People v. McNary, C057916 (Cal. App. 10/5/2009)
| Decision Date | 05 October 2009 |
| Docket Number | C057916. |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. SHAWN McNARY, Defendant and Appellant. |
Appeal from the Super. Ct. No. 17350C.
Shawn McNary appeals from an indeterminate civil commitment to the State Department of Mental Health (the Department) after he was found to be a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA; Welf. & Inst. Code, § 6600 et seq.).1 He contends the trial court prejudicially erred in allowing the People's two psychologists to testify in detail about hearsay statements contained in police reports regarding uncharged offenses as part of the basis for their expert opinions. He further contends that his indeterminate commitment violates due process, the ex post facto clause and equal protection. Finally, he claims his commitment must be reversed because the evaluations supporting the SVP petition were invalid because the Department's standardized assessment protocol governing them was an invalid "underground regulation," having been adopted without compliance with the Administrative Procedures Act (APA; Gov. Code, § 11340 et seq.). We shall affirm the judgment.
In 1992, McNary pled no contest to 16 charges against four victims: (a) burglary and assault with the intent to commit rape against Marnie P. on September 7, 1991; (b) burglary, robbery, three counts of forcible oral copulation, two counts of assault with intent to commit rape and one count of rape by a foreign object against Candy M. on September 13, 1991; (c) burglary and assault with the intent to commit rape against Val R. on September 17, 1991; and (d) burglary, two counts of rape and one count of forcible oral copulation against Katrina (sometimes referred to as Carina) on September 17, 1991. McNary admitted two prior burglary convictions, one in 1988 and one in 1990. In exchange for his plea, McNary was sentenced to prison for 20 years.
McNary was released on parole in March 2005 as a high-risk sexual offender. One of the conditions of his parole was that he not possess pornography. A month later, in April 2005, authorities found an adult pornographic magazine under McNary's bed during a routine search. McNary did not contest parole revocation proceedings and was returned to prison for the violation.
In November 2005, the District Attorney for San Joaquin County filed a petition seeking civil commitment of McNary as an SVP for a period of two years. In March 2006, the trial court found probable cause to believe McNary fit the criteria for commitment (§ 6602) and ordered that the matter be set for trial.
(Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281 (Bourquez).) Then, at the November 7, 2006 General Election, the voters approved Proposition 83, known as "`The Sexual Predator Punishment and Control Act: Jessica's Law,'" that further amended the SVPA and required an indeterminate commitment. (Bourquez, supra, at p. 1281.) In December 2006, the trial court granted the People's motion to amend the petition to seek an indeterminate commitment of McNary pursuant to amended section 6604.
A jury trial on the amended petition commenced in November 2007. The prosecution presented the opinions of two psychologists, Dr. Amy Phenix and Dr. Christopher Matosich.
The Testimony:
Dr. Phenix opined that McNary meets the criteria for an SVP. His convictions for rape, forcible oral copulation, rape by a foreign object and assault with intent to commit rape against four separate victims were qualifying prior sexually violent offenses. Phenix diagnosed McNary with three mental disorders: paraphilia not otherwise specified (NOS), nonconsenting females; polysubstance dependence; and antisocial personality disorder. Phenix reached her diagnostic conclusion based on an analysis of McNary's sexual development and the pattern and duration of McNary's history of sex offending, which included his arrests, convictions, and a number of incidents of uncharged conduct. Phenix considered McNary more paraphilic and deviant than other individuals who commit serial rapes because his victims ranged in age from 18 to 78 and because he made multiple attempts to offend in one night. Even though McNary's offenses occurred in 1991, Phenix still believed McNary had paraphilia and that he was a high risk to reoffend. Without intervention and treatment his risk would not be reduced.
Dr. Matosich also opined McNary meets the criteria for SVP. McNary had several convictions for sexually violent predatory crimes. Matosich diagnosed McNary as suffering from paraphilia NOS, as well as polysubstance dependence and antisocial personality disorder. He considered McNary to have severe sexual deviancy based on his pronounced and callous behaviors demonstrated over a significantly long period of time as shown by his prior convictions, arrests and charges. Matosich was confident McNary still has severe paraphilia that cannot be appropriately treated on an outpatient basis. McNary has a high risk to reoffend.
McNary admitted the rapes for which he was convicted, but denied all uncharged misconduct contained in the police reports. He claimed the rapes for which he was convicted were spontaneous, not planned. He claimed his only purpose was burglary, although Parole Agent Philip Mounts noted McNary hardly stole anything during the burglaries. McNary denied or minimized the uncharged misconduct and prior arrests relied on by Phenix and Matosich in making their diagnoses of his mental disorder. McNary claimed there was no danger that he would rape again because he has acknowledged it is wrong and it is not part of his character.
Dr. Mary Adams, a clinical psychologist, testified for McNary. She evaluated McNary and concluded he did not suffer from paraphilia. Adams testified simple repetition of rapes does not necessarily demonstrate paraphilia. Paraphilic behavior is really well organized, planned carefully, follows a specific pattern and is repetitive. A paraphilic would often have a "rape kit" consisting of items such as handcuffs, duct tape or rope. McNary did not bring a rape kit with him, but used items found in the homes to subdue his victims. She did not see a high degree of preplanning in McNary's offenses, which were committed under the influence of drugs or alcohol and in the context of burglary/robbery. There was little indication McNary became more aroused by his victim's noncompliance or nonconsent. Adams did not see manifestations of paraphilia while McNary was in prison.
Dr. Theodore Donaldson, another clinical psychologist, testified for McNary. He evaluated McNary and opined that there was insufficient evidence to conclude McNary met the criteria of an SVP.
The jury found McNary is a sexually violent predator within the meaning of the SVPA. Based on that finding, the trial court committed McNary to the Department for appropriate treatment and confinement for an indeterminate term.
The Trial Court Did Not Abuse Its Discretion In Allowing Phenix And Matosich To Testify Regarding Uncharged Offenses As Part Of The Basis For Their Diagnoses
Background:
The People filed a pretrial motion in limine to allow all hearsay evidence relied upon by the experts in forming their opinions to be admitted at trial. The evidence included the following arrests, convictions and uncharged offenses. We set them out in chronological order.
In 1985 or 1986, when McNary was 19 years old, he was arrested for peeping into an inhabited dwelling. His pants were undone at the time.
The next year he was arrested for indecent exposure.
On June 1, 1990, between 1:30 and 2:15 a.m., 19-year-old Jeanine2 was asleep in bed with her three-year-old son. She was sleeping in the nude and was awakened when a man jumped on her back. Jeanine reported the man put a knife to her throat and forced her to engage in acts of sexual intercourse, oral copulation and sodomy. Defendant was charged and convicted of burglary in connection with the incident.3 Defendant was sentenced to prison. He was released in August 1991.
On September 6, 1991, at approximately 3:00 a.m., 78-year-old Mary M. opened her front door to look outside. A man appeared on her porch and forced his way inside. The man took Mary to the bedroom and threw her on the bed. He removed her clothing; his pants were already unbuttoned and unzipped. He tried to force Mary to orally copulate him. When she screamed and struggled, the man threatened to kill her. He had a knife and in the struggle, Mary's hands were cut. The man then raped and attempted to sodomize Mary. When the man ran from the house, Mary went to a neighbor's house for help. She told investigators her assailant smelled like he had been drinking, that he was a Black male, 14 to 18 years old, 5 feet 6 inches tall, black hair and medium build. Mary did not identify McNary as her assailant in a photographic lineup.
One day later, on September 7, 1991, at about 2:15 a.m., 46-year-old Marnie P.4 was asleep on her living room couch when she was awakened by a man attempting to pull up her blouse. When she opened her eyes, she saw McNary standing over her. She screamed and McNary ran out of her house. McNary's fingerprints were found at the scene. Marnie P. identified McNary as her assailant in a photographic lineup. Defendant pled no contest to...
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