Opinion
C081600
08-21-2017
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JAY PRICE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM002759)
Defendant William Jay Price has been serving an indefinite term at a state hospital after having been found to be a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). He petitioned for conditional release pursuant to section 6608, subdivision (a), and following a hearing the trial court dismissed his petition because it was frivolous. He now contends that the provision in the SVPA that allows for the court to deny a conditional release petition as frivolous without a hearing violated his equal protection rights. He also contends the trial court abused its discretion by denying his petition as frivolous.
All further section references are to the Welfare and Institutions Code unless otherwise indicated.
We conclude defendant's equal protection rights were not violated because he was given a hearing before the court denied his petition, thus affording him the same rights as all other civil committees. We also conclude the trial court did not abuse its discretion when it denied defendant's petition because it was frivolous. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I
Defendant's Commitment Under The SVPA
In 2001, at the age of 53, defendant was adjudged an SVP under the SVPA. He has been incarcerated since 1993, and housed with the State Department of State Hospitals (the department) at Coalinga State Prison since 2006. Defendant's sexual offense history spanned a nine-year period from 1983 to 1992 during which he was convicted of seven counts of lewd conduct with a total of three children under the age of 14. He has since admitted to having a total of 21 victims, 18 of whom were previously undetected.
Defendant's first convictions for sexual offenses occurred in 1984 when he was convicted of five counts of lewd and lascivious conduct with J. F., a child under 14 years old. Defendant met J. F. at church and was her Sunday school teacher. In early 1983, he started babysitting her, and she visited his home on several occasions. Multiple times in September and October 1983, defendant showed J. F. pornographic books and films, after which he took baths with her where he either touched his penis or had J. F. masturbate him. Defendant also took nude photographs of J. F. Once, while sleeping in defendant's bed, J. F. awoke to defendant masturbating while he touched her stomach and legs. On another occasion defendant talked to her about condoms and let her stroke his penis to erection so she could place a condom on it. When interviewed by police about these offenses, defendant cooperated and made a detailed confession.
In 1993, defendant was convicted of two additional counts of lewd and lascivious conduct with a child under 14 and sentenced to 15 years in prison. These convictions were the product of defendant's conduct with two victims, P. P. and G. M. P. P. reported that defendant touched her and her friend G. M. multiple times from the time P. P. was six years old until she reported the conduct at eight years old. On multiple occasions, defendant took nude photographs of P. P. and G. M. in poses where they exposed their genitalia to the camera. Defendant also made them watch pornographic films.
Over time, defendant's conduct progressed from photographs to touching of the girls' buttocks and vaginas. Defendant's conduct then progressed again and he too would remove his clothing. After more time, he would masturbate in front of the girls. Defendant also took the girls to his mother's house and made them " 'skinny dip,' " sometimes swimming naked with them. P. P. reported that defendant molested her and G. M. every time the girls were with him, which was at least twice a week for a two-year period. G. M. reported that she and P. P. masturbated defendant to the point of ejaculation. She also said defendant put his penis on her vagina, but not inside.
II
Petition For Conditional Release
On May 18, 2015, defendant filed a petition for conditional release pursuant to section 6608, subdivision (a). In support of this petition, defendant attached three documents prepared by the department: a phallometric assessment report from October 2014, a medical verification form indicating he intermittently used a wheelchair, and three pages of his 15-page treatment plan from 2015.
The phallometric assessment report showed that defendant did not exhibit significant arousal to either violent or nonviolent visual and audio sexual stimuli involving children and adults. The test results compared defendant's self-reported arousal to persuasive, coercive, and consensual stimuli to his measured erectile response to the same stimuli. Although defendant did not show significant arousal to the stimuli, his self-reported arousal was inconsistent with his measured arousal in all but one test result. A polygraph indicated that defendant was not deceptive during the phallometric assessment.
The medical verification form defendant attached was dated April 2015. It indicated he intermittently used a wheelchair because of stiffness and lower back pain along his sciatic nerve.
Defendant also attached three pages of a 15-page treatment plan compiled in March 2015. The plan diagnosed defendant with "pedophilia, sexually attracted to both, non-exclusive type" and "posttraumatic stress disorder." It found that defendant had previously attempted suicide in 1965 and 1968, but was at a low risk of further attempt because he reported having " 'a job skill,' " and because he felt ready to " 'transition to the community.' " It also found defendant was at a low risk of future violent behavior, but had exhibited violent and assaultive behavior in the past by threatening legal action against a member of his treatment team and becoming argumentative with prison staff after bumping his head. The treatment plan noted that in December 2014, defendant complained of chronic back pain and restriction of movement in his left hip and leg.
All other attachments to defendant's petition were documents written and prepared by him. These attachments detailed defendant's relapse prevention and treatment plans, his social history and self-diagnosis, his long-term goals, and his budget upon reentry to the community.
Defendant's first attachment listed the classes he participated in from 2001 to 2015, including a total of 70 quarters of sex offender treatment program classes ranging from phase I to phase IV classes. Defendant also included a two-page narrative of his relapse prevention plan, which stated that he needed to stop using sex to express anger and confirm his masculinity, and to feel strong, in control, loved, and accepted. He acknowledged that he often rationalized his behavior towards his victims, which led him to abuse them. By recognizing the thoughts that led him to abuse, defendant claimed he could "interrupt" the "cycle before [he] abuses" again. Defendant admitted that he targeted girls between the ages of six and eight, but also victimized both girls and boys between the ages of four and 13. He admitted the details of his convicted crimes, and that he committed acts against children he was never charged with. These acts included exposing himself and having them expose themselves, and fondling them and having them fondle him. He acknowledged that these children were adversely affected and could not lead normal lives because of his conduct.
Defendant articulated steps he takes to "deal appropriately with [his] anger, stress, PTSD flashbacks, depression, low self-esteem, and loneliness." These steps include "positive self-talk," accepting critical feedback, rewarding himself when he meets his goals, and meditating and praying. When defendant has deviant thoughts, he practices the strategies he learned in "Management Skills For Sexual Arousal and contained in [his] Urge Control Contract." He also engages in coping strategies and adaptive behaviors, along with practicing "empathy for victims and people in general." Defendant's highest priority and goal is to "never create another victim."
To ensure that he never reoffends, defendant decreased the antidepressants he was taking, which "clouded [his] mind," and continues to maintain trusted friendships with people who know his behaviors and will contact clinicians or police when needed. Defendant listed his support persons as "Liberty Healthcare," "Barbara Smith," and "5 other adult community support people." He also vowed to avoid church leadership because he had a pattern of offending when participating in this role. Defendant claimed he would disclose his past with any church he decided to attend and to avoid people and places associated with children.
Defendant tailored his treatment plan "to [his] personality, the actual causes of [his] offending, and in accordance with [his] needs." Defendant identified his triggers for reoffending, which include children's songs, seeing a child that looks like a past victim, girls in various stages of undress, and smells associated with children. When confronted with these triggers and the urge to reoffend, defendant plans to replace these deviant thoughts with fantasies of being arrested or causing a child pain, write a consequence list, talk to a friend or counselor, or go to a place where he cannot reoffend. Defendant also attached a list of "counter-belief[s]" he will engage when he finds himself thinking "offense supportive beliefs" and also a list of negative effects sexual abuse has on child victims. Defendant also attached a graph of his "deviant abuse cycle," which detailed the progression of how he abused children in the past. Defendant admitted he would feel isolated and alone and have deviant fantasies. This led him to locate a six- to eight-year-old girl who was a loner. He would show interest in her and let her sit on his lap before taking her shopping for clothes and to beauty salons. Defendant would then give her back rubs and take her picture. If the girl did not report his conduct, then he would watch her take baths and talk to her about sex. Then defendant would "skinny dip" with her and show her pornography and take nude photographs of her. This would result in defendant touching the girl's genitalia and having her masturbate him. To avoid this cycle, defendant attached a list of activities he planned to do to avoid getting lonely. This list included baking, cleaning, gardening, meditation, reading, exercising, and watching movies with his friend Barbara.
Defendant's long-term goals include utilizing his paralegal training, or his training in electronics and landscaping. He also would like to join a book club, bowling league, horticulture group, hiking group, or other adult-only activity. Finally, defendant attached a monthly budget detailing his financial plans upon community reentry.
III
Department Of State Hospitals Report
Upon order of the trial court, the department prepared and submitted a report and recommendation in response to defendant's petition for conditional release. The report indicated defendant sought a private psychologist and admitted his misconduct following his first arrest for sexual offenses. After his second arrest, defendant said he was " 'sick' and need[ed] professional help." While housed with the department in Atascadero, defendant completed phase I and II of the sex offender treatment program, and started phase III. In October 2015, defendant took Paxil for his anxiety, intrusive thoughts, insomnia, nightmares, and hypervigilance, and to reduce his sexual thoughts and behaviors. The medications appeared to "provide[] adequate efficacy and [were] relatively well tolerated." He was also treated for a myriad of physical ailments including chronic rhinitis, muscle spasms, gastrointestinal upset, foot and ankle pain, chronic sinusitis, and fibromyalgia.
During the 2013 reporting period, defendant exhibited multiple behavioral concerns. He repeatedly issued verbal and written threats to his treatment team and their supervisors. Staff described him as dismissive, aggressive, and confrontational. Defendant was caught trying to pass a note to a female staff member, in which he instructed her how to testify and what to wear during one of his court proceedings. Defendant mocked his social worker and dictated his treatment plan by instructing staff about symptomology, psychology, and treatment modality. This led to defendant's transfer to a different unit.
In 2014, defendant was "showing progress" but there was no change in his risk profile. A group facilitator reported that defendant acted aggressively during group sessions by cutting off his peers and had to be reminded sometimes to "not take the 'top dog' position." During a group session in March 2014, the group watched a video about empathy. In the video a young girl was lured to the mall by an adult man, who " 'groom[ed]' " the girl by buying her clothing to gain her trust. The video implied that a sexual act between the man and the girl occurred. Defendant "was visibly 'on the edge of his seat' watching the video as if excited by it, to the point that his peers asked him if he was 'okay.' " Defendant responded, " 'Oh she liked it. The dad was probably jealous that the adult male was getting some.' "
Around that same time, defendant brought in a calendar documenting the number of times he masturbated in one month to share with the group, even though it was not an assignment. When sharing the calendar, defendant boasted that no one else in the group could masturbate as much as he could. He also wrote explicit journal entries about his deviant fantasies he would then give to a female facilitator. Defendant's journal entries involved fantasies about his victims and were not required by any group he was attending. The facilitator defendant gave the entries to thought he wrote the entries to enjoy his sexual experiences over again.
In April 2014, defendant refused to meet with his treatment team and, in May 2014, he became confrontational and belligerent when his request to have property shipped was denied. Also in May, defendant disobeyed an order not to leave his unit. He was also involved in a fight with another patient and left his unit without authorization. A treatment progress note from May 2014 indicated that defendant denied there was a connection between his lack of empathy towards others and his sexual offending. This resulted from a discussion about empathy defendant had with his psychologist after he repeatedly called a staff member lazy. In December 2014, defendant was doing well in group classes; however, he became argumentative with correctional officers after he bumped his head entering a van. This resulted in the correctional officers refusing to transport defendant as they were in the process of doing.
In March 2015, defendant was transferred to a different unit for medical reasons. Shortly after, he stated that he would not participate in group therapy any longer and instead wanted to have one-on-one sessions with a female staff member. Defendant was told that his request was inappropriate. During an unrelated one-on-one session with a female staff member, defendant asked the staff member whether she wore a padded bra. At another individual session with the same staff member, defendant admitted that he had feelings of love toward her. He further told her that he found her blouse sexually arousing. Also after his transfer, defendant admitted in a group session that his transfer to the new unit and inability to get his property caused him to act out against staff. Other members of the group challenged defendant's behavior, which caused him to get angry and yell at them and the group facilitator. The facilitator eventually had to ask defendant to leave the session. Defendant then decided to stop participating in the sex offender treatment program and stop taking his medications.
Defendant regularly shared his deviant fantasies with his friend Barbara over the phone. When told that it was inappropriate for him to do so, defendant became "angry, belligerent, and argumentative." Defendant told both of his most recent sex offender treatment program facilitators that he did not follow rules he considered " 'unlawful rules.' " He also did not see a relationship between his refusal to follow treatment facility rules and an ability or inability to follow the rules of society when released. Both facilitators thought defendant was not ready for community release. His clinical liaison agreed because defendant did not integrate his cognitive and behavioral treatment into his daily life.
Defendant had a tendency to blur boundaries with staff and support persons and had " 'distorted views of reality.' " For example, defendant regularly acted as a cofacilitator during group sessions and would comment about other group members. Also, upon starting therapy sessions with a new psychologist, defendant gave the psychologist a therapy agenda he wanted her to adhere to along with a description about how she was to talk about issues with him. He also admitted to the psychologist that he asked his friend Barbara about how one of his victims was currently doing and that he believed his aggressive and passive aggressive tendencies were " 'effective' " in getting him what he wanted.
Defendant agreed to be interviewed on November 12, 2015, for the department's recommendation. He sat in a wheelchair during the interview and claimed it was more comfortable for him to do so because of his hip pain. He stated that he had several people in the community to support him, including his 77-year-old " 'platonic' " friend Barbara, his ex-brother-in-law, a 60-year-old accountant friend, an 80-year-old minister friend, and a female friend who lived in Redding. Defendant stated that his ex-brother-in-law offered to house him in the event that he was released. He also claimed to share an intimate relationship with Barbara, but claimed it was not romantic. He did admit that he regularly shared his deviant sexual fantasies with her over the phone whenever he had " 'booster sessions' for Masturbatory Reconditioning/Satiation" and that Barbara would read him those fantasies "because he discovered he was able to become more aroused to the deviant scenes he writes when she read them to him." Defendant said that he was not looking for " 'a sex partner' " but would like to establish a relationship with a female once released. In fact, defendant had a specific woman in mind, even though he had not had contact with her for years.
Defendant explained that he was angry when he was transferred to a new unit because of the move itself and because all of his property took a long time to transfer. He acknowledged that he called staff names and experienced "emotional instability," but claimed it was because of the move and his chronic pain.
Defendant claimed he did not try to emotionally identify with any of his victims, but then stated that his victims and the adult women he was attracted to shared traits with a friend from his childhood. He also said that he " 'was always looking for' " a girl similar to his childhood friend. He explained that his sexual interests in his victims and in adult females mirrored the sexual abuse he was the victim of when he was four years old. For instance, instead of having an interest in performing sex acts on his victims, defendant wanted to touch the female breast and have the female masturbate him. Defendant described having deviant fantasies about his victims before acting upon those fantasies.
Defendant reported that he masturbated once a month while watching R-rated movies to stimulate him. He said that his medication Paxil helped him " 'not want to masturbate' " and that he gave himself " 'booster' sessions of Masturbatory Reconditioning/Satiation about every 12 months to manage his sexual arousal to inappropriate stimuli." Defendant explained that he stopped participating in the sex offender treatment program because he was under a lot of physical pain. He claimed that his facilitators agreed that he should stop attending the program. Defendant reported that he had started participating in the sex offender treatment program again, but had stopped going to his treatment team meetings. Defendant said that he " 'dictates his own treatment,' " and acknowledged that he was " 'confrontational' " and " 'critical' " in his group sessions. He also acknowledged that he gave two female staff members, one of whom he claimed to be attracted to, graphic written fantasies.
The report diagnosed defendant with pedophilic disorder, posttraumatic stress disorder, and narcissism. He scored a risk level of 2 on the Static Risk Assessment (STATIC-99R), placing him at a low-moderate risk of reoffending. He scored a risk level of 4.08, however, on the Dynamic Risk Assessment (SRA-FV), indicating a high risk of reoffending. This score was primarily based on defendant's sexual interest in children, sexual preoccupation, callousness, internal grievance thinking, poorly managed anger, and dysfunctional coping. The Dynamic Risk Assessment also revealed multiple areas of risk for defendant, including his capacity to form stable relationships, his emotional identification with children, his hostility towards women, his lack of concern for others, his impulsivity, his sexual preoccupation, his use of sex as a coping mechanism, his deviant sexual interests, and his lack of cooperation with supervision. The evaluation concluded that defendant posed a threat to the community and recommended that he remain hospitalized.
IV
Trial Court's Ruling
Defendant represented himself and appeared by telephone at a hearing to determine whether his petition was frivolous. Before making its ruling, the court asked defendant whether he would like to present any argument in addition to the argument and documents he presented with his petition. Defendant declined, and instead decided to submit on the briefings.
The trial court then dismissed defendant's petition for conditional release because it was frivolous. The court cited People v. Reynolds (2010) 181 Cal.App.4th 1402 and the definition of "frivolous" contained in Code of Civil Procedure section 128.5. The court noted that it could consider defendant's recent psychological evaluations in making its determination and reasoned that, "[w]hereas here, the reports received from the Department of State Hospitals indicate that [defendant] does not qualify for conditional release, the Court may consider whether the petition makes a contrary showing . . . [that is] the petition must show based on the face of the petition and any supporting documents that the petitioner would not be a danger to others due to his diagnosed mental disorder while under supervision and treatment in the community. [¶] The petition in this case fails in this regard. The Court finds that the petition is based on frivolous grounds such that any reasonable attorney would agree that the petition on its face and any supporting attachments are totally and completely without merit."
DISCUSSION
I
Defendant Cannot Show He Experienced The Harm He Alleges
Caused A Violation Of His Equal Protection Rights
Defendant contends section 6608, subdivision (a), which provides that the trial court can deny an SVP's petition for conditional release without a hearing because it is frivolous, violates his right to equal protection. Specifically, defendant argues that he, as an SVP, is similarly situated to mentally disordered offenders (MDO's) and persons committed after being found not guilty by reason of insanity (NGI's). Because he is similarly situated to these other classes of offenders and neither an MDO nor an NGI can have a petition for release summarily denied because it is frivolous, defendant argues he is disparately treated and such treatment violates his right to equal protection. The People counter that defendant forfeited this claim by failing to raise it at the trial level. They also argue that defendant's claim fails on the merits.
Defendant's right to equal protection of the laws arises out of the Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution. The equal protection guarantees of the Fourteenth Amendment and California Constitution are substantially the same and are analyzed in a similar manner. (People v. Noyan (2014) 232 Cal.App.4th 657, 666.) "The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally." (People v. Brown (2012) 54 Cal.4th 314, 328.) Both the United States Supreme Court and the California Supreme Court have applied the equal protection clause to civil commitment statutes "to ensure that a particular group of civil committees is not unfairly or arbitrarily subjected to greater burdens." (People v. McKee (2010) 47 Cal.4th 1172, 1199 (McKee).)
Defendant contends SVP's are similarly situated to MDO's and NGI's for the purposes of petitioning for conditional release. Even if we assume defendant is correct on this point, however, his equal protection argument is still without merit. We will address the merits of defendant's equal protection claim because "the issue is . . . one of law presented by undisputed facts in the record before us." (People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.) Relying on People v. McCloud (2013) 213 Cal.App.4th 1076, 1088, defendant argues that "[n]o other litigant involved in an involuntary civil commitment is subject to having their complaints or other initial pleadings dismissed in a summary fashion. Thus, this provision is a violation of equal protection." In McCloud, the court remanded an SVP's appeal from a commitment determination "so that both parties [could] fully brief and argue [the defendant's] claim that section 6608, subdivision (a), violates the equal protection clause." (Id. at p. 1088.) The court noted, "[t]he right at issue . . . is that of being able to appear before the court to argue that a petition, despite the court's initial determination, is not frivolous and that the committee should be permitted to proceed on the merits. While it is true that an SVP may appeal a trial court's summary dismissal of a petition because it is frivolous [citation], the requirement that the defense of a petition as nonfrivolous take place at the appellate level is an obstacle not faced by MDO's or NGI's." (Ibid.)
The problem with defendant's reliance on McCloud is that he was not denied the right an SVP committee lacks compared to MDO and NGI committees. (People v. McCloud, supra, 213 Cal.App.4th at p. 1088.) While it is true that the SVPA allows for denial of an SVP's petition for conditional release without a hearing, defendant was provided with a hearing in which to argue that the petition was not frivolous and that a hearing on the merits was warranted. Thus, even if defendant could successfully argue SVP's are similarly situated but treated unequally to MDO's and NGI's because their petitions can be summarily denied, he cannot show that he was treated unequally because his petition was not summarily denied. " ' "One who seeks to raise a constitutional question must show that his rights are affected injuriously by the law which he attacks and that he is actually aggrieved by its operation." ' " (People v. Conley (2004) 116 Cal.App.4th 566, 576.) Defendant cannot show that he was "actually aggrieved" by the operation of section 6608, subdivision (a), and thus his equal protection argument is without merit.
II
The Trial Court Did Not Abuse Its Discretion By
Denying Defendant's Petition As Frivolous
Defendant contends the trial court abused its discretion when denying his petition for a conditional release as frivolous. We disagree.
Section 6608, subdivision (a) allows the trial court to dismiss an SVP's petition for conditional release on the ground that it is frivolous. The SVPA does not define the term "frivolous"; however, "[i]n People v. Collins (2003) 110 Cal.App.4th 340, 346 (Collins), the appellate court adopted the definition of 'frivolous' from . . . 'Code of Civil Procedure section 128.5, subdivision (b)(2)[, which] defines "frivolous" to mean "(A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party." Whether action taken by a party or party's attorney is frivolous under that statute " 'is governed by an objective standard: Any reasonable attorney would agree it is totally and completely without merit.' " ' " (People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1070-1071 (LaBlanc).) Our Supreme Court has since adopted essentially the same definition of frivolousness for section 6608, subdivision (a)--"[a] frivolous petition is one that 'indisputably has no merit.' " (McKee, supra, 47 Cal.4th at p. 1192.)
To make this threshold determination, the trial court reviews the petition and any supporting attachments to determine if the defendant's position has some merit on the issue of whether he may qualify for conditional release. (McKee, supra, 47 Cal.4th at p. 1192.) It is not necessary for the petition to append competent, admissible evidence. (Collins, supra, 110 Cal.App.4th at p. 350.) The trial court's threshold determination of frivolousness, however, is not limited to the face of the petition and supporting documents. If the petition for release is made by the SVP rather than the treatment facility, the trial court may consider the state hospital's annual report in determining whether a petition is frivolous. (People v. Olsen (2014) 229 Cal.App.4th 981, 996 (Olsen).)
A petition is not frivolous if the defendant has made a showing that he would not be a danger to others due to his diagnosed mental disorder while under supervision and treatment in the community. (Olsen, supra, 229 Cal.App.4th at p. 996.) On appeal, we apply the abuse of discretion standard. (People v. Reynolds, supra, 181 Cal.App.4th at p. 1408.)
Here, because defendant petitioned on his own for conditional release, the trial court took into consideration the department's report and defendant's recent evaluation, which determined he did not meet the criteria for conditional release and that no staff member thought defendant appropriate for release. In fact, the department's report showed that starting in 2013 until after defendant petitioned for conditional release, he exhibited dismissive behavior regarding his treatment and showed an unwillingness to integrate his treatment into his daily life. For example, defendant dictated his own treatment plan and supplied his own treatment agenda to psychologists. He refused to meet with his treatment team and denied that there was a connection between his lack of empathy and his commission of sexual offenses. In March 2015, he stopped participating in group therapy, then stopped participating in the sex offender treatment program and taking his medications altogether. Defendant also told his most recent sex offender treatment program facilitators that he did not follow any rules he considered " 'unlawful rules' " or rules he did not want to follow. At the time of his interview, defendant claimed that he had started participating in the sex offender treatment program again, but that he dictated his own treatment, and that he still did not go to group therapy. He also claimed that he was taking his medication, Paxil, and that it helped him " 'not want to masturbate.' "
The report further showed that defendant exhibited ongoing deviant behavior. In March 2014, he became "excited" while watching a video about an adult man grooming a young girl into committing a sexual act. Around this same time, defendant documented the number of times he masturbated in one month and boasted to his peers that nobody could masturbate as much as he could. He also wrote explicit journal entries about his deviant fantasies and gave them to female facilitators unsolicited. He told a female staff member that he had feelings of love towards her and made comments about the arousing way she dressed. During his interview for the report, defendant admitted he shared his deviant fantasies with his friend Barbara and would have her read them to him because "he was able to become more aroused" by his fantasies that way.
The report's recital of defendant's lack of respect for institutional rules and treatment protocols, along with his ongoing entertainment of deviant fantasies, supported the finding that defendant did not meet the criteria for conditional release. His own petition and supporting documents did not support a colorable finding to the contrary.
A vast majority of the documents attached to defendant's petition describing his criminal history, diagnosis, treatment progress, and strategies to avoid reoffending were prepared by him and did not include supporting declarations or professional opinions. Defendant did not include a proposed witness list or proposed testimony, let alone a professional's opinion that he was suitable for conditional release, that his treatment had been successful, or that he did not suffer from a mental disorder. Instead, defendant attached his own diagnosis and relapse prevention plan wherein he admitted he still entertained deviant sexual fantasies. Defendant listed techniques he planned to employ to avoid reoffending, but attached no assertion from a professional that he was capable of successfully employing these techniques. He further acknowledged the pattern of behavior that led him to offend in the first place, yet did not attach any assurance besides his own claims that he was capable of avoiding this pattern in the future. Defendant claimed to have support persons who would contact law enforcement and clinicians in the event he exhibited concerning behaviors, yet again attached no declarations or proof that these support persons existed let alone would act as his support persons. Defendant's petition was devoid of any supporting documents, besides his own claims, that he would not reoffend if conditionally released.
The documents from the department defendant attached to his petition also failed to help him meet his burden. Although defendant's 2015 treatment plan indicated he was at a low risk of future violence, the report as provided lacked clarity and was tainted by its obvious omissions. Defendant only provided three pages of the 15-page report. The report's assessment of his future violence is one paragraph within the larger report and is unclear about whether the conclusion it reaches pertains to his risk of reoffending. This treatment plan provides no support to defendant's argument that he does not pose a risk to the community if conditionally released.
The same is true of defendant's phallometric assessment report indicating that he did not show significant arousal to sexual stimuli. The report states that "[t]he current findings are in and of themselves not indicative of the absence of a deviant interest or preference pattern. As such, it is not possible to either confirm or refute the presence of a deviant sexual arousal profile. [¶] The results are at best an approximation of [defendant's] sexual interests and propensities." Given that defendant admitted to entertaining deviant fantasies during his interview and in his own supporting documents, the fact he was not measured to have been aroused during the phallometric assessment does not, by itself, support a finding that defendant lacked a deviant sexual arousal profile.
Finally, defendant's claim that his physical disability would prevent him from reoffending is also unsupported by his petition. Defendant attached a medical form indicating that he had back problems and would intermittently use a wheelchair. However, this form did not show how this disability would likely prevent him from reoffending or make it so that he was not a risk to the community. It is this lack of supporting documents refuting the department's report or supporting defendant's own claim of rehabilitation that distinguishes his case from the cases he cites in support of his argument that his petition was not frivolous. Defendant relies on People v. Smith (2013) 216 Cal.App.4th 947 (Smith), Collins, supra, 110 Cal.App.4th 340, and LaBlanc, supra, 238 Cal.App.4th 1059 to support his claim. Defendant's reliance on these cases, however, is misplaced.
In Smith, the People conceded that the trial court erred when dismissing the defendant's petition without a hearing. (Smith, supra, 216 Cal.App.4th at p. 951.) The defendant in Smith attached to his petition his annual evaluation stating he still met the definition of an SVP, but that he had " 'made significant progress in treatment' " and could be adequately treated and managed in a less restrictive treatment setting once he completed certain treatment milestones. (Id. at pp. 951-952.) He also attached an article calling into question the validity of his mental diagnosis. (Id. at p. 952.) Further, he attached a declaration prepared by him stating that he was "not presently aroused by deviant sexual fantasies or urges," that following his annual evaluation he was informed the department had recommended him for placement in an outpatient program, and that his failure to meet the milestones indicated in his annual report were out of his control due to understaffing and changes in the treatment program. (Id. at pp. 952-953.) The defendant in Smith made the colorable argument that he no longer had a mental disorder and that he met the criteria for release laid out in his annual report. He did so by presenting the proposed testimony of those familiar with his circumstances and the opinion of professionals.
The same was true in Collins. There the court determined the trial court erred in denying a petition for conditional release as frivolous. The defendant supported his petition with a report from his treating psychiatrist, who stated that the defendant's risk was greatly reduced and he could be managed in the community. (Collins, supra, 110 Cal.App.4th at p. 345.) The defendant also attached a declaration of his defense counsel, who stated that the treating psychiatrist would testify the defendant had been chemically castrated and that hospital staff would testify the defendant was not likely to reoffend if released to proper supervision in the community. (Ibid.) The appellate court concluded that "[b]ased on this record, we find no support for the superior court's conclusion that Collins's petition was totally or completely without merit . . . ." (Id. at pp. 351-352.)
Finally, in LaBlanc, the court also determined the trial court erred in denying the defendant's petition for conditional release. (LaBlanc, supra, 238 Cal.App.4th at p. 1077-1078.) The appellate court found that the defendant made a "colorable, nonfrivolous showing that his diagnosis of paraphilic coercive disorder [was] not scientifically valid, and that his advancing age and medical condition [made] it unlikely that he [would] reoffend and commit sexually violent crimes if he [were] released." (Id. at p. 1078.) This decision was based on a report the defendant attached to his petition prepared by a clinical psychologist calling into question the validity of his mental diagnosis and the basis for the opinions found in his annual reports. (Id. at pp. 1063-1064, 1075.) The report also "cited research indicating that the passage of time and aging are highly relevant in determining whether an SVP continues to pose a risk to public safety." (Id. at p. 1076.) Further, the report detailed the defendant's severe medical issues and how they impacted his ability to reoffend. Specifically, the defendant suffered from heart failure and multiple sclerosis, and had been left impotent following treatment for prostate cancer. (Id. at p 1077.)
In contrast to these cases, defendant failed to support any of his claims that he would not reoffend or that his treatment was successful with proposed testimony in agreement. By his own admissions, he still engaged in deviant fantasies and suffered from a mental disorder. He presented his own treatment plan in his petition, thus confirming the department's report that he was dismissive of his sex offender treatment and thought he did not need to follow treatment advice. Although defendant presented evidence that he was of advanced age and had a physical disability, he presented no evidence detailing how his specific circumstances would reduce his likelihood of reoffending. Defendant's petition relied solely on his own claims of rehabilitation and found no support in the opinions of those familiar with him or among professionals in the field. It is because of this that defendant's petition was frivolous and in no way supported a finding that he would not be a danger to others due to his diagnosed mental disorder while under supervision and treatment in the community. (See Olsen, supra, 229 Cal.App.4th at p. 996.)
We also find no merit in defendant's argument that the court's order requesting an updated annual report rather than relying on his most recent report "strongly suggest[ed] that the petition was not without merit." The report submitted by the department indicates it was compiled pursuant to section 6608, subdivision (e), which provides that "[i]f the petition for conditional release is made without the consent of the director of the treatment facility, no action shall be taken on the petition by the court without first obtaining the written recommendation of the director of the treatment facility." Here, there is nothing in the record to suggest the court was motivated to obtain a recent report from the department because the court thought defendant's "petition was not without merit." Rather, it simply appears the court was following the mandate of section 6608, subdivision (e), which it was required to do in any event.
According to the trial court, defendant's most recent annual report was prepared on October 24, 2014, and was filed with the trial court on November 25, 2015. According to the prosecution, defendant's most recent annual report was prepared October 4, 2015. And according to the department, defendant's most recent annual report was prepared September 18, 2015. Regardless of when the report was prepared, it was not made part of the appellate record. The trial court indicated that it had read and taken the report into consideration and that the report stated defendant did not qualify for conditional release.
For all of the foregoing reasons, the trial court did not abuse its discretion in denying defendant's petition for conditional release as frivolous.
DISPOSITION
The judgment is affirmed.
/s/_________,
ROBIE, J. We concur: /s/_________,
BLEASE, Acting P. J. /s/_________,
RENNER, J.