California Court of Appeal Apr 4, 2014 No. D062968Unpublished
Filed 4/4/14 P. v. DeJarlais CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062968
Plaintiff and Respondent,
v. (Super. Ct. No. MH106082)
STEVEN DANIEL DEJARLAIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.
Lasater, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for the Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant
Attorneys General, A. Natasha Cortina, Brendon Marshall, Deputy Attorneys General,
for the Plaintiff and Respondent.
After a jury found appellant Steven Daniel DeJarlais to be a sexually violent
predator (SVP), the trial court committed him to the custody of the Department of State
Hospitals for an indeterminate term under the Sexually Violent Predator Act (SVPA;
Welf. & Inst. Code,1 § 6600 et seq.) DeJarlais contends: (1) there was insufficient
evidence to sustain the finding he is an SVP and, alternatively, the SVPA is void for
vagueness; (2) the trial court erred in its oral instruction of the jury with CALCRIM No.
Cal.4th 680, 684.) The Supreme Court adds, "The statutory scheme does not prohibit the
trier of fact at the trial, in deciding whether the defendant is likely to commit sexually
violent acts upon release, from taking into account past acts of sexual violence, even if
the victims were not strangers, casual acquaintances, or persons cultivated for
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victimization." (Id. at p. 686; accord, People v. Roberge (2003) 29 Cal.4th 979, 986-
988.)
As noted, the record evidence supports the finding DeJarlais is likely to commit a
predatory sexual offense if he is released to the community: Three psychologists,
including a defense expert, testified that DeJarlais scored high on the actuarial instrument
used to measure just such a likelihood. Further, DeJarlais was incarcerated and released
on parole on different occasions, and was not deterred from committing sexual offenses.
Dr. Davis testified in reference to J.G.'s case that the time between when DeJarlais meets
a woman and victimizes her is narrowing. Dr. Davis also noted DeJarlais had not
acquired sufficient insight into his violent behavior. As noted, Dr. Salz correctly
identified the statutory requirements and testified regarding DeJarlais's likelihood of
committing a violent sexual act with a stranger. The discussion regarding whether
DeJarlais's past relations were substantial did not affect the analysis regarding the
specific question of future offenses.
DeJarlais also argues, "Two defense experts said appellant was simply showing
his sociopathic traits in raping the victims, like any domestic abuser or criminal might do.
Neither saw any paraphilia, because neither saw evidence appellant was aroused by his
victims' lack of consent, as opposed to being oblivious of it." However, in light of the
substantial evidence supporting the jury's finding and the applicable standard of review, it
is immaterial that defense experts reached a different conclusion. It is also unavailing
that Dr. Salz used a dictionary to define the word "substantial," which appears in the
SVPA. As noted, Dr. Salz correctly set forth the SPVA's requirement that he find
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DeJarlais would commit future predatory sexual acts. " 'The credibility of the experts and
their conclusions [are] matters [to be] resolved . . . by the [trier of fact],' and '[w]e are not
free to reweigh or reinterpret [that] evidence.' " (People v. Poulson (2013) 213
Cal.App.4th 501, 518.)
B.
DeJarlais alternatively contends that if the SVPA covers domestic violence
offenses within the meaning of predatory sex offenses, then the law is void for vagueness.
DeJarlais argues the prosecution's "central thesis" was that dysfunctional relationships
were predatory because they were not "nourishing" or "solid." He further argues:
"[B]oth prosecution experts . . . appeared to be finding that a short relationship such as a
month or a few months, was either not 'substantial' within the meaning of that language;
or it was to be deemed a basis for finding a risk of future 'predatory' sex offenses, because
the victim was 'pulling away' and wanted out. In addition, both experts pointed to the
defendant engaging in predatory behavior, in a more general sense, applicable to
domestic abuse."
DeJarlais has forfeited this claim by failing to raise it in the trial court. (In re
Josue S. (1999) 72 Cal.App.4th 168, 170-171 [" ' " 'No procedural principle is more
familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be
forfeited in criminal as well as civil cases by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it.' " ' ".)
In any event, even if this issue were properly before us, we would reject it. The
prosecution psychologists, in testifying that DeJarlais was likely to reoffend, correctly
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applied the SVPA's definition of "predatory" at section 6600, subdivision (e), as follows:
" 'Predatory' means an act is directed toward a stranger, a person of casual acquaintance
with whom no substantial relationship exists, or an individual with whom a relationship
has been established or promoted for the primary purpose of victimization." As set forth
above, despite questions at trial regarding the quality of DeJarlais's past relationships, the
specific inquiry at trial was whether he would likely commit a predatory sexually violent
act, and on that matter the two prosecution experts agreed, based on their actuarial
assessments, the narrowing time period in which DeJarlais attacked his victims, and his
inability to modify his conduct to avoid reoffending, despite having served time in prison
and been placed on probation and parole.
II.
DeJarlais contends the court committed reversible error by orally instructing the
jury with an incomplete version of CALCRIM No. 224, which omitted the second
paragraph.2 However, the jury received a complete instruction of CALCRIM No. 224.
The California Supreme Court has ruled, "It is generally presumed that the jury was
2 The jury was given a complete written version of CALCRIM No 224, stating: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the respondent guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the respondent guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the respondent is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
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guided by the written instructions. [Citation.] We indulge that presumption here."
(People v. Davis (1995) 10 Cal.4th 463, 542.) The Supreme Court also has held: "[A]s
long as the court provides the jury with the written instructions to take into the
deliberation room, they govern in any conflict with those delivered orally." (People v.
Osband (1996) 13 Cal.4th 622, 717 [describing some of the conflicts between the oral
and written instructions as "misstatements, each of a minor character"].) Here, the
conflict or variance in the instructions—the omission of a paragraph from the oral
instruction—was corrected in the written instruction. Therefore, we conclude there was
no prejudicial error.
III.
Solely for purposes of potential federal court review, DeJarlais contends the SVPA
violates the federal Constitution's due process, ex post facto, and double jeopardy clauses.
As he acknowledges, the California Supreme Court has decided against his position on
these points. We have considered DeJarlais's arguments in light of our Supreme Court's
opinion in People v. McKee (2010) 47 Cal.4th 1172 (McKee I), and this court's final
opinion on remand in the same case, People v. McKee (2012) 207 Cal.App.4th 1325
(McKee II). McKee I is binding on us. (Auto Equity Sales v. Superior Court (1962) 57
Cal.2d 450, 455.)
IV.
With respect to his equal protection challenge, DeJarlais argues he is entitled to an
individual assessment as to whether he should be subjected to an indeterminate term
when other civilly committed offenders are not, and the case should be remanded to the
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trial court to make these findings in his specific case. Because DeJarlais did not raise this
fact-based claim before the trial court, we deem it forfeited on appeal. (See In re Spencer
S. (2009) 176 Cal.App.4th 1315, 1323.)
We also reject the claim on the merits. In McKee I, the California Supreme Court
stated that on remand the People would have an opportunity to prove that SVP's "as a
class" pose a greater risk than similarly-situated offenders so as to justify indefinite
commitment "at least as applied to McKee." (McKee I, supra, 47 Cal.4th at
pp. 1208, 1210.) At the remand hearing, after an extensive evidentiary presentation, the
trial court found the People had made the requisite showing, and on appeal this court
affirmed the trial court's ruling. (McKee II, supra, 207 Cal.App.4th at pp. 1330-1331,
1348.) In our decision on appeal, we concluded that the information presented by the
People supported that SVP's as a class pose distinct dangers that permit them to be treated
differently from other types of offenders, and our holding was not premised on McKee's
particular characteristics. (Id. at pp. 1340-1348.) Given the scope of our holding, we
reject DeJarlais's contention that he is entitled to an individualized determination of his
equal protection challenge. (Accord, People v. McKnight (2012) 212 Cal.App.4th 860,
863-864 [McKee II 's equal protection holding applies to "class of SVP's as a whole," not
to Mr. McKee alone]; People v. McDonald (2013) 214 Cal.App.4th 1367, 1377-1378.)
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DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.
17
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's commitment as a sexually violent predator (SVP), holding that the evidence was sufficient to support the finding and that the defendant's constitutional and instructional challenges were either forfeited or meritless.
Issues
Whether there was sufficient evidence to support the jury's finding that the defendant is a sexually violent predator.
Whether the Sexually Violent Predator Act is void for vagueness.
Whether the trial court committed reversible error in its oral instruction of the jury with CALCRIM No. 224.
Whether the defendant is entitled to an individualized hearing regarding his equal protection challenge.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The statutory scheme does not prohibit the trier of fact at the trial, in deciding whether the defendant is likely to commit sexually violent acts upon release, from taking into account past acts of sexual violence”
“Given the scope of our holding, we reject DeJarlais's contention that he is entitled to an individualized determination of his equal protection challenge.”