Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR10171
Sepulveda, J.
In July of 2006, a jury once again found defendant Thomas Alexander met the criteria for civil recommitment as a sexually violent predator (SVP) under provisions of Welfare and Institutions Code section 6600 et. seq. (the SVPA). On the basis of that finding, the trial court ordered that defendant be recommitted to Atascadero State Hospital (ASH) for two years. He appeals, claiming evidentiary errors by the trial court and insufficiency of the evidence. We find no reversible error and affirm.
Defendant has been recommitted on three prior occasions (see BACKGROUND).
BACKGROUND
The details of defendant’s history are set forth in detail in our opinion affirming defendant’s last recommitment as an SVP (which details the evidence supporting his initial commitment and three subsequent recommitments), and we will not reiterate it here. (See People v. Alexander, June 30, 2005, A106840 [nonpub. opn.].) During the trial of the current petition for recommitment, the parties stipulated that defendant suffered three prior convictions of Penal Code section 288, subdivision (a), which involved substantial sexual conduct against two or more victims, thus qualifying as predicate offenses under the SVPA. Michelle Reed, Ph.D., a licensed clinical psychologist, and Douglas Korpi, Ph.D., a clinical psychologist, evaluated defendant and testified that he suffered from pedophilia with an attraction to female children. A pedophiliac has intense, recurrent, arousing fantasies, urges, or behaviors involving sexual activity with prepubescent children, which have occurred over a period of at least six months. The urges must have been acted upon by, or caused inner distress to, the individual. This diagnosis was based upon defendant’s prior offenses, as well as his own admissions of sexual attraction to children. Defendant’s predicate offenses were committed against children ranging in age from six to ten years. He committed his first crime when he was 12 or 13 years of age and by the time he was 14 years old, he was sexually interested in minors. Pedophilia is a sexual orientation and cannot be changed, although it can be managed by teaching a person tools to help prevent his acting upon his urges, if he is willing to learn them.
After defendant molested children as a teenager, he had indicated that he wanted to stop the behavior and change his sexual interest, but he was obviously unable to do so. When defendant was 26 years old, he molested six year old and eight year old victims by orally copulating them, and rubbing and placing his finger near their anuses. This inability to stop acting upon his urges was important to the diagnosis of pedophilia. A further indication of defendant’s inability to control his behavior was that he was released in the community for only five years before reoffending the first time, two years the second time, and six months on the last occasion. Defendant’s continued offenses, even after incarceration, indicated marked or clinically significant distress, according to Dr. Reed. His sexual assaults spanned a period of some 22 years. As late as 1998, defendant indicated that “ ‘children are sexually beautiful.’ ” In 1999, defendant admitted that he was still interested in children, and in 2002 he again admitted a sexual interest in children. Defendant’s sexual interest in children thus had continued since he was a teenager.
Dr. Reed indicated that in his first interview with defendant, defendant seemed to get pleasure from discussing his crimes and would not move away from the topic. Defendant became flushed, his speech became rapid, and he breathed heavily when talking about his crimes. Dr. Reed finally terminated the interview when defendant continued to revert back to describing the predicate offenses in great and graphic detail. During her second interview with defendant, Dr. Reed had to set specific discussion limits. Defendant, while sometimes indicating he was sorry for committing his crimes, would still indicate that he believed that the young female victims initiated the sexual activity. Defendant also blamed external factors for his commission of the offenses, such as the girls’ parents (for leaving them alone).
Defendant was also diagnosed with an unspecified personality disorder, and with alcohol and cannabis (marijuana) dependency. A personality disorder is a long-standing pervasive way of existing in the world—the way one behaves, feels, and thinks. In defendant’s case, the personality disorder contained a number of antisocial and narcissistic features, but those were insufficient to meet the specific criteria for either subcategory. For the past 10 years, defendant had been described as excitable, demanding, and, frequently, as immature. Defendant acknowledged his abuse of alcohol and marijuana, and although he knew at the time he needed to stop using them, he did not.
An individual with a narcissistic personality disorder is self-centered, self-focused, and values his or her own needs over the needs of others.
Drs. Reed and Korpi both opined that defendant was a danger to the health and safety of others due to his diagnosed mental disorder and that it was likely he would reoffend in a sexually violent manner if released into the community. Their opinions were based on defendant’s historical pattern of reoffending despite the negative consequences, and his failure to participate in treatment for any significant period of time. Defendant was not, for example, participating in any treatment program at ASH when Dr. Reed last interviewed him. Further, defendant still did not realize that his actions harmed his victims, and he had not developed a relapse prevention plan. Dr. Reed indicated that in many ways, defendant was still denying responsibility for his crimes; Dr. Korpi indicated that while defendant showed some remorse, defendant failed to accurately perceive the situation as he believed the girls “came on” to him and he did not believe they were “hurt.”
Although he entered treatment a couple of times, defendant quit.
Drs. Korpi and Reed both relied, in part, on defendant’s high score on the Static-99, a standard risk-assessment psychological test, in forming their opinion that defendant was likely to reoffend in a sexually violent manner. Defendant’s score of seven placed him in the high-risk of reoffending category. Based on his risk factors, defendant had a 39 percent chance of reoffending in five years, at least a 45 percent chance of reoffending in 10 years, and at least a 52 percent chance of reoffending within 15 years. Risk factors for defendant included the facts that his offenses were against two or more children under the age of 12, his committed sex offenses as a juvenile, he dropped out of treatment, his lifestyle was unstable, he had past violations of conditional release, and he committed new offenses while on supervision. Defendant also suffered from intimacy deficits, demonstrated by the fact that his relationships with adult women lasted only a few months, and that he was more comfortable around and identified emotionally with children. The doctors had no information regarding defendant’s recent ability to control his sexual impulses as he was not participating in treatment. Dr. Reed opined that defendant was unlikely to seek treatment if released into the community, as he had not tolerated treatment that was available while he was in custody.
Dr. Korpi felt that defendant’s desire for sex had not necessarily decreased as he grew older. While decreasing sexual desire is generally true, offenders such as defendant (those who have been convicted more than three times) have been known to continue to commit sex offenses until age 60.
John Podboy, Ph.D., a clinical and forensic psychologist, and Theodore Donaldson, Ph.D., a clinical psychologist specializing in forensic psychology, testified for the defense. Dr. Podboy opined that there was no evidence that defendant suffered from a mental disorder, including pedophilia. He felt that defendant had suffered from pedophilia several years earlier, but did not currently. Dr. Podboy felt that defendant was made hyper-alert to signs of disrespect or being slighted because of his deafness, due to his father’s physical abuse of him as a child. Dr. Podboy had examined other individuals who, as a result of similar issues, exhibited compulsive-like behavior focused on a sexual activity (which might be attraction to under-age children, stalking, assaulting, raping, or fixating on women’s undergarments). In 2006, defendant felt that staff at ASH was unfair and disrespectful to him because of his non-hearing status.
Defendant admitted that he was once addicted to marijuana and drank heavily, and that he had used cocaine for a number of years, but indicated that he had been clean and sober for some time and wished to remain that way. Defendant knew that being around underage girls would be a risk factor for him, but denied having urges regarding underage children. When Dr. Podboy asked defendant to write about his life and detail his sexual experiences, defendant wrote 22 pages of notes. He indicated that he had feelings for children and felt that young girls were interested in him. He admitted that what he had done was horrible and “an abomination before the Lord,” but that he felt that he had been forgiven. Dr. Podboy found nothing in defendant’s hospital charts indicating behavior consistent with pedophilia (such as compulsively masturbating in front of them or cutting out pictures of children or watching television shows about children that arouse a pedophile). Dr. Podboy agreed that defendant became excited when talking about his crimes, but Dr. Podboy believed that was due to being desperate for human contact not because of the topic. Despite the fact that the doctor did not believe that defendant had a mental disorder, he did consider the likelihood of his reoffending due to alcohol or substance abuse.
Dr. Donaldson formerly worked for the State Department of Mental Health after the SVPA was enacted, but was terminated in 1996 due to the department’s belief that he did not understand the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders). Dr. Donaldson never spoke to defendant and did not personally evaluate him, but reviewed defendant’s evaluations and felt there was insufficient evidence to support the pedophilia diagnosis. Specifically, he opined that because defendant had engaged in relationships with 15 adult women, defendant did not have a preference for children as sexual partners. Dr. Donaldson felt that due to defendant’s physical limitations, seduction of children was easier than seducing adult sex partners and that children were therefore available sex partners. He based this opinion on defendant’s comments that girls aged six and seven are not smart and that older girls will tell, and that he committed the offenses because he needed sex. He also noted that defendant threatened some of the victims, but that was not significant to his diagnosis. Defendant’s antisocial personality disorder would not be a psychiatric impairment that would predispose him to sexual violence. Since defendant exhibited no signs or symptoms of pedophilia while in the hospital, Dr. Donaldson opined that the mental illness was either in remission, or never existed at all. Defendant’s responses on the penile plethysmograph (PPG) test in 1999 supported Dr. Donaldson’s conclusions, he felt, as defendant had no penile arousal to images of children (although he did show arousal to violence and aggressive sex). Dr. Donaldson’s overall conclusion was that there are few sex offenders who are truly mentally ill, and the Department of Mental Health finds too many such individuals are mentally ill when they are truly just criminals.
Dr. Korpi described the plethysmograph as a test where a device is put on an individual’s penis to measure whether he is excited. The individual is then shown pictures of men and women and the degree of physiological reaction is measured.
Based upon this evidence, the jury found that defendant met the criteria for recommitment as an SVP, as he had suffered the requisite predicate convictions and had a diagnosed mental disorder that made him a danger to the health and safety of others, in that it was likely that he would engage in sexually violent criminal behavior if released into the community. This timely appeal followed.
DISCUSSION
A. Details of predicate offenses.
Defendant first contends that the trial court erred by permitting the prosecution’s expert witnesses to testify concerning specific details about defendant’s predicate offenses, over his relevance and Evidence Code section 352 objections. The trial court permitted this testimony in order to explain why the experts had formed the opinions that they testified to, and indicated that it was not being admitted “for the truth of the matter.” Specifically, defendant complains that Dr. Reed was allowed to testify that the predicate offenses “were committed against young children, six years old and eight years old [and] spanned [several years].” She also noted that defendant was 12 or 13 years old when he committed his first offense (and 34 when he committed his last), and that he was on probation when he committed one crime and was incarcerated after committing the other two. Dr. Korpi testified that defendant offended against six-year-old S., ten-year-old C., and seven-year-old R., who is defendant’s niece. He noted that defendant was incarcerated for six years after the incident with victim R., and discussed defendant’s parole status.
As defendant concedes, the SVPA specifically authorizes the admission of hearsay from presentence reports, in order to demonstrate the details underlying the commission of a defendant’s predicate offenses. (Welf. & Inst. § 6600, subd. (a)(3), hereafter § 6600(a)(3); People v. Otto (2001) 26 Cal.4th 200, 207-208 (Otto).) “[T]he only reasonable interpretation of section 6600(a)(3) is that it allows the use of multiple-level hearsay to prove the details of the sex offenses for which the defendant was convicted.” (Otto, supra, 26 Cal.4th at p. 208.) Defendant argues that the court erred in permitting the prosecution experts to testify to the details of his past offenses on two grounds: that section 6600(a)(3) applies only to documentary hearsay evidence, not to the doctors’ verbal testimony regarding the prior offenses, and that the details were not necessary to establish that his prior offenses qualified as predicate offenses, as he had stipulated to that fact. Finally, he contends that even if the testimony was admissible hearsay, it was unduly prejudicial under Evidence Code section 352.
Section 352 provides, as relevant here, that otherwise relevant evidence may be excluded by the trial court if its probative value is substantially outweighed by the risk of undue prejudice.
As Otto notes, hearsay evidence is admissible under section 6600(a)(3) for all purposes. Due process concerns were found to be overcome by the special showing of reliability of the statements of victims (such as those in probation reports), primarily demonstrated by the defendant’s conviction of the prior offenses. (Otto, supra, 26 Cal.4th at pp. 206-207.) Apart from section 6600(a)(3), however, the details of defendant’s underlying convictions were independently admissible under Evidence Code section 802, which provides in relevant part, “A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based.” Cases interpreting Evidence Code section 802 have permitted an expert to include in the reasons for his opinion limited hearsay, although prejudice may arise if, “ ‘ “under the guise of reasons,” ’ the expert’s detailed explanation [brings] ‘ “before the jury incompetent hearsay evidence.” ’ ” Thus the court may exclude from proffered testimony regarding the basis for an expert’s opinion “ ‘ “any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.” ’ ” (People v. Catlin (2001) 26 Cal.4th 81, 137.) However, because experts need to be able to rely upon extrajudicial matters in forming their opinions, the balancing of the jury’s need for such information against the defendant’s interest in not having unreliable hearsay admitted is a matter for the discretion of the trial court. (Ibid.)
The court in People v. Gardeley (1996) 14 Cal.4th 605, 618 explained the relevant principles as follows: “So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter . . . upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. . . . [¶] A trial court, however, ‘has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay’ . . . [and] ‘to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.’ ” (Italics omitted.) As indicated above, there is an inevitable conflict between the accused’s interest in avoiding substantial use of unreliable hearsay and the need of the jury to have sufficient information to evaluate the expert’s opinion, but “ ‘disputes in this area must generally be left to the trial court’s sound judgment.’ [Citation.]” (People v. Catlin, supra, 24 Cal.4th 81 at p. 137.)
The trial court here understood and properly applied these principles. The very limited hearsay of which defendant complains was highly probative on the expert’s opinions regarding defendant’s diagnosis of pedophilia and the likelihood that defendant would reoffend. This limited hearsay evidence was not being admitted to prove that defendant’s prior convictions qualified as predicate crimes under the SVPA, but rather as the basis for the prosecution’s experts’ opinions on these additional issues upon which the prosecution carried the burden of proof. The trial court heard an in limine motion by defendant regarding this testimony, and limited its admissibility specifically to the basis of the expert’s opinion. The trial court also noted that “Another reason I’m allowing that is because according to that Otto [, supra, 26 Cal.4th at p. 200] case when the defendant has pleaded guilty to the prior offenses, he has essentially conceded the truthfulness of the matters that are reflected in the record. So I understand the prejudicial aspect, but I also think that those have indicators of reliability and trustworthiness, the hearsay statements, that the experts would be relying upon.” The court thus properly considered the probative value and potential prejudicial value of this evidence and found that it was admissible under Evidence Code section 352. We find that the admission of the limited hearsay relied upon by the experts here was not error. We note that the jury was specifically instructed that, in evaluating the believability of the experts’ opinions, they should “consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion.” (CALCRIM No. 332.) Defendant’s concerns could adequately have been addressed through the cross-examination of the experts and argument regarding their opinions, in light of the reliability of the information they relied upon.
We note that defendant moved, in limine, in a general manner to exclude reference by the experts to the details of his predicate offenses. The trial court denied defendant’s motion for the reasons indicated, but informed defendant that any specific objections beyond those which he might have to particular portions of the testimony would have to be made at the time the issue arose during the expert’s testimony. Defendant did not object further on these grounds during the experts’ testimony and specifically did not object to the experts, for example, using the victims’ names. To the extent that he failed to do so, we agree with respondent that those specific objections have not been preserved for appeal.
Defendant also appears to complain specifically that the trial court should not have permitted the experts to testify to the names and ages of the victims, nor regarding defendant’s prior incarcerations. Clearly the ages of the victims were highly relevant to the experts’ opinions, as were the defendant’s prior incarcerations and his continued sexual conduct with children despite such incarcerations, and periods of supervision in the community under probation or parole. The victims’ names, while not particularly relevant, were also not particularly prejudicial; the experts had to have some way of distinguishing among the several victims they were referencing in their testimony. Perhaps the use of letters or numbers, or some other such device, would have sufficed for this purpose, but we do not find that the use of the victims’ first names in order to distinguish between them raised such a risk of substantial undue prejudice so as to render that evidence inadmissible under Evidence Code section 352.
B. Victim Statements.
Defendant also makes a very short argument, in a vein similar to the argument above, that the court erred in “inferentially” permitting the jury to consider victim statements contained in probation reports. Again, section 6600(a)(3) permits the use of such hearsay in these proceedings, and People v. Otto, supra, 26 Cal.4th at pages 206-207 specifically approves the jury’s consideration of victim statements in probation reports. For all the reasons stated ante, we find this argument without merit.
Defendant argues that the prosecution moved in limine to allow these statements to be considered and that the trial court inferentially granted the motion, as it involved the same issues of admissibility and prejudice that the court considered in denying defendant’s motion to prohibit the experts from testifying regarding the details of his predicate offenses.
C. Sufficiency of the Evidence.
Defendant also contends that there was insufficient evidence to sustain the jury’s finding he had a current mental disorder, as required for his recommitment as an SVP. In trial on the petition to recommit defendant as an SVP, the prosecution had the burden of proving that defendant had been convicted of two distinct sexually violent offenses, that he had a diagnosed mental disorder which rendered him a danger to the health and safety of others, that his disorder made it likely he would reoffend sexually if released, and that his sexual offenses would be predatory. (People v. Roberge (2003) 29 Cal.4th 979, 985.) We of course evaluate the entire record in the light most favorable to the judgment and determine if it is supported by substantial evidence. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) We do not reevaluate the credibility of the witnesses, nor do we reweigh the strengths of their expert opinion; we must draw all reasonable inferences, and resolve all conflicts in the evidence, in favor of the judgment. (People v. Sumahit (2005) 128 Cal.App.4th 347, 352.) While the evidence must be “ ‘ “reasonable in nature, credible and of solid value” ’ ” (People v. Mercer, supra, 70 Cal.App.4th at p. 466), we reverse only if no rational trier of fact could have found the essential elements beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269.)
Applying this standard of review in the present case, it is abundantly clear that the jury’s determination that defendant qualified as an SVP was supported by sufficient evidence. That defendant had suffered at least two distinct sexually violent offenses is without question; he stipulated that he did. Instead he argues that the prosecution failed to prove that he currently suffered from a sexual mental disorder. Essentially, he argues that the order of recommitment was not based upon his suffering currently from a mental disorder, but rather upon his prior commission of sex offenses and prior underlying pedophilia. Although each of the prosecution’s expert witnesses agreed that defendant met the required criteria, defendant contends that their testimony should be discounted.
The prosecution experts agreed that defendant suffered from the mental disorder of pedophilia and indicated that such a diagnosis may be based upon an individual’s past conduct. Additionally, the prosecution experts diagnosed defendant with antisocial personality disorder. Defendant here offers the common argument along the lines that: yes, I was a pedophile, but since I have not exhibited any symptoms of pedophilia while committed as an SVP, my disease is in remission and I therefore do not currently suffer from such a mental disorder. That argument fails for a number of reasons in the present case.
First, and obviously, the biggest problem with defendant’s argument is that he has had little chance to exhibit overt symptoms of pedophilia while incarcerated. There are no young girls available to defendant in the confines of ASH, defendant is not permitted access to child pornography, and it would be difficult for him to act upon his sexual desires and urges in other ways. Since he has refused to participate in treatment, there is little information about his current mental processes. As the prosecution experts indicated, there was no information about defendant’s recent ability to control his sexual impulses as he was not participating in treatment. However, as recently as 1998 defendant indicated that “ ‘children are sexually beautiful.’ ” As recently as 1999, defendant admitted that he was still interested in children. And as recently as 2002, he again admitted a sexual interest in children. This attraction to children as sex objects was long-lasting; defendant’s sexual interest in children began when he was a young teenager. Obviously, the finding of a current mental disorder cannot be based solely upon defendant’s prior sex offenses, but here there was no indication that the experts’ diagnosis was so limited. For example, Dr. Reed indicated that during his first interview with defendant, defendant seemed to derive pleasure from discussing his crimes and would not move away from the topic. The experts also relied upon defendant’s score on the Static-99 diagnostic test, which showed that defendant was still at a high risk of reoffending, which would support the conclusion that he still suffered from the mental disorder that led him to offend initially. Further, as the prosecution experts explained, pedophilia is a chronic, life-long disease which does not go away simply because the individual suffering from it is confined in a setting where he has no opportunity to act upon his sexual attraction to children. An individual with motivation and a desire to understand the cause of the disorder may learn how to manage pedophilia. Defendant, however, has never exhibited such motivation and has consistently refused to participate in meaningful treatment since being committed to ASH. It strains credulity to argue that defendant’s long history of pedophilia was somehow reversed by his commitment to ASH, when he had received little, if any, meaningful treatment while confined there.
While defendant’s experts disagreed with the prosecution experts on this issue, the trier of fact was entitled to disregard their opinions if they did not find them credible, or at least to give them less weight than the opinions of the prosecution’s experts. Thus Dr. Podboy’s opinion that defendant used to have pedophilia, but no longer did, and that defendant was hyper-alert to being subjected to disrespect because of his deafness, which therefore caused him to have compulsive behavior focused on sexual activity including attraction to underage children, may have been rejected or given little weight by the jury. Certainly Dr. Donaldson’s testimony could have been rejected by the jury, due both to his having been fired by the state because it felt he did not understand the DSM, and because he never personally evaluated defendant. In any event, the jury may have found his opinion that defendant was not a pedophile as he had 15 adult relationships and because defendant just found children to be more “available” sexual partners (based on defendant’s comments that six- and seven-year-old girls are not smart and older girls will tell) itself to lack credibility, or be entitled to little weight.
Defendant cites Hubbart v. Superior Court (1999) 19 Cal.4th 1138, in support of his argument. Defendant quotes language in Hubbart stating that an individual must “ ‘current[ly]’ ” suffer from a diagnosed mental disorder which prevents him from controlling sexually violent behavior and that it is the “ ‘present’ ” inability to control sexually violent behavior which makes the SVP dangerous if released. Defendant ignores, however, subsequent language in the Hubbart opinion that makes it clear an individual’s past crimes may be the basis of a diagnosis of a current mental disorder and may support an expert’s conclusion that the individual presently cannot control his sexually violent behavior. As Hubbart goes on to indicate, after the language quoted by defendant, “In a related vein, [defendant] criticizes the Act because it authorizes the use of prior qualifying sex crimes to prove that the alleged predator is mentally disordered and dangerous. [Defendant] suggests that this method of establishing the likelihood of future criminal conduct is inherently flawed, and that the statute does little more than establish a ‘presumption’ of danger based on past crimes. [¶] We disagree. Notwithstanding the nuances of psychiatric diagnosis and the difficulties inherent in predicting human behavior, the United States Supreme Court has consistently upheld commitment schemes authorizing the use of prior dangerous behavior to establish both present mental impairment and the likelihood of future harm. [Citations.] [¶] Here too, the Legislature could reasonably conclude that the evidentiary methods contemplated by the Act are sufficiently reliable and accurate to accomplish its narrow and important purpose. . . . As noted, the Act precludes commitment based solely on evidence of such prior crimes. [Citation.]” (Id. at pp. 1163-1164.) The Hubbart court therefore found that the SVPA did not violate due process. (Id. at p. 1164.)
Other cases have addressed this concern as well, and have reiterated that the procedures and processes set forth in the SVPA sufficiently prevent an individual from being committed solely due to his prior crimes. In People v. Buffington (1999) 74 Cal.App.4th 1149, the court upheld the constitutionality of the SVPA in part by determining that it requires “ ‘recent objective indicia of the defendant’s condition’ ” as well as “ ‘current psychological symptoms.’ ” (Id. at p. 1161.) Those requirements are satisfied, the court explains, by the administrative process for the screening and evaluation of SVPs, requiring professional assessments of the diagnoses and risk factors, which must be sufficient to demonstrate the required criteria for SVP commitment beyond a reasonable doubt. (Ibid.) Of course, as the Buffington court explains, “The SVPA . . . states that ‘ “[d]anger to the health and safety of others’ does not require proof of a recent overt act while the offender is in custody.” ’ ” (Ibid.; accord, People v. Hubbart (2001) 88 Cal.App.4th 1202, 1219 [court rejects argument that SVPA violates equal protection because it does not require current psychological symptoms or overt acts suggesting current mental disorder, finding that established protocol for evaluation by two mental health professionals and their mandated determination that the person “ ‘has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody’ [Citation.]” in themselves assure that defendant suffers from current psychological symptoms that render the defendant likely to reoffend].)
As the court explained in People v. Poe (1999) 74 Cal.App.4th 826, 833, the SVPA requires a recent objective basis for the commitment as an SVP “in the form of the determination of two experts, credited by the trier of fact, that ‘a subject presently suffers from a mental disorder which predisposes him to commit further sexually violent predatory crimes . . . .” While a current disorder is thus required, a defendant need not currently be exhibiting symptoms or manifestations of the disorder. To hold otherwise would border on ludicrous, as a defendant in the secure setting of a state hospital frequently will be constrained from acting upon his urges or fantasies and may well not admit them to staff, yet still suffer currently from a disorder such as pedophilia.
Subsumed under defendant’s sufficiency of the evidence argument are several additional contentions: (1) that the written evaluations of Drs. Korpi and Reed were not admitted into evidence and were “stale,” (2) that ASH evaluations are generally unreliable, (3) that Dr. Reed’s evaluation is unreliable as it was based on past events and ignored events after defendant was committed to ASH, (4) that defendant was unable to respond to Dr. Reed’s suggestion that he probably committed unreported crimes, (5) that the Static-99 test score is not substantial evidence, and (6) that the evaluators’ opinion are not substantial evidence as they lacked objectivity or disregarded defendant’s current condition. None of these contentions has merit.
1. The Evaluations of Drs. Reed and Korpi.
We reject defendant’s contention that the doctors’ written evaluations were not themselves admitted into evidence, and that they were nevertheless stale, and thus could not be considered as providing evidence supporting his recommitment. The trial in this matter was held in July of 2006. The 2004 commitment extension reports of both doctors were attached to the recommitment petition which was the subject of this trial. Updated recommitment evaluations were done by both doctors in 2005. Judicial notice was taken of relevant portions of defendant’s case file at the probable cause hearing on this matter, and the updated reports were received in evidence. However, defendant notes that the reports were neither judicially noticed, nor marked as exhibits or received in evidence at the jury trial in this matter.
Nothing requires that the actual evaluation reports be admitted into evidence. Both experts testified at trial regarding the evaluations they performed and their opinions. As to the alleged “staleness” of these evaluations, the prosecutor was not required to obtain additional updated reports prior to trial. While the code permits the party petitioning for recommitment to obtain updated reports if necessary to prove their case to the trier of fact (see § 6603, subd. (c)(1)), nothing requires a petitioner to do so. The doctors who had performed the evaluations had already done one set of updated reports, and were available and did testify at trial. Defendant has pointed to nothing in the record that would indicate why additional updated reports were necessary here, nor has he cited any authority compelling such evaluations. The alleged remoteness of the evaluations goes to the weight the trier of fact might attach to them, not to the admissibility of the evaluations themselves (or testimony regarding them). Issues regarding the age of the last evaluations could be adequately addressed through cross examination of the experts and argument.
2. ASH Evaluations.
Defendant notes that Dr. Podboy, who opined that defendant was not an SVP, based his testimony in part on a recent Justice Department study which concluded that ASH evaluations were generally unreliable. Defendant therefore discounts the ASH evaluations in this case.
Here Drs. Korpi and Reed followed the requirements of the SVPA in doing their evaluation of defendant. The SVPA requires that two practicing psychiatrists or psychologists (or one of each) evaluate a defendant under a standardized assessment protocol, which is developed and updated by the State Department of Mental Health, in order to determine if the defendant meets the criteria of an SVP. (Welf. & Inst. Code, § 6601, subds. (c) & (d).) The protocol requires assessment of diagnosable mental disorders, as well as known risk factors for reoffense by sexual offenders. These risk factors include criminal and psychosexual history, type, degree, and duration of sexual deviance, and the severity of a defendant’s mental disorder. (Welf. & Inst. Code, § 6601, subd. (c).) Both prosecution experts determined that defendant suffered from pedophilia, based upon the criteria set forth in the DSM. Both used the Static-99 (which employs an actuarial risk formula) to measure defendant’s likelihood of reoffending, and found him to be in the high-risk category. The Static-99 was only one factor the doctors considered, however, in determining that defendant was at risk for reoffending in a sexually violent manner if released into the community. They also considered factors such as defendant’s failure to participate in treatment at ASH, his lifestyle instability, his past violations of conditional release, and his commission of new offenses while on supervision in the community. Dr. Reed specifically opined that defendant is very likely to reoffend, based upon his historical pattern of reoffending despite negative consequences. The evaluations performed by Drs. Korpi and Reed met the requirements of the SVPA; defendant has not demonstrated that they were unreliable.
3. Dr. Reed’s Evaluation.
Defendant contends that Dr. Reed’s evaluation should be discounted because it was “based on past events and overlooks or disregards current events” during his commitment to ASH. He specifically complains that Dr. Reed relied upon defendant’s pattern of reoffending as demonstrating “ ‘problems of volition.’ ” Defendant relies upon the fact that a plethysmograph test was performed on him in 1999, as previously indicated, which did not indicate that defendant had a sexual interest in children. When that test was performed, defendant did not react to pictures of children, but did react to representations of aggressive sex. Dr. Reed indicated that she did not personally know if defendant ever took this test, but that she would have included a negative result in her report had she been aware of such a result. Defendant also complains that while Dr. Reed was aware of defendant’s generally good recent behavior at ASH (markedly improved attitude, demeanor, and behavior), she did not discuss this with staff and “didn’t really think [the matter] was that significant.”
Dr. Reed was aware that defendant’s behavior at ASH had improved of late; that fact apparently did not impact her overall evaluation. Indeed, as previously indicated, the fact that an individual can control his or her behavior while confined in a state hospital setting does not indicate that he or she will be able to do so when released into the community. As our Supreme Court has explained, “The fact that defendant has not misbehaved in a strictly controlled hospital environment does not prove he no longer suffers from a mental disorder that poses a danger to others. Defendant has an abnormal attraction to [female] children. Because he currently lacks access to children, his lack of outward signs of sexual deviance is not dispositive of whether he is likely to reoffend if released into society at large. Such an assessment must include consideration of his past behavior, his attitude toward treatment and other risk factors applicable to the facts of his case.” (Sumahit, supra, 128 Cal.App.4th at p. 353, citing People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 929.) As set forth ante, defendant here has refused to participate in any meaningful way in treatment since his commitment to ASH; the prosecution experts were justified in concluding that his chronic mental disease (pedophilia) continued and that he had not learned to manage or control his resultant behavior.
4. Dr. Reed’s Suggestion that Defendant Had Probably Committed Other Crimes.
Defendant also argues that it was improper for the trial court to permit Dr. Reed to testify that there “were ‘significantly’ more unreported crimes,” in addition to those of which defendant was convicted. (Italics omitted.) Dr. Reed indicated that sexual offenses generally are underestimated because they are undetected, unreported, or obscured by plea bargains. This testimony, according to defendant, permitted the jury to improperly speculate that defendant had actually committed significantly more sex crimes than were revealed at trial, since he had pleaded to the prior offenses of which the jury was informed.
Dr. Reed’s testimony was based upon research that had been conducted in Canada, and was not based upon her speculation. Defendant did not object to this testimony on Evidence Code section 352 grounds—that the probative value of this evidence was substantially outweighed by the risk of undue prejudice, which appears to be his basic argument (although not specifically articulated as such) on appeal. The only objection below was an initial objection by defendant that the testimony was speculative; the foundation regarding the Canadian study was then made. Once that foundation was made, defendant did not further object to this testimony. The jury was instructed they had to decide the case based upon the evidence presented. Dr. Reed’s opinion that defendant suffered from a mental disease or defect and that he posed a risk of reoffending in a sexually violent manner if released into the community was not based upon the results of this study, or upon the doctor’s belief that defendant had committed more crimes than those put before the jury.
Finally, the testimony complained of must be examined in the context in which it was given. Dr. Reed was being questioned by the prosecutor regarding risk assessment and the use of actuarial measurements (such as the Static-99). Dr. Reed was asked about recidivism base rates and had explained that the base rates for sexual offense recidivism was “a very low frequency event,” meaning that it does not occur very often. Actuarial instruments have used reconviction as their definitions of recidivism. Dr. Reed further explained that some studies have used a different definition of recidivism because simply looking to the number of sexual offense convictions an individual has suffered is probably a significant underestimate, due to plea bargaining down from charged sex offenses to lesser offenses that do not involve a sexual offense, due to some cases not resulting in conviction, and due to a large number going undetected in the first place. Static-99, employed in defendant’s case, uses a high standard, in that it uses conviction as the definition of recidivism. Therefore, the results of the Static-99 regarding likelihood of reoffense are conservative, in that the results are an underestimate of the risk that an individual will reoffend.
This testimony regarding the base definition of recidivism was thus relevant and highly probative to the jury’s understanding of the meaning of the Static-99 results in defendant’s case. Even if defendant had preserved the Evidence Code section 352 objection for appeal, we would find no error. While there was some prejudicial effect, we do not believe the probative value of this testimony was substantially outweighed by the risk of undue prejudice. We review this issue under an abuse of discretion standard, and find no abuse here. (See, e.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 75.) Even if the trial court erred in permitting this testimony, however, such error was harmless. The reference to the Canadian studies was very brief; indeed many of the details were elicited due to defendant’s objection that the testimony was speculative, causing the court to require the prosecution to lay a further foundation. Given the abundance of evidence of defendant’s diagnosis of pedophilia and his risk of reoffending in a sexually violent manner if released, the brief reference to the Canadian study was not reasonably likely to have impacted the verdict—that is, “it is [not] reasonably probable that a result more favorable [to defendant] would have been reached in the absence of the error.” (People v. Boyette (2002) 29 Cal.4th 381, 429, quoting People v. Watson (1956) 46 Cal.2d 818, 836.)
5. The Static-99 Test Results.
Defendant claims that the Static-99 “does not constitute substantial evidence” because it “bloated available evidence.” In support of this position, defendant cites to Dr. Donaldson’s testimony that the Static-99 scores involve double-counting. First, as previously indicated, the jury was free to judge Dr. Donaldson’s credibility and to give his testimony the weight they felt it entitled to. Secondly, even if there is overlap in the criteria the Static-99 uses to predict risk, it was not the only factor the prosecution experts relied upon in determining that defendant posed a risk of reoffending in a sexually violent manner if released. As detailed above, the actuarial device was one of many factors which supported the experts’ opinions that defendant was likely to reoffend if released into the community.
6. The Evaluators’ Opinions.
Finally, defendant argues that the opinions of Drs. Korpi and Reed were not substantial evidence, “either because they lacked objectivity or because they disregarded [defendant’s] current condition.” (Italics omitted.) Subsumed under these arguments are several points, most of which have been addressed ante, including the experts’ use of the Static-99, their failure to discount defendant’s likelihood of reoffending due to his increased age, his “favorable” PPG test result, and what defendant refers to as the “treatment smokescreen.” The latter argument, not yet addressed, goes like this: 80 percent of patients at ASH refuse treatment, there is not a lot of solid research regarding the effectiveness of ASH treatment programs, and the SVPA does not require a defendant to participate in treatment in order to be eligible for release. Thus, defendant’s failure to participate in treatment is a smokescreen. The lack of solid research regarding the effectiveness of ASH treatment (assuming there is such a lack) is not surprising, given that 80 percent of the patients refuse treatment. While a defendant does not have to participate in treatment in order to qualify for release, clearly a defendant’s lack of participation may make evaluation of his current condition difficult, it may demonstrate a general problem with his attitude (depending on the facts of the particular case), and it may indicate that he would be unlikely to submit to treatment in the community. None of the factors cited by defendant renders the prosecution’s experts’ testimony unreliable so that it was not properly admitted. The credibility of the experts and the weight to be given to their testimony was, again, an issue for the jury.
DISPOSITION
The judgment is affirmed.
We concur: Reardon, Acting P.J., Rivera, J.