Opinion
E031741.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES RODRIGUEZ, Defendant and Appellant.
Harry I. Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Anthony Da Silva and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
1. Introduction
Respondent Rodriguez appeals a jury finding that he is a sexually violent predator (SVP) under Welfare and Institutions Code section 6600. He charges the court erred by admitting two probation reports concerning his underlying crimes and in its jury instructions regarding the meaning of "likely" to reoffend. Additionally, he asserts there was not substantial evidence he qualifies as an SVP.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
We hold the admission of the probation reports and the jury instruction concerning "likely" to reoffend were not prejudicial errors. Furthermore, substantial evidence supported a finding Rodriguez is an SVP.
2. Factual and Procedural Background
In 1998, Rodriguez was first judged to be an SVP and committed to Atascadero State Hospital for two years. In 2000, the district attorney filed a petition for subsequent commitment. Rodriguez stipulated that he had been convicted of sexually violent offenses against two victims. Rodriguez committed his crimes against two brothers under age 14, one of whom was mentally retarded. For several years during the 1980s, in concert with the brothers father and others, Rodriguez sodomized and otherwise molested the boys, including forcing them to use drugs and engage in sex with their mother. Rodriguez was arrested in 1985 and has been in custody since.
Section 6604 et seq.
Three mental health professionals evaluated Rodriguez. The Peoples two expert witnesses were Gabrielle Paladino, a psychiatrist, and Diane Imrem, a psychologist. In their written evaluations prepared in May and June 2000, both doctors concluded Rodriguez was "likely to engage in sexually violent criminal behavior in the future."
At trial, Paladino testified she is a staff psychiatrist at the hospital with responsibility for 87 patients classified as SVPs. Rodriguez is one of her patients. Paladino found that Rodriguez meets the criteria for four mental disorders: paraphilia, sadism, substance dependence, and personality disorder. Paladinos opinion was that Rodriguez had improved since being committed but he "poses a potential for yet more sexual reoffending." She based her opinion in part on Rodriguezs refusal to participate in sex offender treatment. Also it is established that pedophiles who target boys have the second highest rate of recidivism, exceeded only by exhibitionists. Additionally, Paladino used a diagnostic tool called the Static 99 to assess the risk of Rodriguez reoffending. Out of a total of 12 possible points, Rodriguez scored at least three, meaning there was a 12 percent chance of Rodriguez reoffending in five years, a 15 percent chance of reoffending in 10 years, and a 19 percent chance of reoffending in 15 years. His Static 99 score could be as high as five, with a 40 percent chance of reoffending in 15 years. Paladino testified "to a reasonable degree of medical certainty" Rodriguez "is likely, 51 percent or more, to commit more sexually violent crimes if he doesnt receive the treatment that is available . . . ." Rodriguez meets the criteria for an SVP.
On cross-examination, Paladino admitted she has not diagnosed Rodriguez as being a pedophile. Nor did Rodriguez engage in paraphiliac activity while in prison. Paladino agreed that substance abuse was a contributing factor to the commission of Rodriguezs crimes. Rodriguez has admitted his crimes and expressed remorse. Of all the people she has evaluated, Paladino found Rodriguez to be the person closest to not meeting the criteria for an SVP.
Imrem also testified that Rodriguez is likely to reoffend and meets the criteria for an SVP. To Imrem, "likely" means a figure greater than 50 percent. Imrem rated Rodriguez as having a lower than the average score on the Static 99. Rodriguezs score means he had a nine to 12 percent risk of reoffending in five years, a 13 or 14 percent risk of reoffending in 10 years, and a 16 to 19 percent risk of reoffending in 15 years. Rodriguez demonstrates psychopathy, antisocial personality disorder, paraphilia, and pedophilia. Imrem deemed it significant that Rodriguez has refused to participate in sex offender treatment. Rodriguez also has significant problems with anger. Imrem acknowledged that Rodriguezs substance abuse problems contributed to his criminal behaviors and that he did not display paraphiliac behaviors in the hospital.
Dr. Theodore Donaldson testified for Rodriguez. He concluded Rodriguez "does not have any measurable degree of inability to control his behavior." He thought the likelihood of Rodriguez reoffending was between five percent and 20 percent. "Likely" is not a scientific term and comprises a range from 10 percent to more than 50 percent.
Donaldson reasoned that, because Rodriguez had not tried to control his behavior when he committed his sex crimes, there was no evidence Rodriguez cannot control himself and acted under compulsion. Rather, under the influence of drugs, he participated in molesting the brothers without being compelled to do so.
Donaldson agreed Rodriguez has an antisocial personality disorder. But Donaldson did not diagnose Rodriguez as having a mental disorder that predisposes him to committing sexual offenses. Rodriguez had a very low Static 99 score of three and, without having a mental disorder, he does not meet the criteria for an SVP. His age, now in his 40s, would also mitigate against him being likely to reoffend. He has cooperated in hospital programs other than the sex offender treatment. Donaldson regards the sex offender program as having no benefit and no effect on recidivism rates.
Rodriguez testified on his own behalf about his family history, his experiences in the foster care system, and his early use of drugs and alcohol. At age 22 or 23, he became acquainted with the victims family. Rodriguez, together with the victims father, their uncles, and other people, forcibly sexually molested the two brothers. He denies having injected one of the boys with drugs in the penis or forcing him to eat a worm. While in prison, he continued to use drugs and alcohol but he did not engage in non-consensual sex. He stopped drinking in 1994, before he left prison. He refused sex offender treatment in the hospital because it was not confidential. In 1999, he started substance abuse treatment. In December 2000, he relapsed by smoking one marijuana stick. He has also attended anger management classes. He received vocational training in cabinetry.
On cross-examination, he agreed he would benefit from treatment if it was available. He admitted that children present a high-risk situation for him.
A hospital nurse also testified and described defendants successful participation in a 12-week substance abuse recovery program.
A jury found Rodriguez to be an SVP and the court ordered him committed to a state hospital for another two years.
3. Admission of the Probation Reports
Rodriguez argues the court prejudicially erred in admitting the probation reports which included multiple levels of hearsay and evidence of other uncharged acts.
Generally, probation reports are admissible in an SVP hearing. Rodriguez acknowledges that, in SVP proceedings, "experts rely on hearsay evidence such as probation reports to render their opinions," citing People v. Superior Court (Howard). The jury was instructed the reports could not be considered as independent proof of the facts stated but as part of the basis for the experts opinions. We agree with the People the reports were admissible because they contained the facts and materials upon which the experts based their opinions. Such hearsay evidence is admissible if its probative value outweighs its potential for prejudice.
People v. Otto (2001) 26 Cal.4th 200, 209.
People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 152-154.
People v. Carpenter (1997) 15 Cal.4th 312, 403, 935 P.2d 708.
Here the reports did not "create substantial danger of undue prejudice" because any prejudice was ameliorated when the same horrific details about the nature and extent of Rodriguezs crimes were revealed during the testimony of the experts and Rodriguez himself. The information in the probation reports may have been cumulative or redundant but it was not new, surprising, or inflammatory. The court did not abuse its broad discretion in admitting the reports.
People v. Jordan (1986) 42 Cal.3d 308, 316, 228 Cal. Rptr. 197, 721 P.2d 79.
4. Instructional Error
At the trial of this matter in April 2002, the court instructed the jury that, in order to commit Rodriguez as an SVP, the People had to prove "beyond a reasonable doubt that the respondent has serious difficulty in controlling his behavior." [Emphasis added.] Since the trial, the California Supreme Court has issued three decisions explaining the unique meaning of "likely" as used in the phrase "likely that he or she will engage in sexually violent criminal behavior." As stated in Roberge: "Not all of the[] dictionary definitions of likely are consistent with the particular and technical meaning the SVPA assigns that term: the person charged as a sexually violent predator poses a substantial danger, that is, a serious and well-founded risk, of committing a sexually violent predatory crime if released from custody." Had the trial court possessed the necessary foreknowledge of the Supreme Court decisions, that is how it should have instructed the jury. But, even if the instruction was wrong, it was not prejudicial because the evidence established Rodriguez meets the criteria for an SVP, in that he presents a serious and well-founded risk of reoffending.
Section 6600, subdivision (a); People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888; Cooley v. Superior Court (2002) 29 Cal.4th 228; People v. Roberge (2003) 29 Cal.4th 979.
People v. Roberge, supra, 29 Cal.4th at pages 988-989 [emphasis added].
People v. Roberge, supra, 29 Cal.4th at page 989.
Even given his low score on the Static 99 test, Doctors Paladino and Imrem concluded there was a likelihood of greater than 50 percent that Rodriguez would reoffend. They diagnosed Rodriguez as suffering from six diagnosable mental disorders, including substance dependence and paraphilia, which together are sufficient to support an SVP finding. Donaldson conceded the likelihood of reoffending was as high as 20 percent. He agreed Rodriguez has an antisocial personality disorder. Rodriguez testified he did not start substance abuse treatment until 1999 and relapsed in December 2000. He admitted he could present a risk to children. The evidence that defendant is at risk for reoffending was substantial as well as serious and well founded. On this record, we can easily conclude beyond a reasonable doubt that defendant did not suffer prejudice from the challenged jury instruction. For the same reasons any instructional error was harmless, substantial evidence showed Rodriguez was an SVP and likely to reoffend.
People v. Butler (1998) 68 Cal.App.4th 421, 442.
People v. Roberge, supra, 29 Cal.4th at page 989.
5. Disposition
We affirm the judgment.
We concur: McKinster Acting P. J., King J.