Judge Denies Bid to Keep Child Molester in Custody

Prosecutors lost a bid Thursday to keep a convicted child molester in custody under the state’s new “sexual predator” law when his prison term ends today.

Edward Ray Molina, 40, became the first sex offender ordered released by an Orange County judge under the controversial law, which faces legal challenges in other counties.

Molina was convicted in 1993 and sentenced to three years in prison for molesting two girls he had befriended in his Anaheim neighborhood.

Molina has served his time. But under the new predator law, prosecutors are seeking to detain the prisoner and three other sex offenders who are due for parole for another two years in a state mental hospital, contending that they continue to pose a threat to public safety.

Deputy Dist. Atty. Camille Hill said she received Molina’s file from state officials only Thursday morning--on the last day of his sentence--and scrambled to persuade Superior Court Judge David O. Carter that Molina is likely to offend again and should be held.

But Carter ruled that Molina’s past offenses did not appear to meet the law’s criteria of “violent sexually predatory criminal behavior.”

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While Carter said Molina’s acts were “disgusting” and even that he might offend again, the judge found that the law appears to apply to more violent sex offenders than Molina. Carter has ruled that the other three men meet the criteria.

“I’m not seeing any past violent behavior,” the judge said of Molina. “This legislation cannot be simply a catchall for all child molesters who come out of the state prison system.”

Molina’s victims were 13 and 14 and he earned their trust with gifts of money, food and candy, according to Hill and court documents. In addition to two counts of molestation, Molina was convicted of one count of battery. A jury acquitted him of two counts of forcible sexual molestation.

Once a judge rules there is probable cause to detain a sex offender due for parole, prosecutors must seek a jury trial in order to confine the inmate to a mental hospital under the new law.

State corrections and mental health officials have referred the four men to local prosecutors as potential risks to the community who could be eligible for civil commitment under the new law. The state authorities have been making referrals at the very end of the offenders’ sentences. Carter criticized the last-minute referrals, saying it forced the court to make crucial decisions with very little time.

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Deputy Public Defender Alan Crivaro agreed with the judge that Molina’s previous acts did not meet the “force and fear” standard required and asked that Carter carefully consider Molina’s “liberty interest.”

Hill said she disagreed with the judge’s legal analysis in the Molina case. The likelihood that Molina will offend again should be enough to hold him, she said, and the issue of whether Molina’s acts were violent should be left to a jury to decide.

Three psychologists wrote in state reports that Molina probably would offend again, Hill said, and a fourth wrote that he would not, as long as he kept busy and stayed away from children.

Hill said late Thursday that she would consider seeking a last-minute court order to hold Molina in custody pending an appeal of Carter’s ruling.

“Basically, what the judge has done is said that at 12:30 [a.m. Friday], this man is out,” she said.

Crivaro has filed a 65-page brief challenging the predator law as unconstitutional, in part because it punishes someone twice for the same offense, and because it applies retroactively to crimes that were committed before the law was in place. Critics say the law also reduces standards of what constitutes mental illness in order to incarcerate someone.

Crivaro represents the other three men who are being held in Orange County under the law. Carter is scheduled to rule on the constitutional issues June 13.