People v. Orey
| Decision Date | 30 March 2021 |
| Docket Number | G058040 |
| Citation | 63 Cal.App.5th 529,277 Cal.Rptr.3d 835 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Trampas Michael OREY, Defendant and Appellant. |
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Seth Friedman and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Trampas Michael Orey to be a sexually violent predator pursuant to the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA) (undesignated code sections are to the Welfare and Institutions Code). The trial court ordered him committed to the California Department of State Hospitals (DSH) for an indeterminate term. Orey appeals from the order of commitment.
We affirm. We conclude: (1) Any error in admitting into evidence two photographs of victims was harmless; (2) The trial court did not err by admitting into evidence prison records and Coalinga State Hospital records reflecting statements concerning or attributed to Orey; (3) substantial evidence supports the order of commitment; (4) the trial court did not err by denying Orey's motions, made pursuant to People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 ( Marsden ), for the discharge of his appointed counsel and for the appointment of other counsel to represent him; (5) the trial court did not err by denying Orey's request to give a special instruction on the issues of "volitional impairment" and "serious difficulty controlling sexually violent behavior"; (6) the SVPA does not violate equal protection, due process, the prohibition on ex post facto laws, and double jeopardy under either the federal or state constitution; and (7) there was no cumulative error.
The SVPA authorizes the state to civilly commit persons found to be sexually violent predators after they conclude their prison terms. ( Reilly v. Superior Court (2013) 57 Cal.4th 641, 646-647, 160 Cal.Rptr.3d 410, 304 P.3d 1071.) Section 6600, subdivision (a)(1) defines a sexually violent predator 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."
The Welfare and Institutions Code provides an outline of the procedure for determining whether a person is a sexually violent predator. ( § 6600 et seq. ) When the Secretary of the Department of Corrections and Rehabilitation determines that a person in custody may be a sexually violent predator, the secretary refers that person for an initial screening. (§ 6601, subds. (a)(1), (b).) "If as a result of this screening it is determined that the person is likely to be a sexually violent predator, the Department of Corrections and Rehabilitation shall refer that person to the [DSH] for a full evaluation." (§ 6601, subd. (b).)
The full evaluation is conducted by two mental health experts, either psychologists or psychiatrists, designated by the Director of the DSH (the Director). (§ 6601, subd. (d).) Each mental health expert must evaluate the person in accordance with a standardized assessment protocol "to determine whether the person is a sexually violent predator as defined in [ section 6600 ]." (§ 6601, subds. (c), (d).)
"If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the [Director] shall forward a request for a petition for commitment under Section 6602." (§ 6601, subd. (d).)1 The attorney petitioning for commitment may request updated evaluations if it is determined they "are necessary in order to properly present the case for commitment" and may request replacement evaluations "[i]f one or more of the original evaluators is no longer available to testify." (§ 6603, subd. (d)(1).)
Once a petition for commitment has been filed in the superior court, the court holds a hearing to determine whether there is probable cause to believe the person named in the petition is likely to engage in sexually violent predatory criminal behavior upon release. (§ 6602, subd. (a).) If the court finds probable cause, then the court orders a trial to determine whether the person is a sexually violent predator under section 6600. (§ 6602, subd. (a).)
Although a trial under the SVPA is civil in nature, the person being tried is guaranteed several rights accorded defendants in criminal trials. ( Reilly v. Superior Court, supra , 57 Cal.4th at p. 648, 160 Cal.Rptr.3d 410, 304 P.3d 1071.) These rights include the right to a jury trial (§ 6603, subd. (a)), the right to assistance of counsel ( ibid. ), and the right to a unanimous jury finding the person being tried is, beyond a reasonable doubt, a sexually violent predator before he or she may be committed (§ 6604). ( Reilly v. Superior Court, supra , at p. 648, 160 Cal.Rptr.3d 410, 304 P.3d 1071.)
In an SVPA trial, the People must prove three elements beyond a reasonable doubt: (1) the person being tried has been convicted of at least one sexually violent offense as defined in section 6600, subdivision (b) ; (2) the person has "a diagnosed mental disorder that makes the person a danger to the health and safety of others" ( § 6600, subd. (a)(1) ); and (3) the diagnosed mental disorder means in the future "it is likely the person will engage in sexually violent criminal behavior" (ibid. ). ( People v. Yates (2018) 25 Cal.App.5th 474, 477, 235 Cal.Rptr.3d 756 ( Yates ).)
If the court or jury finds the person is a sexually violent predator, then he or she is committed for an indeterminate term to the custody of the DSH. (§ 6604.) Following commitment, the sexually violent predator is subject to annual mental examinations to determine whether he or she continues to meet the definition of a sexually violent predator. (§ 6604.9, subds. (a), (b).)
In accordance with these provisions, the Orange County District Attorney in May 2011 filed a petition to commit Orey as a sexually violent predator. In August 2014, the trial court found probable cause following a two-day hearing. In July 2019, following trial, the jury found it to be true that Orey was a sexually violent predator, and the trial court issued an order committing him to DSH custody for appropriate treatment and confinement for an indeterminate term.
Orey was born in June 1975. He has been incarcerated or confined to the Coalinga State Hospital since July 2001. The parties stipulated that Orey had been convicted of the following qualifying offenses within the meaning of section 6600, subdivisions (a)(2) and (b) :
1. In 1995, Orey was convicted of one count of annoying or molesting a child under 18 years of age (victim C.A.) in violation of Penal Code section 647.6. He was sentenced to 270 days in jail.
2. In 2000, Orey was convicted of one count of annoying or molesting a child under 18 years of age (victim E.M.), with a prior conviction, in violation of Penal Code section 647.6, and peeking (victim E.M.) in violation of Penal Code section 647, subdivision (i). He was sentenced to 365 days in jail and probation for five years.
3. In 2002, Orey was convicted of two counts of kidnapping for child molesting (victims El.B. and E.B.) in violation of Penal Code section 207, subdivision (b), three counts of annoying or molesting a child after entering an inhabited dwelling (victims El.B., E.B., and J.L.) in violation of Penal Code section 647.6, subdivision (b), and one count of first degree burglary of an inhabited dwelling in violation of Penal Code sections 459 and 460. Orey was sentenced to a prison term of 11 years four months.
Three victims—C.A., J.L., and El.B.—testified at trial. C.A., who was 33 years old at the time of trial, testified about an incident involving Orey in 1995, when she was nine years old. As C.A. was watching fireworks while standing outside of her apartment complex on July 3, she noticed Orey "lingering around" the area. Orey approached her from behind, reached between her legs, and, over her clothing, grabbed or squeezed her vagina. He then forced her to the ground and tried to kiss her. C.A. struggled, kicked Orey in the chest, and ran way. As C.A. was running, Orey yelled, "no, come back, I was just kidding." C.A.'s mother contacted the police.
Several months later, C.A. saw Orey near her school. Both were riding bicycles. Orey followed C.A. She rode home and told her mother, "I saw him again" and "he was chasing me." C.A. saw Orey again several days later.
J.L., who was 27 years old at the time of trial, testified about an incident involving Orey in 2001, when she was nine years old. J.L. lived at an apartment complex that did not allow children to use its swimming pool without an adult present to supervise. J.L.'s parents were not home on July 2, 2001, so when her brother announced there was a man outside the apartment who was willing to supervise them, she put on her swimsuit and went with her brother to the pool. While J.L. was swimming, Orey got in the pool, followed her, and began touching her. He was mainly touching her legs but at some point touched her buttocks and bit her. J.L. asked Orey to stop and tried to swim away from him, but he followed her and persisted in touching her. J.L. got out of the pool and started walking back to her apartment. Orey followed her. She asked him where he was going; he replied that he needed to use the restroom. She told him there was a restroom by the pool; he claimed it had no toilet paper.
Orey followed J.L. to her apartment and stood in the doorway. J.L. gave him some toilet...
To continue reading
Request your trial
-
San Diego Police Dep't v. Geoffrey S.
...and cross-examine witnesses derives from the due process clauses of the state and federal constitutions. ( People v. Orey (2021) 63 Cal.App.5th 529, 559, 277 Cal.Rptr.3d 835.) Geoffrey has not raised any due process issue on appeal, nor does the record reflect that he did so in the trial co......
-
People v. Carter
...the appointed attorney would substantially impair the defendant's right to assistance of counsel. [Citation.]" ( Orey, supra, 63 Cal.App.5th at pp. 567-568, 277 Cal.Rptr.3d 835.) Defendant argues that the trial court should have granted his Marsden motion and replaced Zuvela when she "state......
- People v. Thomas
-
Camacho v. Superior Court
...A162818) [nonpub. opn.] 2022 WL 188679 [5-year delay]; People v. Tran (2021) 62 Cal.App.5th 330 [11-year delay]; People v. Orey (2021) 63 Cal.App.5th 529 [8-year delay]; People v. Sims (Feb. 24, 2021, C088029) [nonpub. opn.] 2021 WL 717063 [9-year delay]; People v. Taylor (Jan. 28, 2021, B3......
-
Table of cases
...3d 474, §4:60 Oregon, State of v. Superior Court (1994) 24 Cal. App. 4th 1550, 29 Cal. Rptr. 2d 909, §9:30 Orey, People v. (2021) 63 Cal. App. 5th 529, 277 Cal. Rptr. 3d 835, §§9:150, 9:160 Organizacion Comunidad de Alviso v. City of San Jose (2021) 60 Cal. App. 5th 783, 275 Cal. Rptr. 3d 9......
-
Hearsay
...and the record is admissible only if each level of hearsay comes within an exception to the hearsay rule. People v. Orey (2021) 63 Cal. App. 5th 529, 550, 277 Cal. Rptr. 3d 835. A police report containing statements of participants or witnesses is generally inadmissible, except to the exten......
-
Evidence
...members did not hold formal hearing, they did conduct interviews and examine complaints. STATE CASES CALIFORNIA People v. Orey , 63 Cal. App. 5th 529, 277 Cal. Rptr. 3d 835 (2021), review denied (July 14, 2021). The requirement of trustworthiness, as required for admission of a public recor......
-
Table of Cases null
...2021)—Ch 1, §2.2.2 People v. Oppel, 222 Cal. App. 3d 1146, 272 Cal. Rptr. 340 (2d Dist. 1990)—Ch. 4-C, §8.4.3(1)(a) People v. Orey, 63 Cal. App. 5th 529, 277 Cal. Rptr. 3d 835 (4th Dist. 2021)—Ch. 3-A, §3.4.3(1)(d); Ch. 3-B, §1.4.1; §1.4.1.5; §5.2.2(1); §20.2.5(1)(a); §21.2.4(1) People v. O......