P. v. Cooley
Filed 9/30/11 P. v. Cooley CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Plaintiff and Respondent,
JOSHUA BRYAN COOLEY,
Defendant and Appellant.
Super. Ct. No. CV080941)
Defendant Joshua Bryan Cooley appeals after he was found to be a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) He contends the evidence was insufficient to support the jury’s findings, that the trial court committed evidentiary and instructional error, that the prosecutor committed misconduct, that the SVPA violates his rights to due process and equal protection, that it acts as an ex post facto law, and that it is unconstitutionally vague. We reject each of these contentions except the equal protection claim, which is the subject of pending litigation. (People v. McKee (2010) 47 Cal.4th 1172 (McKee).) We shall therefore remand this case to the trial court to await final resolution of McKee and, when McKee is final, to consider defendant’s equal protection claim. In all other respects, we shall affirm the judgment.
A. Dr. Will Damon’s Testimony
Dr. Will Damon, a psychologist who performed SVP civil commitment evaluations, discussed defendant’s history.
In 2001, defendant went into a retail store in a mall and badgered a 20-year-old female clerk, whom he did not know, to go out with him. She declined and told defendant she had a boyfriend. He persisted and told her he could get her drunk and do “nasty things” to her. He also told her he could “kick her boyfriend’s ass,” and that he could have her boyfriend killed. Defendant touched her buttocks. He appeared to be intoxicated. The woman reported that defendant had engaged in similar incidents with other female mall employees. Defendant told a police officer that the woman had fabricated the story, and that he had accidentally bumped into her.
Also in 2001, defendant and another man rode their bicycles toward a two-year-old girl, scaring her. When the girl’s father confronted him, defendant threatened him. On the same day, defendant and another male went to a house next door to the home of defendant’s 15-year-old girlfriend. They pushed their way into the house, went to a 15-year-old boy’s bedroom, and stole a cassette recorder and an air pistol. The boy approached defendant and his companion, and defendant threatened the boy, saying he had a cousin who could kill the boy, before stealing two compact disks from him. Defendant and his companion then went to a grocery store, where they got into a fight. Defendant later denied having entered the 15-year-old boy’s house, and said the boy had actually stolen things from him. Defendant was convicted of making criminal threats (Pen. Code, § 422), and spent time in prison.
In 2002, defendant and his cousin, Ryan, met two girls at a party. One of them, L.H., was 12 years old. Defendant and Ryan gave L.H. alcohol, and L.H. became intoxicated. Defendant and Ryan left the party with L.H. and took her to a residence. L.H. asked to leave, but the men did not allow her to do so. They locked the door and sexually assaulted her, including having sexual intercourse with her multiple times. L.H. asked them to stop, but they continued the assault. Her arms and legs were held down during the offenses. L.H. said defendant and Ryan had been drinking, and she believed they had been smoking crack cocaine. As a result of this incident, defendant was convicted of committing a lewd or lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)) and sexual battery (Pen. Code, § 243.4).
Defendant’s version of events was inconsistent with L.H.’s report. At one time, he denied taking L.H. from the party or engaging in any sexual behavior with her. At another time, he admitted engaging in sexual behavior with L.H., but said she had told him she was 17 or 18 years old and that she had initiated the sexual activity.
In 2007, while defendant—then 27 years old—was on parole, he went to a party and invited some 12-year-old girls and other minors to his home to go into the hot tub. He gave them alcohol, put on a swimsuit, tried to get the minors into the hot tub, and began “making out” with a 17-year-old girl. He was drinking alcohol. The police arrived in response to a complaint about a loud party, and found a 17-year-old passed out in his or her own vomit in the front yard, and a 12-year-old girl visibly intoxicated. She said that defendant and another 12-year-old girl had fled when the police arrived. Because defendant was wearing a GPS device, the police found him, and he resisted arrest.
Defendant had violated his parole on five earlier occasions, including twice by being drunk in public. He had been ordered into substance abuse treatment, but failed that treatment. He had violated a restriction against having pornographic materials, and had failed to attend his sex offender treatment.
Defendant also had a history of conduct problems as a juvenile. A report prepared in connection with competency proceedings in 2002 indicated that defendant had low intellectual functioning, impulsivity, and memory problems, which affected his ability to think through consequences before acting. The report also indicated that defendant had “denial and defensiveness” about his disabilities, and that his desire to save face could also lead to making poor decisions. Dr. Damon noted that defendant had a pattern of seeking out minors; he believed that defendant did so because minors were developmentally more similar to defendant than adults were. At the time of the competency proceedings, defendant was diagnosed with a cognitive disorder not otherwise specified, mild mental retardation, learning disabilities, polysubstance dependence, and depression not otherwise specified.
Dr. Damon interviewed defendant in July 2008. Defendant admitted abusing alcohol. He attributed his entire criminal record, including the sex offenses, to his alcohol use.
Dr. Damon diagnosed defendant with dementia due to a brain injury, alcohol abuse, antisocial personality disorder, and borderline intellectual functioning.
Defendant had fallen 30 feet from a rope swing when he was 14 years old, landing on his head and suffering a severe closed-head injury. Before the injury, he was mildly mentally retarded or had borderline intellectual functioning. Records indicated that after the fall, he became uncooperative when asked to make transitions, began using marijuana, and had “reduced frustration tolerance leading to increased aggressive behavior.” He began getting into fights and engaging in other aggressive behavior, such as throwing heavy objects. Dr. Damon opined that the dementia resulting from the brain injury caused defendant to have problems regulating his behavior.
Dr. Damon noted that defendant’s sex offenses had taken place in connection with alcohol use, and expressed the opinion that defendant’s alcohol abuse made it more difficult for him to control his behavior.
Dr. Damon described antisocial personality disorder as “a pervasive pattern of disregard for the rights of others or violation of others’ rights occurring since age 15 and including at least three of the following: [f]ailure to  conform to lawful behaviors, impulsivity, deceitfulness, aggressiveness, reckless disregard for the safety of self or others, irresponsibility, and lack of remorse.” The diagnosis also involved symptoms of a conduct disorder before the age of 15. Dr. Damon explained the basis for his diagnosis of antisocial personality disorder. Defendant’s school records showed aggressive behavior in kindergarten and rude and vulgar behavior in fifth grade. He told other evaluators that he had engaged in stealing at age 13, and at age 15, he was placed on probation for vandalizing a neighbor’s property. He was suspended from school numerous times for such things as fighting, threatening, and other aggressive behavior, although he denied that this had happened. He was frequently a truant, but only admitted having cut class once. His school records showed he had been in special education at age six, but he denied having been in special education. He denied that family members had supported him financially, despite evidence to the contrary. Defendant’s impulsivity was shown by the fact that he continued to break rules and engage in antisocial conduct despite negative consequences, such as being returned to prison after the 2007 incident for a parole violation, and committing sex offenses while on supervised probation. His irresponsibility was shown by the fact that he had never held a job for a sustained period and by his failure to attend mandated sex offender treatment and complete substance abuse treatment. Dr. Damon opined that this disorder led defendant “to engage in aggressive, antisocial behavior without regard for others.”
Dr. Damon also concluded that defendant had a sexual preoccupation. He based this opinion on the fact that defendant had continued to engage in criminal sexual behavior despite consequences; and that two of his sex crimes, the 2002 offense and the 2007 offense, occurred when defendant had a girlfriend, “an available, appropriate adult partner”; that he violated his parole by possessing pornography; and that before the 2001 incident at the mall, he had engaged in similar acts with other mall employees and had limited mall access due to his behavior.
When asked how defendant’s mental disorders would predispose him to commit criminal sexual acts, Dr. Damon answered, “[H]is antisocial personality disorder  leads him to engage in aggressive, antisocial behavior without regard for others. The dementia means that Mr. Cooley has problems controlling his behavior, regulating his behavior. And his alcohol abuse further deteriorates his ability to control his behavior. And then his sexual preoccupation funnels aggressive, antisocial, unregulated behavior into sex crimes.”
Dr. Damon also opined that defendant’s ability to control his behavior was impaired. This was shown by the fact that he had continued to engage in criminal sexual behavior despite consequences, particularly the 2002 and 2007 incidents, which both involved going to a party with minors and giving them alcohol. Moreover, his desire to engage in coercive sexual behavior overcame other barriers, such as L.H.’s age, the presence of witnesses at the time of the 2001 and 2007 offenses, and the fact that he had girlfriends.
In Dr. Damon’s opinion, defendant posed a serious and well-founded risk of reoffending without appropriate treatment and custody. For this conclusion, he relied on actuarial measures, a measure of psychopathy, dynamic risk factors, and protective factors. On one actuarial measure, the Static 99-R, defendant had a score of eight, a score that was higher than 98 to 99 percent of sex offenders, and indicated a reoffense rate five times higher than a sex offender who received the median score of two on the Static 99-R. Based on defendant’s Static 99-R score, as well as his history of being selected for treatment and SVP evaluation in the past and having been declared incompetent to stand trial, Dr. Damon found that defendant was in a group for which the observed reoffense rate was 45 percent in five years and 55 percent in ten years. Based solely on the Static 99-R test, defendant was in the high risk range for reoffending.
Dr. Damon also evaluated defendant using the Static 2002-R, another tool meant to measure the risk of sex offense recidivism, and concluded he had a score of 9, which placed him in the high-risk range for reoffending. This score is higher than 96 to 99 percent of other people in the Static 2002-R sample, and indicates a reoffense risk higher than the “ ‘average sex offender’ ” who is evaluated using this measure. Taking into consideration this score as well as defendant’s history, Dr. Damon found defendant was in a group with reoffense rates of 42 percent in five years and 52 percent in ten years.
Another measure of sex offense recidivism, the Minnesota Sex Offender Screening Tool Revised (MnSOST-R), showed defendant having a score of 17; any score of eight or above was considered high risk. A measure of psychopathy, the PCL-R, also showed defendant in the high-risk group. A test of “dynamic risk factors” known as the Stable 2007, measured such risk factors as intimacy deficits, negative social influences, sexual self-regulation, cooperation with supervision, and general self-regulation, as well as such protective factors as length of time in the community without reoffending, medical or physical problems, and advanced age. Dr. Damon found defendant to have a number of risk factors, or “converging evidence of  high risk,” and no protective factors.
Dr. Damon defined a predatory act as one “directed toward a stranger, a casual acquaintance with whom no substantial relationship exists or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.” He concluded that the victims of both the 2001 and 2002 sex offenses were both strangers, that defendant had shown both the capacity and the ability to commit predatory sex offenses, and that if he were to commit a new sex offense, it would be predatory in nature.
Based on defendant’s history, Dr. Damon concluded that treatment in the community would not be effective for defendant, and that outpatient treatment would present too great a risk for females in the community.
B. Dr. Eric Fox’s Testimony
Dr. Eric Fox, a consulting psychologist for the Department of Mental Health who performed SVP evaluations, also testified. After evaluating defendant, he concluded that defendant had a diagnosable mental disorder that predisposed him to commit sexually violent offenses.
Dr. Fox diagnosed defendant as suffering from cognitive disorder not otherwise specified, as well as alcohol dependence. He did not conclude defendant suffered from antisocial personality disorder because he did not find enough evidence of a conduct disorder during defendant’s adolescence.
Dr. Fox also concluded the cognitive disorder predisposed defendant to commit criminal sexual acts. He based this conclusion on several factors, including the facts that defendant did not understand the appropriate social steps of courtship; that he failed to understand the consequences his actions would have on himself; and that he was impulsive and unable to delay gratification. Dr. Fox explained, “[Defendant] is a grown man, but he has the impulse control of a young child, but he has the sex drive of a young man.”
In addition to discussing the 2001, 2002, and 2007 incidents and the parole violations, Dr. Fox noted that while incarcerated, defendant violated prison rules on a number of occasions, including one incident in which he was in an altercation with another inmate. Defendant’s statements about his own alcohol and drug use were inconsistent with the records Dr. Fox had reviewed.
Dr. Fox also opined that defendant was likely to commit another sexually violent predatory crime in the future. He based his opinion on a number of factors: the fact that defendant’s scores on three actuarial measures placed him in the moderate/high to high range for likelihood of reoffense; his cognitive disorder and brain damage, which Dr. Fox believed made reoffense more likely; his antisocial traits; his problem with alcohol; his history of sexual and non-sexual crimes; his disciplinary actions while in custody; the fact that he had been detected in sexually inappropriate behavior on three separate occasions; the fact that he had victims who were strangers; his youth; his unstable employment history; and the fact that he had possessed pornography while on parole.
Dr. Fox evaluated defendant according to the Static 99-R, the Static 2002-R, and the MnSOST-R. On the Static 99-R, he concluded defendant had a score of eight, which placed him at high risk of sexual reoffense; people with a score of eight had a rate of reoffending that was nearly five times that of the average or typical sex offender. Such a score was in the 97.8 to 99.1 percentile for sex offenders. Those that scored in the moderate/high range on the Static 99-R were rearrested or convicted of a sexual crime at a rate of 45 percent after five years and 55 percent after ten years.
On the Static 2002-R, Dr. Fox found defendant had a score of eight, which placed him in the moderate/high risk category, in the 93rd to 96th percentile range, and in a group with a likelihood of reoffending that was 2.52 times greater than the typical or average sex offender. Those that scored in the moderate/high range on the Static 2002-R were rearrested or convicted of a sexual crime at a rate of 35 percent after five years and 46 percent after ten years.
On the MnSOST-R, Dr. Fox found defendant had a score of 17, which placed him in the 98th percentile. Such as score was in the extremely high risk level for reoffending; those in that group were rearrested or convicted of a sexual crime at a rate of 40 to 72 percent.
After examining whether there were treatment options short of confinement that would address defendant’s risk of reoffending, Dr. Fox concluded defendant could not safely be treated in the community. He based this conclusion on the amount of treatment available in the community, defendant’s history of not attending mandated treatment, and the fact that he minimized the seriousness of his crimes.
C. Defendant’s Testimony
Defendant acknowledged being intoxicated on the day of the 2001 incident at the mall. He said he did not recall whether there were other occasions on which he had gotten into trouble at the mall.
In describing the incident in which he sexually assaulted 12-year-old L.H., he acknowledged that he, his cousin, and L.H. were all drunk, and that he had known L.H. was drunk. He said he had intercourse with her only once, said L.H. had initiated sex with him, said he did not remember L.H. trying to leave, and denied that he and Ryan held her down as she tried to get up. He acknowledged, however, that he had pled guilty to sexual battery. He said L.H. had told him she was 17 years old.
Defendant acknowledged being at the 2007 party, and that two of the girls there were 12 years old, although one of the conditions of his parole was that he not be around minors. There was another girl there who said she was 18 years old. He and another young man had gone to a store to buy alcohol, and everyone was drinking at his friend’s house. He realized he was violating his conditions of probation by drinking with minors, but the other people at the party begged him to stay. Everyone went to defendant’s home, where he had a hot tub, and the drinking continued. Defendant denied having worn a swimsuit. He acknowledged kissing a girl who appeared to be about 17 years old, although he said she had told him she was 18.
When asked if he thought he needed sex offender treatment, defendant said he thought he did, and said that it would be good for him. He acknowledged that he had an alcohol problem, and said he sometimes made unwise decisions when drinking.
D. Dr. Alan Abrams’s Testimony
Dr. Alan Abrams, a psychiatrist who had carried out approximately 50 sexually violent predator evaluations, testified on behalf of defendant. He believed defendant’s most significant psychiatric problem was his alcohol abuse. He also diagnosed defendant with cognitive disorder not otherwise specified, which could be traced in part to possible brain damage at the time of his birth and the effects of the fall defendant sustained at the age of 14, and with cannabis abuse. He found that defendant did not meet the full criteria for avoidant personality or dependent personality, but that he suffered from poor self-esteem and was overly sensitive to what people thought of him. Dr. Abrams diagnosed defendant with a personality disorder not otherwise specified.
Dr. Abrams concluded that defendant did not have a mental disorder that would predispose him to the commission of criminal sexual acts because of a volitional impairment, and that although he had acted badly under the influence of alcohol, he was not a sexual deviant. He also concluded that defendant was not “likely or substantially likely” to engage in sexually predatory violent criminal behavior in the future. He believed defendant needed ongoing treatment for his substance abuse problems, including a residential substance abuse program, but did not need confinement in a secure institution. He also believed sex offender treatment at a state hospital would be “pointless” and “nonsensically wasteful.”
He disagreed with Dr. Damon’s conclusion that defendant suffered from dementia. He also disagreed with Dr. Damon’s finding that defendant suffered from antisocial personality disorder, concluding instead that defendant did not meet the criteria for that disorder, which required “a regular, repetitive violation of other people’s rights in multiple areas, not antisocial acts committed while intoxicated,” and “a pervasive pattern of violation of people’s rights beginning as a child.” He did not believe defendant was sexually preoccupied, and did not diagnose any sexual disorder. He also disagreed with Dr. Fox’s conclusion that defendant suffered from alcohol dependence, which was a more severe disorder than alcohol abuse. Dr. Abrams concluded defendant scored a four on the Static 99 test, in the moderate high risk range. Dr. Abrams did not think a person had to be a pervert or sexual deviant, or suffer from a paraphilia, to be a sexually violent predator.
E. Dr. Park’s Testimony
Dr. James Park, a psychologist, also testified on behalf of defendant. He administered a number of psychological tests, and concluded defendant was “psychologically grounded in reality, not prone to impulsivity, and that he has volitional control.” He also concluded defendant did not have personality patterns of an antisocial nature, and that he did not have a diagnosis of paraphilia, which he described as a “deviant interest and arousal pattern.” He did not believe defendant had a diagnosable mental disorder that predisposed him to committing criminal sexual acts. He administered the Static 99 test to defendant, and gave him a score of three or four; had he used the Static 99-R, a more recent version, the score would have been four or five. He concluded confining defendant in a state hospital would not be appropriate, necessary, or helpful. According to Dr. Park, defendant did not have a current diagnosed mental disorder that included volitional impairment or that predisposed him to sexually violent criminal acts, and he did not present a substantial danger of committing sexually violent predatory acts.
A. Variance Between Instruction and Proof
Defendant contends the judgment must be reversed because the evidence does not conform to the instructions given to the jury. Section 6600, subdivision (a)(1) defines a sexually violent predator as “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.” Subdivision (b) of section 6600 defines a sexually violent offense as one of certain crimes; among those crimes is a violation of Penal Code section 288, committing a lewd or lascivious act on a child under the age of 14 years. Defendant’s sole conviction of a qualifying sexually violent offense was his conviction of violating Penal Code section 288, subdivision (a), as a result of his crimes against L.H.
The jury was instructed that to prove defendant was an SVP, the People must prove, among other things, “that he has been convicted of committing sexually violent offenses against one or more victims.” (Italics added.) Defendant contends that, as so instructed, the jury could not find defendant was an SVP unless it found he had committed more than one qualifying sexually violent offense, and that there was no evidence that he had committed more than one such offense.
We first note that, if the jury had understood the instruction to mean defendant must have committed more than one qualifying offense to be an SVP, any error could only have inured to defendant’s benefit rather than prejudicing him. (Compare Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670 [if it appears that error was likely to mislead jury and become factor in verdict, it is prejudicial and ground for reversal].)
In any case, viewing the instructions as a whole, it is clear the jury was not misled. The instruction given referred to offenses against one or more victims; as we have explained, defendant was convicted of a qualifying offense against one victim. Moreover, the jury was instructed, “You may not conclude that [defendant] is a sexually violent predator based solely on his alleged prior conviction without additional evidence that he currently has such a diagnosed mental disorder.” (Italics added.) This reference to a single alleged prior conviction was consistent both with the witnesses’ references to a single qualifying offense and counsel’s argument to the jury that the defendant had a qualifying conviction based on the 2002 incident with L.H. In the absence of any jury confusion, or any possible prejudice to defendant, we reject this claim of error.
B. Substantial Evidence of Mental Disorder
As we have explained, Dr. Damon diagnosed defendant with dementia due to a brain injury, alcohol abuse, antisocial personality disorder, and borderline intellectual functioning. Dr. Fox diagnosed him as suffering from cognitive disorder not otherwise specified and alcohol dependence. Defendant contends these diagnoses are insufficient to support a verdict that he 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).) Under the SVPA, 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).) According to defendant, this reference to a disorder that would predispose a person to criminal sexual acts means he may not be found to be an SVP absent a diagnosis of some form of paraphilia, and he asks us to interpret the statute to make that requirement explicit.
Defendant points out correctly that “[a]s a matter of substantive due process, the federal Constitution does not permit the civil commitment of a recidivist violent sexual offender unless he lacks control of his sexually violent behavior.” (People v. Burris (2002) 102 Cal.App.4th 1096, 1104 (Burris), citing Kansas v. Hendricks (1997) 521 U.S. 346, 358.) This does not mean, however, that the diagnosed mental disorder must be a sexual disorder. Indeed, the court in Burris concluded that antisocial personality disorder could qualify as a mental disorder within the meaning of the SVPA. (Burris, supra, 102 Cal.App.4th at pp. 1108-1109.) This conclusion is bolstered by People v. Williams (2003) 31 Cal.4th 757, 778 (Williams), in which our Supreme Court noted, in affirming an SVP commitment, that there was expert testimony that the defendant’s control was impaired by a number of mental disorders, including severe antisocial personality disorder, which enhanced his impulsivity and clouded his judgment. (See also Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1161 (Hubbart) [nothing in United States Supreme Court precedent implies that antisocial personality conditions and past criminal conduct play no proper role in commitment determination].) The court in People v. Buffington (1999) 74 Cal.App.4th 1149, 1158-1159 (Buffington), made the same point in concluding that “the Legislature has not acted unconstitutionally by failing to exclude personality or adjustment disorders from the SVPA’s definition of ‘diagnosed mental disorder.’ ”
We recognize that the defendant in Burris had been diagnosed not only with antisocial personality disorder but also with a paraphilia involving rape. (Burris, supra, 102 Cal.App.4th at p. 1110.) Nothing in Burris suggests, however, that a paraphilia diagnosis is necessary to a finding that a person suffered from a mental disorder for purposes of section 6600, so long as the evidence shows that the mental disorder in question predisposes a person to committing criminal sexual acts. (§ 6600, subd. (c).) We conclude the SVPA provides a sufficient nexus between the mental disorder and the person’s predisposition to commit sex crimes, and we therefore decline defendant’s invitation to imply a requirement that a defendant suffer from a form of paraphilia to be considered an SVP.
We turn, then, to the question of whether the evidence is sufficient to show such a predisposition as a result of a mental disorder. In considering this issue, we “ ‘apply the same test as for reviewing the sufficiency of the evidence to support a criminal conviction.’ [Citation.] ‘Thus, this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be “ ‘of ponderable legal significance . . . reasonable in nature, credible and of solid value.’ ” ’ [Citation.]” (People v. Carlin (2007) 150 Cal.App.4th 322, 333 (Carlin).)
To prove defendant was a sexually violent predator, the People had to prove: (1) he had been convicted of a sexually violent offense against one or more victims; (2) he had a diagnosed mental disorder as defined in the SVPA; and (3) his mental disorder made it likely that, if released, he would engage in sexually violent criminal behavior. (§ 6600, subds. (a)(1) & (c); see also Burris, supra, 102 Cal.App.4th at p. 1104; Hubbart, supra, 19 Cal.4th at pp. 1144-1145.)
Dr. Damon testified that in his opinion, defendant suffered from antisocial personality disorder, dementia due to brain injury, alcohol abuse, and borderline intellectual functioning. He explained the basis for his conclusion that defendant suffered from antisocial personality disorder, and opined that this disorder led him to engage in aggressive, antisocial behavior without regard for others and that defendant’s alcohol abuse and dementia made it more difficult for him to control his behavior. He also explained his opinion that defendant had a sexual preoccupation and opined that this preoccupation funneled defendant’s aggressive, antisocial, and unregulated behavior into sex crimes. He opined that defendant’s ability to control his behavior was impaired, and explained that the use of various actuarial measures led to a conclusion that defendant posed a serious and well-founded risk of reoffending without appropriate treatment and custody. His discussion of the actuarial tools, including the Static 99-R, the Static 2002-R, and the MnSOST-R, provided further support for this conclusion. Dr. Fox diagnosed defendant with cognitive disorder not otherwise specified and alcohol dependence, and concluded his cognitive disorder predisposed him to commit criminal sexual acts. He also opined that defendant was likely to commit another sexually violent predatory crime in the future, basing his conclusion on defendant’s scores on the Static 99-R, the Static 2002-R, and the MnSOST-R, his cognitive disorder, his antisocial traits, his problem with alcohol, and his history of sexual and non-sexual crimes, among other things. This evidence is sufficient to support a conclusion that defendant suffered from a diagnosed mental disorder as defined in the SVPA and that his disorder made him “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).)
Defendant draws our attention to cases in which the defendant had diagnoses involving paraphilias and psychoses. (See Moore v. Superior Court (2010) 50 Cal.4th 802, 810 [paraphilias involving sexual acts against nonconsenting persons and exhibitionism, diagnoses of schizoaffective disorder with bipolar and psychotic components, delusions, hypomania, auditory hallucinations, and antisocial personality disorder]; People v. Allen (2008) 44 Cal.4th 843, 852-854 [defendant had been diagnosed with paraphilia involving sex with nonconsenting adults, psychosis, antisocial personality disorder, and cocaine dependency].) He argues that he is “out of [this] league,” and that he is not one of the “ ‘small but extremely dangerous group of sexually violent predators’ ” (Hubbart, supra, 19 Cal.4th at p. 1144, fn. 5) who are properly committed as SVP’s. The question before us, however, is whether a trier of fact could reasonably conclude from the evidence that defendant meets the statutory definition of a sexually violent predator. For the reasons we have discussed, we answer that question in the affirmative.
In reaching this conclusion, we recognize that in the absence of a paraphilia diagnosis, the factual question of whether defendant here is an SVP is closer than that in the cases he cites. We have already concluded, however, that under the SVPA, a paraphilia diagnosis is not necessary to a finding that a defendant suffers from 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).) So long as substantial evidence supports the jury’s finding, the factual question of whether the defendant suffers from such a disorder is one for the jury and not for the reviewing court. (See Carlin, supra, 150 Cal.App.4th at p. 333.)
C. Hearsay Evidence
Defendant contends the trial court erroneously admitted unreliable hearsay as a basis for the opinions of the expert witnesses. “ ‘An expert may generally base his opinion on any “matter” known to him, including hearsay not otherwise admissible, which may “reasonably . . . be relied upon” for that purpose.’ [Citation.]” (People v. Dean (2009) 174 Cal.App.4th 186, 196.) However, as defendant points out, “ ‘[t]he rule which allows an expert to state the reasons upon which his opinion is based may not be used as a vehicle to bring before the jury incompetent evidence. [Citation.]’ . . . Experts can properly and credibly place before the jury the matters they relied upon and the nature of those matters without testifying to the specific details of the documentary entries not otherwise admitted into evidence.” (Id. at p. 201, fn. omitted; see also People v. Dodd (2005) 133 Cal.App.4th 1564, 1569 [trial court may not admit expert opinion based on speculative, conjectural, or otherwise unreliable information].)
Defendant contends the trial court erroneously allowed Dr. Damon and Dr. Fox to testify as to specific details of defendant’s history found in the reports they relied on, including facts about parole violations, information gleaned from school and prison records, hearsay evidence that defendant had harassed other women at the mall before the 2001 incident, evidence that defendant and a friend frightened a two-year-old girl before entering a home to take property, and evidence about the 2007 party.
Defendant made no objection at trial, however, to the admission of most of this evidence. The one point at trial at which the hearsay issue was raised at length was during the testimony of Dr. Damon. At a bench conference outside the presence of the jury, defendant objected to a question regarding defendant’s school history. In a later colloquy, defense counsel indicated that he had no objection to Dr. Damon’s reliance on previous psychological reports, stating, “I think that in as much as Dr. Damon did rely on the reports from Dr. Drucker, to some degree on Dr. Vanoni and certainly from Dr. Soper, that the comments of those reporters are fair ground for him to  explore through his testimony as an expert. He’s  permitted to have an opinion. That opinion relies on materials he’s reviewed, and that includes the comments of the three doctors I mentioned. The cutoff point, I believe, comes where he begins to opine in areas that have unsubstantiated origins, that are not comments directly made by the doctors, but allusions to unseen, unread, unnamed documentations and/or spokespeople.” He went on to discuss the information in one of the reports to defendant having been suspended from school 17 times, said the report did not show the origin of that report, and argued, “I think that the opinions expressed by Dr. Drucker and Dr. Soper and Dr. Vanoni are all fair game, but not shadowy allusions to what I think the law would  describe as unreliable hearsay.” The district attorney pointed out that a report by defendant’s expert witness, Dr. Abrams, reviewed defendant’s school records, including an evaluation done by a school psychologist who had referred to specific school reports, and was consistent with the information in the reports of Dr. Vanoni, Dr. Soper, and Dr. Drucker. Defense counsel conceded that it would be proper for an expert to address the material found in Dr. Abrams’s report, but said he sought a ruling on “a standard for testimony with regards to hearsay and what would the Court’s determination be on reliable or otherwise unless we take it on a case-by-case basis.” The court indicated that it would not make a blanket ruling, but would instead make case-by-case rulings. After further discussion, the court ruled that the experts could be questioned about the information in Dr. Abrams’s report if they had reviewed it.
The Attorney General contends, and defendant does not dispute, that he made only one hearsay objection after this ruling. That objection was to Dr. Damon’s testimony that the victim of the crime at the mall had said defendant had engaged in similar acts with other female mall employees and that his mall access had been limited as a result. The colloquy was as follows: “Q. His sexual preoccupation. How did you arrive at the opinion that he has a sexual preoccupation [¶] A. Sure. So Mr. Cooley has continued to engage in criminal sexual behavior despite consequences. As I mentioned earlier, all of his sex crimes have occurred when he’s on supervised release. [¶] In addition, two of his sex crimes, the 2002 sex offense as well as the 2007 sex offense, occurred when he had a girlfriend. So he has an available, appropriate adult partner and yet he needs more. [¶] In addition, he violated his parole for possession of pornography. And if you remember, the first documented victim, , in 2001 indicated that Mr. Cooley, prior to his offending on her, had engaged in similar acts with other female mall employees and  was kicked out of the mall several times and had limited mall access due to his behavior.” Defendant objected on the ground of hearsay and asked to have the answer stricken. The trial court overruled the objection.
We may not reverse a judgment on the basis of erroneous admission of evidence unless the party challenging the evidence objected to its admission and stated the ground of the objection, and unless we conclude the evidence should have been excluded on the ground stated and there was a resulting miscarriage of justice. (Evid. Code, § 353; see also People v. Hayes (1999) 21 Cal.4th 1211, 1261.) Defendant has therefore waived his objection to all of the evidence he now challenges with the exception of the testimony about prior incidents at the mall.
We need not decide whether this evidence was too unreliable to be admitted, because we conclude that any error in admitting it was harmless. The prior acts were described only in general terms, and were only a small part of the basis for Dr. Damon’s opinion that defendant had a sexual preoccupation. In any case, Dr. Damon had already testified, without objection, that the victim of the 2001 mall offense had told police that defendant had engaged in similar acts with other female mall employees and had been kicked out of the mall and had limited access to the mall. In the circumstances, we see no possibility that defendant would have obtained a more favorable result if the trial court had sustained the hearsay objection.
D. Prosecutorial Misconduct
While examining defendant, the district attorney asked a number of questions that defendant now claims constituted misconduct. The statements fall into two categories. First, defendant contends the district attorney committed misconduct in “bear[ing] down” on defendant about his recollection of the various crimes he committed. In particular, he points to the district attorney asking defendant if the victim of the 2001 mall incident and the witness to the 2001 theft from the 15-year-old neighbor’s house were lying, and to the district attorney’s “relentless hammering” about whether defendant knew L.H. was drunk in the 2002 incident. Second, he complains about questions regarding the details of the crimes against L.H., including questions about whether defendant or his cousin used a condom, whether he ejaculated during intercourse, whether it was unusual for him not to do so, whether he maintained an erection, how long his intercourse with L.H. lasted, whether he moved inside her, and whether he listened from the bathroom while Ryan was having sex with L.H. Defendant contends these questions were irrelevant and designed to embarrass and humiliate him in front of the jury, and that he was deprived of a fair trial by the district attorney’s misconduct.
“A witness may not be examined on matters that are irrelevant to the issues in the case. [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 755.) Moreover, questions that go “beyond an attempt to elicit facts within [a witness’s] knowledge and [are] instead designed to engage him in an argument” are improper. (People v. Johnson (2003) 109 Cal.App.4th 1230, 1236.)
“ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] ‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’ [Citation.]” (People v. Tafoya (2007) 42 Cal.4th 147, 176 (Tafoya); see also People v. Samayoa (1997) 15 Cal.4th 795, 841.)
We first note that defendant did not object to the questions about the 2001 incidents on the grounds he now asserts—although he did raise objections, which were overruled, on the ground the questions called for speculation—or ask that the jury be admonished to disregard the questions. “ ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ ” (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill); see also People v. Hawthorne (2009) 46 Cal.4th 67, 97 (Hawthorne), abrogated on another ground in People v. McKinnon (2011) 52 Cal.4th. 610, 637-638.) Exceptions to this rule exist where an objection or request for an admonition would be futile, where an admonition would not have cured the harm, or where the defendant has no opportunity to make a request for an admonition. (Hill, supra, 17 Cal.4th at p. 820.) In any case, even assuming the issue was preserved for appeal, we would find no prejudicial misconduct as to these questions, which were brief and were designed to explore the discrepancy between defendant’s testimony and that of the witnesses to the events in question. (See Tafoya, supra, 42 Cal.4th at p. 178 [“ ‘were they lying’ ” questions may be proper where defendant was percipient witness with personal knowledge of whether other witnesses who describe events testified truthfully and accurately]; accord Hawthorne, supra, 46 Cal.4th at pp. 97-98.)
Nor do we find prejudicial misconduct in the district attorney’s questioning of defendant about whether he knew L.H. was drunk. The question was clear, and defendant repeatedly failed to answer it directly, even after the trial court intervened and repeatedly explained the question to him. Although it appears from the record that the district attorney showed his frustration with defendant’s nonresponsiveness, we cannot conclude the trial court erred when it stated that the questioning did not “go over the line.” (See People v. Valencia (2008) 43 Cal.4th 268, 304 [no misconduct where trial court was in control, sustained defense objections where appropriate, and allowed cross-examination within permissible limits].)
As to the questions regarding the details of the crimes against L.H., we first note that at no point during that exchange did defendant object on the ground of prosecutorial misconduct or request an admonition, although he objected to a number of questions on other grounds. He has, accordingly, forfeited his claim of prosecutorial misconduct. (See Hill, supra, 17 Cal.4th at p. 820; Hawthorne, supra, 46 Cal.4th at p. 97.) Even assuming this claim was preserved for appeal, we would reject it. The incident with L.H. was crucial to the question of whether defendant was an SVP, both because it was the qualifying offense for purposes of section 6600, and because it was part of defendant’s pattern of committing sexual offenses while drunk and while providing, or offering to provide, alcohol to girls or young women. The trial court could reasonably conclude that prosecutor’s questions, while graphic and unpleasant, were properly designed to elicit defendant’s recollection of the facts in question.
E. Instruction on Consequence of True Finding
Defendant contends the trial court had a sua sponte duty to instruct the jury that if it found defendant to be an SVP, he would be committed for an indeterminate term to the custody of the State Department of Mental Health for treatment and confinement in a secure facility. (§ 6604.) Failure to so instruct the jury, according to defendant, could leave the jury with the false impression that the civil commitment is short-term.
As defendant acknowledges, the court in People v. Rains (1999) 75 Cal.App.4th 1165, 1169-1170 (Rains), concluded that the consequences of a “true” finding on whether a defendant is an SVP have no relevance to any issue to be decided by the jury. Section 6604 provides in pertinent part, “[t]he court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator.” As we have explained, a sexually violent predator is defined as person who has been convicted of a qualifying sexually violent offense and “who has a diagnosed mental disorder that makes the person a danger to the heath 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 jury is not charged with deciding whether an indeterminate term of treatment is appropriate; rather, the Legislature has made that determination. Under the SVPA, “[i]f the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health.” (§ 6604.) We agree with the Rains court that evidence of the consequence of the jury’s determination is not relevant to any issue to be decided by the jury. (See also People v. Calderon (2004) 124 Cal.App.4th 80, 91 [“a jury should not consider what will happen [in an SVP case] as a result of its verdict”]; People v. Allen (1973) 29 Cal.App.3d 932, 935-936 [where sole issue before jury is whether defendant is mentally disordered sex offender, improper for jury to consider what disposition of the defendant may be made or what treatment he may receive].)
Accordingly, the trial court did not err in failing to instruct the jury sua sponte of the consequences of its finding that defendant was an SVP.
F. Due Process, Equal Protection, and Ex Post Facto Laws
Defendant contends the SVPA, as amended by the voters, violates his constitutional rights to due process, equal protection, and to be free from ex post facto laws. Our Supreme Court has explained: “On November 7, 2006, California voters passed Proposition 83, entitled ‘The Sexual Predator Punishment and Control Act: Jessica’s Law’ amending the [SVPA] effective November 8, 2006. Proposition 83 is a wide-ranging initiative that seeks to address the problems posed by sex offenders. . . . [Among other provisions, it] changes an SVP commitment from a two-year term to an indefinite commitment.” (McKee, supra, 47 Cal.4th at p. 1186.) The court went on to explain, “[U]nder Proposition 83, an individual SVP’s commitment term is indeterminate, rather than for a two-year term as in the previous version of the [SVPA]. An SVP can only be released conditionally or unconditionally if the [Department of Mental Health] authorizes a petition for release and the state does not oppose it or fails to prove beyond a reasonable doubt that the individual still meets the definition of an SVP, or if the individual, petitioning the court on his own, is able to bear the burden of proving by a preponderance of the evidence that he is no longer an SVP.” (Id. at p. 1187; see also §§ 6604, 6605, subds. (a) & (b), & 6608, subds. (a), (h) & (i).)
As defendant acknowledges, our Supreme Court in McKee concluded the SVPA, as amended by Proposition 83, does not violate his right to due process or the constitutional prohibition against ex post facto laws. (McKee, supra, 47 Cal.4th at pp. 1193, 1195.) We are, of course, bound by the high court’s ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The court in McKee reached a different conclusion as to the defendant’s equal protection claim. As the court noted, MDO’s and those found guilty by reason of insanity (NGI’s), unlike SVP’s, are not subject to indeterminate commitment. (McKee, supra, 47 Cal.4th at pp. 1202, 1207.) The court concluded that SVP’s are similarly situated to MDO’s and NGI’s, and ruled that the State must show that the differential treatment of SVP’s is constitutionally justified. (Id. at pp. 1207-1209.) In order to avoid a multiplicity of proceedings, the high court has directed the courts of appeal to suspend further proceedings pending finality of McKee in a number of cases that, like McKee, challenged the SVPA on equal protection grounds. (See, e.g., People v. Judge, Supreme Ct. Mins., July 28, 2010, S182384 [review granted and case transferred to Court of Appeal with directions to vacate decision and suspend proceedings pending finality of McKee].) The People have asked us to stay further proceedings pending finality of the proceedings in McKee. Because this appeal raises issues other than the equal protection issue, we have addressed the issues not affected by McKee in order to minimize delay in resolution of defendant’s claims. On the equal protection claim, we shall direct the trial court to suspend proceedings pending resolution of McKee.
G. Unconstitutional Vagueness
In supplemental briefing, defendant contends the SVPA is unconstitutionally vague because it fails to define the kind of mental disorder that may serve as a basis for a finding that an offender is likely to commit a sexually violent crime in the future. Defendant argues that as formulated, the SVPA would allow any mental disorder, including “eating disorders, stuttering, sleep terror disorder, separation anxiety, anxiety and phobic disorders generally, kleptomania and pyromania” to serve as a basis for a finding that an offender is an SVP, and that the law fails to give proper notice about the nature of the mental disorder that must be shown, “rests on an irrational basis for an extended and potential lifetime commitment, and treats him unequally with respect to other civil committees.”
“Due process requires fair notice of what conduct is prohibited. A statute must be definite enough to provide a standard of conduct for its citizens and guidance for the police to avoid arbitrary and discriminatory enforcement. [Citations.] ‘Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.’ [Citation.] [¶] . . . A statute is not vague if . . . any reasonable and practical construction can be given to its language. Reasonable certainty is all that is required. [Citations.]” (People v. Townsend (1998) 62 Cal.App.4th 1390, 1400-1401.) As our Supreme Court has explained, “a law that is ‘void for vagueness’ not only fails to provide adequate notice to those who must observe its strictures, but also ‘impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.’ [Citation.] [¶] . . . [A] claim that a law is unconstitutionally vague can succeed only where the litigant demonstrates, not that it affects a substantial number of others, but that the law is vague as to her or ‘impermissibly vague in all of its applications.’ [Citations.]” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116.)
We cannot conclude that the SVPA is unconstitutionally vague as defendant contends. It defines a diagnosed mental disorder as “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).) This definition is reasonably certain. Indeed, our Supreme Court in Williams described the SVPA’s definition of a diagnosed mental disorder as “clear language.” (Williams, supra, 31 Cal.4th at pp. 764, 774.) We see no merit to defendant’s contention that the statute must spell out which conditions might give rise to this predisposition in order to pass constitutional muster. The statute spells out standards to allow the trier of fact to determine, with the aid of expert testimony, whether the defendant meets the standards to qualify as a sexually violent predator.
Defendant also raises an additional equal protection argument in connection with this issue, contending that the term “severe mental disorder” in the MDO statute is better defined than the term “mental disorder” in the SVPA, and that he was thereby deprived of equal protection. The MDO statute defines a severe mental disorder as “an illness or disease or condition that substantially impairs the person’s thought, perception of reality, emotional process, or judgment; or which grossly impairs behavior; or that demonstrates evidence of an acute brain syndrome for which prompt remission, in the absence of treatment, is unlikely. The term ‘severe mental disorder’ as used in this section does not include a personality or adjustment disorder, epilepsy, mental retardation or other developmental disabilities, or addiction to or abuse of intoxicating substances.” (Pen. Code, § 2962, subd. (a).) Although the Legislature chose to except certain conditions from the definition of “severe mental disorder,” the MDO statute, like the SVPA, does not enumerate those conditions that do qualify as the requisite disorder. We see no denial of equal protection on this basis.
Moreover, we are guided by our Supreme Court’s admonition that “in this nuanced area, the Legislature is the primary arbiter of how the necessary mental-disorder component of its civil commitment scheme shall be defined and described.” (Williams, supra, 31 Cal.4th at p. 774.) As in Williams, “[n]o reason appears to interfere with that legislative prerogative here.” (Ibid.)
The case is remanded to the trial court with directions to suspend further proceedings pending finality of the proceedings in McKee, supra, 47 Cal.4th 1172 and, upon finality of McKee, to consider defendant’s equal protection claim in light of the decision in that case. Finality of the McKee proceedings shall include the finality of proceedings in the San Diego Superior Court, any subsequent appeal, and any review in the California Supreme Court. In all other respects, the judgment is affirmed.
REARDON, Acting P.J.
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|Description||Defendant Joshua Bryan Cooley appeals after he was found to be a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, Â§ 6600 et seq.) He contends the evidence was insufficient to support the jury's findings, that the trial court committed evidentiary and instructional error, that the prosecutor committed misconduct, that the SVPA violates his rights to due process and equal protection, that it acts as an ex post facto law, and that it is unconstitutionally vague. We reject each of these contentions except the equal protection claim, which is the subject of pending litigation. (People v. McKee (2010) 47 Cal.4th 1172 (McKee).) We shall therefore remand this case to the trial court to await final resolution of McKee and, when McKee is final, to consider defendant's equal protection claim. In all other respects, we shall affirm the judgment.|