Filed 10/23/14 P. v. Graves CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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.
37
People v. Graves CA4/2
Combined Opinion