Opinion
H046517
03-25-2020
THE PEOPLE, Plaintiff and Respondent, v. LANCE DUANE PURCELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. CU0127684)
Appellant Lance Duane Purcell was adjudged a sexually violent predator (SVP) under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) and is currently confined at Coalinga State Hospital (Coalinga). The superior court denied his petition for conditional release under section 6608. Appellant contends that there is insufficient evidence to support the superior court's decision. We affirm.
All further references are to the Welfare and Institutions Code.
I. Statement of the Case
In 2008, appellant was committed to the State Department of Mental Health for an indeterminate term as an SVP.
In January 2018, appellant filed a petition for conditional release. Following a hearing, the superior court denied the petition in November 2018.
II. Statement of Facts
A. Criminal History
In 1961, appellant's criminal history began at age 14 when he was arrested for indecent exposure. The case was settled at intake. A few months later, the juvenile court sustained a petition for disturbing the peace and committed appellant to James Ranch. Appellant was released from James Ranch in October 1963. Two or three days after his release, appellant reoffended. In November 1963, the juvenile court sustained a petition for annoying or molesting a child and committed appellant to the California Youth Authority (CYA). After appellant was released from CYA, he reoffended within a year and was committed to Atascadero State Hospital (Atascadero) as a mentally disordered sex offender. Appellant was discharged and readmitted several times to Atascadero between the ages of 18 and 21. In 1968, he was discharged as unamenable to treatment.
Appellant was convicted of indecent exposure twice between 1970 and 1973.
In June 1976, appellant was charged with several offenses. In 1975, appellant pointed a rifle at a 14-year-old girl, ordered her into his car, drove to a remote location, and forcibly raped and orally copulated her. In 1976, he forcibly raped an 18-year-old woman. That same year, there were also separate incidents in which he used a gun and attempted to kidnap a nine-year-old girl and an 11-year-old girl. Appellant was charged with three counts of annoying and molesting a child and one count of kidnapping. After appellant pleaded guilty to two counts of rape by threat of great bodily harm, he was sentenced to an indeterminate term of three years to life.
In July 1982, appellant was released on parole. Five months later, he approached a woman and struck her head. About 20 minutes later, he forced two women into some bushes at knifepoint. In 1983, appellant was convicted of two counts of assault with intent to commit rape, one count of assault with a deadly weapon, and one count of false imprisonment. The trial court imposed a prison term of 12 years and four months.
In April 1989, appellant was released on parole. About seven months later, he was arrested for parole violations.
Following his release from prison in 1993, appellant attempted to kidnap an eight-year-old girl, who managed to run away from him. Less than two hours later, appellant put masking tape over the license plate of his van, pointed a gun at a five-year-old girl, and told her to get into his van. Appellant, who was wearing sunglasses and a wig, had his pants down. Appellant was frightened away by the girl's father. Appellant was convicted of attempted kidnapping of a child under 14 and annoying and molesting a child. The trial court imposed a sentence of 15 years and six months.
Appellant also reported that he committed crimes that were not detected by law enforcement: an attempted rape of a 17-to -18-year-old girl; a sexual assault of a 16-to-17-year-old girl; and 20 to 25 indecent exposures.
In 2002, appellant was first committed to Atascadero as an SVP. He was later transferred to Coalinga.
B. Appellant's Case
Dr. Brian Abbott, a licensed psychologist, testified as an expert in SVP's. He interviewed appellant in August 2018 to determine whether he met the criteria for conditional release. As part of his evaluation, Abbott reviewed various records, including the initial commitment evaluations, annual reports, and medical charts.
Appellant had been diagnosed with: pedophilia disorder, sexually attracted to female, non-exclusive type; other specified paraphilic disorder, non-consent; exhibitionistic disorder directed towards prepubescent females; other specified personality disorder with anti-social and narcissistic features; and alcohol use disorder. Appellant's medical history indicated that appellant suffered from stage two kidney failure, spinal and foot pain, hypertension, hyperlipidemia, elevated BMI, and gastroesophageal reflux disorder.
The records also described appellant as polite and noted that he got along well with staff and residents. Between March and August 2018, appellant had a few verbal conflicts with staff. Appellant had attained the platinum privilege level, which is the highest level at the hospital.
The records did not reflect any institutional signs of paraphilic disorder, anti-social or narcissistic patterns of behavior, substance abuse, or serious difficulty controlling sexually violent behavior. Abbott noted that appellant could have engaged in exhibitionist behavior in the hospital, but there was no record that he had done so. As to appellant's diagnosis of pedophilia disorder, Abbott testified that though there were no children at Coalinga, appellant had not engaged in any replacement behaviors such as viewing child pornography, child erotica, or being found in possession of stories depicting sex between adults and children. There was also no record that appellant had produced alcohol, drank alcohol, or was under suspicion of being inebriated. According to Abbott, appellant's "good behavioral adjustment with other residents and staff contradicts him exhibiting current symptoms of a personality disorder."
Appellant had enrolled in the sex offender treatment program (SOTP) at Atascadero, but he stopped treatment in December 2004. At that time, he expressed frustration with the slow pace of treatment and the fact that few people were released from treatment. Appellant rejoined the program in June 2018, because he realized that he needed to participate in the SOTP in order to be in a conditional release program. Abbott did not view appellant's historical resistance to treatment as "a good predictor of his future treatment and participation." Abbott discussed the conditional release program with appellant and he was willing to abide by the conditions if he were released.
Abbott used the Static-99R and the Stable-2007 assessment tools to evaluate appellant. The Static-99R measures historical factors and was designed to measure the likelihood of someone reoffending by engaging in any type of sexual behavior. Abbott assigned appellant a score of five on the Static-99R and explained that there was an 85 percent probability that individuals with a score of five would not reoffend. The Stable-2007 is a dynamic risk assessment instrument that takes into account the risk factors that may be present for an individual up to one year prior to the risk assessment. Abbott assigned appellant a score of four on the Stable-2007, which is at the lower end of the moderate risk range on the test. Abbott opined that appellant's score on the Stable-2007 indicated that his risk level under the Static-99R was average rather than above average to average.
According to Abbott, there have been nine major studies regarding the relationship between advancing age and the decreased risk potential for sexual recidivism. Sex offenders who are 70 and older have a recidivism estimate of 5.6 percent over five years. Appellant is 71 years old. Abbott also noted that there was no research supporting the conclusion that an individual must complete a full course of treatment before his "risk goes below the likely level as defined in California in order to be released into conditional release."
Abbott wrote a peer-reviewed published article that discussed the use of the Structured Risk Assessment Forensic Version (SRA-FV) assessment tool. According to Abbott, the SRA-FV involves the evaluation of static personality traits of individuals from adolescence to the time of their most recent sex offense. He opined that the SRA-FV did not provide a valid appraisal of appellant's current risk, because it did not take into account his age and any changes in his behavior since 1993.
In Abbott's opinion, appellant's total score in the risk factors reflected that the structure of the conditional release program was more than adequate to manage his current risks. He did not see in appellant's records or during his interview with appellant any observable conditions that indicated that he currently had serious difficulty controlling sexually violent behavior. Abbott opined that appellant "is not a danger to the health and safety of others, in that he's not likely to engage in sexually violent behavior due to his diagnosed mental disorder if under supervision and treatment in the community."
On cross-examination, Abbott acknowledged that appellant's 1983 convictions for false imprisonment and assault would add one point to his score on the Static-99R. However, appellant's score of six would not change his opinion. He explained that this score raised the base risk to 20.5 percent, which was still below what he considered likely to reoffend.
C. Government's Case
Dr. Nancy Webber, a contract evaluator for the Department of State Hospitals, testified as an expert in the field of SVP's. Webber conducted multiple evaluations of appellant and interviewed him in February 2016, July 2017, and on May 3 and 30, 2018 as part of her evaluations.
According to Webber, the SRA-FV and the Stable-2007 evaluate a sex offender's dynamic risk factors. The SRA-FV was developed on individuals in institutions while the Stable-2007 was developed on sex offenders on probation or parole. She characterized the Stable-2007 as more sensitive to acute changes in recent behavior while the SRA-FV has a broader historical view. The Static-99R evaluates an individual's risk for sexual recidivism independent of the setting. The Static-99R scores are considered to be stable through age 69. Webber opined that it was not wise to rely on recidivism rates for men who are over 70, because there was insufficient data "to really know what that true recidivism rate is over time."
Webber explained that the Static-99R contains two sets of norms: the routine group and the high-risk group. The routine group includes the routine sex offender in the general prison population while the high-risk group includes those sex offenders who have an unusually high amount of dynamic risk factors. The evaluator uses the SRA-FV to determine whether to match the individual with the routine or high-risk group.
Webber conducted a risk assessment of appellant based on historical and current information and used that information to score him on assessments. The first assessment tool that she used was the Hare Psychopathy Checklist Revised. Appellant scored at the top of the moderate range of psychopathy. She also used the Static-99R and the SRA-FV to evaluate appellant's risk of reoffense. His score of six on the Static-99R fell into the well above average risk category, which is the highest category. 25.7 percent of men who have a score of six on the Static-99R sexually reoffend in five years and 37.3 percent of them reoffend in 10 years. She placed appellant in the high risk Static-99R group based on his SRA-FV score.
Webber was familiar with appellant's criminal history. Appellant told Webber that he likes five-year-old girls to adult women in his victim range. The criminal records showed 20 victims, including the victims of his arrests for indecent exposure. Appellant confirmed the convictions with Webber, though he eliminated two victims. Appellant also told Webber that he was charged, but not convicted of two sex offenses. He admitted that he showed sexually explicit magazines to a 10-year-old girl and an 11-year-old girl. Appellant used rifles with a number of his victims. According to the records, he also used a knife, a hand saw, and a revolver, though appellant denied using a knife.
Webber testified that appellant's prior offenses were relevant to his diagnosis and the nature of his sexual deviance. She diagnosed him with: pedophilic disorder; other specified paraphilic disorder involving sex with non-consenting females; exhibitionistic disorder; and other specified personality disorder with anti-social and narcissistic personality traits. The pedophilic diagnosis was based on appellant's record that he engaged in or attempted to engage in sexual behaviors with multiple children under the age of 15 during a 30-year period from adolescence to adulthood. Though he suffered consequences for these crimes, including going to prison, he continued to act on his urges and thoughts. Pedophilic disorder is a life-long condition, though some individuals may learn to manage it through treatment.
The other specified paraphilic disorder was based on appellant's history of rape fantasies, thinking about rapes, planning rapes, and committing rapes of women and girls. The diagnosis was also supported by his use of weapons, which was unnecessary to obtain compliance with children.
The exhibitionistic disorder was based on the fact that appellant experienced sexual arousal from exposing his genitals to unsuspecting strangers over a period of more than six months. The targeted audience for this behavior ranged from a nine-year-old child to adults. Appellant told Webber that he frequently drove around in his car while masturbating and sometimes exposed himself to people.
The other specified personality disorder was based on appellant's antisocial and narcissistic traits, since he did not meet all the criteria for anti-social personality disorder or narcissistic personality disorder. The anti-social personality traits included his historical failure to conform to social norms, his disregard for the safety of others, irresponsibility, callousness, and lacking empathy. However, Webber noted that appellant appeared less callous and more empathic than he had been historically. The narcissistic traits included appellant's belief that he is always right and his sense of his entitlement. She gave two examples of this trait: appellant's decision not to start the SOTP until he was assigned the specific clinician that he wanted; and his frequent characterization of treatment providers as not being helpful or qualified.
Webber also reviewed appellant's history of treatment. He received some treatment in 1965 at Atascadero, but was eventually discharged as unamenable to treatment. Prior to his designation as an SVP, appellant received sex offender treatment at the Men's Colony in San Luis Obispo sometime between 1977 and 1982. Webber noted: Drs. Land and Butler were "very praiseworthy in terms of his remorse, sincerity that he displayed. And one of them stated that, because of his progress, they did not think he even needed special conditions of parole on release." Appellant reoffended within five months after his release from the Men's Colony. Appellant later participated in treatment at Atascadero between 2002 and 2004. He told Webber that he dropped out of treatment in 2004, because there were "a lot of things wrong with the program" and he did not want to participate in covert sensitization.
When Webber interviewed appellant in 2016 and 2017, he stated that he was not interested in participating in the SOTP, which was consistent with what his clinicians had reported in the records. However, appellant was very motivated for treatment in May and June 2018. Appellant told her that he wanted to do everything he could to get out and have a relationship with his grandchildren and family. Prior to entering the SOTP, appellant participated in psycho-educational classes, which are designed to supplement the SOTP. Webber believed that appellant had benefited from these classes, but there had not been a systematic way to review and assess what benefits he may have received. She also noted that research indicates that sex offenders who have had no sex offender treatment, and those offenders who drop out of such treatment, have a higher sexual recidivism rate than those who have completed sex offender treatment.
Webber testified that "[i]t's very difficult to conduct these kinds of assessments in a controlled environment." She explained that appellant's risk factors "may or may not continue today, but what we know, there's been limited treatment for these risk factors. [¶] So what has happened during his time in custody is it's just like being in a deep freeze. Everything stopped while in custody." She also noted that appellant "has always done well in custody. So it's very hard to generalize from his custody behavior given if there's been an absence of these risk factors."
Webber opined that it was helpful to complete the SOTP prior to release, but it was not a requirement that she imposed before finding an individual suitable for conditional release. She has previously recommended individuals for release who had not completed the SOTP. However, Webber did "not believe there's adequate protection for the community based on [appellant's] lack of cooperation with SOTP in custody, and his rather negative and critical views of treatment in general." She wanted to "see a recent track record of cooperating with treatment" and "his progress substantiated by measures such as a polygraph and [penile plethysmographs (PPG)]." Webber acknowledged that appellant was confident in his ability to be in the community without sexually offending, but she noted that he "has reported being confident in jail in the past and yet he reoffended." She wanted to "have evidence beyond his self reports." In her view, appellant's age alone was insufficient to override the risk assessment. She concluded that appellant remained a danger to the health and safety of others and that he was likely to engage in future sexually violent behavior if he were not detained and treated in a custodial environment.
Dr. Tricia Busby, the acting chief and senior psychologist at Coalinga, testified regarding the SOTP. The SOTP includes: treatment by the same clinician for a longer period of time than the adjunct classes; use of polygraphs to confirm the patient's truthfulness as to his sexual history as well as his thoughts and fantasies; use of the PPG to determine the patient's response to deviant stimuli; examination of dynamic risk factors; victim awareness training; and a discharge plan for release. The SOTP consists of four modules of treatment. A patient is promoted to the next module after three members of a treatment panel determine that he has demonstrated sufficient progress. Busby characterized the polygraph and PPG assessments as important to determining whether the treatment was successful or if the patient was amenable to treatment. If a patient was unwilling to participate in polygraph and/or PPG assessments, he would not advance from Module 2 to Module 3.
According to Busby, research shows that an individual who does not undergo treatment does not make much progress during that period because he has not addressed the reasons for which he has been committed. Research indicates that "finishing a treatment program does lower a person's risk for reoffense." Moreover, when patients enter the SOTP, they "need to go through the treatment program as it's designed in order to be able to demonstrate that they're lowering their risk for reoffense once they are released." She explained that CONREP works with patients in Module 3 and CONREP is responsible for patients in Module 4, which is supervision and treatment in the community.
Dr. Cecilia Groman, the executive director of the Liberty Health Care Conditional Release Program (CONREP), testified as an expert in CONREP and SVP's. She reviewed appellant's records, interviewed him in March 2018, and evaluated his suitability for CONREP. She concluded that appellant was not an appropriate candidate for CONREP, because he had not demonstrated a sustained commitment to treatment. Groman explained that "the idea of CONREP is that you come to CONREP after you have gone through treatment and you have demonstrated that you are willing to engage in treatment, that you can benefit from treatment, that you can collaboratively work with your treatment providers, that you are able to engage in meaningful self-reflection, develop some insight." Individuals who have not participated and completed a treatment program "don't have kind of a solid foundation to kind of hold on to and to work with a new therapist on developing coping skills, relapse skills in the community, they're gonna be starting from square one. And the community where we are now, whether these guys go now, is not a good place to start from square one." She had the sense that appellant "want[ed] to run his own program which is . . . not a good fit for CONREP." That appellant had started treatment in July or August did not change her opinion. She pointed out that he had previously been in treatment, but had dropped out.
D. The Superior Court's Ruling
The superior court denied the petition: It stated: "When taking the most credible evidence, Court finds that the problem that I see with the petitioner's case is that there is insufficient evidence of Mr. Purcell's status that can be verified, has been in the formalized assessment process. [¶] There's been no participation or substantial participation for any lengthy period of time in the SOTP. [¶] Graduation is not required, it's clear. . . . Mr. Purcell was on the right path, it appears. But there's been no demonstrated commitment to the treatment process. It's just -- it was started long, long ago and just recently he's taken it up. [¶] All this -- there's been ample discussion of the criminal history of Mr. Purcelll and his -- the fact that he's had a very short integral between his release and re-offense. All of the evidence adds up to, at this time, he would be a danger to the health and safety of others, and it's likely that he would engage in sexually violent criminal behavior due to his diagnosed mental disorder if he were under supervision in the community at this time."
III. Discussion
The SVP Act "provides for indefinite involuntary civil commitment of certain offenders who are found to be SVP's following the completion of their prison terms. [Citation.]" (People v. Field (2016) 1 Cal.App.5th 174, 181.) An SVP is a person convicted of a sexually violent offense against one or more victims, and who has been diagnosed with a mental disorder that renders them a danger to public health and safety because they are likely to reoffend and commit additional sexually violent acts. (§ 6600, subd. (a)(1).) Commitment is for an indeterminate term. (§ 6604.)
A person committed as an SVP may petition for conditional release. (§ 6608, subd. (a).) If the superior court determines that the petition is not frivolous (ibid), it "shall hold a hearing to determine whether the person committed would be a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community." (§ 6608, subd. (g).) At this hearing, the committed person has the burden of proof by a preponderance of evidence that he is entitled to conditional release. (§ 6608, subd. (k).)
The parties disagree as to our standard of review. Appellant contends that we review the superior court's ruling for substantial evidence. (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1504 (Rasmuson).) Respondent argues that when the party who bears the burden of proof did not prevail in the superior court, this court "inquires whether the weight and character of the evidence [he introduced] was such that the [superior] court could not reasonably reject it." (In re R.V. (2015) 61 Cal.4th 181, 203.) We need not resolve which standard of review applies because we conclude appellant's challenge fails under the more deferential substantial evidence standard.
Respondent also notes that other courts have held that " 'where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.' " (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466.) In such a case, " 'the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.]' " (Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1074.) --------
In considering a challenge to the sufficiency to the evidence, this court reviews " 'the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be of " 'ponderable legal significance . . . reasonable in nature, credible and of solid value.' " ' [Citation.]" (People v. Carlin (2007) 150 Cal.App.4th 322, 333.) "We resolve all conflicts in the evidence and questions of credibility in favor of the [the superior court's ruling] . . . . [Citation.] The testimony of one witness, if believed, may be sufficient to prove any fact. [Citation.]" (Rasmuson, supra, 145 Cal.App.4th at pp. 1507-1508.)
There is ample evidence in the record to support the superior court's finding that appellant had not met his burden for conditional release. Webber testified: appellant had a lengthy history of reoffending when he was not incarcerated or committed to a state hospital; he reoffended while on community supervision; his pedophilic disorder was a lifelong condition and he continued to commit sexual crimes against children even after he had completed prison terms for these crimes; he refused to participate in the SOTP for 14 years; he held negative and critical views of sex offender treatment; sex offenders who drop out of treatment have a higher sexual recidivism rate than those who have completed it; there had been no way to confirm if he had made any progress in treatment by measures such as the polygraph and PPG; and appellant fell into the "well above average" category of risk on the Static-99R and SRA-FV. Based on these factors, Webber opined that appellant remained a danger to the health and safety of others and that he was likely to engage in future sexually violent behavior if he were not detained in a custodial environment. Busby testified that an individual who does not undergo treatment does not make much progress and studies have indicated that completion of a sex offender program lowers an offender's risk of reoffense. Groman opined that appellant's resistance to treatment indicated that he was an inappropriate candidate for CONREP. Thus, the superior court did not err when it denied appellant's petition for conditional release.
Appellant contends that the court and "the government's witnesses missed the point of this case" by focusing on his failure to participate in treatment rather than on whether he would be dangerous while under the supervision of CONREP. He acknowledges that evidence of his lack of participation in treatment "might possibly support a determination that [he] . . . might fail the treatment program," but it was not evidence of his dangerousness. However, appellant has overlooked the evidence that failure to participate in sex offender treatment and his negative view of such treatment increases the risk that he will commit sexually violent offenses in the future.
Appellant next argues that since the CONREP provided a high level of security, it was not likely that he would commit a sexually violent offense while in that program. But Groman, who evaluated appellant for placement in CONREP, testified that he was not an appropriate candidate because he had not demonstrated a sustained commitment to treatment. The superior court could reasonably rely on her testimony.
Appellant also claims that Groman's testimony "actually supported" his petition. He first points out that she relied on the risk assessment performed by another evaluator. However, appellant fails to explain why it was inappropriate for Groman to rely on a risk assessment by another evaluator. Appellant next asserts that Groman relied on the lack of PPG and polygraph exams to corroborate his claim of improvement. He notes that, under California law, neither PPG nor polygraph results are considered sufficiently reliable to be introduced into evidence. But appellant made no showing that PPG's and polygraphs do not provide valid information to clinicians in their assessments of sex offenders' dangerousness. He has also overlooked his own expert's testimony that lie detectors "are good for therapeutic purposes, in terms of monitoring someone in treatment."
Appellant argues that "if the government wanted those tests to determine whether [he] was suitab[]le for release, the government should have offered the tests to [him]." However, appellant has ignored that it was his burden to establish that he was entitled to conditional release. (§ 6608, subd. (k).) Moreover, it was undisputed that appellant declined to participate in the SOTP, which was available to him and would have included those tests.
Appellant next challenges the use of the Static-99R by Abbott and Webber to determine his risk of reoffending. He points out that it "overstates [his] risk of committing sexually violent offenses because it includes within that percentage his risk of committing other non-violent sex offenses." He also notes that the Static-99R is not designed for use on individuals who are supervised in the community. Regardless of any limitations of the Static-99R, Webber explained how she used assessment tools and their limitations, evaluated appellant based on a variety of factors and opined that he was likely to commit future sexually violent crimes if not treated in a custodial environment. The superior court found her testimony credible. (Rasmuson, supra, 145 Cal.App.4th at pp. 1507-1508.)
In sum, appellant failed to prove by a preponderance of the evidence that he was entitled to conditional release.
IV. Disposition
The order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Bamattre-Manoukian, J.