P. v. Rogers
Filed 12/4/08 P. v. Rogers 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. WALLACE EARL ROGERS, Defendant and Appellant. | C055022 (Super. Ct. No. C000019) |
Defendant Wallace Earl Rogers appeals from the trial courts order extending his commitment under the Sexual Predator Punishment and Control Act: Jessicas Law (SPPCA). (Welf. & Inst. Code, 6600, et seq.) Effective November 8, 2006, the Sexually Violent Predators Act (SVPA) was amended by Proposition 83, The Sexual Predator Punishment and Control Act: Jessicas Law. (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006).)
Defendant contends the determination that he is a sexually violent predator was made in violation of a prior plea agreement. We affirm the judgment.
Facts and Proceedings
Most of the following statement of facts is taken from this courts unpublished opinion in a prior appeal concerning this matter. (People v. Rogers(December 12, 2001, C036059) [nonpub. opn.].)
Defendant began sexually molesting his children in 1975. The acts of molestation included forcible sexual intercourse, digital penetration, masturbation, and mutual oral copulation. His daughter was then 8 years old and his son was 10.
In 1978, defendant was arrested for oral copulation and incest with his daughter. He was convicted of immoral acts in the presence of a child. (Pen. Code, 273g.) Three months later, he was again arrested for immoral acts with his daughter.
In 1984, defendant was convicted of five counts of oral copulation with a minor (Pen. Code, 288a, subd. (b)(2)) and sentenced to four years in state prison. The victims in this case were his daughter, his son, and a neighborhood child.
In May 1987, defendant was discharged from parole. He moved in with his friend Cynthia H. and her three children, ages 13, 11 and 10. Cynthias 10-year-old daughter was developmentally disabled. Two months after his parole discharge, he molested Cynthias 11-year-old son.
Throughout 1987, defendant repeatedly molested Cynthias 11-year-old son and 10-year-old daughter, including numerous incidents of fondling and digital penetration. These repeated molestations resulted in two separate cases being brought against defendant, one in 1988 and one in 1991.
In June 1988, defendant pleaded no contest to committing a lewd or lascivious act upon a child under the age of 14. (Pen. Code, 288a.) He was sentenced to six years in state prison, with a five year consecutive term for a prior conviction enhancement.
In July 1991, following a court trial, defendant was convicted of one count of a forcible lewd act upon a child (Pen. Code, 288, subd. (b)). The court sentenced him to the upper term of eight years.
In an April 1995 psychological evaluation defendant was diagnosed with Pedophilia, sexually attracted to females, nonexclusive type; and Personality Disorder NOS.
In 1996, defendants parole was revoked when he admitted fondling a nine-year-old girl.
On August 4, 1998, the District Attorney filed a petition seeking to commit defendant as a sexually violent predator under the SVPA.
Defendant was committed as a sexually violent predator (SVP). Defendant appealed, contending there was insufficient evidence the underlying offenses were predatory and insufficient evidence that he was likely to reoffend. This court affirmed in an unpublished opinion. (Case No. C036059.)
On February 14, 2002, the district attorney filed a petition to extend defendants commitment. Following a series of continuances and hearings, the court took the matter under submission and, on April 6, 2004, ordered an extension of commitment for an additional two years. Defendant appealed and this court affirmed. (Case No. C046699.)
On April 8, 2004, the district attorney filed a second petition to extend defendants commitment. On April 29, 2005, the court issued an order extending defendants commitment for an additional two years. Defendant appealed and this court affirmed. (Case No. C049898.)
On April 11, 2006, the district attorney filed a third petition to extend defendants commitment. The supporting declaration alleged that defendant was previously committed under the SVPA and that he continued to meet the criteria for commitment as a sexually violent predator. On November 1, 2006, the district attorney filed an amended petition for extension, which requested that the commitment be extended for an indeterminate term, pursuant to the recently passed legislation amending section 6600 et seq.
Trial on the petition was held on February 8, 2007. The court determined that defendant had been convicted of sexually violent offenses within the meaning of the SPPCA, that defendant has a diagnosed mental disorder that makes him a danger to the health and safety of others, and that as a result of that disorder, he is unable to control his behavior and consequently is likely to engage in sexually predatory criminal behavior if released. Accordingly, the court recommitted defendant for an indeterminate term.
Defendant appeals.
Discussion
Defendant contends the finding that he is a sexually violent predator was in violation of a prior plea agreement and, therefore, the recommitment order must be reversed. Specifically, defendant explains that [o]ne of the prior offenses used to qualify [him] under the SVPA was a 1988 conviction for violation of Penal Code section 288, subdivision (a). The record shows that [his] conviction in that case was obtained pursuant to a negotiated plea agreement which included, as an express term of the agreement, a provision striking the substantial sexual conduct allegation without a Harvey waiver. [People v. Harvey (1979) 25 Cal.3d 754.] Because [he] bargained to have the substantial sexual conduct allegation eliminated, it was a violation of the plea bargain for the court in the SVPA action to deem this conviction as one involving substantial sexual conduct.
Defendants contention of error fails because the law currently does not require proof of any more than one predicate offense against a single victim nor does it require a finding of substantial sexual conduct.
The SVPA, until it was amended in 2006 and renamed the SPPCA, defined a sexually violent predator as a person who has been convicted of a sexually violent offense against two 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. (Former Welf. & Inst. Code, 6600, subd. (a)(1), as amended by Stats. 2000, ch. 643, 1.) The SPPCA has since been amended to, inter alia, reduce the number of victims required for the predicate offenses to one or more victims.
(Welf. & Inst. Code, 6600, subd. (a)(1), as amended by initiative measure (Prop. 83, 24), Nov. 7, 2006.)
A sexually violent offense is defined as a violation of any of the listed Penal Code sections, which includes Penal Code section 288, if it was committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (Welf. & Inst. Code, 6600, subd. (b).) Welfare and Institutions Code section 6600.1 further provides that [i]f the victim of an underlying offense that is specified in subdivision (b) of section 6600 is a child under the age of 14, the offense shall constitute a sexually violent offense for purposes of section 6600. The 2006 amendment broadened the definition of a sexually violent offense by omitting the section 6600.1 requirement that the offending act involve substantial sexual conduct as defined therein.
In determining whether a person qualifies as a sexually violent predator under the statute, the statute in effect at the time of defendants current trial and recommitment applies. (People v. Carroll (2007) 158 Cal.App.4th 503, 509, 513-514; see, Garcetti v. Superior Court (1999) 76 Cal.App.4th 685, 687-689.) Thus, since defendants trial and recommitment took place in February 2007, the November 2006 SPPCA amendments apply.
Defendant does not dispute that his 1991 conviction for forcible lewd acts on a child under the age of 14 qualified as a predicate offense. This conviction for violation of Penal Code section 288, subdivision (b), qualifies as a sexually violent offense since, by definition, it was committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . . (Welf. & Inst. Code, 6600, subd. (b).) Moreover, defendants victim was under the age of 14, making the violation of Penal Code section 288 (even without use of force) a sexually violent offense under Welfare and Institutions Code section 6600.1.
In short, use of defendants 1988 conviction for committing lewd acts on a minor was unnecessary to his commitment. A single predicate conviction was all that was required. Since defendants 1991 conviction for committing a forcible lewd act upon a child in violation of Penal Code section 288, subdivision (b), indisputably qualifies as a predicate prior, his recommitment was proper. If it was error for the trial court to consider the earlier conviction, and we do not suggest that it was, the error was harmless; the result would have been the same without reference to the 1988 conviction.
Disposition
The judgment (order of recommitment) is affirmed.
HULL, J.
We concur:
BLEASE , Acting P. J.
BUTZ , J.
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