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People v. Tapia

California Court of Appeals, Third District, Butte
Jul 15, 2008
No. C054889 (Cal. Ct. App. Jul. 15, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JOSHUA TAPIA, Defendant and Appellant. C054889 California Court of Appeal, Third District, Butte July 15, 2008

NOT TO BE PUBLISHED

Super. Ct. No. CM006214.

DAVIS, J.

The Butte County Superior Court, sitting without a jury, found that defendant William Joshua Tapia is a sexually violent predator (SVP). (Welf. & Inst. Code, § 6600, subd. (a).) Defendant was committed to the State Department of Mental Health (DMH) for an indefinite term. (§§ 6604, 6604.1, subd. (a).)

Hereafter, undesignated section references are to the Welfare and Institutions Code.

On appeal, defendant contends (1) he cannot be committed for an indefinite term, and (2) the finding that he is an SVP is not based on a correct application of due process requirements. We shall affirm the judgment.

Facts and Procedural history

Criminal history

In 1963, defendant drove around Los Angeles County looking for work. He drove up to a residence where an eight-year-old girl was playing outside. She told him that her parents were not home but her mother would be home shortly. She went inside and he followed her. He carried her to an adjacent room, laid her on the bed, removed her panties and placed them in a bag. He lowered his pants and tried to put his penis in her vagina, but her mother interrupted him by calling out from another room. The girl got up and told the mother that there was a man in the house. Defendant was found to be a mentally disordered sex offender (MDSO) and was committed to Atascadero State Hospital (ASH) from 1963 until 1966.

In 1971 in Florida, defendant was charged with assault with intent to rape an adult woman. He was convicted of assault and battery and was sentenced to jail for one year.

In December 1993 in Butte County, defendant saw a 13-year-old girl walking along the Skyway. Thinking that she was 20 years old, defendant followed her slowly in his car, frightening her and causing her to report the incident to police. No charges arose from these facts, but around this time defendant was convicted of failure to register as a sex offender.

In 1995 in Butte County, defendant’s niece and her 10-year-old girlfriend, E.H., were sleeping on a patio when defendant came out and lay down next to E.H. He got under her blanket, put his hand underneath her shorts and underwear, and rubbed her vagina. Eventually she sat up, and he tried to remove her shirt. He tried to put his head between her legs, but she struggled and pushed him away. He kissed her twice on the lips and left. He was sentenced to state prison for eight years.

SVP Procedural History

In July 2002, a petition was filed seeking to commit defendant as an SVP for two years. The trial court ordered that a hearing be held to determine whether probable cause existed to believe that defendant is an SVP.

In October 2002, defendant waived his right to a probable cause hearing and submitted the matter on the reports of the DMH evaluators and his own expert. Over his counsel’s objection, defendant waived his right to a jury trial on the issue of whether he was an SVP and stipulated that the court could try the issue on the basis of the evaluations. The court found beyond a reasonable doubt that defendant was an SVP and ordered him committed to ASH for two years.

In November 2002, defendant moved to withdraw his jury trial waiver and to vacate the court’s order committing him as an SVP. The trial court granted the motion to withdraw the jury trial waiver and set a trial date.

In January 2003, the trial court granted the People’s motion to stay the SVP proceedings pending its appeal of the order granting defendant’s motion to withdraw his jury trial waiver. In August 2004, this court affirmed the trial court’s order. (People v. Tapia (Aug. 30, 2004, C042890 [nonpub. opn.].)

On September 21, 2006, defendant again waived his right to a jury trial. Court trial commenced, and the court heard testimony on that day and the following day.

In October 2006, the People filed a petition for an order “extending” defendant’s ASH commitment “for an indefinite term” pursuant to section 6604. (Stats. 2006, ch. 337, § 55, urgency eff. Sept. 20, 2006.)

In November 2006, defendant submitted an additional report of his expert, psychologist James J. Park, and the People submitted an additional report of DMH’s evaluator, psychologist Douglas R. Korpi.

2006 Court Trial

A. Prosecution case-in-chief

Dr. Korpi evaluated defendant in June 2002, October 2004 and July 2006. Dr. Korpi diagnosed defendant with pedophilia, which he described as a sexual orientation in which a person is “attracted to children.” The attraction does not go into “remission,” but is always present; a pedophile will “always like children.” Thus, the diagnosis of pedophilia “has nothing to do with impulse control” or volitional impairment. A person who is attracted to children but successfully controls his impulses to act on that attraction is still a pedophile.

Regarding volitional impairment, Dr. Korpi recounted defendant’s statement to an ASH psychiatrist, Dr. Wagner, that during the 1963 offense he was confused, lost his controls, felt as though he were in a dream state, and “fell in love in his dreams.” Dr. Korpi noted that, during the ASH commitment that followed, defendant was in a “delusional” or “quasi-psychotic state.” Dr. Korpi surmised that the 1963 incident could have happened “within the context of some sort of a mildly[]altered state, which he seems to go in and out of . . . .”

Dr. Korpi recounted defendant’s 2004 statement that he did not realize what he had done during the 1995 offense. That same year defendant told ASH staff that the 1995 offense “was an impulse thing and it was natural.” Dr. Korpi testified that defendant was usually able to keep his impulses at bay, but sometimes the impulses would overcome him.

Alternatively, Dr. Korpi suggested that defendant’s comments describing an altered state were not credible. Dr. Korpi surmised that defendant “hates the fact that he likes children,” and thus is compelled to “make up some sort of reason for” his conduct. Dr. Korpi described this as “a case where self-deception, memory, and intent to lie all get together.”

Dr. Korpi performed several tests on defendant, including the Static 99, on which he scored a 5, which placed him at medium-high risk to reoffend. Dr. Korpi testified that defendant’s risk of reoffense was increased by his arrests for sexual offenses occurring on more than one occasion, his choice of strangers as victims, his lack of long-term intimate relationships, his attitude of tolerance regarding sexual offenses, his tendency to identify with children, and his diagnosis of pedophilia.

Other aggravating factors were defendant’s commission of both sexual and nonsexual offenses, his unstable employment history, his escaping or absconding from conditional release, and his having “cluster 2 personality diagnosis,” which indicates impulsivity. Dr. Korpi testified that defendant “continually beats the odds” by reoffending when statistical analysis suggests he would not do so.

Defendant’s protective (risk-reducing) factors were that his sexual offenses had not commenced during his early teens, none of his victims was a boy, he had not been convicted of noncontact sexual offenses, and he had no history of antisocial behavior. Defendant’s age of 68 years decreased the risk of reoffense, but age may not be as significant a factor with people such as defendant who are otherwise healthy.

Dr. Korpi testified that, if defendant could stay sober, his risk of reoffending would decrease somewhat but that alcohol was not necessarily the trigger to defendant’s behavior. Defendant’s offenses had been predatory in nature because his victims had been a stranger and a casual acquaintance. It was likely that, if he reoffended, the offense would be predatory. Dr. Korpi found it significant that, as late as 2006, defendant was stating that his actions had been the result of “natural impulses,” and that he believed that 10-year-olds were flirting with him.

Following the conclusion of testimony, Dr. Korpi submitted a written answer to the trial court’s question whether defendant’s “mental disorder cause[s] him to have serious difficulty controlling his dangerous behavior.” Dr. Korpi concluded that defendant was “not able to control his sexual feelings toward children,” and that, “over time, he [would] find himself unable to resist the sexual lure of children, he [would] mistake a child’s age, he [would] trip and fall into a child’s arms, and/or alcohol [would] get the better of him and he [would] sexually re[]offend.”

Dr. John Hupka evaluated defendant for DMH in June 2002 and concluded that he met the criteria for an SVP. Because defendant refused to participate in a direct interview, the evaluation was based on Dr. Hupka’s review of defendant’s records. The parties stipulated that his evaluation, along with the evaluations of other experts, would be considered by the court. Dr. Hupka did not testify at trial.

The weight to which Dr. Hupka’s 2002 evaluation is entitled is uncertain, because he appears to have reevaluated defendant two years later and reached an opposite conclusion. In response to the court’s question at trial, Dr. Park wrote that he agreed “with the two State evaluators (Drs. Coles and Hupka) in 2004 who found that [defendant] does not meet the [SVP] criteria[.]” Curiously, Dr. Hupka’s 2004 evaluation does not appear in the appellate record.

B. Defense

Dr. Park interviewed defendant in September 2002, July 2005, November 2005, and September 2006. After those interviews, and after reviewing defendant’s criminal history, his medical records and the reports of other evaluators, Dr. Park concluded that defendant did not meet the criteria of an SVP. According to the tests performed by Dr. Park, defendant’s likelihood of reoffending was very low. Dr. Park gave defendant a score of 5 on the Static-99 test, but Dr. Park believed that dynamic factors were more significant in assessing risk than static factors were. Dr. Park found it very significant that defendant was 56 years old when he committed his last offense and that he was currently 68.

Dr. Park did not diagnose defendant with pedophilia. He explained that, even if defendant had been diagnosed with pedophilia, the disorder was now in remission, which means that he “may never act out again.” Dr. Park concluded that defendant’s offenses were opportunistic, rather than predatory, because he had “never gone out looking for a child,” but the opportunity presented itself.

In Dr. Park’s view, defendant satisfied only one of the three criteria for an SVP. He had the requisite prior convictions, but he did not have the requisite mental disorder and was not likely to engage in sexually violent predatory criminal behavior in the future.

After the conclusion of testimony, Dr. Park submitted a written answer to the trial court’s question whether defendant’s “mental deficiency, disorder, or abnormality causes [defendant] serious difficulty in controlling his dangerous behavior.” Dr. Park concluded that defendant did not have serious difficulty controlling his dangerous impulses. Dr. Park noted that defendant had been attending Alcoholics Anonymous and that he “[knew] how important it [was] to stay away from children.” Dr. Park concluded that defendant was committed to staying in control of the factors that contributed to his sexual offending. Dr. Park opined that defendant was capable of volitional control and that he did not meet the criteria for an SVP.

Discussion

I

Defendant contends he cannot be committed for an indefinite term because the 2006 legislative amendment to section 6604, which authorized such terms, was not made retroactive. (Stats. 2006, ch. 337, § 55.) We disagree.

On November 7, 2006, following commencement of defendant’s trial but prior to the court’s ruling, the voters passed Proposition 83, which amended sections 6604 and 6604.1. Like the 2006 legislation, the 2006 initiative provides that SVP commitments are for indeterminate terms. (See Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1282 (Bourquez).)

As defendant recognizes, the effective date of the 2006 legislative amendment to section 6604 is September 20, 2006. Thereafter, on October 26, 2006, the prosecutor filed a petition seeking an indefinite commitment. The petition was captioned “Petition to Extend Sexually Violent Predator Commitment Pursuant to Welfare & Institutions Code Section 6604.” (Italics added.) The caption is somewhat misleading, in that extension of an SVP commitment was a creature of the former statutory scheme that presupposed an existing original SVP commitment. (Former § 6604, Stats. 1995, ch. 763, § 3, pp. 5925-5926; § 6604.1, Stats. 1998, ch. 19, § 5; see Bourquez, supra, 156 Cal.App.4th at p. 1280.) Here, however, no SVP commitment was in existence when the October 26, 2006, petition was filed. Although the proceeding spanned four and a half years, it sought an original commitment rather than an extended commitment. Thus, the October 26, 2006, petition is properly construed as an amended petition rather than an extension petition.

It follows that, contrary to defendant’s contention, the October 26, 2006, petition was not flawed for failure to be based upon “two current evaluations by practicing psychiatrists or psychologists.” The amended petition stated that it was based on court records, which included the requisite two evaluations from 2002. In any event, the prosecution submitted updated information from Dr. Korpi and the parties stipulated that the court could consider the 2002 report of Dr. Hupka.

Similarly, there is no merit to defendant’s claim that he was entitled to a new probable cause hearing on the amended petition. His cited authority, Butler v. Superior Court (2000) 78 Cal.App.4th 1171, 1180-1181, discusses petitions for extended commitments and does not suggest that he is entitled to more than one probable cause hearing with respect to a single commitment. Defendant waived his right to a probable cause hearing in 2002 and was not entitled to another hearing.

Finally, there is no merit to defendant’s claim that the 2006 legislation (or the 2006 initiative) was applied retroactively to this case. “In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date. [Citations.] A law is not retroactive ‘merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.’ [Citation.]” (People v. Grant (1999) 20 Cal.4th 150, 157 (Grant), italics omitted.)

In determining whether someone is an SVP, the last event necessary is the person’s mental state at the time of the commitment. While past qualifying sex crimes are used as evidence in determining whether the person is an SVP, a person cannot be so adjudged “unless he ‘currently’ suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior, and which ‘makes’ him dangerous and ‘likely’ to reoffend. [Citation.]” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162 (Hubbart).) “[T]he statute clearly requires the trier of fact to find that an SVP is dangerous at the time of commitment.” (Ibid., italics added.)

Because the present proceeding focused on defendant’s current mental state, applying the indeterminate term of commitment as specified in the legislation and the initiative does not attach new legal consequences to conduct that was completed before the effective date of the law. (Grant, supra, 20 Cal.4th at p. 157.) Applying present law (Prop. 83) to this case is not a retroactive application.

II

Defendant contends the trial court’s finding that he is an SVP is not based on a correct application of due process requirements. In his view, the commitment order “is based on [his] prior criminal acts and not upon a finding concerning his current mental and volitional condition.” He claims the court “did not order [his] confinement based on evidence of his current condition contained in the record.” We disagree.

A. SVP Terminology

We start with an overview of some terminology used at trial. The statutory phrase “‘[s]exually 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).)

The phrase “‘[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).)

The prosecution expert, Dr. Korpi, testified that “pedophilia” is a “sexual object orientation.” (Italics added.) The only criterion for a diagnosis of pedophilia is that the person is “attracted to children.” For this reason, the diagnosis of pedophilia “has nothing to do with impulse control” or “volitional impairment.” Thus, a person who is attracted to children but successfully controls the impulse to act on that attraction is “still a pedophile.”

Dr. Korpi’s testimony demonstrates that, to the extent defendant is “a danger,” in that “it is likely that he [] will engage in sexually violent criminal behavior,” it is not just because of his sexual orientation of attraction to children but also because of his volitional impairment or lack of impulse control. (§ 6600, subd. (a).)

Although Dr. Korpi did not describe this volitional impairment as a “diagnosed mental disorder” (and in fact claimed that volitional impairment is “not a term of art, it’s something that you can assess as well as I”) the SVPA provides that 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), italics added.) Thus, to the extent that defendant’s volitional impairment predisposed him to the commission of criminal sexual acts and thus constituted him a menace, he had a “diagnosed mental disorder” for purposes of the SVP act.

B. Analysis

“Prior qualifying sex crimes are used as evidence in determining whether the person named in the petition is an SVP beyond a reasonable doubt. [Citations.] However, the verdict cannot be based on prior crimes absent evidence of a ‘currently 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.’ [Citation.]” (Hubbart, supra, 19 Cal.4th at p. 1162, italics omitted; see § 6600, subd. (a)(3).)

Dr. Korpi testified that he “made [a] determination” of defendant’s volitional impairment, based on “the facts of the case.” He explained: “The fact that [defendant] has three events and he’s obviously a guy who does not like this about himself, he doesn’t want to be a pedophile, and yet he -- he can’t stop himself from doing precisely that, which he so abhors. That’s the -- that’s the testimony of the -- that he overcomes social sanctions, he overcomes law, he overcomes his own self-loathing and he does what he shouldn’t do. That’s the loss of volition control.” Defendant’s talk of experiencing an “euphoric love state” during the 1963 offense and his kissing of the victim of the 1995 offense after the sexual assault were “precisely consistent” with the loss of volitional control.

Subsequently, in his written response to the trial court’s question, Dr. Korpi concluded that defendant was “not able to control his sexual feelings toward children,” and that, “over time, he [would] find himself unable to resist the sexual lure of children, he [would] mistake a child’s age, he [would] trip and fall into a child’s arms, and/or alcohol [would] get the better of him and he [would] sexually re[]offend.”

Dr. Korpi’s written response to the court makes plain that he diagnosed a current mental disorder and did not merely describe defendant’s condition at the times of his prior crimes. Defendant nevertheless claims the trial court erred by basing its commitment order upon his “prior criminal acts and not upon a finding concerning his current mental and volitional condition.” This claim has no merit.

Because defendant’s volitional impairment, unlike his pedophilia, was not given a formal diagnosis, a name, or a citation to a standard psychiatric reference text, the terms used to describe the impairment were somewhat vague and imprecise.

At one point, the court referred to defendant’s mental state as “almost hallucinatory.” At a later point, it referred to his having developed “this almost delusional or hallucinatory experience as a way of hiding the reality of the situation that this was a minor.” Defendant complains that “the prosecutor never put on an expert [who] said [that defendant] suffered from hallucinations,” and that an evaluator at the time of the 1963 offenses had found that “[t]here were no abnormal mental trends, such as delusions or hallucinations.”

However, the trial court explained that its finding was based upon the 1974 incident, described by Dr. Korpi in his written response, in which defendant “ended up chasing after a 13-year-old girl, telling me that she looked 18 or 20.” The court found no evidence that the girl “looked anything different in point of fact from an average 13-year-old, and certainly did not look like an 18- or 19- or 20-year-old.” Even if defendant’s misperception of the girl’s age is not properly termed a delusion or hallucination, the trial court properly focused on defendant’s skewed perception and its effect upon his ability to control dangerous behavior.

The court later remarked that there was “something about the factual circumstances surrounding those incidents that I am talking about. The one back in ’63, the 10 year old, and the 13-year-old on the highway, there is something about all those incidents that shows kind of a pattern where there is almost a delusional or hallucinatory aspect to them where he is not seeing what’s happening as it really is happening.”

The trial court further explained that it was relying on the 1995 offense in which defendant was sexually inappropriate with a 10-year-old girl. Defendant told Dr. Korpi that the incident was “a case of ‘mistaken identity, and besides, he was drunk.’” The trial court properly deduced that defendant “thought it was an older person, or someone that it would be appropriate to be behaving in that fashion toward.” Contrary to defendant’s argument, Dr. Korpi’s description of the incident in his response to the court supports an inference that defendant thought he was “having sex with an adult when he was actually molesting a child.”

At another point, the trial court described defendant’s volitional impairment as a condition in which “[h]e could see somebody on the street, and there is something about the weather, and the way everything fits together, and all of a sudden he’s transported into some vision of something else than what is actually there. If that’s what is happening to him, I don’t think he has the ability to control that.”

Defendant contends that this assessment of the evidence, most particularly its statement about the weather, is not supported by the record. But the finding of defendant being transported into “some vision of something else” is fairly supported by his own description of the 1963 offense.

At a later point, the trial court described defendant’s volitional impairment as a condition in which he experiences a romantic fantasy. “I can’t say that he might not see a minor, and it would trigger some type of romantic fantasies because of the particular appearance of that person, or hair coloring or whatever, whatever the reason would be. Once he puts himself into that state of romantic fantasy, I am not sure he could control that, his response to those feelings.”

Defendant complains that no expert had opined that the sight of certain individuals triggers romantic fantasies. However, his having experienced “fantasies or behaviors towards prepubescent girls” had been noted by Dr. Korpi in his 2002 report. The precise nature of the triggers (weather, hair coloring, etc.) was not at issue.

In sum, the trial court deduced defendant’s present volitional impairment from his criminal history and from expert opinion of his current mental condition. Defendant was not “committed on the basis of a forty-year-old statement.”

Defendant contends that, “[f]rom the intervals between offenses, the trial court could have inferred that [he] could go long intervals without offending.” (Italics added.) However, evidence that defendant could go long periods without offending did not compel a conclusion that he would go another long period if released. So long as the evidence reasonably justifies the finding of the trier of fact, the circumstance that this same evidence could also be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Ceja (1993) 4 Cal.4th 1134, 1139 (Ceja).)

Contrary to defendant’s contention, the trial court did not “refuse[] to consider the factor of age” in assessing his current volitional control. The court considered defendant’s age (68 years), but it refused to deduce that his advanced age would reduce the likelihood of his reoffending. Instead, the court deduced that “in cases of advanced age where people approach a grandfatherly status in life, really there is more contact with young children than there is when you are in your 40s and 50s. Many children are drawn and attracted to old, grandfatherly[-]type people that seem to represent something that’s nonthreatening and affectionate.” The fact the evidence would also support a contrary inference, i.e., that defendant’s age of 68 years decreased the risk of reoffense, does not require reversal of the judgment. (Ceja, supra, 4 Cal.4th at p. 1139.)

Disposition

The judgment is affirmed.

We concur: SCOTLAND, P.J., NICHOLSON, J.

Although the evidence from 1963 did not show an actual hallucination, it did show a failure of perception that had counterparts in subsequent incidents. Defendant has not shown any prejudicial error.


Summaries of

People v. Tapia

California Court of Appeals, Third District, Butte
Jul 15, 2008
No. C054889 (Cal. Ct. App. Jul. 15, 2008)
Case details for

People v. Tapia

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JOSHUA TAPIA, Defendant…

Court:California Court of Appeals, Third District, Butte

Date published: Jul 15, 2008

Citations

No. C054889 (Cal. Ct. App. Jul. 15, 2008)