People v. Aguon, D053875 (Cal. App. 12/14/2009)

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THE PEOPLE, Plaintiff and Respondent, v. ANTHONY SALAS AGUON, Defendant and Appellant.

D053875

Court of Appeals of California, Fourth Appellate District, Division One

December 14, 2009

Appeal from a judgment of the Superior Court of San Diego County, No. MH 101627, William H. Kronberger, Judge. Affirmed.

Not to be Published in Official Reports

O'ROURKE, J.

A jury found Anthony Salas Aguon to be a sexually violent predator (SVP). He was recommitted to an indeterminate civil commitment term under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, §§ 6600-6604.)¹

Aguon contends insufficient recent and objective evidence supports the jury's findings. He further contends the trial court erroneously: (1) instructed the jury to determine whether it was necessary to keep him in a secure facility to ensure the health and safety of others, which improperly directed the jury to consider the consequences of its verdict and thereby diminished the prosecutor's burden of proof and denied him due process; (2) instructed regarding his likelihood of reoffense; (3) admitted evidence regarding his prior 1972 uncharged rape; (4) failed to instruct the jury, without request, that it was required to find he had serious difficulty in controlling his sexual behavior. Moreover, (5) the prosecutor's "use of the term `sexually violent predator' was governmental misconduct;" (6) the evaluations supporting the petition to recommit him are invalid because the statutorily required protocol was an "underground regulation," which was promulgated in violation of the Administrative Procedure Act (APA); therefore, the trial court lacked jurisdiction to proceed with the SVP petition; (7) the SVPA violates the due process, equal protection, ex post facto and double jeopardy clauses of the federal or state Constitutions.²

FACTUAL AND PROCEDURAL BACKGROUND

The parties stipulated that Aguon was convicted of a sexually violent offense against more than one victim; specifically, in 1975, he was convicted of rape by threats of great and immediate bodily harm (Penal Code, § 261.3) and sentenced to three years to life in prison. In 1984, he was convicted of forcible rape and forcible oral copulation against two different victims (Pen. Code, § 261 (2); 288a, subdivision (c)) and sentenced to 37 years in prison.

Prosecution Evidence

Drs. Bruce Yanofsky and Mark Patterson, both psychologists, testified similarly for the People that they interviewed Aguon in 2007 and in 2008, and reviewed police and parole officers' reports, psychiatric and psychological evaluations, and prison records regarding Aguon's case. The psychologists evaluated Aguon using Static-99, Minnesota Sex Offender Screening Tool (MnSOST), the Sex Offender Risk Appraisal Guide (SORAG) and the Hare Psychopathy Checklist-Revised (PCL-R). On the latter actuarial tool, Aguon was in the highest risk category for reoffending in a sexually violent way, indicating a 100 percent likelihood of reoffending in seven to ten years. Both psychologists diagnosed Aguon with chronic paraphilia NOS (not otherwise specified), which manifests itself in deviant sexual arousal. The diagnosis was based on Aguon's criminal history, including extremely violent sexual offenses, which demonstrated his inability to inhibit such behavior despite arrests, incarcerations and hospitalizations. They also diagnosed him with alcohol dependency and antisocial personality disorder.

Dr. Yanofsky opined, "So, for instance, if someone knows that by drinking or drugging they commit crimes, well, they should not drink or go to drugs, and their personality may allow them to realize that and stop. But if you have a personality disorder to go along with it and you think you can go beyond the law or you can break the rules or you don't have the remorse, you don't have the guilt, you're not going to stop that behavior either. [¶] So you have a mix of three conditions that interact that, I think, lead to the type of behavior we've seen. Because in looking at the records I've described, rape is not . . . his only offense. He's also been violent in other ways. So we can't say that his personality disorder only acts in ways that affects [sic] his paraphilia. He's [sic] also stolen and assaulted and done other things that are very antisocial. But the whole mix is what really makes him . . . dangerous."

Dr. Yanofsky testified that in 1972, Aguon was criminally charged for his involvement in a gang rape incident, whose details were "a little sketchy." Consequently, Aguon was determined to have an unidentified mental condition requiring treatment and he was sent to Atascadero State Hospital, where he was seen and treated. This incident showed that Aguon, who was born in 1950, started his deviant sexual behavior at an early age.

Dr. Yanofsky testified that according to the official report of Aguon's 1975 conviction, he and another person responded to an advertisement for a garage sale and spoke to the woman hosting the sale. Aguon returned to her house alone and, in front of her four-year old child, demanded to have sex with her. He grabbed a pair of scissors and threatened to kill her, and subsequently raped her repeatedly outside of her child's presence.

In 1984, according to the official reports, Aguon approached a neighbor at her house, claiming he needed to collect money for work he had done. He grabbed her from behind, tried to choke her, threatened her, and forced her to have sex. The next day, Aguon forced himself into a different woman's car, told her he had a gun, was affiliated with law enforcement and had killed before. He threatened her and forced her to drive. At one point, the car was stopped and he forcibly had vaginal intercourse and oral and anal copulation with her.

Aguon told Dr. Yanofsky regarding the rapes, "I know at the time that the victim was saying, `No, No, No,' in my mind I am seeing it differently." Aguon was unable to stop himself from proceeding with the rapes.

Dr. Yanofsky testified that there is no record that Aguon committed any sexual offense between 1975 and 1984 because his convictions for parole violations and various crimes unrelated to sexual assaults resulted in "long periods of incarceration or hospitalization of one form [or] the other, so opportunity was really not there. Aside from that there [were] periods of supervision."

Dr. Yanofsky pointed to reported incidents of Aguon's misconduct at the hospital: that he was "corralling, at some point, staff . . . inappropriately, or approaching them or touching them. And these are places where these rules are very tight and very explicit." Although the Coalinga State Hospital offers different programs to help Aguon gain insight into his psychological condition and facilitate an eventual release from the hospital and into the community, he elected not to participate in any program except Alcoholics Anonymous. Dr. Yanofsky opined Aguon "definitely needs the restrictive treatment" in the hospital setting otherwise Aguon is likely to reoffend.

Dr. Yanofsky evaluated Aguon's risk of reoffending using Static-99, an actuarial instrument that ranks a criminal's probability of reoffense based on variables such as his age, relationships, number of prior convictions, whether those convictions were for violence and sexual offense; and if he knew his previous victims. Aguon showed a 39 percent chance of reconviction within five years after his release from an institutional setting and a 100 percent likelihood of reoffending in seven to ten years. Dr. Yanofsky separately analyzed different dynamic factors to determine Aguon's risk of reoffense, taking into account factors such as Aguon's juvenile offenses, failure to accept treatment while institutionalized, and criminal history. Dr. Yanofsky stated Aguon scored high on the PCL-R, which focused on psychopathy, or Aguon's detachedness from others and difficulty experiencing empathy, love and sincerity. These characteristics of a criminal mindset are based on his criminal history, including his rapes, assault, his failure to complete cognitive and behavioral sex offender treatment, violations of parole, and frequent unemployment. Dr. Yanofsky testified Aguon's future offenses are likely to be predatory because of his criminal history, his sexual assaults of women, and the unavailability of an intensive outpatient treatment program.

Dr. Patterson diagnosed Aguon with two substance abuse disorders, one for alcohol and another for cocaine. He testified Aguon had a "serial repetitive, recurrent, chronic inability to suppress those kinds of hostile sexual behaviors." Aguon also violated the personal space of women personnel at the hospital, touched them inappropriately, "creating an atmosphere of stalking," intimidated them and generally had an "inappropriate kind of sexualized approach to them." In their most recent interview, Aguon said "he had to learn to try to control [his fantasies related to coercive sexual behavior or rape] because if he didn't control it, it would be bad." Dr. Patterson concluded Aguon's conduct was predatory because he committed sexual offenses with women who were either casual acquaintances or strangers. Dr. Patterson also opined Aguon could not be safely released into the community because "for someone with his background, it would be difficult for him to put something together, a treatment plan of his own, because he would not be on parole . . . so he'd have to show even more self-initiative or self-starting kinds of behaviors to get involved in treatment. In fact, he told me he doesn't need treatment. So we would estimate that there's a very low likelihood he would seek it out on his own."

Defense Evidence

Edward Moon, a registered nurse at Coalinga State Hospital testified he meets with Aguon regularly and likes him because he keeps the hospital clean and does not cause trouble.

Four police officers employed at Coalinga State Hospital testified they had...