Opinion
NOT TO BE PUBLISHED
Charles S. Crandall, Judge, Superior Court County of San Luis Obispo. Super. Ct. No. F346095.
Linn Davis, under appointment by the Court of Appeal, for Defendant and appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Michael Omega Hardy appeals an order determining him to be a sexually violent predator ("SVP") and committing him to the Department of Mental Health for an indeterminate term of treatment. (Welf. & Inst. Code, § 6600 et seq.) We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
Hardy has a long history of forcible sexual acts against women, and has admitted to the attempted rape or rape of 17 victims. He has described himself as a "cat on safari, looking for prey," and having a "Hitler" attitude toward his victims' suffering.
In 1969, Hardy was convicted of rape in Indiana and involuntarily committed to a state hospital as a "criminal sexual psychopath." He escaped from the state hospital and traveled to California. In 1971, he raped Juanita A. and in 1972, Mary S. in Los Angeles. Hardy forced his way into the women's homes, threatened the women with harm, and raped them. The women were strangers to Hardy, and Mary S. was then 69 years old.
Following his convictions, Hardy was found to be a mentally disordered sexual offender and committed to Atascadero State Hospital and then Patton State Hospital. He received sex offender treatment in the hospitals, and later in an outpatient program. Hardy soon absconded from the outpatient program, but was apprehended and sentenced to prison.
Within four months of his July 1981, release from prison, Hardy committed two rapes in San Luis Obispo County. Hardy entered the homes of his victims, Dora M. and L., threatened the women with harm, and raped them. The women were strangers to Hardy, and Dora M. was then 59 years old. Following his conviction of two counts of rape, Hardy received a 42-year term of imprisonment.
On August 20, 2004, the San Luis Obispo County prosecutor filed a petition to commit Hardy as an SVP pursuant to section 6600. Hardy submitted the matter upon the psychological reports. The trial court concluded that Hardy met the requirements of section 6600 beyond a reasonable doubt, and it committed him to the Department of Mental Health for treatment. On August 3, 2005, the prosecutor filed a petition to extend Hardy's commitment for two years. Prior to trial, the prosecutor filed an amended petition, based upon a recent amendment to section 6604, to extend Hardy's confinement for an indeterminate term.
At trial, Doctor Dana Putnam, a clinical and forensic psychologist, testified that he had interviewed Hardy previously and had evaluated him on three occasions under the SVP law. Putnam also reviewed Hardy’s criminal, prison, and state hospital records. He opined that Hardy was an SVP within the meaning of the law.
Doctor Putnam opined that Hardy suffers from a type of paraphilia, sexual arousal from nonconsenting sexual activity, among other things. He opined that Hardy’s paraphilia is deviant, chronic, and lifelong. Putnam testified that treatment of paraphilia involves medication to reduce sexual drive, and learning successful coping strategies. He opined that treatment could be "somewhat successful," and stated that Hardy has not engaged in treatment at Atascadero State Hospital. Putnam testified that Hardy lacks the volition to control his sexual conduct, in part pointing to his 1981 rape convictions following imprisonment and sexual offender treatment.
Doctor Putnam also opined that there exists a "serious and well-founded risk" that Hardy will commit future predatory sexual acts. In part, his opinion rested upon the "Static-99," a moderately predictive risk assessment tool. Hardy scored at the highest possible risk level, even considering his age (nearly 60 years old). Putnam opined that Hardy physically is capable of raping an elderly, disabled victim.
Doctor Putnam also administered the "Hare Psychopathy" test to Hardy in an interview format. Hardy scored in the high range with a score that describes him as a "prototypical psychopath." This measurement also indicates that Hardy is a high risk of reoffending.
Doctor Christopher North, a psychologist and experienced SVP evaluator, interviewed Hardy previously and reviewed his criminal, state hospital, and psychological records. North opined that Hardy suffers, in part, from a coercive paraphilia, characterized by forcible sexual acts with nonconsenting partners. He believed that Hardy's paraphilia is incurable because it is "so ingrained and so strong."
Doctor North testified that Hardy had not participated in the treatment program at Atascadero State Hospital. Rather, he preferred self-treatment, or therapy "in isolation." North measured Hardy's risk of reoffending with the Static 99, and concluded that he is at high risk of reoffending. North opined that Hardy satisfies the statutory SVP criteria.
Doctor Randall Scharlach testified that Hardy took a prescribed hormone to treat his prostate cancer. The hormone affected his sexual interest and might permanently decrease sexual interest.
Doctor Theodore Donaldson, a clinical psychologist, testified that Hardy does not currently evidence paraphilia or an inability to control predatory sexual behavior. He opined that Hardy has only a small chance of reoffending.
Hardy testified that he committed rape or attempted rape 19 times, including raping the same victim on three separate occasions. He stated that he had reformed and was certain that he would not commit rape again. His reformation arose from altering his self-perception and inability to relate to women, becoming religious, and developing "a [relapse] plan of operation."
Doctor Robert Halon, a forensic psychologist, opined that Hardy had been a paraphilic rapist in the past, but not now. His opinion rested upon Hardy's lack of recent paraphilic behavior and his age. Halon also opined that Hardy's age and hormone medication reduced his risk of reoffending. He opined that the Static-99 assessment is invalid as a measure of reoffending because it rests upon a Canadian population studied 35 years ago.
The jury found that Hardy was an SVP within the meaning of section 6600 et seq., beyond a reasonable doubt. The trial court ordered him committed to the Department of Mental Health for an indeterminate term of treatment.
Hardy appeals and contends that: 1) insufficient evidence supports the finding that he is an SVP; 2) the trial court denied him due process of law by precluding written evidence of his relapse prevention plan; 3) the trial court erred by refusing to instruct the jury to determine whether custody in a secure facility is necessary; and, 4) he was improperly committed to an indeterminate term pursuant to recent amendments to the SVP law.
DISCUSSION
I.
Hardy argues that insufficient evidence supports the finding that he is an SVP pursuant to statutory criteria. He asserts that his continued commitment, absent substantial evidence of an existing mental disorder and current dangerousness, violates federal and state principles of due process of law. (Kansas v. Hendricks (1997) 521 U.S. 346, 358; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162 [SVP finding may not rest upon prior crimes absent evidence of current mental disorder making person a danger to others].)
Hardy contends that there is no evidence of an existing mental disorder and that the state's expert witnesses relied upon 25- to 35-year-old convictions of sexual crimes. He adds that the hospital records reflect no sexual or antisocial behavior during his last confinement.
Hardy also asserts that there is no substantial evidence of dangerousness. (Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 1162; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.) He questions the validity of the Static-99 assessment, because it is an older study that considered younger Canadian men. He points out that he is nearly 60 years ago, and therefore a low risk for reoffending. Hardy adds that the hormone treatment for his prostate cancer has diminished his sexual desire and Doctor Scharlach testified that the diminution may be permanent.
In review of the sufficiency of evidence to support a person's civil commitment as an SVP, we apply the substantial evidence standard of review. (People v. McKee (2008) 160 Cal.App.4th 1517, 1552.) We review the record most favorably to the judgment, and draw all reasonable inferences therefrom, to determine whether reasonable and credible evidence supports the decision of the trier of fact. (Ibid.) We do not reweigh the evidence nor do we substitute our reasonable inferences for those drawn by the trier of fact. (Ibid.) Moreover, the credibility of witnesses, including expert witnesses, is the sole province of the trier of fact. (Id., at pp. 1552-1553.)
Sufficient evidence supports the SVP finding here. Doctor Putnam opined that Hardy suffers from the lifelong and chronic mental disorder of paraphilia. Despite incarceration and early sex offender treatment, Hardy continued to commit rape. Moreover, Hardy declined to be interviewed by the state's expert witness, and he has refused treatment at Atascadero State Hospital. (People v. Sumahit (2005) 128 Cal.App.4th 347, 353-354 [defendant forfeits claim of lack of present dangerousness when he declines to be interviewed by state's expert witnesses].) The fact that Hardy has not committed sexual crimes in the controlled hospital environment does not prove that he no longer suffers from a mental disorder that poses a danger to others. (Id. at p. 353.) In the hospital setting, Hardy lacks access to elderly disabled female victims whom he can attack by surprise. Moreover, Doctor Putnam opined that Hardy is physically capable of raping an elderly victim. Indeed, in the 2003 commitment proceeding, Hardy conceded that he satisfied the SVP criteria.
Doctor Putnam stated that he evaluated Hardy three times, but only interviewed him twice: "If he agrees to interview, I do interview him."
Although the hospital records indicate that Hardy has not committed sexual crimes in the hospital, in 2004, hospital staff found an eight-foot length of leather in his possession. In 1989, Hardy also wrote an article that he entitled, "The Rape Advisory," concerning home and personal security to avoid rapists and other violent criminals, and describing situations inviting sexual attack. Doctors Putnam and North also provided sufficient evidence that Hardy poses a serious and well-founded risk that he would reoffend if released. The Static-99 and Hare Psychopathy assessments reveal that Hardy is at high risk for reoffending. Despite earlier treatment, Hardy reoffended in 1981. After his incarceration for the San Luis Obispo rapes, he has refused to participate in treatment. Doctor North testified that Hardy's self-devised treatment plan would not succeed in isolation, and that a successful treatment plan involves several phases and interaction with peers and professionals. The jury was entitled to weigh and accept the expert opinions presented by the state, and reject those of the defense.
II.
Hardy contends that the trial court denied him due process of law by precluding evidence of his written relapse-prevention plan, "Keys To Michael Hardy's Relapse Prevention Program." He claims the court's error is prejudicial, particularly in view of evidence that offenders at age 60 are at low risk of reoffending.
We granted Hardy's request to take judicial notice of the document.
The trial court excluded evidence of the five-page relapse-prevention plan on grounds of hearsay and Evidence Code section 352. In part, the court reasoned that although the document had "minimal relevance," it might confuse the jury and consume undue time because it referred to persons and ideas that Hardy had not mentioned in testimony.
The trial court did not abuse its discretion by excluding evidence of the written plan. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [standard of review of evidentiary rulings].) Although Hardy testified concerning his relapse-prevention plan, the written document contains unexplained statements and references that might confuse the jury and consume undue time. The abuse of discretion standard of review "is particularly appropriate when, as here, the trial court's determination of admissibility involved questions of relevance . . . and undue prejudice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Moreover, application of the ordinary rules of evidence does not impermissibly infringe upon the defendant's right to present a defense. (People v. Lawley (2002) 27 Cal.4th 102, 155.) The trial court retains a traditional and inherent power to control the admission of evidence in the interests of orderly procedure and avoidance of prejudice. (Ibid.) Hardy testified regarding his relapse-prevention plan and presented his defense regarding a lack of dangerousness. The trial court properly applied Evidence Code section 352 and determined the document was minimally relevant and likely would confuse the jury.
III.
Hardy argues that the trial court erred by refusing to instruct the jury to determine whether custody in a secure facility is necessary to ensure that he is not a danger to others. (People v. Grassini (2003) 113 Cal.App.4th 765, 777.) He asserts the instruction is proper because he testified regarding his voluntary relapse-prevention program and amenability to treatment. Hardy contends the error is prejudicial beyond a reasonable doubt because the trial court excluded evidence of his written relapse-prevention plan.
People v. Grassini, supra, 113 Cal.App.4th 765, 777, concluded that the trial court must instruct the jury to determine whether custody in a secure facility is necessary to ensure that the defendant is not a danger to others where there is evidence that the defendant is amenable to treatment. (Id., at pp. 775-778.)
The trial court did not err because the evidence established that Hardy has refused treatment at Atascadero State Hospital during his confinement. Moreover, there was no evidence of alternative community treatment in nonsecure settings. Hardy only presented evidence of his self-treatment plan and support from friends and family. Grassini requires an instruction regarding the necessity of a secure facility only where there is evidence of amenability to voluntary treatment. (People v. Calderon (2005) 124 Cal.App.4th 80, 92.) Here Hardy denied that he had a current mental disorder and that he was a danger to others by reason of his disorder.
IV.
For several reasons, Hardy argues that the trial court improperly committed him to an indeterminate term of commitment.
First, he points out that prior to his recommitment trial, section 6604 was amended by the Legislature and by initiative to require an indeterminate term of commitment. He contends the amendment and initiative also repealed all provisions authorizing recommitment proceedings. Hardy reasons therefore that his recommitment proceedings are null.
People v. Shields (2007) 155 Cal.App.4th 559, 563-564, rejected the argument Hardy makes here. Shields concluded that the clear intent of the 2006 statutory amendment was "to enhance-not restrict-confinement of persons determined to be SVP's." (Id., at p. 563.) Acceptance of Hardy's argument would violate well-established principles that we must not construe a statute literally if it would result in absurd consequences that the Legislature did not intend. (Id., at p. 564.) We agree with Shields that the indeterminate term provisions of section 6604 apply to those persons confined as SVP's for two-year terms under the former version of section 6604.
Second, Hardy asserts that the amended statutes regarding indeterminate commitments may not be applied retroactively to petitions filed prior to the effective dates of the amendments. He argues that the amendments adversely affect statutorily conferred liberty rights and operate prospectively only.
The amended statutes are silent regarding retroactivity. The critical question in determining retroactivity, however, is whether the last act or event necessary to the application of the statute occurred before or after the statute's effective date. (People v. Grant (1999) 20 Cal.4th 150, 157.) "A law is not retroactive 'merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.'" (Ibid.) Here the important prerequisites upon which Hardy's commitment depended – findings of current mental disorder and likelihood of future violent sexual crimes – occurred after the effective date of the amendments. We conclude therefore that the amendments apply to him.
Third, Hardy asserts that the recent amendments to the SVP scheme – indeterminate terms, lesser number of predicate convictions, adding to the list of qualifying prior offenses, shifting of burden of proof to person committed – suggest a punitive scheme that denies him due process of law, constitute an ex post facto law, and violate principles of equal protection of the law.
People v. McKee, supra, 160 Cal.App.4th 1517, 1534-1542, persuasively and thoroughly discusses many of the constitutional concerns raised here regarding the SVP amendments. Relying upon Jones v. United States (1983) 463 U.S. 354, McKee concludes that the indefinite SVP civil commitment scheme does not violate due process of law even though the committed person must prove by a preponderance of evidence that he is entitled to release. (Id., at p. 1538.) McKee notes that findings under the SVP law are made beyond a reasonable doubt at the initial commitment proceeding. (Id., at pp. 1538-1539.) "There is no logical reason to conclude McKee's initial section 6604 civil commitment for an indefinite term, subject to subsequent section 6605 annual examinations and potential annual petitions for release pursuant to sections 6605 and 6608, is inadequate to protect McKee's federal constitutional right to due process of law." (Id., at p. 1540.) McKee also discussed and rejected arguments that the amended SVP law is punitive, denies equal protection of the law, and violates the constitutional prohibition on ex post facto laws. (People v. McKee, supra, 160 Cal.App.4th at pp. 1542-1546.) We also reject Hardy's contentions regarding the constitutionality of the SVP amendments for reasons set forth in McKee, and People v. Riffey (2008) __ Cal.App.4th __ - [application of SVP amendment to pending petition not a retroactive application, did not violate ex post facto prohibition, due process of law, or equal protection of law].
The order is affirmed.
We concur: YEGAN, J., PERREN, J.