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Name: People v. Carlin
Case #: H028513
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 04/26/2007
Summary

There was sufficient evidence of “substantial sexual conduct” where perpetrator fondled the victim inside his pants. Appellant appealed from a commitment order after he was found to be a sexually violent predator (SVP) and committed to the State Department of Mental Health for two years. He argued on appeal that there was insufficient evidence that the offense involved substantial sexual conduct. The appellate court rejected the argument, finding the evidence sufficient. Appellant had his hand inside of the victim’s pants, grasping his crotch area, and admitted that he “fondled” the victim. The conduct described constitutes masturbation and is therefore evidence of substantial sexual conduct. Further, there was no uncertainty about which act was the subject of appellant’s conviction, and no due process violation in its use. There was no error in denying appellant’s request to call the victim to testify because appellant’s offer of proof was inadequate. Nor did the court err when it admitted post-plea evidence to show substantial sexual conduct. However, the use of hearsay statements in the investigator’s reports to prove substantial sexual conduct violated appellant’s due process rights. The statements were not reliable; they were inconsistent with earlier statements and were not corroborated. The prosecutor made no showing that the victim in question was unavailable and the court denied appellant’s request to call him as a witness. It cannot be concluded that the error was harmless, and reversal was required. The court also held that there was no error in failing to instruct the jury that they must unanimously agree on which acts constituted substantial sexual conduct. There is no statutory requirement regarding unanimity for each subpart of a SVP determination.