P. v. Massey

Filed 11/20/07 P. v. Massey CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

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A jury found true an allegation that defendant Byron Scott Massey is a sexually violent predator (SVP) who is likely to engage in sexually violent predatory criminal behavior if released from custody. Based on the jury finding, defendants commitment to the state Department of Mental Health (Mental Health) was extended to December 2007.

On appeal, defendant contends: (1) his due process right to confront witnesses was violated by the use of hearsay evidence to prove matters other than his predicate convictions; (2) there was insufficient evidence to support the jurys finding that he satisfied the criteria for recommitment as an SVP; and (3) there was insufficient evidence that his mental disorder or deficiency causes him serious difficulty in controlling his sexual behavior. We shall affirm the judgment.

FACTS

Defendant was born in February 1963 and was 43 years old at the time of trial. The parties stipulated that he has been convicted of sexually violent offenses against two or more victims.

In Sutter County in 1986, defendant was convicted of forcible rape of 14-year-old R. C., who was babysitting the children of defendants girlfriend. In Yolo County in 1993, he was convicted of four counts of lewd and lascivious acts and two counts of oral copulation of a victim under age 14 and more than 10 years younger than him, all involving 13-year-old A. S., the daughter of his ex-wife.^[1]

The prosecution presented the testimony of two examining psychologists and defendant. The defense rested without presenting any evidence or witness.

Dr. Coles evaluated defendant in August 2005 at the request of Mental Health. Dr. Coles relied upon crime reports, probation officer reports, Department of Corrections documents, staff recommendations, and summaries and treatment planning reports from Atascadero State Hospital. For historical information, he read the reports of previous evaluators. Defendant declined to be interviewed because the interview was not to be tape recorded.

Dr. Coles testified that the first SVP criterion is conviction of two qualifying offenses against two separate victims. He explained that defendants first qualifying sexual offense occurred in November 1985. R. C., the babysitter, was sleeping on the couch. At 3:00 a.m., defendant made sexual advances toward R. C. She told him to stop and tried to push him away. He forcibly penetrated her against her will. She bled and suffered a torn vagina.

Dr. Coles testified that the second qualifying offense occurred in 1993. Within eight months after being released from prison for sexual offenses, defendant invited 13-year-old A. S. to his home without her mothers knowledge or approval. He pled to counts of lewd acts and oral copulation, and was returned to prison.

Dr. Coles testified that the second SVP criterion is a diagnosable mental disorder that predisposes the person to commit sexually violent predatory offenses to a degree that renders the person a menace to society.

Dr. Coles recounted that defendant reported having been molested by a cousin once at the age of six. As a baby, he had been raised by his grandparents because he and his mother resided in their home while she continued her education. There was no father figure until, at age seven, defendant acquired a stepfather with whom he was close. At age 17, defendant stabbed a girl several times and was sent for a 90-day diagnostic evaluation. In his written report, Dr. Coles noted that, at age 21, defendant was convicted of misdemeanor disturbing the peace, as a result of a peeping Tom incident where he partied with four or five male friends outside the window of a female victim.

Dr. Coles diagnosed defendant with Paraphilia Not Otherwise Specified [(NOS)], with the qualifier, nonconsenting pubescent female partners. Paraphilia is a deviant choice of sexual object, toward which the person has recurrent urges for longer than six months, such that the choice interferes with the persons life.

Dr. Coles testified that defendants history shows recurring deviance that interferes with his life. Two and one-half years after being released on parole on the R. C. matter, defendant violated his parole by committing indecent exposure and was returned to custody. He was driving around the local junior high school watching female students jog during a physical education class. He masturbated as he watched. When some girls saw him and screamed, he stepped out of his car, penis in hand; he pointed it at one of them and screamed, Im going to get you bitch. A. S.s mother ended her relationship with defendant when she found out about this incident. Defendant has not had another meaningful relationship.

Dr. Coles noted that at around this same time, defendant induced two girls to come into his house and once inside, he propositioned them for sex. They escaped from the house and reported the incident to police. As a result, defendant was returned to prison for a parole violation.

Within eight months of his release, defendant committed the offenses against A. S.

Dr. Coles testified that defendants repetition of this behavior, i.e., his seeking out nonconsenting pubescent girls, which was undeterred by repeated incarcerations, demonstrated the mental illness paraphilia NOS and the lack of volitional control that he has over his behavior.

Dr. Coles explained that while at Atascadero, defendant was given a penile plethysmograph test that indicated that he was aroused by aggressive acts against pubescent and adult females.

Dr. Coles testified that defendant had antisocial traits, including aggression, low impulse control, and lack of remorse; but, because he had refused a clinical interview, the doctor was reluctant to diagnose him with antisocial personality disorder.

Dr. Coles testified that the third SVP criterion is that the person is likely to commit further sexually violent predatory acts unless he or she is confined and given appropriate treatment. He noted that likelihood is defined as a substantial risk, a serious and well founded risk. Dr. Coles concluded that defendant is likely to commit another sexually violent offense.

To determine this issue, Dr. Coles administered an actuarial instrument, Static 99, which is required by Mental Health. Defendant received a score of six, which put him at high risk of reoffense. Dr. Coles discussed the various Static 99 categories and explained how defendants crimes, his victims, his personal history characteristics, and his other offense history fit into the calculation of the Static 99 score.

Dr. Coles reviewed defendants Atascadero records and determined that he had been in treatment for only seven months, completing only the first of multiple phases of the treatment program. Defendant dropped out in September 2004 and refused any further sex offender treatment. He seemed initially to want treatment, but then he began having behavioral problems including masturbating in public, fighting over control of the television, and engaging in verbally assaultive behavior. Dropping out of treatment is a statistical factor that increases risk of reoffense.

Dr. Coles testified that the treatment program at Atascadero is very long, and that the few people who have completed it had been in the program for six to eight years.

The People called defendant to testify and questioned him about the offenses discussed in Dr. Coless testimony. Defendant testified that he had no recollection of the stabbing when he was 17, but the victim had told him that she only had three or four stab wounds. Regarding the peeping Tom incident, defendant testified that he and some friends were sitting in front of a window, in a position to see a woman in her home when she left the window open.

Regarding the 1985 rape of R. C., defendant testified that after he and his girlfriend returned from an overnight trip, the girlfriend began giving him a massage and R. C. started to assist. Eventually the girlfriend went to bed, while defendant and R. C. watched videos. R. C. then solicited defendant for a massage, which led to kissing, fondling, and sexual intercourse to ejaculation. Defendant denied that R. C. had told him no; denied that he had forced her or acted without her consent; and denied that he had sex with R. C. because he was mad at his girlfriend.

Defendant got out of prison in January or July 1990. A month later he met the woman he later married. She had two girls, ages five and eight. After a few months, he scuffled with a male friend of the future wife and was returned to prison on a parole violation.

Regarding the girls brought into his house, defendant testified that as he drove up to his house he saw five or six teenage girls play fighting on his lawn. He approached the girls who reeked of alcohol, asked if they were okay, and then went into his house. That evening, a counselor from a group home came to defendants house and discussed the presence of the girls on his property. Defendant denied that any of the girls ever entered his house.

Regarding the incident involving the junior high school girls, defendant denied masturbating in his car, denied getting out of the car, denied brandishing his penis, and denied the oral threat. Instead, defendant claimed he had been taking pictures for a licensed investigator whom he refused to name. He was in his car and circled the block one time. He admitted having a parole violation, but he denied that it was related to this incident.

Defendant testified that the 1993 offenses involving A. S. originally had 18 counts. Defendant pled guilty to two counts of oral copulation and four counts of child molestation. He testified that these were all consensual acts, many initiated by A. S.

Dr. Robert Owen is a licensed clinical psychologist. He teaches the male sex offenders in his groups that they are not ever going to be cured of the paraphilia or pedophilia that afflicts them, but instead they are going to learn to manage their illness in order to live in society. The first step is for the offender to become completely forthcoming about his offenses, to acknowledge the offenses committed, and to stop blaming the victim. It can take a year or more to reach that level of accountability and, until that is done, no treatment can begin. After this first stage of accountability, the treatment progresses to having the offender truly understand the trauma of the victims and the risk factors for reoffending.

Dr. Owen evaluated defendant who, once again, refused to submit to an interview. Dr. Owen thus relied on 29 sources of information in preparing his report. He reviewed defendants offense history and drew conclusions similar to those of Dr. Coless concerning the qualifying sex offenses, the history of sex offenses and other antisocial behavior, and defendants family history.

Dr. Owen, like Dr. Coles, diagnosed defendant as suffering from paraphilia NOS, directed at nonconsenting 13- to 14-year-old girls. He is aroused by subduing and overcoming such girls and getting them to have sex with him. The problem is long-standing, and it has brought defendant unwanted consequences. The paraphilia predisposes him or makes him likely to commit new sexual offenses.

Dr. Owen testified that a book, Evaluating Sex Offenders, lists some things to look for in diagnosing paraphilia. The listed features were all present in defendants offenses. These included: a nonconsensual experience in which the man ejaculates (rape of R. C.), a repetitive pattern in which most offenses are sexual (as in this case), reoffense a short time after consequences such as prison (the offenses with A. S.), offending when there is a high likelihood of being caught (R. C.s mother in other room during offenses; repetitive offenses with A. S.), and choice of nonconsenting partners when cooperating partners (girlfriend, wife) were available.

Dr. Owen made a second diagnosis of personality disorder with antisocial and narcissistic traits. He explained that defendant has exhibited a constellation of antisocial symptoms, beginning with the stabbing at age 17 and continuing criminal behavior, which show that defendant is not deterred by consequences. He is impulsive, going back to childhood ADD and continuing as an adult. Defendants narcissism is exhibited in his attitude of entitlement to what he wants, a grandiose view of himself, and an attitude of looking out for number one. Thus in his sex offenses, he felt entitled to molest or rape; and while incarcerated, he felt entitled to control the television.

Dr. Owen testified that defendants personality disorders impair his volitional control. Defendant has had volitional control problems since he was a child; as an adult, he has had problems controlling his sexuality. The adverse consequences of prior bad acts do not deter him from future sexual misconduct.

In evaluating whether there is a substantial likelihood of reoffense, Dr. Owen, like Dr. Coles, did a Static 99 analysis. Dr. Owen obtained a likelihood of reoffense score of seven, one greater than Dr. Coless. A score of six or higher places the subject in the category of high risk of reoffense. Dr. Owen testified that impulsive, aggressive men have a higher likelihood of committing new predatory sexual offenses. Under the Static 99 analysis, a subject with a score of seven has a 52 percent chance of getting caught for a new sexual offense. Because many sex crimes go unreported, the chance of committing a new crime is greater than the chance of getting caught.

Dr. Owen testified that defendant has a substantial risk of reoffending in a predatory manner. All but one (A. S.) of the sex offenses committed thus far have been predatory. Moreover, defendant is no more likely to participate in outpatient treatment than he did while in Atascadero. In any event, outpatient treatment does not provide the level of treatment that a sexually violent predator requires. It was Dr. Owens opinion that defendant would not seek treatment on his own. The treatment is very expensive, and he has minimized his sexual offenses: why would he seek treatment if he doesnt see that he has a problem?

DISCUSSION

I

Use Of Hearsay Evidence

Defendant contends his due process right to confront witnesses against him was violated by the doctors and the prosecutors use of hearsay testimonial evidence for the truth of the matters discussed, concerning incidents other than his two predicate convictions. Specifically, he claims the court should have excluded hearsay evidence of the peeping Tom incident, the jogging high school girls incident, the girls in the house incident, and the masturbation incident at Atascadero because he had no means of identifying or confronting the victims of those incidents. We disagree.

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion. (Evid. Code,  353.) What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling. (People v. Partida (2005) 37 Cal.4th 428, 435.)

In this case, defendant did not object that admission of hearsay evidence of the prior acts would violate his due process right of confrontation, which is applicable to defendants in civil SVP proceedings. (People v. Fulcher (2006) 136 Cal.App.4th 41, 55; People v. Angulo (2005) 129 Cal.App.4th 1349, 1367-1368.) Thus, the issue has not been preserved for review.

In any event, defense counsels failure to object on due process confrontation grounds was not prejudicial. Dr. Coless written report indicates that the peeping Tom incident resulted in a criminal conviction of disturbing the peace; after defendant admitted the jogging girls incident to his parole officer, the Board of Prison Terms adjudicated a parole violation; and following the girls in the house incident, defendant was returned to custody for parole violations related to that incident.

This leaves the masturbation incident. Dr. Coless report states, The public masturbation incident is described in an Interdisciplinary Progress Note, dated 09/24/2004 that reads: [] This writer was doing a routine round at approximately 12:30. The patient was seen openly masturbating on his bed in supine position. Patient was exposed with skin showing. Patient was aware of this writers presence and continued to masturbate. No eye contact was made. Patient made no gesture to put covers over him. . . .

Unlike the other three incidents, this incident was not the subject of a trial, plea colloquy, or parole revocation hearing. The reports of the incident thus went untested, and they suggested that defendant was willing to violate an Atascadero State Hospital rule. But unlike the other three incidents, this one was not predatory, and it had little if any relevance to the issue whether defendant was likely to reoffend in a sexually violent predatory fashion. Indeed, defendants discussion of prejudice in his opening brief on appeal does not refer to the incident. His inability to confront the unnamed author of the progress note was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)

II

Sufficiency Of The Evidence

Defendant contends the record contains insufficient evidence that he satisfied all the criteria for recommitment as an SVP. In a separate argument, he claims there was insufficient evidence that his mental disorder or deficiency causes serious difficulty in his volitional control of his sexual behavior. Neither of these claims has merit.

To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant [an SVP] beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of [SVP status] must be substantial and we must resolve the question of sufficiency in light of the record as a whole. (Peoplev.Carpenter (1997) 15 Cal.4th 312, 387, quoting Peoplev.Johnson (1993) 6 Cal.4th 1, 38; People v. Fulcher, supra, 136 Cal.App.4th at p. 52.)

In order to establish that defendant was an SVP, the People must prove that (1) defendant was convicted of two separate sexually violent offenses; (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, supra, 136 Cal.App.4th at p. 52, italics omitted.)

Defendant first claims there was insufficient evidence that he suffers from a diagnosable mental disorder. We disagree.

Defendant concedes that both doctors diagnosed him with the mental disorder paraphilia NOS. Dr. Coles added the qualifier, nonconsenting pubescent female partners. Dr. Owen added the similar qualifier, nonconsenting persons, in this case 13/14 year-old-girls.

The Diagnostic and Statistical Manual of the American Psychiatric Association (4th ed. 1994) (DSM IV) lists paraphilias as sexual dysfunctions and describes their general characteristics: [R]ecurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or ones partner, or 3) children or other nonconsenting persons, that occur over a period of at least 6 months which cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. (DSM IV, pp. 522-523.) Paraphiliac imagery may be acted out with a nonconsenting partner in a way that may be injurious to the partner (as in Sexual Sadism or Pedophilia) rendering [t]he individual . . . subject to arrest and incarceration. (DSM IV, p. 523.) The DSM IV lists nine categories of paraphilia, including . . . paraphilia NOS, the residual category. (DSM IV, p. 523.) (People v. Roberge (2003) 29 Cal.4th 979, 983, fn. 1.)

On cross-examination, Dr. Owen conceded that there have always been men interested sexually in teenage girls, and that there is a name for it, hepophilia. He knew that some researchers use that term when describing men who have a sexual attraction to teenage girls. He further conceded that hepophilia is not listed in the DSM IV.

From this testimony, defendant deduces that Dr. Owen did not diagnose him with a mental disorder; thus, Dr. Coless uncorroborated diagnosis of such disorder cannot stand on its own. (Citing People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 906-908.) The argument fails because Dr. Owens diagnosis was not simply that defendant finds teenage girls sexually attractive. Rather, the diagnosis was that defendant has paraphilia NOS, characterized by deviant [acts] . . . towards nonconsenting persons . . . in this case 13/14 year-old-girls. Dr. Owen never conceded that engaging in sexual acts with nonconsenting 13- and 14-year-old girls characterizes mere hepophilia, rather than paraphilia.^[2]

When asked whether there was nothing in [the two SVP predicate] cases that indicates that [defendant] had a particular sexual interests [sic] in the very fact that the girls . . . allegedly said no, Dr. Owen replied, Well, I dont know that we can say that because their resistance and their saying, No, may have contributed to the arousal for him. Its really difficult to say, though, without having him and the girls answer that and even that may not answer that question. Thus, contrary to the implication of defendants argument, Dr. Owen did not suggest that defendant was not aroused by the girls lack of consent. Defendants contention that Dr. Owen withdrew the support for his diagnosis of Paraphilia NOS has no merit.

Defendant next claims there was insufficient proof in this record from which a rational factfinder could conclude that he is a danger to the health and safety of the public. We disagree. Both doctors evaluated defendant using the Static 99 instrument and found him to be at high risk to reoffend.

Their conclusions were not based solely upon the two predicate offenses and the other prior acts. Rather, the doctors also considered factors such as defendants refusal to continue his sexual offender treatment. We have already rejected defendants argument that acts other than the predicate offenses should have been excluded from evidence. (See part I, ante.)

Because the Static 99 placed defendant in a high risk category, there was substantial evidence that he was likely to reoffend, in that there was a substantial danger of reoffense. (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at pp. 916, 922, 924.)

There was also sufficient evidence that such reoffense would be predatory. By statute, an act is predatory if it 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. (Welf. & Inst. Code, 6600, subd. (e).)

Defendant concedes that his first predicate offense (R. C.) was predatory. Dr. Owen testified that the jogging girls incident was predatory, in that he doesnt know these girls. Contrary to defendants argument, nothing in the statutory language suggests that a hands-off crime cannot be predatory. Even though exhibitionism is not intrinsically violent (although defendant accompanied it with a threat violently to get you bitch,) the act suggested that defendant selected victims in a predatory manner. Finally, as to the girls he invited into his house, no evidence suggested that his relationship with either of them was sufficiently substantial that the act cannot be considered predatory.

Defendant lastly contends there was insufficient evidence that his mental disorder or deficiency causes him serious difficulty in his volitional control of his sexual behavior. We disagree.

Dr. Owen testified that defendants diagnoses influenced his volitional control. It was his opinion that defendant has had volitional control problems since he was a child and, once he became an adult, he has struggled to contain his sexuality. Dr. Owen noted that defendant was convicted in 1985 of the rape of R. C., went to prison, got out, exposed himself to junior high school girls, was returned to custody, and, when again released, committed all of the offenses against A. S. This evidence demonstrates that defendant is not deterred by adverse consequences, which in turn supports an inference of lack of volitional control. The fact the evidence could also support a contrary inference (that defendant had volitional control and chose to do the foregoing acts) does not require reversal of the judgment. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1139.)

Instead of addressing the volitional control issue in light of the record as a whole, as required by the standard of review (Peoplev.Carpenter, supra, 15 Cal.4th at p. 387), defendant overlooks the history outlined by Dr. Owen and focuses exclusively on the masturbation incident, which he somewhat cleverly describes as [t]he only recent episode that indicated a difficulty in control. Even if the details of the incident are too few to support an inference of lack of volitional control when viewed in isolation, the incident lends added support to a finding based upon the record as a whole. (Carpenter,at p. 387.)

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

DAVIS , Acting P.J.

BUTZ , J.

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^[1] On our own motion, we take judicial notice of our records in defendants appeal from his original SVP commitment. (People v. Massey (Apr. 7, 2005, C046035) [nonpub. opn.] (Massey II); Evid. Code, 452, subd. (d)(1), 459, subd. (a).) Those records include the information, plea form, and our opinion from the Yolo County criminal case (People v. Massey (Dec. 19, 1994, C018071) [nonpub. opn.] (Massey I).)

Our opinion in the criminal case correctly stated that defendant pled to four counts of lewd acts and two counts of oral copulation with age difference. However, our opinion in the original SVP case mistakenly stated that it was three counts of lewd acts and did not specify the manner in which the oral copulation statute had been violated. (Massey II, supra, at pp 2-3.)

At trial in this SVP recommitment, Dr. Jeremy Coles testified that defendant pled to two counts of forcible oral copulation, as opposed to oral copulation with age difference and pled to three lewd and lascivious acts, as opposed to four such acts. On appeal, the People draw their description of the predicate act from the testimony of Dr. Coles.

These discrepancies are inconsequential. Because the victim was under age 14, and defendants acts involved substantial sexual conduct, which was defined as, among other things, oral copulation, the two oral coupulations were sexually violent offenses regardless of whether they were committed by force or with age difference. (Welf. & Inst. Code, 6600, subd. (b); former 6600.1 (Stats. 1996, ch. 461, 3).) The omission of one count of lewd acts favored defendant and could not have prejudiced him.

^[2] Dr. Owens testimony regarding hepophilia did not seek to place defendant within a specified paraphilia category that, in fact, does not exist. Thus, his remarks did not contradict his testimony that defendant suffers from paraphilia not otherwise specified. Defendants arguments that he does not have a mental disorder, and that his SVP status actually should be cancelled, have no merit.