People v. Gonzales
| Decision Date | 27 April 2011 |
| Docket Number | No. H032866.,H032866. |
| Citation | 120 Cal.Rptr.3d 911 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Ramiro GONZALES, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Jean Matulis under appointment by the Court of Appeal for Appellant, for Defendant and Appellant Ramiro Gonzales.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Bridget Billeter, Deputy Attorney General, for Plaintiff and Respondent, the People.
In 2007, the Santa Clara County District Attorney filed a petition to commit defendant Ramiro Gonzales as a sexually violent predator (SVP) under the SVP Act. (Welf. & Inst.Code, § 6600 et seq.) 1 A jury found the defendant qualified as an SVP, and the court ordered defendant committed to the custody of the Department of Mental Health (DMH) for an indeterminate term.
On appeal from the commitment order, defendant claims the trial court erred in releasing psychological records to the prosecution and admitting the testimony of a former therapist. He claims there is insufficient evidence that his circumstances had materially changed since a previous determination that he did not qualify as an SVP. He claims the court erred in refusing to instruct the jury that mental retardation could not be considered a mental disorder in determining whether he qualified as an SVP. He claims the indeterminate commitment violates his constitutional rights to equal protection and due process and also the constitutional protections against ex post facto legislation and double jeopardy. Finally, he claims the SVP law, as amended, violates his First Amendment rights.
We conclude that the court committed reversible error in releasing privileged psychotherapeutic records and admitting testimony concerning privileged information. Accordingly, we reverse the commitment order.
Defendant was born in 1955 and at the time of the SVP trial in 2008, he was 53 years old. At age seven, he contracted spinal meningitis which resulted in intellectual and developmental disabilities. Thereafter, he attended special education classes for a while but ultimately dropped out of school. He lived at home until he was sent to prison. During that time, he made money collecting cans for recycling and doing yard work. However, he needed help with daily living chores.
Between 1972 and 1974, defendant was convicted numerous times of petty theft. In 1975, at age 20, he was convicted of misdemeanor annoying or molesting a five-year-old girl. The probation report indicated that while he had an erection, defendant hugged the girl and whispered obscenities to her.
In 1977, defendant was convicted of lewd and lascivious conduct with a seven-year-old girl. In that incident, defendant was mowing the lawn at the house where the girl lived. He asked if he could use the phone but once inside faked making a call. The girl's mother got suspicious, called her brother, and waited outside for him, leaving the girl sitting on the couch. When her brother and mother returned, defendant was rubbing the girl's buttocks andcrotch area over her clothing. When asked to explain his conduct, defendant said it "looked easy" and he did not know how to "do sex" with women.
In 1981, defendant was convicted of vandalism, and in 1989, he was convicted of battery on a woman whom he pushed down after she threw away a beer that he was drinking. In 1994, defendant was convicted of molesting a four-year-old girl. In that incident, a woman, who was visiting defendant's sister, put her daughter in a bedroom to sleep, and defendant was caught in the room rubbing her vagina.
Because of his impaired mental and intellectual development, defendant was housed at the San Andreas Regional Center, which provides services to those with developmental disabilities. Defendant received 24-hour care, supervision, and skills training.
Defendant was scheduled to be released on parole in the spring of 2004. At that time, the Santa Clara County District Attorney filed a petition seeking to have defendant committed as an SVP, but the jury found the allegations that he was likely to reoffend not true. Thereafter, defendant was released on parole with conditions that barred use of alcohol, contact with sex offenders, contact with minors, and being within 100 feet of places where children congregate, including parks and schools. He was not permitted to live at his mother's residence because it was too close to a school, but he was allowed to visit her. He was also required to wear a tracking device and attend an outpatient psychiatric treatment program. Two different parole officers personally read and explained each of the conditions to defendant, and defendant signed the parole conditions acknowledging them. His second parole officer also drove defendant to his treatment program.
In July 2004, defendant was arrested for missing an outpatient meeting, and he was released in August. In January 2005, defendant violated parole because he was assisting another sex offender who lived in the same motel. Both offenders were reminded of the no-contact condition. In February 2005, defendant was arrested when parole agents found 20 beer cans in his motel room; he was released in June. In August he was arrested for drinking and released in December 2005.
In April 2006, defendant was fitted with another tracking device and agreed not to have contact with anyone under the age of 18 and to report any such contacts he had with minors, whether accidental or not. In August 2006, defendant's parole agent learned from the tracking device that defendant had loitered in an area with a playground. The next day, the agent called defendant at his mother's house. When the agent heard children's voices in the background, he and other officers immediately went there. They found two children in the driveway, defendant's mother, the children's father, and defendant, who was then arrested.2 Defendant said that he knew he was not supposed to be near the playground, but he said he just stopped to roll some cigarettes and did not look at any of the children. Defendant also knew he was not supposed to be at the house when children were there and admittedthat he had been drinking three times a week for a couple of months. Defendant was arrested for violating parole.
In January 2006, a parole agent took defendant to the Atkinson Assessment Center for outpatient treatment and counseling as a court-ordered condition of parole. Pat Potter McAndrews was defendant's psychotherapist. She testified that she administered an assessment test (the Abel Assessment). Because of his limited intellectual abilities, she carefully explained and rephrased some of the questions and helped record his answers. Thereafter, defendant regularly attended his group sessions, and his participation was good.
McAndrews testified that during defendant's initial interview, they discussed his family, medical, social, and criminal history, including the sexual misconduct and his convictions. He told her he had been drinking alcohol regularly since he was 14 years old. She gave him an assessment test, and, in response to one of the questions, defendant told her that between the ages of 14 and 37, he had touched 16 children sexually. Defendant explained that he was very attracted to children, and when he was drinking, he could not really control himself and had an overwhelming desire to touch them.
During the treatment, McAndrews regularly asked defendant if he had been drinking, and he said that he had not done so after his release on parole. McAndrews was particularly concerned about this because alcohol lowered inhibitions and had played a part in defendant prior sexual misconduct. Defendant never told McAndrews that he had been drinking regularly or that his sister and her children had moved into his mother's house, and she was unaware that defendant had violated parole by drinking or that he was visiting his mother's house. McAndrews said these facts would have been very important to have known because they showed that defendant had the opportunity to commit another offense. Had she known, she would have been highly concerned because his drinking around children was a "recipe for a sex offense."
After defendant was arrested at his mother's house, two state-appointed psychologists, Jack Vognsen and Thomas MacSpeiden, evaluated him to determine whether he posed a risk of danger. At the SVP trial, both MacSpeiden and Vognsen testified that defendant met the statutory criteria for an SVP: (1) he had previously been convicted of sexually violent offenses against at least two victims; and (2) he suffered from a diagnosed mental disorder that rendered him dangerous because of a likelihood that he would commit similar offenses. (See § 6600, subd. (a)(1).)
Specifically, both psychologists diagnosed defendant with pedophilia and opined that it impaired his emotional and volitional capacity. MacSpeiden opined that defendant also suffered from alcohol dependency and borderline intellectual functioning. Vognsen opined that defendant suffered from alcohol abuse and mild mental retardation.
The psychologists reviewed defendant's background, history, and available records. They conducted their evaluations and reached their conclusions before reviewing defendant's records from the Atkinson Center. However, at trial, both noted defendant's statement to McAndrews that between the ages of 14 and 37, he had sexually touched 16 children. MacSpeiden testified that this confirmed his analysis and conclusion. Vognsen concurred and found the statement significant.
Both psychologists accepted the jury finding in 2004 that defendant was not likely to reoffend. However, they both felt that defendant's...
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