Opinion
F076885
11-26-2019
THE PEOPLE, Plaintiff and Respondent, v. DAVID M., Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FP004309A)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. David R. Lampe, Judge. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Defendant David M. was recommitted to California Department of State Hospitals at Coalinga (DSH) for an additional year of treatment as a mentally disordered offender (MDO). On appeal, she contends there was insufficient evidence she currently posed a substantial danger of physical harm to others. We conclude the evidence was sufficient and affirm the order extending defendant's commitment.
Defendant is transgender and uses female pronouns.
BACKGROUND
In 2001, defendant was convicted by guilty plea of annoying or molesting a child under 18 years of age (Pen. Code, § 647.6, subd. (c)(1)). She was sentenced to six years in prison. In 2009, she was hospitalized as an MDO patient at DSH.
All statutory references are to the Penal Code.
We take judicial notice of our opinion in People v. David M. (Mar. 12, 2018; F075014 [nonpub. opn.].)
On September 21, 2017, the Kern County District Attorney filed a petition seeking to extend defendant's involuntary MDO commitment for another year pursuant to section 2970.
On December 13, 2017, at the recommitment jury trial, Robert Wagner, Ph.D., a psychologist at DSH, testified that he had evaluated defendant every year since 2014, most recently in late February 2017. He spent 12 to 15 hours on his evaluation, consulting everything possible to assess defendant's status. He interviewed defendant for about 45 minutes. It was a good interview; defendant was friendly and cooperative.
Wagner diagnosed defendant with bipolar disorder with historically psychotic features that were not prominent at that time because she had been taking medication as prescribed. She reported the medication was very effective. It had been over a year since defendant's last hypomanic episode. Wagner believed defendant's bipolar disorder was in remission because it was being controlled by medication.
Wagner also diagnosed defendant with pedophilia, which was not in remission. Wagner explained that a person with pedophilia experiences sexual fantasies and urges to conduct sexual acts with prepubescent children. These symptoms must persist for at least six months to warrant a diagnosis. Pedophilic disorder is sometimes treated with testosterone-lowering medication, but it is more often treated with therapy. In DSH, the largest sex offender treatment facility in the world, the goal of treatment is to help the offenders identify their problems, admit their past acts, and then in group therapy, develop victim empathy so they might understand the impact their actions had on their victims. Cognitive therapy is used to help offenders learn impulse control, identify "red flags" that might cause them trouble, and dispel cognitive distortions of facts, such as the belief that their victims wanted them to perform the sex acts. Because pedophilic disorder is considered impossible to remit, the goal is to help offenders learn self-control and resist acting on their urges. The ultimate goal is to achieve maintenance, the point at which offenders possess the insights and skills that give them the prospect of succeeding upon release.
During the four previous years, defendant had been in and out of sex offender treatment for a variety of reasons. Sometimes she was very engaged in treatment and other times she denied having a problem or needing treatment. She had recently quit attending treatment because she " 'wasn't getting anything out of it.' "
Wagner had discussed defendant's qualifying offense with her, and he believed she had very limited insight into it. She told him she was actually trying to help the "boys involved," and then they lied about the offense and were never cross-examined. She felt she had been doing time for a crime she did not commit. She had recently stated, however, " 'I don't want to chase kids anymore .' " Wagner took her statement as both an admission of past acts and a statement that she was not going to reoffend by molesting children, which he hoped was true. While Wagner was pleased with her statement, he told her she needed to verify it with participation in treatment. Otherwise, the statement held little conviction to him.
Wagner did not believe defendant's pedophilia was under control, even though defendant claimed it was. Wagner was concerned because defendant was not seeking treatment by attending the therapy sessions. He believed defendant still posed a danger to children because she had not followed through in a systematic way with the treatment plan. She had failed to meet her sex offender treatment goals, which were to work on self-control and impulse control, develop victim empathy, and deal with fantasies. Wagner assessed defendant as a whole—her history, her efforts to change, her ability to control her impulses, and her insight into herself and her effect on others. Because no children were present in the hospital and thus defendant had no opportunity to reoffend, she needed to show she had thought carefully about how not to reoffend and was committed to having psychological controls in place. Although defendant had "professed progress," Wagner had "seen no evidence from the treatment team, the treatment plan, goals set or failed to be achieved that indicate[d] she ha[d] actually followed through in a systematic way that would give [him] confidence to say here or elsewhere that she [did not] pose a danger anymore. [He] believe[d] she still [did]." Defendant admitted she did not want to go, and did not go, to sex offender treatment. She admitted she had not reached the maintenance phase. Wagner stated that because defendant had not achieved maintenance yet, she should not be released. He affirmed it was his opinion that, if released, defendant posed a substantial danger of harm to others by sexually reoffending.
On cross-examination, Wagner acknowledged defendant's health was frail and she sometimes used a walker or wheelchair. He agreed that studies say a person's risk for sexual reoffending tends to decrease with age. Defendant was 65 years old. Wagner factored her mobility issues and age into his risk assessment. He also explained that mobility is not required for the commission of many sexual offenses against children. Physical immobility does not always reduce the risk for sexual recidivism because "sex offending does not require some physical mobility. It depends on the circumstances. And there's a lot of ways in which people could commit a sexual offense against someone." He noted that self-control, impulse control, and the mental aspect are more important considerations.
Wagner agreed his opinion that defendant posed a danger of physical harm to others was based on her risk of sexual reoffending. He noted that defendant had calmed down and was less likely to be violent than in years past. She had not acknowledged causing physical harm to her victims. Wagner believed defendant's risk of sexually reoffending posed both a substantial danger of physical harm to others and a substantial danger of mental harm to others.
Wagner explained he had not used a formal actuarial risk assessment tool in evaluating defendant. He said it was standard practice among MDO evaluators not to use a formal actuarial risk assessment tool because such tools had not been validated for use with the mentally ill population, just with sex offenders. The mental illness component distorted the assessment.
On December 14, 2017, the jury found that defendant qualified as an MDO.
On December 21, 2017, the trial court ordered the one-year commitment to DSH, to expire on October 16, 2018.
On January 22, 2018, defendant filed a notice of appeal.
DISCUSSION
Although defendant's commitment order has expired, her commitment has been extended. Accordingly, the People do not contend this appeal is moot since a reversal of the previous order of commitment based on insufficiency of the evidence would mean the court lacked jurisdiction to extend defendant's commitment as an MDO going forward.
" 'The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment ... until their mental disorder can be kept in remission.' " (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1061 (Lopez), disapproved on another point in People v. Harrison (2013) 57 Cal.4th 1211.) "[A] prisoner adjudicated to be [an MDO] may be civilly committed during and after parole if certain conditions are met. (See §§ 2962, 2966.) The People, represented by the district attorney, may file a petition for the MDO's continued involuntary treatment for a period of one year. (§§ 2970, 2972, subds. (a)-(c).) Thereafter, the district attorney may petition to extend that commitment in one-year increments. (§ 2972, subd. (e).)" (People v. Allen (2007) 42 Cal.4th 91, 93; see Lopez, at p. 1063 ["[c]ommitment as an MDO is not indefinite"].) "An MDO commitment is neither penal nor punitive; it has 'the dual purpose of protecting the public while treating severely mentally ill offenders.' " (People v. Blackburn (2015) 61 Cal.4th 1113, 1122.)
To obtain an extension of one year, the People must prove beyond a reasonable doubt (1) the defendant continues to have a severe mental disorder; (2) the defendant's severe mental disorder is not in remission or cannot be kept in remission without treatment; and (3) because of her severe mental disorder, the defendant continues to represent a substantial danger of physical harm to others. (§ 2972, subd. (c); Lopez, supra, 50 Cal.4th at p. 1063; People v. Beeson (2002) 99 Cal.App.4th 1393, 1398-1399.) "A defendant's condition a year earlier is relevant but not dispositive of these questions." (People v. Cobb (2010) 48 Cal.4th 243, 252.) At a recommitment hearing, the issue is whether the defendant's "current condition justifie[s] extension of his commitment." (Id. at p. 243) A mental health professional "may and should take into account the prisoner's entire history in making an MDO evaluation." (People v. Pace (1994) 27 Cal.App.4th 795, 799.)
"In considering the sufficiency of the evidence to support MDO findings, an appellate court must determine whether, on the whole record, a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding. [Citation.] ' " 'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the [finding] is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder ....' " ' " (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.) We do not reweigh the evidence or resolve conflicts in the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181.) "[T]hese are functions reserved for the trier of fact." (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
As noted, defendant challenges the evidence supporting the third prong—a substantial danger of physical harm to others. A " 'substantial danger of physical harm to others' " is not defined; "it appears to mean a prediction of future dangerousness by mental health professionals." (In re Qawi (2004) 32 Cal.4th 1, 24.) A single opinion by a psychiatric expert that a person is currently dangerous due to a severe mental disorder can constitute substantial evidence to support the extension of a commitment. (See People v. Bowers (2006) 145 Cal.App.4th 870, 879; People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165.) An expert's testimony in civil commitment cases on a person's dangerousness or likely dangerousness may be the only evidence available. (People v. Ward (1999) 71 Cal.App.4th 368, 374.) "Expert opinion testimony constitutes substantial evidence only if based on conclusions or assumptions supported by evidence in the record. Opinion testimony which is conjectural or speculative 'cannot rise to the dignity of substantial evidence.' " (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)
Defendant concedes there was substantial evidence she suffered from pedophilia that could not be kept in remission without treatment, but she contends the evidence was insufficient to support the finding she currently posed a substantial danger of physical harm to others because the risk she posed was merely sexual. She contends Wagner made it clear the risk was purely a risk of sexual reoffending arising from her pedophilia diagnosis. This argument relies on the premise that the risk of a sexual offense against a child does not constitute a risk of physical harm to that child. Clearly, we cannot agree. Physical harm does not always require physical injury. (See, e.g., People v. McCune (1995) 37 Cal.App.4th 686, 693 [non-violent sexual molestation of a child "involves a physical violation of the most intimate sorts" and constitutes physical harm within the meaning of § 1026.5, subd. (b)(1)'s "substantial danger of physical harm to others"]; id. at p. 694 " '[t]here is inherent danger of physical harm in any situation of child molest, particularly here where the evidence reveals a complete lack of ability on the part of defendant to control his actions' "]; §§ 667, subd. (d)(1), 667.5, subd. (c) [robbery is categorized as a violent crime even when no physical injury results].)
The People also point out that "a lewd or lascivious act as defined in subdivision (a) or (b) of Section 288 is a violent felony, even though force is not required and a lewd touching can be of any body part, either clothed or unclothed, so long as it is accomplished with the requisite intent. (§ 667.5, subd. (c)(6).)" --------
Defendant also claims Wagner improperly shifted the burden of proof: "Wagner believed that the burden of proof was on [defendant] to show that she was not dangerous and that, because any offense would be sexual in nature, no actual danger of physical harm was required to qualify. [T]here was no evidence that [defendant] represented a substantial danger of physical harm to others." Defendant's appraisal of Wagner's belief regarding the burden of proof is entirely unsupported by Wagner's testimony. Furthermore, Wagner's belief regarding the burden of proof is irrelevant. In any event, the jury was properly instructed, more than once, that the People bore the burden of proving each element beyond a reasonable doubt.
Defendant argues the trial court improperly sustained a speculation objection to defense counsel's question, "Do you think that [defendant] would be physically capable of causing physical harm to someone at this point?" Any harm in this ruling was eliminated by Wagner's testimony that physical mobility is not required for the commission of sexual offenses against a child. He also stated he took defendant's physical limitations into account when assessing her. This testimony impliedly answered the unanswered question in the affirmative.
Defendant asserts that Wagner's testimony was "inadequate because of his irrational refusal to use an actuarial instrument to evaluate" defendant's risk. Contrary to defendant's misrepresentation of the record, Wagner had a rational reason to decide not to use the instrument, which he explained. Defendant may believe there exists evidence opposed to Wagner's opinion regarding the instrument's use, but that evidence was not presented at trial. And, if it had been, we would not reweigh it here. (People v. Young, supra, 34 Cal.4th at p. 1181.)
Finally, as for evidence that defendant posed a substantial risk of physical danger to others, the evidence showed she failed to follow her treatment plan to reach her goals of successfully dealing with her pedophilia and achieving maintenance, which would have allowed her to understand her urges and control her actions outside the hospital setting and in the presence of children. She had also gained little insight into her crime. Indeed, she thought she had committed no crime, had helped her child victims, and thus required no treatment. She had claimed she did not " 'want to chase kids anymore,' " but she still refused treatment and even admitted she had not attained maintenance. Wagner believed attainment of maintenance was necessary for defendant's safe release. Wagner opined that, if released, defendant continued to pose a substantial danger of committing sexual offenses against children, and of physically harming them.
The "credibility of the expert[] and [his] conclusions were matters resolved against defendant" by the trier of fact, and "[w]e are not free to reweigh or reinterpret the evidence." (People v. Mercer (1999) 70 Cal.App.4th 463, 466-467.) Any alleged shortcomings of Wagner's opinion or its basis went to the weight to be accorded by the trier of fact. (McCarthy v. City of Manhattan Beach (1953) 41 Cal.2d 879, 890 ["Expert testimony is to be given the weight to which it appears in each case to be justly entitled."].) "Given certain facts, predictions of future dangerousness may be rationally projected and the drawing of such an inference is properly within the expertise of a qualified mental health expert like [Wagner]." (People v. Mapp (1983) 150 Cal.App.3d 346, 352.) It was well within Wagner's expertise to conclude that because of defendant's lack of insight, refusal to receive treatment, and failure to attain maintenance, she would present a danger of physical harm to others if released. Accordingly, we conclude there was sufficient evidence that defendant posed a substantial danger of physical harm to others by reason of her pedophilia.
DISPOSITION
The December 21, 2017 order of commitment (to expire on October 15, 2018) is affirmed.