>P. v. Hicks























Filed
4/19/13 P. v. Hicks 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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


>

THE PEOPLE, Plaintiff and Respondent, v. RICK HICKS, Defendant and Appellant.

F064190 (Super. Ct. No. CRP35989) >OPINION

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tuolumne
County. Eleanor Provost, Judge.

Deborah L.
Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.

-ooOoo-

After a
jury found appellant Rick Lee Hicks to be a sexually violent predator (SVP),
the trial court committed him to the custody of the href="http://www.fearnotlaw.com/">Department of Mental Health (DMH) for an
indeterminate term under the Sexually Violent Predator Act (SVPA) (Welf. &
Inst. Code, § 6600 et seq.).href="#_ftn1"
name="_ftnref1" title="">^[1] Hicks appeals, contending (1) that the trial
court prejudicially erred when it accepted defense counsel’s waiver of a
probable cause hearing without obtaining Hicks’s personal waiver of that
hearing; (2) that the trial court committed reversible error when it declined
to instruct on circumstantial evidence;
and (3) that there was insufficient evidence that Hicks would likely commit a
future predatory offense without appropriate treatment in a custodial
setting. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Hicks was
born in 1971 and was 40 years old at the time of trial.

In 1990,
when Hicks was 18 or 19, he orally copulated and sodomized a five-year-old male
cousin. He was convicted of violating
Penal Code section 288, subdivision (a), committing a lewd or lascivious act on
a child under the age of 14. Hicks
admitted to police that he first molested this same victim two years prior to
the crimes resulting in conviction.
Hicks had attempted suicide, been hospitalized, and gone into a group
home before resuming the molestations and getting “caught,” because he was
“unable to control his sexual urges.”


Hicks
testified that he was “15 going on 16” when he first molested the victim of his
1990 crime. Hicks was living with the
victim’s family, his aunt and uncle, at the time and was “attracted to” the
victim when he “had his diaper off” and he “acted on that impulse.” His 1990 conduct included orally copulating
the victim and masturbating in the victim’s presence. He denied sodomizing the victim. For his conviction, he received eight months
in county jail, three years probation, and was ordered to undergo counseling at
a program called “Parents United.” He
was 18 years old when he began the program.
Although he completed “five different phases” of the program, he thought
the program was a failure because he had not yet been diagnosed as a pedophile,
so he did not understand his “mental disorder.”

In 1996,
Hicks was convicted of violating Penal Code section 647.6, annoying and/or
molesting a child, a misdemeanor offense.
That offense involved the 11-year-old son of a friend with whom Hicks
spent “a lot of time” “cultivat[ing]” a relationship by taking the victim
camping or rafting and then asking him to orally copulate Hicks. Hicks testified that the boy’s mother was his
best friend and that he had known the child for three to four years. He described his crime as asking the child if
he could “suck” the child’s penis. Hicks
stated that he acted on “impulse,” in part because he was stressed by his
mother’s recent death.

In 1999,
Hicks was again convicted of a violation of Penal Code section 288, subdivision
(a), committing a lewd or lascivious act on a child under the age of 14. This time Hicks testified that he “found”
himself attracted to his three-year-old cousin and, acting on “impulse,” orally
copulated her and masturbated to the point of ejaculation on her “vagina
area.” He also penetrated her anus with
his fingers. Hicks admitted to police
that he molested this victim “seven or eight times.” Hicks was committed to prison for 12 years
and while there attended weekly A.A. meetings and, according to him, took
“advantage of … every resource or program that was available,” including
working with a psychologist who had expertise in sex offenses. At the end of his prison term, Hicks, by now
age 39, received 15 months of counseling at Atascadero State Hospital as a
mentally disordered offender. It was at
Atascadero that he was diagnosed with and treated for pedophilia and polysubstance
dependence. And it was there that Hicks
also began to develop his “relapse prevention plan,” learning to “keep away”
from small children by avoiding “triggers” like certain television programs and
going to places like McDonalds and malls or stores where children are present,
and by not forming relationships with people who have small children.

According
to Hicks, when he was paroled from Atascadero in July of 2010, he spoke to a
psychologist about his pedophilia and substance abuse issues. He got a job at a food processing plant in August
of 2010, began “the process of re-enrolling” at a community college, and became
active in N.A. and A.A., and also attending a weekly “step study group.” He tested monthly for drugs, lived in a
“structured halfway house,” and was registered as a sex offender.

Hicks
committed his most recent sexual offense in January of 2011, a violation of
parole, which involved repeatedly grabbing the genital area of one of his
coworkers. Hicks denied being the
aggressor and claimed instead to be the victim.
The coworker was described as a young adult who looked like a minor,
under the age of 18. Hicks testified
that, while on parole and working at the food processing plant, he became
attracted to a 22-year-old coworker.
Hicks described the attraction as mutual and that they played a game in
which they would “smack” each other on the butt. At one point, the coworker sent a picture of
his penis to Hicks’s cell phone. Hicks
described an incident at work where the coworker was pulling a water hose
between his legs and waving it at Hicks “like a penis.” Hicks grabbed the hose and, in the process,
“probably grazed [the coworker’s] hip and leg” with his hand. The coworker filed a sexual harassment
complaint and Hicks was suspended and then terminated from his job.

For his
commitment proceedings, Hicks was interviewed in June of 2011 by two
psychologists hired by the prosecution – Dr. Carolyn Murphy and Dr. Michael
Selby. Both Dr. Murphy and Dr. Selby
were of the opinion that Hicks was likely to reoffend in a sexually violent
predatory manner, based on his history of prior sexual predatory offenses and
current diagnosed mental disorder of pedophilia and substance abuse
issues. Dr. Murphy assessed Hicks’s risk
of reoffense as “moderate to high,” which equated to a 20 to 29.6 percent risk
of reoffense, using two actuarial tools, the Static-99R and Static-2002R. Dr. Selby opined that, absent “highly
structured” sex offender and substance abuse treatment in a custodial setting, there
was a “serious and well-founded risk” that Hicks would reoffend.href="#_ftn2" name="_ftnref2" title="">^[2]

Paul E.
Patterson, the “principal of a middle school” and “minister of a church in
Modesto,” who had known Hicks for 21 or 22 years, testified that he and Hicks
had had a “committed relationship that lasted for ten years,” during which they
lived together. Patterson was aware of
Hicks’s conviction for child molestation and that he had had a “reoffense”
involving a “young lady.” Patterson
stayed in contact with Hicks while he was in prison and was willing to support
Hicks if he was released, would allow him to live with him if he needed a place
to stay, and he had an adequate salary and was able to assist Hicks
financially. Prior to helping Hicks,
Patterson would insist that Hicks agree not
to “be around kids right now at all.”


Hicks
testified that, at the time of his prior criminal
conduct, he had no understanding of his “mental disorder,” and so had “no
self-control.” He had since gotten past
his shame and guilt and was now motivated to recover “and never offend
again.” Hicks believed he now had the
“right tools” in the form of his “elaborate relapse prevention plan,” although
he conceded “there are no guarantees in life.”
According to Hicks, Drs. Murphy and Selby asked him a lot of “generic”
questions that were “vague” and without “depth,” but neither asked him about
his prior treatment or “behavior chains.”


Hicks, who
was currently in jail, testified that, when released, he had a job offer with a
tax service, he had a place to stay, and Patterson and other friends had
offered to help him financially. He
would continue to seek treatment for pedophilia and continue his involvement in
A.A. and N.A.

>DISCUSSION

We discuss
Hicks’s various appellate challenges below, after providing a general overview
of the SVPA.

Overview of the SVPA

“The SVPA …
provides for the involuntary civil commitment of certain offenders, following
the completion of their prison terms, who are found to be SVP’s because they
have previously been convicted of sexually violent crimes and currently suffer
diagnosed mental disorders which make them dangerous in that they are likely to
engage in sexually violent criminal behavior.
[Citation.]” (>People v. Superior Court (Ghilotti)
(2002) 27 Cal.4th 888, 902; § 6600, subd. (a)(1).) A “diagnosed mental disorder” is defined to
include “a congenital or acquired
condition affecting the emotional or volitional capacity that predisposes the
person to the commission of criminal sexual acts in a degree constituting the
person a menace to the health and safety of others.” (§ 6600, subd. (c).)

The initial
identification of a possible SVP begins with a screening by the Department of
Corrections and Rehabilitation (DCR) and the Board of Parole Hearings of the “social,
criminal, and institutional history” of an individual, who is either serving a
determinate prison sentence or whose parole has been revoked, for the
commission of “a sexually violent predatory offense.” (§ 6601, subds. (a) & (b).) The screening is conducted in accord with an
assessment protocol developed by the DMH.
(People v. Hurtado (2002) 28
Cal.4th 1179, 1182-1183.) If that
screening leads to a determination that the defendant is likely to be a
sexually violent predator, the defendant is referred to the DMH for an
evaluation by two psychiatrists or psychologists. (§ 6601, subds.
(b) & (c).) If both find
that the defendant has a “diagnosed mental disorder so that he or she is likely
to engage in acts of sexual violence without appropriate treatment and custody”
(§ 6601, subd. (d)), the DMH forwards a petition for commitment to the
county of the defendant’s last conviction.
(Ibid.) If the county’s designated counsel concurs
with the recommendation, he or she files a petition for commitment in the
superior court. (§ 6601, subd. (i)>.)

Upon filing
of the SVPA commitment petition, the superior court must review the petition
and determine “whether the petition states or contains sufficient facts that,
if true, would constitute probable cause to believe that the [defendant] is
likely to engage in sexually violent predatory criminal behavior upon his or
her release.” (§ 6601.5.) If the court determines the petition on its
face supports a finding of probable cause, it then orders the defendant to be
kept in a secure facility until a probable cause hearing under section 6602 is
conducted. (§ 6601.5.) The probable cause hearing must be conducted
within 10 calendar days of the issuance of the order. (Ibid.)

The purpose
of the probable cause hearing is to determine whether “there is probable cause
to believe that the [defendant] is likely to engage in sexually violent
predatory criminal behavior upon his or her release.” (§ 6602, subd. (a).) The probable cause hearing is an adversarial
hearing where the [defendant] has the right to counsel, to present “oral and
written evidence,” and to “‘challenge the accuracy’” of the evaluations by
cross-examination of the experts. (>Cooley v. Superior Court (2002) 29
Cal.4th 228, 245, fn. 8; § 6602, subd. (a).) If the court finds probable cause, it orders
a trial to determine whether the defendant is a sexually violent predator under
section 6600. (§ 6602, subd. (a).)

The
individual named in the petition is entitled to a jury trial, and the jury’s
verdict must be unanimous. (§ 6603,
subds. (a) & (f).) The individual is
also entitled to retain experts and professional persons to perform an
examination on his or her behalf.
(§ 6603, subd. (a).) At
trial, the trier of fact determines whether, beyond a reasonable doubt, the
individual is a SVP. (§ 6604.) If the trier of fact determines the
individual is a SVP, that person is committed for an indefinite term to the
custody of the DMH for appropriate treatment and confinement in a secure
facility designated by the DMH. (>Ibid.)

I.
WAIVER OF PROBABLE CAUSE HEARING

First,
Hicks contends that the trial court erred prejudicially when it accepted
defense counsel’s waiver of a probable cause hearing without obtaining a
personal waiver from him. We disagree.

On July 8,
2011, the prosecutor filed the SVP petition, with the prosecutor’s declaration
and the reports of Drs. Selby and Murphy attached. On July 12, 2011, Judge Provost filed an
order setting a probable cause hearing on July 29, 2011. On July 29, 2011, Judge Boyack appointed the
public defender to represent Hicks and set the matter over to August 3, 2011,
in “Department 4” because Judge Provost was “more familiar with the ins and
outs of these cases .…” On August
3, 2011, Hicks appeared with counsel again before Judge Boyack. Hick’s counsel asked for another continuance
and that, once the case got to Judge Provost’s department, “we’ll waive time
and have the matter set for jury trial.”
Judge Boyack granted the continuance.
At the conclusion of the hearing, the following exchange occurred:

“[Prosecutor]:
Your Honor, at this point, I assume there is a stipulation to probable
cause for continuing custody at this point?

“[The Court]: Oh,
that is a good point. [¶] [Defense counsel]?

“[Defense Counsel]:
We would so stipulate.

“[The Court]:
Okay. [¶] The Court, having reviewed the report, finds
there is probable cause to continue Mr. Hicks in custody pending trial.”

Hicks
contends, and respondent does not disagree, that this exchange meant that the
trial court accepted defense counsel’s waiver of a probable cause hearing
without advising Hicks of his right to that hearing and without eliciting a
personal waiver. Unlike Hicks, however,
respondent contends that the waiver was valid as no personal waiver was
required and that, in any event, no prejudicial error occurred. We agree with respondent.

As stated
previously, upon filing of the SVPA commitment petition, the superior court
must review the petition and determine “whether the petition states or contains
sufficient facts that, if true, would constitute probable cause to believe that
the individual named in the petition is likely to engage in sexually violent
predatory criminal behavior upon his or her release.” (§ 6601.5.) If the court determines the petition on its
face supports a finding of probable cause, then it orders the person named in
the petition to be kept in a secure facility until a probable cause hearing
under section 6602 is conducted. (§ 6601.5.) The probable cause hearing must be conducted
within 10 calendar days of the issuance of the order. (Ibid.)

The
probable cause hearing in an SVPA case, like the preliminary hearing in a
criminal case, tests the sufficiency of the evidence behind the allegations and
protects the accused from having to face trial on groundless charges. (Cooley
v. Superior Court, supra, 29 Cal.4th at p. 247; People v. Hayes (2006) 137 Cal.App.4th 34, 43.) The probable cause hearing “is only a
preliminary determination that cannot form the basis of a civil commitment; the
ultimate determination of whether an individual can be committed as an SVP is
made only at trial. (§ 6604.)” (Cooley
v. Superior Court, supra, at p. 247.)

Hicks
contends that, because of the importance of the statutory scheme of SVP
commitment and the mandatory language requiring a probable cause hearing, a
potential SVP committee must be informed of the right to the probable cause
hearing and must make a knowing and intelligent waiver of his right to that
hearing. Hicks cites >People v. Hayes, supra, 137 Cal.App.4th
at p. 48, which states:

“[T]he text of section 6602, subdivision (a) renders the
probable cause hearing mandatory: ‘A judge of the superior court >shall review the petition and >shall determine whether there is
probable cause .…’ (Italics
added.) As such, a probable cause
hearing is a mandatory procedural safeguard.
[Citations.]”

But it should be noted that, in this case, the trial court
did review the petition and did determine there was probable cause.

Hicks, noting
the analogy of a probable cause hearing in an SVPA case to a felony preliminary
hearing, also relies on Penal Code section 859b, subdivision (a), which he
contends requires personal waiver of a felony preliminary hearing. (People
v. Kowalski (1987) 196 Cal.App.3d 174, 176-177.) But, as noted by respondent, Penal Code
section 859b, subdivision (a) requires that a defendant “personally” waive the
right to a speedy preliminary hearing, or the “right to preliminary examination
within the 10 court days,” not the right to a preliminary hearing itself. Instead, the waiver of the right to the
preliminary hearing itself is governed by Penal Code section 860, which allows
a defendant “represented by counsel” to “waive the right to” a preliminary
hearing, with no requirement that the defendant personally waive that
right. (See, e.g., In re Gregory (1927) 86 Cal.App. 10, 11-12 [defendant represented
by counsel may waive the right to a preliminary hearing]; People v. White (1963) 213 Cal.App.2d 171, 174 [same].)

In any
event, even if we determine that Hicks was erroneously denied the personal
right to waive the probable cause hearing, the standard of review of such an
error, as in a preliminary hearing in a criminal case, is harmless error, which
requires reversal “‘only if [the] defendant can show that he was deprived of a
fair trial or otherwise suffered prejudice as a result of the error ….’” (People
v. Hayes, supra, 137 Cal.App.4th at p. 50, citing People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529-530.) Hicks fails to show that, if he had had a
probable cause hearing, it was reasonably probable he would have been screened
out or a finding of probable cause would not have been made by the trial
court. We therefore reject his
contention.

II.
FAILURE TO GIVE INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE

During an
in camera discussion on jury instructions, the parties and trial court
questioned whether instruction on circumstantial
evidence was necessary. Eventually,
the trial court stated that it would not give the instructions, although
defense counsel stated that he would “prefer” they be given. Hicks now contends that the failure to give
CALCRIM No. 223, on the definition of direct and circumstantial evidence, and CALCRIM
No. 224, on the sufficiency of circumstantial evidence, violated his state and
federal due process right to a fair trial.
He asserts that the People’s case was based substantially on
circumstantial evidence, in the form of expert opinions as to his mental
condition, and that, without these instructions, the jury was permitted to find
him to be an SVP based on circumstantial evidence that did not constitute proof
beyond a reasonable doubt and might reasonably have supported a contrary
conclusion. Respondent disagrees, as do we.


CALCRIM No. 223 provides:

“Facts may be proved by direct or circumstantial
evidence or by a combination of both. >Direct evidence can prove a fact by
itself. For example, if a witness
testifies he saw it raining outside before he came into the courthouse, that
testimony is direct evidence that it was raining. Circumstantial
evidence also may be called indirect evidence. Circumstantial evidence does not directly
prove the fact to be decided, but is evidence of another fact or group of facts
from which you may logically and reasonably conclude the truth of the fact in
question. For example, if a witness
testifies that he saw someone come inside wearing a raincoat covered with drops
of water, that testimony is circumstantial evidence because it may support a
conclusion that it was raining outside.
[¶] Both direct and
circumstantial evidence are acceptable types of evidence to prove or disprove
the elements of a charge, including intent and mental state and acts necessary
to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight
than the other. You must decide whether
a fact in issue has been proved based on all the evidence.”

CALCRIM No.
224 provides:

“Before you may rely on circumstantial evidence to
conclude that a fact necessary to find the defendant [to be an SVP] has been
proved, you must be convinced that the People have proved each fact essential
to that conclusion beyond a reasonable doubt.
[¶] Also, before you may rely on
circumstantial evidence to find the defendant [to be an SVP], you must be
convinced that the only reasonable conclusion supported by the circumstantial
evidence is that the defendant [meets the SVP criteria]. If you can draw two or more reasonable
conclusions from the circumstantial evidence, and one of those reasonable
conclusions points to [not meeting SVP criteria], you must accept the one that
points to [not meeting the SVP criteria].
However, when considering circumstantial evidence, you must accept only
reasonable conclusions and reject any that are unreasonable.”

We are not aware of any authority
addressing whether instructions on circumstantial evidence must be given in SVP
proceedings. In Conservatorship of Walker (1987) 196 Cal.App.3d 1082, the court
held that an instruction on circumstantial evidence should be given in a civil
proceeding to appoint a conservator for a mentally ill person under the
Lanterman-Petris-Short Act (§ 5000 et seq.). The court noted that appointment of a
conservator under the act involved a serious deprivation of the liberty rights
of the conservatee and must be supported by proof beyond a reasonable
doubt. (Conservatorship of Walker, supra, at pp. 1092-1093, 1098.) Commitment under the SVPA also involves a
deprivation of liberty and must also be supported by proof beyond a reasonable
doubt. (§ 6604.) Given these similarities between the present
proceeding and the proceeding involved in Conservatorship
of Walker, we will assume for purposes of argument that instruction on
circumstantial evidence is required in SVPA commitment proceedings if otherwise
appropriate.

Circumstantial
evidence instructions must be given where the prosecution’s case rests
substantially on circumstantial evidence, but it should not be given where the
evidence relied on is either direct or, if circumstantial, is not equally
consistent with a reasonable conclusion of innocence. (People
v. Heishman (1988) 45 Cal.3d 147, 167; People
v. Wiley (1976) 18 Cal.3d 162, 174-176.)
Thus, the failure to give the instructions is not prejudicial error
where the circumstantial evidence points convincingly to the defendant’s
guilt. (People v. Heishman, supra, at p. 167.)

In
addition, the instruction is required only when guilt must be inferred from a
pattern of incriminating circumstances.
Therefore, not all indirect evidence requires the instruction. Specifically, a defendant’s extrajudicial
admissions are not the type of indirect evidence to which the instruction is
applicable. (People v. Wiley, supra, 18 Cal.3d at p. 174.)

Here, the
People’s case rested in substantial part on the opinions of Drs. Murphy and
Selby. Expert opinion testimony is often
characterized as indirect or circumstantial evidence. (See, e.g., People v. Gentry (1968) 257 Cal.App.2d 607, 611; >People v. Di Giacomo (1961) 193
Cal.App.2d 688, 695; People v. Goldstein
(1956) 139 Cal.App.2d 146, 154; People v.
Jones (1954) 42 Cal.2d 219, 222 [proposed testimony of psychiatrist that
defendant was not a sexual deviate was indirect evidence].)

But the
expert testimony of Drs. Murphy and Selby was not “equally consistent with a
reasonable conclusion of innocence” (People
v. Heishman, supra, 45 Cal.3d at p. 167), so as to require the giving of
circumstantial evidence instruction. The
opinions of Drs. Murphy and Selby that some or all of Hicks’s prior criminal
sexual conduct was predatory, thus rendering it likely that any future conduct
would also be predatory, was unrefuted by any countervailing defense expert
testimony. Moreover, much of the
prosecution’s expert testimony was based on Hicks’s own extrajudicial
statements and admissions.

On this
record, the People’s reliance on expert testimony to prove their case did not
require the giving of CALCRIM Nos. 223 and 224, as the circumstantial evidence
was not equally consistent with a finding Hicks was not an SVP. For the same reason, even if it were to
assume that the instructions should have been given, the failure to do so was
not prejudicial because the circumstantial evidence pointed convincingly to a
finding that Hicks was an SVP. (>People v. Heishman, supra, 45 Cal.3d at
p. 167.)

III.
SUFFICIENCY OF THE EVIDENCE

Finally,
Hicks contends the evidence was insufficient that he had ever committed a predatory
offense or that he would likely commit one in the future. He particularly argues the experts applied
the wrong legal standard of “predatory” in forming their opinions. We disagree.


In order to
establish that a defendant is an SVP, the state had to prove “(1) [the]
defendant was convicted of [one or more] separate sexually violent offenses[href="#_ftn3" name="_ftnref3" title="">^[3]];
(2) he had a diagnosable mental disorder that made him a danger to the health
or safety to others; (3) his disorder makes it likely he will engage in sexually
violent criminal conduct if released; and (4) his sexually violent criminal
conduct will be predatory in nature.
[Citations.]” (>People v. Fulcher (2006) 136 Cal.App.4th
41, 52, italics omitted.) “[B]efore a
defendant can be committed or recommitted under the [SVPA], the trier of fact
must find, beyond a reasonable doubt, that the defendant is likely to commit
sexually violent predatory behavior upon release.” (People
v. Hurtado, supra, 28 Cal.4th at p. 1182, italics omitted.) “‘Predatory’ means an act is directed toward
a stranger, a person of 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.” (§ 6600, subd. (e).)

“When a defendant challenges the sufficiency of the
evidence to support a finding that he is an SVP, ‘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. Mercer (1999) 70
Cal.App.4th 463, 466.) ‘In reviewing the
record to determine the sufficiency of the evidence this court may not
redetermine the credibility of witnesses, nor reweigh any of the evidence, and
must draw all reasonable inferences, and resolve all conflicts, in favor of the
judgment.’ (People v. Poe (1999) 74 Cal.App.4th 826, 830.)” (People
v. Sumahit (2005) 128 Cal.App.4th 347, 352.)

Both Dr.
Murphy and Dr. Selby testified that Hicks was likely to reoffend in a sexually
violent predatory manner, based on his history of prior predatory offenses and
current mental disorder of pedophelia.
Dr. Murphy testified that she first reviewed Hicks’s criminal history
and mental health records and then conducted an interview with Hicks at
Corcoran State Prison in June of 2011.
Dr. Murphy described Hicks as “forthcoming” during the interview.

Dr. Murphy
determined that Hicks had two qualifying offenses, both resulting in
convictions for violating Penal Code section 288, subdivision (a), committing a
lewd or lascivious act on a child under the age of 14. The first offense occurred in 1990 and
involved fondling, orally copulating, and sodomizing a five-year-old male
cousin. The second offense occurred in
1999 and involved fondling, orally copulating, and digitally penetrating the
vagina of a three-year-old female cousin.
Hicks admitted to police that he molested this victim “seven or eight
times.”

Dr. Murphy
correctly defined a predatory sexual offense as “a crime perpetrated against
someone who is either a stranger or someone against whom they cultivated or
promoted a relationship with.” Dr.
Murphy opined that the 1990 and 1999 qualifying offenses were probably not
predatory in the strict or legal sense because the victims were his cousins,
although she did conclude there was “a predatory element” to those offenses
because Hicks likely took advantage of the opportunity to gain access to each
of them by babysitting.

Dr. Murphy
concluded that Hicks’s 1996 offense, for which he was convicted of violating
Penal Code section 647.6, annoying and/or molesting a child, was “clearly”
predatory. That offense involved the
11-year-old son of a friend with whom Hicks spent “a lot of time” “cultivating”
a relationship by taking the victim camping or rafting and then asking him to
orally copulate Hicks. Dr. Murphy also
concluded that Hicks’s recent parole violation, based upon a workplace event in
which he “grabbed at the crotch” of a “youthful [looking] male” coworker, was
also likely predatory because Hicks had no substantial relationship with the
coworker and there was no convincing evidence that the relationship was
“potentially romantic.” Dr. Murphy
opined that the conduct indicated “extremely poor judgment and poor impulse
control,” given that Hicks was “a three-time convicted sex offender” on
parole.

Dr. Murphy
diagnosed Hicks as having a mental disorder, specifically pedophilia, or sexual
attraction to pre-pubescent children, that predisposed him to committing
criminal sexual acts. She also diagnosed
him with “[a]mphetamine dependence” that “was controlled in prison,” a “cannabis
dependence,” and a “personality disorder.”


Dr. Murphy
opined that Hicks was “‘[l]ikely to engage in sexually violent predatory
criminal behavior as a result of his … diagnosed mental disorder without
appropriate treatment and custody,’” which required a “reasonable degree of
clinical certainty.” In forming her
opinion, Dr. Murphy relied on the “Static-99R” and “Static-2002R,” which are
“risk assessment tools.” Hicks had a
score of “four” on the Static-99R, which was “in the moderate to high range,”
or equated to a 20 to 29.6 percent risk of reoffense. Hicks had a score of “seven” on the
Statis-2002R, “also in the moderate high risk range.”

Dr. Murphy
considered the “Wellness and Recovery Action Plan” (WRAP), or “relapse
prevention plan,” prepared by Hicks. She
was concerned about Hicks’s claim that his pedophilia “‘ha[d] been in remission
since May of 2010,’” because pedophilia was not a disorder that “traditionally
goes into remission,” but rather requires that one be “constantly vigilant in
self-monitoring.” Dr. Murphy found
Hicks’s WRAP had “no actual relapse prevention plan” that included avoiding
children. Thus, the WRAP did not change
her opinion about Hicks’s risk of reoffense.
Dr. Murphy opined there was a sex offender treatment program at Coalinga
State Hospital that might allow Hicks to reduce his risk of reoffense, but she
did not know if such a program was available to him “in the community.”

Dr. Selby,
who also testified as an expert for the prosecution, evaluated Hicks in June of
2011 at the substance abuse treatment facility in Corcoran. He also reviewed Hicks’s criminal records
prior to the interview. During the
interview, Hicks “cooperated” and was “able to respond to all questions in a
clear manner.”

Dr. Selby
related that Hicks’s first qualifying offense, a 1990 conviction of Penal Code
section 288, subdivision (a), involved a sexual act on a young male cousin and
that the molestations had gone on for several years. Hicks had attempted suicide, been
hospitalized, and gone into a group home before resuming the molestations and
getting “caught,” because he was “unable to control his sexual urges.” For this crime, Hicks received probation,
some jail time, and was required to attend sex offender treatment for three years.

Hicks told
Dr. Selby that the 1999 conviction involved fondling the genital area of a
young niece, orally copulating her, exposing his penis to her, and ejaculating
in front of her. Other documents
indicated that Hicks had molested the girl seven or eight times, that he
digitally penetrated her, and that he had her hold his penis. Dr. Selby opined that Hicks minimized his
conduct and failed to take complete responsibility for it. For this crime, Hicks received a prison
sentence, was found to be a mentally disordered offender and was at Atascadero
State Hospital for six months of “treatment,” which probably did not include
treatment as a pedophile.

Hicks told
Dr. Selby that his 1996 conviction for annoying/molesting a child involved an
11-year-old boy who was a close friend’s son.
Hicks asked that the boy orally copulate him. Hicks’s most recent sexual offense in January
of 2011, a violation of parole, involved repeatedly grabbing the genital area
of one of his coworkers. Hicks denied
being the aggressor and claimed instead to be the victim.

Dr. Selby
defined predatory as looking to see whether the perpetrator had “any kind of
substantial relationship with the victim other than sexual … or that the person
is committing the offense specifically for the purpose of molesting
someone.” Dr. Selby opined that Hicks
did not have a substantial relationship with any of the victims other than
sexual. Dr. Selby noted that the very
young victim of the 1990 offense was still being potty trained “and having a
substantial relationship with that individual … seems virtually
impossible.” The victim in the 1999
offense was also “very very young” and there was “no indication” of a
substantial relationship, despite the fact that the victim was “a cousin [or]
niece.” Dr. Selby defined the crimes as
predatory because the acting out sexually was “the only relationship they have
with the individual.”

Dr. Selby
defined the 1996 molest offense as predatory because he had no idea whether
Hicks had known the boy for years and befriended him. If he had had such a “bond[ed]” relationship,
Dr. Selby would describe the crime as “[l]ess predatory,” although such a
perpetrator might be “grooming” the victim for molestation. Dr. Selby described the parole violation as
predatory behavior “in the sense that there appeared to be no significant
relationship between the victim and Mr. Hicks, that they were coworkers.” The fact that the last victim was an adult
did not change Dr. Selby’s mind because a photograph of the victim showed him
to be “a very very young adult” who looked like a minor, under the age of
18.

Dr. Selby diagnosed Hicks with “pedophilia,
both sexes, nonexclusive,” meaning he had “recurrent sexually-arousing
fantasies, urges, or behavior associated with a prepubescent child,” or a child
13 years of age or younger, occurring for at least six months, that affects
Hicks’s “volitional control” and predisposes him to commit sexual crimes. Hicks’s lack of volitional control was
evident by the fact that he had been “punished” and “treated” and continued to
commit sexual crimes. Hicks denied to
Dr. Selby that he was sexually attracted to children, claiming he had “‘just
made bad choices.’” Dr. Selby also
diagnosed Hicks with “polysubstance dependence” based upon his methamphetamine
and alcohol abuse.

Dr. Selby
opined that, due to Hicks’s diagnosed mental disorder, he was “likely to commit
another sexually violent predatory offense without treatment in a custodial
setting.” Dr. Selby defined “likely” as
a “serious and well-founded risk.” While
Hicks received three years of sex offender treatment after his 1990 crime, he
was convicted of additional sexual offenses in 1996 and 1999. And while Hicks received treatment at
Atascadero after the 1999 crime, once on parole, he against chose to “act out
sexually,” which showed that a “lack of volitional control” was “still
present.”

Dr. Selby
testified that, in the WRAP prepared by Hicks, he finally acknowledged that he
was a pedophile, but he did not indicate that he would seek further sex
offender treatment in the community.
Instead, he would seek “support from people that he knew in the
community” and would try to avoid children.
Hicks told Dr. Selby that he would “hopefully live with an inmate once
the inmate got out of prison,” which Dr. Selby did not think was a good
plan.

Dr. Selby
used the risk factors set forth in the Static-99R, Static-2002, and other such
“tools,” but did not use the “total scores” from those tools because they did
not “address the issue of mental illness at all.” Dr. Selby opined that Hicks was still in need
of “highly structured” sex offender and substance abuse treatment in a
custodial setting for “at least two to three years,” such as the treatment
available to Sexually Violent Predators at Coalinga State Hospital. Absent such treatment, there was still a
“serious and well-founded risk” that Hicks would reoffend.

We believe
the state’s evidence allowed the jury to conclude, beyond a reasonable doubt,
that Hicks’s previous violent offenses, his mental disorder, and the resulting
serious lack of control, led to the likelihood Hicks would engage in future
sexually predatory acts if not confined to a secure facility.

DISPOSITION

The
judgment is affirmed.





_____________________

Franson, J.

WE CONCUR:





_____________________

Poochigian, Acting P.J.





_____________________

Detjen, J.