P. v. Hazeltine

Filed 6/2/08 P. v. Hazeltine CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tuolumne County. Douglas C. Boyack, Judge.

Boyce & Schaefer, Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Procedural and Factual Summaries

On February 9, 1994, appellant Rick Hazeltine sexually assaulted his live-in girlfriends three children, whose ages ranged from eight months to four years. Hazeltine was sentenced to 11 years in state prison. This was his third conviction involving the sexual abuse of minors. His first conviction at age 16 was based on his molestation of a six-year-old niece when he was 13 years old. His second conviction was at age 17, when he was convicted of molesting a 13-year-old girl. In addition to these convictions, Hazeltine had suffered a number of other offenses, including forgery, vehicle theft, petty theft, and contributing to the delinquency of a minor.

In 1999, prior to Hazeltines release from prison, the Tuolumne County District Attorney filed a petition seeking to commit Hazeltine to the Department of Mental Health (department) as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code,^[1] 6600 et. seq.). The petition was granted and Hazeltine was committed for a two-year term. Recommitment petitions were filed and granted in 2001 and 2003.

On August 11, 2005, the district attorney again filed a petition seeking an extension of the SVP commitment. The matter came to trial on June 13, 2007. Hazeltine waived personal appearance at trial and did not appear.

At trial, Dr. Kathleen Longwell and Dr. Robert Owen testified as experts. Dr. Longwell, a clinical psychologist, testified that she had conducted the initial SVP evaluation of Hazeltine. She performed recommitment evaluations in 2005 and 2006. In 1999, Hazeltine admitted to molesting his niece, but denied molesting the 13-year-old, stating that the sexual contact was consensual. He denied any sexual contact with the children of his live-in girlfriend. While being confined, Hazeltine has refused to participate in any sexual-offender or substance-abuse treatment. He is hostile toward the whole notion of treatment. He contends that the treatment program offered is a bad program, it doesnt help and he is never going to do it. Dr. Longwell opined that Hazeltines 1994 conviction met the first criteria for SVP determination. She also opined that his diagnosed mental health disorder of paraphilia not otherwise specified, alcohol dependence, and antisocial personality disorder met the second criteria for SVP determination. Dr. Longwell testified that Hazeltine met the third criteria for SVP determination because, in her opinion, he was likely to engage in sexually violent predatory criminal behavior in the future.

Dr. Owen, also a clinical psychologist, evaluated Hazeltine in 2002, 2005, and 2006, although Hazeltine refused to be interviewed by Owen for any of the three evaluations. Dr. Owen diagnosed Hazeltine as a pedophile with alcohol dependence disorder and antisocial personality disorder. According to Dr. Owen, all three diagnoses lead to Hazeltines inability to control his behavior. Dr. Owen testified that Hazeltine presented every factor suggesting a likelihood of reoffending in the future, including a deviant sexual preference for children; prior sexual offenses; early onset of sexual offending; poor probation and parole performance; unemployment; antisocial personality; separation of parents; failure to participate in treatment; and no protective factors like being in the community for five years without reoffending or serious health problems to preclude reoffending. As a result, Dr. Owen believed that Hazeltine was likely to reoffend in a predatory way.

After hearing the evidence, the jury found that Hazeltine met the criteria for commitment as an SVP. On June 14, 2007, the court ordered Hazeltine committed as an SVP for an indefinite term pursuant to section 6604.

Discussion

I. Sufficiency of the evidence

Hazeltine contends that the jurys findings are not supported by sufficient evidence because the experts opinions are based only on past conduct and do not support a finding that he currently suffers from a mental disorder and would likely engage in acts of sexual violence if released. We disagree. When assessing the sufficiency of the evidence in proceedings held pursuant to the SVPA, the appellate court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.)

Hazeltine contends that the evidence was skewed so heavily toward his past conduct that the evidence was insufficient to show current dangerousness. (Kansas v. Hendricks (1997) 521 U.S. 346, 371 [SVPA passes constitutional muster when based on determination that person suffers from current mental abnormality and is likely to pose future danger to public]; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145 [prior offenses cannot be sole bases for SVP determination].) While it is true that the experts considered Hazeltines past acts, the testimony presented by the experts in this case focused on the manner in which the historical factors relate to Hazeltines current condition. The jury properly was instructed that it could not rely on the past convictions to justify a finding of current danger.^[2] We conclude that the evidence was sufficient to permit a rational jury to conclude beyond a reasonable doubt that Hazeltine, because of a current mental disorder which makes it difficult or impossible to restrain violent sexual behavior,  presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community. (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.)

Both psychologists diagnosed Hazeltine with a type of deviant sexual disorder,^[3]substance abuse disorder, and antisocial personality disorder. Both opined that Hazeltine was, as a result of these disorders and the corresponding inability to control his behavior, likely to reoffend in a predatory way if released from custody. Both noted that Hazeltine had refused to participate in treatment and therefore had not addressed the problems underlying his past offenses.

Dr. Longwell testified that her diagnosis was based primarily on Hazeltines history. However, she also considered Hazeltines performance or score on a number of testing tools, including the STATIC 99 test, the Minnesota Sex Screening Tool (MnSost-R), the Sex Offender Risk Appraisal Guide (SORAG), the Hare Psychopathy Checklist, and the Rorschach Inkblot Test. Hazeltine scored six on the STATIC 99, which places him in the highest category for reoffense. He scored a 13 on the MnSOST-R, which likewise placed him in the highest category for reoffense. His score on the SORAG predicted a 100-percent chance of reoffending within the first seven years of being released. His scores also suggest that he is a psychopath, a person who is cold, calculating, self-centered, and without any sense of guilt, remorse, or compassion.

Dr. Longwell testified that she considered Hazeltines current antisocial personality disorder and substance abuse diagnosis to be aggravating factors suggesting the likelihood of reoffending because of their impact on volitional control. In addition, she noted that Hazeltine has not fully accepted responsibility for his behavior. He denied committing any of the identified behavior, except for molesting his niece. Although he has said he is sorry for molesting his niece, he refuses to address even this offense as a problem. Dr. Longwells opinion is therefore not based solely on past behavior, but on current information and current mental health status. This is the type of expert testimony presented in the majority of SVPA cases and has been held admissible on the issue of future dangerousness. (See, e.g., People v. Ward (1999) 71 Cal.App.4th 368, 373-374.)

Dr. Owens opinion was also based on a current evaluation of Hazeltines mental health status. He considered Hazeltines score of six on the STATIC 99 test, and other predictive factors, such as Hazeltines deviant sexual preference for children, early onset of sexual offending, and the nature of the earlier offenses, before concluding that Hazeltine is currently dangerous and likely to reoffend. Dr. Owen also testified, he hasnt participated in treatment, even though hes had the opportunity for what, eight years now, doesnt even go to A.A. groups, I dont see a whole lot of positive trends here. (See, e.g.,  6606, subds. (a) & (e).) A determination of the likelihood of future dangerousness also takes into account the potential SVPs amenability to voluntary treatment upon release. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 255.) While there is nothing in the SVPA that requires Hazeltine to participate in treatment while confined, it is reasonable and appropriate to consider his refusal to participate as a sign that the person is not prepared to control his untreated dangerousness by voluntary means . (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 929.) As a consequence, there is no basis for concluding that Hazeltines mental disorder has been treated, that he has learned to control his sexual behavior, or that he is no longer a danger to society. Like Dr. Longwell, Dr. Owens opinion, although heavily influenced by Hazeltines past behavior, is not based solely on past behaviors, but additionally on the nature of Hazeltines current mental health diagnosis and its impact on Hazeltines ability to voluntarily control his impulses. The opinions are not based solely on a predisposition to violence and sexual crime as Hazeltine contends. There is sufficient evidence to support the three elements of the SVP determination.

II. Constitutional challenges

Hazeltine contends that the SVPA as currently drafted violates the federal constitutional guarantees against ex post facto laws and double jeopardy. He acknowledges that these issues have been decided against him by our state Supreme Court in Hubbart v. Superior Court, supra, 19 Cal.4th 1138, but raises them here to preserve the arguments for federal review.

Hubbart held that the SVPA did not violate the constitutional proscription against ex post facto laws because it does not impose punishment or implicate ex post facto concerns. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1179; see also Landgraf v. USI Film Products (1994) 511 U.S. 244, 266-267 [basic purpose of ex post facto clause is to ensure fair warning of consequences of violating penal statutes and to reduce potential for vindictive legislation].) Similarly, because the SVPA is not punitive in purpose or effect and does not impose liability or punishment for criminal conduct, it does not implicate double jeopardy. (People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2; People v. Carlin (2007) 150 Cal.App.4th 322, 348.)

The analysis of whether a statute is punitive does not depend on the term of the civil commitment, but on the intent and effect of the statute authorizing it. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1171 [key is whether SVPA intended by Leg. to inflict punishment].) [T]he mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment. (United States v. Salerno (1987) 481 U.S. 739, 746.) Since a court ordinarily defers to the stated legislative intent in determining whether a statute is punitive, only the clearest proof will override this intent and transform what has been denominated a civil remedy into a criminal punishment. (Smith v. Doe (2003) 538 U.S. 84, 92.) Both the California and the United States Supreme Courts have already determined that detaining sex offenders adjudged to be dangerous to society is a legitimate, nonpunitive governmental objective, and that acts like the SVPA, despite their restrictive natures, are not punitive. (Kansas v. Hendricks, supra, 521 U.S. at p. 363 [restraining freedom of dangerously mentally ill is historically acknowledged legitimate, nonpunitive governmental objective]; Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1179.) We are bound by these decisions. (Auto Equity Sales, Inc.v.Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The commitment order is affirmed.

_____________________

Wiseman, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Hill, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1]All further references are to the Welfare and Institutions Code unless otherwise noted.

^[2]The jury was instructed as follows: You may not conclude that [Hazeltine] is a sexually violent predator based solely on his alleged prior convictions without additional evidence that he currently has such diagnosed mental disorder.

^[3]Dr. Owens diagnosis differed from Dr. Longwells diagnosis slightly in that he diagnosed Hazeltine as a pedophile in contrast to Dr. Longwells diagnosis of paraphilia (sexual deviancy) not otherwise specified. But Dr. Longwell explained that she did not give the diagnosis of pedophilia because Hazeltines early convictions did not match the age requirements of the diagnosis. Dr. Owen explained that the diagnosis of paraphilia would also be appropriate and acknowledged that the age factors for pedophilia were not met, but he believed they were close enough given the nature of the conduct.