People v. Ding

THE PEOPLE, Plaintiff and Respondent, v. GREGORY SCOTT DING, Defendant and Appellant.

C082704

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)

February 25, 2021

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCV0036682)

As defendant Gregory Scott Ding was nearing the end of his state prison term for the crimes of lewd act on a child (Pen. Code, § 288, subd. (a)) and attempted lewd act on a child (Pen. Code, §§ 664, 288, subd. (a)), the People filed a petition to commit him to the custody of the Department of State Hospitals (DSH) as a sexually violent predator (SVP) pursuant to the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq).¹ The two state psychologists evaluating defendant initially disagreed as to whether he was an SVP, as did the two independent psychologists who subsequently examined him. The petition for his commitment was not filed until after the state psychologist who initially found him not to be an SVP filed an addendum changing his findings and concluding defendant was an SVP. During the court trial, which was held shortly before the California Supreme Court issued a decision significantly limiting the use of hearsay in expert opinion testimony, the expert witnesses all relied on case-specific hearsay statements in their testimony.

Defendant appeals from the trial court's judgment committing him as an SVP. He contends the People did not have authority to file the SVP petition, improperly admitted case-specific hearsay warrants reversal, trial counsel was ineffective in failing to object to portions of the probation report from his qualifying convictions, counsel was ineffective by providing no effective defense, and cumulative error warrants reversal. In a supplemental brief, he contends a provision in Penal Code section 3000 tolling the parole period for an SVP violates equal protection and constitutes an ex post facto punishment. We find the petition was authorized, the hearsay error was harmless, counsel was not ineffective in declining to object to the probation report and did not fail to provide an effective defense. We also find no equal protection or ex post facto problems with tolling his parole. As there were no errors other than the harmless hearsay error, cumulative error does not justify reversal. We affirm.

BACKGROUND

Prosecution Case

1. Dr. Maram

DSH psychologist, Dr. Wesley Maram, interviewed defendant for about two hours and reviewed various documents related to his criminal history. Defendant committed his first offense in 1981 when he was 17 years old by exposing himself to a child. Defendant denied being arrested on that charge, claiming he was arrested for theft. Dr. Maram was provided with a police report of the incident after he finished the evaluation. According to the report, defendant was riding a bicycle when he saw an eight-year-old girl, turned the bicycle around, and exposed himself to her. Defendant asked the girl if she knew what "it" was; when she said no, defendant told her it was his penis and then rode off. This led Dr. Maram to conclude defendant had pedophilia since his teenage years.

Dr. Maram asked defendant about a 2006 offense where he exposed himself to a female in a women's restroom. Defendant said he did not remember the event as he was drunk and did not know what was going on. Dr. Maram found it significant defendant avoided acknowledging his "sexual deviant problems." Defendant was also inconsistent and deceptive with Dr. Maram and other evaluators.

Dr. Maram reviewed a probation report regarding a series of offenses committed by defendant against female minors in 2009 and 2010. The first incident involved a 10-year-old girl who was walking about defendant's home when he picked her up and put his hand under her skirt and on her buttocks. The girl left and returned later that day, at which point defendant put the girl on his lap and put his hand on her vagina, over her clothing. It was significant that defendant's behavior had escalated from exposing himself. These offenses were predatory since the victim was a stranger to defendant. When asked about the incidents, defendant replied that the girl was more sophisticatedand mature than you expect from a 10 year old. This statement was typical of a child molester.

Defendant had an incident with another girl in 2009; he and his family were friends with this girl's family. Her father saw her put her hands on her vaginal area while she was sitting on defendant's lap, which was a form of grooming behavior. Another time, a different family member walked into the kitchen and saw defendant with his hands on the girl's vagina. When the family member walked in, defendant quickly moved his hands away, as if he had been caught. Defendant did not admit anything specific to the girl's parents but did apologize to them.

Defendant also had a peeping Tom incident with this girl in 2010 where he was drunk, in the backyard, and had a ladder with him. The fact that defendant was in the girl's backyard even though he previously apologized to her family showed a lack of control over his urges. Defendant said the incident was fabricated. He told the probation officer that he needed sex offender and alcohol offender treatment.

The details of the last incident, in June 2010, were taken from a police report. Defendant was intoxicated and at a swimming pool where families were present. He had a six-year-old girl hold a hose at his exposed genitalia. This was a very specific pedophiliac act. In a 2010 evaluation by another psychologist, a Dr. Nelson,² defendant, when asked what happened, claimed not to remember the incident and "intoxication was what occurred." When Dr. Maram asked him about the incident, defendant replied, "I acted inappropriately when I asked the girl to rinse me off in the shower."

Defendant admitted to Dr. Nelson there had been a second incident at the same pool. Dr. Maram found it significant that defendant continued to expose himself tochildren in a place where others could easily observe him. This indicated defendant's judgment was impaired and defendant was out of control.

Dr. Maram found other statements made by defendant in the 2010 examination to be significant. Defendant told Dr. Nelson he had been sexually attracted to children since he was a teenager. Defendant told Dr. Maram he was not sexually attracted to children. Confronted with his statement from the 2010 evaluation, defendant claimed Dr. Nelson in effect put words into his mouth. Other significant statements from defendant in the 2010 report were his acknowledging that he needed help and that he had tried to change and control his thoughts by thinking of having sex with his spouse. These statements reinforced the conclusion that defendant had difficulty controlling his behavior.

Dr. Nelson administered the MCMI 3, a personality inventory, to defendant. Defendant made statements reflecting immaturity and difficulty with impulse control. Dr. Maram agreed with Dr. Nelson that defendant was out of control toward children at the time of his 2010 evaluation.

Dr. Maram diagnosed defendant as suffering from a pedophilic disorder, with an attraction to females, but he was not attracted to children exclusively. Defendant also suffered from an exhibitionism disorder, was sexually aroused by exposing his genitalia to children and adults in a controlled environment, had persistent depressive disorder, severe alcohol use disorder, moderate cannabis use disorder, and unspecified personality disorder. He also suffered from impaired volitional or emotional control.

Defendant had a low score of 11 on the Hare Psychopathy Checklist. He scored five on the Static-99R, which showed a five-year risk of reoffending at 16 percent. Dr. Maram also administered the Structured Risk Assessment-Forensic Version, which showed defendant falling in the routine group of sex offenders regarding the likelihood of reoffending. He had a score of two, the highest possible score in sexual preference for children and showed an elevated sexual interest. This showed any reoffense would be toward children.

Dr. Maram found no factors that would reduce defendant's risk of reoffending if released. Defendant told Dr. Maram that he did not have a sexual problem and his problem was substance abuse. He did not acknowledge having committed any sexual offenses, claiming that they were fabricated or lies and that he could not remember and was intoxicated. Defendant said nothing to indicate he would voluntarily pursue sex offender treatment, which was consistent with his claims of not having a sexual problem.

Dr. Maram concluded defendant was likely to commit another sex offense and therefore required custody and treatment.

2. Dr. Vorwerk

DSH psychologist, Dr. Michelle Vorwerk, interviewed defendant in prison, but he terminated the interview after roughly 40 minutes. Her evaluation of defendant was based on her review of numerous documents including police reports, the probation report, and the criminal records associated with his case. She reviewed a 1981 and 2010 police report after making her recommendation, but these reports did not change her conclusions.

Defendant committed his first offense when he was 17 years old and had been in a controlled environment since July 4, 2010. He was married at the time of the qualifying convictions, which showed he would commit a sexual offense against a child even when an adult sexual partner was available. Defendant denied fantasizing about children. When confronted by a contrary statement he made during the 2010 evaluation, defendant continued to deny and claimed the doctors then made up things and put words into his...