P. v. Gordon

Filed 4/20/06 P. v. Gordon CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Following a jury trial, appellant was recommitted to the Department of Mental Health as a sexually violent predator. He contends that the trial court erred in failing to instruct the jury sua sponte to consider his amenability for voluntary treatment and that he was denied due process as a result. We affirm.

Background

The District Attorney filed a petition to re-commit appellant as a sexually violent predator and the court held a jury trial on this petition. The jury found appellant to be a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6600 et. seq.

According to the evidence at trial, appellant was convicted of one count of violating Penal Code section 288, subdivision (a), in 1973. While babysitting a seven-year-old-boy and the boy's siblings, appellant, then 26 years old, masturbated and orally copulated the boy and then gave the boy a beer. In 1974, while on probation for this offense, appellant molested several other young boys who came to appellant's parents' house to use the swimming pool. These molests continued into the early 1980's until two of the boys reported these offenses. Appellant pleaded guilty to four counts of violating Penal Code section 288, subdivision (a) and was sentenced to 25 years and eight months in prison.

In 1987, while in prison, appellant was in possession of pictures of naked children. Appellant explained at trial that these pictures were another inmate's "child porn stash" and that the inmate had asked appellant if he "could help him get rid of it because he couldn't do it on his own."

Before appellant's release on parole in 1997, he was evaluated by Dr. Amy Phenix and Dr. Wesley Maram. Both are "particularly well-respected doctors in the sexually violent predator field." Both doctors considered appellant's "motivation to treat himself" and that he was "really committed to not ever re-offending." Both doctors concluded that appellant did not meet the SVP criteria.

In April 1999, appellant's parole officer conducted an unannounced parole search after appellant missed a scheduled therapy session. The search revealed books containing pictures of nude adults and children including the work of photographer Jock Sturges. Appellant also had photographs lying around of his victims. Appellant had a pornographic video of adults having sex and the videotapes "Free Willy" and "Jungle Book." Although one condition of appellant's parole was that he not drink alcohol, the parole officer found beer in appellant's refrigerator. Appellant was sent to prison for this parole violation and subsequently committed to Atascadero State Hospital as an SVP.

At trial, appellant was asked about the items discovered during the parole search. Appellant explained that he had the pictures of his victims out because he was working on an "empathy letter." He said that he watched the videos himself and that he did not own them to lure children into his home. He testified that he was drinking "one or two beers, or a little bit of whiskey and beer on three, four nights a week" to relax after work. When asked if he ever drank to the point of passing out, he answered, "No. I thought that if I did anything like that, that for sure it would show up in a urine test. Anyhow, it wasn't a good idea to do that."

Appellant testified that he had acknowledged to his parole officer that, with regard to the photography books with the pictures of naked children, "there was probably the sexual attraction that initially probably got me interested," but that he had them "for art." He testified that, at the time, he was "still very much committed to not masturbating to child fantasies, and there were some serious cognitive distortions that I had when I really, when I picked up the [Sturges] books. But even with that in mind, with the justification and minimizing and all that, I was still able, I thought, to use them productively." For example, appellant would look at one picture of a naked boy in a tree and imagine touching the boy. He would then imagine the boy yelling "no" at him and recognize that this "was the response I should have expected with all of these kids." He testified that, although he was committed to not molesting children, he "didn't really understand the full nature of risks" in possessing these materials at that time. He testified that, since having four more years of treatment at Atascadero State Hospital, he now realized that he should not possess books with this type of photograph.

Appellant testified that, through therapy, he had learned to recognize when he was having an "inappropriate fantasy" and "would actively substitute another fantasy for it, push it in there, change the channel." He testified, "All I can say, if something comes up, if I were masturbating and an image of a child came up, it just immediately switches. It is just automatic. It just goes on to another fantasy." He said that he had successfully used the same technique to quit smoking.

Appellant testified that he had been sexually attracted to boys since he was 11 years old. At the time of his 1973 conviction, he started going to therapy, but, while still on probation, he stopped going to therapy and began molesting again. He molested several boys from 1975 until 1984 when he was sent to prison. In 1992, when his release date was not until 1997, appellant wrote to an assemblyperson requesting that she intervene on his behalf to prevent his transfer within prison to another unit. The transfer would have meant that he could not continue in a therapy group that he had found to be "a God-send." He wrote that he had come to understand "that I am indeed still very much at risk of re-offending. I am right now very disturbed by my vulnerability. I would not want to be released at this time." Appellant participated in additional therapy and by the time he was released he felt confident about his ability to "minimize risk."

Appellant testified that, considering his four more years of therapy at Atascadero State Hospital, "I do feel that I have developed the skills necessary to be successful out there and to handle risks effectively so that I am, I don't think I am much of a risk at all of reoffending." Appellant testified that, if released, he planned to live with his parents who were now in their eighties. He believed that his parents "are really the most supportive people I can be around right now." He said he had "made an agreement to continue" with therapy and would participate in a Santa Cruz program for sex offenders. He testified that he planned to "be in NA, AA. I realize I can't start drinking again." He planned to work with his brother's construction company. He hoped to get a job in a cabinet shop or working at a guitar company. Although he might hike in areas of "total wilderness" he testified, "I wouldn't be in a park where there were kids." His sister, who was married to a police officer and who had turned him in to the police in 1984, would be involved in his life as well.

Appellant planned to connect with a network of graduates of the sex offender program in Santa Cruz. Appellant testified that these are people who "are willing to be supportive and point me in directions that they like. . . . I am going to be focusing on adults, you know, my age if not older, skilled craftpersons. And that focus is not going to be on that child molesting thing at all."

After appellant's parole violation, Drs. Phenix and Maram, who had found appellant to be not an SVP in 1996, reevaluated him. This time they found him to be an SVP and he was committed to Atascadero State Hospital. At trial, Dr. Maram explained that he had changed his opinion about whether appellant was an SVP because while on parole appellant "engaged in all the things that would be of high risk as far as a sex offender is concerned." Dr. Maram testified that although appellant could benefit from out-patient treatment he was at risk for re-offending without supervision. He believed appellant's behavior on parole demonstrated that he needed tighter supervision and that appellant "is not ready and safe yet to be in the community." He believed that appellant was a good candidate for outpatient treatment but that he should complete the Atascadero State Hospital program first and then be monitored on an outpatient basis.

Dr. Christopher North testified that appellant met the criteria of an SVP. He acknowledged that appellant had been doing well in the program at Atascadero State Hospital but he considered appellant to be a serious risk because he had not yet completed the treatment plan. Appellant's proposed voluntary treatment did not sufficiently reduce the risk of his recidivism because it would be not be monitored by the Department of Health conditional release program. Appellant's behavior on parole caused Dr. North to question whether appellant could resist recidivism if released without monitoring. Dr. North testified, "there is no guarantee that he would stay in that treatment. There is no teeth to that treatment."

Dr. Charlene Steen testified that she did not believe that appellant was likely to re-offend if released. Using the factors listed by the Department of Mental Health evaluation protocol, she assessed appellant as amenable to voluntary treatment. Using other risk assessment tools, she placed appellant in low risk categories. She did not believe that it was necessary for appellant to finish all the phases of treatment at Atascadero State Hospital, and testified that his proposed voluntary treatment plan, including pre-paid therapy, Alcoholics Anonymous meetings, job prospects, and recreational pursuits was viable. She was concerned that incarcerating appellant longer might increase his risk of re-offense because he might lose his present ability to readjust back into the community.

Dr. Steen testified that because appellant was 57 years old and had not re-offended in 20 years, he was unlikely to do so now. She relied in part on information from the Association for the Treatment of Sexual Abusers list serve. This is an internet resource "where people write in questions and people answer the questions about sex offender treatment, assessment, and so on." Posted on the list serve was a letter from another professional who had conducted his own study on age and recidivism, reviewed other studies on the subject, and concluded "there was virtually no recidivism . . . after age 60."

Dr. Beryl Davis testified that appellant did not pose a serious risk of re-offending and was not an SVP. She had treated appellant from 1988 to 1993 in her sex offender program when he was a prison inmate. She did not believe that his parole violation was a step toward re-offense because he had not been around children. She said that he had learned in his treatment at Atascadero State Hospital why he should not have possessed the materials found during the parole search and she based her opinion in part on her assessment of appellant's honesty when he said that he had not engaged in masturbation and fantasizing with these materials. She believed that he was ready to graduate from the Atascadero State Hospital program.

Dr. Vee Duvall, the director of a sex offender treatment program in Santa Cruz, testified that she had assessed appellant and found that appellant was amenable to voluntary treatment and a good candidate for her program. The program is for between two and three years at $250 per month followed by two years of after care treatment for which there is no charge. Appellant's family had already paid for one year of treatment.

The Static 99 is a risk assessment tool for sexual offenders. On the Static 99 assessment, Dr. Maram scored appellant as a mid-high risk four on a scale of six. Dr. North initially scored him as a three, but then "took a closer look" at one assessment factor and increased his score to a four or five, with a 36 percent probability of

re-offending in 15 years. He agreed that a study of older offenders would indicate that appellant's age might decrease his risk of re-offense to between 28 percent and 30 percent. Dr. Steen testified that the Static 99 was worse than chance in predicting recidivism. She scored appellant as a three.

In closing argument, the prosecutor said that all the doctors who testified agreed that appellant was a pedophile and that appellant needed treatment. He argued, "The only real issue in terms of treatment in this case, is he says next Monday he can go and do it by himself. And the People's response to that is that he is not ready."

Defense counsel argued that there was no evidence that appellant currently had a volitional impairment but that if the jury determined that he did "you move on to the next issue which is the likelihood to reoffend. Have you been persuaded beyond a reasonable doubt that he is likely to reoffend if he is not confined to a locked facility? Or do the circumstances of his life, his age, his treatment, the circumstances that he is going to be living in should he be released, does that reduce his risk to below substantial[?]" Defense counsel quoted the part of the instruction defining sexually violent predator that refers to confinement in a secure facility and explained, "What they were talking about there is, if you decide that he is amenable to out-patient treatment and that reduces his risk sufficiently, then you have to find the petition not true." Counsel invited the jury to send a note to the court during deliberations "[i]f you need further clarification what amenability is, how you are supposed to evaluate it . . . ."

The trial court instructed the jury: "The term 'sexually violent predator' means a person who . . . has been convicted of a sexually violent offense against two or more victims, and . . . has a diagnosed mental disorder, [and] the disorder makes him a danger to the health and safety of others . . . in that it is likely that he will engage in sexually violent predatory criminal behavior unless confined within a secure facility. [¶] The word 'likely' as used in this definition means the person presents a substantial danger, that is, a serious and well-founded risk that he will commit sexually violent predatory crimes if free in the community. However, it does not mean that it must be more probable than not that there will be an instance of reoffending."

The court instructed the jury, "In determining whether the Respondent is a sexually violent predator, you should consider all the evidence introduced in the case, including the prior conviction of one or more crimes previously listed for you. However, you may not find Respondent to be a sexually violent predator based on prior offenses without relevant evidence of a currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior." The jury was also instructed, "In your deliberations it is improper for you to consider what disposition of Respondent, Mr. Gordon may be made or what treatment Mr. Gordon may receive as a result of your verdict. This is a matter which must not in any way influence your verdict."

During the first day of deliberations, the jury requested a re-read of most of appellant's testimony and "11 more copies of page 10 of the Court's instructions." The court reporter read the testimony to the jury and the court supplied the jury with copies of all of the instructions. Late on the following day of deliberations the jury requested "the list serve email." The court informed the jury that this was not included in the exhibits that were admitted at trial. About an hour later, the jury returned its verdict finding true the allegation that appellant was a sexually violent predator.

Discussion

Appellant contends, "The court committed prejudicial error by failing to instruct the jury to consider appellant's amenability for voluntary treatment." Appellant contends, "the failure to adequately instruct the jury as to its duty to consider the evidence of appellant's amenability for voluntary treatment denied appellant his due process rights because such evidence, if believed, might have resulted in a determination that he is no longer dangerous if he were to be released from confinement." Appellant argues that this error was magnified because the jury was instructed that it would be improper for them to consider "what disposition of Respondent, Mr. Gordon may be made or what treatment Mr. Gordon may receive as a result of your verdict." Appellant argues that this instruction "reasonably resulted in the jury disregarding this evidence that was essential to an informed decision as to appellant's future dangerousness." Appellant contends that he was "denied his federal constitutional due process rights to a factual determination as to the likelihood of his future dangerousness that included a consideration of the evidence that he is amenable to voluntary treatment."

A trial court must instruct sua sponte on those general principles of law which are " 'closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.' " (People v. Sedeno (1974) 10 Cal.3d 703, 715.) People v. Grassini (2003) 113 Cal.App.4th 765, held that where the parties have introduced evidence of an alleged SVP's amenability to voluntary treatment, the trial court has a sua sponte duty "to instruct the jury that it is to determine whether custody in a secure facility is necessary to ensure that the individual is not a danger to the health and safety of others." (Id. at p. 777.) The Grassini court based this conclusion on three California Supreme Court opinions: People v. Roberge (2003) 29 Cal.4th 979; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888; and Cooley v. Superior Court (2002) 29 Cal.4th 228. In Roberge, the court stated that "[e]vidence of the person's amenability to voluntary treatment, if any is presented, is relevant to the ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody. [Citation.]" (Roberge, supra, 29 Cal.4th at p. 988, fn. 2.) In Ghilotti, the court stated that the SVP determination turns on "whether, as the result of a diagnosed mental disorder, the person presents a substantial danger of re-offense if released without conditions, or whether instead he is safe only if restrained, supervised, and treated involuntarily under the Director's custody." (Ghilotti, supra, 27 Cal.4th at pp. 926 -927.) Finally, in Cooley, the court stated that "a determination of the likelihood of future dangerousness at the probable cause hearing . . . must also take into account the potential SVP's amenability to voluntary treatment upon release." (Cooley, supra, 29 Cal.4th at p. 256.)

In Grassini, the defendant testified at trial and "acknowledged his need for lifelong therapy because he was a pedophile." (Grassini, supra, 113 Cal.App.4th at p. 773.) He had participated in therapy during his prison term and believed that he had learned to control his behavior. He testified that he was willing to take androgens, referring to this as "chemical castration," to lower his sexual drive. (Ibid.) Three psychologists testified on behalf of the defendant, all of whom opined that his risk of re-offense was low. These psychologists cited factors such as the defendant's "efforts to change" and his participation in therapy. (Id. at p. 774.)

The Grassini court rejected the People's claim that an instruction to determine whether custody in a secure facility is necessary is more akin to a pinpoint instruction that need not be given unless requested and explained: "[T]his is not a matter constituting a theory of defense but is essential to the determination to be made by the trier of fact, and thus constitutes a general principle of law necessary to the jury's understanding of the case."[1] (Id. at pp. 777-778.)

After Grassini, CALJIC No. 4.19 was revised in 2004 by inserting the phrase "unless confined within a secure facility" at the end of the paragraph defining "sexually violent predator," so that portion of the instruction reads: "The term 'sexually violent predator' means a person who, (1) has been convicted of a sexually violent offense against two or more victims, and (2) has a diagnosed mental disorder, (3) the disorder makes him or her a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent predatory criminal behavior unless confined within a secure facility." Appellant acknowledges that the jury here was instructed in this language. However, the revised CALJIC No. 4.19 also contains the same phrase at the end of another paragraph in the instruction that states: "In determining whether the respondent is a sexually violent predator, you should consider all of the evidence introduced in the case, including the prior conviction of one or more crimes previously listed for you. However, you may not find respondent to be a sexually violent predator based on prior offenses without relevant evidence of a currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior unless confined within a secure facility." Here, the trial court, "inexplicably and inconsistently" according to appellant, omitted the phrase "unless confined within a secure facility" from this paragraph. Appellant asserts that this omission was reversible error.

At the instructional conference, the trial court said that the parties had discussed CALJIC 4.19 "at some length." The court observed that the instruction had been "modified to reflect the Grassini principles." Defense counsel argued that "the defendant has the right to direct attention to any evidence from which a reasonable doubt could be drawn if they find that he is amenable to outpatient treatment and that reduces the likelihood of re-offense." Counsel argued that CALJIC No. 4.19, although modified after Grassini, was insufficient and proposed an additional instruction specifically stating that evidence of amenability to voluntary treatment may be considered in determining whether appellant was likely to engage in sexually violent predatory crimes if released from custody.[2] Defense counsel explained that she proposed the instruction because she did not believe that "the modification to CALJIC 4[.]19 where it just adds 'unless confined within a secured facility' was sufficient."

The trial court declined to give the proposed defense instruction, but added that the court was "sensitive" to the issue that defense counsel would be arguing a "principle that is legally sound, but sounds as if it is inconsistent with the CALJIC instruction." The court said it would give defense counsel "full carte blanche if you want to as part of your argument indicate to the jury that if at any time they feel that your argument is inconsistent with the law but they were seriously considering your argument, . . . they can ask the Court for clarification about the law."[3]

Appellant argues that the post-Grassini revised CALJIC 4.19 "fails to clearly and directly explain the relevance of amenability to voluntary treatment." Respondent argues that the instructions given "clearly informed the jury of the relationship between an offender's release from custody and the definition of an SVP.[4] If appellant's dangerousness was negated by an amenability to voluntary treatment in the community, then it was not likely he would engage in predatory criminal behavior if released from custody and he would not qualify as an SVP."

Evidence of an SVP's amenability to treatment is relevant to the jury's ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody. In any SVP case there may be some type of evidence that is relevant to the likelihood of re-offense. Besides amenability to treatment, there may be evidence such as an SVP's advanced age, his having undergone chemical castration, or other factors that reduce the substantiality of the risk of re-offense. For example, the SVP may have developed a recent physical limitation such as having suffered an incapacitating stroke. The court's sua sponte obligation would not compel special instructions emphasizing each of these types of evidence. Because the jury here was given a definition of an SVP that included the factor that appellant's mental disorder makes him a danger in that it is likely that he will engage in sexually violent predatory criminal behavior unless confined within a secure facility, the instructions adequately informed the jury of the general principles of law that were necessary to the jury's understanding of the case. Furthermore, the issue of whether appellant required custody in a secure facility to avoid re-offending was placed squarely before the jury. Page 10 of the instructions, of which the jury requested 11 copies, is the definition of SVP given by the court that includes the Grassini revision language. That page explains that in order to meet the definition of an SVP, appellant's disorder must make him "a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior unless confined within a secure facility" and that "[t]he word 'likely' as used in this definition means the person presents a substantial danger, that is, a serious and well-founded risk that he will commit sexually violent predatory crimes if free in the community."

Although it is unfortunate that the trial court neglected to include the confinement language in the later paragraph of CALJIC 4.19, which is found on page 12 of the jury instructions, the jury was specifically instructed in that paragraph to "consider all of the evidence introduced in the case." Moreover, in closing argument defense counsel ably explained the relevance of the evidence of appellant's amenability, as well as other evidence impacting his likelihood of re-offense, such as his age, to the issue of whether appellant needed to be confined. By asking for the list serve email, which discussed recidivism and age, the jury showed it was considering factors relevant to appellant's risk of re-offense if released. Although counsel invited the jurors to ask questions about amenability to treatment if they had any, and they showed no reluctance in this regard, they declined to do so on this point. The record supports the view that the jury considered appellant's amenability to voluntary treatment in determining whether he was an SVP.

Appellant argues, "the failure to adequately instruct the jury as to its duty to consider the evidence of appellant's amenability for voluntary treatment denied appellant his due process rights because such evidence, if believed, might have resulted in a determination that he is no longer dangerous if he were to be released from confinement." We disagree. By instructing the jury to consider all of the evidence, by giving the jury a definition of an SVP that included the "unless confined in a secure facility" language, and by clarifying that the risk to be considered is the commission of crimes "if free in the community," the instructions necessarily directed the jury to consider the evidence of non-institutional alternatives to involuntary confinement in reaching its verdict.

Appellant argues that problem in not instructing the jury to consider evidence of amenability to treatment was magnified because the jury was instructed that it would be improper for them to consider "what disposition of Respondent, Mr. Gordon may be made or what treatment Mr. Gordon may receive as a result of your verdict." Appellant argues that this instruction "reasonably resulted in the jury disregarding this evidence that was essential to an informed decision as to appellant's future dangerousness." Appellant contends that he was "denied his federal constitutional due process rights to a factual determination as to the likelihood of his future dangerousness that included a consideration of the evidence that he is amenable to voluntary treatment." We disagree. There is an important difference between the issue to be determined by the jury, the likelihood that appellant would re-offend unless confined in a secure facility, and what treatment he might actually receive as a result of that determination, which the jury was properly instructed not to consider. The jury is not being asked to choose between two treatment regimes, one in a secure facility and one in the community. It is appellant's willingness to participate in treatment, not the actual treatment itself, that is to be considered in determining the likelihood of re-offense if not confined. The same version of CALJIC 17.42 was given in Grassini, and the court there held that the instruction "cannot reasonably have been understood by the jury as affecting its consideration of the issue before it." (Grassini, supra, 113 Cal.App.4th at p. 778.)

Disposition

The judgment is affirmed.

______________________________

ELIA, J.

WE CONCUR:

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PREMO, Acting P. J.

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BAMATTRE-MANOUKIAN, J.

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Analysis and review provided by Carlsbad Apartment Manager Attorneys.

[1] The Grassini court found that although the trial court had not instructed the jury to consider the defendant's amenability to voluntary treatment, reversal was not required "even under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 . . . ." (People v. Grassini, supra, 113 Cal.App.4th at p. 778.) The court stated: "Based on the evidence presented and the arguments of counsel, we conclude that the jury was adequately informed of this concept and would not have come to a different result had it been so instructed. [Citation.]" (Ibid.)

[2] Defense counsel proposed an instruction that would have included the following language: "The term 'a danger to the health and safety of others' includes the determination whether custody in a secure facility is necessary to ensure that the individual is not a danger to the health and safety of others. [¶] Evidence of amenability to voluntary treatment, if such evidence is presented, may be considered by you in your determination whether the person is likely to engage in sexually violent predatory crimes if released from custody. [¶] You must find the petition 'not true' unless you are convinced beyond a reasonable doubt that Mr. Gordon is likely to reoffend unless confined in a secure facility." This instruction was duplicative for the most part, and, in emphasizing the evidence of appellant's amenability to treatment over other evidence relevant to his likelihood of re-offending unless confined, improperly suggested that that evidence was more important than other evidence.

[3] During closing argument, defense counsel said: "And in terms of evaluating his amenability to treatment, there was lots of evidence about he is amenable, what kind of treatment is he going to have. The law that addresses it, the law that is going to be read to you by the judge, does he need to be locked in a secured facility, or that is how it is phrased in the jury instructions. What they were talking about there is, if you decide that he is amenable to out-patient treatment and that reduces his risk sufficiently, then you have to find the petition not true. If you need further clarification what amenability, how you are supposed to evaluate it, or further clarification about any jury instruction, you send a note out to the Court through the deputy, and any questions can be asked of the Court. The Court will clarify for you, if it can be done, what the instruction means."

[4] Respondent also "disagree[s] with the principle that instruction on amenability to voluntary treatment is ever a sua sponte obligation of the trial court. . . . Amenability to in-community treatment is a matter raised by the defense in order to create reasonable doubt as to an element of the People's case."