People v. Magana, B288123
| Decision Date | 29 April 2019 |
| Docket Number | B288123 |
| Parties | THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Appellant, v. JESUS MAGANA, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. ZM033875)
APPEAL from an order of the Superior Court of Los Angeles County, Robert S. Harrison, Judge. Reversed.
Jackie Lacey, District Attorney, Phyllis C. Asayama and Matthew Brown, Deputy District Attorneys, for Plaintiff and Appellant.
Ricardo Garcia, Public Defender, Albert J. Menaster, Karen Osborne and Lara Kislinger, Deputy Public Defenders, for Defendant and Respondent.
In 2011 Jesus Magana was convicted of two counts of committing lewd and lascivious acts on a child under the age of 14, and was sentenced to six years in state prison. Prior to Magana's release, on November 7, 2016 the People filed a petition to commit Magana as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA; Welf. & Inst. Code, § 6600 et seq.).1 The petition was supported by evaluations from two psychologists, Dr. Christopher T. Simonent and Dr. Tiffany Barr, both of whom concluded Magana suffered from pedophilic disorder, was a danger to the health or safety of others, and was likely to engage in future sexually violent criminal behavior. The doctors based their diagnoses in part on a 1994 incident involving an 11-year-old girl and a 2008 incident involving three young children.
At the conclusion of the probable cause hearing, the superior court found there was no probable cause to support the petition. The court found the 1994 incident did not support the diagnoses because there was no evidence the 11-year-old victim was prepubescent. The court also found the reported facts of the 2008 incident involving three young children were "too sketchy" to support the diagnoses because there was no evidence Magana "said or did anything that showed any sexual interest in any of the children."
Although the People concede the 2008 incident does not support the conclusion Magana suffers from pedophilic disorder, they argue the 1994 incident was sufficient because an 11-year-old female victim is properly defined as prepubescent based on her age. Although Dr. Barr opined the onset of puberty varies among individual children, we conclude the trial court erred in dismissingthe petition for lack of probable cause because "a reasonable person could entertain a strong suspicion that the offender is an SVP" based on the experts' opinions Magana suffered from pedophilic disorder. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 252, italics omitted (Cooley).)
Magana also contends the trial court improperly admitted the testimony and reports of Drs. Simonent and Barr, asserting they contained inadmissible hearsay describing the 1994 and 2008 incidents. We need not reach whether admission of the testimony and reports was error because Magana forfeited his objection to the testimony by failing to object at the hearing, and any error in admitting the reports was harmless because the descriptions of the incidents in the reports were duplicative of the experts' testimony. We reverse.
In March 1994 Magana, who was then the manager of an apartment complex, told a tenant she could have a table that was stored in the storage room. Magana, the tenant, and the tenant's 11-year-old daughter went to the storage room to retrieve the table. When the tenant left with the table, Magana asked the daughter to remove a key from a shelf that was above the victim's height. Although the girl did not see a key, she complied and reached up for the key. At that moment, Magana turned off the lights and placed both his hands on her right thigh. Magana then began to move one of his hands up the girl's inner thigh frominside her shorts, while the other hand moved up her outer thigh. Neither hand touched the girl's hip or vaginal area. When the girl slapped Magana's hand and told him to stop, Magana complied, apologized, and left the storage room. After hearing about the incident from the girl's sister, the tenant notified the police. Although Magana was initially charged with sexual battery, the crime was later reduced to simple battery, and Magana was sentenced to 24 months of probation.
On November 11, 2008 a young girl was playing with two young male friends in her apartment courtyard when they were approached by Magana. The arrest record did not reflect the exact age of the children, but Magana told Dr. Simonent that he estimated the girl's age as between four and five years old. Magana asked the children if they wanted some potato chips. When the children answered in the affirmative, Magana put his arm around one of the boy's shoulders and walked with him to the store. However, Magana did not buy potato chips.
When Magana and the boy returned to the apartment complex, Magana gave the boy $1 to buy chips. When the boy's male friend asked Magana for money to buy chips, Magana responded he had money in his apartment. Depending on the witness account, Magana either put his arm across the girl's shoulders, or grabbed her forcefully by the arm and led her across the street to his apartment. A neighbor observed Magana with the girl and informed the girl's mother.
Once inside the apartment, Magana and the girl sat down. Magana then received a telephone call, which he answered. During the call, the girl's mother started banging on the window and yelled out to Magana. After Magana opened the door, themother and stepfather took the girl home and called the police. Magana was detained and charged with kidnapping a child under the age of 14. (Pen. Code, § 207, subd. (b).) However, Magana was later released because of insufficient evidence.
On October 18, 2011 Magana, then 50, invited his girlfriend and her two children, ages two and five, to his apartment for dinner. After drinking several beers throughout the evening, Magana invited the girlfriend and her children to stay overnight. After the girlfriend and her children fell asleep on a bed in the living room, the girlfriend was awakened by the bed rocking back and forth. When she looked to see what was happening, she discovered Magana was "astride" her five-year-old son, who was still asleep. Magana, who had his right foot on the floor and his left knee on the bed, had pulled the boy's underwear down and was holding the boy's buttocks apart so that his anus was exposed. Magana's penis was exposed, but the mother was unable to see if there was any penetration. When confronted, Magana pulled the boy's underwear back up, and told his girlfriend to go back to sleep.
The girlfriend immediately took her son to the bathroom to examine him. She did not see any "residue" around his anus. When she returned to the living room, Magana was asleep. She fled the apartment with her two children, and called the police. While being examined at the Santa Monica Hospital, the boy told the nurse Magana had earlier entered the bathroom while he was urinating, refused to leave, and touched his penis.
Magana was charged with two counts of lewd or lascivious conduct on a child under the age of 14, and one count of sexual intercourse, sodomy, oral copulation, or penetration of a childunder the age of 10. Pursuant to a negotiated plea agreement, Magana was convicted of two counts of committing lewd and lascivious acts on a child under the age of 14 in violation of Penal Code section 288, subdivision (a). Magana was sentenced to six years in state prison.
In August 2016 Dr. Simonent interviewed and evaluated Magana. Dr. Simonent also reviewed the May 16, 1994 and November 2008 arrest reports; a December 21, 2011 probation officer's report; a March 9, 2012 abstract of judgment; a February 19, 2016 California Department of Corrections and Rehabilitation SVP screening form; a June 13, 2016 Board of Parole Hearings SVP screening report; a July 7, 2012 mental health placement chronology form; and other criminal and medical records.
Dr. Simonent opined Magana's 2011 offense was a "sexually violent offense." He also concluded Magana suffered from pedophilic disorder. In reaching this conclusion, he noted "clinicians utilize the diagnostic categories of the [American Psychiatric Association's] Diagnostic and Statistical Manual of Mental Disorders—Fifth Edition (DSM-5) to describe the diagnosed mental disorder." According to Dr. Simonent, the DSM-5 uses the following criteria to support a diagnosis of pedophilic disorder: Dr. Simonent concluded, using both the Static-99R3 and Structured Risk Assessment—Forensic Version,4 that Magana had a high risk of engaging in further sexually violent predatory acts.
On September 9, 2016 Dr. Barr met with Magana, but he declined to be interviewed. Dr. Barr reviewed most of the same records reviewed by Dr. Simonent. Dr. Barr concluded Magana's 2011 offense was a sexually violent offense against a child under the age of 14. She also opined Magana had pedophilic disorder with volitional...
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