Filed 3/22/16 P. v. Walquist CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050686

         v.                                                            (Super. Ct. No. 13CF1378)

ALEXANDER SCOTT WALQUIST,                                              OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Kimberly
Menninger, Judge. Affirmed.
                   James R. Bostwick, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              A jury convicted defendant Alexander Scott Walquist of criminal threats
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(Pen. Code, § 422, subd. (a)) and stalking (Pen. Code, § 646.9, subd. (a)). The trial court
sentenced defendant to four years in prison, consisting of three years for criminal threats,
eight months for stalking, and four months for attempted grand theft (a crime which
defendant pleaded guilty to in a separate case).
              During the trial, the court placed limits on defense expert witness
testimony. Defendant contends his expert should have been allowed to opine whether
defendant had the intent or ability to form the requisite intent for the crimes alleged. But
the court properly limited the expert’s testimony under section 29.
              Defendant also challenges the court’s imposition of lifetime sex offender
registration. The court, however, acted within its discretion under section 290.006 by
finding defendant’s stalking conviction was motivated by sexual compulsion or
gratification. We affirm the judgment.


                                          FACTS


Background
                                                                                    2
              Defendant attended grade school and high school with the victim, but they
never formed a personal friendship or romantic relationship. Defendant initially
established contact with the victim in July 2012, when he began sending messages to her
online blog account. From July 2012 through April 2013, defendant continuously
attempted to contact the victim through hundreds of online messages, phone calls,
voicemails, text messages, and photographs. This contact was uninvited and unwanted


1
              All statutory references are to the Penal Code.
2
              We will refrain from using the name of the individual targeted by
defendant.

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by the victim. Over the 10-month period, the victim only responded to defendant to tell
him to stop contacting her and to warn him that she would go to the police if he did not.
              Defendant’s messages were consistently harassing, lewd, sexual, and
physically threatening. For example, defendant once sent the victim 148 text messages in
a row, the majority of which were the same photograph of his genitalia. Defendant
would also call the victim repeatedly and leave graphic and threatening voicemails. For
instance, in one voicemail defendant said, “See I’m looking forward to tearing up that
little pussy of yours.” In another voicemail, defendant said, “I admit that perhaps raping
you at N64 was a ah maybe wasn’t the best choice of words, fuck it that’s what I said
though; I’m not going to take back what I said. I’m gonna rape you at N64 that’s what
I’m going to do . . . . I’m going to rape you at N64. I will rape you at N64 because I’m
the man.”
              In some instances, defendant’s messages indicated that he planned to
encounter the victim in person at a specific time and location. For example, defendant
once told the victim he would come to her home at 7:00 p.m., that evening, which
frightened the victim and caused her to warn her family. On a few occasions, defendant
sent messages indicating that he was around the corner from the victim’s place of work
and planned to come meet her when she got off work at 9:00 p.m. Things escalated in
early 2013 when defendant began contacting the victim more frequently and saying he
planned to have forced sexual intercourse with her on May 1. Although defendant began
referring to May 1 as early as January 2013, his threats became more frequent during
April 2013.
              On April 25, 2013, in anticipation of the threatened May 1 deadline, the
victim went to the police. Police investigators subsequently collected a cell phone and a
computer from defendant’s home. On those devices, the investigators found evidence of
the messages and photographs the victim claimed she had received from defendant.



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Medical History and Expert Testimony
              Francisco Gomez, a forensic clinical and neuropsychologist with a
doctorate in clinical psychology, testified as defendant’s expert witness. Gomez based
his psychological assessment of defendant on his interviews with defendant and on third-
party information such as the police report, a psychiatric hospital report, and an interview
with defendant’s mother. While interviewing defendant, Gomez gave him a series of
tests that included a personality inventory, an IQ test, neuropsychological tests, and tests
for malingering.
              The test results demonstrated defendant’s poor judgment despite his
relatively high IQ, as well as problems with attention, concentration, and impulse control.
According to Gomez, these deficits suggest an impairment of the frontal lobe of the brain
that restrains one’s ability to adjust actions based on prior experiences. Gomez further
explained that a person with this impairment will say what he or she is thinking without
considering the effect and consequences, which Gomez called a lack of insight. Gomez
also testified that he diagnosed defendant with two illnesses — bipolar disorder and
substance abuse disorder — and explained in detail why he reached these diagnoses.
              During direct examination, defense counsel explicitly prompted Gomez to
opine whether defendant had the requisite intent, or ability to form the requisite intent, for
the crimes charged. However, each time defense counsel posed a question to Gomez
about defendant’s specific mental state while engaged in criminal activity, the court
sustained the prosecution’s objections.


                                       DISCUSSION


              The primary issue on appeal is whether the court’s limitation on Gomez’s
testimony was proper. Defendant also challenges the imposition of lifetime sex offender



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registration, which the court ordered pursuant to findings that defendant stalked victim as
a result of sexual compulsion or for the purposes of sexual gratification.


Limitation on Expert Testimony
              The court’s limitation on Gomez’s testimony, which precluded him from
opining whether defendant had the requisite intent, or ability to form the requisite intent,
for the crimes charged, was proper under section 29. Under section 29, “any expert
testifying about a defendant’s mental illness, mental disorder, or mental defect shall not
testify as to whether the defendant had or did not have the required mental states, which
include . . . intent . . . for the crimes charged. The question as to whether the defendant
had or did not have the required mental states shall be decided by the trier of fact.”
              Section 29 “permit[s] introduction of evidence of mental illness when
relevant to whether a defendant actually formed a mental state that is an element of a
charged offense, but do[es] not permit an expert to offer an opinion on whether a
defendant had the mental capacity to form a specific mental state or whether the
defendant actually harbored such a mental state.” (People v. Coddington (2000) 23
Cal.4th 529, 582, overruled on other grounds in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13; see People v. Smithey (1999) 20 Cal.4th 936, 960-961 [“an
expert may not offer an opinion regarding whether the defendant had the capacity to form
the intent required for the crime, or whether the defendant actually did form the requisite
intent”].)
              Defense counsel explicitly asked Gomez to comment on defendant’s mental
state in violation of section 29. Defense counsel first asked, “And in your opinion how
did [defendant’s] mental illness affect his intent in creating, sending those messages and
in behaving in that way?” The court sustained the prosecution’s objection. Defense
counsel then asked, “In your opinion, did [defendant’s] mental illness affect his mental
state during the period of July 2012 to April 2013?” The prosecution’s objection was

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again sustained. Defense counsel went on to ask generally, “Is it possible for a bipolar
person to form intent?” and “Is it also possible for a bipolar disorder to inhibit someone’s
ability to form intent?” Gomez was permitted to answer both of these questions without
interruption. However, when defense counsel asked Gomez a third time if he had “an
opinion about whether [defendant’s] bipolar disorder affected his intent during the period
of July 2012 to July 2013,” the court again sustained the prosecution’s objection. After
the court had prohibited Gomez from answering essentially the same question three
times, it explained that counsel was allowed to ask Gomez hypothetical questions, but
could not ask Gomez to state his opinion about the defendant’s specific mental state.
              Defendant relies on People v. Cortes (2011) 192 Cal.App.4th 873 (Cortes)
in asserting that the court’s limitation on Gomez’s testimony was improper. In Cortes,
the court reversed a conviction of first degree murder on the grounds that the trial court
improperly restricted expert testimony by the defendant’s psychiatric expert witness. (Id.
at p. 877.) During trial, the defendant’s expert was allowed to describe generally the
mental conditions of dissociation and posttraumatic stress disorder, but prohibited from
testifying about the defendant’s mental condition at all. (Id. at 891.)
              Cortes does not parallel the case at hand. The expert in Cortes was only
allowed to generally describe symptoms of a “dissociative state” and prohibited from
opining that the defendant himself was in a dissociative state. (Cortes, supra, 192
Cal.App.4th at p. 899.) The expert was not allowed to point to examples of the
defendant’s behavior that would support an inference that he was in a dissociative state.
(Ibid.) Further, in Cortes, the court even refused to tell the jury whether the expert
witness had personally interviewed the defendant, citing section 29 for its rationale.
(Cortes, at p. 901.)
              Here, to the contrary, Gomez testified that defendant had bipolar disorder
and substance abuse disorder, and discussed specific examples of defendant’s behavior
that illustrated why he reached those diagnoses. Gomez was allowed to testify that “a lot

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of times [defendant will] think things and just say them and not think about what the
effect could be . . . . He doesn’t think about how or what he says can and does and will
affect the other person.” Gomez was allowed not only to reveal he had interviewed
defendant twice, but also to explain the nature of the interviews, the results of the
interviews, and his analysis of the results. Gomez was allowed to describe the methods
he used to assess defendant’s psychological and cognitive functioning, describe the
nature and results of his interviews and psychological testing of defendant, provide a
lengthy explanation of the relationship between the neurological impairment he claimed
to see in defendant and bipolar disorder and attention deficit disorder, present information
he gathered from defendant’s mother about defendant’s medical history, and explain why
he believed defendant had bipolar disorder and substance abuse disorder.
              The single thing Gomez could not comment on was whether defendant had
the requisite intent, or ability to form the requisite intent, for the crimes charged. Thus,
under section 29, the court’s limitation on Gomez’s testimony was proper.
              We further reject defendant’s proposition that the court’s limitation on his
expert testimony deprived him of due process under the Fourteenth Amendment and the
right to obtain witnesses in his favor under the Sixth Amendment. Evidentiary
restrictions imposed by section 29 do not deny a defendant of his or her constitutional
rights, because although an expert may not opine that a defendant had or did not have a
culpable mental state, the expert may still present “extensive psychological testimony
relevant to the mental state . . . .” (People v. Nunn (1996) 50 Cal.App.4th 1357, 1364;
see also People v. Jackson (1984) 152 Cal.App.3d 961, 967–969 [restriction imposed by
section 29 did not deprive the defendant of his right to due process].)
Although defendant does not challenge the constitutionality of section 29 on its face, he
contends the court interpreted the statute in a way that unconstitutionally excluded
“critical defense evidence.” As discussed, the trial court allowed Gomez to thoroughly
describe defendant’s mental condition and the effects it had on his behavior. Gomez was

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only prohibited from stating whether defendant had or did not have the requisite mental
state for criminal threats and stalking. Thus, the court’s interpretation of section 29 was
in accordance with the statutory language and precedent, and it did not infringe
defendant’s constitutional rights. (See People v. Riccardi (2012) 54 Cal.4th 758, 809
[“routine and proper application of state evidentiary law does not impinge on a
defendant’s due process rights”].)
              In sum, the court correctly limited the testimony of defendant’s expert
witness pursuant to section 29.


Sex Offender Registration
              Although stalking is not a sex offense per se under the Sex Offender
Registration Act (§ 290 et seq.), the court imposed a registration requirement upon
defendant under section 290.006. This statute provides, “Any person ordered by any
court to register pursuant to the Act for any offense not included specifically in
subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction
or sentencing that the person committed the offense as a result of sexual compulsion or
for purposes of sexual gratification. The court shall state on the record the reasons for its
findings and the reasons for requiring registration.” (§ 290.006.)
              When considering a sex offender registration sentence for crimes not
specifically enumerated in section 290, subdivision (c), “‘the trial court must engage in a
two-step process: (1) it must find whether the offense was committed as a result of sexual
compulsion or for purposes of sexual gratification, and state the reasons for these
findings; and (2) it must state the reasons for requiring lifetime registration as a sex
offender.’ [Citations.] Most importantly, the trial court must consider the likelihood
defendant will reoffend.” (People v. Thompson (2009) 177 Cal.App.4th 1424, 1431,
disapproved on other grounds in Johnson v. Department of Justice (2015) 60 Cal.4th 871,
888.) “By requiring a separate statement of reasons for requiring registration even if the

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trial court finds the offense was committed as a result of sexual compulsion or for
purposes of sexual gratification, the statute gives the trial court discretion to weigh the
reasons for and against registration in each particular case.” (People v. Hofsheier (2006)
37 Cal. 4th 1185, 1197, overruled on other grounds in Johnson v. Department of Justice,
supra, 60 Cal.4th at p. 888.)
              Here, the jury found in a special verdict form that defendant’s stalking was
motivated by sexual compulsion or gratification. Following People v. Mosley (2015) 60
Cal.4th 1044, a defendant is not entitled to have the jury, rather than the court, decide if
he or she will be sentenced with lifetime sex offender registration. However, this trial
occurred before Mosley was decided by our Supreme Court, which likely explains why
the jury made this finding about defendant’s sexual motivation.
              Having observed the trial and reviewed the probation report, the court
agreed with the jury’s finding at the sentencing hearing. In discussing defendant’s
sentence, the court pointed to a representative message in which defendant asked the
victim to send him a picture of her breasts, opining, “[t]he only reason anybody is going
to ask to see that is for sexual gratification, there is no other reason to do that.” The
judge further stated that the message was just one of “hundreds, if not thousands of
comments like this” and confirmed with the prosecution that defendant had sent
approximately 50 different photographs of his genitalia to the victim and hundreds, if not
a thousand, messages. The court then stated, “[The court] makes a finding on the record
that the registration is required because the crimes in this case were sexual in nature. The
majority of the communication that was from the defendant to the victim revolved around
how he wanted to have sex with her, and the many ways which he would make that
happen, along with numerous photos of his penis, all of those which were unwanted and
unsolicited.” As set forth in the probation report the court indicated it had reviewed,
defendant scored a five out of 10 on the state authorized risk assessment tool for sex



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offenders, which placed him in the “Moderate-High Risk” category for recidivism. But
the court did not explicitly cite defendant’s likelihood of reoffending on the record.
              The trial court’s imposition of lifetime sex offender registry was proper.
Defendant contends the court (unlike the jury’s special verdict form) did not recite the
precise words of section 290.006 (“as a result of sexual compulsion or for purposes of
sexual gratification”). But the court did note during its statement on the record that “[t]he
only reason anybody is going to ask to see that is for sexual gratification, there is no other
reason to do that.” The court also stated on the record the reasons for its imposition of
registration — the overwhelming number of incidents and persistence of defendant in the
face of consistent objections from the victim. The court did not abuse its discretion in
subjecting defendant to a sex offender registration requirement.


                                       DISPOSITION


              The judgment is affirmed.




                                                  IKOLA, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



ARONSON, J.




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