Filed 8/12/15 P. v. Hipp CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068846
         Plaintiff and Respondent,
                                                                           (Super. Ct. No. TCF041136-92)
                   v.

ROY LEE HIPP,                                                                            OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Tulare County. H.N. Papadakis,
Judge. (Retired judge of the Fresno Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.)
         Michael B. McPartland, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-


*        Before Kane, Acting P.J., Detjen, J. and Smith, J.
                                    INTRODUCTION
       Appellant Roy Lee Hipp contends the trial court abused its discretion when it
admitted evidence of two murders and an attempted murder committed by Hipp in 1977.
This evidence was admitted during the civil commitment trial held to determine if Hipp
qualified as a sexually violent predator (SVP) pursuant to the Sexually Violent Predators
Act (SVPA; Welf. & Inst. Code, § 6600 et seq.).1 We conclude there was no abuse of
discretion.
                    FACTUAL AND PROCEDURAL SUMMARY
       On June 11, 2007, a petition to civilly commit Hipp pursuant to the SVPA was
filed. The petition alleged Hipp fit within the statutory definition of an SVP. The
petition also alleged Hipp had been convicted of the following predicate offenses: one
count of forcible rape and one count of oral copulation in 1983 and two counts of sexual
penetration with a foreign object and one count of lewd conduct with a child in 1992. The
petition also alleged Hipp admitted, in conjunction with the 1992 convictions, that he had
been convicted of two prior serious felony offenses.
       On December 3, 2007, following a hearing, the trial court found probable cause to
believe Hipp fell within the statutory definition of an SVP. On January 7, 2010, pursuant
to a stipulation of the parties, the trial court ordered new evaluations be conducted
pursuant to section 6601. On January 10, 2011, following a hearing, the trial court again
found probable cause that Hipp met the statutory definition of an SVP.
       A jury trial commenced on December 3, 2013. Over Hipp’s objection, the People
were allowed to introduce evidence that in 1977 Hipp allegedly raped his then girlfriend,
L., after murdering her parents and attempting to murder a family friend. Hipp was 17
years old at the time. L. testified that on December 7, 1977, she was living with her


       1Allfurther statutory references are to the Welfare and Institutions Code unless
otherwise specified.


                                             2.
parents. Her parents and a family friend, Hoyt, were in her parents’ home; L. and Hipp
were in a separate building on the property.
       Sometime between 10:00 p.m. and 11:00 p.m., L. heard her mother calling her;
Hipp left and L. went to the residence where her parents and Hoyt were located and went
to bed. A short time later, L. heard Hipp calling her name. L. got up, got dressed, and
went to the front room. When she got there, Hipp told her someone had come into the
house and had shot everyone. L. could see that her father and Hoyt had gunshot wounds.
       Hipp was carrying a gun. He took L. outside and had her walk with him to a
location where he tossed the gun into some bushes. Hipp also had a knife with him. He
slapped L. in the face several times. Hipp told L. he was the one who had shot her
parents and then forced her to have sex with him. L. remembered thinking, “I hope I get
through this. I hope I don’t end up in a ditch dead somewhere.” After they dressed, they
returned to L.’s parents’ house.
       When they got to L.’s parents’ house, the police were there and they separated L.
and Hipp. L. told the police that Hipp had shot her parents. L. took officers to where
Hipp had tossed the gun. L. did not tell the police that Hipp had raped her because she
was “scared and confused” and the rape was “too personal.” L. felt “ashamed” and
confided only to one close friend about what had happened.2
       On March 28, 1978, Hipp was found guilty of two counts of second degree murder
for the killing of both of L.’s parents and one count of attempted murder for the shooting
of Hoyt, who survived. Hipp was committed to a juvenile facility; he was released on
July 20, 1981.




       2The rape was reported nearly 36 years after the event during a followup interview
with two district attorney investigators in preparation for the December 2013 SVP
hearing.


                                               3.
       M.Y. testified to the prior sexual offenses Hipp committed against her. In 1983,
M.Y. was 17 years old; her cousin was married to Hipp’s brother. On September 3,
1983, M.Y. was at her cousin’s house for a family gathering; Hipp also was present.
       Around 9:00 p.m. Hipp told M.Y. he needed to talk with her in the backyard.
Once in the backyard, Hipp told M.Y. he had to collect some marijuana from a nearby
orchard; M.Y. agreed to go with him. When they entered the orchard, Hipp threw M.Y.
to the ground and yelled, “This is a rape.”
       Hipp beat M.Y. with his fists and belt. He forced M.Y. to remove all her clothes
and tied his belt around her neck. He used the belt to drag her to different places in the
orchard and a nearby field; Hipp repeatedly raped her and made her orally copulate him.
Hipp called her a “whore” and a “slut” and beat her so badly on her legs with his belt that
bruises formed from her knees to her buttocks that lasted over three months. As he was
hitting her, Hipp made M.Y. beg to be hit with the belt, as well as call him “daddy.”
       Hipp made M.Y. beg for her life and promise repeatedly that she would not report
the incident to the authorities or else Hipp would kill her and her family. Hipp took M.Y.
back to her cousin’s house around 6:00 a.m. and made her wait outside, naked, while he
went into the house, got his girlfriend, and left. Once he left, M.Y. went inside and took
a shower. Someone else called the police when they saw how badly she had been beaten.
       In addition to the bruising on her legs, M.Y. had bruising around her neck as a
result of the belt being used as a leash. She had knots on her head and her mouth and
face were bruised and cut.
       On September 20, 1983, Hipp pled guilty to one count of forcible rape and one
count of forcible oral copulation as a result of his sexual assault on M.Y. He was
sentenced on November 17, 1983, to 16 years in prison for these offenses.
       In 1992, Hipp inappropriately touched J.W., who was 14 years old at the time.
       In June of 1992, S.W. was 18 years old and living with her boyfriend, Michael,
and their one-year-old daughter. Hipp is Michael’s uncle. One evening in June Hipp was

                                              4.
at Michael’s home when Michael left around 10:00 p.m. to go to the corner store to buy
cigarettes and diapers.
       After Michael left the house, Hipp walked directly in front of S.W. with his penis
out of his pants and asked her if she cheated on Michael. S.W. asked Hipp what he was
doing. Hipp responded by ripping open S.W.’s blouse and beating her about the head
with his fists. He told her that if she screamed he would kill her. Eventually, S.W. said,
“Okay, … whatever you want” to stop him from hitting her. Hipp grabbed her and pulled
her to the floor, pulled off her pants and underwear, and said, “Let’s go.”
       S.W. managed to crawl to the front door with Hipp on her back, but she struggled
to open the door because Hipp had fastened the chain lock. As she tried to open the door,
Hipp scratched and clawed at her vagina with his hands. Finally, S.W. managed to open
the door and ran toward a neighbor’s house and banged on the door for help. As she did
so, she realized her daughter was on her front porch, crying. She ran back and grabbed
her daughter and again ran toward a neighbor’s house. At that point Michael returned
and they called the police.
       As a result of the attack, S.W. sustained numerous knots and bruises on her head,
bald spots on her head where Hipp had ripped out her hair, and cuts and claw marks
inside her vagina.
       On June 30, 1992, Hipp pled no contest to two counts of sexual penetration with a
foreign object as a result of his sexual attack on S.W. and no contest to one count of lewd
conduct with a minor as to J.W. Hipp also admitted two prior serious felony allegations.
On July 14, 1992, Hipp was sentenced to 29 years in state prison.
       Dr. Dawn Starr, a licensed psychologist, testified for the People. Starr first
interviewed Hipp for an SVP evaluation in May 2007. As part of the evaluation process,
she reviewed Hipp’s hospital, criminal, and prison records. Starr also completed six
updates of Hipp’s SVP evaluation.



                                             5.
       Starr testified that Hipp had the requisite, qualifying predicate offenses, which
included the offenses with M.Y., S.W., and J.W. Pursuant to the fourth edition of the
Diagnostic and Statistical Manual of Mental Disorders (DSM) and the Psychopathy
Checklist Revised, Starr concluded that Hipp currently suffered from mental disorders of
paraphilia not otherwise specified (paraphilia NOS), antisocial personality disorder with
narcissistic features, and substance dependence disorder that contributed to his criminal
offenses.
       A person who suffers from paraphilia NOS has recurrent intense sexually arousing
fantasies, urges, or behaviors, generally directed toward nonconsenting people. A person
who suffers from a personality disorder tends to have thoughts or behaviors that deviate
markedly from society’s norm. That behavior typically involves criminal conduct, starts
in adolescence, and continues to be lifelong. The antisocial and narcissistic personality
disorders are the most severe and tend to predispose people to act in a variety of
aggressive and manipulative ways toward others.
       Starr opined that because Hipp’s offenses against M.Y. occurred shortly after he
was released from incarceration, and the offenses against J.W. and S.W. were committed
while Hipp was on parole, and in each instance the victims could readily identify him,
Hipp had an underlying drive to commit sexual offenses based on urges or fantasies.
Starr opined that Hipp’s sexual assault of L. after he murdered her parents also provided
corroboration of the sexual component of the diagnosis. Starr had suspected that Hipp’s
conduct in 1977 was motivated by something sexual. Starr opined that Hipp’s
committing two murders, an attempted murder, and a sexual assault at the age of 17
supported her diagnosis that Hipp suffered from an antisocial personality disorder.
       Starr opined that based upon Hipp’s diagnosed mental disorders, Hipp was likely
to reoffend in a sexually violent manner if he were released from custody. Starr
concluded that Hipp had difficulty controlling his sexual impulses due to his paraphilia.
With his personality disorder, Hipp was prone to criminal conduct; Hipp made excuses

                                             6.
for his prior sexual offenses. Because of his personality disorder, Hipp expected
preferential treatment and took whatever he wanted to meet his needs.
       Although Hipp had gone to treatment, Starr was concerned because Hipp had
dropped out of treatment twice. Hipp also told Starr he had no intention of going to sex
offender treatment if released into the community because he believed he had received
sufficient treatment. Starr also was concerned because drugs and alcohol had factored
into Hipp’s criminally sexual conduct, but Hipp was reluctant to join substance abuse
treatment.
       Starr opined that there was nothing about Hipp’s “present personality functioning
or his level of understanding of what caused him to commit his sexual crimes or his level
of honesty” that would lead Starr to conclude there would be “any different result if he
were released into the community at this time.”
       The defense presented evidence from five medical professionals: Drs. Robert
Owen, Amy Phenix, Clark Clipson, Dale Arnold, and Hilary Trytten. Owen, a clinical
psychologist, reviewed Hipp’s hospital and criminal records and evaluated Hipp in 2007.
At that time, Owen determined Hipp had an antisocial personality disorder and a
dependence disorder, but Owen concluded Hipp did not suffer from a mental disorder
that predisposed Hipp to offend sexually. Since Owen was of the opinion Hipp did not
have a diagnosed mental disorder that predisposed him to offend sexually, Owen
concluded Hipp did not qualify as an SVP.
       Phenix, a licensed psychologist, examined Hipp on September 27, 2013. Phenix
opined that Hipp suffered from stimulant use disorder, severe in a controlled
environment, and moderate alcohol use disorder, neither of which qualified Hipp as an
SVP. Phenix acknowledged that Hipp’s attacks on L., M.Y., J.W., and S.W. were typical
of sex offenders, but she opined that Hipp’s sexual attacks were not the result of recurrent
sexual fantasies; rather, his attacks were motivated by anger, revenge, or substance abuse.



                                             7.
       Clipson, a licensed psychologist, evaluated Hipp in 2007 and concluded he
suffered from sexual sadism, a form of paraphilia, and qualified as an SVP. Clipson
again evaluated Hipp in 2010, this time concluding Hipp did not meet the criteria for an
SVP; rather, Clipson concluded Hipp had anger management problems.
       Arnold also had evaluated Hipp and noted that based upon actuarial analysis, Hipp
was a high-risk sex offender. Arnold, however, did not believe deviant sexual fantasies
were causing Hipp’s behavior; rather, they were spontaneous acts caused by situational
factors. Arnold concluded Hipp did not qualify as an SVP.
       Trytten, a psychologist, treated Hipp at Coalinga State Hospital in the sex offender
treatment program for over two years. According to Trytten, Hipp had been open about
his crimes, acknowledged what he had done was wrong, and knew what he needed to do
in order not to engage in that behavior again.
       On December 13, 2013, the jury found Hipp to be an SVP. The trial court ordered
Hipp committed for appropriate treatment and confinement for an indefinite period
pursuant to section 6604.
                                      DISCUSSION
       Hipp’s sole contention on appeal is that the trial court erred prejudicially and
violated his right to due process when it admitted evidence of his 1977 crimes over his
Evidence Code section 352 objection. We disagree.
       Factual Summary
       The People filed a written motion to introduce evidence of Hipp’s 1977 murder
and attempted murder convictions, as well as the uncharged rape of L. The People
asserted the evidence of the 1977 convictions and uncharged rape were relevant to a
determination of whether Hipp currently suffered from a diagnosed mental disorder of
paraphilia and antisocial personality disorder and thus was a risk of reoffending. The
People also argued that the proposed evidence was more probative than prejudicial and
was no more confusing than the evidence pertaining to the predicate offenses.

                                             8.
         On November 15, 2013, Hipp filed a written motion to exclude evidence of the
1977 offenses, contending the evidence was irrelevant under Evidence Code section 210
and should be barred under Evidence Code sections 352 and 1101.
         The People filed written opposition to Hipp’s motion, contending Evidence Code
section 1101 was inapplicable to SVP civil commitment proceedings, and that evidence
of the 1977 offenses was more probative than prejudicial because it tended to prove Hipp
suffered from mental disorders and would reoffend if released.
         On November 26, 2013, the trial court ruled that the uncharged rape of L. in 1977
was admissible at the SVP trial. On the following day the trial court addressed admission
of the 1977 criminal convictions, expressing concern about their admission, but reserving
a ruling until after each party had had an opportunity to submit supplemental briefing.
         The People filed a supplemental brief on December 2, 2013, arguing that evidence
of the 1977 criminal convictions should be admitted because mental health evaluators are
required to consider the information by statute and regulations, and the evidence
supported the diagnosis of paraphilia and antisocial personality disorder. After reviewing
the supplemental brief, the trial court ruled on December 4 that evidence of the 1977
criminal convictions were admissible.
         Analysis
         The purposes of the SVPA are “‘“to protect the public from dangerous felony
offenders with mental disorders and to provide mental health treatment for their
disorders.”’” (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339,
344.) In order to civilly commit a person pursuant to the SVPA, the People must prove
that the person “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 he or she will engage in sexually violent
criminal behavior.” (§ 6600, subd. (a)(1); see People v. McKee (2010) 47 Cal.4th 1172,
1186.)

                                              9.
       Prior to filing a petition to civilly commit someone as an SVP, the person is to be
referred for evaluation in accordance with section 6601, subdivision (a)(1). Section
6601, subdivision (b) provides that the Department of Corrections and Rehabilitation (the
Department) shall screen inmates to determine if an inmate may qualify as an SVP. In
conducting a screening, the Department is to review the person’s social, criminal, and
institutional history. If as a result of the screening the Department determines the person
may qualify as an SVP, the Department is to refer the person for a full evaluation. (Ibid.)
       Section 6601, subdivision (c) specifically states that the person shall be evaluated
“in accordance with a standardized assessment protocol,” which protocol “shall require
assessment of diagnosable mental disorders, as well as various factors known to be
associated with the risk of reoffense among sex offenders. Risk factors to be considered
shall include criminal and psychosexual history, type, degree, and duration of sexual
deviance, and severity of mental disorder.” (Italics added.) The evaluations are to be
conducted by two practicing psychiatrists or psychologists. (Id., subd. (d).)
       The provisions of section 6601, subdivision (c) require the evaluating psychologist
or psychiatrist to consider a person’s criminal record to determine if the person qualifies
as an SVP.
       Starr conducted an evaluation of Hipp for purposes of determining if he qualified
as an SVP. During the trial, Starr testified she believed that two murders and an
attempted murder had a sexual component to them based upon Hipp’s earlier answers to
questions about the murders. Starr’s suspicion was corroborated by L.’s subsequent
disclosure of being raped by Hipp minutes after Hipp killed her parents. Starr had
prepared a summary of his criminal record, including the murders he committed as a
juvenile, in preparing her evaluation.
       Owen, who testified for the defense, also stated that he would have considered
evidence of a murder in making a diagnosis of a mental disorder if the surviving daughter
of the murder victims had been raped minutes later by the murderer.

                                            10.
       Moreover, in conducting an evaluation, the psychologist determines if the person
has a mental disorder, as described in the DSM, that might predispose the person to
commit sexual offenses. For a DSM diagnosis of antisocial personality disorder, the
psychologist looks at (1) whether the person has engaged in a pattern of behaviors that
deviate from societal norms, often in criminal conduct, (2) whether this pattern began in
adolescence and has continued, (3) aggressive behavior toward others, (4) lying,
(5) being deceitful, and (6) lack of empathy toward others. A person with antisocial
personality disorder is prone to criminal conduct.
       The 1977 murders were not, as Hipp contends, irrelevant simply because of
passage of time. Clearly, the murders committed when Hipp was 17 years old were
relevant to Starr’s diagnosis—they were committed while Hipp was an adolescent, they
evidenced aggressive behavior against several people, and it was the start of the pattern
of behavior that deviated from societal norms and that constituted criminal conduct. Starr
called this a “bizarre crime for a 17-year-old to commit.” Starr testified that the
commission of two murders, an attempted murder, and a sexual assault at the age of 17
by Hipp supported the diagnosis of antisocial personality disorder and that antisocial
personality disorder generally manifested first in adolescence. Passage of time does not
make the murders irrelevant to the diagnosis.
       Since section 6601, subdivision (c) requires the evaluating psychologist to
consider the person’s criminal behavior, and the 1977 murders were relevant to a
diagnosis under the DSM of antisocial personality disorder, it follows that the evidence of
the 1977 murders was relevant under Evidence Code section 210 as it had a tendency to
prove a disputed fact -- whether Hipp met the criteria for an SVP.
       As for Hipp’s Evidence Code section 352 challenge, the evidence of the murder
and attempted murder convictions was not unduly prejudicial. Evidence is unduly
prejudicial when it “tends to evoke an emotional bias against a party as an individual,
while having only slight probative value with regard to the issues.” (People v. Samuels

                                             11.
(2005) 36 Cal.4th 96, 124.) As Starr testified, the 1977 convictions were relevant to
establishing the diagnosis of antisocial personality disorder. Relevant evidence “‘will not
offend due process unless the evidence is so prejudicial as to render the defendant’s trial
fundamentally unfair.’” (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
       The test for undue prejudice is not whether the evidence tends to establish guilt or
it adversely impacts the defense, but whether the evidence tends to inflame the jurors and
motivate them to punish the defendant because of an emotional reaction. (People v.
Valdez (2012) 55 Cal.4th 82, 145.) We see no indication in the record this was the case.
       Section 6600, subdivision (a)(3) requires the jurors be instructed on the limited
role of evidence of prior offenses. The jurors were so instructed in this case. Hipp has
cited no portion of the record that would indicate the jurors failed to comply with the jury
instructions. In the absence of any evidence to the contrary, we presume the jury
followed the instructions. (People v. Prince (2007) 40 Cal.4th 1179, 1195.)
       Nor does this appear to have been a “close case” as Hipp asserts. Although
multiple psychologists testified, the jury did not appear to have difficulty evaluating the
evidence and applying it to the law as set forth in the jury instructions; they deliberated
approximately six hours before returning a verdict. Of the questions asked by the jury,
one was for the testimony of Starr discussing the definition of paraphilia NOS and the
other for a definition of the term “menace.” The trial court responded to both questions.
No questions were asked that pertained to the murder convictions.
                                          DISPOSITION
       The December 13, 2013, commitment order is affirmed.




                                             12.
