Opinion
F041242.
11-5-2003
The People, Plaintiff and Respondent, v. Edwin V. Franklin, Defendant and Appellant.
Larry L. Dixon, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Edwin V. Franklin testified at his civil commitment hearing in August 2001. At the conclusion of the hearing, he was found to be a sexually violent predator. Based upon his testimony at the civil commitment hearing, Franklin was charged with and convicted of perjury in a separate proceeding.
Materiality is an element of the crime of perjury. (People v. Kobrin (1995) 11 Cal.4th 416, 427.) False testimony in a judicial proceeding is material if that testimony "could probably have influenced the outcome of the proceedings." (People v. Pierce (1967) 66 Cal.2d 53, 61.) During the civil commitment hearing, the prosecutions expert witness was specifically asked if Franklins testimony in the commitment proceedings affected the experts opinion or diagnosis. The response was an unqualified "No."
Based upon the issues to be decided and the testimony of the expert witness at the civil commitment hearing, we conclude that Franklins testimony in the commitment proceedings was not material and reverse the perjury conviction.
PROCEDURAL AND FACTUAL SUMMARY
In February 2001, Dr. Christopher North evaluated Franklin and prepared a report concluding that Franklin suffered from an antisocial personality disorder and was a sexually violent predator who was likely to reoffend. A petition to commit Franklin as a sexually violent predator was filed on March 21, 2001.
On June 7, 2001, while the petition was pending, Franklin was in the seclusion room at Atascadero State Hospital (ASH). Staff observed Franklin pacing and yelling angrily. He also was seen kicking the door and punching the window of the door. At his civil commitment hearing in August 2001, Franklin testified as follows:
"[DEPUTY DISTRICT ATTORNEY]: Do you remember banging and punching the walls violently?
"A: No, I do not.
"Q: Did you punch the windows violently?
"A: No, I do not."
North testified at Franklins civil commitment trial that Franklin was a sexually violent predator likely to reoffend. Prior to testifying at the August 2001 hearing, North reviewed notes made by staff at ASH regarding Franklins conduct on June 7, 2001. North also was present in the courtroom during Franklins testimony. At the conclusion of Franklins testimony, North was recalled to the stand and the following exchange occurred:
"[DEPUTY DISTRICT ATTORNEY]: Now, you were able to sit through the testimony of Edwin Franklin yesterday, has anything that you heard here in court yesterday affected your opinion and your diagnosis that Edwin Franklin is suffering from paraphilia and antisocial personality disorder?
[NORTH]: No."
At the conclusion of the August 2001 jury trial, Franklin was committed as a sexually violent predator. This court upheld his commitment in a published opinion. (See People v. Franklin (2003) 105 Cal.App.4th 532, 534.)
On February 4, 2002, Franklin was charged with perjury. The allegations of the complaint asserted that Franklin testified falsely at his civil commitment hearing when he "denied banging and punching the walls violently while at Atascadero State Hospital on June 7, 2001."
During the perjury trial, the prosecutor asked North whether Franklins behavior at ASH on June 7, 2001, and the staff notes were "material" to his testimony during the civil commitment trial that Franklin was a sexually violent predator. North responded that they were. The prosecutor also asked whether the information was "material" to Norths opinion that Franklin would likely engage in future sexually violent predatory behavior. North replied in the affirmative.
When asked about the effect of Franklins testimony in the commitment proceedings on his opinion and diagnosis during cross-examination in the perjury trial, North testified that the June 7, 2001, incident "was a part of my testimony. It did factor into my diagnosis, because as I said, it showed recent evidence of a diagnosis that I had previously rendered."
On June 19, 2002, the jury returned a verdict of guilty on the perjury charge. It also was found true that Franklin had suffered prior convictions of serious or violent felonies. Franklin was sentenced to a term of imprisonment of 25 years to life.
On appeal, Franklin challenged, inter alia, the sufficiency of the evidence establishing the falsity of the statement. By letter dated August 15, 2003, this court requested letter briefs on whether Franklins testimony was material as that term is used in Penal Code section 118.
On December 6, 2002, Franklin requested this court take judicial notice of his opening brief filed in case No. F039208. The request is hereby denied. Pursuant to Evidence Code section 459, however, we take judicial notice of the reporters transcripts in case No. F039208.
References to code sections are to the Penal Code unless otherwise specified.
DISCUSSION
Standard of Review
When considering a challenge to the sufficiency of the evidence to support a criminal conviction, this court reviews the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319.)
Elements of Perjury
In California, the elements of perjury are a willful statement, made under oath, of any material matter that the witness knows to be false. (§ 118; People v. Howard (1993) 17 Cal.App.4th 999, 1004.) False testimony in a judicial or legislative proceeding is material if that testimony could have probably influenced the outcome of the proceedings. (People v. Jimenez (1992) 11 Cal.App.4th 1611, 1622, disapproved on another point in People v. Kobrin, supra, 11 Cal.4th at p. 425, fn. 5.) Thus, a false statement having such a tendency may be perjury even though it did not, in fact, affect the proceeding in which it was made. In addition, opinion testimony constitutes perjury if the witness honestly does not hold the opinion to which he or she testifies. (People v. Webb (1999) 74 Cal.App.4th 688, 695.) Further, perjury cannot be willful where the oath is according to the belief and conviction of the witness as to its truth. (In re Lindley (1947) 29 Cal.2d 709, 723.)
The jury was instructed that under certain specified circumstances a person commits perjury by "stat[ing] as true any material matter which he or she knows to be false," and that on the charge of perjury the prosecution had the burden of proving, inter alia, that the "false statement was material."
Materiality
Assuming that Franklins testimony reasonably could be viewed as false, in order to constitute perjury it must be material. (§ 118.) In Franklins case, it must have been material with respect to the issues to be determined at the civil commitment trial where he was found to be a sexually violent predator. A sexually violent predator is defined 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 he or she will engage in sexually violent criminal behavior." (Welf. & Inst. Code, § 6600, subd. (a)(1), italics added.)
There are two essential elements that must be proven before an individual can be committed as a sexually violent predator: (1) two or more convictions which qualify as sexually violent offenses; and (2) a diagnosed mental disorder indicating that repeat sexually violent criminal offenses are likely. (People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 150.) The term "sexually violent offense" is defined as the commission of specified sexual offenses, such as rape, sodomy or oral copulation, by means of force, violence, menace, duress or fear of immediate bodily injury. (Welf. & Inst. Code, § 6600, subd. (b); People v. Superior Court (Howard), supra, 70 Cal.App.4th at p. 150.)
A determination must be made that an individual has a diagnosed mental disorder and that various factors known to be associated with the risk of reoffense among sex offenders are present. Those risk factors include the type, degree and duration of sexual deviance. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1146.) One must suffer from a dangerous mental disorder, not a particular degree of dangerousness, to qualify as an SVP. (People v. Superior Court (Ghilotti) (2003) 27 Cal.4th 888, 921 & fn. 12.) It is the dangerous mental disorder that distinguishes those subject to civil commitment from other persons more properly dealt with in criminal proceedings. (Kansas v. Crane (2002) 534 U.S. 407, 413.)
A person found to be a sexually violent predator is confined in a secure mental health treatment facility for two years. (Welf. & Inst. Code, § 6604.) Until such time as an expert determination is made that the person no longer meets the definition of a sexually violent predator, the term of commitment can be extended by the filing of subsequent petitions. (Welf. & Inst. Code, §§ 6604, 6604.1.)
The timeline of events is critical in assessing whether Franklins testimony could have concerned a material aspect of the civil commitment proceedings. In February 2001, North diagnosed Franklin as suffering from an antisocial personality disorder and deemed Franklin a sexually violent predator who was likely to reoffend. It is uncontroverted that Franklins actions on June 7, 2001, had no bearing on Norths evaluation and report dated February 2001, as the report was completed several months earlier. It also is uncontroverted that Franklins testimony had no bearing on Norths testimony at the civil commitment hearing; North reviewed the ASH staff notes before testifying and relied on those notes of the June 7, 2001, incident. North did not alter his opinion or diagnosis based upon Franklins conduct or testimony. In fact, at the civil commitment hearing, North explicitly testified that Franklins testimony had no affect on his opinion or testimony. At the perjury trial, North merely claimed that the conduct was "recent evidence" of the diagnosis previously rendered. There is virtually no evidence that Norths diagnosis or opinion was altered by Franklins conduct or his denial of that conduct.
Norths testimony at the perjury trial notwithstanding, it is not reasonable to conclude that Franklins conduct on June 7, 2001, could in any way be material to the diagnosis rendered in February 2001. The information regarding Franklins conduct on June 7, 2001, obviously was not information that was necessary in order to reach a diagnosis. Under the facts of this case, neither Franklins testimony nor his actions on June 7, 2001, had an impact on the diagnosis or Norths testimony at the civil commitment hearing.
Norths testimony at the perjury trial that Franklins conduct on June 7, 2001, was "material" to his diagnosis constitutes testimony on an ultimate fact that is to be decided by the jury and the prosecutor should not have solicited such testimony. (People v. Kobrin, supra, 11 Cal.4th at p. 427; People v. Torres (1995) 33 Cal.App.4th 37, 48-49 & fn. 4.) Further, if Franklins testimony at the civil commitment hearing was material as North opined, then Franklins motion for appointment of an expert pursuant to Evidence Code section 730 should have been granted and failure to grant the motion would be reversible error.
Further, even if Franklins conduct on June 7, 2001, can be reasonably described as violent, and even if he denied engaging in such conduct, the incident and the denial were irrelevant and therefore not material to the issues decided at Franklins civil commitment hearing. This is so because the violence must be sexually related.
A person is not eligible for commitment as a sexually violent predator unless his "capacity or ability to control violent criminal sexual behavior is seriously and dangerously impaired." (People v. Williams (2003) 31Cal.4th 757, 776-777.) There is no evidence that Franklins actions on June 7, 2001, were in any way sexually related, as in the Williams case where the defendant openly masturbated and exposed himself while confined. (Id. at p. 761.) A jury could not have committed Franklin as a sexually violent predator merely by finding that he had an inability to control his anger and violent outbursts; rather, the jury must find from the evidence that Franklin had serious difficulty in controlling his sexual behavior. (Id. at p. 778.)
If a history of violence alone were sufficient to make one eligible for civil commitment, all murderers and others who commit acts of violence would be subject to civil commitment, and the law clearly does not provide so. There must be an inability to control dangerous sexual behavior. (People v. Williams, supra, 31 Cal.4th at p. 778; Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1158.) Neither Franklins conduct on June 7, 2001, nor any denial of that conduct when he testified in August 2001, pertained to any relevant issue at the commitment hearing. Therefore, Franklins testimony was not material because it could not have influenced the outcome of the proceedings and cannot be the basis of a perjury charge. (People v. Pierce, supra, 66 Cal.2d at p. 61.)
Reversal of the perjury conviction, of course, does not mean that Franklin is released from custody. He continues to be confined pursuant to his civil commitment as an SVP.
DISPOSITION
The judgment is reversed.
BUCKLEY, Acting P.J., WISEMAN, J. we concur.