Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, Super. Ct. Nos. 195465, 195466, 1022889, Hurl W. Johnson, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Jane N. Kirkland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Gomes, J.
It was alleged in a petition filed October 17, 2005, that appellant James Lee Helm was a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600, et seq.). On July 21, 2006, a jury found the allegation true. !(CT 160)! On July 27, 2006, the court ordered appellant committed to the Coalinga State Hospital, for appropriate treatment and confinement.
On appeal, appellant’s sole contention is that the evidence was insufficient to support the finding that he was an SVP. We will affirm.
FACTS
In 1983, appellant was convicted of two counts of committing a lewd or lascivious act against a child under the age of 14 (Pen. Code, § 288, subd. (a)). In one of these cases, appellant orally copulated a neighbor boy, age eight or nine, who spent the night at appellant’s house. In the other case, appellant was masturbating in a public restroom when a boy walked in. Appellant grabbed the boy, lowered the boy’s pants and fondled the boy’s penis.
Two psychologists, Mark Schwartz, Ph.D., and Robert Owen, Ph.D., performed psychological evaluations of appellant. Appellant described for Dr. Owen an incident in 1977 in which he “‘undressed’” in front of an eight-or-nine-year-old boy. Appellant was arrested, but no conviction resulted. Appellant gave a similar account of this incident to Dr. Schwartz, adding that he “fondled the boy” and “‘should have been convicted[.]’” Appellant had taken the boy to his motel room, and the incident ended when police, who were looking for the boy, arrived at the room. Appellant was 27 years old at the time.
Appellant was imprisoned for his 1983 convictions and released from prison in 1988. Approximately one year later, he was found to be in violation of a condition of his parole that he stay away from young children. Appellant, in describing the underlying incident to Dr. Owen, stated that he went into a public park restroom, there was a boy inside and a woman told police appellant “‘was following the kids.’”
In 2000, appellant was convicted of indecent exposure and possession of obscene material. According to a police report, appellant was in a public restroom, masturbating, when two boys walked in. Appellant made eye contact with the boys, who then fled. Police arrested appellant in his home, where they found what Dr. Owen described as “child pornographic material,” including “300 images from the computer involving boys, many of them nude.” Police also found a magazine published by the North American Man/Boy Love Association (NAMBLA), an organization that, Dr. Owen testified, “basically says it’s okay for men and boys to have romantic and sexual relationships.” Dr. Owen testified that possession of NAMBLA is rare among sex offenders, and “occurs when a man is totally fixated on boys and doesn’t quite get it that this is morally wrong ….”
Appellant told Dr. Owen that while in prison, he (appellant) masturbated while fantasizing about boys.
Dr. Owen diagnosed appellant as suffering from a “mental disorder,” viz., “pedophilia [w]ith a sexual attraction to males.” In assessing the risk that appellant would commit sexual offenses in the future, Dr. Owen looked to both static factors that do not change over time, such as past offenses, and dynamic factors, i.e., situations that a person has the ability to change, such as making a choice to obtain treatment. Dr. Owen utilized an actuarial instrument--the Static 99--to rate appellant’s risk of committing sexual offenses in the future, based on the presence or absence of certain static or historic risk factors that were found to be statistically correlated, in a sample population of offenders, with subsequent reconvictions of sexual offenses. A score is assigned to offenders based on these factors. Static factors which indicate an increased risk of reoffending include prior sex offenses and choosing strangers as victims. Appellant’s score was eight, which, Dr. Owen testified, “[p]laces [appellant] within the high-risk category.” Dr. Owen concluded, “‘The results from the Static 99 indicate an elevated risk of sexually reoffending, and other static and dynamic risk factors are hardly reassuring. Given his ongoing pedophilia and his ongoing deviant fantasies, [appellant] poses a substantial and well-founded risk for sexual recidivism.’”
Appellant was 56 years old at the time of trial, and Dr. Owen testified that “[a]s men age, though, their risk of reoffending goes down.” However, Dr. Owen testified further, “if a man has a lot of sexual deviance and had prior sexual offenses, arrests, convictions for prior sex offenses, then this age factor really doesn’t apply, because that sexual deviance tends to overwhelm any kind of control you might get with age. That’s exactly what we have here.”
Appellant indicated to Dr. Owen that there was a difference between “‘hands-on’” offenses--acts of sexual molestation, such as the acts underlying his two 1983 convictions--and “non-hands-on” offenses, such as public masturbation. Appellant felt that the fact that he had committed no hands-on offenses since 1983 indicated his ability to exercise self-control over his deviant sexual urges. However, Dr. Owen opined, appellant “fails to see that there is a very fine line with masturbating in a restroom with kids walking in and losing a little bit of self-control, as he has in the past, and maybe touching the kid …. [W]ith the NAMBLA [magazine] at home and the downloaded images and the masturbating thinking about boys and masturbating in the restroom, I think he was doing everything possible to trigger another hands-on offense.”
Dr. Schwartz also diagnosed appellant as suffering from the “mental disorder” of “pedophile.” Dr. Schwartz also utilized the Static 99 and assigned to appellant a score of eight. This score indicates appellant has “high risk” of reoffending. Data indicates that 52 percent of men with this score are convicted of a hands-on sexual offense within 15 years.
Dr. Schwartrz characterized the 2000 indecent exposure incident as “basically a replay” of appellant’s 1983 act of sexual molestation. Dr Schwartz opined that if the boys who observed appellant masturbating in the 2000 incident “had been more receptive,” that incident would have escalated to an act of sexual molestation.
Dr. Schwartz also opined as follows: appellant’s conduct after being “censured”--his acts of sexual molestation after being charged with a sex crime in 1977, and the commission of the 2000 offenses after serving time in prison for sex crimes--indicates that his ability to exercise control over urges to have sexual contact with children is impaired; because appellant “chose not to engage in treatment” when he was not in prison, even though he was gathering pornographic images on the internet and was aware that he had the urges to have sexual contact with boys, it was unlikely he would engage in treatment if not confined; and if appellant is not confined, “there’s a serious and well-founded risk [he would] commit future sexual offenses.”
Appellant testified to the following. He is a pedophile, based on his history, but he is no longer a “child molester.” He last molested a child 24 years ago, and although he still has a “certain amount of sex drive,” that drive is “not near as strong as [it] used to be.” He was never a member of NAMBLA; he “agree[d]” with “[s]ome things they have to say but not everything.” Because he had not committed an act of molestation for so long, he felt he was “under control,” but if he “felt [he] was on the verge of molesting again,” he would “certainly” seek counseling.
DISCUSSION
“‘The SVPA, enacted in 1996 [citation] and thereafter amended, permits the involuntary civil commitment or recommitment, for two-year terms of confinement and treatment, of persons who are found ... beyond a reasonable doubt [citation], to be “sexually violent predator[s]’ [citation].’” (People v. Sumahit (2005) 128 Cal.App.4th 347, 352 (Sumahit).) In order to establish that appellant is an SVP, the People had to prove that: “(1) [appellant] was convicted of two separate sexually violent offenses; (2) he had a diagnosable mental disorder that made him a danger to the health or safety [of] others; (3) his disorder makes it likely he will engage in sexually violent criminal conduct if released; and (4) his sexually violent criminal conduct will be predatory in nature.” (People v. Fulcher (2006) 136 Cal.App.4th 41, 52, italics omitted.)
Appellant challenges the sufficiency of the evidence as to the third of these elements. Specifically, he argues, “Because [his] last ... act of [sexual] molestation occurred over 20 years ago, the prosecution evidence was insufficient as a matter of law to prove that appellant was a sexually violent predator who was likely to commit sexually violent offenses if released from custody.” We disagree.
When a defendant challenges the sufficiency of the evidence to support a finding that he is an SVP, a reviewing court “‘must review 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.]’ [Citation.] ‘In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment.’ [Citation.]” (Sumahit, supra, 128 Cal.App.4th at p. 352.) The testimony of a single expert witness that an individual has a diagnosed mental disorder that presents a serious and well-founded risk that the individual will engage in sexually violent predatory criminal behavior if free in the community can constitute sufficient evidence on that issue. (People v. Scott (2002) 100 Cal.App.4th 1060, 1064.) Our Supreme Court has held that the term “likely,” for purposes of determining whether it is likely a defendant will commit sexual offenses engage “connotes much more than the mere possibility that the person will reoffend as a result of a predisposing mental disorder that seriously impairs volitional control.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 916, 922. “[It is not required that there be] a precise determination that the chance of reoffense is better than even. Instead, an evaluator applying this standard must conclude that the person is ‘likely’ to reoffend if, because of a current mental disorder which makes it difficult or impossible to restrain violent sexual behavior, the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.” (Ibid.)
The fact that appellant has not been convicted of an act of sexual molestation in over 20 years does not preclude a finding that he is an SVP. On this point, we find Sumahit instructive. There, the defendant argued that “because there was no evidence he had ‘current manifestations’ associated with sexual deviancy such as fantasies, antisocial outbursts or sexually violent behavior, the expert opinions relied upon by the trial court were unsupportable as a matter of law.” (Sumahit, supra, 128 Cal.App.4th at p. 353.)
In rejecting this argument, the appellate court stated: “[D]efendant errs in supposing that he must presently engage in overt manifestations of a sexually violent predator in order to support an opinion that he still suffers from a mental disorder affecting his ability to control his impulses. The fact that defendant has not misbehaved in a strictly controlled hospital environment does not prove he no longer suffers from a mental disorder that poses a danger to others. Defendant has an abnormal attraction to female children. Because he currently lacks access to children, his lack of outward signs of sexual deviance is not dispositive of whether he is likely to reoffend if released into society at large. Such an assessment must include consideration of his past behavior, his attitude toward treatment and other risk factors applicable to the facts of his case.” (Sumahit, supra, 128 Cal.App.4th at p. 353.)
The defendant’s sufficiency-of-the-evidence challenge in Sumahit was directed at the mental disorder element of the SVP definition, but the court’s reasoning is applicable here. The absence of evidence of hands-on sexual offenses which postdate appellant’s 1983 convictions is not dispositive. As did the court in Sumahit, we must examine the entire record for other factors bearing on the element in question, viz. likelihood that appellant would reoffend. And here, the record reveals evidence of the following: possession of NAMBLA reading material is indicative of sexual fixation on young boys and impaired understanding of the immorality of sexual molestation of children; possession of that material considered in conjunction with possession of pornography, appellant’s ongoing pedophilia and his ongoing practice of masturbating while fantasizing about sex with boys suggested appellant, in committing the 2000 “non-hands-on” offense, “was doing everything he possibly could to trigger another hands-on offense”; appellant’s post “censure” conduct indicates volitional impairment; appellant is unlikely to undergo treatment for his pedophilia; appellant’s score on the Static 99 placed him in category of men who are at high risk to reoffend; and both psychologists, who evaluated appellant, opined that he presented a serious and well-founded risk of reoffending.
The foregoing constitutes substantial evidence that notwithstanding that appellant has suffered no convictions of hands-on sexual offenses since his 1983 convictions, there is a serious and well-founded risk that appellant, because of a current mental disorder, which makes it difficult or impossible to restrain violent sexual behavior, is likely commit sexually violent predatory offenses if not confined. Accordingly, appellant’s claim fails.
Appellant has filed in this court “APPELLANT’S EX PARTE APPLICATION FO EXPERT WITNESS FEES” (expert-witness-fees motion), “APPELLANT’S MOTION TO EXTEND COUNSEL’S APPOINTMENT TO INCLUDE THE FILING OF A PETITION FOR WRIT OF HABEAS CORPUS” (expansion-of-appointment motion), “NOTICE OF FILING OF THE ORIGINAL DECLARATION OF DR. JAY ADAMS” and “DECLARATION OF DR. JAY ADAMS IN SUPPORT OF [expansion-of-appointment motion].” The expert-witness-fees motion and the expansion-of-appointment motion are denied, without prejudice to appellant seeking relief in the trial court.
DISPOSITION
The judgment is affirmed.