P. v. Odom

Filed 4/5/06 P. v. Odom CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed.

A jury found Michael Joseph Odom to be a sexually violent predator within the meaning of Welfare and Institutions Code^[1] section 6600 et seq. Odom was committed to the California Department of Mental Health (Atascadero State Hospital) pursuant to section 6604.1.

Odom appeals contending the trial court erred in refusing Odom's request for a modification of the jury instruction which defined the requirements for finding a person to be a sexually violent predator (SVP). (CALJIC No. 4.19.) We reject Odom's contention and affirm the judgment.

PROCEDURAL BACKGROUND

Odom was convicted in 1983 of multiple counts of rape, assault with intent to commit rape, first degree burglary and robbery. In 1985 Odom was sentenced to prison for a term of 34 years and four months.

In 2002 Odom was found to be a SVP within the meaning of sections 6600 and 6604 and was committed to the state hospital at Atascadero for a period of two years. On December 29, 2003, a petition to recommit Odom under section 6600 et seq. was filed in the San Diego County Superior Court. Following jury trial Odom was again found to be a SVP. He was committed to the Atascadero State Hospital on March 9, 2005.

Odom has filed a timely notice of appeal.

We will omit a discussion of the facts of the underlying convictions as well as the evidence provided at the recommitment trial. Odom does not challenge either the admissibility or the sufficiency of the evidence to support his current commitment. Since this appeal presents a pure question of law we decline to revisit the sordid facts which support this judgment.

DISCUSSION

Odom requested the trial court to modify the standard CALJIC jury instruction then in use in SVP cases to include language that would have required the jury to make additional findings in order to find him to be a SVP. The court denied Odom's request and instructed the jury in the language of CALJIC No. 4.19.^[2] Odom claims the trial court's decision erred in failing to give an amplifying instruction which included language taken from the United States Supreme Court's opinion in Kansas v. Crane (2002) 534 U.S. 407. While Odom recognizes the California Supreme Court has already rejected his arguments in People v. Williams (2003) 31 Cal.4th 757, he argues that case was wrongly decided and this court should find the trial court's decision to be error. Even if we disagreed with our Supreme Court, which we do not, we are bound to faithfully apply the law as determined by that court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d. 450, 455.) Accordingly, we find no error by the trial court in refusing Odom's requested "amplification" of CALJIC No. 4.19.

In the trial court Odom contended the instruction defining a SVP should be modified to require the jury to find that his "disorder" must cause the individual serious difficulty in controlling his behavior. He also contended the term "likely" should be defined as a substantial danger, that is a serious and well-founded risk that the individual would reoffend if he was free. Odom's argument is based on language found in the opinion in Kansas v. Crane, supra, 534 U.S. 407. As we have indicated, however, the California Supreme Court has already considered and rejected the contention which Odom now raises.

In People v. Williams, supra, 31 Cal.4th 757, 777, the court, after lengthy analysis of both state and federal cases involving sexual predator statutes, concluded the instructions given to the jury in CALJIC No. 4.19, adequately informed the jury of the requirements necessary to find a person is a SVP. The court reasoned the statute defining the mental disorder and the instructions contained in CALJIC No. 4.19 adequately inform the jury of the requirement that the disorder impact the person's ability to control behavior and the need to find it likely the person will reoffend if released from custody. The court expressly found the requested additional findings by the jury were not necessary and that a trial court was not required to add such material to the approved jury instruction.

Odom argues we should not follow the court's holding in People v. Williams, supra, 31 Cal.4th 757, because it required the court's lengthy analysis to overcome the appellant's arguments. Respectfully, we do not find careful and indeed lengthy analysis of an important constitutional issue by our high court to demonstrate inadequacy of the court's reasoning. Rather the court's careful analysis of federal and state precedent in this area clearly demonstrated the instructions approved in this state are correct. Even if we had the authority to disagree with our Supreme Court, which we do not have, we would reach the same conclusion. Accordingly, we find the trial court properly rejected Odom's requested amplification of the standard jury instruction.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.

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

^[2] CALJIC No. 4.19 provides: "A petition for commitment has been filed with the Court alleging that the respondent Michael Joseph Odom is a sexually violent predator. [¶] The term 'sexually violent predator' means a person who, (1) has been convicted of a sexually violent offense against two or more victims, and (2) has a diagnosed mental disorder, (3) the disorder makes him or her a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent predatory criminal behavior. [¶] The word 'likely' as used in this definition means the person presents a substantial danger, that is, a serious and well-founded risk that he or she will commit sexually violent predatory crimes if free in the community. However, it does not mean that it must be more probable than not that there will be an instance of re-offending. [¶] 'Sexually violent offense' means the following acts when committed by force, violence, duress, menace, or fear of immediate, and unlawful bodily injury on the victim or another person, and that result in a conviction or a finding of not guilty by reason of insanity: [¶] Rape as defined in Penal Code section 261(a)(2). [¶] For the purposes of this proceeding, any of the following shall be considered a conviction for a sexually violent offense: [¶] A. A prior or current conviction that resulted in a determinate prison sentence for an offense described above. [¶] 'Diagnosed 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. [¶] 'Danger to the health and safety of others' does not require proof of a recent overt act while the offender is in custody. [¶] 'Recent overt act' means any criminal act that manifests a likelihood that the actor may engage in sexually violent predatory criminal behavior. [¶] '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. [¶] A determinate sentence is a sentence which by statute is for a fixed term of years, although the sentencing judge may have had discretion as to which term to impose. [¶] This is not a criminal trial. However, the petitioner has the burden of proving beyond a reasonable doubt that the respondent is a sexually violent predator. [¶] Reasonable doubt in these proceedings is defined as follows: It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction that the respondent is a sexually violent predator. [¶] In determining whether the respondent is a sexually violent predator, you should consider all of the evidence introduced in the case, including the prior conviction of one or more crimes previously listed for you. However, you may not find respondent to be a sexually violent predator based on prior offenses without relevant evidence of a currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior. [¶] You must not be influenced by pity for or prejudice against the respondent. You must not be biased against the respondent because this petition has been filed or because a trial is being conducted. You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feelings. Both parties have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences. [¶] If after a consideration of all the evidence you have a reasonable doubt that the respondent is a sexually violent predator, you must find that he is not a sexually violent predator and that the allegation in the petition is untrue."