Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
San Luis Obispo County, Super. Ct. No. F393958
Kirk Endres for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Linda C. Johnson, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Justin Johnson appeals the judgment (order of commitment) entered following a court trial in which he was determined to be a mentally disordered offender (MDO) (Pen. Code, § 2962 et seq.) He contends the evidence is insufficient to support the finding that he received 90 days of treatment for his severe mental disorder (paraphilia) during the year prior to his parole release date. (§ 2962, subd. (d)(1).) We affirm.
Further statutory references are to the Penal Code.
FACTS
In 1998, Johnson pleaded guilty to lewd conduct on a child under the age of 14 years (§ 288, subd. (a)), and was sentenced to six years in state prison. He was paroled on October 4, 2003. On February 16, 2006, he was returned to prison on a parole violation for, among other things, failing to attend treatment at the parole outpatient clinic. His parole release date was set for August 15, 2006. On September 11, 2006, the Board of Parole Hearings (BPH) certified Johnson for treatment as an MDO. On October 2, 2006, Johnson filed a petition in the superior court challenging the BPH's determination. Johnson was appointed counsel, and waived his right to a jury trial on the petition.
Trial was held on November 8, 2006. Dr. Stacy Thacker, a psychologist at Atascadero State Hospital (ASH) who had supervised Johnson's treatment at the hospital, testified that he suffered from a severe mental disorder, paraphilia not otherwise specified, and met all of the MDO criteria as of the date of the BPH hearing. In referring to his paraphilia, Dr. Thacker recounted that Johnson had perpetrated the commitment offense in the course of repeatedly raping and sexually assaulting his nine-year-old stepsister over a seven-week period. The doctor also opined that Johnson's paraphilia was not in remission because, among other things, he had failed to adequately participate in the sex-offender treatment program he was required to attend as a condition of his parole. The doctor indicated, however, that Johnson had received at least 90 days of treatment for his paraphilia in the year prior to his parole release date of August 15, 2006. Dr. Thacker further concluded that Johnson represented a substantial danger of physical harm to others as a result of his paraphilia.
The prosecution also admitted into evidence the report of Dr. Mary Malik, a psychologist who evaluated Johnson to assist the BPH in determining whether he qualified as an MDO. Dr. Malik opined that Johnson suffered from paraphilia not otherwise specified, with elements of pedophilia and sexual sadism, and met all of the criteria for treatment as an MDO. In finding that Johnson had received treatment for his paraphilia for at least 90 days in the year prior to his parole release date, Dr. Malik noted that he had been receiving treatment for that disorder continuously since his incarceration in 1998, and had received treatment focused on his paraphilia for the two years while he was on parole.
In his defense, Johnson offered the report prepared by Dr. Mary Jane Alumbaugh, a psychologist who evaluated him at ASH on September 1, 2006. Dr. Alumbaugh opined that Johnson did not suffer from pedophilia, but rather from "a severe borderline personality disorder with affective lability, unstable interpersonal relationships, and superficial suicidal gestures." The doctor acknowledged, however, that Johnson had been in treatment for a severe mental disorder for at least 90 days in the year prior to his parole release date.
Dr. Alumbaugh did not expressly consider whether Johnson suffered from paraphilia not otherwise specified, the diagnosis Drs. Thacker and Malik relied on in concluding that Johnson suffered from a severe mental disorder that qualifies him for MDO treatment.
At the conclusion of the trial, the court found beyond a reasonable doubt that Johnson met the criteria for MDO treatment as of the date of the BPH certification hearing. Accordingly, Johnson was ordered committed to the Department of Mental Health for treatment as a condition of his parole.
DISCUSSION
An inmate is subject to civil commitment as an MDO upon a showing, among other things, that he suffers from a severe mental disorder for which he has received at least 90 days of treatment during the year prior to his parole release date. (§ 2962, subd. (d)(1).) Johnson challenges the sufficiency of the evidence supporting the court's finding that he received at least 90 days of treatment for his paraphilia during the year prior to his parole release date of August 16, 2006. Specifically, he contends (1) the prosecution failed to offer proof as to when he was first diagnosed with paraphilia; (2) there was no evidence that his treatment was planned, approved, or implemented by the Department of Mental Health (DMH) through the California Department of Corrections and Rehabilitation (CDCR); and (3) no evidence was offered to establish that he was ever treated for paraphilia. None of these claims has merit.
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, 1082-1083.) In conducting this review, 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. (Ibid.)
Substantial evidence supports the trial court's finding that Johnson received 90 days of treatment for paraphilia in the year prior to his parole release date, as contemplated by subdivision (d)(1) of section 2962. Contrary to Johnson's claim, the prosecution was not required to present evidence establishing when he was first diagnosed with paraphilia. People v. Sheek (2004) 122 Cal.App.4th 1606, which Johnson cites for this proposition, does not so hold. It that case, it was undisputed that the prisoner was first diagnosed with the severe mental disorder giving rise to his MDO commitment (pedophilia) less than 90 days prior to his parole release date. (Id., at p. 1611.) Here, all three doctors verified that Johnson had received treatment for paraphilia for at least 90 days in the year preceding his parole release date. Dr. Malik expressly stated that Johnson had "received treatment focused on his paraphilia and pedophilic acts for a period of two years while paroled in the community," six months of which took place in the year preceding his parole release date of August 15, 2006. This evidence is sufficient to establish that Johnson was diagnosed with paraphilia no later than October 2003, and that he received at least 90 days of treatment for that disorder in the year preceding his parole release date.
The evidence is also sufficient to establish that Johnson's treatment was planned, approved, or implemented by the DMH through the CDCR. Dr. Malik's report stated that "Mr. Johnson has been receiving treatment essentially continuously since his initial entrance into the CDC[R] in 1998." Johnson was returned to prison on a parole violation on February 16, 2006, and was placed in the enhanced outpatient program at the prison on March 7, 2006. Although this program is labeled "outpatient," it satisfies the requirement of section 2962, subdivisions (c) and (d)(1), because it was provided by the CDCR while Johnson was in prison. Moreover, Johnson spent the first six months of the year preceding his parole release date receiving treatment through the parole outpatient clinic, which is also administered by the CDCR and approved by the DMH. People v. Del Valle(2002) 100 Cal.App.4th 88, 90, in which the defendant's treatment at a private clinic prior to his incarceration was erroneously counted toward the 90-day requirement, is therefore inapposite.
The judgment (order of commitment) is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J., John A. Trice, Judge