Filed 7/21/16


                       CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                 2d Crim. No. B256043
                                                          (Super. Ct. No. F423616)
     Plaintiff and Respondent,                            (San Luis Obispo County)

v.

JAMES ALLEN HYDRICK,

     Defendant and Appellant.



                  The Welfare and Institutions Code provides procedures the state must
follow before a prisoner may be committed as a sexually violent predator (SVP). 1 For
“good cause” a prisoner may be held beyond the prisoner’s release date for 45 days to
complete a full evaluation to determine whether the prisoner qualifies as an SVP.
                  We conclude that “a full evaluation” includes the prosecuting attorney’s
decision to file a petition.
                  A jury found James Allen Hydrick to be an SVP. (§ 6600 et seq.) We
affirm.




*
 Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified
for partial publication. The portions of this opinion to be deleted from publication are
identified as those portions between double brackets, e.g., [[/]].
1
    All statutory references are to the Welfare and Institutions Code unless otherwise stated.
                                              FACTS
              Hydrick was convicted of various sexual offenses.
              [[Because Hydrick does not challenge the sufficiency of the evidence, only
a brief synopsis of the facts is necessary.
                                    Qualifying Offenses
              Hydrick was 19 years old in 1977. He was in a van with three other men.
They saw 25-year-old Mark S. Mark S. was out of gas and trying to flag down a ride to a
gas station. The men forced Mark S. into the van, blindfolded him, cut off his clothes
and tied his hands behind his back. While one of the men drove the van, two others put
their penises in his mouth. Someone tried to penetrate his anus with a glass object. They
went to Mark S.’s apartment and burglarized it. After the men drove around for an hour,
they threw Mark S. out of the van. Hydrick was convicted of, among other offenses, oral
copulation in concert with force. Mark S. testified at this hearing.
              In 1988, Hydrick was convicted of multiple counts of molesting six boys.
One of the boys was 15 years old at the time he was molested, the rest were between 11
and 13 years old. A boy is considered prepubescent if he is 13 years old or younger.
Hydrick used martial arts and magic tricks to ingratiate himself with the boys. The six
victims testified at the hearing.
                                      Expert Testimony
              Psychologist George Grosso testified as an expert. Since 2004, he has
conducted about 1,000 SVP evaluations.
              Grosso testified Hydrick met the criteria for an SVP. The 1997 kidnapping
and forced oral copulation were qualifying offenses. In addition, he testified the
molestations of six prepubescent boys were qualifying offenses. Hydrick showed
predatory behavior by grooming the victims with martial arts and magic tricks.
              Grosso diagnosed Hydrick with pedophilic disorder. When a person has
sexual fantasies or urges about prepubescent children, it is called pedophilia. When a
person acts on the fantasies or disorders, it is called pedophilic disorder. Pedophilic


                                                2
disorder is a life-long condition that can wax and wane with life stressors. Hydrick also
suffers from psychopathy. Such persons are impulsive and have little empathy.
Psychopathy makes it difficult to control pedophilic behavior.
              Finally, Grosso testified Hydrick is likely to reoffend in a sexually violent
manner. Grosso based his opinion on static assessment tools including the Static 99R and
the Static 2002R. Hydrick scored high on these tests. In addition, Hydrick refused to
fully participate in a sex offender treatment program. He occasionally took classes but
did not follow prescribed treatments. Hydrick claimed he did not need treatment because
he was not interested in children.
              Psychologist Robert Owen also testified as an expert. Since 1996, he has
done about 1,200 SVP evaluations. He opined that Hydrick is an SVP for reasons
substantially the same as those stated by Grosso.
              Owen also stated most pedophilic men in custody do not cut out pictures of
children or obtain child pornography. Many show no sexual deviancy while in custody,
but would reoffend when they got out.
                                          Defense
              Hydrick testified on his own behalf. He said he was born in February 1959.
His mother was 13 when he was born and his father was 36. His father abused him, his
siblings and his mother. He was chained to a tree for months at a time and had to sleep in
a chicken coop.
              Hydrick testified that when Mark S. was kidnapped in 1977, he sat in the
back of the van and did not participate. He was shocked at how the other men treated the
victim. He pled no contest to robbery, kidnapping and oral copulation in concert with
force.
              Hydrick denied he molested any children. He claimed his plea of guilty to
11 of 17 molestation charges was the result of having been injected with Haldol at the
jail. He said he did not have a sexual problem and would not enroll in a sexual offender



                                             3
treatment program. He was sentenced to 17 years. He said he should have served nine
years. His original release date was June 8, 1998, but the SVP law was passed in 1996.
                                     Defense Experts
              Psychologist Hillard Trytten testified that Hydrick had done individual
therapy with her and was in one of her groups. Trytten did not see any manifestation of
pedophilia in Hydrick. She was aware, however, that Hydrick scored high on the
psychopathy check list.
              Psychologist Robert Halon testified there is research that concluded it is
impossible to diagnose pedophilia or pedophilic disorder. It is difficult to distinguish
between someone with a mental disorder and someone who wants to engage in criminal
activity. Halon opined Hydrick had not shown signs of pedophilia since his 1988
conviction. Halon does not believe Hydrick suffers from pedophilia or pedophilic
disorder.
              Psychologist Carolyn Murphy also found that Hydrick does not have a
pedophilic disorder. She said his sexual conduct was indiscriminate and that his focus
was more impulsivity than children.]]
                      PROCEDURAL FACTS AND DISCUSSION
                                              I
              Hydrick contends the SVP commitment petition was not timely. 2
              Hydrick’s scheduled release date from his prison sentence was September
10, 2008.
              On March 5, 2008, the California Department of Corrections and
Rehabilitation (CDCR) sent a memorandum to the Board of Parole Hearings (Board)
requesting further documentation because it did not have sufficient information to
determine whether Hydrick qualified as an SVP. On August 11, 2008, the Board
responded with a letter to the Department of Mental Health (DMH), stating that Hydrick


2
 We grant Hydrick’s motion for judicial notice filed April 7, 2015, concerning various
levels of screening for SVP’s.
                                             4
met the first level SVP criteria. On August 20, a level 2 evaluation was completed,
finding that a level 3 evaluation was required. On August 26, Hydrick was interviewed
by Doctors Jesus Padilla and Robert Owen as part of the level 3 SVP evaluation. By
September 3, Padilla and Owen had submitted lengthy reports concluding that Hydrick
met the SVP criteria.
              On September 9, 2008, the day before Hydrick’s scheduled release date
from prison, the Board issued a 45-day hold pursuant to section 6601.3.
              On September 10, 2008, the DMH sent a letter to the San Luis Obispo
County District Attorney, referring Hydrick for SVP commitment proceedings. On
October 8, the district attorney filed an SVP commitment petition.
              An SVP petition may be filed while the defendant is in lawful custody,
including a 45-day hold placed pursuant to section 6601.3. (§ 6601, subd. (a)(2).) In
2008, section 6601.3 provided that, upon a “showing of good cause,” the Board may
order a person determined by the CDCR to be an SVP to “remain in custody for no more
than 45 days beyond the person’s scheduled release date for full evaluation pursuant to
subdivisions (c) to (i) inclusive, of section 6601.”
              In 2008, the “good cause” required to satisfy a 45-day hold was defined in
the California Code of Regulations as “[s]ome evidence” that the person has a qualifying
conviction and is “likely to engage in sexually violent predatory criminal behavior.”
(Former Cal. Code Regs, tit. 15, § 2600.1, subd. (d)(2).)
              This “good cause” requirement was short-lived. In 2012, our Supreme
Court decided In re Lucas (2012) 53 Cal.4th 839. The court held the definition of “good
cause” in the Code of Regulations was invalid because it linked good cause to showing
that the person is likely to be an SVP, rather than showing justification for the delay in
filing the petition. (Id. at pp. 849-851.) Nevertheless, the court found reliance on the
regulation was excusable as a good faith mistake of law. (Id. at p. 852.)
              Hydrick argues that the 45-day hold was not permitted in this case because
by the time the 45-day hold was imposed, full evaluations had already been completed.


                                              5
Section 6601.3, however, allows a 45-day hold for full evaluations “pursuant to
subdivision (c) to (i) inclusive, of section 6601.” Section 6601, subdivision (i) includes,
within the ambit of a full evaluation, the district attorney’s decision to file a petition.
Because the district attorney’s evaluation had not been completed at the time the 45-day
hold was imposed, the petition was timely.3
              Hydrick attempts to distinguish Lucas. There, the hold was imposed before
the evaluations by two psychologists were completed. But nothing in Lucas suggests that
its decision was based on whether the hold was imposed during or after the evaluations
were completed.
              Hydrick’s reliance on People v. Superior Court (Small) (2008)
159 Cal.App.4th 301 is misplaced. There the SVP petition was not filed until one day
after the 45-day hold period had expired. The court held that the untimely filing was not
due to a good faith mistake of law, and upheld the trial court’s dismissal of the petition.
Here the petition was filed within the 45-day hold period. The trial court properly
refused to dismiss the petition.
                                               II
              [[Hydrick contends the trial court erred in allowing victim impact evidence.
              At trial one victim was impeached with several criminal convictions. The
victim testified when his mother learned he was being molested, she sent him to a
hospital for adolescents where he stayed for two years. Over Hydrick’s objection as to
relevance and undue prejudice, the trial court allowed the victim to testify how his life
had been since the hospitalization. The victim testified:


3
 Section 6601, subdivision (i) provides: “If the county’s designated counsel concurs with
the recommendation, a petition for commitment shall be filed in the superior court of the
county in which the person was convicted of the offense for which he or she was
committed to the jurisdiction of the Department of Corrections and Rehabilitation. The
petition shall be filed, and the proceedings shall be handled, by either the district attorney
or the county counsel of that county. The county board of supervisors shall designate
either the district attorney or the county counsel to assume responsibility for proceeding
under this article.”
                                               6
              “A. It’s been rough and bumpy.
              “Q. In what ways?
              “A. I had a lot of anger issues back then and stuff and trust and family and
just everybody. I was angry about being placed in those places and probably carried a lot
of that with me the rest of my life and then I later developed a substance abuse addiction,
alcohol.
              “Q. Have you had some arrests and convictions, criminal convictions
during the past 26 years or so?
              “A. Yes, ma’am.”
              Relevant evidence includes evidence relevant to the credibility of a witness.
(Evid. Code § 210.) Here the evidence is relevant to the witness’s credibility. It gave
context to the convictions that were used to impeach the witness’s credibility.
              The trial court has the discretion to exclude even relevant evidence if its
probative value is substantially outweighed by the probability it will create a substantial
danger of extreme prejudice. (Evid. Code § 352.) Here the probative value is great.
Hydrick denied he molested anyone. The credibility of the victim witness was crucial to
the People’s case. The court did not abuse its discretion in finding that the probative
value of the evidence outweighed the substantial danger of undue prejudice.
                                             III
              Hydrick contends the trial court erred in excluding testimony that he faced
a life sentence under the three strikes law if he reoffended.
              At trial Hydrick’s counsel asked Hydrick if he was aware that his prior
convictions constituted strikes within the meaning of the three strikes law. Hydrick said
“no.” Then his counsel attempted to ask whether he knew that if he were to commit a
crime in the future he would be subject to a 25-years-to-life term. The People objected.
After an unreported sidebar conference, the trial court stated it sustained the People’s
objection under Evidence Code section 352.



                                              7
              Hydrick argues the evidence was relevant to his risk of reoffending. He
relies on People v. O’Shell (2009) 172 Cal.App.4th 1296. There the Court of Appeal
concluded the trial court erred in excluding as irrelevant the defendant’s proposed
testimony that “he was particularly motivated to seek treatment and avoid reoffending
because he faced a life term if he reoffended under the Three Strikes law.” (Id. at
p. 1306.) The court rejected the People’s argument that the evidence would have been
excluded under Evidence Code section 352. The court pointed out that the trial court did
not exercise its discretion under section 352. (Id. At p. 1309.)
              Here, in contrast to O’Shell, Hydrick testified he was not aware his prior
convictions constitute strikes, he denied having molested anyone, and he refused to seek
treatment because he did not believe he had a problem. If there is any relevance to
Hydrick’s proposed testimony, the trial court was well within its discretion in excluding it
under Evidence Code section 352.]]
              The judgment is affirmed.
              CERTIFIED FOR PARTIAL PUBLICATION.




                                          GILBERT, P. J.


We concur:



              YEGAN, J.



              PERREN, J.




                                             8
                               Jacquelyn H. Duffy, Judge


                       Superior Court County of San Luis Obispo

                         ______________________________


             Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
             Kamala D. Harris, Attorney General of California, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven
D. Matthews, Supervising Deputy Attorney General, and Blythe J. Leszkay, Deputy
Attorney General, for Plaintiff and Respondent.




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