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People v. Pritchett

Court of Appeals of California, First Appellate District, Division Five.
Nov 18, 2003
No. A100115 (Cal. Ct. App. Nov. 18, 2003)

Opinion

A100115.

11-18-2003

THE PEOPLE, Plaintiff and Respondent, v. NOEL PRITCHETT, Defendant and Appellant.


Noel Pritchett appeals from an order of commitment under the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code sections 6600 et seq. He contends substantial evidence did not support the finding that he is likely to engage in future sexually violent criminal behavior. In particular, he asserts, evidence was lacking as to his amenability to treatment in the community and the predatory nature of his future sexual conduct. He also contends the trial court used an incorrect standard in determining whether the prospect of future sexually violent criminal behavior was "likely." We conclude Pritchetts arguments have no merit and affirm the judgment.

Unless otherwise indicated, all further section references are to the Welfare and Institutions Code.

I. FACTS AND PROCEDURAL HISTORY

The SVPA provides for the civil commitment of sexually violent predators to a state mental institution after their term of imprisonment. (§ 6604.) A sexually violent predator (SVP) is defined as "a person who has been convicted of a sexually violent offense against two or more victims [i.e. "predicate offenses"] and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).)

The process usually begins when the Department of Corrections determines that an inmate approaching release may be a SVP, and refers him to the Department of Mental Health (DMH) for evaluation by two psychologists or psychiatrists. If the evaluators agree that the person "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody," the DMH forwards a request for civil commitment to the county to file a petition for commitment in superior court. (§ 6601, subd. (a)(1), (b), (d).) After a probable cause hearing, a trial is conducted to determine whether the defendant is a sexually violent predator under section 6600, subdivision (a). (§§ 6602, 6604.) Both the defendant and the People have the right to trial by jury. (§ 6603, subd. (a), (e).) If the defendant is found to meet the statutory criteria for a SVP, he is committed to DMH custody for two years of treatment and confinement. (& sect; 6604.)

A detailed discussion of the SVPA is set forth in Hubbart v. Superior Court (1999) 19 Cal.4th 1138.

Pritchett was named in a petition for SVP commitment in March 2002. Finding probable cause to believe he was likely to engage in sexually violent predatory criminal behavior upon his release from custody, the trial court set the petition for trial. (See § 6602.) The parties waived their right to a jury.

A. PREDICATE OFFENSES

1. First Predicate Offense

On July 3, 1992, Pritchett and two other Navy men were visiting the home of their superior officer for the holiday weekend. The next day, after consuming alcohol with the other men, Pritchett went to the room of his hosts two-year-old daughter (hereafter, victim one). Victim ones mother later found him lying on victim ones bed, with victim one on her back and her legs spread apart. Pritchetts hand was under the girls diaper, rubbing her vagina. When he noticed the mother had entered the room, Pritchett removed his hand from the diaper and started pointing to and naming the childs body parts. The mother changed the diaper and observed redness around victim ones vagina. Later victim one complained that "my peeper hurts" and that one of the Navy men "would not leave my peeper alone." On July 7, 1992, Pritchett admitted to investigating officers that he had placed his fingers in victim ones diaper and fondled her vagina. He could not explain his actions.

The following August, Pritchett pled guilty to a felony charge of lewd acts with a child less than 14 years (Pen. Code, § 288, subd. (a)). The court suspended imposition of sentence and granted him three years of formal probation, with the conditions that he participate in counseling or therapy as directed, not associate with minors unless in the company of a responsible adult who knew of his commitment offense, register as a sex offender under Penal Code section 290, and totally abstain from the use of alcohol.

2. Second Predicate Offense

While still on probation in February 1992, Pritchett moved in with his half-brother Michael, Michaels girlfriend, and their two-year-old son (hereafter, victim two). Pritchett moved out in November 1993.

Pritchett testified he lived with them from February 1993 to November 1994. The incident report and change of plea form suggests he lived there from February 1992 to November 1993. The inconsistency is immaterial to the outcome of the appeal.

In 1996, victim two underwent counseling for exhibiting sexually inappropriate behavior and advised a family member that "Uncle Noel" let him watch videos of girls kissing and played with his "pee pee." When confronted by law enforcement, Pritchett admitted that while under the influence of alcohol, he played an X-rated video in front of victim two. He also admitted that he fondled the boys genitals on perhaps four to six occasions and orally copulated him two or three times.

In October 1996, Pritchett pled guilty to two counts of felony lewd acts with a child (Pen. Code, § 288, subd. (a)), with an enhancement for a prior serious felony conviction (Pen. Code, § 667, subd. (a)). Pritchett was sentenced to state prison for 11 years.

B. PEOPLES EXPERT TESTIMONY

1. Dr. Fricke

Alfred Fricke, a clinical psychologist, had worked as a SVP evaluator for the DMH for two years and had completed 20 evaluations. Dr. Fricke had conducted a SVP evaluation of Pritchett by reviewing his Department of Corrections and DMH files, court records, and police reports, as well as interviewing him for three hours.

Dr. Fricke testified that Pritchetts predicate offenses were violent, sexual, and predatory in nature. He opined that Pritchett suffers from the mental disorder of pedophilia. He also concluded that Pritchett is likely to commit predatory, sexual crimes in the future if released, and has a substantial impairment in his ability to control himself. Despite having been incarcerated, discharged from the Navy, placed on probation, and participating in counseling, Pritchett was unable to control himself and molested a two-year-old boy in a family setting. His potential victim pool includes both boys and girls, both inside and outside the family, and with children too young to avoid him.

In characterizing the nature of Pritchetts predicate offenses, Fricke distinguished between those who molest within the family unit, who could do so for complicated reasons such as anger at the wife or turning to the child for love, from those who molest relative strangers, who are more likely to be suffering from pedophilia. Because victim one was a stranger, Pritchetts lewd act with her was predatory and violent. His sexual acts with victim two were also predatory, since Pritchett had not molested him due to any apparent family reason, but because of his pedophilia.

In evaluating the likelihood Pritchett would reoffend, Fricke performed a Static-99 sex offender recidivism risk assessment analysis (Static-99 test) and considered Pritchetts risk factors. Fricke found that Pritchett represented a 40 percent risk for committing a new sexual offense, although not necessarily a sexually violent predatory offense, within 15 years. He concluded that Pritchett posed a "substantial risk" of reoffending. When confronted with a February 2002 written evaluation, in which Fricke had characterized the likelihood that Pritchett would reoffend as a "borderline situation," he explained that he had described Pritchetts situation as "borderline" based on a standard of "more likely than not," that is, more than a 50 percent likelihood. The risk of Pritchetts reoffending was nevertheless "substantial," and based upon a substantial risk standard, his likelihood of reoffending was not marginal.

Dr. Fricke acknowledged that participation in group therapy could reduce the likelihood of Pritchett reoffending, and Pritchett appeared able to cooperate with treatment and probation. Nevertheless, Fricke believed Pritchett would likely reoffend. The counseling Pritchett received after his 1992 conviction had not stopped him from reoffending, and he violated the probation conditions precluding him from associating with minors alone and consuming alcohol. For a period of time he had also failed to register as a sex offender as required by Penal Code section 290. Due to Pritchetts past conduct and mental disorder of pedophilia, Fricke concluded, parole restrictions would not remove the risk Pritchett poses to the community.

2. Dr. Jackson

Charles Jackson, a licensed psychologist, had completed over 400 SVP evaluations. Dr. Jackson performed a SVP evaluation of Pritchett, reviewing his Department of Corrections and DMH files, court records, and police reports, and conducting a clinical interview with Pritchett for nearly two hours.

Like Fricke, Jackson opined that Pritchett met the statutory criteria for a SVP. Pritchett had been convicted of violent, predatory, sexual offenses on two occasions. The 1992 molestation of victim one involved not only substantial sexual conduct, but also duress due to the difference in their height, weight, and age. It had a predatory nature, because victim one was a "stranger" as defined by the Static-99 test. In addition, the subsequent molestation of victim two was sexually violent with an element of duress as well. It was also predatory: among other things, in babysitting victim two he was nurturing or promoting a relationship for the purpose of victimizing him, and he "groomed" victim two by showing him pornographic movies.

Jackson diagnosed Pritchett as suffering from pedophilia, nonexclusive type, with an attraction to both males and females. Additional diagnoses were alcohol abuse in remission and borderline personality disorder.

Jackson believed that Pritchett would reoffend in a sexually violent and predatory manner. A Static-99 test disclosed a moderate high risk for reoffending, and Jackson believed the risk was greater because Pritchett had victimized both a male and a female. Other risk factors included Pritchetts deviant preference for two-year-olds, the early onset of his behavior at the age of 20, his failure to complete sex offender treatment, his reoffending after treatment, his borderline personality disorder, and his manipulative behavior in telling evaluators different stories about his past. In addition, Jackson opined, Pritchett lacks insight into the nature of his mental illness, suggesting he will not be able to change his behavior.

C. PRITCHETTS TESTIMONY

Pritchett was called as a witness by the prosecution, and testified in the defense case as well.

When he moved into the home of his brother Michael, Pritchett testified, he informed Michael of the probation condition prohibiting him from being alone with children and advised that he should not babysit victim two. Pritchetts probation officer also informed Michael and his wife about the San Diego offense, and instructed them not to leave Pritchett alone with victim two. Within a couple of weeks, however, Pritchett was left to babysit victim two by himself. Pritchett felt obligated to babysit, because he was a family member living in Michaels home.

Pritchett did not enjoy being on probation. He felt like somebody was trying to control his life, and he did not like being watched. He admitted violating two of his probation conditions, which precluded him from being alone with minors and consuming alcohol. He claimed he consumed alcohol only after Michael and Kathy offered it to him. The pornographic movies he showed victim two, Pritchett claimed, belonged to Michael. He complied with the counseling condition, knowing he would go to prison if he did not stop molesting children.

Pritchetts first molestation of victim two occurred less than two months before he left Michaels house—and about a month after he had completed his counseling for his molestation of victim one. He again asked not to be left alone with victim two, because he wanted to stop abusing victim two but was afraid he could not stop. He molested victim two again. Despite his regrets about what he had done to victim one and the prospect of going to prison if caught, Pritchett was unable to stop himself from molesting victim two.

Pritchett agreed he has the mental disorder of pedophilia. He claimed, however, that he did not molest victim one or victim two due to any sexual attraction to children and obtained no sexual gratification from the acts. Instead, Pritchett asserted, he acted out of a desire for love and acceptance, because throughout his childhood he had been pushed aside by adults. While adults do not want to listen to him, Pritchett explained, children are less judgmental. Pritchett now realizes it is inappropriate to seek love and acceptance from children to the exclusion of adults.

If released, Pritchett offered, he would not put himself in the position of being alone with minor children, would comply will all the terms of his parole, and would even pay for a treatment program himself. Pritchett believed that while in prison he had "come to terms" with his past behavior and would be honest with himself and his family.

D. DEFENSE EVIDENCE

1. Pritchetts Mother

Pritchetts mother, Floy Colleen Williams, testified that Pritchett and Michael were raised as brothers. She and Michael discussed Pritchetts San Diego conviction before Pritchett moved in. Victim two was a "friendly, affectionate child" who "was just always all over" Pritchett, had a "friendly relationship" with him, and related to "Uncle Noel" as a family member. Williams did not suspect anything unusual had happened between Pritchett and victim two.

2. Dr. Coleman

Dr. Lee Coleman, a psychiatrist for 30 years, had opined over 20 times on forensic psychology and the diagnosis of mental disorder and risk prevention in SVP cases, including the accuracy or legitimacy of the diagnostic methods by which such risk is assessed.

Coleman opined that "pedophilia" as a "diagnosis" is improper and a fraudulent use of psychology. Pedophilia is not an expert finding, he explained, but merely a description of behavior, lending a false air of expertise to the opinion. In addition, Coleman asserted that the resort of mental health professionals to certain "tools" renders them worse than laypersons at forming opinions. Tools such as the Static-99 test to predict human behavior are faulty and of little value since they rely on sets of data collected by several different groups whose research, methodology, and criteria may vary. Thus, in Colemans opinion, the Static-99 test is confusing, distracting, and intellectually dishonest.

Coleman acknowledged that Pritchetts history of sex crimes fit the definition of pedophilia, although a diagnosis of mental disorder could not be based simply upon criminal conduct. Coleman also agreed that one who has recurrent fantasies or actually commits sex acts with two or three-year-old children has something mentally wrong with them. In obvious situations, lay people can predict future behavior and do not require an expert to make such predictions.

3. Dr. Wornian

Larry Wornian, a licensed psychologist with a doctorate in counseling psychology, testified as an expert in the assessment and treatment of sex offenders. His experience included working as a staff psychologist at San Quentin Prison for over two years, running a program providing assessment and treatment for incest offenders, preparing Penal Code section 288 evaluations, and serving as a principal at the sex offender treatment program at the Crossroads Psychotherapy Institute (Crossroads). He likened Crossroads to the treatment program for SVPs at Atascadero State Hospital.

Dr. Wornian reviewed the evaluation reports prepared by Fricke and Jackson, as well as Pritchetts DMH records. Although he did not perform an assessment of Pritchett, Wornian believed Pritchett would qualify for the Crossroads program. Men who molested two and three-year olds are being treated on an outpatient basis at Crossroads. Based on polygraph tests, Wornian did not believe any of the men had reoffended while on probation.

D. VERDICT AND SENTENCE

The court found that Pritchett was a SVP within the meaning of section 6604 and ordered that he be committed for two years to DMH custody at Atascadero State Hospital.

This appeal followed.

II. DISCUSSION

As mentioned, a SVP is "a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) Pritchett does not dispute that he had been convicted of two predicate offenses and has the diagnosed mental disorder of pedophilia. Instead, he challenges the finding that he will engage in sexually violent criminal behavior in the future.

In particular, Pritchett contends: (1) the trial court did not properly consider his amenability to voluntary treatment upon release; (2) the evaluators failed to address whether his offenses were "predatory"; and (3) the court erred in its interpretation of the word "likely." As to the trial courts factual determinations, we review an SVPA order of commitment for substantial evidence. (People v. Mercer (1999) 70 Cal.App.4th 463, 465-466; People v. Johnson (1980) 26 Cal.3d 557, 576-578.) To be substantial, the evidence must be "`"of ponderable legal significance . . . reasonable in nature, credible and of solid value."" (Mercer, supra, at p. 466.)

A. AMENABILITY TO VOLUNTARY TREATMENT UPON RELEASE

The commitment of a defendant as a SVP requires proof, beyond a reasonable doubt, that "it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) In establishing this likelihood, our Supreme Court has remarked in a footnote that "[e]vidence of the persons amenability to voluntary treatment, if any is presented, is relevant to the ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody." (People v. Roberge (2003) 29 Cal.4th 979, 988, fn. 2 (Roberge).) Pritchett contends his commitment order must be vacated, because the evaluators failed to address his amenability to voluntary treatment in the community.

In People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888 (Ghilotti), the court ruled in the context of an SVPA probable cause hearing that factors relevant to whether the subject could safely be released included "(1) the availability, effectiveness, safety, and practicality of community treatment for the particular disorder the person harbors; (2) whether the persons mental disorder leaves him or her with volitional power to pursue such treatment voluntarily; (3) the intended and collateral effects of such treatment, and the influence of such effects on a reasonable expectation that one would voluntarily pursue it; (4) the persons progress, if any, in any mandatory SVPA treatment program he or she has already undergone; (5) the persons express intent, if any, to seek out and submit to any necessary treatment, whatever its effects; and (6) any other indicia bearing on the credibility and sincerity of such an expression of intent." (Id. at p. 929.)

We disagree. In the first place, Roberge merely noted that a defendants amenability to treatment in the community would be relevant to determining whether the defendant should be released from custody—if such evidence is offered. (Roberge, supra, 29 Cal.4th at p. 988, fn. 2; accord Ghilotti, supra, 27 Cal.4th at p. 927 [amenability to community treatment should be considered at probable cause stage]; Cooley v. Superior Court (2002) 29 Cal.4th 228, 256 [same].) While the potential efficacy of community treatment might be one of several factors in evaluating the likelihood that a defendant will perpetrate future sexually violent crimes, we see no requirement in Roberge or the SVPA that the People must prove, as an independent element, that the defendant is not amenable to community treatment. To the extent this is Pritchetts position, he is wrong.

At any rate, Dr. Fricke did address Pritchetts amenability to voluntary treatment upon release. He acknowledged that sex offender group treatment might decrease the risk of Pritchetts reoffending. He concluded, however, that despite the possible benefits of such treatment, as well as potential restrictions that could be placed on Pritchetts parole, it was still likely that Pritchett would reoffend. The redirect examination of Fricke included the following: "Q. At the time that you formed your opinion with regard to Mr. Pritchetts likelihood of reoffense, did you consider the fact that if he were released, hed be on parole and hed have conditions and have a parole officer, et cetera? [¶] A. Yes. [¶] Q. And even with all of those things in your mind, you still considered that hes likely to reoffend? [¶] A. Correct. [¶] Q. When the defense counsel asked you whether or not you thought that counseling, group counseling, would lessen his risk, you said it might? [¶] A. Correct. [¶] Q. Assuming even that he was ordered to take group counseling and did participate in it, is it still your opinion hes likely to reoffend? [¶] A. It is."

Fricke then explained that the counseling sessions Pritchett attended after molesting victim one had not stopped him from reoffending shortly thereafter, in his molestation of victim two. And while on probation, Fricke noted, Pritchett had violated the restriction precluding him from being alone with minors, the restriction precluding him from consuming alcohol, and for a time the registration requirement mandated by Penal Code section 290. Based on this track record, parole restrictions would probably not reduce the likelihood of Pritchetts future sex offenses. Again, we set forth the relevant portion of the Peoples examination of Fricke: "Q. Now, looking at his prior history, when he was placed on probation out of San Diego, there were many conditions placed upon him, correct? [& para;] A. Correct. [¶] Q. One of which was already mentioned, I believe, in cross that he not associate with minors unless in the company of a responsible adult? [¶] A. Correct. [& para;] Q. He violated that, didnt he? [¶] A. He did. [¶] Q. So that restriction on Mr. Pritchett did not restrict him; is that correct? [¶] A. Thats correct. [¶] Q. He was also ordered to participate in counseling, do you recall that? [& para;] A. I do. [¶] Q. And he did participate in some counseling? [& para;] A. He did. [¶] Q. Nevertheless, that counseling that he had did not prevent the second victim from being victimized? [& para;] A. It did not. [¶] Q. There was also a requirement as a term of probation and under the law that he register [as a sex offender under Penal Code section 290]? [¶] A. Correct. [¶] Q. And for some time he did register? [¶] A. Correct. [¶] Q. But based on the police reports, were you able to ascertain that there was a time that he did not comply with that order? [¶] A. Its my understanding right at the very end, before his last time when he was supposed to register, that he had not. He had apparently changed residences or addresses and had not registered yet. [¶] Q. Also, another condition of that probation was that he totally abstain from alcohol, were you aware of that? [¶] A. I am. [¶] Q. And are you also aware that Mr. Pritchett claims that he was using alcohol at the time that he was molesting the young boy? [¶] A. Yes. [¶] Q. So again, that restriction on Mr. Pritchett did not restrict him? [¶] A. Apparently not. [& para;] Q. Do you have any assurances for this Court that a restriction placed on Mr. Pritchett by a parole officer would have the effect of making him not a risk to the community? [& para;] A. I cannot reassure the Court of that." Dr. Jackson testified to similar effect.

Pritchett argues that, according to Dr. Wornian, he would probably qualify for an outpatient program to treat his pedophilia, and greater weight should be placed on Dr. Wornians opinion because of his experience in treating and counseling sex offenders. Because Fricke and Jackson were experienced in diagnosis rather than treatment, Pritchett insists, only Dr. Wornian was "really" qualified to evaluate the efficacy of alternative programs.

Despite Pritchetts claim to the contrary, he asks us to reweigh the evidence and reevaluate the weight the trier of fact should have accorded the respective experts testimony. That is not our role. Pritchett has failed to establish a lack of substantial evidence supporting the conclusion he was likely to engage in future sexually violent criminal conduct.

B. PREDATORY NATURE OF FUTURE SEXUALLY VIOLENT BEHAVIOR

Before a defendant may be committed as a SVP, "a trier of fact must find beyond a reasonable doubt that the defendant is likely to commit sexually violent predatory criminal acts before the defendant can be committed as a sexually violent predator." (People v. Hurtado (2002) 28 Cal.4th 1179, 1186, italics in original.) Pritchett complains the evaluators failed to address whether his future sexually violent criminal behavior would be "predatory" in nature.

Under section 6600, subdivision (e), an act is "[p]redatory" if it "is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization."

There was substantial evidence that Pritchetts likely future sexually violent conduct would be predatory. Dr. Fricke testified that Pritchetts lewd act with victim one was predatory and violent because she was a stranger. Pritchetts molestation of victim two was also predatory, because he perpetrated the molestation as a pedophile. On this basis, Fricke believed Pritchett represented a serious risk of committing similar predatory crimes if he were in the community.

Dr. Jackson also confirmed that the molestation of victim one was predatory, because she was a stranger. The molestation of victim two was predatory as well, he opined, because Pritchett had "groomed" the boy by showing him pornographic movies. Given this history, Dr. Jackson believed that Pritchett would reoffend in a sexually violent manner that would be predatory in nature.

Pritchett protests that neither Fricke nor Jackson articulated any factual, scientific or other factual support for their opinion that his future sexually violent behavior would be predatory. This lack of factual support, he contends, demonstrates a lack of substantial evidence. However, Fricke and Jackson did offer factual reasons for their conclusion that the sexual conduct he imposed on victim one and victim two was predatory, and gave specific factual reasons for their conclusion that he would reoffend—including his score on the Static-99 test and the fact that he had victimized both a male and a female. There was, therefore, a factual basis for their opinions.

Pritchett has failed to establish a lack of substantial evidence supporting the findings of the trial court.

C. INTERPRETATION OF "LIKELY"

Our Supreme Court has held that the defendant is "likely" to engage in sexually violent criminal behavior if he is found to "present[] a substantial danger, that is, a serious and well-founded risk, of committing [such crimes] if released from custody." (Roberge, supra, 29 Cal.4th at p. 988.) Pritchett acknowledges that the trial court applied this standard. For purposes of preserving the issue for federal review and reconsideration by our Supreme Court, however, Pritchett asserts that due process requires that "likely" be defined as "highly likely" or, at a minimum, "more likely than not."

We are obliged to follow the precedent of our Supreme Court. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455.) In light of Roberge, Pritchett has not established error on this ground.

III. DISPOSITION

The judgment is affirmed.

We concur, SIMONS, J., GEMELLO, J.


Summaries of

People v. Pritchett

Court of Appeals of California, First Appellate District, Division Five.
Nov 18, 2003
No. A100115 (Cal. Ct. App. Nov. 18, 2003)
Case details for

People v. Pritchett

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. NOEL PRITCHETT, Defendant and…

Court:Court of Appeals of California, First Appellate District, Division Five.

Date published: Nov 18, 2003

Citations

No. A100115 (Cal. Ct. App. Nov. 18, 2003)