Opinion
E065122
09-18-2017
THE PEOPLE, Plaintiff and Respondent, v. MANUEL BURRUEL III, Defendant and Appellant.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Felicity Senoski and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC382033) OPINION APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Felicity Senoski and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court found defendant and appellant Manuel Burruel III, is a sexually violent predator (SVP) and is likely to engage in sexually violent predatory behavior if released. (Welf. & Inst. Code, § 6600.) The court ordered defendant be committed to a secure facility.
All subsequent statutory references will be to the Welfare and Institutions Code, unless otherwise indicated. --------
Defendant raises four issues on appeal. First, defendant contends substantial evidence does not support the finding that he is likely to engage in predatory conduct if released. Second, defendant asserts the testimony of the prosecution's expert included unreliable hearsay. Third, defendant asserts the trial court erred by allowing the courtroom deputy to decide that defendant would be shackled during the proceedings. Fourth, defendant contends his right of equal protection was violated when he was required to testify as a witness for the People. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. DEFENDANT'S TESTIMONY
The People called defendant as a witness. The facts in this subsection are taken from defendant's testimony. Defendant has convictions for molesting three girls under the age of 14 years. (Pen. Code, § 288, subd. (a).) In February 1990, when defendant was approximately 19 years old, defendant left his fiancée's bedroom and "touched and kissed" his seven-year-old cousin. While defendant was incarcerated, another inmate orally copulated defendant. Defendant was prosecuted for participating in the oral copulation.
In mid-1991, defendant shared an apartment in Hemet with a woman and her three children—two girls and a boy. Defendant orally copulated the woman's eight-year-old daughter. Defendant pled guilty to molesting the woman's six-year-old daughter, but denied he committed the act. Defendant explained that he pled guilty in order to obtain favorable sentencing terms, not because he molested the six-year-old daughter.
Defendant explained that he was in "caring relationship[s]" with the victims, he was not sexually attracted to them. Defendant explained that the molestations were meant to pleasure the victims, not to sexually gratify defendant or hurt the victims. Defendant discussed ancient Greek society and how sexual contact with children "wasn't frowned upon as it is in our society." Defendant explained that he did not participate in sex offender treatment while in prison because he does not "have any sex offender problems." Defendant admitted to sampling a variety of drugs in the past, but denied abusing drugs.
B. EXPERT TESTIMONY
Dr. Christopher North is a licensed psychologist who testified for the People. The facts in this subsection are taken from North's testimony. North evaluated defendant in 2009, 2011, and 2014. North reviewed defendant's probation reports, arrest reports, abstracts of judgment, parole reports, hospital records, and prior psychological evaluations. North explained that defendant has four sexual offense convictions—two counts for molesting a seven-year-old victim in 1990, one count for an eight-year-old victim, and one count for a six-year-old victim.
Defendant has admitted to having sexual fantasies about children. Defendant discussed ancient Greek society with North. North believed defendant thought there was not "anything terribly wrong" with having sexual contact with children "and that perhaps the problem was more with society than with [defendant]."
Defendant is diagnosed with pedophilic disorder, a personality disorder with antisocial and narcissistic features, and amphetamine abuse. Pedophilic disorder is an attraction to children, and it is a lifelong disorder. North explained, "Eventually, most pedophiles like [defendant], I think, are going to have trouble controlling themselves." North opined that defendant was "likely to commit future predatory offenses because of his pedophilia. Because he's attracted to children, he will be motivated to establish and promote relationships with them so that he can molest them."
North's opinion was based upon defendant's past sexual interest in children and defendant's refusal to participate in sexual offender treatment. North explained that defendant had "always refused sexual offender treatment." Additionally, defendant's abuse of amphetamines increases his sex drive, which increases the intensity of defendant's pedophilic disorder. Defendant's "personality disorder results in him generally feeling like he's above the law, that he is entitled to do whatever he wants to do. The consequences don't affect him or don't apply to him."
North concluded defendant is likely to reoffend if released into the community because defendant "has a long-standing sexual attraction to children, and he hasn't done anything about it. He hasn't done anything about his substance abuse problem, which increases his risk. And his personality disorder is just as severe as it[ has] always been."
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends substantial evidence does not support the finding that he is likely to engage in sexually violent predatory behavior if released. (§ 6600.)
We apply the substantial evidence standard of review. Under that standard, we view the evidence in the light most favorable to the judgment and draw all reasonable inferences in favor of the judgment. We do not reweigh the evidence or reevaluate the credibility of the witnesses. (People v. Sumahit (2005) 128 Cal.App.4th 347, 352.)
Part of the definition of "sexually violent predator" concerns the danger the defendant poses to others. It must be shown the defendant is "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." (Welf. & Inst. Code, § 6600, subd. (a)(1).) A lewd and lascivious act committed upon a child under the age of 14 years is a sexually violent offense. (Welf. & Inst. Code, §§ 6600, subd. (b), 6600.1; Pen. Code, § 288, subd. (a).) "'Predatory' means an act is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." (Welf. & Inst. Code, § 6600, subd. (e).)
North would not classify defendant's molestation of defendant's seven-year-old cousin as "predatory" because defendant had a familial relationship with the girl. In regard to the eight-year-old and six-year-old victims, defendant had been living with the girls and their mother for approximately six months. North concluded defendant had a "casual acquaintance" relationship with the two girls because defendant was "pretty much constantly using drugs" and the children were locked in another room while the drug abuse took place. If the children exited the room, defendant "yelled and screamed at them." North did not believe the two girls were attached to defendant. North opined that defendant's crimes against the eight-year-old and six-year-old victims were predatory because the girls were casual acquaintances. The foregoing evidence reflects defendant engaged in predatory behavior in the past.
North explained that defendant suffers from pedophilic disorder, a personality disorder with antisocial and narcissistic features, and amphetamine abuse. Pedophilic disorder is a lifelong disorder. Defendant has refused sexual offender treatment, so his pedophilic disorder is not being managed. Defendant's abuse of amphetamines increases the intensity of defendant's pedophilic disorder, and defendant's personality disorder causes him to feel as though he is above the law. Defendant has not treated his drug abuse issues and his personality disorder is also unmanaged. The foregoing evidence reflects the causes of defendant's predatory behavior are unmanaged.
In sum, substantial evidence reflects defendant has engaged in predatory behavior in the past and is not managing any of the causes of that predatory behavior. It can reasonably be concluded from this evidence that defendant is likely to engage in sexually violent criminal behavior because the evidence reflects defendant's predatory impulses are uncontrolled.
B. UNRELIABLE HEARSAY
1. PROCEDURAL HISTORY
Prior to the commitment proceedings commencing, defendant's counsel asked the trial court to make a finding regarding the reliability of the hearsay sources used by North in forming his opinion. The prosecutor said North's opinion was based upon "police reports, probation reports, hospital records, but also other reports from doctors who have also evaluated [defendant]." The People asserted the reports were reliable because such reports had been used in other SVP cases.
The court said, "[I]t isn't even a close call that these are reliable hearsay sources. They are—a lot of these documents are part of the criminal justice system." Defense counsel responded, "The court record will show that you reviewed the list of items and you found that they are reliable hearsay sources." The court said, "That is correct."
North testified that he had formed an opinion regarding whether defendant will engage in sexually violent predatory behavior. In forming his opinion, North relied, in part, upon defendant's "extremely disruptive behavior within the hospital." The People asked North to explain "some of that behavior."
In response, North said, "Well he's been threatening. He's been assaultive. He's been totally uncooperative with treatment. I—I reviewed a couple of hospital police reports that you shared with me just before coming into report—into court today that I had not seen today [sic], one in which a psychologist said that he was yelling at her and threatening her, and some of the spit from his yelling at her actually landed on her face. And that in screaming at her, he then grabbed his crotch and pulled at his genitals and said, "Document this, bitch.' [¶] Then there was a another police report in which he attempted to stab a hospital staff member with a pencil." The hospital police reports were not admitted as exhibits.
2. CONTENTION
Defendant contends North used unreliable hearsay in forming his expert opinions, in particular police reports from Coalinga State Hospital.
3. LAW
An expert's opinion may be based upon a matter "made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject." (Evid. Code, § 801, subd. (b).) An expert may state "the reasons for his opinion and the matter . . . upon which it is based." (Evid. Code, § 802.) Thus, an expert may "rely on hearsay in forming an opinion, and may tell the [trier of fact] in general terms that he did so. . . . [¶] What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (People v. Sanchez (2016) 63 Cal.4th 665, 685-686; see also People v. Roa (2017) 11 Cal.App.5th 428, 618-619 [employing Sanchez in an SVP case].)
4. FORFEITURE
The People contend defendant forfeited the hearsay issue by failing to raise it in the trial court. Defendant did not object to North's testimony concerning the hospital police reports. As a result, defendant forfeited the issue for appellate review. (People v. Stevens (2015) 62 Cal.4th 325, 333.)
Defendant asserts he did not forfeit the issue because an objection would have been futile. First, the record includes a list of documents to which defendant was referring when he made his request for a pretrial finding. Hospital police reports do not appear on that list. Therefore, when defendant requested a pretrial finding on reliability, the finding did not concern the hospital police reports.
Second, defendant did not object to the hearsay on the basis of hearsay or a lack of foundation. (See People v. Sanchez, supra, 63 Cal.4th at pp. 685-686 ["unless they are independently proven by competent evidence or are covered by a hearsay exception"].) Defendant's pretrial request concerned a finding of general reliability. Given (1) the pretrial finding did not concern the hospital police reports, and (2) no objection was made (a) about North offering hearsay for the truth of the matter asserted, or (b) about a lack of foundation, we conclude an objection concerning North's discussion of the hospital police reports would not have been futile. Because the issue has been forfeited, we do not address the merits of the contention.
5. PREJUDICE
Nevertheless, as explained ante, substantial evidence supports the finding that defendant is likely to engage in sexually violent predatory behavior. That substantial evidence analysis did not take into consideration the specific facts said to be set forth in the hospital police reports. Based upon our review of the record, we conclude any error related to North's testimony about the hospital police reports was harmless beyond a reasonable doubt, in that the evidence of the hospital police reports did not contribute to the finding. (People v. Cage (2007) 40 Cal.4th 965, 991-992 [federal prejudice standard applied to testimonial hearsay error].)
C. SHACKLES
1. PROCEDURAL HISTORY
Prior to the commitment proceedings commencing, defendant's counsel asked if, during the commitment proceedings, defendant could be unshackled. The following exchange occurred:
The Court: "Courtroom security is something that the sheriff decides
"The Deputy: No reason to be, we don't have a jury.
"[Defense counsel]: He doesn't need to be shackled.
"The Deputy: He doesn't need to be unshackled. He can remain.
"The Defendant: Can I keep my legs on and remove these?
"The Deputy: No."
2. CONTENTION
Defendant contends the trial court erred by keeping him shackled during the proceedings and deferring to the deputy.
We apply the abuse of discretion standard of review. (People v. Ayala (2000) 23 Cal.4th 225, 253.) "'[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints.'" (People v. Hill (1998) 17 Cal.4th 800, 841.) In a non-jury proceeding, a lesser showing is required. (People v. Fierro (1991) 1 Cal.4th 173, 219 (Fierro) ["lesser showing"].) Physical restraints may be used where they are necessary due to defendant displaying "non-conforming conduct and behavior." (Tiffany A. v. Superior Court (2007) 150 Cal.App.4th 1344, 1359 ["non-conforming conduct and behavior"]; see also Fierro, at p. 220 ["showing of necessity"].) "A trial court abuses its discretion if it abdicates this decisionmaking responsibility [regarding shackling] to security personnel or law enforcement." (Hill, at p. 841.)
The trial court deferred to the courtroom deputy and permitted the courtroom deputy to decide whether defendant would be shackled during the commitment proceedings. It was the trial court's responsibility to determine if defendant displayed non-conforming behavior such that shackles were necessary during the non-jury proceedings. Because the trial court deferred the shackling matter to the courtroom deputy, the trial court abused its discretion. (People v. Hill, supra, 17 Cal.4th at p. 841.)
3. PREJUDICE
In Fierro, our Supreme Court considered the use of shackles during preliminary hearings. (Fierro, supra, 1 Cal.4th at p. 219.) The court explained that only using shackles when necessary (1) "maintain[s] the composure and dignity of the individual accused," (2) "preserve[s] respect for the judicial system as a whole," (3) permits defendant more ease in communicating with his counsel, and (4) prevents witnesses from being improperly influenced. (Id. at pp. 219-220.) The Supreme Court has concluded that wearing a "stun belt" may "make it more difficult for the defendant to focus his or her entire attention on the substance of the court proceedings, and affect his or her demeanor before the jury." (People v. Mar (2002) 28 Cal.4th 1201, 1219.)
Although defendant's commitment proceedings were not before a jury, out of an abundance of caution, we will apply the federal harmless error standard that is applied for shackling errors in jury proceedings. Therefore, we examine whether "'beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.'" (Deck v. Missouri (2005) 544 U.S. 622, 635.)
We turn to whether witnesses were improperly influenced. The prosecution called two witnesses: defendant and North. Defendant said he lived at Coalinga State Hospital. North said he works at Coalinga State Hospital and had evaluated defendant in 2009, 2011, and 2014. Given that defendant and North were aware of defendant's hospital commitment status, we conclude beyond a reasonable doubt that the shackles did not improperly influence the witnesses.
The defense called one witness: Richard Daignault. Daignault met defendant when defendant dated Daignault's aunt. Defendant lived with Daignault, Daignault's aunt, and Daignault's grandmother. Daignault was in high school at the time. Daignault saw defendant interact with the neighborhood children and never saw defendant act suspicious with the children. Given that Daignault's testimony was favorable to defendant, we conclude beyond a reasonable doubt that the shackling error did not improperly influence Daignault.
We now examine whether defendant had difficulty communicating with his counsel. Our review of the record does not indicate any communication difficulties due to the shackles. For example, at the end of defendant's testimony, defendant said he wanted to make objections. Defendant's trial counsel said, "Come and talk to me about it." The trial court said, "He's your attorney, so why don't you talk to him about it first, sir." Defendant did not say his shackles would make it difficult to communicate or otherwise express a problem with communicating with his counsel.
Next, we examine whether defendant had difficulty focusing his entire attention on the substance of the court proceedings due to the shackles. As set forth ante, at the end of defendant's testimony, he recalled various objections that he wanted to raise. This indicates defendant was able to understand the court proceedings, track his own thoughts about the proceedings, and remember various points that were objectionable to him. Given this record, we conclude the shackles did not cause defendant to have difficulty focusing his attention on the substance of the court proceedings.
Next, we analyze whether the shackles affected defendant's demeanor and composure. Defendant responded to questions by saying, "Yes, sir." Thus, it appears defendant remained calm and respectful while in the shackles. Based upon this record, it does not appear defendant's demeanor and composure were negatively affected by the shackles.
Our review of the record reflects the shackles (1) did not improperly influence the witnesses; (2) did not cause defendant to have difficulty communicating with his attorney; (3) did not distract defendant; and (4) did not negatively affect defendant's demeanor. Therefore, we conclude beyond a reasonable doubt that the trial court's shackling error did not contribute to the finding.
D. EQUAL PROTECTION
1. CONTENTION
Defendant contends SVPs are similarly situated to people who plead not guilty by reason of insanity (NGI). Defendant asserts NGIs cannot be called as witnesses for the People, and therefore it is a violation of equal protection to permit SVPs to be called as witnesses for the People. Defendant asserts his right of equal protection was violated when he was compelled to testify as the People's witness.
2. LAW
"Equal protection requires the state to treat similarly situated persons alike, with some exceptions in which the disparate treatment is sufficiently related to the purpose of the [law] in question." (People v. Jacobs (1992) 6 Cal.App.4th 101, 103.) The "similarly" situated inquiry examines whether two groups are similarly situated for purposes of the law challenged, not whether they are similarly situated for all purposes. (People v. McKee (2010) 47 Cal.4th 1172, 1202.)
"Under both the United States and California Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding; in addition, the defendant in a criminal proceeding enjoys the right to refuse to testify at all." (People v. Dunley (2016) 247 Cal.App.4th 1438, 1446 (Dunley).)
"Commitment proceedings involving NGI's, SVP's and [mentally disordered offenders (MDOs)] are all civil in nature." (Dunley, supra, 247 Cal.App.4th at p. 1446.) Nevertheless, our Supreme Court has concluded NGIs cannot be compelled to testify at commitment extension hearings because Penal Code section 1026.5, subdivision (b)(7), affords NGIs all "the rights guaranteed under the federal and State Constitutions for criminal proceedings." (Hudec v. Superior Court (2015) 60 Cal.4th 815, 826, 832.) In People v. McKee, supra, 47 Cal. 4th 1172, our Supreme Court concluded SVPs and NGIs are similarly situated for purposes of analyzing involuntary commitment issues. (Id. at pp. 1196, 1202, 1207.)
In People v. Curlee (2015) 237 Cal.App.4th 709 (Curlee), the appellate court addressed the same issue presented in the instant case. (Id. at p. 720.) The appellate court held SVPs and NGIs are similarly situated for purposes of being compelled to testify at commitment hearings. (Ibid.) The appellate court concluded the record was inadequate to determine if there was a justification for the disparate treatment. (Id. at p. 721.) The appellate court remanded the matter to the trial court for an evidentiary hearing as to whether there was a justification for the disparate treatment. (Id. at p. 722.)
In Dunley, this court examined whether, in light of Curlee, "MDO's are similarly situated with respect to NGI's and SVP's for the purpose of the testimonial privilege." (Dunley, supra, 247 Cal.App.4th at p. 1447, fn. omitted.) This court wrote, "[W]e can see no distinction between MDO's and either SVP's or NGI's for purposes of the testimonial privilege. Accordingly, we hold that for that purpose, MDO's, NGI's and SVP's are similarly situated." (Id. at p. 1450.)
Thus, this court has held SVPs and NGIs are similarly situated for purposes of the testimonial privilege. (Dunley, supra, 247 Cal.App.4th at p. 1450.) This means SVPs cannot be compelled to testify unless there is a justification for the disparate treatment. (Hudec v. Superior Court, supra, 60 Cal.4th at pp. 826, 832; Curlee, supra, 237 Cal.App.4th at pp. 720-722.)
3. FORFEITURE
The People contend defendant forfeited the equal protection contention by failing to object in the trial court. When the People called defendant as a witness, defendant did not object nor affirmatively assert his right to refuse to testify. In defendant's motions in limine, he discussed Curlee, supra, but did not object to being called as a witness for the People. Accordingly, we conclude defendant forfeited the equal protection argument by failing to object at the trial court. (People v. Rogers (2006) 39 Cal.4th 826, 854.)
Because defendant forfeited the issue, we do not address the merits of the equal protection contention. (People v. Rogers, supra, 39 Cal.4th at p. 854.) In defendant's motions in limine, he discussed Curlee and wrote, "[Defendant] may waive such privilege and testify by his choice." Due to (1) defendant's awareness of Curlee; and (2) the lack of objection on defendant's part, one could infer that defendant chose not to object. Although we sometimes address the merits of an issue despite a defendant's forfeiture, we decline to delve into the substance of the equal protection contention because, based on this record, defendant may have chosen not to object.
Defendant contends he did not forfeit the issue because, in December 2015, when defendant testified, there was no "statewide binding precedent" establishing that SVPs had the right to refuse to testify. Curlee, which held SVPs and NGIs are similarly situated for purposes of being compelled to testify at commitment hearings, was filed on May 20, 2015. (Curlee, supra, 237 Cal.App.4th at p. 720.) Therefore, at the time defendant testified, there was case law reflecting one appellate court had concluded SVPs had the right to refuse to testify. A split of authority existed due to a Third District case. (People v. Leonard (2000) 78 Cal.App.4th 776, 789-790, 791 [defendant can be People's witness].)
Defendant discussed Curlee in his motions in limine. Because Curlee was filed months prior to defendant's testimony, defendant should have objected to being called as a witness for the People on equal protection grounds or affirmatively asserted his right to refuse to testify, so as to remedy the issue in the trial court or preserve the issue for appeal.
Defendant contends he did not forfeit the issue because he did not knowingly and intelligently waive his right to remain silent. Defendant has asserted his right of equal protection was violated. Defendant cites no law reflecting an issue of equal protection is preserved for appeal unless a defendant expressly waives the issue. Contrary to defendant's position, our Supreme Court has held issues of equal protection are forfeited unless the defendant objects in the trial court. (People v. Rogers, supra, 39 Cal.4th at p. 854.) Therefore, we are not persuaded that the equal protection issue was preserved for appeal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.