Opinion
G050581
01-23-2017
THE PEOPLE, Plaintiff and Respondent, v. NORMAN CARVER MORROW, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Joy Utomi and Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. M-9908, M-10569, M-11340) OPINION Appeal from orders of the Superior Court of Orange County, John L. Flynn, III, Judge. Affirmed. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Joy Utomi and Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
This case arises out of three separate petitions involving defendant Norman Carver Morrow's status as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) The first, filed in May 2003, was a petition by the district attorney to extend defendant's commitment as an SVP for two years. (People v. Morrow (Super. Ct. Orange County, 2003, No. M-9908). In the second petition, filed two years later, the district attorney sought to recommit defendant as an SVP. (People v. Morrow (Super. Ct. Orange County, 2005, No. M-10569.) The third petition, filed in May 2007, requested the same. (People v. Morrow (Super. Ct. Orange County, 2007, No. M-11340.)
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Although these petitions were never officially consolidated, they were tried together in 2014 before the same jury, which found true the allegation that defendant was an SVP within the meaning of section 6600. That same day, the trial court ordered defendant committed to the California Department of State Hospitals for an indeterminate term.
Defendant appeals, contending the trial court erred in responding to a question from the jury regarding one of the elements in jury instruction CALCRIM No. 3454, the pattern instruction for initial commitment as an SVP.
CALCRIM No. 3454, as given to the jury, reads in relevant part:
"To prove [the allegation defendant is an SVP], the People must prove beyond a reasonable doubt that:
"1. He 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;
AND
"4. It is necessary to keep him in custody in a secure facility to ensure the health and safety of others."
During deliberations, the jury asked the following question: "In order to find the petition to be true, regarding criteria #2, must we be convinced beyond reasonable doubt that [defendant] specifically suffers from the paraphilia NOS disorder, non-consent"? After discussion with counsel, the court answered, "No. The Court directs the jury to the totality of CalCrim instruction 3454." We conclude the court responded appropriately and affirm the orders.
FACTS
Because the jury's question relates solely to the issue of whether defendant had a mental disorder that would qualify him as an SVP (People v. White (2016) 3 Cal.App.5th 433, 448), the facts will be limited accordingly.
Defendant was convicted of four qualifying sexually violent offenses against one or more victims; assault with the intent to commit rape committed in 1987, and two rapes by force of two victims, and an assault with the intent to commit rape of another victim in 1989. After completing his prison sentence in 1999, defendant was sent to Atascadero State Hospital and then transferred to Coalinga State Hospital, where he has remained.
Prosecution Experts
At the trial on this matter, two psychologists, Dr. Michael Musacco and Dr. Carolyn Murphy, testified for the prosecution as experts in the evaluation and treatment of SVPs.
Dr. Musacco's testimony.
Musacco diagnosed defendant with "paraphilia not otherwise specified" (in his report, he suggested nonconsent in parentheses) and opined this diagnosis was the qualifying disorder for purposes of the SVPA. From the time he was incarcerated to the present, defendant never participated in sex offender therapy. He also found defendant suffered from personality disorder NOS with antisocial features, schizophrenia, and substance abuse, which he believed "may be to a greater or a lesser extent associated with some of his offense behaviors."
Musacco also referred to it as paraphilia NOS, "rape or nonconsent." In any event, the paraphilia NOS terminology was taken from the "Diagnostic and Statistical Manual, Mental Disorders Fourth Edition Text Revision" (DSM-IV-TR), which was subsequently replaced by the "Diagnostic and Statistical Manual, Mental Disorders, Fifth Edition" (DSM-5). Under DSM-5, the terminology was changed to "other specified or unspecified paraphilic disorder" but the disorder remained the same.
Under the SVPA a "'Sexually violent predator' means 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)(1).) In turn, 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." (Id, subd. (c).) The parties refer to this statutory definition as a "qualifying mental disorder."
Although Musacco believed defendant's primary issue was the paraphilia, the personality disorder "exists with him" and may "have a combined [e]ffect on [defendant's] total risk" or behavior. "[I]t's difficult to tease out . . . the antisociality from a sexual crime because obviously its antisocial. It's hurting others." The fact defendant committed his 1989 offenses within a short time after he was paroled "speaks to the paraphilia[, as well as] his ability to follow rules, refrain from hurting other people, things of that nature." Further, "a personality disorder on its own [may] be" a qualifying mental disorder for purposes of the SVPA. Personality disorders are also "lifelong and chronic" although the disorder may "diminish with age." Nevertheless, Musacco did not believe the personality disorder to be the qualifying diagnosis for purposes of the SVPA.
According to Musacco, defendant's schizophrenia symptoms "have been present over the course of years" and "well documented." Defendant's behavior worsened to the point he had to be forcibly medicated because he represented a risk to himself or others, although he has improved in the last 10 years to the extent that a court order no longer was needed, as he was taking the medication voluntarily. At the time defendant committed his sexual offenses, he did not exhibit overt symptoms of schizophrenia. The lifelong and chronic nature of schizophrenia could "have been an aggravating influence on his sexual conduct in the qualifying offenses." Musacco was not certain how defendant's schizophrenia would affect his future sexual offending behavior but did not believe it was a qualifying diagnosis for purposes of the SVPA.
In Musacco's opinion, defendant's substance abuse problem contributed to his "offense pattern" in that "he would be intoxicated when he would commit some of the crimes." The substance abuse may "serve as a disinhibitor" and "it's not unusual in a sexual offending situation where somebody becomes intoxicated and their ability to kind of manage their impulses or urges declines and they commit the crime under those circumstances." Defendant himself admitted "drugs or alcohol were a component of each of" his qualifying crimes. Even so, Musacco would not go so far as to say defendant's polysubstance dependence was the qualifying mental disorder for purposes of the SVPA.
Dr. Murphy's testimony.
In one report, Murphy found defendant suffered from paraphilia NOS, using the DSM-IV-TR terminology. In a later report, Murphy used the DSM-5 terminology — "other specified paraphilic disorder" "sex with nonconsenting persons" — to refer to the same condition. Murphy also diagnosed defendant with "other specified personality disorder with antisocial and narcissistic traits," and schizophrenia.
Although the paraphilic disorder was the predominant qualifying disorder, Murphy determined it was "very difficult to tease out the interrelationship between his substance use history, some underlying personality characteristics that incorporate entitlement, [and] lack of regard for the law . . . ."
Murphy also diagnosed defendant with schizophrenia, "which, if the symptoms were active at a given point in time could further disinhibit him, impede reality testing, [and] act almost like drugs or alcohol . . . to potentially disinhibit or disorganize [him] to the point that" he would act on a paraphilic behavior that he might otherwise have learned to control though treatment. Although defendant did not appear to have schizophrenia at the time of his offenses, Murphy believed it was a contributing factor that could "potentially [exacerbate] the expression of the paraphilic disorder." Even so, unless defendant "express[ed] a delusion or hallucination that commands him to rape," Murphy would not consider it a qualifying diagnosis, "but it certainly will interact with paraphilic urges. And if he's in a decompensated state, it increases the risk. It's more of [a] criterion C risk issue, I think."
Criterion C relates to element 3 in CALCRIM No. 3454, which asks the jury whether "[a]s a result of that diagnosed mental disorder, [defendant] is a danger to the health and safety of others because it is likely that [he] will engage in sexually violent predatory criminal behavior."
Defense Experts
Both Dr. William Damon and Dr. Brian Abbott testified they did not believe defendant had a qualifying mental disorder for purposes of the SVPA.
Dr. Damon's testimony.
Damon diagnosed defendant with schizophrenia in partial remission. Defendant's schizophrenia had become apparent in 2005. He became agitated, more verbally hostile, and occasionally made threats. This continued until 2010, when defendant was placed on involuntary antipsychotic medication, and his behavioral problems ceased. Damon also found defendant suffered from mild cannabis use disorder in a controlled environment in remission.
Damon did not find any mental disorder that predisposed defendant to commit sexual offenses. The diagnostic and statistical manual separates sadism from paraphilia. Under DSM-5, a person with a paraphilic disorder would be classified as having other specified or nonspecified paraphilia. Under DSM-IV-TR, such person would be classified under the umbrella heading of paraphilia NOS. Damon did not believe there was sufficient repetitiveness in defendant's offenses to diagnose defendant as having paraphilia.
Under a more recent theory, there are two general types of rapists: a general antisocial rapist and a paraphilic rapist. In Damon's opinion, defendant's offenses in 1987 and 1999 looked no different from those committed by a general antisocial rapist and had more to do with defendant's history of antisocial features, such as anger, than a sexual disorder.
According to Damon, defendant's schizophrenia was not a qualifying mental disorder because there was no evidence defendant had sexual hallucinations or delusions and "[e]ven when he has been floridly psychotic in the state hospital," defendant never "engaged in sexually inappropriate behavior or made comments about wanting to rape somebody or something like that." Schizophrenia is also a rare qualifying diagnosis.
Dr. Abbott's testimony.
Abbott believed there was insufficient evidence to diagnosis defendant with paraphilic disorder. Although "other specified paraphilic disorder or unspecified paraphilic disorder may be a diagnosis, . . . we really have no way of identifying it at this point, and that's the major problem in the field is that there is not a reliable way to diagnose the condition." While Abbott agreed with Murphy's diagnosis of schizophrenia, he disagreed it affected defendant's "emotional and behavioral control, predisposing him to engage in acts of sexual violence."
DISCUSSION
During deliberations, the jury submitted the following question: "In order to find the petition to be true, regarding criteria #2, must we be convinced beyond a reasonable doubt that he specifically suffers from the paraphilia NOS disorder, non-consent"? After a discussion with counsel, the court responded, "No. The Court directs the jury to the totality of CalCrim instruction 3454." Defendant contends this was error. We disagree.
Background
Initially, the court indicated it believed that based on CALCRIM No. 3454, the answer to the jury's question should be a simple "No." The prosecutor, however, asked the court to give the special instruction he had previously requested but had been denied by the court. The instruction directed that although all jurors must agree beyond a reasonable doubt that defendant suffers from a diagnosed mental disorder, they do not all have to agree on which specific mental disorder he suffered from. The prosecutor explained that although the People's experts were "hanging their hat" on the paraphilia diagnosis, it was up to the jury to decide whether another diagnosis met the criteria for a qualifying mental disorder. He gave schizophrenia as an example, noting that Murphy had said at a minimum that "it aggravated the underlying paraphilia." Thus, one juror may believe it was "just paraphilia" while another could believe it was "paraphilia in conjunction with the schizophrenia."
The prosecutor also pointed out the experts used different terminology. One called it "paraphilia NOS, nonconsent." Another used the term paraphilia NOS, without the word "nonconsent." There was also the current terminology of "other specified paraphilic disorder or the nonspecified paraphilic disorder." Additionally, a defense expert used the term "paraphilic rape."
Defense counsel responded it would be improper to instruct the jury with the prosecutor's special instruction and asked the court to direct the jury to elements two and three of CALCRIM No. 3454. Defense counsel acknowledged the logic behind simply answering "no," but maintained the response should be "yes" because he had made it clear in his closing argument that the jury could only "rely on . . . a paraphilic disorder or the paraphilia NOS, nonconsent . . . ."
The trial court noted the difficulty with the differing terminology. It was concerned the jury's question only referenced the DSM-IV-TR language despite the "other types of terminology used by other experts." and stated it was inclined to direct the jury to CALCRIM No. 3454's definition of a "diagnosed mental disorder." Defense counsel agreed this would be proper but requested the court direct the jury also to the second and third elements as well.
CALCRIM No. 3454's definition of a "diagnosed mental disorder" very nearly replicates the definition in section 6600, subdivision (c). See footnote 4, ante. "The term diagnosed mental disorder includes conditions either existing at birth or acquired after birth that affect a person's ability to control emotions and behavior and predispose that person to commit criminal sexual acts to an extent that makes him or her a menace to the health and safety of others." (CALCRIM No. 3454.) --------
The court then announced its intention to answer the jury: "No. The Court directs the jury to the totality of CalCrim instruction 3454." Defense counsel objected to the word "no" but stated that if the court were to use the word "no, then to direct the jury to the second and third elements. The court believed the word "no" was necessary because the jury asked whether it "specifically [had] to find [defendant suffered from] a certain one of multiple diagnoses which were actually referenced during the course of the trial."
When the bailiff brought the court's written response to the jury, he picked up another note stating, "We are deadlocked on true-not true." But as the court prepared to contact counsel, the jury indicated it had reached a verdict. Defense counsel believed the court's answer might have confused the jury into believing the paraphilia did not have to be the qualifying mental disorder and asked the court to ask the jurors about the deadlock. The court declined. The jury returned a true finding that defendant was an SVP.
Defendant moved for a new trial. He supported the motion in part with the declarations of two jurors that they believed defendant suffered from a mental illness, but not a paraphilia-based one, and changed their vote from not true to true based on the court's answer. The court denied the motion.
Analysis
Defendant contends the trial court's answer to the jury's question was improper and violated his right to due process. According to defendant, there was substantial evidence of only one diagnosed mental disorder, paraphilia, that predisposed him to commit criminal sexual acts. He argues that because "no expert testified that any . . . mental disorder . . . qualified [as a mental disorder within the meaning of the SVPA] other than his paraphilic disorder[,] this was a case where the jury needed to be told that they had to unanimously agree that [he] suffered from a paraphilic disorder — whatever name they might give it." We disagree.
In criminal cases, Penal Code "[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law." (People v. Smithey (1999) 20 Cal.4th 936, 985.) "The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion . . . to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] . . . [Citation.] . . . It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
The trial court's duty is similar in civil cases. Where the jury seeks further guidance during its deliberations by asking questions, it is "'incumbent on the trial court to give instructions on all the vital issues in the case so that the jury w[ill] have a full and complete understanding of the law applicable to the facts.' [Citation.] 'The responsibility for adequate instruction becomes particularly acute when the jury asks specific guidance.'" (Bartosh v. Banning (1967) 251 Cal.App.2d 378, 387.) We review a trial court's response to a jury question for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 745-746; see People v. Smithey, supra, 20 Cal.4th at p. 985.)
Here, the original jury instructions were full and complete (defendant does not contend otherwise) and the trial court did not abuse its discretion by not giving a unanimity instruction. "An SVP proceeding is civil, not criminal, and the unanimity requirement for an SVP proceeding is established by statute. [Citation.] Under the SVPA, the jury must determine whether the requirements for classification as an SVP have been established 'beyond a reasonable doubt' and the jury's verdict must be unanimous. [Citations.] There is no statutory requirement regarding unanimity for each subpart of the SVP determination." (People v. Carlin (2007) 150 Cal.App.4th 322, 347; see People v. Fulcher (2006) 136 Cal.App.4th 41, 59 [criminal rule requiring unanimity instruction does not apply in civil commitment proceedings under the SVPA].)
Defendant implicitly acknowledges the court's answer of "no" to the jury's question was legally correct. But he claims it was "misleading and incomplete" because it allowed the jury to find defendant to be an SVP based upon his schizophrenia diagnosis "even though the experts made it clear that they did not believe that . . . was a qualifying diagnosis." According to defendant, it was not possible the jurors would fail to recognize "that the various terms used for the paraphilia NOS diagnosis all referred to the same mental disorder" because they were repeatedly told they were. Thus, he asserts the jury should have been instructed that while it "did not have to agree on the specific name of the paraphilic disorder, every juror had to find that [defendant] suffered from such a disorder" before it could deem him an SVP.
Defendant did not request such an instruction in the trial court. Rather, he argued only that the answer to the jury's question should be "yes" and asked the court to direct the jury to element two and three of CALCRIM No. 3454. Where, as here, defendant agrees "[t]he instruction is a correct statement of law, . . . if defendant favored further clarification, he needed to request it. His failure to do so waives this claim." (People v. Marks (2003) 31 Cal.4th 197, 237.)
Moreover, the issue was one for the jury to sort out, not the courts. Defendant's proposed jury instruction "would have thrust the court into the jury's role of deliberating whether defendant [suffered from a qualifying diagnosis]. 'When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury's inclination.'" (People v. Montero (2007) 155 Cal.App.4th 1170, 1180.) The court's succinct answer of "no" to the jury's inquiry "kept the court out of the jury's deliberating role, while at the same time" (ibid.) directly answered the jury's specific question. It did not abuse its discretion in doing so.
"In any event, claims of instructional error are examined based on a review of the instructions as a whole in light of the entire record." (People v. Lucas (2014) 60 Cal.4th 153, 282, disapproved on a different point in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) "An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words." (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) We review all instructions given, not just the instruction complained of, to determine whether the jury charge as a whole was correct. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1249.) In reviewing a claim of instructional error, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions that are given. (People v. Richardson (2008) 43 Cal.4th 959, 1028.) We presume the jury followed the trial court's instructions unless the record affirmatively indicates otherwise. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83.)
Here, in addition to answering "no" to the jury's question, the court directed the jury to CALCRIM No. 3454. The instruction told the jury that in order to conclude defendant was an SVP, it had to find beyond a reasonable that, among other things, defendant "2. . . . 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.) The instruction goes on to explain: "The term diagnosed mental disorder includes conditions either existing at birth or acquired after birth that affect a person's ability to control emotions and behavior and predispose that person to commit criminal sexual acts to an extent that makes him or her a menace to the health and safety of others."
Thus, even if element 2 allowed some jurors to find defendant had a diagnosed mental disorder other than paraphilia, those jurors would then have to conclude that mental disorder predisposed defendant to commit sexually violent offenses. Element 3 ensured that defendant could be found an SVP only if the diagnosed mental disorder he was found to have was one which predisposed him to commit sexually violent offenses. Viewing all of the given instructions, it was not reasonably likely the jury misunderstood the court's response to mean that criterion 2 could be satisfied by a mental disorder that did not predispose defendant to committing sexually violent offenses. Nor is there any evidence the jury did not follow the court's instructions.
Although defendant subsequently submitted two juror declarations in support of his motion for new trial in an attempt to show they were misled, he acknowledges the declarations were not admissible "to show the effect of the trial court's answer to the jury's question on the deliberative process of the jurors." (Evid. Code, § 1150, subd. (a); Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1125 ["juror declarations are inadmissible to the extent that they purport to describe the jurors' understanding of the instructions or how they arrived at their verdict"]; People v. Steele (2002) 27 Cal.4th 1230, 1261.) Defendant contends, however, they "were undoubtedly admissible to show that the jury was split ten to two for a true finding and that the votes were changed only after the jury received the answer to their question from the trial court." Even if so, the change in vote count following the court's response to the jury's question does not show the jurors failed to follow the court's instructions or that the court abused its discretion in answering as it did.
DISPOSITION
The orders are affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.