People v. OttoPeople v. Otto
This appeal arises from Jimmie Dale Otto‘s commitment under the Sexually Violent Predators Act (SVP Act or the Act). (
I. OVERVIEW OF THE SVP ACT
When the Legislature enacted the SVP Act in 1995, it explained the purpose of the Act as identification of incarcerated individuals who “are not safe to be at large and if released [would] represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence” and confinement and treatment of those individuals, if they are “found tо be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt.” (Stats.1995, ch. 763, § 1, No. 10 West‘s Cal. Legis. Service, p. 4611.) The process for determining whether a convicted sex offender meets the requirements for commitment under the SVP Act takes place “in several stages, both administrative and judicial.” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145, 81 Cal. Rptr.2d 492, 969 P.2d 584.) The judicial process under the SVP Act begins with the filing of a petition. (See Hubbart, supra, 19 Cal.4th at p. 1146, 81 Cal.Rptr.2d 492, 969 P.2d 584; see also
If the court finds the requisite probable cause, “the court orders a trial to determine whether the person is [a sexually violent predator (SVP)] under section 6600.” (Hubbart, supra, 19 Cal.4th at p. 1146, 81 Cal.Rptr.2d 492, 969 P.2d 584; see also
“Second, an SVP must have been `convicted of a sexually violent offense against two or more victims.’ [Citation.]” (Hubbart, supra, 19 Cal.4th at p. 1145, 81 Cal. Rptr.2d 492, 969 P.2d 584, fn. omitted; see also
At the trial, the trier of fact is charged with determining whether these requirements for classification as an SVP have been established “beyond a reasonable doubt.” (
II. FACTUAL AND PROCEDURAL BACKGROUND
On October 9, 1991, Otto entered a plea of nolo contendere to four felony counts of lewd and lascivious touching of a child less than 14 years of age (
On February 27, 1999, the People filed a petition under
A bench trial was held from March 3 through March 5, 1999. At the trial, three experts testified for the People and one expert testified for Otto. The first witness was Dr. Gary Zinik, a clinical forensic psychologist, who testified that he had reviewed numerous documents, including the presentence report, and had interviewed Otto for one and one-half hours. Dr. Zinik reported that Otto lived with the family of K.W. for a number of months and that Otto stated that he had not known the child well before he moved in with the family. Otto denied molesting K.W. and claimed that he merely tickled K.W. on her bare bottom as she ran down the hall. Relying on the presentence report, Dr. Zinik recounted K.W.‘s allegation that Otto had molested her a number of times while he lived in her home. K.W. claimed that
With respect to M.S., who was nine years оld at the time of the molestations, Dr. Zinik reported that Otto denied ever touching this child. Dr. Zinik read Otto the portion of the presentence report where M.S. claimed that on one occasion Otto had penetrated her vagina with his fingers and on another occasion, he broke into her bedroom, penetrated her vagina with his fingers and raped her. Dr. Zinik concluded that this crime was also a violent predatory sex offense, finding the predatory component satisfied because Otto had lived with the S. family for six weeks when the acts of molestation occurred.
Otto also denied any sexual contact with A.S., M.S.‘s younger sister. Dr. Zinik testified that A.S. reported that when she was seven years old, Otto penetrated her vagina with his fingers on a number of occasions and orally copulated her as well. Dr. Zinik concluded that this crime was predatory and offered the same reasons for his conclusion as he had given for Otto‘s crime with respect to M.S.
With respect to D.S., the younger brother of M.S. and A.S., Otto again denied any sexual contact. According to D.S., however, Otto touched D.S.‘s genitals five times over his clothing.
Dr. Zinik also testified as to information that he gathered from Washington State court records. A.C., a daughter of Otto‘s second wife, reported that when she was seven years old, Ottо sexually molested her on a number of occasions over a two-year period. These molestations included digital penetration, attempted intercourse and oral copulation. Otto also masturbated in A.C.‘s presence. Otto was charged with two counts of first-degree statutory rape in the State of Washington. When Dr. Zinik inquired about these accusations, Otto denied molesting A.C. Dr. Zinik noted however that another psychologist, Dr. Charlene Steen, indicated that Otto had admitted to sexually molesting A.C.
Otto moved from Washington to Kansas where he met his third wife. Otto‘s third wife had two daughters, J.H. and R.H. Otto admitted molesting J.H., the older daughter, beginning when she was approximately 12 years old. At some point, the family moved to California and Otto began molesting, R.H., J.H.‘s younger sister. R.H. was 11 years old at the time. Otto admitted these acts of molestation as well.
Dr. Zinik concluded that Otto suffered from the following diagnosable mental disorders: 1) pedophilia, sexually attracted to females, nonexclusive type; 2) polysubstance abuse; 3) alcohol abuse; 4) personality disorder not otherwise specified with antisocial traits. Dr. Zinik also concluded that Otto suffered from an impulse control disorder, which impaired his emotional and volitional control. Dr. Zinik explained that Otto‘s third wife, Janice, learned that Otto was molesting her children. Otto promised Janice that he would stop molesting children and even agreed to convert to the Mormon religion, yet he nevertheless resumed his sexual molestation of children. Dr. Zinik concluded that Otto was likely to engage in sexually violent criminal behavior in the future because Otto continued to molest children even after being discovered,
Dr. Charles Jackson, a psychologist, was the second expert to testify. Dr. Jackson‘s opinions were based exclusively on review of documents because Otto would not consent to an interview. Dr. Jackson testified that he concluded Otto “had been convicted of a sexually violent crime against two or more victims that were predator[y] in nature.” The first qualifying crime was the molestation of K.W. Dr. Jackson concluded that the molestation of K.W. was predatory because Otto had lived in the home of K.W.‘s parents for only a brief period of time. Dr. Jackson concluded that the offense constituted “substantial sexual conduct” because Otto had touched K.W.‘s vagina skin-to-skin on several different occasions, which Dr. Jackson concluded constituted masturbation.
Dr. Jackson found Otto‘s molestation of M.S. to be a second qualifying offense. His reasons for finding a рredatory relationship were essentially the same as those that he had given for K.W. He concluded that the molestation of M.S. constituted substantial sexual conduct because Otto inserted his three fingers into M.S.‘s vagina and had sexual intercourse with her. Dr. Jackson testified that Otto‘s molestation of A.S. constituted a third qualifying offense, again because of digital penetration and the brief, casual relationship between Otto and the victim.
Dr. Jackson concluded that Otto had a history of substance abuse, even while he was incarcerated, and diagnosed Otto as suffering from pedophilia, polysubstance abuse, personality disorder NOS (not otherwise specific) with antisocial and narcissistic features. Dr. Jackson explained that Otto scored a 3 on the RRASOR (Rapid Risk Assessment for Sexual Offense Recidivision) screening test for recidivism, a score that indicates a 24.8 percent recidivism rate at a 5-year level and a recidivism rate of 36.9 percent at the 10-year level. Dr. Jackson considered Otto‘s lack of responsibility, his dishonesty, and his lack of empathy, in addition to other factors, to conclude that Otto was more likely than not to reoffend.
Dr. Shoba Sreenivasan, a psychologist, was the People‘s final expert witness. Dr. Sreenivasan interviewed Otto and reviewed numerous documents, including the presentence report. Dr. Sreenivasan testified that she concluded that Otto had been convicted of sexually violent predatory offenses against two or more victims. The two qualifying offenses were the digital and penile penetration of M.S. and the digital penetration of A.S. Dr. Sreenivasan also reported that Otto admitted molesting three stepchildren.
Dr. Sreenivasan concluded that Otto suffered from pedophilia, same and opposite sex, nonexclusive type and stimulant dependency, cannabis abuse and personality disorder with narcissistic and antisocial features. It was Dr. Sreenivasan‘s opinion that as a result of Otto‘s mental disorder it was more likely than not that Otto would commit sexually violent criminal behavior.
Dr. Robert Leon Halon, also a licensed psychologist, testified on behalf of Otto. Dr. Halon interviewed Otto and reviewed numerous documents, including the presentence report. Otto admitted to Dr. Halon that he had molested A.C., J.H., and R.H. Dr. Halon concluded that Otto had a heavy substance abuse problem but found no indications of mental disorders or impairment concerning cognition affect or volition. Dr. Halon would not comment on whether Otto had committed two sexually violent predatory offenses аnd declined to opine whether Otto was more likely than not to commit additional sex offenses. Dr. Halon testified that he could find no evidence that Otto had impaired volition and hence could not find that Otto had a condition that predisposed him to commit sexually violent crimes. Based on a RRASOR score, Dr. Halon concluded that the probability of Otto reoffending in the future did not rise to the level of likely to reoffend. Dr. Halon concluded that Otto was “a prime candidate for outpatient treatment with close supervision, no confidentiality
No other witnesses testified at the trial, but at the People‘s request, the trial court admitted the abstract of judgment and presentence report from Otto‘s felony convictions for molesting K.W., A.S., M.S. and D.S.; a 1991 evaluation by Dr. Steen that accompanied the presentence report; the written psychological evaluations of Drs. Zinik, Jackson and Srеenivasan; and the notification of evaluation. At Otto‘s request, the trial court admitted the written psychological evaluations of Drs. Halon and Owen. The report of Dr. Owen, who did not testify at the trial, concluded that while Otto had been convicted of sexually violent predatory offenses against two or more victims and while Otto had a diagnosable mental disorder, Otto was not a sexually violent predator because he was not likely to engage in sexually violent criminal behavior as a result of his diagnosed mental disorder. Dr. Owen reached the latter conclusion because in his opinion the findings of an actuarial analysis were equivocal, Otto had taken personal accountability for his crimes and Otto had not demonstrated a preoccupation with children.
On March 5, 1999, the trial court found beyond a reasonable doubt that Otto was an SVP within the meaning of
III. DISCUSSION
A. Admission of Hearsay Evidence
Otto raises a number of issues on appeal. He first contends that reversal is required because the trial court admitted a presentence report that contained hearsay and also admitted reports and testimony of experts that recounted the hearsay cоntents of the presentence report.3 The parties agree that this issue turns on the meaning and scope of
Otto‘s argument on this issue is twofold. First, Otto contends that while
In In re Malinda S., our Supreme Court addressed a similar contention raised with respect to the admissibility at a
The Supreme Court explained that “neither [
In reaching that conclusion, the court reviewed its earlier decision in Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 189 Cal.Rptr. 512, 658 P.2d 1313 (Daniels), where it concluded that the Department of Motor Vehicles could not rely on hearsay in accident reports as the sole basis for a license suspension. (Malinda S., supra, 51 Cal.3d at p. 377, 272 Cal.Rptr. 787, 795 P.2d 1244.) The Malinda S. court distinguished Daniels, in part because “[u]nlike a report filed by one of the drivers involved in an accident, ... social studies ... are prepared by disinterested parties in the regular course of their professional duties. These elements of objectivity and expertise lеnd them a degree of reliability and trustworthiness not present in Daniels.” (Id. at p. 377, 272 Cal. Rptr. 787, 795 P.2d 1244, fn. omitted.)
The court also concluded that the language of
The Malinda S. decision also looked to the consistent interpretation that the Courts of Appeal had given to Civil Code
Like the Malinda S. decision, we must consider whether a statute, in our case
Moreover, the presentencе report and the police reports upon which the presentence report largely relies were “prepared by disinterested parties in the regular course of their professional duties,” lending the documents elements of reliability and trustworthiness. (Cf. Malinda S., supra, 51 Cal.3d at p. 377, 272 Cal.Rptr. 787, 795 P.2d 1244.) The victim hearsay statements contained in a police report that are used at an SVP trial bear an additional indicia of reliability in that the defendant will have either pled guilty or nolo contendere or been convicted of a crime involving that victim. Otto argues that we should not treat his plea of nolo contendere in the same manner as a guilty plea or conviction. However, Penal Code
Malinda S. also found it important that the parent had the opportunity to cross-examine the preparer of the report. Otto contends that he had no such opportunity here. We presume that Otto means that he did not have the opportunity to examine
We additionally note that the Act as originally enacted did not permit the use of documentary evidence. (See Stats.1995, ch. 763, § 3, No. 10 West‘s Cal. Legis. Service, p. 4611.) The Legislature modified the Act to permit such use after “[p]rosecutors” complained that “they [had to] bring victims back to court to re-litigate proof of prior convictions.” (Sen. Com. on Crim. Proc., Civil Commitment: Sexually Violent Predators, Analysis of Assem. Bill No. 3130 (1995-1996 Reg. Sess.) as amended July 7, 1996, com. 4, p. 9; see White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572 fn. 3, 88 Cal.Rptr.2d 19, 981 P.2d 944 [taking judicial notice of committee report].) This complaint implies a desire to use documentary evidence in lieu of the victim‘s actual testimony.
This case is decidedly different from Whitman v. Superior Court (1991) 54 Cal.3d 1063, 2 Cal.Rptr.2d 160, 820 P.2d 262. In Whitman, the Supreme Court concluded that Penal Code
As we stated at the outset, however, Otto‘s challenge is twofold. In addition to arguing that the statute does not constitute an exception to Evidence Code
To the extent Otto relies on the confrontation clause contained in the state and federal Constitutions, his challenge fails because an SVP commitment proceeding is a civil, not a criminal proceeding (In re Parker (1998) 60 Cal.App.4th 1453, 1461, 71 Cal.Rptr.2d 167), and “both the federal and state Constitutions confine the express right of confrontation to criminal defendants....” (Malinda S., supra, 51 Cal.3d at p. 383 fn. 16, 272 Cal.Rptr. 787, 795 P.2d 1244, italics added.) Cases, such as Whitman, that discuss a right to confrontation premised on the confrontation clause are therefore inapplicable. (See Whitman, supra, 54 Cal.3d at p. 1074, 2 Cal.Rptr.2d 160, 820 P.2d 262, citing Ohio v. Roberts (1980) 448 U.S. 56, 63-65, 100 S.Ct. 2531, 65 L.Ed.2d 597 [evaluating confrontation clause].)
In People v. Superior Court (Howard), supra, 70 Cal.App.4th 136, 82 Cal.Rptr.2d 481, the Sixth District considered whether the admission into evidence at an SVP probable cause hearing of hearsay victim statements contained in probation reports violated the due process rights of the defendant. (Howard, supra, 70 Cal.App.4th at pp. 154-155, 82 Cal.Rptr.2d 481.) The Howard court addressed the first two due process factors as follows: “[W]hile the alleged sexually violent predator has a strong liberty interest, the government also has a strong interest in protecting the public from persons who are dangerous to others. [Citation.] If the defendant‘s sexually violent offenses can be established only by looking to the record of prior convictions, this additional procedural burden will severely limit the People‘s ability to protect the public by obtaining commitments under the SVP Act. [¶] ... If, as here, the defendant pled guilty before the preliminary hearing, or the victims’ testimony was not sufficient to establish the details of the offense as required by the SVP Act, the state would never be able to meet its burden.” (Howard, supra, 70 Cal.App.4th at p. 155, 82 Cal.Rptr.2d 481.)
The Howard decision also addressed the last two due process factors: “the proceedings mandated by the Act are adequate to enable a defendant to challenge the People‘s documentary evidence. By doing so, the defendant has the opportunity to thoroughly present his side of the story. Moreover, hearsay statements are obviously vulnerable to challenge by defendant as arguably unreliable summaries of victim and witness interviews, and the defendant may rebut the hearsay statements by providing his own version of the details underlying his offenses.” (Howard, supra, 70 Cal.App.4th at pp. 154-155, 82 Cal. Rptr.2d 481.) We find the reasoning of Howard persuasive.
Otto urges us not to follow Howard because Howard concerned a probable cause hearing, not a trial, as is this case here. This distinction between Howard and the circumstances of this case affects the “private interest” component of the Howard court‘s analysis. At the SVP trial, the defendant fаces a potential deprivation of liberty for two years, while at the probable cause hearing, a defendant‘s private interest is in his liberty during the
Otto also contends that People v. Reed (1996) 13 Cal.4th 217, 52 Cal.Rptr.2d 106, 914 P.2d 184, not Howard, should guide our analysis. We agree with the Howard court‘s rejection of a similar argument made in that case. The Howard court reasoned as follows: “In Reed, the California Supreme Court hеld that excerpts from a probation officer‘s report were inadmissible hearsay which could not be used to prove that defendant‘s prior conviction was a serious felony involving use of a dangerous or deadly weapon. [Citation.] The court noted that it had previously ruled that the People may prove prior convictions only by evidence obtained from the record of the prior conviction, and may not utilize live witnesses or inadmissible evidence. [Citation.] This rule effectively `“bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of a speedy trial.“’ [Citation.]” (Howard supra, 70 Cal.App.4th at p. 153, 82 Cal.Rptr.2d 481.)
The Howard court distinguished the effect of
In sum we conclude that
B.-D.**
IV. DISPOSITION
We affirm the judgment.
HANING, J., and STEVENS, J., concur.