Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CI48534.
HULL , J.
The trial court found defendant, Riley Wayne Noonkester, to be a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6600 et seq. (the Sexually Violent Predators Act; all unspecified statutory references are to the Welfare and Institutions Code) and ordered that he be recommitted to Atascadero State Hospital for treatment for an additional two years. He appeals, contending the evidence is insufficient to support the order. Finding the evidence sufficient, we affirm the judgment.
Facts and Proceedings
Prosecution Evidence
A. Prior Offenses
In 1978 defendant was convicted in Nevada of sexual assault within the meaning of Nevada Revised Statutes section 200.366. That conviction included all of the elements of a violation of California Penal Code section 288 subdivision (a), which prohibits lewd and lascivious acts with a child under the age of 14 and which is a sexually violent offense within the meaning of Welfare and Institutions Code section 6600 subdivision (b).
The victim of the offense, R.P., was a minor visiting a ranch in Incline Village, Nevada where defendant, who was then 21 years old, worked in the stables and on trail rides. During the course of R.P.’s visit, defendant, among other acts, orally copulated R.P. three times, attempted to have R.P. orally copulate him, attempted to sodomize R.P., attempted to have R.P. sodomize him, placed his finger in R.P.’s anus, and held R.P.’s hand on defendant’s testicles while defendant masturbated.
In 1984, defendant was convicted in Los Angeles County of two counts of lewd and lascivious acts with a child in violation of Penal Code section 288, subdivision (a). These offenses involved two children, J.S., age 10 and B.B., age 12. Defendant repeatedly molested the boys over the course of approximately six months, both when each boy was alone with him and when all three were together. J.S. said that the offending acts included oral copulation and sodomy on as many as 30 different occasions. On a number of occasions defendant sodomized J.S., sometimes in B.B.’s presence and attempted, unsuccessfully, to get J.S. to orally copulate him. Defendant took nude photos of J.S. and told him they had been published in a magazine.
B.B. said that defendant sodomized and orally copulated him every day between November 1983 and April 1984 and that B.B. orally copulated defendant during that time. The acts often occurred after defendant picked B.B. up when he got off the bus after school.
Certified documents establishing the qualifying prior convictions were placed into evidence as People’s exhibit 4.
B. Dr. Shoba Sreenivasan
Dr. Sreenivasan has been a licensed psychologist since 1988 and is currently in private practice. She works under contract with the State Department of Mental Health evaluating SVP’s. She is a clinical professor at the University of Southern California where she teaches and trains students in forensic psychology. She has worked with the Veteran’s Administration since 1990 in an involuntary psychiatric unit and worked thereafter in forensic outreach services providing treatment to veterans incarcerated in various facilities.
Based on Dr. Sreenivasan’s review of records of defendant’s prior convictions, probation officer’s reports, prior psychological evaluations, and records from Atascadero State Hospital detailing defendant’s treatment participation, progress and related issues, Dr. Sreenivasan is of the opinion defendant suffers from a mental disorder, specifically, pedophilia as defined in Diagnostic and Statistical Manual IV, definition 302.2 and is “likely to commit a criminally sexually violent act as a result of that mental disorder.”
Dr. Sreenivasan bases her diagnosis on the fact that a “pedophilia diagnosis is a chronic and lifelong condition” not subject to change. She agrees that the risk of re-offending may be moderated by participation in treatment and the sexual urges of a pedophile can be controlled for some periods of time depending on the “extent of the entrenchment” of the pedophilia. Based on defendant’s history, she considers defendant an entrenched pedophile. Some pedophiles are not a danger to children, but for defendant to fall within that category he would have to participate in a sex offender treatment program and learn coping mechanisms to control his sexual urges. Defendant would need to be able to recognize when he was in a high-risk situation and change that lifestyle.
In order for Dr. Sreenivasan to conclude defendant was not a danger, he would have to complete, at a minimum, phase three of the sex offender commitment program offered at Atascadero. Defendant will not be able to control his sexual urges without that type of intensive program.
Because pedophilia is something separate from homosexuality and represents a deviate interest in children, it is not possible that defendant’s interest in young boys is due to his unwillingness to accept his homosexuality. And the fact that defendant had once been in an “age-appropriate” sexual relationship does not change Dr. Sreenivasan’s diagnosis because the two situations are not mutually exclusive.
Although Dr. Sreenivasan’s written report was dated October 30, 2004, she reviewed Dr. Dale Arnold’s report dated May 31, 2006, to bring her evaluation of defendant up to date. His report did not change her opinions and she continues to believe defendant meets all of the requirements for an SVP commitment.
Dr. Sreenivasan attempted to meet with defendant for an interview to evaluate the current state of his mental health in October 2004, at which time he declined to be interviewed because the session would not be tape-recorded. She believed he was present at Atascadero on the date of the scheduled interview.
C. Dr. Dale Arnold
Dr. Arnold is a consulting psychologist who has been licensed by the State of California since 1998. He earned his Ph.D. in clinical psychology in 1993 and worked for the five years that followed for the Air Force. He completed his residency training between 1992 and 1993 and then worked at Kirtland Air Force Base in Albuquerque, New Mexico as a general psychologist. Dr. Arnold was then transferred to a Navy facility in South Carolina where one of his primary duties was to provide evaluations of and treatment for violent sexual predators.
Between 1997 and 1999, Dr. Arnold worked at Atascadero State Hospital providing treatment to those incarcerated there and participating in a work group evaluating chemical castration as a possible treatment for sex offenders. He left in 1999 to develop a sex offender education program for the military during which time he consulted on courts-martial. Dr. Arnold and two other psychologists have a contract with the state to train people in conducting “these evaluations” and in providing quality assurance oversight of the evaluations.
Dr. Arnold was asked to evaluate defendant for purposes of determining whether or not defendant continued to meet the criteria for civil commitment pursuant to section 6600.
Dr. Arnold interviewed defendant for approximately five hours and concluded defendant suffers from pedophilia, a mental disorder as that term is defined legally, and that he would be likely to re-offend if he were released from his commitment. He is of the opinion defendant is a danger to the public “in that regard.”
Defendant’s pedophilia is one of the conditions that predisposes him to violent acts, along with a personality disorder (antisocial personality) and a tendency toward substance abuse. These, combined, satisfy the legal definition of a mental disorder.
According to Dr. Arnold, pedophilia, once established, is a deviate sexual interest that lasts a lifetime. Controlling the sexual urges felt by pedophiles is a skill that some can learn, but they must practice that skill in order to be effective at it. Defendant has learned some of these skills but has not practiced them, which suggests a lack of commitment to treatment. As evidence of this, Dr. Arnold considers significant the fact that defendant, although he denied it, was engaged in “high risk” behavior by being around young boys at the time of his last arrest. Dr. Arnold notes defendant was not involving himself in treatment at the time of trial.
Ultimately, Dr. Arnold thinks there is a serious and well-founded risk of defendant re-offending “based upon his level of sexual deviance, his history over time, [and] the fact that this is something he became heavily engaged in at the age of 15.” Dr. Arnold notes that defendant’s last arrest for contact with children was when he was 27 and that there was very serious conduct on defendant’s part in 1997 that included an allegation of sexual abuse that was never pursued.
Dr. Arnold concluded that defendant “would be likely to re-offend if released.”
If the 1997 incidents had not occurred and if defendant had not been found to have possessed pornography, had not been in contact with children, had been pursuing an occupation and had good social supports, Dr. Arnold thinks he then would not have qualified for continued commitment.
Defense Evidence
A. Dr. Raymond E. Anderson
Dr. Anderson is a clinical psychologist who has testified as an expert witness in court concerning one aspect or another of sexual offenses on “400 or so” occasions. He earned his Ph.D. at the University of California at Los Angeles and has concentrated on the assessment and treatment of sexual offenders since 1966. He was chief psychologist of the Wisconsin Sex Crimes Facility and, thereafter, was the chief of the Mentally Ill Offenders Unit in Los Angeles and chief of the forensic unit treatment program run by Los Angeles County Mental Health. At each of those assignments he was assessing and treating sexual offenders.
Since 1958, Dr. Anderson has been the director of Pacific Professional Associates, which is a private nonprofit corporation that assesses and treats sexual offenders and victims of sexual offenses.
Dr. Anderson evaluated defendant to determine whether “first of all, if he suffered from a sexual disorder, and, secondly, to see if that disorder constituted him [sic] a threat to the community such that he would be likely to commit a sexually violent offense as defined by the statute.”
Dr. Anderson is of the opinion defendant is not a pedophile nor does he have a sexual disorder. He came to that conclusion after he asked defendant if he was strongly attracted to pre-pubescent children, that is, those without secondary sex characteristics such as pubic hair and musculature changes and after Dr. Anderson administered a series of tests intended to separate sexually disordered individuals from “situation sex offenders.” The latter are those who have decided to commit a criminal sexual act because they want to and not because they are strongly driven to do so by a disorder. The results of the tests did not suggest that defendant had an internal disorder and the details of his offenses suggest instead that defendant is simply confused about his homosexuality and turns to children as a safe alternative. Defendant works many of these conflicts through such that he does not suffer from a motivation to commit sexual offenses.
Defendant thought or wished that he was heterosexual and tried to appear that way, but had certain characteristics others noticed that “distinguished him as probably homosexually oriented.” This and the scorn that he received from other boys and young men was difficult for him to accept. Defendant’s initial sexual orientation was not toward “age-appropriate” partners because he was molested by his cousin when defendant was seven and his cousin was 17.
According to Dr. Anderson, in distinguishing between pedophilia and a confused person who turns to children, one presumes the person is not a pedophile, that is, that he does not have a strong, intense, and persistent urge to have sexual contact with children. One has to overcome that presumption. And the fact that defendant has had three confirmed adult victims and two confirmed child victims suggests that defendant does not have intense urges for children. Only one or two of his victims were under age 10 which is the age that raises an inference of pedophilia according to “research done by Lang in San Diego.”
Moreover, in diagnosing pedophilia, one looks for “personality functioning characteristics” such as social withdrawal or, on the other hand, extreme interaction and intrusiveness socially. Just because a person has sexual relations with a child under 10 does not make him a pedophile. Considering all cases of child molestation, only about 30 percent of those who molest prepubescent children are pedophiles and Dr. Anderson does not even know if defendant’s victims were prepubescent.
Dr. Anderson does not think defendant would turn to children for sex if released because he has not done so since 1983. Although he was accused of doing so in 1997 it was not proven, so Dr. Anderson assumes it did not happen. Given that, Dr. Anderson finds defendant spent eight and one-half years without evidence of child molestation.
In addition, defendant has now accepted his homosexuality and his sex drive is now below normal according to the tests Dr. Anderson administered. All of this indicates defendant would not re-offend and Dr. Anderson puts his “re-offense potential in the three to four percent range” although it may be lower because there is research suggesting the repeat offense rates for sex offenders has gone down.
Dr. Anderson doubts that defendant could have manipulated the tests.
Dr. Anderson interviewed defendant for about two and one-half hours and concluded defendant is not a pedophile and is not an SVP although, because he is estimated to have a re-offense potential of 3 percent, he is a greater danger than the average criminal discharged from prison after committing a serious sexual offense. Even so, Dr. Anderson considers that “an acceptably low level of threat.”
B. Dr. Robert Halon
Dr. Halon is a psychologist and marriage and family therapist licensed by the State of California. He has been involved in his field in research and application for 30 years. Dr. Halon describes his education and training and experience as follows:
“I have a B.A. in Psychology, M.A. in Psychology, the Ph.D., the B.A. in MA counseling from Sacramento State University and Ph.D. from the University of Southern California.
“[W]e [sic] have both, we [sic] start our [sic] training in diagnostic work and psychotherapy and counseling in grad at school and progress right on through the master's degree into Ph.D. We [sic] have to do, besides our [sic] coursework for me which included two foreign languages, one of which was research, research methodology and statistics, and the other was German. We [sic] have to do, we [sic] did many courses in philosophy, diagnostics into the different theories of diagnosing people with mental disorders and the different theories of personality and clinical disorders and all that stuff. We [sic] studied everyone from Freud to more recent ones, cognitive behavioral people. I had probably 3,000 hours pre-doctoral work in acute medical facilities and counseling centers, multiple discipline settings. I had probably another 3,000 or more hours of post-doctoral work where I worked in acute medical facilities and multi discipline settings, meaning you work with social workers and psychiatrists and other psychologists and everybody that is involved in the medical care field, not just mental health. I did a year’s internship at the California Youth Authority in Norwalk, which is the Los Angeles area, in what is called the intensive treatment program for youthful offenders who had committed violent crimes and were thought to have perhaps a mental disorder that were somehow instrumental in the criminal behavior by the violence. Earned the Ph.D. from University of Southern California in August of 1977, I taught there as a teaching assistant after my second semester. I also taught at the University of, State University, California State University in Los Angeles, and I have taught at the University of Southern California. Following my graduation, I went back to USC to teach at the request of the graduate school. And I taught at California Poly Tech Institute in San Luis Obispo, psychology and psychotherapy, things like that.
“I have been involved in the field in research and application for the last 30 years. I have been the chief psychologist for Patients United for Santa Barbara and San Luis Obispo Counties, which is an organization that is designed to assist the courts and the public agencies in handling families where there had been incest and the court’s sending us people to evaluate for them, the district attorneys would, social services. I have been involved in forensic fields very heavily since about 1981 and exclusively since 1999. I used to do a great deal of psychotherapy in counseling which I stopped doing in '99, and I work exclusively in the forensic arena. I do all kinds of evaluations that come, in cases that come to the attention of the courts where the courts are interested in what mental health professionals might have to add or have to say on mental health issues like SVP law, MDH law, 1368, 10267 sentencing for capital murder cases, custody cases, domestic cases, social services cases, et cetera. I have done just about it all.
“I have published in professional journals on the issue of the distinction between clinical and forensic practices on child custody matters. Have been doing research into how well psychological tests actually do what they say they do, published a paper on the Millan Clinical Multi Actual Inventory, a few years ago. I have written a lot of unpublished papers regarding issues related to the integration of mental health information with legal concepts and constructs where the law or the courts ask us to provide information that might be useful to the triers. Done a great deal of research in that area and still do.
“I was one of the first psychologist[s] in the state of California appointed to do the 2960 evaluations which is the mentally disordered offender. I did some of the tail end of the mentally disordered sex offender cases and we moved into the mentally disordered offender arena. I did over 1300 of those.
“. . . I was the first psychologist or one of the first in California to do the SVP evaluations for the Department of Mental Health and did the first one in December of 1995 before the law became effective. Since then, I have done--I did nine additional evaluations, nine evaluations at the request of the Department of Mental Health and have since done upwards of 450 or more at the request of the defense attorneys.”
Dr. Halon has testified as an expert witness several hundred times and has testified in 50 to 100 cases dealing with SVP’s. Overall, he has done in excess of 450 SVP evaluations.
Dr. Halon conducted an evaluation of the defendant to consider whether defendant had a predisposition to commit SVP offenses and whether he suffered from a psychiatric condition that made it seriously difficult for the person to prevent himself from behaving “in harmony with” such a predisposition.
Dr. Halon would not testify as to whether or not defendant has a diagnosable mental disorder that predisposes him to commit criminal sexual acts because that is for the trier of fact to decide. But the evidence Dr. Halon has seen does not suggest that defendant has such a disorder and defendant does not appear to have any disorders. His behavior is characterological; it is “just the way [defendant] is.”
One cannot diagnose defendant as a pedophile because one cannot find that in the six months prior to that diagnosis defendant has had either intense urges or fantasies about, or a preference for sex with, children. Defendant had certainly focused on children in the past, but one cannot know if he does so now unless he “acted out” in that regard in a way that was observable. There is no evidence of that. One must find that there is a predisposition toward sex with children and that the psychiatric psychopathology hindered to a fairly serious degree defendant’s ability to apply volitional controls.
Dr. Halon cannot say whether defendant is or is not predisposed to sex with children. He can only say there is an absence of signs that would point to that conclusion. Comparing that which defendant told Dr. Halon about himself with his history suggests defendant was truthful and forthright with Dr. Halon. Dr. Halon notes that it is highly atypical for a pedophile to be arrested for soliciting adults in a park as has happened to defendant.
A mental health professional cannot predict whether an individual might re-offend. All that one can do is place an individual in a broad risk assessment category using certain “actuarial” tools.
Dr. Halon agrees that defendant has strong anti-authoritarian traits and that he has engaged in antisocial behavior on numerous occasions, but believes it is questionable whether those demonstrate a fixed personality disorder. He also finds a lot of debate over the question whether a pedophile remains a pedophile for life. Defendant’s past convictions leave it “highly equivocal” whether those convictions are evidence of pedophilia versus simple child molestation.
Dr. Halon finds that defendant began forming homosexual relationships with age-appropriate men after he was released from Atascadero State Hospital in 1986 and his behavior towards children “may have just disappeared.”
As to whether defendant would be a risk to the community if he were released, the only question Dr. Halon can answer is whether “there is evidence to support the notion that he has some kind of condition that would proximate the volitional control in a predisposition.” The pure risk, according to Dr. Halon, is immaterial under the statute. The commitment issue is not the risk but rather whether he has a mental disorder that creates the risk in him. He cannot say whether he has that mental disorder, but only that there is no evidence that strongly supports the notion of a mental disorder at the time of trial.
Dr. Halon agrees that defendant’s incarceration at Atascadero since late 2000 or early 2001 has kept him out of the presence of children, but if his predilection for children remained, one would expect to see some evidence of that in the form of child pornography or communication with pedophiles. Dr. Halon discounts the 1997 incident when defendant was around young boys because, since there was no prosecution at that time, it means to Dr. Halon that the authorities did not find any evidence to support a charge of child molestation. Thus, child molestation at that time was not a fact that Dr. Halon can consider in his diagnosis.
C. Defendant’s Testimony
Defendant did not refuse to be examined by Dr. Sreenivasan. He was away from the institution at the time undergoing an MRI and a sonogram.
Discussion
In order to establish that defendant is an SVP within the meaning of the Sexually Violent Predator Act, the People must prove, beyond a reasonable doubt that “(1) defendant 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.)
Defendant argues the evidence presented at trial was insufficient to prove beyond a reasonable doubt that defendant’s “disorder made it more likely than not that he would engage in sexually violent conduct if released.”
Before addressing the issue defendant raises on appeal, we note that, in framing his argument, defendant sets forth the elements of proof applicable to an extended commitment as “(1) [defendant] had two qualifying priors, (2) [defendant] had a diagnosable mental disorder, and (3) his disorder made it more likely than not that he would engage in sexually violent conduct if released,” citing People v. Iran (1999) 74 Cal.App.3d 826, 830 (the correct cite is People v. Poe (1999) 74 Cal.App.4th 826). By relying on this authority, defendant has misstated the elements of proof required of the People.
In 2002, the California Supreme Court restated the issues to be determined in an SVP prosecution to include an element that defendant would, if released, be likely to engage in sexually violent, predatory, criminal conduct. (People v. Hurtado (2002) 28 Cal.4th 1179.) At trial, none of the four witnesses gave his or her opinion as to whether defendant was likely to engage in future criminal conduct that was not only sexually violent, but also predatory. Counsel made no mention of it either. There being no jury, there were no instructions on the elements the People needed to prove to sustain the petition. Even so, in making his order the trial judge found that defendant was likely to engage in “sexually violent, predator[y] criminal behavior.”
It is apparent from the record that, prior to trial, counsel discussed the issues they intended to litigate. It is equally apparent that defendant’s prior qualifying conduct was predatory in nature having as it did victims who were strangers, persons of casual acquaintance, or persons with whom a relationship had been established for the primary purpose of victimization. (See § 6600, subd. (e); People v. Hurtado, supra, 28 Cal.4th at p. 1182.) We conclude the parties assumed that, if the People proved that defendant was likely to engage in sexually violent criminal conduct if released, that conduct would be predatory. We consider the case in the manner the parties litigated it.
We also note that defendant’s statement of his contention misstates the People’s burden to the extent that defendant’s statement requires the People to prove that, more likely than not, defendant would engage in sexually violent conduct if released. The term “likely” as used in section 6600 subdivision (a) means that the People had to prove at trial that defendant “present[s] a substantial danger, that is, a serious and well-founded risk” that a defendant will commit such crimes if released. (People v. Roberge (2003) 29 Cal.4th 979, 988.) The parties at trial and the witnesses simply used the word “likely” and, since its definition in this context was not otherwise discussed or litigated, we may assume the parties and witnesses properly understood its meaning.
We turn then to defendant’s contention that the evidence is insufficient to prove defendant’s disorder did not make it likely he would engage in sexually violent conduct if released. Given that challenge we “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.]” (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) “‘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.]” (People v. Sumahit (2005) 128 Cal.App.4th 347, 352.)
Reviewing the evidence with these principles in mind we hold the evidence is sufficient to prove beyond a reasonable doubt that defendant has been diagnosed with a mental disorder, pedophilia, that makes him a danger to the health and safety of others in that the disorder makes it likely that defendant will engage in sexually violent, predatory, criminal behavior if released. While the experts were at odds, the credibility of the experts and their conclusions were matters to be resolved by the trier of fact. Both Dr. Sreenivasan and Dr. Arnold testified that defendant suffered from a mental disorder and that, in their opinion, defendant’s mental disorder makes him a danger to the health and safety of others as defined in section 6600. They gave reasons for their opinions, including, among others, defendant’s prior offenses, his personal history and his actions at Atascadero State Hospital. Keeping in mind we are not free to reweigh or reinterpret the evidence and that we draw all reasonable inferences in favor of the judgment, we hold the trial judge, as the trier of fact, could reasonably believe the prosecution witnesses and reject the evidence presented by the defense. Thus, sufficient evidence existed to allow a rational trier of fact to find the allegations of the petition were true beyond a reasonable doubt.
Disposition
The judgment (order) is affirmed.
We concur:
DAVIS , Acting P.J., CANTIL-SAKAUYE , J.