Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of San Luis Obispo Super. Ct. No. F394174 Ginger E. Garrett, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Kathy S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Joseph Stuber appeals an order determining him to be a mentally disordered offender (MDO), and recommitting him to the Department of Mental Health for treatment. (Pen. Code, § 2962 et seq.)
All statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
In 1996, Stuber was convicted of six counts of child molestation and one count of attempted forcible child molestation. (§§ 288, subds. (a) & (b), & 664.) The San Diego County Superior Court sentenced him to sixteen years' imprisonment.
On August 16, 2004, the Board of Prison Terms determined that Stuber was an MDO pursuant to the criteria of section 2962. As a condition of parole, it required him to accept treatment from the Department of Mental Health. Stuber filed a petition pursuant to section 2966, subdivision (b), to contest the decision of the Board of Prison Terms. The trial court determined that Stuber met the requirements of section 2962, subdivision (d)(1), beyond a reasonable doubt. In an unpublished decision, we affirmed. (People v. Stuber (Nov. 28, 2005, B180231).)
On August 22, 2005, the Board of Prison Terms decided to continue Stuber's mental health treatment. Stuber filed a petition to challenge the decision. The trial court determined that Stuber met the recommitment criteria of section 2972, subdivision (c), beyond a reasonable doubt. In an unpublished decision, we affirmed. (People v. Stuber (August 22, 2006, B188033).)
On September 8, 2006, the Board of Prison Terms again decided to continue Stuber's mental health treatment and he filed a petition to challenge the decision. A court trial followed.
At trial, Doctor Timothy Nastasi testified that he is Stuber's treating psychologist at Atascadero State Hospital. He opined that Stuber suffers from the severe mental disorder of pedophilia. Doctor Nastasi opined that Stuber is not in remission, in part because until recently, he denied his sexual attraction to children. Stuber stated that his sexual attraction to children "just happened."
Doctor Nastasi opined that Stuber presents a substantial physical danger to others by reason of his pedophilia. He explained that Stuber suffers from impairments in thinking, judgment, behavior, and perception of reality; Stuber committed sexual offenses while on probation; he has a history of substance abuse; and at the time of his arrest, he possessed knives, a loaded firearm, a hatchet, 34 feet of nylon rope, handcuff keys, and a paralyzing chemical. Doctor Nastasi read a portion of a letter that Stuber possessed at the time of his arrest in 1994: "Obsessed, and on occasion having been possessed, I feel extremely helpless after many years of involvement in pedophilia. You can tell me 100 different things to do to change. I'm not interested. Death is my only deliverance. I needed help, now it's too late. I don't deserve to live anyway." Doctor Nastasi believed that Stuber requires "intensive treatment and supervision."
The trial court determined that Stuber met the criteria of section 2972, subdivision (c), beyond a reasonable doubt. It recommitted him to the Department of Mental Health for treatment.
Stuber appeals and contends that there is insufficient evidence that he presently poses a substantial danger of physical harm to others beyond a reasonable doubt. (§ 2972, subd. (c) [trier of fact must find, among other things, that "the patient represents a substantial danger of physical harm to others."].)
DISCUSSION
Stuber argues that the evidence of his present physical danger to others is insufficient as a matter of law because it rests only upon his severe mental disorder and the nature of past crimes. (People v. Hannibal (2006) 143 Cal.App.4th 1087, 1094 [whether patient poses a serious threat of physical harm to others is capable of change].) He points to Doctor Nastasi's opinion that "[h]is conduct has been exemplary [and] he's been a model patient . . . ."
In reviewing the sufficiency of evidence to support an order made in MDO proceedings, we review the entire record to determine if reasonable and credible evidence supports the decision of the trier of fact. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082; People v. Miller (1994) 25 Cal.App.4th 913, 919-920.) We view the evidence and draw all reasonable inferences therefrom in favor of the order. (Ibid.) We do not reweigh the evidence nor do we substitute our decision for that of the trier of fact. (People v. Clark, supra, 82 Cal.App.4th 1072, 1082-1083.) The trier of fact is not bound by a particular expert's opinion or the reasons given in its support. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923.)
Sufficient evidence supports the trial court's finding that Stuber presents a substantial physical danger to others beyond a reasonable doubt. Doctor Nastasi stated that until recently, Stuber denied or minimized that he suffers from pedophilia. In September, 2006, Stuber "changed his attitude" and made changes to his relapse prevention plan to take his pedophilia into account. Doctor Nastasi opined that Stuber requires "intensive treatment and supervision." He noted that reports indicate that Stuber masturbates twice a day, and he opined that phallometric testing therefore was not reliable. Although Doctor Nastasi based his opinion in part upon Stuber's severe mental disorder and the circumstances of his crimes, his testimony, considered as a whole, supports the trial court's finding that Stuber poses a substantial physical danger to others.
The trial court may weigh the reasons given by an expert witness for his opinion; it may accept some reasons and reject others. (Kennemur v. State of California, supra, 133 Cal.App.3d 907, 923.) The trial court also may consider the expert witness's testimony as a whole. We do not reweigh the evidence. (People v. Clark, supra, 82 Cal.App.4th 1072, 1082-1083.)
The order of recommitment is affirmed.
We concur: YEGAN, J., COFFEE, J.