P. v. Marentez 2/23/10 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B206971

Case Date: 06/24/2010

Preview:Filed 2/23/10 P. v. Marentez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. PAUL RUDY MARENTEZ, Defendant and Appellant.

B206971 (Los Angeles County Super. Ct. No. ZM002909)

APPEAL from a judgment of the Superior Court of Los Angeles County. Joan Comparet-Cassani, Judge. Affirmed in part; modified in part; remanded in part. Rudy Kraft, 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, Paul M. Roadarmel, Jr., and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent. _______________

Following a jury trial, appellant Paul Rudy Marentez was adjudged to be a sexually violent predator within the meaning of Welfare and Institutions Code section 6600, et seq. (the Sexually Violent Predator Act, hereafter "SVPA.") The trial court ordered appellant to be committed to the Department of Mental Health for a period not to exceed two years. Appellant appeals from the trial court's judgment and order, contending that the Department of Mental Health used "underground" regulations to illegally commit him as a Sexually Violent Predator (hereafter "SVP") and his trial counsel was constitutionally ineffective in failing to make a pre-trial challenge to the validity of the SVP petition. Appellant also contends that the trial court erred in admitting evidence of a 1980 charge of which he was acquitted; permitting the prosecution to present evidence of the SVP treatment program at state hospitals but barring appellant from presenting evidence that those programs were flawed; and making numerous rulings which interfered with his ability to present his case and deprived him of a fair trial. Appellant further contends that the current version of the SVPA is unconstitutional because it caused him to be committed in violation of his equal protection, due process, ex post facto and double jeopardy rights. Respondent contends that the trial court's imposition of a two-year commitment was unauthorized and must be corrected to an indeterminate term. We agree with respondent that appellant's term must be corrected to the legally mandated indeterminate term. In accordance with the California Supreme Court's decision in People v. McKee (2010) 47 Cal.4th 1172, we remand this matter for a hearing on appellant's equal protection claim. The court's judgment and order are affirmed in all other respects.
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All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. 2

Facts In 1980, appellant was charged with committing a lewd act on a child in violation of Penal Code section 288, but was acquitted in a court trial. The victim was a five-yearold girl, Veronica E. In a 1988 police interview with Long Beach Police Detective Nelson and in a 2007 interview with prosecution expert Dr. Malinek, appellant admitted wrongdoing and misconduct in 1980. Accordingly, details of the 1980 crime were relied on by the prosecution experts in forming their opinions and were conveyed to the jury. In 1988, appellant was convicted of one count of committing a lewd act on a child in violation of Penal Code section 288, subdivision (a). The victim in that case was a three-year-old boy, Marvin M. In 1993, he was convicted of two counts of committing a lewd act on a child. The victim in that case was a six-year-old boy, Matthew B. These were appellant's two qualifying convictions for purposes of the SVPA. The details of the three offenses were presented primarily through the testimony of prosecution expert witness Dr. Jack Vognsen. Dr. Vognsen, a psychologist, first interviewed appellant in 1998. In addition to his evaluation of appellant, Dr. Vognsen reviewed the Department of Corrections Penal Code section 969, subdivision (b), packet, relating to appellant's 1988 lewd act conviction (case number A041071), as well as the police reports. Dr. Vognsen also read the 47-page transcript of the police interview in that case. During the interview between appellant and Detective Nelson of the Long Beach Police Department, they spoke about the details of the incident and whether appellant would plead to the offense. Dr. Vognsen also spoke with appellant about his 1988 lewd act conviction. Appellant told Dr. Vognsen that he had been on a cocaine binge and was using alcohol at the time of the incident, and that he could not recall the incident. Appellant also said he pled guilty in that case. Appellant admitted to Dr. Vognsen that he committed the 1988 crime and his admissions became "clearer" over the years that Dr. Vognsen saw appellant.

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Dr. Vognsen gave the following description of the 1988 incident: On August 7, 1988, appellant approached Marvin M., a three-year-old boy, and lured him into a church bathroom by promising him candy. Inside the bathroom, appellant orally copulated Marvin and asked Marvin to orally copulate him. Marvin's mother became concerned when she lost sight of him. The mother found Marvin exiting the bathroom, and appellant was tying Marvin's shoelaces. Marvin was anxious and told his mother what happened. The mother went home and called the church to determine appellant's identity. The mother learned of the name of appellant's father and she contacted him and the police. According to the police report Dr. Vognsen reviewed, Marvin's mother told the police that appellant called her twice to warn her against calling the police. According to the mother, Marvin told her that the man pulled down his pants and sucked on his "rungita," which in Spanish means "penis." Marvin also said the man asked him to suck on his penis, and that when Marvin refused, they came out of the bathroom after hearing Marvin's mother calling for him. Dr. Vognsen also testified about the 1980 incident involving Veronica, a fiveyear-old girl. On May 16, 1980, Veronica's mother took Veronica and her sister to a shoe store, where appellant was working as a shoe salesman. None of the shoes fit Veronica, so appellant asked the mother if he could take Veronica to the back of the store where there were free shoes. The mother agreed. Appellant led Veronica to the back of the store and into a bathroom. Appellant placed her on a chair, took off her panties, and placed his finger inside her vagina. He also orally copulated her vagina, and they left the bathroom. After Veronica and her mother left the store, Veronica told her mother the man did something "bad" to her, and she described what happened. Veronica's mother called the police. Appellant was interviewed and he denied anything happened. Veronica was examined by a doctor. The doctor found no evidence of penetration, but observed that the vaginal opening was slightly reddened which could be consistent with the offenses she described. Dr. Vognsen opined that Veronica's testimony during the preliminary hearing was very consistent with what she told the police. A court trial was

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held, and appellant was acquitted of this incident based upon insufficient evidence. In his interviews with Dr. Vognsen, appellant denied molesting the girl. Dr. Vognsen also reviewed the Department of Corrections Penal Code section 969, subdivision (b), packet, relating to appellant's 1994 conviction (case number NA019542). Dr. Vognsen also reviewed the two related police reports, and he considered them in his evaluations of appellant from 1998 through 2007. Dr. Vognsen gave the following description of the facts underlying appellant's 1994 conviction: In 1993, appellant began dating Matthew's mother. They stayed together in his apartment for two or three months. On one occasion when appellant and the boy visited a swimming pool, appellant removed Matthew's pants and fondled his penis while they were in the bathroom. Appellant also had Matthew fondle appellant's penis. On a second occasion at a YMCA bathroom, appellant handled Matthew's penis while applying soap to Matthew. Appellant then made Matthew handle appellant's erect penis. In speaking with Dr. Vognsen, appellant denied molesting the boy. Dr. Vognsen found appellant's involvement with the care of children relevant in determining whether appellant established the relationship with Matthew's mother to victimize the children. Dr. Vognsen also found it significant that appellant had already been sanctioned by his parole officer for being around children, yet he nevertheless decided to involve himself with a woman who had two small children. When Dr. Vognsen questioned appellant about the 1994 case, appellant replied that he was suffering because his wife took his children away and moved to Pennsylvania. Appellant also said that when he was around children, he felt alive and young again. Dr. Vognsen opined that appellant's excuse was not credible, and that his attitude toward children was not uncommon among people who had sex with children. Dr. Vognsen opined the reason why appellant violated his parole was because of his sexual attraction to children. He also opined appellant believed he could do whatever he wanted, and that appellant could not be relied upon to follow rules. Dr. Vognsen performed various tests on appellant to assess his general cognitive ability. Dr. Vognsen opined appellant performed adequately on the tests and that he was 5

able to communicate in a straightforward way. Dr. Vognsen also performed an ink blot (Rorschach) test on appellant. As a result of this test, Dr. Vognsen opined appellant's use of logic was peculiar in that he skipped from one type of thought to another unrelated type of thought. Dr. Vognsen diagnosed appellant with several mental disorders, including antisocial personality disorder, substance abuse disorders, and pedophilia. To be diagnosed with pedophilia, the first criteria requires evidence of either sexually arousing fantasies, sexual urges, or behaviors that involve sexual activity with a prepubescent child. The second criteria requires active sexual urges or fantasies causing distress or interpersonal difficulty, and actions based on those urges. The third criteria requires that the subject be over 16 years old and at least a five year difference between the subject and the child. Dr. Vognsen opined that appellant's pedophilia was evident by the events that occurred in the A041071 and NA019542 cases. He also opined that, assuming the events in the 1980 case involving Veronica were true, this would also possibly support the diagnosis of appellant's pedophilia. Dr. Vognsen diagnosed appellant with pedophilia and antisocial personality disorder in 1998. He opined that it was commonly accepted that pedophilia is a lifelong condition, and not something "you get over." A pedophile could learn to control these pedophiliac urges. Dr. Vognsen opined appellant's mental disorder predisposed him to the commission of criminal sexual acts. Dr. Vognsen based this opinion on how appellant acted on his urges, which was evidence of his predisposition. Dr. Vognsen also opined that appellant was likely to engage in sexually violent predatory behavior as a result of his mental disorder without appropriate treatment or custody. In reaching this opinion, Dr. Vognsen relied upon four actuarial risk prediction instruments. One of these instruments was the Static 99, the most commonly used tool in 2008 to evaluate people under the SVP law. Appellant scored a six on the Static 99. Dr. Vognsen explained that a "six category" on the Static 99 fell into the "high risk" category. Under this category, there was a 39 percent chance of being convicted of a new sexual offense five years after release from custody, there was a 45 percent chance of being 6

convicted of a new sexual offense 10 years after release from custody, and a 52 percent chance of being convicted of a new sexual offense 15 years after release from custody. In addition to the Static 99, Dr. Vognsen also used three other tools to determine the risk of appellant committing a new sexual offense after release from custody - the "Rapid Sexual Offense of Sexual Recidivism" (RRASOR), the "Sex Offender Appraisal Guide" (SORAG), and the "Minnesota Sex Offender Screen Tool" (MNSOST-R). All three tools indicated appellant was a high risk for "sexual reoffending." Dr. Vognsen opined that as a result of appellant's diagnosed mental disorders of pedophilia and antisocial personality disorder, appellant still needed appropriate treatment and custody. One of appellant's victims, Matthew B., testified for the prosecution. He was 20 years old at the time of the trial. Matthew testified that he spent time with appellant during Matthew's visits to Matthew's mother's home in 1993 and 1994. While at a shower area inside the YMCA, appellant used his hands to wash Matthew's penis. Appellant touched Matthew's penis longer than Matthew liked and, at the time, Matthew could also see appellant's penis. Matthew did not recall whether he told the police that appellant's penis was erect. Matthew told his mother and grandparents what happened, but they did not believe him. Another incident between appellant and Matthew occurred inside a Stater Brother's store. Appellant followed Matthew into a bathroom stall. Appellant watched as Matthew "went to the bathroom," and appellant made Matthew watch as appellant urinated. Dr. Hy Malinek, a clinical and forensic psychologist, also testified as an expert witness for the prosecution. He interviewed appellant on July 12, 2007. Prior to the interview, Dr. Malinek reviewed evaluations or letters from Dr. Glen. In regard to the 1988 conviction in case number A041071, Dr. Malinek reviewed a police report, the probation officer's report, the transcript of the police interview, and the Penal Code section 969, subdivision (b), packet. During their interview, appellant told Dr. Malinek that he committed the crime in the shoe store in 1980. Dr. Malinek opined that appellant's act of luring children as he 7

did in 1988 was remarkably similar to what happened in 1980, involving Veronica at the shoe store. Dr. Malinek opined that even though appellant was acquitted of the 1980 incident, it was still significant because of the numerous factual similarities with the 1988 incident. In regard to the 1988 incident, appellant twice told Dr. Malinek during a 2007 interview that it was the result of a "pedophilic urge." Dr. Malinek opined that appellant had been convicted of a sexually violent criminal offense against one or more victims. He also opined appellant had a diagnosable mental disorder that predisposes him to the commission of criminal sexual acts. Like Dr. Vognsen, Dr. Malinek diagnosed appellant with pedophilia. Dr. Malinek explained that there was evidence of appellant's sexual interest in very young children, and that he engaged in oral copulation and digital penetration with children who were three, four, and six years old. Dr. Malinek opined that appellant acted on these interests on two, if not three, occasions. Dr. Malinek opined appellant's diagnosis of pedophilia is current because it is a chronic and lifelong condition. In assessing appellant, one of the risk assessment tools Dr. Malinek used was the Static 99. Appellant scored a six on this test, which Dr. Malinek concluded was associated with "high risk." In addition to the Static 99, Dr. Malinek also looked at other static and dynamic risk factors. He opined appellant had a sexual deviation which was consistent with high risk. Dr. Malinek testified that treatment was available for appellant at the Atascadero or Coalinga state hospitals, but appellant was not interested in the treatment, nor did appellant do the assignments in the self-help books he had obtained. Dr. Malinek did not believe appellant was amenable to outpatient treatment, nor did he believe that "Harbor Lights" or the "Ness Center Treatment" would be appropriate for appellant. Dr. Malinek opined there was a serious and well-founded risk that appellant could reoffend. Appellant testified in his own behalf. Appellant became involved with drugs as a teenager. He also had problems during his 10-year marriage, and he became involved in drug and alcohol use. He worked for nine years as an assistant manager at Al Murray's

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Shoe Store. Following his acquittal of the charges stemming from the 1980 incident, he returned to the shoe store and worked there for eight more years. Appellant's memory of the events leading to his conviction in case number A041071 in 1988 was hazy because of his drug and alcohol use. He pleaded guilty and gradually accepted responsibility for this crime. He believes he committed the crime because of drugs and alcohol. After he was released from prison, he met with Marina, his high school sweetheart. In August of 1993, appellant was with Marina and Matthew at the YMCA. Appellant went with Matthew into the locker room after swimming and they both showered. Appellant denied he washed Matthew in a way that was sexually enticing. Rather, appellant placed shampoo on Matthew's head. At appellant's parole hearing, he was found not guilty of sexual assault, but found guilty of violating his parole by being around children. Appellant was released from prison after five months. Appellant was then arrested based upon Matthew's statements to the police. Appellant pleaded no contest in that case (NA019542), and accepted a deal of three years plus two years for his prior conviction. Appellant had written hundreds of letters seeking treatment, and denied that he obsesses about children and sex, or that he has an ongoing interest in children and sex. Appellant admitted he used the term "pedophilic urge" with Dr. Malinek, but he did not know what it actually meant. However, appellant did not believe he would commit a sex crime against a child again. On cross-examination, appellant denied that he lured Marvin to the bathroom by promising him candy in case number A041071. He admitted he orally copulated Marvin in the bathroom, and that he pulled Marvin's pants down and sucked on his penis. Appellant believed he was at risk for reoffending, and that he had put off sex offender treatment with a professional for 10 years. Appellant also presented the testimony of two expert witnesses. Dr. Raymond Anderson, a psychologist, interviewed appellant several times over the years, and had spent approximately 15 or 16 hours with appellant. Dr. Anderson assessed appellant in 9

2000 using the Diagnostic and Statistical Manual (DSM). At that time, Dr. Anderson did not believe appellant qualified for a diagnosis of pedophilia and did not qualify as an SVP, even though he suffered two prior convictions for sexually molesting children. Dr. Anderson explained there was insufficient data to diagnose appellant with pedophilia, and that such a diagnosis would be improper if appellant was severely abusing cocaine and alcohol. Dr. Anderson found it significant that appellant denied he had any strong urges or that his sexual attraction was preferentially directed toward children. Dr. Anderson found there was insufficient evidence to rebut appellant's denial. Dr. Anderson opined that for the SVP to apply to someone, there had to be a nexus between the internal disorder and the offending. Substance abuse and other mental problems may lead to unusual sexual behavior. Dr. Anderson explained that severe drug users may molest a child, but that behavior would not necessarily be diagnostic of pedophilia. Dr. Anderson knew of the Static 99 but had never used it. He opined the Static 99 is not particularly useful in predicting serious sexual offenses, and it is a weak predictor of even minor sexual offenses. Dr. Anderson also opined that because appellant is Hispanic and American, that was enough to disqualify him from the Static 99. Dr. Anderson also opined the SORAG is not capable of predicting sexually violent recidivism, and that RRASOR predicts general sexual recidivism only minimally. Dr. Anderson opined appellant was not likely to reoffend based upon the definition of the SVP law, and that appellant's release plan would realistically keep him from reoffending in a sexually inappropriate way. He opined appellant's "reoffense potential" was three percent. Dr. William Vicary, appellant's second expert witness, was a psychiatrist who first interviewed appellant in September of 1999. He also saw appellant in April 2003, October 2003, September 2005, and December 2007. Dr. Vicary opined that although appellant met the first two SVP criteria, he did not meet the third criteria because it was not likely appellant would reoffend under the SVP Act. Dr. Vicary explained that most of the Static 99 factors were in favor of appellant not reoffending. He also based his 10

conclusion on appellant's age, and the changes he saw in appellant since he began seeing him. Dr. Vicary considered the three different incidents in which appellant was charged with crimes, and he did diagnose him with pedophilia, substance abuse problems, and anti-social personality disorders. However, Dr. Vicary found appellant's substance abuse to be an important factor in his crimes, and that appellant's drug use could explain his behavior. Dr. Vicary opined the Static 99 is overly inclusive and overestimates risk. He believed appellant could be treated in the community, and that there was no longer a serious risk that appellant would reoffend. In rebuttal, the prosecution presented the testimony of Dennis Brown, the director of the Ness Counseling Center, which contains sex offender groups and parenting groups. In 2007, Brown spoke with appellant about the possibility of being admitted into the Center. Appellant told Brown he sexually offended some children, but he did not provide great detail. Brown was concerned about appellant being admitted into the Center because of an experience he had with a previous SVP and how other people within the Center were not comfortable with having an SVP among them. Based on everything Brown knew about appellant, he did not believe the Center would admit appellant.

Discussion 1. Underground regulations Welfare and Institutions Code section 6601, subdivision (c) requires that the Department of Mental Health develop a standardized assessment protocol to be used by evaluators to determine whether a person is a sexually violent predator. In August 2008, the Office of Administrative Law (hereafter "OAL") issued a determination that the handbook and protocol published by the Department of Mental Health was an "underground regulation" because it should have been adopted pursuant to the Administrative Procedure Act but was not. The OAL did not find any substantive flaws with the handbook and protocol.

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Appellant contends that the illegality of the protocol deprived the district attorney of the statutory authority to file the petition against appellant and the trial court of fundamental jurisdiction over appellant's case. Respondent contends that appellant has forfeited this contention by failing to raise it in the trial court. We consider the merits of appellant's claim because he argues that the alleged error was one of fundamental jurisdiction and that trial counsel's failure to object below amounted to constitutionally ineffective assistance of counsel.
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a. Jurisdiction Appellant has not cited, and we are not aware of, any cases holding that the failure to obtain legally sound evaluations deprives the superior court of fundamental jurisdiction in a case under the SVPA. "In general, the only act that may deprive a court of jurisdiction is the People's failure to file a petition for recommitment before the expiration of the prior commitment." (People v. Whaley (2008) 160 Cal.App.4th 779, 804; People v. Evans (2005) 132 Cal.App.4th 950; Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1171.) There is authority contrary to appellant's position. The First District Court of Appeal has held that the lack of evaluations conducted pursuant to a valid protocol does not deprive a court of fundamental jurisdiction in an SVP case. (People v. Medina (2009) 171 Cal.App.4th 805, 815-816.) The Fourth District Court of Appeal has held that the complete failure to obtain the evaluations of two mental health professionals did not deprive the court of fundamental jurisdiction to act on an SVP petition. (People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1128-1130.)

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In his opening brief, appellant acknowledged that this Court has rejected the identical claims in People v. Castillo (2009) 170 Cal.App.4th 1156. Review was subsequently granted in that case on May 13, 2009, on a different issue. We deny appellant's motion to take judicial notice of the amicus brief filed by the Los Angeles County public defenders in Castillo. We also deny appellant's motion to take judicial notice of his opening brief before the Supreme Court in Castillo. 12

Appellant contends that the reasoning of Medina is flawed because it takes an overly narrow view of fundamental jurisdiction. The Court in Medina takes the view of fundamental jurisdiction used by the California Supreme Court for at least 60 years. "Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." (Abelleira v. District Court of Appeal, Third Dist. (1941) 17 Cal.2d 280, 288; People v. American Contractors Indem. Co. (2004) 33 Cal.4th 653, 660.) When a statute authorizes a prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction. (People v. American Contractors Indem. Co., supra, 33 Cal.4th at p. 661.) That is not the same thing as lacking fundamental jurisdiction.

b. Effect of invalid evaluations Appellant appears to believe that the illegality of the screening protocols should result in the termination of his commitment and that there should be no further proceedings against him under the SVPA even though he was found to be a SVP following a jury trial. Appellant misunderstands the role of the initial screening evaluations. The initial identification of SVP's begins when the Department of Corrections screens an inmate's records to determine if he might be an SVP, based on whether the inmate has been convicted of a sexually violent predatory offense and on a review of the person's social, criminal and institutional history. (

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