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ONE FOR THE
PROSECUTION, ZERO FOR THE PEDOPHILE
HEADLINE: Penile Test's
Admission Was Harmless Error
DATELINE:
SAN DIEGO -
A convicted child abuser successfully argued that his penile plethysmograph
(PPG) test results were unreliable and should not have been presented to the
jury; however, sufficient other evidence existed to warrant his commitment as a
sexually violent predator, the Fourth District California Court of Appeal held
Oct. 6 (The People
of California
v. James Anthony Lewis, No. E035947, Calif. App., 4th Dist., Div. 2; 2005 Cal.
App. Unpub. LEXIS 9155).
James Anthony Lewis was convicted of molesting girls in several separate cases
over seven years. Before his release from prison, the state moved to commit
Lewis to a mental hospital as a sexually violent predator to be treated for
pedophilia.
Multiple Bases
Two psychological experts testified that they evaluated Lewis and determined
that he was likely to reoffend. They relied on Lewis' records, history, the PPG
test, interviews, his statements, the Static-99 test and other recent
inappropriate behavior. One of the experts testified about the PPG results and
explained about the test to the jury.
Lewis argued on appeal that the Riverside Superior Court erred in admitting the
PPG test results. PPG measures erectile response to slides of nude girls and
women. Lewis' test indicated that he was sexually attracted to prepubescent
girls. Lewis argued that the test is not accepted in the scientific community
as a reliable means of diagnosing sexual deviancy and that the trial court
erred in failing to conduct a Kelly hearing to determine the test's
admissibility (
People v. Kelly [1976] 17 Cal.3d 24, 130 Cal. Rptr. 144).
Lewis did not object to the experts relying
on the test results in forming their opinions, only to the jury being informed
of the test results.
The appeals panel noted that proof of general acceptance is not necessary when
a published appellate decision has affirmed a trial court ruling admitting the
evidence. There has been no published appellate decision in California affirming admission of PPG test
results. In fact, there is a case holding that such evidence has not gained
general acceptance and is inadmissible.
Burden Not Met
The appeals court concluded that the state failed to meet its burden of
establishing that the PPG test was a reliable technique for determining sexual
deviance and that the trial court erred in not holding a Kelly hearing.
However, because the primary issue was whether Lewis was a pedophile and
whether he was currently dangerous, there was no need to remand the case. There
was overwhelming evidence to support his commitment as a sexually violent
predator, the panel said.
"It is highly unlikely that, had the trial court excluded the PPG test
result testimony, there would have been a more favorable result," the
panel said.
The panel rejected Lewis' other appeal points.
New California Contract Laws take Effect January 1, 2006
In early October, Governor Arnold Schwarzenegger signed into law a bill that modifies the requirements for both Home Improvement and Service and Repair contracts written in California. Assembly Bill (AB) 316 makes the requirements easier to understand for both the contractor and consumer.
New California Junk Fax Law
The new California fax law applies to any person or entity that sends, or causes another person or entity to send, an unsolicited advertisement to a telephone facsimile machine4, if either the person or entity, or the recipient of the fax, is located in California.
The law defines an “unsolicited advertisement” as, “any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any person or entity without that person’s or entity’s prior express invitation or permission.”
The California law requires that all faxes sent to or from California contain the following identifying information either on the first page or in the top or bottom margin of each page sent:
- name of sender
- telephone number of sender or sending machine
- time of transmission
Like the federal Junk Fax Prevention Act, the California law allows recipients of the illegal faxes to sue the sender. In addition to injunctive relief, the new law imposes damages of up to $500 per violation. If a court finds that the sender willfully or knowingly violated the law, the court may increase the amount of the award to up to $1,500 per violation.
Other new laws effective January 1, 2006:
Cellphones: Providers of mobile-telephone service cannot publish the cellphone numbers of their customers without permission.
Headlights: Drivers must use headlights in weather that makes it difficult to see another person or car at 1,000 feet or when the windshield wipers must be used.
Scooters: It is illegal to operate a motor scooter without a valid driver's license or learner's permit. Non-electric motor scooters must have mufflers that meet specifications.
Shoppers: Stores must charge the lowest price posted, advertised or quoted for an item. |
