Opinion
H029024
12-12-2006
THE PEOPLE, Plaintiff and Respondent, v. KENNETH DALE WALLACE, Defendant and Appellant.
Defendant Kenneth Dale Wallace, 54, adjudicated a sexually violent predator (SVP) in 1999, appeals from a two-year extension of his involuntary commitment to Atascadero State Hospital (Atascadero) as an SVP from February 5, 2005, to February 4, 2007, under Welfare and Institutions Code Section 6604.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS
On November 12, 1992, defendant was convicted of two violations of Penal Code section 288, subdivision (a), for lewd and lascivious acts (masturbation which constituted substantial sexual conduct according to section 6600.1) upon Jorge and Adrian, five-and eight-year-old boys. Defendant received three years in state prison. He was paroled in 1994 and was arrested in Colorado about three years later for oral copulation and sodomy with a 14-year-old boy.
On February 5, 1999, defendant was committed to Atascadero for two years as an SVP after a court trial and thereafter was recommitted on judicial determinations that he met the SVP criteria, namely, that he suffered the necessary predicate prior convictions, he continued to have a currently diagnosable mental disorder, and by reason of such disorder, he was likely to engage in sexually violent criminal conduct in the future.
The instant petition was filed on December 27, 2004, and jury trial was held ending on June 21, 2005. Testifying as a prosecution witness, defendant gave his version of the facts underlying his convictions at the hearing on the instant petition. Defendant stated that he was convicted of the 1992 offenses, but he denied committing the acts. Defendant contradicted the police report which stated that defendant said he approached the boys at a park, called eight-year-old Adrian over to him, knelt down in front of him, pulled down his pants, and masturbated his penis skin-to-skin. Defendant then pulled down his own pants and exposed his penis and told Adrian that he was going to put it in his mouth. Adrian said no. Defendant then called Jorge over, pulled down five-year-old Jorges pants and masturbated his penis. When the police arrived, they saw defendant still touching Jorge.
Defendant testified that the boys approached him while he sat on a bleacher and that they sat on his lap. Adrian told him about problems at home while defendant listened. Defendant denied that he had his hand in Jorges pants. He claimed that he pled no contest to the charges because the boys had problems at home. He stated that when he told the arresting officer that he believed whatever the boys said and would plead guilty, he did not know what they had said.
Defendant admitted that after his release on parole, he failed to comply with parole conditions, failed to register as a sex offender, and failed to participate in outpatient treatment. He left the area without permission and went to Colorado. On August 7, 1997, defendant met 14-year-old Anthony in Colorado, and gave him alcohol. Defendant denied trying to kiss Anthony, putting Anthonys head in his lap, putting his penis near Anthonys anus and moving until he ejaculated. Although defendant wrote a confession detailing his sexual offenses against Anthony, at trial, he claimed that he simply wrote what Detective Copp said Anthony had stated.
Defendant testified that he believed a 14-year-old can consent to alcohol and sex with an adult and that three to four different children aged 10 to 14 years had "come on to [him]." He said that in his home state of Texas, teenagers marry, and that when he was 15 years old, he married a 33-year-old woman. Defendant admitted that he pled guilty to sexual assault with a child but he did not believe that he needed alcohol treatment or for being a sexual offender, and he did not believe he posed a risk of reoffending.
In addition to defendants testimony, the prosecution presented psychologists Robert Owen, Ph.D., and Jeremy Coles, Ph.D., both of whose interviews defendant declined, the latter because Dr. Cole would not allow defendants attorney to be present or the interview to be taped.
Dr. Owen diagnosed defendant with pedophilia, sexually attracted to males; a personality disorder involving an enduring pattern of behavior different from the norm; and alcohol dependence. Dr. Owen believed defendants diagnosis affected his volitional capacity such that it was likely he would reoffend sexually and that his pedophilia made it difficult for him to control his urges. Dr. Owen assessed defendant with an actuarial instrument called Static-99, which groups people into low, medium, and high risk categories. Defendants score of six placed him in the highest risk category (the highest 12 percent). Persons who score in this category have a 39 percent probability of being convicted of a new offense in five years, a 45 percent probability in 10 years, and a 52 percent probability in 15 years. Dr. Owen admitted that Static-99 is accurate 71 percent of the time, nevertheless, he concluded that defendant posed a "great risk of sexually reoffending," that he posed a risk for predatory reoffense, that he was "going backwards" in terms of progress, and that he was not amenable to treatment in the community.
Dr. Coles diagnosed defendant as having paraphilia NOS (not otherwise specified), personality disorder NOS with antisocial and narcissistic traits, that is, marked by reckless disregard of others, inability to follow social norms, interpersonal explosiveness, lack of empathy, lack of remorse, and substance and alcohol abuse. Defendants views that a 14-year-old could consent to sex with an adult indicated deviant sexual impulses. Defendants view that four children aged 10 to 14 years of age "came on" to him reflected his cognitive distortions. Dr. Cole opined that defendants paraphilia affected his volitional and emotional control. Defendants view that he was loving and helping the children he molested indicated a problem with his emotional capacity. In Dr. Coles opinion, defendant was not amenable to voluntary treatment. He concluded defendant was likely to reoffend in a predatory manner.
"Paraphilia" is "a condition manifested by deviant sexual behavior that predispose[es] [a person] to the commission of criminal sexual acts." (People v. Munoz (2005) 129 Cal.App.4th 421, 425 (Munoz).)
The trial court agreed with the experts opinions and extended defendants commitment to February 4, 2007. This appeal ensued.
ISSUES ON APPEAL
Defendant contends that his right to a fair trial was violated because (1) the trial court invoked the doctrine of collateral estoppel to preclude him from challenging evidence of the prior violent sexual convictions which made him eligible for a SVP commitment and recommitment. (2) The court admitted into evidence the police report containing the victims and witnesses hearsay statements to prove the facts of those offenses.
EVIDENCE OF PRIOR SEXUAL OFFENSES
Defendant contends that the trial court violated his right to a fair trial when it ruled that the two prior sexually violent offenses against two or more victims which are required for commitment under the SVP law (§ 6600, subd. (a)) had been found valid in a prior commitment petition and that defendant was estopped from challenging them in the present proceeding. In addition, the police report of the prior conviction was admitted "to prove the facts surrounding the underlying offenses, as opposed to the conviction." The jury was instructed, "As a matter of law, the court has determined that Mr. Wallace has suffered the requisite qualifying prior convictions. That is not an issue for the jury to decide." Defendant claims that the ruling precluded the defense "from arguing the priors."
In order for a person to qualify as a "sexually violent predator," he or she must be proven to be a person who has been convicted of a sexually violent offense against two or more victims and who has been diagnosed with a 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 behavior. (§ 6600, subd. (a)(1).) An initial SVP commitment requires (1) evaluations by two psychologists or psychiatrists agreeing that the prisoner is an SVP based on a standard assessment protocol, (2) a request by the Director of Corrections that the designated attorney in the prisoners county of incarceration file a petition for commitment, (3) the filing of a petition (§ 6601), (4) a review by a superior court judge to determine if the petition contains sufficient facts to constitute probable cause to believe that the prisoner is likely to engage in sexually violent predatory criminal behavior upon release (§ 6601.5), (5) a full adversarial preliminary hearing where the petition is dismissed unless the court determines there is probable cause to believe that the prisoner is likely to engage in sexually violent predatory criminal behavior upon release (§ 6602, subd. (a)), and (6) a trial. Either party may demand a jury trial. The prisoner is entitled to counsel, to retain experts, and to have access to all relevant medical and psychological reports and records. For a commitment, a unanimous jury must find the prisoner to be an SVP beyond a reasonable doubt. (§§ 6603, subds. (a), (b), (e), (f), 6604; Munoz, supra, 129 Cal.App.4th at p. 429.)
"These same demanding procedures, including new evaluations, preliminary review by the trial court, preliminary hearing and trial," are required to extend an SVP commitment. (Munoz, supra, 129 Cal.App.4th at p. 429.) The SVP extension hearing is a new proceeding independent of earlier SVP hearings at which, with limited exceptions, the petitioner must prove the defendant meets the criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous. (Ibid.)
As for being collaterally estopped from challenging the priors, collateral estoppel applies to relitigation of factual issues. (People v. Santamaria (1994) 8 Cal.4th 903, 912.) That means "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (Ashe v. Swenson (1970) 397 U.S. 436, 443.) A prior finding that a defendant was convicted of a sexually violent offense against two or more victims is res judicata of the fact of conviction in any later SVP proceeding. (Munoz, supra, 129 Cal.App.4th at p. 431.) However, " `prior crimes play a limited role in the SVP determination. [Citation.] The conviction `constitute[s] evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination. (§ 6600[, subd.] (a)(3).) Rather, the trier of fact `may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently diagnosed mental disorder that makes the person a danger to the health and safety of others. " (People v. Otto (2001) 26 Cal.4th 200, 205-206 (Otto).)
In the instant case, the trial court correctly precluded defendant from contesting the fact of his prior conviction. The convictions were two counts of lewd and lascivious acts upon Adrian and Jorge in 1992 (Pen. Code, § 288, subd. (a)), involved crimes of force and violence because they involved substantial sexual contact (masturbation), and qualified defendant for a SVP commitment pursuant to sections 6600, subdivision (b), and 6600.1, subdivisions (a) and (b). As an SVP, that is, a person found by the trier of fact to meet the SVP commitment criteria, defendant became subject to successive two year commitments. (§§ 6604, 6604.1.)
Notwithstanding, defendant contends that it was error for the trial court in the instant proceeding to preclude him from contesting the two predicate offenses because the judgment on the prior SVP petition was still on appeal in this court in People v. Wallace, case No. H027890. Defendant maintains that judgment was not a "final judgment," that is, "free from attack on appeal" (Morris v. McCauley s Quality Transmission Service (1976) 60 Cal.App.3d 964, 973) and thus did not meet the criteria for collateral estoppel.
This judgment was affirmed on February 2, 2006 (People v. Wallace (Feb. 2, 2006) H027890 [nonpub. opn.]).
In order for collateral estoppel to apply, " ` "the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding." " (Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1058.)
These criteria were fulfilled in defendants case. The issue was the validity of the 1992 conviction of two counts of Penal Code section 288, subdivision (a). Defendant and the district attorney were the parties in the criminal proceeding and conviction was by plea of guilty. Defendant and the district attorney were the parties in the initial and subsequent SVP proceedings resulting in defendants commitment and recommitment as an SVP. When defendant pled guilty, he admitted the truth of the allegations against him resulting in a determination of that issue on the merits. The convictions were again litigated in a 1998 SVP proceeding (Santa Clara County Superior Court No. 207454) which became final in 2000 (People v. Wallace (Oct. 2, 2000) H019740 [nonpub. opn.]). Although a judgment of recommitment was on appeal when this petition was being tried, the judgment in the criminal case was final on its merits.
Defendant continues that "relitigation of prior convictions in California has never been barred on grounds of collateral estoppel." He cites cases "relating to prior convictions for sentencing and other purposes."
An SVP proceeding is not a criminal but a civil proceeding for involuntary commitment. Notwithstanding, it implicates a defendants due process rights since it affects a defendants substantial private liberty interest. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1151-1152, 1146-1147 (Hubbart ).) Courts apply a flexible balancing standard to decide what process is due in a particular situation. The court considers, " ` "(1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the [dignity] interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible government official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." " (In re Malinda S. (1990) 51 Cal.3d 368, 383, original bracketed material, superceded on another point in In re Lucero L. (2000) 22 Cal.4th 1227, 1240.)
"[T]he private interests that will be affected by the official action are the significant limitations on [defendants] liberty, the stigma of being classified as an SVP, and subjection to unwanted treatment." (Otto, supra, 26 Cal.4th at p. 210.) Balanced against these are the publics interests in protecting itself from persons who are dangerous to others (Hubbart, supra, 19 Cal.4th at p. 1151) and in accomplishing this protection in an efficient and effective manner. (People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 155.)
After balancing these factors, we find that the trial court did not violate defendants due process rights in applying collateral estoppel to the issue of defendants culpability for the predicate priors. Defendant was represented by counsel in the litigation of the underlying 1992 charges and in the two prior commitment proceedings based on the conviction of those charges. During the criminal litigation, defendant received the protections to which he was entitled, such as the rights to counsel, notice of the charges and the evidence against him, jury or court trial as he chose, confrontation and cross-examination of witnesses, the right to call witnesses on his own behalf, etc. Although there was no preliminary hearing or trial at which witnesses testified to the facts because defendant chose to admit culpability, conviction was by defendants personal, in-court admission of guilt as to both victims. The conviction resulted in a final judgment as stated ante.
The facts of the case were contained only in the police report and the probation report. The latter was not offered into evidence. Later, in the first commitment proceeding, defendant fully litigated the facts in a court trial. He denied having any sexual contact with the victims. He testified he was just talking to the boys but would not describe the conversation because he had promised the boys he would keep their confidences.
The police report containing the statements of the boys and other witnesses was entered into evidence. The statements were attributed to identified victims and witnesses, including police eyewitnesses and citizens who reported suspicious activity in the area to the police. The statements of the boys were contemporaneous with the events and each statement corroborated the other and those of the police eyewitnesses and others. The police interviewers noted potential communication problems including the victims youth and bilingual status. Defense counsel cross-examined the prosecutors expert for the purpose, as the People state, of "bring[ing] out arguably unreliable aspects of the probation report, including the possibility that Jorges statement was suspect because of his youth and bilingual status; the possible omission of observations of other witnesses who may have been in the vicinity; and the absence of any express admission" to the charges by defendant.
The court as trier of fact found defendant incredible and found that he was an SVP. Thereafter at sentencing, defendant had the opportunity to dispute factual recitations in the probation report but did not.
Defendants second commitment proceeding was a jury trial. Defendant stipulated he had been convicted and sentenced for separate violations of Penal Code section 288, subdivision (a), against two victims. Trial counsel did not challenge the nature of those convictions in closing argument. The jury found defendant to be an SVP.
Defendant had an ample opportunity to fully and completely present his side of the story with advice of counsel on more than one occasion. He has not shown how, in light of the history of this case, he was denied a fair trial by being collaterally estopped from again litigating the predicate priors. There was no error.
POLICE REPORT AS EVIDENCE
Defendant also complains that the trial courts admission of the police reports of the prior conviction to prove the facts of the underlying offenses denied him a fair trial. He states (1) the "evidence of the two prior convictions . . . needed to be augmented with evidence outside the record . . . to establish them as SVP predicates." (2) The actions of the court in "grant[ing] the collateral estoppel motion and then allow[ing] the admission of the police reports compromised [defendants] ability to respond to the charge of being an SVP." And finally, (3) although the expert witnesses referred to information in the police report and other reports of sexual criminal activity, "such references were not to be relied on [by] the jury as fact. It is well established that `an expert may base an opinion on reliable hearsay, [but] such evidence is not independently admissible. (People v. McFarland (2000) 78 Cal.App.4th 489, 495 ...)" It appears the gravamen of this complaint is that the police report was inadmissible hearsay.
The Legislature has provided that "[c]onviction of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination. The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health. Jurors shall be admonished that they may not find a person a sexually violent predator based on prior offenses absent relevant 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." (§ 6600, subd. (a)(3).)
Our Supreme Court, after an extensive discussion of the evolution of section 6600, subdivision (a), in Otto, supra, 26 Cal.4th at pages 206-209, concluded that the hearsay statements at issue were admissible because they "fall within an express statutory exception [to the hearsay rule] . . . and the declarants are clearly identified." (Id. at p. 209.) Furthermore, the Court found that use of the victims hearsay statements did not violate other rights such as the right to confrontation of witnesses (id. at p. 214) or defendants dignitary interest in being informed of the nature, grounds, and consequences of the SVP commitment proceeding or disable him from presenting his side of the story before a responsible government official. (Id. at pp. 214-215.) Finally, the statute furthered the governments interest in protecting the public and in lightening the fiscal and administrative burdens of requiring live testimony from the victims perhaps years after the events. (Ibid.) The trial court did not err in admitting the police report into evidence.
DISPOSITION
The judgment is affirmed.
We Concur:
Rushing, P.J.
Elia, J.