P. v. Hicks CA5 ( 2013 )

Filed 4/19/13 P. v. Hicks CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F064190
Plaintiff and Respondent,
(Super. Ct. No. CRP35989)
v.
RICK HICKS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor
Provost, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Deputy Attorney
General, for Plaintiff and Respondent.
-ooOoo-
After a jury found appellant Rick Lee Hicks to be a sexually violent predator (SVP),
the trial court committed him to the custody of the Department of Mental Health (DMH) for
an indeterminate term under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code,
§ 6600 et seq.).1 Hicks appeals, contending (1) that the trial court prejudicially erred when
it accepted defense counsel‟s waiver of a probable cause hearing without obtaining Hicks‟s
personal waiver of that hearing; (2) that the trial court committed reversible error when it
declined to instruct on circumstantial evidence; and (3) that there was insufficient evidence
that Hicks would likely commit a future predatory offense without appropriate treatment in
a custodial setting. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Hicks was born in 1971 and was 40 years old at the time of trial.
In 1990, when Hicks was 18 or 19, he orally copulated and sodomized a five-year-old
male cousin. He was convicted of violating Penal Code section 288, subdivision (a),
committing a lewd or lascivious act on a child under the age of 14. Hicks admitted to police
that he first molested this same victim two years prior to the crimes resulting in conviction.
Hicks had attempted suicide, been hospitalized, and gone into a group home before
resuming the molestations and getting “caught,” because he was “unable to control his
sexual urges.”
Hicks testified that he was “15 going on 16” when he first molested the victim of his
1990 crime. Hicks was living with the victim‟s family, his aunt and uncle, at the time and
was “attracted to” the victim when he “had his diaper off” and he “acted on that impulse.”
His 1990 conduct included orally copulating the victim and masturbating in the victim‟s
presence. He denied sodomizing the victim. For his conviction, he received eight months in
county jail, three years probation, and was ordered to undergo counseling at a program
called “Parents United.” He was 18 years old when he began the program. Although he
completed “five different phases” of the program, he thought the program was a failure
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2.
because he had not yet been diagnosed as a pedophile, so he did not understand his “mental
disorder.”
In 1996, Hicks was convicted of violating Penal Code section 647.6, annoying and/or
molesting a child, a misdemeanor offense. That offense involved the 11-year-old son of a
friend with whom Hicks spent “a lot of time” “cultivat[ing]” a relationship by taking the
victim camping or rafting and then asking him to orally copulate Hicks. Hicks testified that
the boy‟s mother was his best friend and that he had known the child for three to four years.
He described his crime as asking the child if he could “suck” the child‟s penis. Hicks stated
that he acted on “impulse,” in part because he was stressed by his mother‟s recent death.
In 1999, Hicks was again convicted of a violation of Penal Code section 288,
subdivision (a), committing a lewd or lascivious act on a child under the age of 14. This
time Hicks testified that he “found” himself attracted to his three-year-old cousin and, acting
on “impulse,” orally copulated her and masturbated to the point of ejaculation on her
“vagina area.” He also penetrated her anus with his fingers. Hicks admitted to police that
he molested this victim “seven or eight times.” Hicks was committed to prison for 12 years
and while there attended weekly A.A. meetings and, according to him, took “advantage of
… every resource or program that was available,” including working with a psychologist
who had expertise in sex offenses. At the end of his prison term, Hicks, by now age 39,
received 15 months of counseling at Atascadero State Hospital as a mentally disordered
offender. It was at Atascadero that he was diagnosed with and treated for pedophilia and
polysubstance dependence. And it was there that Hicks also began to develop his “relapse
prevention plan,” learning to “keep away” from small children by avoiding “triggers” like
certain television programs and going to places like McDonalds and malls or stores where
children are present, and by not forming relationships with people who have small children.
According to Hicks, when he was paroled from Atascadero in July of 2010, he spoke
to a psychologist about his pedophilia and substance abuse issues. He got a job at a food
processing plant in August of 2010, began “the process of re-enrolling” at a community
3.
college, and became active in N.A. and A.A., and also attending a weekly “step study
group.” He tested monthly for drugs, lived in a “structured halfway house,” and was
registered as a sex offender.
Hicks committed his most recent sexual offense in January of 2011, a violation of
parole, which involved repeatedly grabbing the genital area of one of his coworkers. Hicks
denied being the aggressor and claimed instead to be the victim. The coworker was
described as a young adult who looked like a minor, under the age of 18. Hicks testified
that, while on parole and working at the food processing plant, he became attracted to a 22-
year-old coworker. Hicks described the attraction as mutual and that they played a game in
which they would “smack” each other on the butt. At one point, the coworker sent a picture
of his penis to Hicks‟s cell phone. Hicks described an incident at work where the coworker
was pulling a water hose between his legs and waving it at Hicks “like a penis.” Hicks
grabbed the hose and, in the process, “probably grazed [the coworker‟s] hip and leg” with
his hand. The coworker filed a sexual harassment complaint and Hicks was suspended and
then terminated from his job.
For his commitment proceedings, Hicks was interviewed in June of 2011 by two
psychologists hired by the prosecution – Dr. Carolyn Murphy and Dr. Michael Selby. Both
Dr. Murphy and Dr. Selby were of the opinion that Hicks was likely to reoffend in a
sexually violent predatory manner, based on his history of prior sexual predatory offenses
and current diagnosed mental disorder of pedophilia and substance abuse issues. Dr.
Murphy assessed Hicks‟s risk of reoffense as “moderate to high,” which equated to a 20 to
29.6 percent risk of reoffense, using two actuarial tools, the Static-99R and Static-2002R.
Dr. Selby opined that, absent “highly structured” sex offender and substance abuse
4.
treatment in a custodial setting, there was a “serious and well-founded risk” that Hicks
would reoffend.2
Paul E. Patterson, the “principal of a middle school” and “minister of a church in
Modesto,” who had known Hicks for 21 or 22 years, testified that he and Hicks had had a
“committed relationship that lasted for ten years,” during which they lived together.
Patterson was aware of Hicks‟s conviction for child molestation and that he had had a
“reoffense” involving a “young lady.” Patterson stayed in contact with Hicks while he was
in prison and was willing to support Hicks if he was released, would allow him to live with
him if he needed a place to stay, and he had an adequate salary and was able to assist Hicks
financially. Prior to helping Hicks, Patterson would insist that Hicks agree not to “be
around kids right now at all.”
Hicks testified that, at the time of his prior criminal conduct, he had no understanding
of his “mental disorder,” and so had “no self-control.” He had since gotten past his shame
and guilt and was now motivated to recover “and never offend again.” Hicks believed he
now had the “right tools” in the form of his “elaborate relapse prevention plan,” although he
conceded “there are no guarantees in life.” According to Hicks, Drs. Murphy and Selby
asked him a lot of “generic” questions that were “vague” and without “depth,” but neither
asked him about his prior treatment or “behavior chains.”
Hicks, who was currently in jail, testified that, when released, he had a job offer with
a tax service, he had a place to stay, and Patterson and other friends had offered to help him
financially. He would continue to seek treatment for pedophilia and continue his
involvement in A.A. and N.A.
2 Because one of Hicks‟ three contentions on appeal involves the sufficiency of the
evidence to support the jury‟s finding that he met the criteria for an SVP, we will defer a
discussion of additional trial evidence to the portion of the opinion where we address that
issue.
5.
DISCUSSION
We discuss Hicks‟s various appellate challenges below, after providing a general
overview of the SVPA.
Overview of the SVPA
“The SVPA … provides for the involuntary civil commitment of certain offenders,
following the completion of their prison terms, who are found to be SVP‟s because they
have previously been convicted of sexually violent crimes and currently suffer diagnosed
mental disorders which make them dangerous in that they are likely to engage in sexually
violent criminal behavior. [Citation.]” (People v. Superior Court (Ghilotti) (2002) 27
Cal. 4th 888, 902; § 6600, subd. (a)(1).) A “diagnosed mental disorder” is defined to include
“a congenital or acquired condition affecting the emotional or volitional capacity that
predisposes the person to the commission of criminal sexual acts in a degree constituting the
person a menace to the health and safety of others.” (§ 6600, subd. (c).)
The initial identification of a possible SVP begins with a screening by the
Department of Corrections and Rehabilitation (DCR) and the Board of Parole Hearings of
the “social, criminal, and institutional history” of an individual, who is either serving a
determinate prison sentence or whose parole has been revoked, for the commission of “a
sexually violent predatory offense.” (§ 6601, subds. (a) & (b).) The screening is conducted
in accord with an assessment protocol developed by the DMH. (People v. Hurtado (2002)
28 Cal. 4th 1179, 1182-1183.) If that screening leads to a determination that the defendant
is likely to be a sexually violent predator, the defendant is referred to the DMH for an
evaluation by two psychiatrists or psychologists. (§ 6601, subds. (b) & (c).) If both find
that the defendant has a “diagnosed mental disorder so that he or she is likely to engage in
acts of sexual violence without appropriate treatment and custody” (§ 6601, subd. (d)), the
DMH forwards a petition for commitment to the county of the defendant‟s last conviction.
(Ibid.) If the county‟s designated counsel concurs with the recommendation, he or she files
a petition for commitment in the superior court. (§ 6601, subd. (i).)
6.
Upon filing of the SVPA commitment petition, the superior court must review the
petition and determine “whether the petition states or contains sufficient facts that, if true,
would constitute probable cause to believe that the [defendant] is likely to engage in
sexually violent predatory criminal behavior upon his or her release.” (§ 6601.5.) If the
court determines the petition on its face supports a finding of probable cause, it then orders
the defendant to be kept in a secure facility until a probable cause hearing under section
6602 is conducted. (§ 6601.5.) The probable cause hearing must be conducted within 10
calendar days of the issuance of the order. (Ibid.)
The purpose of the probable cause hearing is to determine whether “there is probable
cause to believe that the [defendant] is likely to engage in sexually violent predatory
criminal behavior upon his or her release.” (§ 6602, subd. (a).) The probable cause hearing
is an adversarial hearing where the [defendant] has the right to counsel, to present “oral and
written evidence,” and to “„challenge the accuracy‟” of the evaluations by cross-
examination of the experts. (Cooley v. Superior Court (2002) 29 Cal. 4th 228, 245, fn. 8;
§ 6602, subd. (a).) If the court finds probable cause, it orders a trial to determine whether
the defendant is a sexually violent predator under section 6600. (§ 6602, subd. (a).)
The individual named in the petition is entitled to a jury trial, and the jury‟s verdict
must be unanimous. (§ 6603, subds. (a) & (f).) The individual is also entitled to retain
experts and professional persons to perform an examination on his or her behalf. (§ 6603,
subd. (a).) At trial, the trier of fact determines whether, beyond a reasonable doubt, the
individual is a SVP. (§ 6604.) If the trier of fact determines the individual is a SVP, that
person is committed for an indefinite term to the custody of the DMH for appropriate
treatment and confinement in a secure facility designated by the DMH. (Ibid.)
I. WAIVER OF PROBABLE CAUSE HEARING
First, Hicks contends that the trial court erred prejudicially when it accepted defense
counsel‟s waiver of a probable cause hearing without obtaining a personal waiver from him.
We disagree.
7.
On July 8, 2011, the prosecutor filed the SVP petition, with the prosecutor‟s
declaration and the reports of Drs. Selby and Murphy attached. On July 12, 2011, Judge
Provost filed an order setting a probable cause hearing on July 29, 2011. On July 29, 2011,
Judge Boyack appointed the public defender to represent Hicks and set the matter over to
August 3, 2011, in “Department 4” because Judge Provost was “more familiar with the ins
and outs of these cases .…” On August 3, 2011, Hicks appeared with counsel again before
Judge Boyack. Hick‟s counsel asked for another continuance and that, once the case got to
Judge Provost‟s department, “we‟ll waive time and have the matter set for jury trial.” Judge
Boyack granted the continuance. At the conclusion of the hearing, the following exchange
occurred:
“[Prosecutor]: Your Honor, at this point, I assume there is a stipulation to
probable cause for continuing custody at this point?
“[The Court]: Oh, that is a good point. [¶] [Defense counsel]?
“[Defense Counsel]: We would so stipulate.
“[The Court]: Okay. [¶] The Court, having reviewed the report, finds there is
probable cause to continue Mr. Hicks in custody pending trial.”
Hicks contends, and respondent does not disagree, that this exchange meant that the
trial court accepted defense counsel‟s waiver of a probable cause hearing without advising
Hicks of his right to that hearing and without eliciting a personal waiver. Unlike Hicks,
however, respondent contends that the waiver was valid as no personal waiver was required
and that, in any event, no prejudicial error occurred. We agree with respondent.
As stated previously, upon filing of the SVPA commitment petition, the superior
court must review the petition and determine “whether the petition states or contains
sufficient facts that, if true, would constitute probable cause to believe that the individual
named in the petition is likely to engage in sexually violent predatory criminal behavior
upon his or her release.” (§ 6601.5.) If the court determines the petition on its face supports
a finding of probable cause, then it orders the person named in the petition to be kept in a
8.
secure facility until a probable cause hearing under section 6602 is conducted. (§ 6601.5.)
The probable cause hearing must be conducted within 10 calendar days of the issuance of
the order. (Ibid.)
The probable cause hearing in an SVPA case, like the preliminary hearing in a
criminal case, tests the sufficiency of the evidence behind the allegations and protects the
accused from having to face trial on groundless charges. (Cooley v. Superior Court, supra,
29 Cal.4th at p. 247; People v. Hayes (2006) 137 Cal. App. 4th 34, 43.) The probable cause
hearing “is only a preliminary determination that cannot form the basis of a civil
commitment; the ultimate determination of whether an individual can be committed as an
SVP is made only at trial. (§ 6604.)” (Cooley v. Superior Court, supra, at p. 247.)
Hicks contends that, because of the importance of the statutory scheme of SVP
commitment and the mandatory language requiring a probable cause hearing, a potential
SVP committee must be informed of the right to the probable cause hearing and must make
a knowing and intelligent waiver of his right to that hearing. Hicks cites People v. Hayes,
supra, 137 Cal.App.4th at p. 48, which states:
“[T]he text of section 6602, subdivision (a) renders the probable cause hearing
mandatory: „A judge of the superior court shall review the petition and shall
determine whether there is probable cause .…‟ (Italics added.) As such, a
probable cause hearing is a mandatory procedural safeguard. [Citations.]”
But it should be noted that, in this case, the trial court did review the petition and did
determine there was probable cause.
Hicks, noting the analogy of a probable cause hearing in an SVPA case to a felony
preliminary hearing, also relies on Penal Code section 859b, subdivision (a), which he
contends requires personal waiver of a felony preliminary hearing. (People v. Kowalski
(1987) 196 Cal. App. 3d 174, 176-177.) But, as noted by respondent, Penal Code section
859b, subdivision (a) requires that a defendant “personally” waive the right to a speedy
preliminary hearing, or the “right to preliminary examination within the 10 court days,” not
the right to a preliminary hearing itself. Instead, the waiver of the right to the preliminary
9.
hearing itself is governed by Penal Code section 860, which allows a defendant “represented
by counsel” to “waive the right to” a preliminary hearing, with no requirement that the
defendant personally waive that right. (See, e.g., In re Gregory (1927) 86 Cal. App. 10, 11-
12 [defendant represented by counsel may waive the right to a preliminary hearing]; People
v. White (1963) 213 Cal. App. 2d 171, 174 [same].)
In any event, even if we determine that Hicks was erroneously denied the personal
right to waive the probable cause hearing, the standard of review of such an error, as in a
preliminary hearing in a criminal case, is harmless error, which requires reversal “„only if
[the] defendant can show that he was deprived of a fair trial or otherwise suffered prejudice
as a result of the error ….‟” (People v. Hayes, supra, 137 Cal.App.4th at p. 50, citing
People v. Pompa-Ortiz (1980) 27 Cal. 3d 519, 529-530.) Hicks fails to show that, if he had
had a probable cause hearing, it was reasonably probable he would have been screened out
or a finding of probable cause would not have been made by the trial court. We therefore
reject his contention.
II. FAILURE TO GIVE INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE
During an in camera discussion on jury instructions, the parties and trial court
questioned whether instruction on circumstantial evidence was necessary. Eventually, the
trial court stated that it would not give the instructions, although defense counsel stated that
he would “prefer” they be given. Hicks now contends that the failure to give CALCRIM
No. 223, on the definition of direct and circumstantial evidence, and CALCRIM No. 224, on
the sufficiency of circumstantial evidence, violated his state and federal due process right to
a fair trial. He asserts that the People‟s case was based substantially on circumstantial
evidence, in the form of expert opinions as to his mental condition, and that, without these
instructions, the jury was permitted to find him to be an SVP based on circumstantial
evidence that did not constitute proof beyond a reasonable doubt and might reasonably have
supported a contrary conclusion. Respondent disagrees, as do we.
10.
CALCRIM No. 223 provides:
“Facts may be proved by direct or circumstantial evidence or by a
combination of both. Direct evidence can prove a fact by itself. For example,
if a witness testifies he saw it raining outside before he came into the
courthouse, that testimony is direct evidence that it was raining.
Circumstantial evidence also may be called indirect evidence. Circumstantial
evidence does not directly prove the fact to be decided, but is evidence of
another fact or group of facts from which you may logically and reasonably
conclude the truth of the fact in question. For example, if a witness testifies
that he saw someone come inside wearing a raincoat covered with drops of
water, that testimony is circumstantial evidence because it may support a
conclusion that it was raining outside. [¶] Both direct and circumstantial
evidence are acceptable types of evidence to prove or disprove the elements of
a charge, including intent and mental state and acts necessary to a conviction,
and neither is necessarily more reliable than the other. Neither is entitled to
any greater weight than the other. You must decide whether a fact in issue has
been proved based on all the evidence.”
CALCRIM No. 224 provides:
“Before you may rely on circumstantial evidence to conclude that a fact
necessary to find the defendant [to be an SVP] has been proved, you must be
convinced that the People have proved each fact essential to that conclusion
beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial
evidence to find the defendant [to be an SVP], you must be convinced that the
only reasonable conclusion supported by the circumstantial evidence is that
the defendant [meets the SVP criteria]. If you can draw two or more
reasonable conclusions from the circumstantial evidence, and one of those
reasonable conclusions points to [not meeting SVP criteria], you must accept
the one that points to [not meeting the SVP criteria]. However, when
considering circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.”
We are not aware of any authority addressing whether instructions on circumstantial
evidence must be given in SVP proceedings. In Conservatorship of Walker (1987) 196
Cal. App. 3d 1082, the court held that an instruction on circumstantial evidence should be
given in a civil proceeding to appoint a conservator for a mentally ill person under the
Lanterman-Petris-Short Act (§ 5000 et seq.). The court noted that appointment of a
conservator under the act involved a serious deprivation of the liberty rights of the
11.
conservatee and must be supported by proof beyond a reasonable doubt. (Conservatorship
of Walker, supra, at pp. 1092-1093, 1098.) Commitment under the SVPA also involves a
deprivation of liberty and must also be supported by proof beyond a reasonable doubt.
(§ 6604.) Given these similarities between the present proceeding and the proceeding
involved in Conservatorship of Walker, we will assume for purposes of argument that
instruction on circumstantial evidence is required in SVPA commitment proceedings if
otherwise appropriate.
Circumstantial evidence instructions must be given where the prosecution‟s case rests
substantially on circumstantial evidence, but it should not be given where the evidence
relied on is either direct or, if circumstantial, is not equally consistent with a reasonable
conclusion of innocence. (People v. Heishman (1988) 45 Cal. 3d 147, 167; People v. Wiley
(1976) 18 Cal. 3d 162, 174-176.) Thus, the failure to give the instructions is not prejudicial
error where the circumstantial evidence points convincingly to the defendant‟s guilt.
(People v. Heishman, supra, at p. 167.)
In addition, the instruction is required only when guilt must be inferred from a
pattern of incriminating circumstances. Therefore, not all indirect evidence requires the
instruction. Specifically, a defendant‟s extrajudicial admissions are not the type of indirect
evidence to which the instruction is applicable. (People v. Wiley, supra, 18 Cal.3d at p.
174.)
Here, the People‟s case rested in substantial part on the opinions of Drs. Murphy and
Selby. Expert opinion testimony is often characterized as indirect or circumstantial
evidence. (See, e.g., People v. Gentry (1968) 257 Cal. App. 2d 607, 611; People v.
Di Giacomo (1961) 193 Cal. App. 2d 688, 695; People v. Goldstein (1956) 139 Cal. App. 2d
146, 154; People v. Jones (1954) 42 Cal. 2d 219, 222 [proposed testimony of psychiatrist
that defendant was not a sexual deviate was indirect evidence].)
But the expert testimony of Drs. Murphy and Selby was not “equally consistent with
a reasonable conclusion of innocence” (People v. Heishman, supra, 45 Cal.3d at p. 167), so
12.
as to require the giving of circumstantial evidence instruction. The opinions of Drs. Murphy
and Selby that some or all of Hicks‟s prior criminal sexual conduct was predatory, thus
rendering it likely that any future conduct would also be predatory, was unrefuted by any
countervailing defense expert testimony. Moreover, much of the prosecution‟s expert
testimony was based on Hicks‟s own extrajudicial statements and admissions.
On this record, the People‟s reliance on expert testimony to prove their case did not
require the giving of CALCRIM Nos. 223 and 224, as the circumstantial evidence was not
equally consistent with a finding Hicks was not an SVP. For the same reason, even if it
were to assume that the instructions should have been given, the failure to do so was not
prejudicial because the circumstantial evidence pointed convincingly to a finding that Hicks
was an SVP. (People v. Heishman, supra, 45 Cal.3d at p. 167.)
III. SUFFICIENCY OF THE EVIDENCE
Finally, Hicks contends the evidence was insufficient that he had ever committed a
predatory offense or that he would likely commit one in the future. He particularly argues
the experts applied the wrong legal standard of “predatory” in forming their opinions. We
disagree.
In order to establish that a defendant is an SVP, the state had to prove “(1) [the]
defendant was convicted of [one or more] separate sexually violent offenses[3]; (2) he had a
diagnosable mental disorder that made him a danger to the health or safety to others; (3) his
disorder makes it likely he will engage in sexually violent criminal conduct if released; and
(4) his sexually violent criminal conduct will be predatory in nature. [Citations.]” (People
3 On November 7, 2006, California voters approved Proposition 83, which made
substantive changes to the SVPA, effective November 8, 2006, including, as amended,
section 6600 which had required that the People prove two separate sexually violent
offenses and now requires that the People prove only a sexually violent offense against one
or more victims. (§ 6600, subd. (a)(1); Prop. 83, § 24, approved Nov. 7, 2006, eff. Nov. 8,
2006.)
13.
v. Fulcher (2006) 136 Cal. App. 4th 41, 52, italics omitted.) “[B]efore a defendant can be
committed or recommitted under the [SVPA], the trier of fact must find, beyond a
reasonable doubt, that the defendant is likely to commit sexually violent predatory behavior
upon release.” (People v. Hurtado, supra, 28 Cal.4th at p. 1182, italics omitted.)
“„Predatory‟ means an act is directed toward a stranger, a person of casual acquaintance
with whom no substantial relationship exists, or an individual with whom a relationship has
been established or promoted for the primary purpose of victimization.” (§ 6600, subd. (e).)
“When a defendant challenges the sufficiency of the evidence to support a
finding that he is an SVP, „this court must review the entire record in the light
most favorable to the judgment to determine whether substantial evidence
supports the determination below. [Citation.] To be substantial, the evidence
must be “„of ponderable legal significance … reasonable in nature, credible
and of solid value.‟” [Citation.]‟ (People v. Mercer (1999) 70 Cal. App. 4th
463, 466.) „In reviewing the record to determine the sufficiency of the
evidence this court may not redetermine the credibility of witnesses, nor
reweigh any of the evidence, and must draw all reasonable inferences, and
resolve all conflicts, in favor of the judgment.‟ (People v. Poe (1999) 74
Cal. App. 4th 826, 830.)” (People v. Sumahit (2005) 128 Cal. App. 4th 347,
352.)
Both Dr. Murphy and Dr. Selby testified that Hicks was likely to reoffend in a
sexually violent predatory manner, based on his history of prior predatory offenses and
current mental disorder of pedophelia. Dr. Murphy testified that she first reviewed Hicks‟s
criminal history and mental health records and then conducted an interview with Hicks at
Corcoran State Prison in June of 2011. Dr. Murphy described Hicks as “forthcoming”
during the interview.
Dr. Murphy determined that Hicks had two qualifying offenses, both resulting in
convictions for violating Penal Code section 288, subdivision (a), committing a lewd or
lascivious act on a child under the age of 14. The first offense occurred in 1990 and
involved fondling, orally copulating, and sodomizing a five-year-old male cousin. The
second offense occurred in 1999 and involved fondling, orally copulating, and digitally
14.
penetrating the vagina of a three-year-old female cousin. Hicks admitted to police that he
molested this victim “seven or eight times.”
Dr. Murphy correctly defined a predatory sexual offense as “a crime perpetrated
against someone who is either a stranger or someone against whom they cultivated or
promoted a relationship with.” Dr. Murphy opined that the 1990 and 1999 qualifying
offenses were probably not predatory in the strict or legal sense because the victims were his
cousins, although she did conclude there was “a predatory element” to those offenses
because Hicks likely took advantage of the opportunity to gain access to each of them by
babysitting.
Dr. Murphy concluded that Hicks‟s 1996 offense, for which he was convicted of
violating Penal Code section 647.6, annoying and/or molesting a child, was “clearly”
predatory. That offense involved the 11-year-old son of a friend with whom Hicks spent “a
lot of time” “cultivating” a relationship by taking the victim camping or rafting and then
asking him to orally copulate Hicks. Dr. Murphy also concluded that Hicks‟s recent parole
violation, based upon a workplace event in which he “grabbed at the crotch” of a “youthful
[looking] male” coworker, was also likely predatory because Hicks had no substantial
relationship with the coworker and there was no convincing evidence that the relationship
was “potentially romantic.” Dr. Murphy opined that the conduct indicated “extremely poor
judgment and poor impulse control,” given that Hicks was “a three-time convicted sex
offender” on parole.
Dr. Murphy diagnosed Hicks as having a mental disorder, specifically pedophilia, or
sexual attraction to pre-pubescent children, that predisposed him to committing criminal
sexual acts. She also diagnosed him with “[a]mphetamine dependence” that “was controlled
in prison,” a “cannabis dependence,” and a “personality disorder.”
Dr. Murphy opined that Hicks was “„[l]ikely to engage in sexually violent predatory
criminal behavior as a result of his … diagnosed mental disorder without appropriate
treatment and custody,‟” which required a “reasonable degree of clinical certainty.” In
15.
forming her opinion, Dr. Murphy relied on the “Static-99R” and “Static-2002R,” which are
“risk assessment tools.” Hicks had a score of “four” on the Static-99R, which was “in the
moderate to high range,” or equated to a 20 to 29.6 percent risk of reoffense. Hicks had a
score of “seven” on the Statis-2002R, “also in the moderate high risk range.”
Dr. Murphy considered the “Wellness and Recovery Action Plan” (WRAP), or
“relapse prevention plan,” prepared by Hicks. She was concerned about Hicks‟s claim that
his pedophilia “„ha[d] been in remission since May of 2010,‟” because pedophilia was not a
disorder that “traditionally goes into remission,” but rather requires that one be “constantly
vigilant in self-monitoring.” Dr. Murphy found Hicks‟s WRAP had “no actual relapse
prevention plan” that included avoiding children. Thus, the WRAP did not change her
opinion about Hicks‟s risk of reoffense. Dr. Murphy opined there was a sex offender
treatment program at Coalinga State Hospital that might allow Hicks to reduce his risk of
reoffense, but she did not know if such a program was available to him “in the community.”
Dr. Selby, who also testified as an expert for the prosecution, evaluated Hicks in June
of 2011 at the substance abuse treatment facility in Corcoran. He also reviewed Hicks‟s
criminal records prior to the interview. During the interview, Hicks “cooperated” and was
“able to respond to all questions in a clear manner.”
Dr. Selby related that Hicks‟s first qualifying offense, a 1990 conviction of Penal
Code section 288, subdivision (a), involved a sexual act on a young male cousin and that the
molestations had gone on for several years. Hicks had attempted suicide, been hospitalized,
and gone into a group home before resuming the molestations and getting “caught,” because
he was “unable to control his sexual urges.” For this crime, Hicks received probation, some
jail time, and was required to attend sex offender treatment for three years.
Hicks told Dr. Selby that the 1999 conviction involved fondling the genital area of a
young niece, orally copulating her, exposing his penis to her, and ejaculating in front of her.
Other documents indicated that Hicks had molested the girl seven or eight times, that he
digitally penetrated her, and that he had her hold his penis. Dr. Selby opined that Hicks
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minimized his conduct and failed to take complete responsibility for it. For this crime,
Hicks received a prison sentence, was found to be a mentally disordered offender and was at
Atascadero State Hospital for six months of “treatment,” which probably did not include
treatment as a pedophile.
Hicks told Dr. Selby that his 1996 conviction for annoying/molesting a child
involved an 11-year-old boy who was a close friend‟s son. Hicks asked that the boy orally
copulate him. Hicks‟s most recent sexual offense in January of 2011, a violation of parole,
involved repeatedly grabbing the genital area of one of his coworkers. Hicks denied being
the aggressor and claimed instead to be the victim.
Dr. Selby defined predatory as looking to see whether the perpetrator had “any kind
of substantial relationship with the victim other than sexual … or that the person is
committing the offense specifically for the purpose of molesting someone.” Dr. Selby
opined that Hicks did not have a substantial relationship with any of the victims other than
sexual. Dr. Selby noted that the very young victim of the 1990 offense was still being potty
trained “and having a substantial relationship with that individual … seems virtually
impossible.” The victim in the 1999 offense was also “very very young” and there was “no
indication” of a substantial relationship, despite the fact that the victim was “a cousin [or]
niece.” Dr. Selby defined the crimes as predatory because the acting out sexually was “the
only relationship they have with the individual.”
Dr. Selby defined the 1996 molest offense as predatory because he had no idea
whether Hicks had known the boy for years and befriended him. If he had had such a
“bond[ed]” relationship, Dr. Selby would describe the crime as “[l]ess predatory,” although
such a perpetrator might be “grooming” the victim for molestation. Dr. Selby described the
parole violation as predatory behavior “in the sense that there appeared to be no significant
relationship between the victim and Mr. Hicks, that they were coworkers.” The fact that the
last victim was an adult did not change Dr. Selby‟s mind because a photograph of the victim
showed him to be “a very very young adult” who looked like a minor, under the age of 18.
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Dr. Selby diagnosed Hicks with “pedophilia, both sexes, nonexclusive,” meaning he
had “recurrent sexually-arousing fantasies, urges, or behavior associated with a
prepubescent child,” or a child 13 years of age or younger, occurring for at least six months,
that affects Hicks‟s “volitional control” and predisposes him to commit sexual crimes.
Hicks‟s lack of volitional control was evident by the fact that he had been “punished” and
“treated” and continued to commit sexual crimes. Hicks denied to Dr. Selby that he was
sexually attracted to children, claiming he had “„just made bad choices.‟” Dr. Selby also
diagnosed Hicks with “polysubstance dependence” based upon his methamphetamine and
alcohol abuse.
Dr. Selby opined that, due to Hicks‟s diagnosed mental disorder, he was “likely to
commit another sexually violent predatory offense without treatment in a custodial setting.”
Dr. Selby defined “likely” as a “serious and well-founded risk.” While Hicks received three
years of sex offender treatment after his 1990 crime, he was convicted of additional sexual
offenses in 1996 and 1999. And while Hicks received treatment at Atascadero after the
1999 crime, once on parole, he against chose to “act out sexually,” which showed that a
“lack of volitional control” was “still present.”
Dr. Selby testified that, in the WRAP prepared by Hicks, he finally acknowledged
that he was a pedophile, but he did not indicate that he would seek further sex offender
treatment in the community. Instead, he would seek “support from people that he knew in
the community” and would try to avoid children. Hicks told Dr. Selby that he would
“hopefully live with an inmate once the inmate got out of prison,” which Dr. Selby did not
think was a good plan.
Dr. Selby used the risk factors set forth in the Static-99R, Static-2002, and other such
“tools,” but did not use the “total scores” from those tools because they did not “address the
issue of mental illness at all.” Dr. Selby opined that Hicks was still in need of “highly
structured” sex offender and substance abuse treatment in a custodial setting for “at least
two to three years,” such as the treatment available to Sexually Violent Predators at
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Coalinga State Hospital. Absent such treatment, there was still a “serious and well-founded
risk” that Hicks would reoffend.
We believe the state‟s evidence allowed the jury to conclude, beyond a reasonable
doubt, that Hicks‟s previous violent offenses, his mental disorder, and the resulting serious
lack of control, led to the likelihood Hicks would engage in future sexually predatory acts if
not confined to a secure facility.
DISPOSITION
The judgment is affirmed.
______________________
Franson, J.
WE CONCUR:
______________________
Poochigian, Acting P.J.
______________________
Detjen, J.
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