People v. Garcia
| Decision Date | 29 January 2013 |
| Docket Number | A125107 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. XAVIER GARCIA, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County
The jury returned a finding that defendant is a sexually violent predator (SVP) as defined in the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) (the Act),1 and the trial court imposed an involuntary civil commitment upon him for an indeterminate period. In this appeal defendant argues that the trial court erred by admitting testimony on the nature of treatment received by committed sexually violent predators (SVP's), and complains that he was committed on the basis of invalid evaluation regulations. He also claims that the Act, as amended by Proposition 83 in 2006, violates due process, ex post facto, double jeopardy and equal protection principles.
We find no error in the admission of relevant testimony that described the treatment of SVP's. We further conclude that reliance on invalid regulations during theevaluation process of defendant did not result in prejudice to him. We conclude that in accordance with the California Supreme Court's opinion in People v. McKee (2010) 47 Cal.4th 1172 (McKee I), the current version of the Act does not contravene due process, ex post facto or double jeopardy considerations. Defendant established disparate treatment of SVP's for equal protection purposes, but pursuant to the discussion in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II), constitutional justification for the distinction exists. We therefore affirm the judgment.
In March of 2005, and January of 2007, two petitions were filed to extend defendant's commitment to the State Department of Mental Health (the Department) under the Act, as amended by Proposition 83, an initiative enacted on November 7, 2006, and effective the next day. (People v. Shields (2007) 155 Cal.App.4th 559, 562-563.) The petitions were consolidated, and a jury trial on the petitions was held in May of 2009.
At trial, the prosecution presented expert opinion testimony from Dr. Douglas Korpi, a clinical forensic psychologist, who reviewed defendant's criminal records and interviewed him extensively. Dr. Korpi recounted defendant's lengthy history of sexual offenses, which began in October of 1966, when he was 16 years old, and continued with regularity - other than a period from 1985 to 1991— until his most recent incarceration in 1993. Defendant's convictions range from misdemeanor annoying or molesting a child, to lewd and lascivious conduct with a child, failure to register as a sex offender, rape, assault with intent to commit rape, attempted rape, assault with a deadly weapon, kidnapping, and attempted burglary. Four of the crimes he has committed are classified as "sexually violent predatory offenses."2
Defendant was convicted most recently for an attempted burglary he committed in October of 1993, and for which he received a state prison term of 13 years. He was apprehended after he attempted to forcibly enter a residence carrying a "gym bag" full ofitems that comprised a "rape kit." Defendant admitted that he intended to rape a 12-year-old child named Tiffany in the residence.3
Based on defendant's history and the interviews he conducted, Dr. Korpi diagnosed defendant as suffering from nonexclusive pedophilia, a sexual attraction to children, coupled with paraphilia, an "aggressive sexuality" known as "the rape diagnosis." Dr. Korpi essentially characterized defendant as a "sexually violent predator" who is a "rapist and a child molester;" he "likes little kids and to rape women." Dr. Korpi also offered a "provisional antisocial personality diagnosis" for defendant that "almost meets the criteria for a full-blown diagnosis of antisocial." Defendant "feels regret" and "self-recrimination" for his crimes, but his sexual disorders cannot be cured; at best, his deviant criminal behavior may be controlled or avoided with treatment. Defendant has marginally participated in six different treatment programs over the years, both in custody and while released on parole, without control of his conduct unless he is incarcerated. Defendant also admitted to Dr. Korpi that he has frequently used drugs. Dr. Korpi identified defendant's drug abuse as a risk factor for reoffending when he is not in custody.
Dr. Korpi testified that defendant does not "give evidence of his pathology when he's in custody," as is common for those with his disorders, but has "trouble controlling" the disorders, "predisposing [him] to sexual offenses" when he is released. Dr. Korpi conducted a "risk analysis" of defendant based on assessment of various known "risk factors" for reoffending. Following the risk analysis and evaluation of defendant's individual circumstances - including his age, failure to successfully participate in treatment, and lack of monitoring if released - Dr. Korpi concluded that defendant is about "40 percent" likely to reoffend. He offered the opinion that defendant, placed in that percentage group, "poses a serious and well-founded risk to the community to commit another sexually violent offense" if he is not maintained in custody.
The prosecution also offered testimony from another forensic psychologist, Dale Arnold, who interviewed defendant in July of 2000. Defendant acknowledged to Dr. Arnold that he had a "sexual preoccupation" that was difficult to control. He also admitted that when he committed the attempted burglary in 1993, he went "to that home with the purpose in mind of raping Tiffany."
Dr. Jeremy Coles, a clinical and forensic psychologist, testified that he reviewed defendant's criminal history file and conducted an interview of him in October of 2005. Defendant's history until the time of his last incarceration in 1993 indicates that he has engaged in "repetitive rape and/or molestation of either nonconsenting females or children, multiple rounds of treatment, multiple rounds of custody," and has been "generally unable to stay out in the community for less than a year without committing another sex offense starting at the age of 16 and winding up through the age" of 43. Dr. Coles concluded that defendant suffers from "paraphilia not otherwise specified, sex with nonconsenting others," pedophilia, and antisocial personality disorder. He agreed with Dr. Korpi that defendant's conditions "don't go away," and cannot be cured. Only the symptoms can be controlled with treatment, and defendant has not "participated in sex offender treatment" offered to him. Defendant expressed that he does not have a "sex problem," is not at risk to reoffend, and does not intend to "go into treatment for sex" if he is released. Based on defendant's high-risk score of seven on the Static-99 risk assessment, Dr. Coles believes that defendant has "both emotional and volitional deficits that predispose him to commit sex crimes of a sexually violent nature," and is at high risk to commit sexually violent predatory offenses if released.
In defendant's testimony he admitted and recounted the offenses described in his criminal history, but claimed that he had not committed any other offenses. The motivation for the offenses, asserted defendant, was essentially his interest in having sex with the victims, whether they consented or not. Defendant realizes "there's no cure" for his illness. He testified that if he "was to be released" he would go to Texas to live with his family, where he was "set up with a job" in his cousin's textile business. His family knows about his "sexual past," and he would disclose his prior offenses to others. Hewould also register as a sex offender and "get counseling." He would not become involved "in a relationship with a woman who has kids."
The defense presented testimony from nurses and a licensed psychiatric technician who worked in the state facilities in which defendant resided. They had regular contact with defendant since 1993, and did not observe any violent, sexually inappropriate behavior on his part.
Alan Abrams, a physician and psychiatrist, testified for the defense that he interviewed defendant, administered tests to him, and reviewed his records along with the evaluations of other SVP evaluators. Dr. Abrams found that defendant has a "personality disorder" with "schizoid and alexithymic features," but does not currently have a qualifying diagnosed mental disorder that renders him a person classified as dangerous for purposes of an SVP commitment. He agreed that defendant may have met the criteria for "paraphilia" and "nonexclusive pedophilia" in the "1970's and 1980's," but in light of the absence of any behavioral problems other than "minor write-ups" since his incarceration in 1993, those disorders are currently "either in remission or have disappeared." Dr. Abrams testified that he does not believe defendant presents a serious and substantial danger of reoffending if released. Defendant's age of nearly 60 places him in a category of elderly offenders that have a "1 in 20 to 1 in 10 risk of reoffending," which is not significant and "very easily managed." Defendant's risk of reoffending, according to Dr. Abrams, is between five and ten percent.
Dr. Robert Halon, a licensed psychologist, also interviewed defendant, administered formal psychological tests to him, and evaluated his history and diagnoses for the defense. He testified that defendant does not currently have "any form of mental disorder," although he exhibits signs of antisocial attitudes and characteristics. Dr. Halon considered "paraphilia NOS [not...
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