People v. Olsen

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM KARL OLSEN, Defendant and Appellant.

H036654

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Dated: September 11, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County Super. Ct. No. 210555)

I. INTRODUCTION

The People filed an amended petition to extend the commitment of William Karl Olsen under the Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.)¹ after his commitment expired on October 5, 2008. The SVPA provides for the involuntary civil commitment for treatment and confinement of an individual who is found, by a unanimous jury verdict (§ 6603, subds. (e) & (f)), and beyond a reasonable doubt (§ 6604), to be a sexually violent predator (hereafter, sometimes SVP). A jury found the allegation that Olsen was a sexually violent predator to be true. By order filed on February 22, 2011, the trial court committed Olsen to the state Department of Mental Health for an indeterminate term.

On appeal, Olsen raises the following issues: (1) the evidence was insufficient to show that he is currently dangerous; (2) the trial court's response to juror question No. 5 was improper; (3) indeterminate commitment under the SVPA violates his constitutional right to equal protection; and (4) the SVPA violates his due process rights and the ex post facto and double jeopardy clauses and the Eighth and Fourteenth Amendments of the federal constitution.

Pursuant to the ruling of the California Supreme Court in People v. McKee (2010) 47 Cal.4th 1172 (McKee) that the equal protection challenge to the indeterminate term under the SVPA has potential merit, we will reverse the judgment and remand the matter for further proceedings consistent with McKee. We find no merit in the remaining issues raised by Olsen, for the reasons stated below.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Commitment Petition

On September 26, 2008, the People filed an amended petition to extend Olsen's commitment as a sexually violent predator under the SVPA. The petition stated that on October 5, 2000, Olsen was committed as a sexually violent predator to the state Department of Mental Health for two years, and since that date he "has been consistently committed to a new term as a Sexually Violent Predator."² The People asserted that Olsen "continues to meet the criteria for commitment as a sexually violent predator in that he continues to have a current diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent criminal behavior in the future."

After a probable cause hearing was held, the trial court issued its July 2, 2010 order finding that there was probable cause to believe that (1) Olsen had been convicted of a qualifying sexually violent offense against at least one victim; (2) he has a diagnosable mental disorder; (3) the disorder makes it likely that he will engage in sexually violent criminal conduct if released; and (4) the sexually violent criminal conduct will be predatory in nature. Thereafter, the case proceeded to a jury trial.

B. Jury Trial

The jury trial on the September 26, 2008 petition to extend Olsen's commitment under the SVPA began on January 31, 2011. The following summary of pertinent trial evidence is taken from the reporter's transcripts of the trial.

1. Background

At the age of five, Olsen was placed in foster care due to his mother's health problems. He later graduated from high school and worked as a mechanic and truck driver. He also served in the Army in Vietnam. Olsen has been married twice and has an adult daughter. At the time of trial, Olsen was 61 years old.

The parties' four expert witnesses considered the following six incidents from Olsen's criminal history in developing their opinions.

In 1972, Olsen used a handgun to abduct a 27-year-old woman in her car. After a struggle, Olsen got out of the car and left. There was no indication that a sexual offense had occurred and Olsen was convicted of "grand theft of a person." He served a jail sentence and was placed on probation.

The next incident took place in July 1973, when Olsen picked up two teenage girls, M. and T., who were hitchhiking. After taking the girls to an isolated area where his truck got stuck in the dirt, Olsen had them stand on the truck bed to gain traction. He then pushed T. down a 75-foot ravine and hogtied M. After finding T. and threatening her with a knife, Olsen saw that T. was bleeding profusely. He untied M. and together they brought T. back up to the truck. When the girls asked Olsen why he was doing this,he said he intended to rape them. Olsen did not rape the girls and instead took them home.

In August 1973, Olsen picked up an 19-year-old hitchhiker, M.L., and took her to an isolated area. When Olsen took out a rope, M.L. pleaded with him not to tie her up. Olsen then ripped off M.L.'s blouse and M.L. said she would do what he wanted her to do. After placing M.L. on the truck bed and raping her, Olsen apologized. M.L. asked him to take her to the hospital because she recently had surgery following a miscarriage. Olsen took M.L. to the hospital and checked himself into the psychiatric unit next door.

Olsen was incarcerated in 1974 and paroled in 1978. He was discharged from parole in 1979 and committed his next sexual offenses in 1980. C., a 16-year-old girl, was picked up by Olsen in January 1980 while she was hitchhiking and taken to Stevens Creek dam. After arriving, Olsen, who had knife, hit C. below the eye and tied her up with rope. Olsen then took C. to another location in the mountains. There, Olsen put a rope around C.'s neck and walked her up a trial to a desolate location, where he orally copulated C., sat on her, untied her, and forced her to orally copulate him. Olsen also sodomized C. and raped her. He then apologized and took C. home.

The next incident occurred in June 1980 and involved S.P., age 19. Olsen picked S.P. up while she was hitchhiking. He put his knife to her throat and cut her slightly, and also orally copulated her. Next, Olsen took S.P. to an isolated area in the mountains, where he tied her hands behind her back with a belt. S.P. screamed in pain when Olsen put his fingers in her anus and then sodomized her. He also made derogatory sexual statements during the course of the sodomy.

The last incident occurred on July 9, 1980, about one month after the incident involving S.P. K. was a 17- year-old beauty college student who met Olsen when he used a pay phone after she used it during her lunch hour. Later that day, Olsen called K. over to his car when she came out of the beauty college. Olsen then pulled K. into his carby holding a knife to her throat. Olsen had pictures of K. in his car and threatened to kill her.

After getting K. into his car, Olsen tied a rope painfully tight around her neck and gagged her with a cloth and shoestrings. Olsen then drove K. to an isolated area in the hills. On the way, Olsen undressed K. and fondled her. After arriving, Olsen tied K. to a log with ropes attached to her wrists, legs, and neck. He then hit K. in the buttocks with a stick, causing bruises, and sodomized and raped her. After finishing the assault, Olsen was pleasant and talkative with K. He also showed her how to shoot his BB gun. But when K. made the comment, "well, everyone needs friends," Olsen became very angry and violent. He pushed K. down, sodomized her again, bit her neck, and hit her on the buttocks with his BB gun, breaking it.

Following the 1980 offenses, Olsen pleaded guilty to the sodomy and oral copulation of C. and the sodomy and rape of K. He has been in custody since 1980.

2. Witness Testimony

Testimony of Dr. Owen

Robert Owen, Ph.D. is a licensed clinical psychologist in private practice. Since 1986, he has conducted sexually violent predator evaluations for the Department of Mental Health. The trial court recognized Dr. Owen as an expert in "the diagnosis of mental disorders, treatment, and risk assessment of sex offenders."

Dr. Owen began his evaluation of Olsen in 2008. At that time, he reviewed Olsen's criminal record and psychological reports by other evaluators. Dr. Owen also interviewed Olsen on three occasions, in 2009, 2010, and 2011. In Dr. Owen's opinion, Olsen has the following mental disorders: "sexual sadism, with gender identity disorder, and with a personality disorder involving borderline traits."

Dr. Owen explained that the diagnosis of sexual sadism requires a pattern of sadistic behavior over a period of at least six months, in which the person is sexually aroused by the physical or psychological harm inflicted upon a nonconsenting victim.Dr. Owen also explained that a sexual sadist is different from a "typical rapist" due to the "amount of violence that he's used. . . . A person has to be turned on to violence or degradation of victims." Dr. Owen further opined that sexual sadism is a chronic condition that does not spontaneously disappear.

The diagnosis of sexual sadism for Olsen was based largely on Dr. Owen's finding that Olsen's history of sexual offenses showed that he is sexually aroused in combination with violence and inflicting pain and degradation on the female victim. Dr. Owen also considered Olsen's social history and Olsen's statements about his homosexual activity, which included a male lover and cross-dressing.

Although Dr. Owen acknowledged that Olsen had behaved well during his 30 years of incarceration, that did not change Dr. Owen's opinion that Olsen is a sexual sadist. Dr. Owen pointed out that Olsen had resumed committing sadistic sex offenses after his first incarceration, had not...