People v. Graves CA4/2

• Court: California Court of Appeal
• Decided: October 23, 2014
• Docket: E056634
• Status: Unpublished

Opinion

Filed 10/23/14 P. v. Graves CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E056634

v. (Super.Ct.No. SICVPT 10-51078)

MICHAEL DAVID GRAVES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Inyo County. Roger T. Picquet, Judge.

(Retired judge of the San Luis Obispo Super.Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed.

Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Linh Lam,

Deputy Attorneys General, for Plaintiff and Respondent.

1 A jury found that defendant, Michael Graves, was a sexually violent predator

within the meaning of Welfare and Institutions Code section 6600-6604. The trial court

committed defendant to the Department of Mental Health for an indeterminate term.

Defendant appeals from the judgment, contending that insufficient evidence supports the

verdict, certain evidentiary rulings were in error, his motion for a new trial should have

been granted and the Sexually Violent Predator Act violates equal protection. We reject

his contentions and affirm.

FACTS

A forensic psychologist who testified for the prosecution opined that past behavior

is a good predictor of future behavior and thus considered the fact that defendant had

been charged with multiple sex crimes involving three victims, i.e., his niece, with whom

or near whom he lived, and the daughters of two of his live-in girlfriends and he had been

charged with animal cruelty for having sex with a dog. As part of a plea bargain,

defendant pled guilty to one count of committing lewd and lascivious acts on a minor and

two counts of sexual battery, all three based on his acts with the daughter of one of his

live-in girlfriends—the lewd and lascivious conviction comprised the predicate offense in

the Sexually Violent Predator proceedings against defendant. The crimes against this

victim were committed over a period of four to five months during 1997 and 1998, while

she was 10 or 11 years old. According to this victim, defendant digitally penetrated her

on five occasions, while she was sleeping. During the same period, defendant was

having sex with the victim’s mother. Before 1999, defendant molested his three- to five-

2 year old niece, she said, on 100 occasions. Her vagina was penetrated with his penis and

his fingers, her chest was rubbed and defendant had her masturbate and orally copulate

him. Doctors said she was afraid of defendant because he had hurt her butt, and a

medical examination revealed injuries to her hymen and anus consistent with molestation

and sodomy, although she gave conflicting stories about the latter. On one occasion, she

had blood between her legs, which she originally attributed to a bike accident, then to

defendant. Between July and December 1998, defendant molested the daughter of

another live-in girlfriend when the girl was seven years old. He fondled her genitals on

more than 20 occasions, had her touch his penis on about 17 occasions, had her

masturbate him, touched her genitals with his penis and used sex toys on her genitals and

butt. This victim said that defendant touched inside her vagina. During an interview

with the forensic psychologist in 2010, defendant said of his molestations of his niece and

the victim of the predicate act that, “It just happened, basic fondling, I guess.” The

forensic psychologist also considered that defendant had been convicted of multiple

counts of possessing narcotics, possessing methamphetamine for sale, grand theft of a

firearm, receiving stolen property, being an ex-felon in possession of a firearm and

burglary. A probation report stated that in 1988, defendant beat a child with a coat

hanger. Defendant stated that he spanked or hit this child with a belt. Defendant incurred

six minor violations of the rules while in prison following his conviction for the offenses

against the victim of the predicate crime. The forensic psychologist diagnosed defendant

with currently having the mental disorders of pedophilia, antisocial personality disorder

3 and alcohol and amphetamine dependency. He further found that defendant currently had

a serious impairment in both his emotional capacity and his volitional capacity. He

opined that these disorders predisposed defendant to commit criminal sexual acts in the

future. He conceded that the weak point in his analysis was whether defendant had had a

conduct disorder before the age of 15, but the mother of defendant’s niece, defendant’s

sister, supplied information to him about defendant’s childhood. He was aided in this

determination by his administration of four different tests to determine the likelihood that

defendant would reoffend in the future—the Static 99, the Static-2002R, the Psychopathy

Checklist and the Structured Risk Assessment-Forensic Version. Given defendant’s

criminal history, the forensic psychologist’s interview with defendant and the testing, the

latter concluded that there was a substantial danger and serious and well-founded risk that

defendant would commit future sexual offenses. Having concluded the offenses

defendant committed on two of his three victims were predatory (he did not consider the

offenses with defendant’s niece to be predatory due to the nature of her relationship with

defendant) he opined that defendant was likely to commit predatory offenses in the

future. The forensic psychologist explained why it was not likely that when defendant

was out in the community, he would correct his deviant ways. He testified that his

opinion would not change even if defendant had had regular exposure to two of his other

nieces around the time of the crimes involving the three victims and had not molested the

former.

4 A consulting psychologist testified for the prosecution that defendant currently

suffered from pedophilia, polysubstance abuse and anti-social personality disorder. He

also opined that defendant was volitionally impaired and was callous. The information

he relied on about defendant’s crimes with the three victims mostly mirrored that of the

prosecution’s forensic psychologist. When the consulting psychologist interviewed

defendant, the latter denied having any memory of the molestations, but when pressed

with details, allowed that it was possible that he committed some of them, but was

intoxicated at the time. Defendant denied molesting the last mentioned of the three

victims, saying someone else had molested her. As to the victim of the predicate offense,

he said, “It was just some fondling, I guess, and stuff like that,” but it happened only one

time. The consulting psychologist was aware that defendant had also picked up three

girls: an 11-year-old, a 13-year-old and a 15-year-old, gave them alcohol and was found

passed out in the back seat of his car with one of them while another one was driving it.

The consulting psychologist considered that defendant had committed drug related

crimes, burglaries, possessions of stolen property, mail fraud, inflicting injury on a child

when he severely beat the child with a coat hanger before he committed the molestations,

that he stole items from close friends and sold them, and threatened a child over a minor

incident about throwing a ball. The consulting psychologist administered the Static 99-

Revised, Static 2002-Revised and MN-SOST tests. He concluded that defendant

victimized his two non-familial victims soon after he began relationships with their

mothers and defendant had a minimal relationship with his sister, the mother of the niece

5 he victimized, therefore he had engaged in predatory offenses with all three victims. The

consulting psychologist concluded that because of his mental disorders, there was a

substantial danger and serious and well-founded risk that defendant would engage in

future sex offenses and defendant fit the definition of a Sexually Violent Predator.

Defendant’s two non-familial victims, now adults, testified as to the acts defendant

had committed on them.

Other facts, including two videos, will be discussed in connection with the issues,

below.

ISSUES AND DISCUSSION

1. Insufficiency of the Evidence

As the jury was instructed, the People had to prove “beyond a reasonable doubt

that . . . [¶] [defendant] has been convicted of committing a sexually violent offense

against one or more victims[,] [¶] [h]e has a diagnosed mental disorder[,] and [¶] [a]s a

result of that diagnosed mental disorder, he is a danger to the health and safety of others

because it is likely that he will engage in sexually violent predatory criminal behavior.

[¶] . . . [¶] . . . [T]he jury is not required to unanimously agree as to which condition or

conditions are applicable. [¶] . . . [¶] The likelihood that [defendant] will engage in

[sexually violent predatory criminal behavior] does not have to be greater than 50

percent. [¶] Sexually violent criminal behavior is predatory if it is directed toward a

stranger, a person of casual acquaintance with whom no substantial relationship exists, or

a person with whom a relationship has been established or promoted for the primary

6 purpose of victimization. [¶] . . . [¶] You may not conclude that [defendant] is a

sexually violent predator based solely on his alleged prior conviction without additional

evidence that he currently has such a diagnosed mental disorder.”1

In what would better serve as argument to the jury below, defendant here contends

that there was insufficient evidence to support the jury’s implied findings as required by

the above-quoted instruction. He begins with the established fact that during his 12 year,

four month prison stay, he was not detected engaging in any conduct that supported the

prosecution’s experts’ finding that he currently suffered from pedophilia. However, the

prosecution’s forensic psychologist testified that defendant’s mental disorders were life-

long conditions, not known to go away and not easily treated. He observed that

defendant had no access to children while in prison, only the most severe transgressions

of the prohibition in prison on child pornography would have been prosecuted, there are

major disincentives in prison for possessing child porn and more benign interaction with

material related to children, like seeing children’s pictures in newspapers and magazines

and on television, go unpunished. The prosecution’s consulting psychologist likewise

testified that there is no cure for pedophilia and defendant had no access to children while

1 We pause here to express our regret that the trial court acted on the stipulation of counsel, which is missing from the record, that only a portion of the printed instructions needed to be and actually were read to the jury at the end of trial, especially in light of the trial court’s accepting another stipulation by counsel (the record shows only defense counsel acceding to this stipulation) that the court reporter did not have to take down the court’s reading of the instructions that were actually given. This leaves us and every other appellate court that reviews this case in the untenable position of not knowing what instructions were actually read to the jury at the close of trial.

7 in prison. Defendant received no treatment for either sexual misconduct or substance

abuse while in prison, felt he needed none and, during the interview conducted for these

proceedings, continued to deny that he needed treatment.

The prosecution’s forensic psychologist acknowledged that an author had

concluded that the pedophilia urge developed by puberty, and he agreed that there were

no reported acts of it by defendant until the latter was 34 years old, however, his research

showed that there was a range of time during which pedophiles begin molesting and he

opined that defendant inhibited his urge. When asked if he knew what percentage of

pedophiles manifest their urges at what period in their lives, the forensic psychologist

replied, “I’m more concerned with [defendant] having acted on [his urge, his] pattern of

acting on it, frequency, level of violence. Since I use risk-relevant factors, that itself,

[the] age of onset in pedophilia, isn’t in my scheme. I don’t know of it having been

determined as a risk-relevant factor, so, no, I didn’t include that.” The prosecution’s

consulting psychologist testified that in more cases than not, the pedophilic urge probably

develops around adolescence, however, pedophiles may not act on that urge and he

hypothesized why defendant may not have been caught in such acts until he was 34 years

old. As expected, the opinion of the defense experts—that the fact that defendant was not

caught molesting children until he was 34 showed that he was not a pedophile—

conflicted with this. Contrary to defendant’s current assertion, this did not mean that the

jury was not entitled to accept the prosecution’s experts’ explanations and reject the

defense’s.

8 Defendant launches the same type of criticism of the prosecution experts’ opinion

that defendant currently posed a danger of reoffending, in light of the fact that he did not

reoffend while in prison. It would serve no useful purpose here to recount the lengthy

testimony of these two experts about why they reached their conclusions, nor the lengthy

testimony of the defense experts as to why they reached contrary conclusions. As we

have already observed, this argument is more appropriate to trial, not appeal. Suffice it to

say that both sides did a thorough job of exploring the reasons for and limitations of the

competing opinions of both sides and the jury chose to credit the prosecution’s opinions

more than the defense’s.

Next, defendant claims there was insufficient evidence to prove that as a result of

his diagnosed mental disorder, it is likely that he will engage in sexually violent

predatory criminal behavior. Starting with the premise that past behavior is the best

predictor of future behavior, and/or that the event-free years defendant spent in prison did

not meant that his pedophilia had abated, both prosecution experts testified that defendant

had engaged in predatory behavior in the past. The forensic psychologist allowed that

while defendant’s acts with his niece might have demonstrated just very poor judgment,

his acts with the victim of the predicate offenses were “quite likely predatory” because he

knew that he had already engaged in this kind of conduct and should have known to stay

away. He concluded that defendant’s relationship with this victim was established in

order for defendant to victimize the child. Later, he changed his testimony to state that he

viewed defendant’s acts with the victim of the predicate offense and with the other victim

9 who was not his niece as predatory. He testified that he based his conclusion about the

former on his comparison of the dates stated in a law enforcement report of the beginning

of the acts and the onset of the relationship between defendant and the mother of this later

victim, although he allowed he did not know “for certain” when the relationship between

the two adults began. As to the other victim, who was not defendant’s niece, the forensic

psychologist testified that he relied on reports that her mother began her live-in

relationship with defendant in August of 1998 and the charging documents alleged that

the molestations occurred between July and December 1998, before they began

cohabiting. He concluded that the relationship between defendant and the child was

casual and/or was established by defendant in order to molest the child.

The prosecution’s consulting psychologist testified that because defendant said he

had a very limited relationship with the mother of his niece, he considered the acts

defendant committed on her as predatory. As to the other two victims, he said that

defendant began molesting them soon after establishing relationships with their mothers,

and while he could not conclude that defendant began his relationship with them in order

to molest them, his relationship with them was casual.

We do not agree with defendant that these opinions were based on speculation or

were “contrary to established rules.” The forensic psychologist stated the source of the

factual basis for his opinion and defense counsel below produced nothing in the records

upon which the former relied to contradict this. The consulting psychologist was never

asked the factual basis for his opinion, but since he appeared to have reviewed the same

10 documents the forensic psychologist did, it is reasonably inferable that he relied on them

in reaching his conclusion. As far as “the established rules” go, the jury instructions2 that

required either that defendant established the relationship with the victim (a point defense

counsel below appeared to forget) for the purpose of molesting her or that their

relationship (defendant’s and the victim’s, not defendant’s and the mother—see prior

comment) was casual. We are well aware that the defense experts offered contrary

opinions. This does not mean that there was insufficient evidence to support the jury’s

implied finding that it was likely that defendant would engage in sexually violent

predatory criminal behavior.

Next, defendant attacks the evidentiary underpinnings of the jury’s implied finding

that he lacked volitional capacity. The prosecution’s forensic psychologist testified that

this meant that most people in a particular situation would have controlled their behavior

or that the person acted with a degree of callousness. He found the fact that defendant

2 Defendant refers to the forensic psychologist’s testimony in answer to the question whether he would consider predatory an act committed by someone who moved into the home of the victim the same day. The doctor responded that “one actuarial instrument” defines an acquaintance of less than 24 hours to be a stranger and if the relationship does not include nurturing or caring for or calling the perpetrator a stepfather or the like, it is casual even if the molestation does not begin at the start of the dating relationship between the parent and the defendant. Defendant misconstrues this testimony as requiring that defendant and these victims know each other for 24 hours or less at the time of the first molestation. It does not. Moreover, even if the actuarial instrument’s definition had been applied, these relationships were casual as there was no evidence that defendant nurtured or cared for these girls or that they treated him like a stepfather. More importantly, the jury was governed by the instructions, not what some actuarial instrument said.

11 repeated his molesting behavior over and over, including the number of acts and three

different victims at different times and circumstances, then later, during an interview with

him, tried to minimize it, suggested that the molestations were a pattern for which

defendant was out of control.3 Defendant presents no logical argument or authority why

this testimony was insufficient. We are well aware of the fact, as was this expert, that

defendant was apparently able to control his behavior while in prison. This did not

render the opinion unworthy of belief.

The prosecution’s consulting psychologist testified that while defendant expressed

to him some sense of guilt for what he had done, he continued the molestations for a

number of years, knowing that it was wrong and that he could be punished for it. As

defendant points out, the consulting psychologist later acknowledged that defendant was

apparently able to control himself in prison, but, of course, he had no access to children

there. As with the prosecution’s other expert, we detect no fatal flaw in his testimony.

The fact that both defense experts testified otherwise is also insufficient to undermine this

testimony, which, obviously, was believed by the jury.

We cannot agree with defendant that the evidence supporting the jury’s implied

findings was infected with legal error. As we state elsewhere in this opinion, the jury was

presented with two conflicting views—one that defendant’s pre-incarceration behavior,

combined with his current minimalization of it and belief that he needed no treatment,

3Defendant completely misconstrues the doctor’s testimony, confusing volitional impairment with emotional incapacity, notions the doctor kept quite separate.

12 demonstrated that he was at the time of trial a sexually violent predator—and one that

said the past behaviors were irrelevant, as they were motivated by defendant’s addiction

to methamphetamine and the fact that defendant did not reoffend while in prison showed

that he was not currently a sexually violent predator. The jury chose the former. A

defendant’s past crimes may serve as the basis for an expert’s diagnosis of a current

mental disorder and opinion that the defendant is unable to control his sexually violent

behavior. (Kansas v. Hendricks (1997) 521 U.S. 346, 371 [117 S.Ct. 2072]; Hubbart v.

Superior Court (1999) 19 Cal.4th 1138, 1145, 1163, 1164.) Logic dictates that

defendant’s current minimalization of his past conduct and belief that he is not in need of

treatment for sexual misconduct or drugs and never has been supports a finding that he

continued to pose a substantial danger of repeating that conduct once released into the

community.

13 2. Evidentiary Rulings

a. Admission of a Portion of the Masturbation Video and Two Stills from

the Dog Video4

While defendant was being investigated for the crimes involving the three victims

in 1999, the grandmother of one of the victims gave the police two videos which

defendant had made. One video (hereinafter “the masturbation video”) showed

defendant, inter alia,5 masturbating to pictures of a nude young girl,6 then to pictures of

“adult women pornography[,]” then back to the pictures of the girl, and using sex toys

that were consistent with the sex toys one of the victims claimed defendant had used

during his encounters with her. When viewing the pictures of the girl, defendant

4 By failing to identify the Exhibit numbers of these items or to refer to them as such in her briefs, appellate counsel for defendant may think that she has escaped her obligation to have asked for early transmission of these exhibits to this court, as stated in our letter of September 28, 2012, but she has not. Counsel should have referred to these items as exhibits and requested early transmission of them to this court, as is her duty. Her failure to do so has delayed this case. How counsel expects this court to decide that these exhibits were unduly prejudicial without this court actually seeing them is beyond us.

5 Defendant engaged in other sexual activities on this video, which various witnesses testified to but because the present issue deals only with admission of that portion of the video depicting defendant masturbating to the picture of the young girl, we need not mention the other acts.

6 The prosecution’s consulting psychologist testified, outside the presence of the jury, that while some of the reports stated that this child was eight years old, he was of the opinion that she was much younger, perhaps four or five, and only those actually viewing the video could reach a conclusion about her age.

14 commented, “Look at that baby pussy.” The other video depicted defendant having sex

with a dog (hereinafter, “the dog video”) that belonging to the grandmother of one of his

victims (the same person who turned the videos over to the police).

Before trial began, defendant anticipated that prosecution and defense witnesses

alike would testify to the contents of both of these videos “as a basis for the expert’s [sic]

opinions, but also as substantive proof of the acts themselves[,]” and he voiced no

opposition to this, however, he argued that admission of the videos, themselves, was

more prejudicial than probative and cumulative of the former, and on those bases, he

sought exclusion of the videos. The prosecutor made clear as to the masturbation video

that he wanted to introduce only that portion showing defendant masturbating to the

pictures of the young girl. The trial court tentatively ruled that this portion of the

masturbation video could be shown, but not the dog video. The court reasoned that the

former was relevant to whether defendant had a severe mental disorder and the likelihood

that he would re-offend. The court reserved the right to have an Evidence Code section

402 hearing with either one or both of the prosecution’s experts concerning admissibility

of the videos.

Thereafter, the prosecution’s forensic psychologist testified about both videos,

including descriptions of their contents. He was shown the pictures of the young girl

defendant had used in the masturbation video and these pictures were introduced into

evidence without objection by the defense. The prosecution’s forensic psychologist

testified that he had not viewed the dog video before writing the two reports he authored

15 about defendant, but he had read other reports indicating that defendant had had sex with

a dog. He explained that he was unable to make the additional diagnosis of bestiality at

the time he wrote his reports because there was no evidence that defendant had engaged

in that type of behavior for over six months, however, upon viewing the dog video

shortly before trial, although he was still unable to make that diagnosis, “there was more

substantiation for it, just given the familiarity and comfort [defendant] had with the dog

and the ease [with] which he handled it. . . . [I]t was as if he had done it before. . . . [I]t

does substantiate there’s a potential paraphilia or other paraphilias in there[,]” which

made the doctor more confident in the conclusions he had already reached about

defendant. As to the masturbation video, the prosecution’s forensic psychologist testified

that the sex toys defendant used on himself in it were consistent with the ones one of his

three victims described defendant had used during his encounters with her and defendant

used pornography during this video, consistent with this victim’s report that defendant

had used pornography while with her. Although the forensic psychologist had not seen

this video before writing his reports, he had reviewed documents that described its

contents. He testified that the video was undeniable proof that defendant had sexual

fantasies about young girls, which helped establish that he suffered from the mental

disorder of pedophilia. He also testified that one indicator of sexual recidivism is sexual

preoccupation, which the video showed. Additionally, he said that defendant’s use of sex

toys, pornography and his engaging in self-sodomy on the video indicated sexual

preoccupation, which is a predictor of sexual recidivism.

16 Before the prosecution’s consulting psychologist testified, the trial court held a

Evidence Code section 402 hearing, during which defendant conceded that the expert

should be allowed to talk about both videos, including descriptions of their contents, and

the portion of the masturbation video showing the young girl was admissible, but not the

dog video. The consulting psychologist went on to testify during the hearing that after he

had concluded that defendant suffered from pedophilia, polysubstance dependency and

antisocial personality disorder, he saw the dog video. Based on it, he believed that this

was not the first time defendant had had sex with a dog and watching the video

demonstrated this better than reading reports about its contents. He concluded, based on

viewing the video, that there was a greater likelihood that defendant suffered from

zoophilia. He opined that a person with multiple paraphelias (pedophilia and zoophilia)

has an increased risk of re-offending. As to the masturbation video, he testified that

viewing it made the level of defendant’s deviancy much more apparent and the fact that

in it, defendant went from the pictures of the young girl to the adult female and back to

the young girl, demonstrated the strength of his pedophilic interest. He said that both

videos strengthened his conclusion that defendant would reoffend. The trial court ruled

that a portion of the masturbation video sought by the prosecutor to be admitted was

relevant for all purposes and “particularly those expressed by the [consulting

psychologist]. It goes to a specific paraphelia that he’s been diagnosed with. It shows a

focus, . . . zooming in on the girl’s genitalia, starting his activity with that picture and

ending the activity with that . . . .” While finding that the dog video “certainly might

17 reinforce some aspect of [the consulting psychologist’s] testimony[, and] [¶] . . . [¶]

. . . is a piece of evidence the doctor has looked at and has used to form his opinion as to

the likelihood of recidivism or the issue of risk and danger,” the trial court agreed with

defendant that it was more prejudicial than probative, and denied admission of it, but

ruled that the consulting psychologist could testify about it, including a description of its

content, to the extent this testimony explained his opinions. The court left open the

possibility of admitting still photographs taken from the dog video. Without any further

discussion that appears on the record before us, and without objection by the defense,

during the consulting psychologist’s testimony, the prosecutor showed him two still

pictures taken from the dog video, after the doctor testified that as part of the plea bargain

defendant entered involving the three victims, a charge against defendant for animal

cruelty, based on him having sex with the dog, had been dismissed. This also followed

the doctor’s description of the contents of the dog video. These still pictures were

admitted into evidence. The doctor went on to testify that he had asked defendant about

the dog video, but defendant claimed he had no memory of it until he was shown the

video. Like the prosecution’s forensic psychologist, because he did not have evidence

that defendant engaged in sex with an animal or had fantasies and urges to do so over a

six month period, he was unable to definitely diagnose defendant additionally with

zoophilia, but viewing the dog video made the doctor strongly suspect that defendant also

suffered from it.

18 As to the masturbation video, after the consulting psychologist described the

contents of that portion of it involving the young girl, that portion was played for the jury.

He went on to testify that the video showed that aside from the acts defendant committed

with the three victims, the former had additional thoughts, urges and sexual fantasies

involving pre-pubescent girls and the video “substantiat[ed] . . . the strength of my ability

to make a pedophilia diagnosis.” “[I]t added to the weight of my . . . decision. I felt that

it strengthened my concerns with respect to his risk for–” at which point, defense counsel

interrupted the expert. The consulting psychologist testified that the fact that the video

showed defendant also masturbating to an adult female showed that despite the presence

of “age-appropriate adult pornography” defendant still had a drive and arousal to pre-

pubescent children. The fact that defendant moved from the pictures of the young girl, to

the adult and back to the young girl “show[ed] the level of arousal . . . he has towards

children, . . . the level of deviancy . . . [¶] . . . of his pedophilia” and “substantiat[ed] the

diagnosis that there are clearly thoughts, feelings, urges, and arousal to pre-pubescent

children.” He based his conclusion that defendant was a pedophile in part on the video.

He also testified that in other portions of this video, defendant used sex toys on himself

that were similar to the ones one of his victims described defendant using on her.

Just as defense counsel had predicted, his experts also testified about both videos,

including descriptions of the contents of those videos.

As is clear from the foregoing, defendant objected below only to both videos being

shown to the jury. He was successful as to the dog video. He never objected to the stills

19 from the dog video being shown, therefore, he waived his current claim that they should

not have been admitted. (Evid. Code, § 353.) However, we will set aside his waiver of

the issue and address his contentions, because it is arguable that his original objection on

the bases that the videos were more prejudicial than probative and that they were

cumulative “carried over” to the stills from the dog video.

First, defendant asserts that his actions with the dog, which occurred, at the latest,

in 1999, had no relevancy to whether he currently had a diagnosed mental disorder which

caused him to pose a substantial risk of committing a violent predatory offense if

released. Defendant cites no authority holding that a defendant’s past acts are irrelevant

to his current mental state and the likelihood at the present time of him re-offending,

especially when, as here, he has been in prison for the entire interim.7 As we stated

before, the authority is to the contrary. In light of the amount of time that was spent at

this trial by defense counsel over whether defendant’s acts with the three victims were

predatory in nature and his solicitation of his clinical psychologist’s opinion that she

doubted that all the allegations made by the three victims was true and her listing of

reasons why two of the three were untruthful, defendant’s current position is at odds with

his trial strategy. If whether defendant’s conduct with them in 1999 was predatory or was

7 Taking defendant’s position to its logical conclusion, no defendant, no matter how heinous his pre-prison conduct, who managed to behave himself while in prison, could qualify as a Sexually Violent Predator based on opinions that find guidance to any significant degree on that conduct. Surely this could not be the intention of the Sexually Violent Predator Act.

20 not, and whether all the acts they claimed he perpetrated on them actually occurred were

relevant, by parity of reason, defendant’s conduct on the dog video (as well as the

masturbation video) was equally relevant despite when it occurred. Moreover,

defendant’s overarching position was that whatever behavior defendant engaged in before

he went to prison did not make him currently a sexually violent predator. The People’s

position was just the opposite and it was for the jurors to accept one position and reject

the other. They accepted the prosecution’s and we are in no position to say otherwise.

Next, defendant asserts that because both experts testified that viewing the dog

video did not change their conclusions about defendant, the still photos were irrelevant.

Not so. At the Evidence Code section 402 hearing, the consulting psychologist explained

how viewing the dog video strengthened his conclusions. While appearing to agree with

this, the trial court felt that the video was just too prejudicial and excluded it. However,

the consulting psychologist’s testimony, both during the Evidence Code section 402

hearing and at trial, as well as the testimony of the prosecution’s forensic psychologist at

trial to the same effect, demonstrated that if defendant had actually objected to the

admission of the two photos, the trial court would not have abused its discretion in

admitting them. (People v. Waidla (2000) 22 Cal.4th 690, 724.) This same testimony

also undermines defendant’s assertion that the still photos were cumulative of other

evidence admitted. We find defendant’s reliance on criminal cases holding that evidence

of a defendant’s past bad acts should be sparingly admitted inappropriate in a case such

as this where defendant’s past acts are just about all the prosecution experts felt they had

21 to go on in rendering the opinions necessary to assist the jury in its verdict. (See People

v. Fulcher (2006) 136 Cal.App.4th 41, 55 [Fourth Dist., Div. Two], [“Due process under

the SVP Act ‘is not measured by the rights accorded a defendant in criminal proceedings,

but by the standard applicable to civil proceedings.”].)

We also, having viewed the still photos,8 conclude that they were not substantially

more prejudicial than the many descriptions of the entire video offered by various

witnesses during trial. Defendant simply cannot demonstrate that he was prejudiced by

these two pictures sufficiently to overturn the jury’s verdict in light of all the other

references that were made to the content of the video at trial.

Despite initially asserting here that admission of the portion of the masturbation

video was error, defendant fails to specifically address in his opening brief how it

constituted an abuse of discretion.9 Other than the extent to which any of the arguments

he made about the still photos from the dog video are applicable to the portion of the

masturbation video shown, we reject them, for the reasons already stated.

8 Frankly, they are far more clinical than graphic.

9 In his reply brief, defendant uses the same argument he advanced about the dog video still photos and adds a new one not even mentioned below, i.e., that admission of the portion of the masturbation video was misleading because it failed to show him performing all the sexual acts that did not involve young girls. However, descriptions of all these acts were given to the jury by the experts (see fn. 5, ante, p. 14) so it was completely aware that defendant engaged in sex acts on the video that did not involve young girls.

22 b. Testimony of Two of Defendant’s Three Victims

In his trial brief, the prosecutor sought admission below of the testimony of

defendant’s two non-familial victims, including the one who was the victim of the

predicate crime. In his motion in limine, defendant responded by conceding that this

testimony was both relevant and admissible, although, he asserted that its prejudicial

impact outweighed its probative value. At the hearing on this, however, defendant

abandoned this argument and conceded that the People had the right to have these two

victims testify. Ignoring this, defendant here contends that the trial court erred in

admitting their testimony, but he has waived the matter by his concession at the hearing.

(Evid. Code, § 353.)

c. Defendant’s Two Other Nieces Opinions About the Reputation of

Defendant’s Victimized Niece for Honesty

Two of defendant’s nieces, aged 31 and 30 at the time of trial, testified that

although they were about the same age as the three victims when they lived with and

interacted with defendant in circumstances similar to those of his three victims, defendant

never did or tried to do anything sexually inappropriate with them or their friends.

Before they testified, defense counsel said he also wanted them to testify about the

reputation defendant’s victimized niece, who did not testify at trial, had for honesty at the

time defendant’s crimes were investigated in 1999, because both prosecution experts

relied in part on the statements she had made to the police during that investigation in

reaching their conclusions about defendant. We need not get into the merits of this

23 argument, as we conclude that it is not reasonably probable that defendant would have

enjoyed a different outcome had this testimony been admitted. (People v. Richardson

(2008) 43 Cal.4th 959, 1001.)10 This is despite the fact that the prosecution’s forensic

psychologist depended, in part, on the nature and quantity of defendant’s acts with his

niece, as alleged by her, in concluding that defendant suffered from a current mental

disorder, and the prosecution’s consulting psychologist depended, in part, on the same, in

concluding that defendant had a current mental disorder and posed a serious risk of re-

offending.

During cross-examination of both prosecution experts, defense counsel solicited

from them the fact that defendant’s victimized niece had made contradictory statements

during the 1999 investigation about one of the acts she claimed defendant performed on

her. The defense’s clinical psychologist testified that because this niece’s mother

(defendant’s older sister)11 had “really said very, very negative horrible things,”

presumably about defendant, she contacted defendant’s younger sister, who told her that

the mother had a bad reputation for honesty and credibility—that she was “insane . . . and

10 Because defendant here cites no authority supporting his position that it is a violation of due process to prevent a witnesses from testifying about the reputation of a non-testifying person for honesty, we will address this issue only as it was raised below, i.e., as strictly an evidentiary ruling, subject to the rules concerning the admission of evidence.

11 The clinical psychologist also testified that defendant and his younger sister had reported to her that the mother of the niece and a cousin were responsible for defendant using drugs.

24 mentally ill because she makes up stories and convinces herself that they’re true.” Given

the tender age of the niece at the time she reported the acts with defendant, the inference

would have been easy for the jury to make that her mother influenced her to say what she

did about defendant. Moreover, the clinical psychologist went on to testify that

defendant’s younger sister told her that the niece and her mother had lived with the

younger sister around the time the niece was five years old, and, later, while the niece

was in high school, and the younger sister had questioned the niece about the allegations

involving defendant, the niece said she did not even know who defendant was and the

younger sister did not believe that any molestation had occurred. On the other hand,

defendant admitted to the prosecution’s forensic psychologist that he fondled this niece,12

so one has to question the effect of opinion testimony by either of defendant’s other

nieces to the effect that the niece had a reputation for dishonesty, i.e., was she being

dishonest about defendant molesting her at all, or was she being dishonest about

particular acts she claimed defendant committed on her or the number of acts he

committed on her? Moreover, defendant’s other nieces were teenagers at the time, so the

value of their opinion is not the same as a mature adult’s, which the defense was able to

get in through the younger sister’s statement to the defense clinical psychologist about

the niece’s mother. Defendant made no offer of proof as to how either of these witnesses

12When interviewed by the prosecution’s consulting psychologist, defendant said he was unable to recall molesting her, but “[a]nything [was] possible.”

25 might be aware of the reputation of the five year old niece for veracity, so it is pure

speculation that their opinions would have been admissible, in any event. Finally, the

defense’s clinical psychologist testified that there were things about the niece’s

statements about what defendant had done to her “that troubled [her,]” she “had a little bit

of trouble” with the medical reports about what appeared on the niece to be evidence of

sodomy, and she had some doubts about whether all the allegations as to all three victims

were true. Given the foregoing, we cannot conclude that exclusion of this evidence

significantly prejudiced defendant.13

d. Prosecutor Leading Prosecution Witnesses and Confining Defense

Witnesses to “Yes” or “No” Answers

Defendant correctly points out that on several occasions, the prosecutor asked the

prosecution’s consulting psychologist leading questions. Unless defendant can

demonstrate that the witness would not have testified to these matters without prodding

by the prosecutor, we cannot conclude that defendant was prejudiced by this.

As to the prosecutor’s directing the defense’s clinical psychologist to answer his

questions with a yes or no, that’s what redirect examination is for—to allow the witness

to explain what she was unable to explain on cross-examination. We disagree with

defendant’s characterization of this as an abrogation by the trial court of its control of

proceedings.

13 In his reply brief, defendant appears to assert that the evidence he sought to admit below was an inconsistent statement by defendant’s victimized niece. It was not.

26 3. Motion for a New Trial

Before she left for the courthouse on June 12, 2012, which was the day the last

prosecution witness testified and the People rested their case-in-chief, a juror who

subsequently became the foreperson posted to her Facebook page, “7th day of jury duty

today . . . argh . . . peace be with me!” The foreperson testified at the hearing on the

motion for a new trial that she believed this post was an acceptable way of telling people

that she was on jury duty. A woman the foreperson testified was someone she helped

raise responded to the posting, “GUILTY.” The foreperson repeatedly testified that she

did not read this, or any of the other responses she received to her posting, until she was

contacted by defense counsel,14 long after she had been released from duty following the

jury’s verdict, and consequently, these responses had not influenced her. She also

repeatedly denied talking to this responder, or to anyone else, about the trial until after it

was over. She said she had no idea why this responder said, “Guilty.”

At 7:00 a.m. on June 14, 2011, the day after deliberations began and the day the

verdict was rendered, the foreperson posted to her Facebook page, “Day 9 of jury duty

today . . . peace be with me . . . this is one of the toughest things I’ve EVER done[.]” She

testified that she posted this without looking at the responses she had received to her June

14 In an investigative report attached to the People’s Opposition to Defendant’s Motion for a New Trial, a California Department of Justice Special Agent reported that on July 5, 2012, the foreperson “expressed concern that she did not even know what others had posted in response to her postings and told me that she was going to look at her Facebook page. . . . [¶] Shortly after our conversation, [the foreperson] called me back and told me that she had reviewed [the responses to] her Facebook postings.”

27 12 posting. She also testified that she felt her posting was a proper way to tell people that

she was on jury duty. A friend of the foreperson’s daughter responded, referencing the

trial as an “ordeal.” The foreperson denied discussing the case with her. The

foreperson’s daughter responded, “Almost done . . . ” The foreperson testified that her

daughter lived with her and the foreperson must have told her daughter that she thought

the trial was almost over. A childhood friend of the foreperson’s responded to the

posting, in pertinent part, “[O]nly one more day . . . and you[’re] done[. W]e’ll take up a

collection for you to have therapy when you[’re] done with this horrid experience . . . .”

The foreperson testified that she communicated with this person only via Facebook and

she had no idea how this person would know that the foreperson had only one day left to

serve and that the experience was “horrid.” A male friend the foreperson testified she

had not seen in 25 years responded, “Indict the bastard for making [yo]u waste [yo]ur

time. Or vote for death!” The foreperson testified that she had no idea how this man

knew that the person involved in the case should be indicted or be given the death penalty

or that she was sitting on a criminal case, none of which, of course, was accurate. The

woman the foreperson testified she had helped raise responded, “ . . . the DB[15] will get

15 The foreperson testified that she did not know what the reference to “DB” meant. Defendant below and here makes much of the fact that the foreperson later referred to defendant as a “douche bag,” asserting that this responder’s use of the initials “DB” also meant douche bag and suggested that the foreperson had discussed the case with this responder. Although the foreperson testified she did not recall if she used the term “douche bag” in the presence of this person, the fact that she used it in her posting suggests that she had and it is not surprising that a woman she helped raise might have picked it up from her, assuming the latter’s use of “DB” meant “douche bag.” If it did

[footnote continued on next page]

28 what’s coming to him one way or another!”16 The foreperson testified that she had no

idea how this woman would know to say that. As already stated, the foreperson said she

did not read any response to any of her postings until after her jury duty had been

completed and she did not discuss the case with anyone.

On June 15, 2012, the day after the verdict had been rendered, the foreperson

posted to her Facebook page, “Jury duty over—douche bag committed for life ([by the

way “]douche bag[”] is too good a term for this guy)—much struggle with ignorant

jurors, but we succeeded. . . . [T]he images in my brain may be there awhile.”17 The

judge who heard the new trial motion, who was the same judge who presided at trial,

noted that at some point during voir dire, defense counsel had said in the presence of the

[footnote continued from previous page] not, as the People assert in their brief (saying it could mean “dirt bag”), defendant’s argument is even less convincing.

16Defense counsel below asked the foreperson how this woman would know “that some douche bag needs to be found guilty” and the foreperson responded that she did not know. However, the responder made no reference to the subject of the case being found guilty—just that he should get what was coming to him.

17Defendant here calls our attention to three responses to this posting about which the foreperson was not asked during the hearing on the new trial motion, so she had no opportunity to explain who these responders were, what they might have meant by what they said or how they gained the information they appeared to have. We will not engage in speculation as to any of these matters, except to note that one of them referred to “seeing the bad guys getting convicted[,]”thus betraying her ignorance, not her knowledge, of the case. (See text at page 29.) Another referenced the foreperson’s “comments[,]”which could have easily constituted the statements the foreperson had made in her posting for that day about the now-concluded trial, rather than any other and improper communication.

29 jury that defendant could be sent away for life.18 The foreperson testified that she

understood from the instructions that a life term was possible and that after the trial, the

prosecutor had told the jurors that the typical term in such cases was life. The foreperson

also testified that her reference to “ignorant jurors” did not mean that she had already

made a decision about defendant and wanted to convince the other jurors to vote with her.

A former co-worker, whom, the foreperson testified, was still in communication with

many of the foreperson’s co-workers, responded to the foreperson’s posting on this date,

“Couldn’t imagine a better foreman than you . . . .” The foreperson testified that she was

back at work by the time the former co-worker posted her response, and she had told her

fellow employees that she had been the foreperson.19 She testified that she decided the

case only on the evidence that had been presented in the courtroom and the jury

instructions. She said she followed the instruction that she keep an open mind during the

trial and not make up her mind until after discussing it with other jurors during

deliberations. She also said that only people she “friended” could read her Facebook

postings, and she had not “friended” any of her fellow jurors and none of them had

18 Indeed, both the court below and the prosecutor put on the record that such a reference had been made, despite the trial court’s ruling that the duration of defendant’s commitment, should he be found to be a sexually violent predator, not be mentioned.

19 Although defendant here correctly reports that the foreperson testified that she had no idea how the former co-worker knew that she was the foreperson, she also testified that she was back at work and had told her fellow employees that she had been the foreperson before her former co-worker responded to her posting, testimony which defendant now chooses to ignore.

30 mentioned her Facebook postings to her. Finally, she said that she did not get emails

alerting her to the fact that people had responded to her Facebook postings.

The judge who heard the motion for new trial was the same judge who first

became aware of the foreperson’s Facebook postings and the responses to it, and had

turned the information over to both trial counsel. He also personally and closely

questioned the foreperson while she was on the stand and some of her responses to his

questions appear in our reiteration of her testimony. He began his ruling by noting that

he was concerned when he saw the postings and responses. Nevertheless, the court

concluded that, based on the timing of the responses, it was believable that the foreperson

did not look at the responses while serving on the jury. The court further found that the

foreperson telling people on June 12 and 14 that she was on jury duty did not constitute

misconduct, however, some of her comments soliciting prayers and saying that service

was tough “start[ed] getting closer to going over the edge[,]” although the court made no

finding of misconduct regarding them.20 The court found the foreperson’s testimony to

not be untruthful or not incredible and the court believed her statements that she did not

review the responses to her postings and that she decided the case on the evidence and

argument presented at trial. The court noted as to the latter that it might feel differently if

the defense had produced any of the responders and they had testified otherwise.

20 We note that defendant cites no authority holding that such comments constitute misconduct.

31 We are bound by the trial court’s credibility determinations and findings of

historical facts if they are supported by substantial evidence. (People v. Nesler (1997) 16

Cal.4th 561, 582.) Defendant here contends that the foreperson’s denials that she had

communicated with the woman whom she helped raise were “incredible” and it was

“pretty clear” from the evidence that the foreperson had, indeed, communicated with her.

However, “[w]e may not substitute our reading of the ‘cold transcript’ in this case for the

credibility determinations reached by the trial court after making its inquiry, observing

the juror, and listening to h[er] responses.” (People v. Stanley (2006) 39 Cal.4th 913,

951.) Defendant also asserts that the foreperson’s postings and the responses indicated

that the foreperson had discussed the case with this woman, the man the foreperson had

not seen in 25 years and her childhood friend. We disagree. The references by the

woman whom the foreperson helped raise and the man she had not seen in 25 years

indicate how little either knew about the case—which had nothing whatsoever to do with

guilt, being indicted or receiving the death penalty, as the court below had instructed the

jury during voir dire and before trial began. As for the foreperson’s childhood friend

referring to the jury experience as horrid and the foreperson’s daughter’s friend referring

to it as “an ordeal,” after two postings from the foreperson asking for prayers and saying,

on June 14, that serving on the jury was “one of the toughest things [she’d] ever done,”21

21 This is precisely the explanation offered by the foreperson when she was asked about her daughter’s friend’s comment.

32 the comments are not surprising and they do not suggest communication between the

foreperson and either woman. Moreover, defendant ignores the fact, noted by the trial

court, that all of these people may well have had the benefit of reading each other’s

responses to the foreperson before formulating their own.22 As to the foreperson’s

childhood friend knowing that the foreperson had only one more day of service left, the

foreperson admitted that she must have told her daughter that the trial was near the end.

The defense presented no evidence that there was no communication between the

daughter and this friend about when the foreperson’s service would end, and, given the

tone of the friend’s response, it was evidence that the friend was very concerned about

22 For example, one of the responses on June 12 was “For sure the case you[’]r[e] on is not a car accident or a workman[’]s comp[ensation] case” and another was “GUILTY[!]” These preceded the responses on June 14 about indicting the “bastard,” voting for death, or “the DB” getting what’s coming to him. We note that defense counsel failed to question the foreperson below about a response made to her June 14 posting from another male who said, “Make it easy . . . GUILTY!” However, again, this betrays the ignorance of the responders about what was going on in the trial and suggests that the foreperson was not, rather than that she was, communicating with them about the trial. We also note that the foreperson’s childhood friend’s response that the foreperson’s service was a horrid experience followed the foreperson’s daughter’s friend calling it an ordeal and another responder calling it a “[h]ard job.” The same is true of other responses that were solicitous of the foreperson, to which defendant now calls our attention. As far as one of the June 12 responders assuming that the case did not involve a car accident or workmen’s comp, this assumption could have been based on the length of the trial (by then, seven days, said the foreperson in her posting) and/or the fact that the foreperson had asked for prayers concerning her service. It did not flow necessarily, as defendant now asserts, from communication between the foreperson and this responder about the case. We also note that responder followed up her comment with, “Can’t wait to hear why they kept you there so many days” which suggests she knew nothing about the case.

33 the toll the trial was taking on the foreperson and it would have not been unusual for the

friend to contact the foreperson’s daughter about her mother’s welfare. Having here and

previously responded to every evidentiary point raised by defendant in his brief

suggesting that the foreperson’s denial that she discussed the case with others or read the

responses during the trial was unworthy of belief by the court below, we conclude that

the trial court’s credibility determination and findings of facts were supported by

substantial evidence. By parity of reason, we reject defendant’s assertion that the court

below “must have” applied an incorrect standard in finding there was no misconduct.

Defendant puts the cart before the horse when he argues that the trial court’s ruling

“failed to appreciate the presumption of prejudice inherent in juror misconduct.” First,

the trial court must find misconduct, then the rebuttable presumption of prejudice arises.

(In re Carpenter (1995) 9 Cal.4th 634, 657 [“Although prejudice is presumed once

misconduct has been established, the initial burden is on defendant to prove misconduct.”

(Italics added.)]; People v. Cissna (2010) 182 Cal.App.4th 1105, 1116 [“When the record

shows there was juror misconduct, the defendant is afforded the benefit of a rebuttable

presumption of prejudice.” (Italics added.)].) By finding there was no misconduct, there

was no presumption of prejudice for the trial court to apply. Whether the facts, as found

by the court below, constitute misconduct is a legal question which we review

independently (People v. Collins (2010) 49 Cal.4th 175, 242), however, defendant’s issue

here with the trial court’s ruling is based on his dispute with that court’s factual findings,

not with whether the facts, as the trial court found them to be, constituted misconduct.

34 Those of us who have lived long enough have learned that people make

assumptions—when jury duty is mentioned in social circles, it is often assumed, or at

least hoped, that the case is a criminal case, because civil cases are usually far less worthy

of discussion by lay people. It is difficult for anyone, lay person or lawyer, to imagine a

juror getting emotionally worked up over a civil case unless the facts were extraordinary.

It is fairly clear that’s what happened here—the foreperson’s Facebook friends made

assumptions about the case she was sitting on, perhaps because of its length and/or her

apparent frustration/difficulty with having to serve on the jury. They also sympathized

with her plight at having to sit on such a difficult case. While much can speculatively be

read into what they said, and defendant does a thorough job of this here, as the trial court

observed, absent some evidence that the foreperson either communicated with any of

them or made up her mind based on anything other than what was presented at trial,

defendant did not carry his burden of proof below.

4. Equal Protection Challenge to the Sexually Violent Predator Law

In People v. McKee (2010) 47 Cal.4th 1172, 1208, 1210, the California Supreme

Court gave the People the opportunity to show that sexually violent predators as a class

bore a substantially greater risk to society, which supports, against an equal protection

challenge, treating them differently from mentally disordered offenders and those found

not guilty by reason of insanity in terms of the indeterminate term imposed and the

burden of proof by a preponderance which the former bears in seeking release. In People

v. McKee (2012) 207 Cal.App.4th 1325, 1330, 1331, Division One of this court

35 concluded that the trial court had properly found that the People had presented substantial

medical and scientific evidence, under the strict scrutiny standard, to support a reasonable

perception by the electorate, who imposed the indeterminate term and the burden of

proof, that sexually violent predators presented a substantially greater danger to society

than mentally disordered offenders or those not guilty by reason of insanity. The

California Supreme Court denied review in that case. Contrary to defendant’s current

suggestion, Division One’s conclusion was not specific to the defendant in that case, but

to the class of sexually violent predators. (People v. McDonald (2013) 214 Cal.App.4th

1367, 1378; People v. McKnight (2012) 212 Cal.App.4th 860, 863, 864.) We agree with

and adopt the reasoning and holding of McKee, necessarily rejecting defendant’s

arguments that McKee was wrongly decided. We note that other appellate courts have

also reached the same conclusion and our research has revealed none concluding

otherwise. (People v. McDonald, supra, 214 Cal.App.4th at p. 1372; People v. Landau

(2013) 214 Cal.App.4th 1, 47; People v. McCloud (2013) 213 Cal.App.4th 1076, 1086;

People v. McKnight, supra, 212 Cal. App.4th at p. 862.) Defendant’s assertion here that

he has a due process right to relitigate the issue determined by Division One was rejected

in People v. McDonald, supra, 214 Cal.App.4th at pages 1377, 1378 and we adopt its

reasoning.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

36 RAMIREZ P. J.

We concur:

McKINSTER J.

CODRINGTON J.