People v. Salomon Munoz, No. D042016.

• Court: California Court of Appeals
• Writing for the Court: Benke
• Citation: 28 Cal.Rptr.3d 295,129 Cal.App.4th 421
• Parties: The PEOPLE, Plaintiff and Respondent, v. David SALOMON MUNOZ, Defendant and Appellant.
• Docket Number: No. D042016.
• Decision Date: 13 May 2005

28 Cal.Rptr.3d 295 129 Cal.App.4th 421 The PEOPLE, Plaintiff and Respondent,
v.
David SALOMON MUNOZ, Defendant and Appellant. No. D042016. Court of Appeal, Fourth District, Division 1. May 13, 2005. Rehearing Denied June 6, 2005.

[28 Cal.Rptr.3d 296]

Gregory L. Rickard, El Cajon, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Peter Quon, Jr., and Douglas C. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, Acting P.J.

129 Cal.App.4th 424

David Salomon Munoz was committed to the Department of Mental Health as a sexually violent predator (SVP) pursuant to Welfare and Institutions Code¹ section 6600 et seq. He appeals,

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arguing the trial court erred in admitting evidence concerning his prior SVP commitments.²

FACTS

A. Petitioner's Case

The District Attorney of San Diego County (petitioner) filed a petition seeking the continued involuntary treatment of appellant as an SVP. The petition noted appellant's conviction for qualifying offenses, his two prior commitments as an SVP and asked that his commitment be extended.

In June 1988 a 12-year-old female child was in a sleeping bag at appellant's parent's home. Appellant kissed her, touched her breasts and rubbed her genital area.

In September 1988 appellant entered an apartment where a 17-year-old female child was sleeping with her three sisters. He stroked the young woman's hair and face. When she and her sisters were awakened and saw appellant, they screamed. He left.

In June 1992 appellant entered a home, picked up a two-year-old female child from a couch, licked her vagina, unsuccessfully attempted to put his penis in her vagina and then placed his penis in her mouth. When the child began to cry, appellant put her down and left.

129 Cal.App.4th 425

Dr. Charlene Steen, a psychologist, reviewed materials concerning appellant and interviewed him. She concluded appellant suffered from a mental disorder called paraphilia, a condition manifested by deviant sexual behavior that predisposed him to the commission of criminal sexual acts. Dr. Steen stated appellant was a pedophile, a subcategory of paraphilia, but that the object of his deviant sexual behavior might not be confined solely to children.

Dr. Steen stated the disorder, which affects volitional capacity, cannot be cured but can be controlled with the use of psychotherapy. She noted appellant had taken steps to control his behavior but had not yet dealt with his core disorder and was in need of additional and more specific treatment. That treatment was available where appellant was incarcerated but he refused to participate in the program. Dr. Steen noted appellant's paraphilia was exacerbated by other problems: for example, his substance abuse and his antisocial and borderline personality disorders. She concluded appellant had great difficulty controlling his dangerous behavior and it was likely that he would in the future engage in sexually violent, predatory behavior.

Dr. Jay Seastrunk reviewed materials concerning appellant and was his treating psychiatrist from July 2001 to November 2001. The doctor diagnosed appellant as suffering from paraphilia and concluded he had great difficulty in controlling his deviant behavior. Dr. Seastrunk concluded that if released appellant would likely engage in sexually violent predatory behavior.

Dr. Marlene Cordero was appellant's treating psychiatrist at Atascadero State Hospital from November 2001 to September 2002. During that time appellant refused to participate in any treatment and refused to meet with Dr. Cordero. The doctor noted appellant was verbally abusive and threatening to the staff.

B. Appellant's Case

Dr. Ricardo Weinstein, a psychologist, reviewed materials concerning appellant's

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history and administered a battery of psychological tests to him. Dr. Weinstein concluded that while appellant had committed sexual and bizarre criminal acts, he did not suffer from paraphilia or pedophilia. He concluded appellant was not an SVP because he had the capacity to control his behavior.

129 Cal.App.4th 426

Dr. Raymond Anderson, a psychologist, reviewed materials concerning appellant and interviewed him. Dr. Anderson concluded appellant did not suffer from a mental disorder such as pedophilia that predisposed him to commit sexual offenses and had reasonably good impulse controls. Rather, he concluded appellant's commission of sexual offenses was the result of his drug abuse in combination with his attention deficit hyperactivity disorder.

Appellant testified and explained why he had not participated in some treatment programs at the state hospital. Appellant believed his sexual offenses were the result of his abuse of drugs and alcohol. Appellant believed he had that problem under control.

DISCUSSION

Appellant argues the trial court erred in allowing evidence concerning and argument about his two prior SVP commitments. Appellant notes that pursuant to section 6600, subdivision (a)(3), a person may not be found an SVP absent evidence of a currently diagnosed mental disorder making it likely he or she would engage in sexually violent criminal behavior. He argues the admission of evidence of prior SVP commitments was irrelevant to that determination and tended to switch the burden of proof to him to prove he was no longer an SVP.

A. Background

Before trial, the court and parties discussed the admission of evidence that appellant on two prior occasions was committed as an SVP. It was petitioner's position those commitments were part of the history of the case and admissible. Appellant replied petitioner was required to prove independently at each commitment proceeding the elements necessary to establish he was an SVP. Appellant argued if evidence of his prior commitments was admitted, a danger existed the jury would not address the core elements of his SVP status, e.g., whether he suffered from a mental disorder, and would simply consider whether there had been any change in his mental status and level of dangerousness since his last commitment.

The court stated it did not understand petitioner's position to be that the fact of the prior commitments relieved it of the burden to independently prove each element required to find appellant an SVP. The court stated such evidence tended to explain why appellant was incarcerated at the state hospital. The court stated it would admit evidence of appellant's prior commitments but only for the purpose of showing such history.

129 Cal.App.4th 427

During direct examination of Dr. Steen, petitioner noted that appellant was committed to the state hospital first in 1998 and again in 2000. Dr. Steen testified she had reviewed the records concerning those commitments. Petitioner asked the doctor if she was "assigned to evaluate essentially [appellant's] progress and to determine whether or not he continues to meet that criteria under the SVP law?" Dr. Steen stated "Yes."

Through his own testimony and that of his witnesses, appellant denied he suffered from a mental disorder and argued it was not likely he would engage in sexually violent predatory criminal behavior. Appellant's claim was that his sex offenses were not the result of a mental disorder

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predisposing him to such conduct but were rather the result of alcohol and drug abuse that caused him to make bad decisions.

On cross-examination petitioner questioned appellant concerning his claim he did not have a mental disorder that predisposed him to the commission of sex offenses against children. Petitioner asked appellant if he held that belief in the years following his conviction in 1992. He stated he did. Petitioner asked if in 1998, when the first petition was filed, he did not believe he had such a predisposition, why he did not contest the findings of the doctors that he did. Appellant stated he was not prepared to testify at that time. Petitioner noted that in 1998 appellant had not contested the conclusions of experts that he was a pedophile. Defense counsel objected on the ground petitioner's questioning misstated the legal history of the case. The trial court replied it knew nothing about the 1998 legal history of the case. It first sustained the objection and then told petitioner to rephrase the question.

Petitioner asked appellant if by 1992 he concluded he had no predisposition to commit sexual offenses against children, why in 1998 he "submitted on the reports by the experts that said [he] was likely to do it again." When appellant stated he did not remember the case, petitioner handed him a minute order from the 1998 proceeding. Petitioner asked if his present counsel was also his counsel then. Appellant stated "Yes." After appellant reviewed the minute order, petitioner asked appellant if he now remembered not contesting the findings of the doctors that he was a pedophile and that that he was likely to reoffend. He stated that he did. Petitioner again asked why, if after 1992 he did not believe he had a mental disorder that predisposed him to sexual offenses, appellant did not contest the issue in 1998. Defense counsel objected petitioner was misrepresenting what appellant had done. The objection was overruled. Appellant stated at that time he was unable to take the stand. Petitioner asked if he was aware in 1998 that he had a right to trial on the issue. Appellant stated that he did. When petitioner asked if appellant

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so understood, why then was he testifying that he didn't have a right to testify. Counsel objected, arguing petitioner was misstating appellant's testimony. The objection was sustained. Petitioner asked the same question, counsel interposed the same objection and the trial court made the same ruling.

The minute order to which petitioner referred was...