People v. Soto

THE PEOPLE, Plaintiff and Respondent, v. SERGIO MADRIZ SOTO, Defendant and Appellant.

H037041

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Dated: September 13, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 211383)

I. INTRODUCTION

Appellant Sergio Madriz Soto was convicted of lewdly touching a child under the age of 14 (Pen. Code, § 288, subd. (a)) and kidnapping (Pen. Code, § 207) and sentenced to state prison.¹ The victim was a three-year-old boy. Before Soto was released on parole, the People filed a petition to commit him as a sexually violent predator under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)²

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" (ibid). The criteria for a finding that a person is a sexually violent predator are set forth in section 6600, subdivision (a)(1): " 'Sexually violent predator' means a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior."

A jury found the allegation that Soto was a sexually violent predator to be true. By order filed on May 16, 2011, the trial court committed Soto to the state Department of Mental Health for an indeterminate term. On appeal, Soto raises the following issues: (1) the evidence was not sufficient to support the trial court's May 11, 2011 order authorizing the involuntary administration of antipsychotic medication ; (2) allowing the prosecutor to call Soto as a witness at trial violated his constitutional right to equal protection; (3) the indeterminate commitment under the SVPA violates his constitutional right to equal protection; and (4) the SVPA violates the due process, ex post facto, and double jeopardy clauses of the state and federal constitutions.

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 Soto, for the reasons stated below.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Commitment Petition

Before Soto's scheduled parole release date of February 6, 2009, the People filed, on February 3, 2009, a petition to commit him as a sexually violent predator under the SVPA. The petition stated that the state Department of Mental Health had requested thatSoto be civilly committed as a sexually violent predator based upon the evaluations of two psychologists whose reports were attached to the petition.

After a probable cause hearing was held, the trial court issued its May 29, 2009 order finding that there was probable cause to believe that (1) Soto had been convicted of a qualifying sexually violent offense against at least one victim; and (2) he has a diagnosable mental disorder; and (3) the disorder makes it likely that he will engage in sexually violent predatory criminal conduct if released. The trial court also ordered the matter to be set for trial.

B. The Jury Trial

1. In Limine Motions

The parties each filed several motions in limine. Relevant here, the People filed a motion in limine for an order allowing Soto to be called as a witness by the People and questioned "as if under cross-examination." During argument on pretrial motions, Soto objected that allowing the People to call him as witness would violate his constitutional right to equal protection. The trial court ruled as follows: "The court agrees the People may call [Soto] and examine him."

2. Trial Evidence

Testimony of Dr. Zinik

Gary Zinik, Ph.D. is a member of the sexually violent predator evaluation panel for the state Department of Mental Health. He performed a sexually violent predator evaluation of Soto dated January 21, 2009, that included review of Soto's criminal records, prison records, and mental health records. He also performed an updated evaluation at the request of the Department of Mental Health. In his first evaluation, Dr. Zinik diagnosed Soto's mental disorders as schizophrenia, undifferentiated type, and alcohol dependence. In his updated evaluation, Dr. Zinik added the provisional diagnosis of pedophilia. Dr. Zinik believes that schizophrenia is the underlying mental disorder that predisposes Soto to "sexually acting out in a violent manner."

Regarding the commitment offense, Dr. Zinik stated that Soto was in a "florid psychotic state" in which he heard "the voice of God telling him that he should kidnap a child. He did that. He kept the child for ten hours . . . really not understanding . . . that he was doing anything wrong. . . . [¶] And then suddenly he heard the word of God tell him that he should have sexual contact with the child, and this made perfect sense to Mr. Soto. . . . He molested this boy. He put his penis in the boy's mouth on two occasions. He touched his erect penis to the boy's anus . . . . [H]e's continued to have these hallucinations of God talking to him."

Based on his review of the records (including the records of Soto's other sexual misconduct), the commitment offense, the risk assessment test scores showing Soto to have the highest risk of sexual reoffense, and Soto's mental disorders, Dr. Zinik concluded that Soto met the statutory definition of a sexually violent predator because "he presents a substantial danger and a serious and well founded risk of . . . committing a future sexually violent predatory crime."

Testimony of Dr. Damon

William Damon, Ph.D. performed a sexually violent predator evaluation in 2008 on assignment from the state Department of Mental Health. In addition to reviewing Soto's records, Dr. Damon interviewed Soto. Dr. Damon's diagnoses were schizophrenia, undifferentiated type; alcohol dependence; and "antisocial features," which includes "failure to conform to social norms, impulsivity, aggressiveness, and disregard for the safety of others."

Dr. Damon concluded that Soto met the statutory criteria for a sexually violent predator, based on the interview, Soto's records (including the records of Soto's history of sexual misconduct and his commitment offense), his sexual preoccupation, his denial of his mental illness, and the risk assessment test scores showing that Soto has a "moderate-high to high risk to re-offend."

Testimony of Dr. Odom

Joan Odom, M.D. is employed at Atascadero State Hospital, where she was Soto's treating psychiatrist in 2011. She determined that Soto's diagnoses include schizophrenia, undifferentiated type, and alcohol dependence. When Soto was admitted to the hospital on March 17, 2011, Dr. Odom was told that Soto had exposed himself and was behaving erratically in the reception area. During her psychiatric evaluation on Soto's admission, Dr. Odom found "clear and convincing evidence" that Soto had schizophrenia. He was also demonstrating symptoms of psychosis.

When Dr. Odom informed Soto at the end of her evaluation that he needed treatment with medication, he denied that he had schizophrenia and became agitated. Dr. Odom ordered emergency medication because Soto had refused to take medication and she was concerned that he would be dangerous in the hospital. Dr. Odom also utilized an internal hospital procedure that allowed her to involuntarily medicate Soto. In Dr. Odom's opinion, the hospital staff would have been at risk of sexual assault by Soto if he were not medicated.

Testimony of Dr. Abbott

Soto's expert witness, Brian Abbott, Ph.D., is a licensed clinical psychologist who has treated and evaluated sexual predators since 2002. Dr. Abbott is not a member of the state Department of Mental Health's sexually violent predator evaluation panel because he "had some fundamental problems with the lack of scientific methods that are used by the state evaluators . . . ."

Soto's trial counsel asked Dr. Abbott to "review the reports by Dr. Zinik and Dr. Damon to look specifically at the risk assessment methods that they used with Mr. Soto and then to testify about the application of those risk assessment methods." In his testimony, Dr. Abbott questioned the accuracy and reliability of the risk assessment tests used by Dr. Zinik and Dr. Damon. However, Dr. Abbott did not have an opinion as to whether Soto would reoffend.

Testimony of Soto

When Soto was called as a witness on behalf of the People, the examination included questions about the commitment offense. Among other things, Soto stated that "since my wife left me and I was upset, well, I took the child thinking to myself, well, if I couldn't bring up my own child, I'll go ahead and bring up this one." Soto also admitted that he had touched the three-year-old victim's penis with his lips. When asked whether he thought "about sex all the time," Soto responded, "Until I tear up the woman's ass." However, his answers to many questions were nonresponsive.

3. Jury Verdict and Commitment Order

On May 16, 2011, the jury rendered its verdict finding the petition alleging that Soto was a sexually violent predator within the meaning of section 6600 to be true. Also on May 16, 2011, the trial court issued its order committing Soto to the custody of the state Department of Mental Health for an indeterminate term for appropriate treatment and...