Opinion
C051537
12-12-2006
THE PEOPLE, Plaintiff and Respondent, v. PAUL FRANCIS JENNINGS, Defendant and Appellant.
Defendant Paul Francis Jennings appeals following his commitment to Atascadero State Hospital under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq. (SVPA)). He contends insufficient evidence supports the judgment and the prosecutor committed prejudicial misconduct in closing argument. We shall affirm.
Undesignated section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996, defendant was convicted of one count of violating Penal Code section 288, subdivision (a), and was found to have sustained a prior serious felony conviction for the same offense. He was sentenced to 12 years in state prison.
In July 2005, the Shasta County District Attorney filed a petition to have defendant committed to a state facility under the SVPA.
At the jury trial on the petition, the prosecution presented the testimony of psychologists Mark Schwartz and Douglas Korpi. The prosecution also called defendant as a witness. Defendant did not put on any evidence on his own behalf.
After interviewing defendant and reviewing his criminal records, Dr. Schwartz concluded defendant qualifies as a sexually violent predator under the SVPA. Dr. Schwartz found defendant met all three criteria: conviction of sexually violent offenses against two or more victims, a mental disorder that would predispose him to commit future similar offenses, and a likelihood that he would do so if not committed for treatment.
Having done around 200 such evaluations, Dr. Schwartz has found 68 percent of the persons he evaluated did not so qualify.
Defendant has been convicted of qualifying sexual offenses against three victims, including two eight-year-old boys in 1984 and a boy under the age of 14 in 1995. In all three cases, defendant had touched the victims penises, among other lewd acts. In both 1984 and 1995, defendant had purported to give the victims medical examinations.
According to Dr. Schwartz, defendant suffers from pedophilia and "schizophrenia paranoid type," qualifying mental disorders under the SVPA. He had a history of posing as competent to give medical examinations, falsely claiming "pre-med" training; he also claimed advanced degrees he probably did not have, personal relationships with Linus Pauling and William Packard, and multiple sightings of alien spacecraft. He denied responsibility for his acts, saying that the victims made up the charges or that he did not know how the alleged acts had occurred. Repeating his conduct after having been caught and punished for it indicated that he was "volitionally impaired."
On the Static 99, an actuarial risk prediction test with a scale from one to 12, Dr. Schwartz rated defendant as a six. This put him in a class of persons who will commit new sexual offenses 52 percent of the time over the next 15 years. (By comparison, a score of five would lead to a 40 percent estimate for the likelihood of reoffending.)
Dr. Schwartz had never seen a score higher than nine. Any increase over six was not greatly significant.
Assessing the static factors, which are the most important on the Static 99, Dr. Schwartz assigned defendant one point for never having lived with an intimate partner, three points for his prior eight charges and two convictions of sexually violent offenses, one point for choosing victims who were unrelated to him, and one point for choosing exclusively male victims. On the other hand, defendants solid record of gainful employment when not in custody lowered his assessed risk somewhat.
Defendant claimed long-term intimate relations with female partners, but Dr. Schwartz did not credit this claim.
As to the dynamic factors on the Static 99, Dr. Schwartz found weighing against defendant that he does not currently have an intimate partner, identifies with children, lacks remorse for his offenses, is uncooperative, and shows poor problem-solving skills; in his favor, he does not show sexual preoccupation, does not respond to stress by committing sexual offenses, has no deviant sexual interests other than pedophilia, and is not impulsive. Moreover, being over 55 slightly reduces his reoffense risk. On balance, however, the dynamic factors leave the assessment unchanged.
Dr. Korpi also assessed defendant as a sexually violent predator. Dr. Korpi diagnosed defendants mental disorders as pedophilia and narcissistic personality disorder; the latter, including delusions of grandeur and persecution, approached psychotic proportions.
Based on defendants history of sexually violent offenses involving young boys, which began in 1979 (a case in which he purported to examine the victims medically, touched their penises, and extracted seminal fluid, but for which he apparently received only a citation), his mental disorders, and his score on the Static 99, Dr. Korpi opined there was a 20 to 60 percent likelihood defendant will reoffend. This wide range was due to the fact that defendant had an unusual profile for a pedophile; however, despite his lack of history of non-sexual crimes, his high sexual deviance indicated that the high end of the estimated range was more likely to be accurate. Supporting the lower estimate, he did not start offending until he was 31, is now 58, and does not seem to be sexually preoccupied; supporting the higher estimate, his offenses have occurred over a long period of time, they have been detected on three separate occasions, he is a diagnosed pedophile, he does not think he has harmed the victims, and he identifies with children.
Dr. Korpi scored defendant as a five on the Static 99, "which puts him at 33 percent likely to re-offend over a period of five years." To Dr. Korpi, this was a significant "medium risk": "Lets just say for hypothetical a 30 percent likelihood to re-offend. Im comfortable with that number. That means there is a 70 percent chance he isnt going to re-offend. So the question becomes: Does the jury . . . think that 30 percent likelihood — I think its a serious and well-founded risk. You know, if somebody told me I had a 30 percent chance of getting cancer, Id say thats serious and well-founded[.]"
Called to testify by the prosecution, defendant admitted performing "medical examinations" on numerous young boys (in some cases touching their penises and testicles) whom he had invited to work on his house and given alcohol; he also admitted furnishing condoms to one boy. However, he denied molesting anyone, including the alleged victims in the counts to which he pled guilty. He claimed all the boys he "examined" had asked him to do so; he felt he was being helpful.
Though he admitted he was not a doctor and denied telling any of the boys he was (as one of them alleged), he described one of the boys at first as "my patient[.]" He had kept the records of his "examinations" so he could "refer" the boys to doctors and send the "test results" with them. The doctors accepted defendants "referrals," even though he was not a doctor, because they were friends of his.
Defendant also testified on other subjects. In response to the prosecutors first question — "[W]hat color was the UFO you saw when you were in the [A]ir [F]orce?" — defendant told the complete story of his sighting and explained that Mexican television had recently confirmed his observations. He also noted that the alien "spheres" could "change their [wave] length and frequency so that you see them visually with the human naked eye, and when they go to infrared they disappear." After his original sighting he had contacted Linus Pauling and the Navy about it. He later developed an interest in "antigravity," which was shared by Pauling and a private research group headed by William Packard.
The jury found defendant was a sexually violent predator.
DISCUSSION
I
Defendant contends there is insufficient evidence that he poses a substantial danger or well-founded risk of reoffending; in the alternative, he contends this standard is legally incorrect. We reject both contentions.
To establish that defendant was a sexually violent predator, the prosecution had to prove beyond a reasonable doubt that he had been convicted of at least two separate sexually violent offenses, he has a diagnosable mental disorder that made him a danger to the health or safety of others, and his disorder makes it likely he will engage in sexually violent predatory conduct if released without treatment. (§§ 6600, subds. (a), (e), 6604); People v. Roberge (2003) 29 Cal.4th 979, 985.)
To prove a defendants likelihood of reoffending, the prosecution need not show he is more likely than not to reoffend, but only that there is a "substantial danger" or "a serious and well-founded risk" that he will do so. (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922-923 (Ghilotti).)
We review insufficient-evidence contentions under the SVPA by the substantial-evidence standard that applies in criminal cases. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) Defendant asserts: (1) Dr. Schwartzs "preliminary" estimate of 52 percent likelihood to reoffend must be adjusted downward to "no more than, and probably less than, 50 percent risk" in light of his complete testimony. (2) Dr. Korpi placed the risk at 33 percent. (3) Thus, in light of the whole record, the demonstrated probability of defendants reoffending "is certainly below 50 percent." (4) Therefore, the Ghilotti standard of "substantial danger" or "serious and well-founded risk" was not met. Even if we accepted all of defendants premises, his conclusion would not follow.
As we have noted, Ghilotti holds plainly that the prosecution need not prove a defendant is more likely than not to reoffend. (Ghilotti, supra, 27 Cal.4th at p. 933.) Moreover, Ghilotti does not assign any precise quantitative meaning to its "substantial danger/serious and well-founded risk" standard. Although defendant alludes in passing to the "speculative or conjectural" quality of certain aspects of the experts testimony, he does not specifically dispute either the evidence on which they based their findings or the conclusions they drew from the evidence. Nor does he explain why even a 33 percent estimate of likelihood to reoffend would be insufficient under Ghilotti. Thus he has failed to show the jurys finding was erroneous by the Ghilotti standard.
In the alternative, defendant asserts, in reliance on Justice Werdegars concurring opinion in Ghilotti, that the majoritys standard is legally incorrect and "more likely than not" is the proper standard. As he acknowledges, we are not free to follow Justice Werdegars concurrence rather than the opinion of the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendants insufficient-evidence contention fails.
II
In a supplemental opening brief, defendant contends, in reliance on a recent appellate court decision (People v. Shazier (2006) formerly at 139 Cal.App.4th 294 (Shazier)), that the prosecutor committed prejudicial misconduct by telling the jury in closing argument that the result of a finding in the governments favor would be defendants confinement in an institution for treatment. However, after defendant filed his supplemental brief, the Supreme Court granted review in Shazier, which makes it uncitable. (Shazier, supra, rev. granted Aug. 28, 2006, S210813.)
In any event, defendant did not object to the alleged misconduct and he has not shown that a successful objection and request for an admonition could not have cured any possible harm. Therefore, his claim of error is forfeited. (People v. Earp (1999) 20 Cal.4th 826, 858.)
DISPOSITION
The judgment is affirmed.
We Concur:
HULL, J.
CANTIL-SAKAUYE, J.