Filed 3/26/15 P. v. Wilson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v.
JOHN M C KINLEY WILSON, Defendant and Appellant. F067070 (Super. Ct. No. 1001791)



### OPINION

APPEAL from a judgment of the Superi or Court of Stanislaus County. Marie Sovey Silveira, Judge. Deborah L. Hawkins, under appointmen t by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, John W. Powell and Julie A. Hokans , Deputy Attorneys General, for Plaintiff and Respondent. -ooOooAppellant John McKinley Wilson challenge s his commitment as a sexually violent predator (SVP) on the grounds that (1) the trial court erre d in denying a continuance,2. (2) there was error in admissi on of evidence, (3) the prosecutor committed misconduct in closing argument, and (4) the failure of the evaluators to comply with Code of Civil Procedure section 2032.530 1 was prejudicial. We reject his contentions and affirm the commitment order. FACTUAL AND PROC EDURAL SUMMARY Some of the facts and history are ta ken from our unpubl ished decision in People v. Wilson (Sept. 26, 2008, F053625). Wilson committed hi s first qualifying SVP Act (SVPA) offense in 1975. He was convicted of rape by force or threat after raping a 77- year-old woman in her home during a robbery. In 1980, while on parole for the first offense, Wilson committed his second qualifying SVPA offense, rape by force or threat and forced oral copulation. Wilson also was identified as having committed two additional rapes, one in 1974 and one in 1975, although he was not brought to trial on those offenses. Wilson behaved poorly as a prisoner, collecting numerous prison rule violations. Wilson initially was found by a jury to be an SVP in May 2000. He was committed to Atascadero State Hospital (ASH) fo r two years. Extens ions were sought and obtained by respondent, Stanislaus Co unty District Attorney, committing Wilson through May 2006, the last dete rmination being made by jury trial in December 2005. In October 2005, prior to the December 2005 trial, a new extension petition was filed seeking commitment for th e period 2006 to 2008. The findings of the jury in December 2005 were deemed by the trial court as probable cause to hold a trial on the October 2005 extension petition. The petition was supported, as were all previous petitions, by two evaluations from psychologi sts who opined Wilson was an SVP as defined by the SVPA and concluded Wilson wo uld be a danger to society if released.

1 All further statutory references are to the Code of Civil Procedure unless otherwise stated.3. During the pendency of the petition, th e SVPA was amended by Senate Bill No. 1128, signed into law as emergency legi slation in September 2006. (Stats. 2006, ch. 337, §§ 53-62.) After am endment, Welfare and Institutions Code section 6604 provided, in part: “If the co urt or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for ap propriate treatment and confinement ....” Shortly thereafter, the voters approved Propos ition 83, which amended several statutes addressing violent sex offenses , including the SVPA. (See Historical and Statutory Notes, 73E West’s Ann. Welf. & Inst. Code (2010 ed.) foll. § 6604 , p. 149; Prop. 83, § 27, as approved by voters, Gen. Elec. (Nov . 7, 2006, eff. Nov. 8, 2006).) Like Senate Bill No. 1128, Proposition 83 changed the two-year civ il commitment term to an indeterminate civil commitment. In April 2007, the People filed a mo tion asking that Wilson’s commitment be converted to an indeterminate term. The tr ial court granted the mo tion and ordered that Wilson be committed to the State Department of Mental Health (now State Department of State Hospitals), Coalinga State Hospital (C SH), for an indetermin ate term, subject to the annual reviews provid ed under the SVPA. In People v. Wilson, supra, F053625, we concluded this was error and remanded the matter for a trial to determine if Wilson currently was an SVP. Our opinion specified that if de termined to be an SVP, Wilson could be committed for an indeterminate term. After remand, a jury trial was held to de termine if Wilson was an SVP. Dr. Jesus Padilla evaluated Wilson in May 2012. Padilla noted that Wilson had committed at least two sexually violent offenses. Padilla diag nosed Wilson as suffering from a diagnosed mental disorder, specifically, paraphilia not otherwise specified (NOS), sex with nonconsenting persons, polysubstance dependen ce in a controlled environment, and antisocial personality disorder.4. Padilla scored Wilson on the Static-99R, an actuarial assessment instrument, to assess the risk that Wilson would reoffend. Padilla also looked at dynamic variables related to sexual recidivism that were not acco unted for in the Static-99R. Padilla placed Wilson in the high-risk range for reoffending . Among the variables Padilla considered were (1) Wilson reoffended wh ile on parole; (2) he repeat edly absconded from parole supervision; (3) he had poor self-regulatio n, as exhibited by prio r offenses, and that offenses, such as robbery, escal ated into sex offenses; and (4 ) individuals with “cluster b personality disorder,” such as antisocial personality disorder, had a higher risk of reoffense than persons w ithout such a disorder. Padilla ultimately concluded that Wils on met all of the criteria for commitment under the SVPA. Dr. Christopher Matosich also testified after having evaluated Wilson. Matosich evaluated Wilson in April 2012. Matosich noted that Wilson had been convicted of at least two prior qualifying sex offenses. Matosich diagnosed W ilson as suffering from mental disorders, specifically, paraphilia NO S, polysubstance depe ndence, and antisocial personality disorder. Matosich , like Padilla, concluded Wilson was likely to reoffend if released. Additionally, Matosich conclude d Wilson was not amendable to outpatient treatment. When interviewed, Wilson stated th at even if his parole required outpatient treatment, he “wouldn’t do it.” Wilson presented testimony from Drs. Ma ry Jane Adams and Lisa A. Jeko, both psychologists. Adams testified she saw no ev idence that Wilson cu rrently suffered from a mental disorder that predisposed him to commit sexually violent acts. Jeko was of the opinion that Wilson did not have a diagnosed me ntal disorder that satisfied the criteria for SVP commitment and therefore he did not qualify as an SVP. The defense also presented testimony fro m James Walter, a licensed psychiatric technician, who had worked at two state hospitals, ASH and CS H, while Wilson was committed to those institutions. Walter did not observe, nor was he aware of any other5. staff observing, any paraphilic behavior by Wilson while at ASH. Walter was not aware of any acts of aggression or paraphilic behavior by Wilson while at CSH. Dr. Peggy Goodale, a clinical psychologist who worked at CSH, testified that in her opinion Wilson did not suffer from a para philia disorder—his primary diagnosis was posttraumatic stress disorder. Goodale acknowledged Wilson had committed the predicate sexual offenses, but believed he did not suffer fro m a paraphilia and therefore would not commit further o ffenses if released. Wilson testified in his own behalf. Wils on opined that it would not be beneficial for him to receive treatment for a paraphilic diso rder that he did not have. If released as an outpatient, he would accept treatment for posttraumatic stress diso rder and perhaps for substance abuse. The jury found that Wilson met the criteri a for commitment as an SVP. The trial court ordered Wilson committe d for an indeterminate term as an SVP. DISCUSSION I. Denial of Request for Continuance Wilson contends the trial court denied hi m due process and a fair trial when it denied his request for a continuance of the tria l so that he could call another witness, Dr. Ronald Mihordin, who was the current direct or of the SVPA treatment program in the state hospital system. We reject his contention. Factual Summary Adams testified Mihordin ha d conducted mandatory trai ning for the professionals performing SVP evaluations for the state. Adams stated Mihordin had cautioned against making a diagnosis of paraphilia NOS based u pon the subject’s beha vior and that both Padilla and Matosich had not followed Mihordin’s directive; they “simply reported the facts of the crimes” and “didn’t make any at tempt to analyze ... that it was coercion that was turning [Wilson] on.”6. Jeko testified that there were comm unications from Mihordin about the SVP evaluations, but they would not have aff ected how she conducted her evaluations. Padilla testified he had been at the ma ndatory training on SV P evaluations given by Mihordin and it was clear Mihordin had neve r been a clinician. Padilla stated his reaction to Mihordin’s presentation had been “disbelief” and “concern” for the state’s treatment program for SVP’s. Padilla testified that as an independent contractor with the SVP commitment program, he was not contra ctually obligated to follow department mandates “when it comes to diagnosis or when it comes to the ultimate decision.” Padilla also testified he did not consid er anything in Mihordin’s pr esentation to be a directive; rather, they were suggestions. Subsequent to Mihordin’s training, Padilla continued to use the diagnosis of paraphilia NOS. Padilla acknowledged that the term “paraphilic coercive disorder” did not appear in the most current version of the Diagnos tic and Statistical Manual of the American Psychiatric Association (DSM), but his ex act terminology for the diagnosis was “paraphilic, not otherwise specified, sex with non-consenting persons.” Matosich also acknowledged that the cu rrent DSM did not include a category of “paraphilia coercive disorder.” Matosich testified, however, that there was “no code for paraphilia-NOS coercive disorder, or many othe r subtypes. They are all code identified under paraphilia-NOS.” During a break in Wilson’s testimony at trial, defense counsel moved for a continuance in order to call Mihordin as a witn ess. Defense counsel asserted that he was not prepared for Matosich and Padilla to violate “protocols and procedures of the State” and to rely on a diagnosis that was not in the current DSM. After hearing argument from both the pros ecutor and Wilson’s counsel, the trial court denied the request. The trial court ob served that Mihordin wa s an administrator in the SVP program who had never interviewed or evaluated Wilson, the evaluations of Wilson that were being relied upon by the pros ecutor had been available for months prior7. to trial, and there had been extensive tes timony around the theory of paraphilia NOS and whether that was a valid diagnosis. Counsel for Wilson moved for a mistrial ba sed upon the denial of the continuance; the trial court denied the motion. Counsel renewed the motion fo r a mistrial after presentation of evidence had concluded an d the prosecutor had made her opening argument. The trial court again denied the motion. Analysis A ruling on a motion for continuance of a tria l is reviewed for abuse of discretion. ( People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1036 ( Lewis and Oliver ).) Entitlement to a midtrial continuance require s the defendant to “show he exercised due diligence in preparing for trial.” ( People v. Danielson (1992) 3 Cal.4th 691, 705.) When a continuance is sought to secure a witness, the party must show due diligence and that the expected testimony is not cumulative. ( People v. Jenkins (2000) 22 Cal.4th 900, 1037 ( Jenkins ).) Here, eight months prior to trial at the probable cause hearing, both Padilla and Matosich testified they had diagnosed Wils on as suffering from paraphilia NOS, sex with nonconsenting persons. At that time, counsel for Wilson cr oss-examined both doctors regarding Mihordin’s training and presentation. Wilson’s counsel specifically questioned the doctors as to whether Mihordin had instruct ed the evaluators that they were to use a diagnosis of paraphilia NOS on ly where there was evidence the patient was aroused by coercion and whether the doctors had followe d that instruction. Had Mihordin’s testimony been important to the defense, th ere was ample opportunity to secure his attendance at trial without the need for a continuance. Th at this was not done shows a lack of due diligence. Furthermore, since Mihordin had never examined or evaluated Wilson, it is unlikely his testimony wo uld have been of any benefit to Wilson. It is clear that Mihordin could not speak directly to any di agnosis of Wilson. At most, Mihordin could8. have testified regarding the tr aining presentation given to ev aluators, a subject that was covered extensively in test imony from Padilla, Adams, a nd Jeko. Consequently, any testimony from Mihordin was lik ely to be cumulative. Clearly, there was no due dilig ence exercised to secure Mihordin as a witness. Also, any possible testimony from Mihordin would have related to the training presentation given to the evaluators and woul d have been merely cumulative. Wilson did not meet his burden of proof to establish that he had exer cised due diligence and that anticipated testimony would not be cumulative. ( Jenkins, supra, 22 Cal.4th at p. 1037.) For these reasons, the trial court did not abus e its discretion in denying the request for a continuance. ( Lewis and Oliver, supra, 39 Cal.4th at p. 1036.) II. Prosecutorial Misconduct Wilson claims the prosecutor committed nine acts of misconduct during closing argument. This argument is forfeited. Wilson acknowledges that no objection or request for admonition was made in the trial court as to any of the instances of a lleged prosecutorial misconduct. A claim of prosecutorial misconduct is forfeited unless a defendant makes a specific objection in the trial court and requests an admonishment. ( People v. Grimes (2015) 60 Cal.4th 729, 780.) There is no reason to believe that an objection and admonish ment would not have cured any alleged harm. ( Ibid. ) We see no need to belabor the issue here as our review of the alleged acts of misconduct has not convinced us that any of the remarks by the prosecutor were improper. The alleged misstatement of the fact s were not misstatements at all, but were fair comments on the evidence. The claimed misstatements of law require a strained and isolated interpretation by the jury of what was said by the prosecutor before they rise to the level of misconduct. Wilson makes a perfunctory claim of ineffe ctive assistance of counsel for failing to object. He argues that there could be no tactical reason for counsel’s failure. We9. disagree. Counsel very easily could have determined, as we do, that no misstatements of fact or law occurred. Regardless, Wilson was not prejudiced by th e instances of alleged misconduct. The jury was instructed that the evidence consisted of sw orn testimony of witnesses and exhibits admitted into eviden ce, that nothing the attorneys said was evidence and their remarks during argument did not constitute evid ence, and that if any of the attorneys’ comments on the law conflicted with the trial c ourt’s instructions on th e law, the jury was to follow the trial cour t’s instructions. Wilson has not claimed the jury ignored th e trial court’s instructions, nor has he cited any indication of such. ( People v. Anzalone (2013) 56 Cal.4th 545, 557.) Consequently, we presume the jury follo wed the trial court’s instructions. ( People v.
Fuiava (2012) 53 Cal.4th 622, 669 .) Neither has Wilson asse rted that the jury was instructed erroneously. Therefore, any a llegedly improper remarks by the prosecutor were not likely to have been prejudicial. (See People v. Garza (2005) 35 Cal.4th 866, 881-882.) III. Application of Civ il Discovery Statutes Wilson contends he should be granted a new trial beca use Padilla and Matosich did not record their intervie ws with him, which he asserts is required by section 2032.530. We disagree. Factual Background Wilson initially filed a motion to exclude testimony from Jeko about his interview and the written evaluation comp leted by Jeko, claiming that the interview had not been recorded when it was ordered re corded by the trial court. The prosecution opposed the motion, noting that Wilson had sought such an order, but no such order had issued. The prosecution did not call Jeko to testify. Ultimately, however, Wilson called Jeko to testify at trial.10. At the probable cause hearing, Matosich testified that Wilson never asked for his interview to be recorded. At that same heari ng, Padilla testified that the State Department of State Hospital’s policy was that the interv iew not be recorded. Padilla did receive a request on behalf of Wilson to reco rd the interview; he did not do so. After the probable cause hearing, Wilson f iled multiple motions in limine, one of which sought to exclude the testimony of Pa dilla and Matosich an d the interviews and evaluations they completed on Wilson beca use the doctors had not recorded the interviews, which Wilson cont ended was required by form er section 2032, subdivision (g)(2). This provision is now codified as section 2032.530, subdivision (a). The trial court denied the motion. Analysis Section 2032.530 pertains to the conduct of a mental examination ordered by a court pursuant to section 2032.310. Wils on was not being interv iewed and examined pursuant to section 2032.310, or any court order. In fact, unlike proceedings under section 2032.310, Wilson had the right to dec line to participate in an interview. ( Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 425, 430 ( Sporich ).) Under section 2032.310, unlike the SVPA , the party must cooperate in th e interview or face sanctions. (See § 2032.410.) Wilson was being interviewe d pursuant to the SVPA, specifically, Welfare and Institutions Code sections 6601 and 6604.1. These code sec tions set forth in detail how the evaluations are to be prepared in anticipation of an SVP commitment or recommitment proceeding; no court order is required. Nothing in Welfare and Institutions Code sections 6601 and 6604.1 specifies that an interview in anticipation of a commitment proceeding must be r ecorded. What is clear is that Wilson did not have to consent to an interview; he had the right to decline. ( Sporich, supra, 77 Cal.App.4th at pp. 425, 430.) If Wilson objected to participating in an in terview unless it was recorded,11. he had the right not to particip ate in the interview; instead, he chose to proceed with an interview, knowing it wo uld not be recorded. Furthermore, section 2032.530, subdivision (a) states, “The examiner and examinee shall have the right to record a me ntal examination by audio technology.” The statute does not state that the examinee has th e right to force the ex aminer to record the interview for him or her. Wilson claims he aske d the doctors to record the interview. He did not attempt to record th e interview, nor was he pr evented from recording the interview himself. Contrary to Wilson’s assertion, the case of People v. Burns (2005) 128 Cal.App.4th 794 does not hold that Wilson had the right to be provided with an audio recording of his interview. That case merely restates the language of section 2032.530, subdivision (a)—that an ex aminee has the right to record his interview. ( Burns, at pp. 804-805.) The Civil Discovery Act of 1986 (Civil Discovery Act; § 2016.010 et seq.), of which section 2032.530 is a part, is app lied in SVPA proceedings on a case-by-case basis. ( People v. Superior Court ( Cheek ) (2001) 94 Cal.Ap p.4th 980, 994 ( Cheek ).) The scope of the application of the Civil Discove ry Act to SVPA proceedings is subject to those provisions of the Civil Discovery Act that authorize a trial court to manage discovery. ( Cheek, at p. 996.) Here, the trial court was asked by Wilson to manage discovery by ordering that the provisions of section 2032.530 be applied to SVP interviews and require the interview be audio recorded. The trial court declined to issue such an order. Thus, although the Civil Discovery Act is applicable to SVPA proceedi ngs, it is subject to application on a caseby-case basis and the trial court’s au thority to manage discovery. ( Cheek, supra , 94 Cal.App.4th at pp. 994, 996.) The trial court exercised its authority to manage discovery when it declined to or der Wilson’s interviews be taped. Subsequently, Wilson had the12. right to decline to be intervie wed by Padilla or Matosich. ( Sporich, supra, 77 Cal.App.4th at pp. 425, 430.) Having failed to obtain a court order to require his interviews be recorded, and having elected thereafter to proceed to be in terviewed even though he had the right to decline, Wilson cannot now claim the interv iews should have been excluded from evidence. IV. Admission of Testimony Wilson contends the trial court abused its discretion by allowing Matosich to testify to “highly prejudicial and inflammato ry evidence that had little, if any, probative value.” (Capitalization omitted.) We disagree. Standard of Review Only relevant evidence is ad missible. (Evid. Code, § 35 0.) Relevant evidence is any evidence tending to prove or disprove any disputed fact. ( Id., § 210.) Evidence Code section 353 provides that a timely objectio n and the specific grounds for exclusion of evidence must be asserted in th e trial court, and only those specific grounds raised in the trial court for exclusion may be asserted on appeal. ( People v. Partida (2005) 37 Cal.4th 428, 433-434 ( Partida ).) A trial court’s evidentiary rulings are reviewed for abuse of discretion. ( People v. Gonzales (2012) 54 Cal.4th 1234, 1256.) A trial cour t abuses its discretion if it acts in an arbitrary, capricious, or pa tently absurd manner. ( People v. Thomas (2012) 53 Cal.4th 771, 806.) Analysis Wilson challenges several descriptive term s used by Matosich. Wilson, however, failed to object to the use of two of the challenged terms and therefore has forfeited any claim of error. ( Partida , supra , 37 Cal.4th at p. 434.) Wilson did not object to Matosich’s use of the term “abhorrent behavi or” to refer to the prior rapes committed by Wilson or Matosich’s use of the term “deviant behavior” to refer to the criminal act of13. sodomy. Having failed to object in the trial court, the issue is not preserved for appeal. ( Ibid. ) Wilson also challenges Matosich’s use of th e term “torture” in describing the 1980 rape committed by Wilson because he was “not charged with th e crime of ‘torture’ in the 1980 rape.” When testifying, Matosich re ferred to “the amount of torture that [the victim] experienced,” at which point the defe nse objected. The trial court overruled the objection. This remark from Matosich came after he de scribed the acts that Wilson forced the victim to engage in and the impact of the criminal acts on the victim. Wilson kidnapped the victim at gunpoint from a store, forced he r into a car, and, after the car was driven to the side of a road, Wilson made the victim ge t out of the car and undress, after which he orally copulated her and licked her breasts. Wilson then took the victim back to the car, where he forced her to orally copulate him an d then vaginally raped her in the front seat. This activity continued for a peri od of time, with the victim pl eading for Wilson to stop. Matosich noted that the victim’s “statement” was that if this were to happen again, she would take her chances on be ing killed rather than go with her captor. Matosich then commented, “That speaks to the amount of tortur e that she experienced.” It was at this point the defense objected. This was the only time Matosich used the term “torture.” On cross-examination, Matosich clarified that th e term “torture” was not in any report. It was his conclusion because of th e way the victim was affected. He stated, “that was my statement, not the vic tim’s statement.” Even if the use of the term “torture” wa s improper and the trial court erred in not sustaining the objection, we conclude the use of the term was not prejudicial. ( People v. Homick (2012) 55 Cal.4th 816, 879 ( Homick ).) While Wilson finds the use of the term “torture” objectionable in reference to the acts inflicted on his 1980 rape victim because he was not charged with torturing the victim , there is no reasonabl e likelihood that any juror interpreted Matosich’s re marks to mean that Wilson had been charged with torture.14. Under cross-examination from Wilson’s couns el, Matosich made it clear this was his term, the term did not appear in any repor t, and he used the term only once. Lastly, Wilson contends the discussion of sexual sadism in c onjunction with the 1975 rape was prejudicial and not relevant because the facts showed the acts committed by him were consistent with rape, not sexual sa dism. Matosich testif ied that in the 1975 rape, Wilson held a knife to the husband’s throat, forced the hus band to watch while Wilson forcibly raped and sodomized the wife , “contained” the victim and her husband for a “significant period of time,” and tied up the victim and her husband. Matosich explained that although he did not diagnos e Wilson as suffering from sexual sadism, Wilson had engaged in behavior that often is seen among those who are diagnosed with sexual sadism, and those sexua lly sadistic traits had formed Matosich’s diagnosis of Wilson as suffering from para philia NOS. The discussion around sexual sadism thus was relevant to Matosich’s diag nosis. Relevant evidence is admissible. ( People v. Lucas (1995) 12 Cal.4th 415, 450.) The clarification that Wilson was not diagnosed as suffering from sexual sadism , in our view, makes the discussion nonprejudicial. ( Homick, supra, 55 Cal.4th at p. 879.) DISPOSITION The order committing Wilson as an SVP for an indeterminate term is affirmed.

________________ _________ CORNELL, Acting P.J.

WE CONCUR:

_____________________ GOMES, J.

_____________________ PEÑA, J.