P. v. Shamon
Filed 9/18/13 P. v. Shamon CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SIMON SHAMON,
Defendant and Appellant.
D062137
(Super. Ct.
No. MH105983)
APPEAL from
an order of the Superior Court
of
County, Charles G. Rogers, Judge. Affirmed.
Chris
Truax, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Barry Carlton and Heather M.
Clark, Deputy Attorneys General, for Plaintiff and Respondent.
Simon
Shamon appeals from an order under the Sexually
Violent Predator Act (Act) (Welf. & Inst. Code, § 6600 et seq.) committing
him to the State Department of Mental Health, now State Department of State
Hospitals, for treatment and confinement in a secured facility for an
indeterminate term. He contends the
court prejudicially erred by permitting the People's experts to testify he was
"likely" to engage in "sexually violent predatory offenses"
in the future as these are legal issues and the experts' testimony invaded the
jury's province. He additionally
contends, like the appellant in People v.
McKee (2010) 47 Cal.4th 1172 (McKee I),
his indeterminate commitment violates equal protection principles. We conclude these contentions lack merit and
affirm the order.
BACKGROUND
To
establish Shamon was a sexually violent predator under the Act, the People had
to prove Shamon had been convicted of a sexually violent offense against one or
more victims. The parties stipulated
Shamon previously pleaded guilty to and was imprisoned for forcible rape (Pen.
Code, § 261, subd. (a)(2)) and forcible rape by a foreign object (Pen. Code, §
289, subd. (a)(1)). The parties do not
dispute these crimes were sexually violent offenses and the court so instructed
the jury.
The People
also had to prove Shamon was dangerous because he had a diagnosed mental
disorder that made him "likely" to engage in "sexually violent
predatory offenses" in the future.
Finally, the People had to prove Shamon needed to be confined in a
secure facility to ensure the health and safety of others. (Welf. & Inst. Code, § 6600, subd.
(a)(1); Cooley v. Superior Court (2002)
29 Cal.4th 228, 243; CALCRIM No. 3454.)
To meet
their burden, the People offered the testimony of two
Shamon. One diagnosed Shamon with
schizoaffective disorder, exhibitionism, and polysubstance dependence. The other diagnosed Shamon with schizophrenia
and methamphetamine abuse. Both opined
Shamon met the statutory criteria for classification as a sexually violent
predator.
The doctors
testified at length about the bases for their opinions. These bases included: the nature of Shamon's mental illness as well
as his related auditory and visual hallucinations and his unwillingness to voluntarily
take medication; the details of his rape offenses; the details of his other
assaultive conduct before and during his incarceration; the fact his victims
were strangers or casual acquaintances; his hypersexuality or sexual
preoccupation, lack of impulse control, and disregard for consequences, as
partially evidenced by his repeated violations of prison rules proscribing
indecent exposure and public masturbation; his past drug abuse and stated
desire to resume abusing drugs upon his release; his history of superficial
relationships; lack of age- or health-related impediments to reoffending; and
the results of multiple actuarial assessments.
Shamon countered with testimony
from three other psychologists who evaluated him. The first psychologist initially diagnosed
Shamon with a paraphilic disorder not otherwise specified (NOS), nonconsenting
female; schizoaffective disorder, bipolar type; exhibitionism; methamphetamine
dependence; and cannabis dependence. She
also initially believed Shamon was a sexually violent predator. She later reevaluated him and decided he did
not have a paraphilic disorder and, therefore, was not a sexually violent
predator.
The second psychologist also
diagnosed Shamon with schizoaffective disorder, bipolar type as well as
amphetamine dependence. Although the
second psychologist believed Shamon's disorder predisposed him to commit sexual
offenses, she did not believe he was likely to commit another sexually violent
predatory offense in the future because the information in Shamon's records did
not show Shamon preferred to have sex using force and violence.
The third, independently retained
psychologist likewise diagnosed Shamon with schizoaffective disorder and
methamphetamine dependence. She also
diagnosed him with a cognitive disorder NOS and substance abuse NOS. However, she believed Shamon's mental
disorder did not predispose him to commit criminal sexual acts and,
consequently, he was not likely to engage in sexual violent predatory behavior
in the future.
DISCUSSION
I
Expert Witness
Testimony Claim
Before
trial, Shamon moved to preclude the People from introducing expert testimony on
whether Shamon's prior offenses were "predatory." The court denied the motion.
On appeal, Shamon contends the
court erred by allowing the People's experts to testify he was
"likely" to engage in "sexually violent predatory offenses"
in the future because these are legal issues and the experts' testimony invaded
the jury's province.
name="_ftnref1" title="">[1] We recently rejected this same contention in
678 (Lowe).
In reaching our conclusion in
opinion testimony is generally admissible if it relates to a subject
sufficiently beyond common experience that the expert's opinion would assist
the trier of fact. (Evid. Code, § 801,
subd. (a).) Expert opinion testimony is
not inadmissible merely 'because it embraces the ultimate issue to be decided
by the trier of fact.' (Evid. Code, §
805.) As the California Supreme Court
explained, 'There is no hard and fast rule that the expert cannot be asked a
question that coincides with the ultimate issue in the case. "We think the true rule is that
admissibility depends on the nature of the issue and the circumstances of the
case, there being a large element of judicial discretion involved. . . . Oftentimes an opinion may be received on a
simple ultimate issue, even when it is the sole one, as for example where the
issue is the value of an article, or the sanity of a person; because it cannot
be further simplified and cannot be fully tried without hearing opinions from
those in better position to form them than the jury can be placed in." '
" (Lowe, supra, 211
Cal.App.4th at p. 684, citing People v.
Wilson (1944) 25 Cal.2d 341, 349.)
We then acknowledged that expert
opinion may not invade the jury's province and an expert may not express a
general belief as to how the jury should decide a case. (Lowe,
supra, 211 Cal.App.4th at p.
684.) However, we explained this
limitation does not "categorically preclude a qualified mental health
expert from giving an opinion and explaining why a person meets or does not
meet statutory criteria for classification as a sexually violent predator. [Citations.]
The Act specifically contemplates the trier of fact will have the
benefit of expert opinion and analysis.
[Citation.] Such opinion and
analysis is unquestionably helpful to the trier of fact as the diagnosis,
treatment, and prognosis of people suffering from mental and personality
disorders is well beyond common experience.
Moreover, as we previously recognized, 'In civil commitment cases, where
the trier of fact is required by statute to determine whether a person is
dangerous or likely to be dangerous, expert prediction may be the only evidence
available.' [Citations.]" (Id.
at pp. 684-685.)
As in Lowe, the People's experts in this case did not merely express a
general belief the jury should find Shamon to be a sexually violent
predator. They explained in extensive
detail why they believed Shamon met the statutory criteria for this
classification. Their explanations
include references to Shamon's personal and social history, his substance abuse
history, the circumstances of his prior rapes and assaults, his
postincarceration conduct, actuarial assessment results, and other information
gleaned during their interviews with him.
In addition, the People's experts formed their opinions independently
and, while they reached the same general conclusion for the same general
reasons, the specifics of their opinions varied. This variance, along with the contrasting
opinions of Shamon's experts, required the jury to carefully evaluate the
expert testimony and not, as Shamon suggests, mindlessly adopt the opinions of
the People's experts. Accordingly, we
conclude the court did not err by allowing the People's experts to testify why
they believed Shamon was "likely" to engage in "sexually violent
predatory offenses" in the future.
II
Like the appellant in McKee
I, supra, 47 Cal.4th 1172, Shamon
contends his indefinite commitment under the Act violates equal protection principles
because he is subject to a greater burden to obtain release than persons
committed under the Mentally Disordered Offenders Act (Pen. Code, § 2960 et
seq.) or after being found not guilty by reason of insanity (Pen. Code, §
1026.5, subd. (a)). The California
Supreme Court did not decide this issue in McKee
I. Instead, it remanded the matter
to us and directed us to remand the matter to the trial court for an
evidentiary hearing to determine whether the People could demonstrate a
constitutionally sufficient basis for the disparate treatment of people
committed as sexually violent predators.
(McKee I, supra, 47 Cal.4th at pp. 1208-1209.)
The trial court conducted the
required hearing and determined the People met their burden of justifying the
disparate treatment. We recently
affirmed the trial court's decision on appeal.
(People v. McKee (2012) 207
Cal.App.4th 1325, 1330-1331 (McKee II).) Specifically, we stated "the disparate
treatment of [sexually violent predators] under the Act is reasonable and
factually based and was adequately justified by the People at the
violate McKee's constitutional equal protection rights." (Id.
at p. 1348.) We based our conclusion on
the People's evidence showing: (1)
sexually violent predators bear a substantially greater risk to society than
mentally disordered offenders and people found not guilty by reason of
insanity; (2) sexually violent predators are significantly more likely to
recidivate; (3) sexually violent predators pose a greater risk and unique
dangers to particularly vulnerable victims, such as children; and (4) the
diagnoses and treatment needs of sexually violent predators differ from mentally
disordered offenders and people found not guilty by reason of insanity. (Id.
at p. 1347.)
Shamon
contends we wrongly decided McKee II because
we did not require the state to show commitment under the Act was the least
restrictive means of achieving the state's compelling interest. However, as we explained in
case applying the 'least restrictive means available' requirement to all cases
involving disparate treatment of similarly situated classes. On the contrary, our review of equal
protection case law shows [the prevailing standard is a two-part test requiring
the state to establish] both a compelling state interest justifying the
disparate treatment and that the disparate treatment is necessary to further
that compelling state interest.
[Citations.]" (
was flawed, and at least one other appellate court has agreed with it. (People
v. McDonald (2013) 214 Cal.App.4th 1367, 1380.) As our holding and reasoning in
McKee II applies to this case as well, we conclude Shamon's
indeterminate commitment under the Act does not violate equal protection
principles.
DISPOSITION
The order is affirmed.
McCONNELL,
P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.
For the same reasons, he also
contends a court should not allow an expert to testify a past offense is a
"sexually violent offense." He
acknowledges, however, this is not an issue in this case because of the
parties' stipulation and the court's instruction regarding his prior offenses.
name="_ftn2" title="">[2] Given our conclusion, we need not address the People's
assertion that Shamon forfeited portions of his arguments by failing to raise
them below.
