People v. Castellanos, H032865 (Cal. App. 8/11/2009), H032865

Decision Date11 August 2009
Docket NumberH032865
PartiesTHE PEOPLE, Plaintiff and Respondent, v. ALBERT CASTELLANOS, Defendant and Appellant.
CourtCalifornia Court of Appeals

ELIA, J.

Albert Castellanos appeals from an April 22, 20008 order committing him as a sexually violent predator (SVP) to an indeterminate term of involuntary civil commitment under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) following a jury trial.1 "The SVPA was amended in various respects by Proposition 83, The Sexual Predator Punishment and Control Act: Jessica's Law (hereinafter, Proposition 83), which was approved by the voters at the General Election in November 2006. Among the changes made by this enactment was an amendment to section 6604 providing a commitment for an indeterminate term rather than for two years." (People v. Allen (2008) 44 Cal.4th 843, 849, fn. 4.)

Appellant maintains that the trial court lacked jurisdiction to proceed to trial because the requisite mental health evaluations launching the SVPA proceedings were based upon an invalid standardized assessment protocol. He further claims the trial court's erroneous evidentiary rulings on two in limine motions require reversal. Lastly, appellant raises several constitutional challenges to the amended SVPA.

We affirm.

A. Factual and Procedural Background

On August 1, 2007, a petition for commitment as an SVP was filed against appellant, than a state prison inmate. At trial, the People called two experts, Dr. Nancy Rueschenberg and Dr. Michael Selby, both licensed psychologists. Based upon the records they had reviewed, these experts described a number of sexual offenses that they considered in forming their opinions.

A 1976 incident involved a 17-year-old female named Jean, whom appellant approached on the street and who agreed to go to appellant's home the next night for a drink. At appellant's place the next night, Jean became upset when appellant's cousin grabbed her and tried to rape her. Appellant told her to calm down and restrained her on the bed and kissed her. Jean wanted to go home and got in a truck with appellant's cousin and appellant, who decided to go get some marijuana. The driver of the truck said that it had run out of gas and stopped at a field. In the field, appellant watched as his cousin raped Jean, appellant then raped Jean, and then appellant's cousin raped Jean again. As a result of this incident, appellant was placed on probation.

A July 1978 incident occurred while appellant was still on probation. It involved the rape of Carolyn, who had been in a relationship with appellant but had broken up with him. Carolyn resisted and appellant raped her while choking her. Appellant was not charged.

A March 1979 incident involved a female named Francine, whom appellant had met at a bus station and to whom he had given a ride. Appellant forced Francine to orally copulate him and raped her. Appellant, who was on probation at the time of this offense, was found to have violated probation and sent to prison.

In 1982, appellant again raped Carolyn, who was then married to him. He forced Carolyn to orally copulate him and raped Carolyn a number of times and forced her to swallow the semen. At the time of the incident, appellant was on parole.

In 1987, while appellant was on parole, appellant and another man picked up three teenage girls who were hitchhiking. They brought the girls to a house, where alcohol and drugs were supplied and the teens became extremely intoxicated. Appellant followed a teen named Angie into the bathroom, knocked her down and attempted to sodomize her. Appellant orally copulated and raped a Janell, a 13-year-old, who was too intoxicated to resist.

Appellant then took the girls to a motel room, where they continued drinking and doing drugs. They put 14-year-old Christine in the shower but she was so intoxicated that she could not stand up. Appellant removed his clothes and rubbed Christine's buttocks and breasts and fondled her while holding her up. At some point, Janell saw appellant attempting to rape Angie, who was yelling for appellant to get off. Janell was afraid of appellant because he told her he had just gotten out of prison for killing somebody. Appellant forced Janell to orally copulate him, put his fingers in her vagina, and tried to force her to have sex but she got away. After Angie passed out, appellant rolled her over and again tried to sodomize her.

Dr. Rueschenberg diagnosed appellant as suffering from Paraphilia not otherwise specified (NOS) with nonconsenting females. Dr. Selby had initially diagnosed appellant with Paraphilia NOS with nonconsenting persons but his revised diagnosis at the time of trial was sexual sadism, another type of Paraphilia. Both believed appellant to have volitional impairment.

The experts testified regarding their opinions of appellant's risk of reoffense based upon the Static 99, an actuarial risk assessment, and various other factors. Appellant's Static 99 score indicated a high risk of sexual recidivism, specifically a 39 percent probability of sexually reoffending within five years and a 45 percent probability of reoffending within 10 years. His risk of reoffense was 27 percent in five years and 34 percent in 10 years under a more recent study.

Both experts found that appellant's age was not a protective factor. Dr. Rueschenberg explained her reasoning, which was that appellant was not yet 60, the age at which research showed that the recidivism risk begins to decline, a recent assault committed by appellant while in custody indicated he was not yet incapacitated, and the high number of victims indicated that appellant's Paraphilia was more entrenched. Dr. Selby's opinion was predicated upon the absence of any change in the way appellant viewed the world, saw women, and obtained sexual satisfaction. Appellant was 58 years old at the time of trial.

Dr. Rueschenberg was very confident that appellant's mental disorder of Paraphilia affected his emotional and volitional capacity and predisposed him to commit criminal sexual acts. In Dr. Rueschenberg's opinion, appellant's acts of reoffense were likely to be predatory, that is appellant would likely "target casual acquaintances or female strangers." Dr. Rueschenberg determined that appellant met the criteria for being an SVP.

Dr. Selby also concluded that appellant met the criteria for being an SVP. In his opinion, appellant had a mental illness that predisposed him to commit future sexual crimes and he was likely to commit another sexual offense if released into the community. Dr. Selby was very confident that appellant was likely to reoffend.

Both of appellant's expert witnesses, Dr. Douglas Korpi and Dr. Jeremy Coles, diagnosed appellant with Paraphilia NOS and believed appellant was volitionally impaired because of this disorder. But both believed appellant was not likely to reoffend.

Dr. Korpi discussed the research showing that age is a protective age factor after age 60 but recognized that appellant was only 58. Nevertheless, Dr. Korpi gave appellant the benefit of the doubt and treated age as a protective factor since the research was not that exacting. The sole reason Dr. Korpi found appellant did not meet the criteria for being an SVP was age. He testified that the Static 99 put appellant in the high risk category for reoffense but it did not correct for age.

Dr. Coles concluded that, even though appellant's score on the Static 99 placed him in the high risk category, appellant was not likely to reoffend based upon appellant's age and health complications. On cross-examination, Dr. Coles was asked about the underlying crimes and described them. He confirmed that he had considered the incidents in forming his opinion. Dr. Coles agreed that appellant's commission of new crimes while on probation and parole reflected a problem with volitional control. He acknowledged that appellant's health conditions did not physically prevent appellant from committing future sex crimes and that sexual disorders are chronic and typically do not go away.

Following trial, a jury found true the allegation that appellant was an SVP within the meaning of section 6600. The trial court ordered appellant to be committed for an indeterminate term to the custody of the Department of Mental Health for appropriate treatment and confinement. (§ 6604.)

B. Standardized Assessment Protocol

Section 6601, subdivision (c), requires the State Department of Mental Health (DMH) to develop and update a "standardized assessment protocol" (protocol). The protocol must "require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders." (Ibid.) "Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder."2 (Ibid.) Involuntary commitment proceedings under the SVPA are initiated only after two professional mental health evaluators, designated by the Director of Mental Health, agree that an individual potentially subject to the Act meets the criteria for being an SVP based upon the protocol. (§ 6601, subds. (c)-(f), (h); see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 894, 903-904, 909 (Ghilotti).)

Appellant now challenges the protocol as an invalid regulation adopted in violation of the Administrative Procedure Act (APA). He contends that, as a result, the trial court lacked authority and fundamental jurisdiction to proceed on the SVP petition. Appellant further maintains that his claim was not forfeited by a failure to object below.

On appeal, respondent does not argue that the protocol is not a regulation or is exempt from the rulemaking provisions of the APA (Gov. Code, § 11340 et seq.). (See Gov. Code, § 11340.9.) But ...

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