People v. Zinlu, A114563 (Cal. App. 10/29/2007)

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THE PEOPLE, Plaintiff and Respondent, v. AVA ZINLU, Defendant and Appellant.

A114563

Court of Appeals of California, First Appellate District, Division Five

October 29, 2007

NOT TO BE PUBLISHED

Appeal from the San Mateo County, Super. Ct. No. CV403891.

NEEDHAM, J.

Ava Zinlu (Zinlu) appeals from a judgment extending his involuntary commitment in a state mental hospital under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA).¹ Zinlu contends: (1) the SVPA's standard for commitment (particularly if established by use of the Static 99 test) violates his due process rights, because it fails to account adequately for his age; (2) his due process rights were violated by an amendment to the SVPA permitting commitment for an indefinite term; (3) he was deprived of a fair trial because the court permitted expert witnesses to testify about details of his crimes and other behavior which, in the experts' view, supported their opinions; (4) his recommitment constituted cruel and unusual punishment; and (5) he was deprived of equal protection under the laws. Zinlu's arguments have no merit, and we will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

A. Background

In February 1998, a petition alleging that Zinlu was a sexually violent predator was filed in San Mateo County Superior Court. As set forth in the petition, Zinlu had been convicted of two violent sex crimes qualifying as predicate offenses under the SVPA, and he suffered from a mental disorder rendering him eligible for involuntary commitment for treatment. The trial court found probable cause and remanded him to the custody of Atascadero State Hospital pending trial.

Zinlu admitted the allegations of the petition. By order filed on August 7, 2001, the trial court found that he was a sexually violent predator within the meaning of former section 6600² and committed him for an initial two-year term of treatment (expiring August 9, 2003).

A petition to extend the commitment to August 9, 2005, was filed in May 2003. Trial on the petition commenced in August 2004, but the jury was unable to reach a verdict and a mistrial was declared. In a new trial, the jury found the allegations of the petition to be true. Zinlu was committed for an additional two-year period.

B. MOST RECENT PETITION TO EXTEND COMMITMENT

A petition to extend Zinlu's commitment for another two-year term was filed on June 9, 2005, alleging the commitment period was expiring on August 9, 2005, and seeking an extension to August 9, 2007. Both parties waived a probable cause hearing. A jury trial was held in January 2006, but the jury deadlocked and the court declared a mistrial. Retrial commenced on May 30, 2006.

1. Prosecution's Evidence at the Retrial

The prosecution presented the opinions of three expert witnesses that Zinlu was a sexually violent predator within the meaning of the SVPA, including that he suffered from a mental disorder creating a high risk that he would reoffend if released.

Psychologist Jeffrey Davis explained that an individual qualifies as a sexually violent predator if (1) he was convicted of two qualifying crimes; (2) he has a qualifying mental disorder; and (3) the mental disorder makes it likely that he will commit criminal sexual acts to an extent that he is a menace to others.

As to the qualifying crimes, Dr. Davis described Zinlu's convictions for forcible sodomies in 1978 and 1982. The 1978 conviction arose after Zinlu instructed a 17-year-old hitchhiker to pull his pants down to his knees and then sodomized him, armed with a bayonet, commenting on how good it felt. The 1982 conviction was based on an incident when Zinlu was in jail, in which he told his 18-year-old cellmate to accompany him to the shower, he struck the victim in the face, another cellmate held a shank to the victim's throat, and Zinlu and yet another cellmate sodomized him.

As to Zinlu's mental disorders, Dr. Davis opined that Zinlu suffered from paraphilia, not otherwise defined, with a target of nonconsenting partners. Paraphilia is characterized by recurrent and intense sexual fantasies, urges, or behaviors toward nonconsenting persons, for at least six months. Dr. Davis also testified that Zinlu suffered from polysubstance dependence, with institutional remission. In addition, Dr. Davis diagnosed Zinlu with anti-social personality disorder (APD), which is a pattern of disregard for and violation of the rights of others, characterized by deceit and aggressiveness, commencing before the age of 15. Dr. Davis based this diagnosis on reports that Zinlu was expelled from school before he was 15 for fighting, swearing, and spitting at teachers, stole money from his parents, failed seventh grade three times, and was committed to a juvenile facility for vandalism and burglary.

Also contributing to Dr. Davis's diagnoses was Zinlu's arrest record (including a 1970 burglary, a 1971 burglary, a 1972 assault conviction, the August 1978 sodomy of the hitchhiker, the kidnapping of his stepsister in August 1982 after instructing her to tape her wrists and ankles together and pulling down her pants and panties while telling her he was going to rape her, and the November 1982 sodomy of his cellmate), a rules violation Zinlu committed while in prison in 1985 (in which his cellmate said he struck Zinlu in self-defense for trying to rape him), and his absconding from parole two days after a release from prison.

As to assessing the risk that Zinlu would reoffend, Dr. Davis considered both static (unchanging) risk factors and dynamic (changing) risk factors. He measured static factors by actuarial tests, such as the Static 99 test. Zinlu's Static 99 score indicated that he had a 39 percent risk of reoffense in five years, a 45 percent risk in 10 years, and a 52 percent risk in 15 years. Zinlu's score on another actuarial test also indicated a high risk for reoffense.

Dr. Davis considered other factors in assessing the risk of Zinlu reoffending. Indeed, the diagnosis of paraphilia and APD, as two factors of sexual deviance, were the two major components of Dr. Davis's conclusion that Zinlu was a high risk to reoffend. He based his view that Zinlu had paraphilia and a high degree of sexual deviance on a 1986 Department of Corrections report that Zinlu wanted his genitals cut off because he had uncontrollable urges to masturbate, a report stating that he masturbated up to 16 times a day, and a 1978 Santa Barbara County probation report recording Zinlu's statements that he enjoyed urinating on women, beat up the boyfriends of bisexual women to capture the women like a "bull elk," and burned off the tattoo of a woman's boyfriend's name with a cigarette. The Santa Barbara probation report also referred to Zinlu's statements that he had worked as a prostitute and patronized "soft clubs," which are darkened rooms where people exchange blows. In addition, Zinlu expressed that he obtained sexual gratification from burning himself with cigarettes; several healed scars confirmed his statement. In an interview Dr. Davis conducted with Zinlu in May 2006, Zinlu denied his criminal history except for the 1978 offense. Dr. Davis also found that Zinlu has psychopathy, which further increased his likelihood of reoffense.

Dr. Davis acknowledged that Zinlu's advanced age (of 54) lowered his risk of reoffending, but not enough to outweigh the other factors that increased the risk, including Zinlu's APD, his psychopathy, his unwillingness to obey the law as shown by his parole violation, and the fact that he was a loner and had no history of intimacy. Dr. Davis also noted that Zinlu had no "protective" factors, such as the completion of a treatment program or history of being offense-free in the community for five years. By way of conclusion, Dr. Davis opined that Zinlu was at a high risk of reoffense.

Psychologist Jack Vognsen testified about Zinlu's two qualifying offenses, his offense against his stepsister, and the 1985 incident where his cellmate alleged that Zinlu had tried to rape him. Dr. Vognsen also considered Zinlu's request in 1992 to be transferred from a prison cell where he and his cellmate had repeatedly engaged in oral and anal sex. Dr. Vognsen diagnosed Zinlu with paraphilia, with attraction to sex with nonconsenting victims, APD, and polysubstance abuse. Those conditions together, he opined, are signs of a dangerous person.

In assessing the risk of reoffense, Dr. Vognsen considered Zinlu's results on the Static 99 and RRASOR (Risk Assessment of Sexual Offense Recidivism) tests, as well as other factors. Zinlu scored in the high risk category on both tests. The other factors included Zinlu's sexually deviant interests, no history of stable work experience or stable relationships, and no history of sex therapy or anger therapy. Zinlu also suffered from psychopathy which, along with APD and deviant sexual interests, increased the risk of reoffense. Furthermore, Dr. Vognsen opined, Zinlu displayed none of the protective factors that could lessen the risk. In regard to Zinlu's age, Dr. Vognsen noted the authority indicating that paraphilia tends to decline with age, but added that the risk of reoffending did not decrease in a high risk offender such as Zinlu, and studies have shown that the risk continues until the age of 60.

The prosecution's third expert witness, Dr. Douglas Korpi, also diagnosed Zinlu with paraphilia, APD, and substance abuse. He testified that three primary factors affected the likelihood of reoffense: degree of sexual deviance, degree of anti-social orientation, and dynamic factors reflected in any changes since the last offense. The Static 99 evaluation found Zinlu to be in the high risk category, and Zinlu had a high score on a psychopathy checklist as well. As to dynamic risk factors, Dr. Korpi testified that Zinlu's age and physical maladies lowered the risk of offense. Nonetheless, Dr. Korpi opined, Zinlu was still a...