Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. E9909752
Duffy, J.
Mark Steven Simmons appeals from a jury verdict finding true petitions that he remains a mentally disordered offender. Under state law, the verdict meant that he must continue his confinement in a state hospital until November 7, 2007.
Counsel for Simmons has filed an opening brief that states the case and facts but raises no issues. We notified Simmons of his right to submit written argument on his own behalf. He has filed a supplemental letter brief in which, in essence, he challenges the sufficiency of the evidence to support the commitment order. We have reviewed the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436, and will affirm the commitment order.
FACTUAL AND PROCEDURAL BACKGROUND
We take the procedural and factual background set forth in parts I and II below from our prior opinions in People v. Simmons (April 26, 2006, H028499) and People v. Simmons (August 25, 2004, H026672) both nonpublished opinions.
I. Procedural Background
In 1999 Simmons pleaded no contest to two counts of lewd and lascivious acts on a 14-year-old female when he was 39 years old. (Pen. Code, § 288, subd. (c)(1).) He was placed on probation with a number of conditions, including no contact with the victim, D.
On November 18, 1999, probation was revoked based on allegations that Simmons had contacted D. Simmons was committed to state prison for two years and eight months. On November 2, 2000, Simmons was transferred to Atascadero State Hospital. On August 7, 2001, Simmons was discharged from Atascadero State Hospital to the conditional release program for outpatient treatment. On August 28, 2001, Simmons was rehospitalized, this time at Napa State Hospital, for disobeying program rules and expressing suicidal thoughts. On September 11, 2001, Simmons was transferred back to Atascadero State Hospital.
On August 5, 2003, pursuant to a request by the Atascadero State Hospital medical director, the Santa Clara County District Attorney filed a petition to compel Simmons’s continued involuntary treatment past his parole date of November 2, 2003. The crimes qualified as treatable crimes under the mentally disordered offender law if they involved either “force or violence, or caused serious bodily injury” (Pen. Code, § 2962, subd. (e)(2)(P)) or an express or implied threat “of force or violence likely to produce substantial physical harm” (id., subd. (e)(2)(Q)). After trial, a jury found that Simmons “represents a substantial danger of physical harm to others” “by reason of” “a severe mental disorder,” pedophilia, “that is not in remission or cannot be kept in remission without treatment.” (People v. Simmons, supra, H026672 [nonpub. opn.].) Based on these findings, the trial court ordered that Simmons receive one year of continued treatment, until November 4, 2004, by the State Department of Mental Health.
On appeal, Simmons challenged the superior court’s conclusion that his predicate crimes qualified him for continued involuntary treatment. In People v. Simmons, supra, H026672, we concluded that the People failed to prove that Simmons’s crimes qualified as predicate offenses under Penal Code section 2962, subdivision (e)(2).
On remand, the superior court received additional evidence and concluded, “The evidence that I heard today establishes just such type of physical force to the victim, and I am satisfied that it was above and beyond that which was necessary to accomplish the lewd act itself . . . .” (People v. Simmons, supra, H028499 [nonpub. opn.].) After further proceedings, the court ordered Simmons committed to Napa State Hospital for a year of treatment. On appeal from that reconsidered order, we concluded, in People v. Simmons, supra, H028499, that substantial evidence supported it and affirmed it.
In May of 2005 and August of 2006, the People filed petitions to continue Simmons’s involuntary treatment in a state hospital. The two petitions were consolidated in the superior court and a jury found the consolidated petition true. That verdict is the subject of this appeal.
II. The Underlying Crimes
Simmons’s victim, D., was 14 years old. D.’s mother had taken Simmons in as a boarder. One day, as D. was lying in her bed watching television, Simmons came in and lay down under the covers next to her, naked except for his bathrobe. He pressed against her back, holding onto her shoulders, until she felt his penis. Similar incidents occurred four or five times in D.’s bedroom. On a separate occasion when D. was sleeping in her mother’s bed, she awakened to find Simmons next to her, touching her legs and thighs and between her legs. D. pretended to be asleep. After five to ten minutes, Simmons got onto the bed and made further contact. She tried to push him off. Eventually he quit and started talking as if nothing had happened. He was in physical contact with her for 30 to 40 minutes during this episode. The molestations ended when D. told her aunt, who told her mother, and they called the police.
III. Evidence Admitted at the Trial
David Joubert, Ph.D., a staff psychologist at the Napa State Hospital, was the sole witness at trial. Simmons was one of Joubert’s patients. Testifying as an expert, Joubert opined that Simmons continued to suffer from severe mental disorders, namely pedophilia and depression. His pedophilia was exacerbated by pathological narcissism. Simmons was at high risk of reoffending and presented a substantial danger of physical harm to others if released. Only the depression was in remission, and it was a partial remission at that. Staff shortages had made it more difficult to treat Simmons for his pedophilia (a condition that is not curable, though it can be controlled), but in light of a statement he made in October of 2006 that showed a continued sexual interest in minors it was unlikely his pedophilia could have been controlled in any event at that time. Simmons had been in a treatment program for pedophiles before Joubert’s arrival at Napa State Hospital but was dismissed from it because of a conflict with the program’s treating psychiatrist. Simmons had never accepted his diagnosis as a pedophile, and his recalcitrance was exacerbated by his narcissism and other delusions, such as that his actions were directed by God rather than by himself.
DISCUSSION
I. Standard of Review
Appellate review of sufficiency of the evidence questions in mentally disordered offender proceedings incorporates the criminal conviction standard of review. (People v. Miller (1994) 25 Cal.App.4th 913, 919-920.) “ ‘ “On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [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 verdict 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.” ’ ” (Id. at p. 919.)
II. The Statutory Scheme
“Under the Mentally Disordered Offenders Act (MDO Act or Act) (Pen. Code, § 2960 et seq.), a prisoner adjudicated to be a mentally disordered offender (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, 94.)
The statute relevant here, subdivision (e) of Penal Code section 2972, provides in pertinent part: “Prior to the termination of a commitment under this section, a petition for recommitment may be filed to determine whether the patient’s severe mental disorder is not in remission or cannot be kept in remission without treatment, and whether by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others.”
III. Application of the Law to the Facts
We turn to the question whether substantial evidence supports the verdict finding the treatment petition true. It does. Joubert, the sole witness and an expert in this area, testified that Simmons was suffering from uncontrolled pedophilia that by its nature posed an unacceptable risk that minors would be endangered if he were released. Joubert also testified that Simmons’s records showed a history of sexual assaults on children when he was at large. We are satisfied that the verdict is supported by substantial evidence.
Aside from Simmons’s claim that there was insufficient evidence to support the verdict continuing his commitment, our review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, discloses no legal issues bearing on Simmons’s appeal.
Disposition
The commitment order is affirmed.
WE CONCUR: Mihara, Acting P. J., McAdams, J.