People v. Fulcher

Decision Date11 January 2006
Docket NumberNo. E036773.,E036773.
Citation38 Cal.Rptr.3d 702,136 Cal.App.4th 41
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Stanley Elton FULCHER, Defendant and Appellant.
OPINION

GAUT, J.

1. Introduction

Defendant Stanley Fulcher appeals from an order committing him to the state Department of Mental Health for two years as a sexually violent predator (SVP) under Welfare and Institutions Code1 section 6600 et seq. He contends the trial court erred in finding his 1998 conviction for committing lewd acts upon a child under age 14 (Pen.Code, § 288, subd. (a)) qualified as a "sexually violent offense" within the meaning of the SVP Act. Defendant complains that there was insufficient evidence of force, duress or substantial sexual conduct; the experts' opinions should have been excluded because they were based on mistaken assumptions that he used force or duress; the court erred in allowing the prosecutor to relitigate the 1998 offense; the trial court erred in admitting inadmissible hearsay evidence of past misconduct and inflammatory photographs; and the trial court erred in failing to give a unanimity instruction. For the reasons stated below, we affirm.

2. Facts and Procedural Background

In 1980, defendant's wife reported to the San Bernardino County Child Protective Services that defendant had taken nude photographs of their six-year-old daughter. The sheriff's department searched defendant's apartment and found nude photographs of defendant's daughter. Defendant admitted taking the photographs and rubbing his daughter's "tussy." Defendant pled not guilty by reason of insanity to lewd and lascivious acts with a child under age 14, in violation of Penal Code section 288, subdivision (a). Defendant was sent to Patton State Hospital for seven years.

In 1998, defendant invited Kyle, who was seven years old, to his apartment to see a spaceship model in his bedroom. When Kyle went into defendant's bedroom, defendant pulled down Kyle's pants, put his face close to Kyle's penis, and said, "It would feel good." Kyle noticed defendant's bedroom walls were plastered with pictures of naked women. Kyle immediately pulled up his pants and ran out of defendant's bedroom and apartment. After defendant told a friend what had happened, the incident was ultimately reported to the police.

Defendant pled not guilty by reason of insanity to two counts of lewd and lascivious acts with a child under 14 years, in violation of Penal Code section 288, subdivision (a). Defendant was sent to Patton State Hospital for six years.

In September 2003, the People filed a petition seeking defendant's commitment as an SVP under section 6600 et seq. About a month before the SVP trial, a District Attorney investigator and the prosecutor interviewed Kyle. Kyle was almost 14 years old. He stated that defendant not only put his face close to Kyle's penis, defendant put his mouth on it and told Kyle not to tell anyone. At the SVP trial, Kyle testified consistent with his recent statements made to the D.A. investigator and prosecutor concerning the 1989 incident.

Defendant stated during a police interview on the day of the 1998 incident that he invited Kyle into his apartment to see a spaceship but denied Kyle went into his bedroom and denied any other contact with Kyle. Defendant admitted at the SVP trial that he took nude photographs of his daughter in 1980. He claimed a neighbor suggested he take photographs of his daughters. Three days later, the neighbor's wife called the police and defendant was arrested and sent to prison. Defendant also testified that from his window he saw Kyle and another boy sexually exploring each other. Defendant denied all other reported past acts of misconduct.

Licensed psychologists, Drs. Miculian and McEachen testified as expert witnesses at defendant's SVP trial. Based on their interviews of defendant and document review, they diagnosed defendant with pedophilia, non-exclusive type. Both also concluded the 1980 and 1998 offenses involved substantial sexual conduct and defendant posed a serious risk of re-offending if released into the community.

The jury found defendant satisfied the conditions for SVP commitment. Accordingly, the trial court ordered defendant committed to Atascadero State Hospital for two years. Defendant appeals the commitment order.

3. Discussion
A. Admissibility of Evidence Outside Conviction Record

Defendant contends the trial court erred in allowing the People to introduce evidence outside the record of the 1998 conviction to prove the 1998 offense qualified as a predicate offense. Specifically, defendant complains the trial court allowed Kyle's recent statement and his SVP trial testimony that defendant not only pulled his pants down but also orally copulated him. Defendant argues the same procedures and safeguards afforded in the habitual criminal classification system apply to the SVP classification scheme and therefore the court cannot consider evidence outside the record of the qualifying convictions. Relitigation of the facts or circumstances of the convictions is improper. Defendant concludes that since he was never charged with, tried, or convicted of engaging in substantial sexual conduct, testimony outside the conviction record on this factor is inadmissible.

The People argue defendant waived his objection to Kyle's recent statement and testimony that defendant orally copulated him. We agree. Before the trial, defense counsel informed the court that he was concerned Kyle would testify concerning significantly different details than those previously reported. Defense counsel stated he wanted to know how Kyle recalled the new facts concerning the incident and whether therapy impacted his recollection. The prosecutor explained that he and his investigator recently interviewed Kyle and Kyle, who was almost 14 years old, said defendant briefly touched his penis with his mouth and then Kyle pulled his pants up and ran away. The prosecutor said experts would testify it is not unusual for children not to tell all the details initially and then when they get older to recall the incident in greater detail when the perpetrator is no longer around.

Defense counsel responded: "I'm not asking at this point for an exclusion.... [¶] I'm saying I have no evidence as to why the story has changed. I know he's been in therapy, and if it is something that came out in therapy, there is an issue as to whether he would be allowed to testify at that point. I'm just asking to take him on voir dire or have some declaration presented as an explanation because I don't want it to come up in the middle of trial as he starts testifying to these matters, and I have to go `Time out. We have a problem here.'"

The court responded that it did not see a problem. The defense would have an opportunity to cross-examination Kyle and attack his credibility as a witness. The prosecutor noted therapy ended when Kyle was eight- and one-half years old. The trial court permitted defense counsel to inquire at trial concerning Kyle's therapy and how Kyle recalled the new facts.

At the SVP trial Kyle testified that defendant not only pulled down his pants but also touched his penis. Expert witnesses testified that the 1998 incident involved substantial sexual conduct. Their opinions were based in significant part on Kyle's recent statement and testimony that defendant touched Kyle's penis.

By not objecting at trial to Kyle testifying to the recently recalled new facts of defendant touching defendant's genitals, defendant waived the objection. (Evid.Code, § 353; People v. Farnam (2002) 28 Cal.4th 107, 159, 121 Cal.Rptr.2d 106, 47 P.3d 988, citing People v. Barnett (1998) 17 Cal.4th 1044, 1130, 74 Cal.Rptr.2d 121, 954 P.2d 384; People v. Coleman (1988) 46 Cal.3d 749, 777, 251 Cal.Rptr. 83, 759 P.2d 1260.) This is not a situation in which the substance of an objection was made, and we can undertake review even though the form of the objection was technically incorrect. (People v. Coleman, supra, 46 Cal.3d at p. 778, 251 Cal.Rptr. 83, 759 P.2d 1260.)

Even assuming there was no waiver, defendant's objection lacks merit. Kyle's testimony and recent statement were admissible to show the 1998 offense involved substantial sexual conduct.

Defendant cites section 6600, subdivision (a)(3) for the proposition that only documentary evidence of prior convictions is admissible to establish that a prior conviction qualifies as a sexually violent offense under section 6600. Section 6600 provides: "Conviction of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination. The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health." (Italics added.)

In construing this provision to determine the scope of admissible evidence in an SVP trial, "We turn first to the statutory language, giving the words their ordinary meaning. [Citation.] If the statutory language is not ambiguous, then the plain meaning of the language governs. [Citation.] If, however, the statutory language lacks clarity, we may resort to extrinsic...

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