People v. Glenn

• Decision Date: 26 October 2009
• Docket Number: No. G040608.,No. G041245.,G040608.,G041245.
• Citation: 178 Cal.App.4th 778,100 Cal. Rptr. 3d 685
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JAMES ROY GLENN, Defendant and Appellant. In re JAMES ROY GLENN on Habeas Corpus.

178 Cal.App.4th 778

100 Cal. Rptr. 3d 685

THE PEOPLE, Plaintiff and Respondent, v. JAMES ROY GLENN, Defendant and Appellant In re JAMES ROY GLENN on Habeas Corpus.

No. G040608.

No. G041245.

Court of Appeals of California, Fourth District, Division Three.

October 26, 2009.

James Roy Glenn, in pro. per.; and Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant and Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Bradley Weinreb, Teresa Torreblanca and Elizabeth Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FYBEL, J.—

INTRODUCTION

James Roy Glenn was adjudged a sexually violent predator (SVP) under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA),¹ and was placed in involuntary commitment for an indeterminate term. Glenn was 82 years old at the time of trial. He appealed, and later filed a petition for writ of habeas corpus also challenging the commitment order. We issued an order to show cause and consolidated the writ petition with the appeal. We affirm the judgment and deny the writ petition.

Glenn was committed as an SVP following initial evaluations under section 6601, subdivision (a) conducted in accordance with a standardized assessment protocol developed by the State Department of Mental Health (DMH). In 2008, the Office of Administrative Law (OAL) determined the 2007 standardized assessment protocol constituted an invalid "underground" regulation.

First, we conclude the trial court did not err by precluding one of Glenn's expert psychologists from testifying about studies and research conducted by nontestifying mental health experts concerning whether pedophilia is chronic.

Second, even assuming for sake of argument the OAL was correct in its determination the assessment protocol is invalid, we hold any error in using evaluations based on that protocol did not deprive the trial court of fundamental jurisdiction over the SVPA commitment petition. Accordingly, we apply a harmless error analysis to use of the invalid assessment protocol and conclude Glenn received a fair trial and suffered no prejudice. His challenge to the assessment protocol, and his claim his trial counsel was ineffective for not challenging the assessment protocol, therefore fail.

Third, we hold the amendments to the SVPA added in 2006 by the Legislature and by passage of Proposition 83 do not violate the due process, equal protection, ex post facto, and double jeopardy clauses of the United States Constitution and the California Constitution.

OVERVIEW OF THE SVPA

The SVPA provides for involuntary civil commitment of an offender immediately upon release from prison if the offender is found to be an SVP. (People v. Yartz (2005) 37 Cal.4th 529, 534 [36 Cal.Rptr.3d 328, 123 P.3d 604].) The SVPA "was enacted to identify incarcerated individuals who suffer from mental disorders that predispose them to commit violent criminal sexual acts, and to confine and treat such individuals until it is determined they no longer present a threat to society." (People v. Allen (2008) 44 Cal.4th 843, 857 [80 Cal.Rptr.3d 183, 187 P.3d 1018]; see Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1171 [81 Cal.Rptr.2d 492, 969 P.2d 584] [SVPA proceedings are designed "to provide `treatment' to mentally disordered individuals who cannot control sexually violent criminal behavior"].) "`[A]n SVPA commitment proceeding is a special proceeding of a civil nature, because it is neither an action at law nor a suit in equity, but instead is a civil commitment proceeding commenced by petition independently of a pending action.'" (People v. Yartz, supra, 37 Cal.4th at p. 536.)

An SVP is defined as "a person who has been convicted of a sexually violent offense against one 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." (§ 6600, subd. (a)(1).) A "diagnosed mental disorder" is defined to include "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).)

The procedure for determining whether a convicted sex offender is an SVP typically begins when an inmate is scheduled to be released from custody. (Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1054 .) "`Under section 6601, whenever the Director of Corrections determines that a defendant serving a prison term may be a sexually violent predator, the Department of Corrections and the Board of Prison Terms undertake an initial screening "based on whether the person has committed a sexually violent predatory offense and on a review of the person's social, criminal, and institutional history." (§ 6601, subd. (b).)'" (People v. Hurtado (2002) 28 Cal.4th 1179, 1182-1183 [124 Cal.Rptr.2d 186, 52 P.3d 116].)

The screening is conducted in accord with an assessment protocol developed by the DMH. (People v. Hurtado, supra, 28 Cal.4th at p. 1183.) "`If that screening leads to a determination that the defendant is likely to be a sexually violent predator, the defendant is referred to the Department of Mental Health for an evaluation by two psychiatrists or psychologists. (§ 6601, subds. (b) & (c).) If both find that the defendant "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody" (§ 6601, subd. (d)), the department forwards a petition for commitment to the county of the defendant's last conviction (ibid.). If the county's designated counsel concurs with the recommendation, he or she files a petition for commitment in the superior court. (§ 6601, subd. (i).)'" (People v. Hurtado, supra, 28 Cal.4th at p. 1183.)

The trial court holds a hearing on the petition to determine whether "there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6602, subd. (a).) The probable cause hearing is an adversarial hearing where the person named in the petition has the right to counsel. (Ibid.) If the court finds probable cause, it orders a trial to determine whether the person is an SVP under section 6600. (§ 6602, subd. (a).) The person named in the petition must remain in a secure facility between the time probable cause is found and the time trial is completed. (Ibid.)

The person named in the petition is entitled to a trial by jury, and the jury's verdict must be unanimous. (§ 6603, subds. (a), (f).) The person named in the petition also is entitled to retain experts or professional persons to perform an examination on his or her behalf. (§ 6603, subd. (a).) At trial, the trier of fact determines whether, beyond a reasonable doubt, the person named in the petition is an SVP. (§ 6604.)

The SVPA grants the person named in the petition the right to be present at the commitment proceeding and "the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding." (§ 6605, subd. (d).) If the trier of fact determines the person named in the petition is an SVP, the person is committed for an indefinite term to the custody of the DMH for appropriate treatment and confinement in a secure facility. (§ 6604.)

FACTS

I. The People's Case

In 2005, the Office of the District Attorney of San Bernardino County filed a petition for Glenn's commitment as an SVP pursuant to section 6600 et seq. At the jury trial, conducted in January and February 2008, the deputy district attorney called Jeffery Hart and licensed psychologists Mark A. Schwartz and Dawn Starr as witnesses. Hart had been Glenn's former neighbor in North Carolina, and Schwartz and Starr had evaluated Glenn and testified he qualified as an SVP. The deputy district attorney also called Glenn to testify as an adverse witness.

A. Jeffery Hart

In 2000, Glenn purchased two acres in rural North Carolina and lived there in a mobilehome. Jeffery Hart was Glenn's neighbor. Hart and Glenn initially got along well, but they had a falling out because Glenn wandered around his property in the nude. Glenn cut down the trees on his property, and would situate himself in his yard or on his roof to make himself visible. On several occasions, Hart's mother, who lived with Hart, saw Glenn naked. Hart asked Glenn not to appear naked in front of her. According to Hart, Glenn "just got bolder and bolder every day."

One morning, Hart informed Glenn that four women were coming to look at nearby property and asked that he wear clothing when they arrived. When the women drove up the road, Glenn, wearing only fishnet underwear, blocked the road with his backhoe. Glenn got down from the backhoe and walked over to talk with the women.

Glenn twice told Hart that Glenn needed "a young boy" to help with work around the house. Hart did not recommend anyone to Glenn and testified, "by the way he was acting, I wouldn't subject any kid to that."

B. Mark A. Schwartz

Mark A. Schwartz held a Ph.D., had been a licensed psychologist for 27 years, and worked under contract for the DMH. He interviewed Glenn in 2005 and 2006 and prepared reports in January and November 2007. Schwartz considered three criteria: (1) whether Glenn committed qualifying predicate offenses; (2) whether he has a mental disorder predisposing him to commit future sexual offenses; and (3) whether he is at risk of committing future sexual offenses.

Under the first criterion, Schwartz concluded Glenn had committed four predicate offenses against three victims, all of whom were under 14 years of age. In 1988, Glenn invited a nine-year-old boy and...