriate remedy. We will remand to the trial court. (People v. Smith (2013) 212 Cal.App.4th 1394, 1397, 1409 [concluding that the petitioner was entitled to a new hearing pursuant to section 6605 and remanding the matter where the trial court erroneously proceeded under section 6608]; Landau, supra, 199 Cal.App.4th at p. 35 [same]; People v. Taylor (2009) 174 Cal.App.4th 920, 927, 934 [remanding so that the trial court can conduct trials to determine whether the committed persons currently met sexually violent predator criteria where the trial court granted, without a trial, the People's motion to convert commitments to indeterminate terms after Proposition 83 (which changed the commitment term for sexually violent predators from two years to an indeterminate term) was passed]; see also Cooley, supra, 29 Cal.4th at pp. 235-236, 261 [in a case reviewing a trial court's probable cause determination under section 6602, the Supreme Court remanded the matter so that the trial court may conduct a new probable cause hearing where the trial court applied an incorrect test for finding the requisite probable cause].) Because we are remanding the matter, we do not consider Edwards's sufficiency of the evidence challenge.
II
Edwards also contends the trial court erred in considering the 2012 report by Dr. Wildman. The Attorney General responds that Edwards forfeited his appellate claim and the claim is without merit in any event because the trial court acted within its discretion in granting the People's request to take judicial notice of the 2012 report.
We will consider Edwards's claims on the merits even if he did not preserve them for appellate review because he raises an ineffective assistance of counsel claim based on his counsel's failure to object to taking judicial notice of the 2012 report on the grounds raised on appeal.
Edwards argues the trial court erred in considering Dr. Wildman's 2012 report because the report is not relevant to his current mental condition. The Attorney General counters that the 2012 report is relevant to assess whether Edwards's diagnosed mental condition had changed and to assess Dr. Van de Putte's credibility.
The requirement of relevance applies to the admission of evidence in a proceeding under the Act. (People v. O'Shell (2009) 172 Cal.App.4th 1296, 1306-1307 (O'Shell); People v. Rains (1999) 75 Cal.App.4th 1165, 1170.) Relevance to a material issue is "a precondition to the taking of judicial notice." (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having 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 is vested with broad discretion in determining the relevance of evidence. (O'Shell, supra, 172 Cal.App.4th at p. 1307.) "Relevance is a two-part inquiry. First, the fact sought to be proven must be 'of consequence to the determination of the action.' [Citation.] Second, the proffered evidence must have some 'tendency in reason' to prove that fact. [Citation.]" (Ibid.) We will find abuse of discretion only upon a clear showing that the trial court's evidentiary ruling exceeded the bounds of reason. (People v. Dean (2009) 174 Cal.App.4th 186, 193.)
Dr. Van de Putte's opinion about whether Edwards ever had paraphilia conflicts with Dr. Wildman's 2012 report. The People challenged Dr. Van de Putte's report on the ground that it contained "myriad internal inconsistencies" and was at odds with every other annual evaluation performed on Edwards and the trier of fact's findings in the initial commitment proceeding. The prosecutor asked the trial court to take judicial notice of prior annual reports in the context of the People's challenge to Dr. Van de Putte's opinion.
The trial court is not bound to accept Dr. Van de Putte's opinion. (CALCRIM No. 332; see generally In re Scott (2003) 29 Cal.4th 783, 823 ["Although experts may testify about their opinions, the fact finder decides what weight to give those opinions."]; In re Brian J. (2007) 150 Cal.App.4th 97, 115.) It is free to give Dr. Van de Putte's opinion the weight it feels the opinion deserves and may disregard the opinion if it concludes the opinion was unbelievable, unreasonable, or unsupported by the evidence. (CALCRIM No. 332; Gray v. Superior Court (2002) 95 Cal.App.4th 322, 329 [the trier of fact makes a qualitative assessment of the experts' opinions]; People v. Ward (1999) 71 Cal.App.4th 368, 374; People v. Mercer (1999) 70 Cal.App.4th 463, 466 [trier of fact resolved questions of the credibility of the experts and their conclusions].) Dr. Wildman's 2012 report has some tendency in reason to show whether Dr. Van de Putte's expert opinion, including his conclusion that Edwards's never had paraphilia, is reasonable and worthy of credit. (See, e.g., People v. Smithey (1999) 20 Cal.4th 936, 965-966 [the rebuttal testimony of a prosecution expert was relevant to the weight to be given to the opinions of the defense experts and its admission was neither improper nor prejudicial]; People v. Prince (1988) 203 Cal.App.3d 848, 856-858 [the testimony of a prosecution expert was relevant to the weight and credibility of the opinions of the defense expert].) If the trial court does not credit Dr. Van de Putte's opinion that Edwards never had paraphilia or any mental disorder, it could also reject Dr. Van de Putte's opinion in other respects.
Edwards further claims the trial court should have excluded Dr. Wildman's 2012 report under Evidence Code section 352 because the 2012 report had no probative value to any issue before the trial court and the report was prejudicial in that it reached opposite conclusions from the 2013 report.
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) We will disturb the exercise of that discretion only upon a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Fulcher (2006) 136 Cal.App.4th 41, 58.) "For purposes of Evidence Code section 352, evidence is considered unduly prejudicial if it tends to evoke an emotional bias against the defendant as an individual and has a negligible bearing on the issues. [Citation.] Put another way, evidence should be excluded ' " 'when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' [Citation.]" [Citations.]' " (People v. Mendoza (2011) 52 Cal.4th 1056, 1091-1092.) Even if he did not forfeit his appellate claim by failing to raise it in the trial court (Evid. Code, § 353, subd. (a); People v. Holford (2012) 203 Cal.App.4th 155, 168-170), Edwards fails to show on this record that the 2012 report was unduly prejudicial or that the trial court used the 2012 report for an improper purpose.
The trial court did not abuse its discretion in considering the 2012 report. We likewise reject his associated ineffective assistance of counsel claim. (People v. Weaver (2001) 26 Cal.4th 876, 931 [counsel is not ineffective for failing to make a meritless objection or motion].)
DISPOSITION
The trial court's order is reversed. The matter is remanded to permit the trial court to decide whether Edwards has established probable cause under former section 6605, subdivision (c), and to set the matter for a trial if it determines the requisite probable cause exists.
/S/_________
MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
HOCH, J.