Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Super. Ct. No. 1228217, Edward H. Bullard, 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Maurice Van Roberson appeals from a judgment recommitting him to the Department of Mental Health (department) as a sexually violent predator (SVP) within the meaning of California's Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) He challenges the sufficiency of the evidence to support the finding that he met the criteria as an SVP, and contends that the SVPA, as amended, (revised SVPA) is unconstitutional. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
Appellant has been committed to the custody of the department as an SVP since 1998. He was convicted of forcibly raping a 17-year-old girl and committing lewd acts with an 8-year-old girl in 1983. He had a history of committing other sexual offenses against young children and violated parole in 1996 after sneaking into a female dorm at 3:30 a.m. He returned to state prison and was committed to the department as an SVP following a jury trial in 1998. Recommitment petitions filed in 1999, 2001 and 2003 were consolidated for a jury trial. (People v. Roberson (Apr. 10, 2007, B181107) [nonpub. opn.].) Appellant was recommitted for three terms which ended on July 31, 2005 (ibid.), and later recommitted to the department for an additional two-year period, which expired on July 31, 2007. (People v. Roberson (Sept. 27, 2007, B1924580 [nonpub. opn].)
On May 11, 2007, the People filed a petition to recommit appellant. The 2007 petition did not specify a commitment term. As amended in 2006, the revised SVPA authorized indefinite commitment terms and deleted provisions for two-year commitment terms.
Before the Legislature and the voters amended the SVPA in 2006, the SVPA required the People to file a new petition for commitment every two years and to prove beyond a reasonable doubt that the defendant was an SVP. (Former §§ 6601, subd. (i), 6604, 6604.1; People v. Munoz (2005) 129 Cal.App.4th 421, 429-430.) As a result of the 2006 amendments, if the People bring a petition and prove beyond a reasonable doubt that an individual is an SVP, the individual is committed for an indefinite term. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1281. See Historical and Statutory Notes, 73D West's Ann. Welf. & Inst.Code (2009 supp.) foll. § 6604, p. 153; (Prop. 83, § 27, as approved by voters, Gen. Elec. (Nov. 7, 2006, eff. Nov.8, 2006).)
Appellant moved to dismiss the petition on the ground that the provisions in the revised SVPA for an indeterminate term should not apply to him. The court denied his motion. After probable cause proceedings and a trial, the jury found that appellant was an SVP and he was committed to the Department for an indeterminate term.
Evidence
At the request of the department, three psychologists (Kathleen Longwell, Ph. D., Nancy Rueschenberg, Ph.D, and Robert Owen) evaluated appellant in 2007 and 2008. In 2007, appellant agreed to speak with Longwell, but refused to participate in an interview with Rueschenberg or Owen. In 2008, he refused to speak with any of these doctors. All three doctors diagnosed appellant with pedophilia, attracted to girls, non-exclusive type. Rueschenberg and Owen diagnosed him with antisocial personality disorder and Longwell diagnosed him with a personality disorder not otherwise specified, with antisocial and paranoid features. In addition, two of the doctors diagnosed him with a substance dependence condition that was in remission.
In diagnosing appellant's pedophilia, the doctors relied on his criminal history involving prepubescent girls, among other factors. In 1980, appellant was convicted of sexually molesting a seven-year-old girl and a six-year-old girl. In 1983, he was convicted of sexually assaulting an 11-year-old girl. He also raped a 16-year-old girl.
Longwell also relied upon appellant's ongoing cognitive distortion regarding the crimes in diagnosing pedophilia, based on statements he made to her in 2007. For example, he told her that his sexual assault of one victim occurred accidentally while he was trying to stop her from screaming. In 1976, he was arrested for indecent exposure after library staff caught him masturbating. Appellant told Longwell that he had not intended to expose his penis but it poked out of his shorts because he needed to urinate.
Longwell concluded that appellant committed the crimes for the purpose of sexual gratification and that he would commit a predatory act in the future. The victims of his crimes were children he befriended so that he could victimize them. Longwell noted that appellant's polysubstance abuse was documented in connection with his sexual offenses. If he were released, he could abuse substances, which would further impair his judgment and his ability to control his impulses, including those relating to pedophilia.
While committed as an SVP, appellant was disrespectful to other patients, especially females. He had touched one female staff member on her buttocks and he either minimized or denied his misconduct. He also made sexually inappropriate remarks to female staff members.
Appellant blamed his problems on others, did not admit responsibility for his crimes, and refused to accept treatment. Longwell, Rueschenberg and Owen concluded that appellant's scores on various assessment tools (e.g., Minnesota Sex Offender Screening Tool and the Sex Offense Risk Appraisal Guide) indicated that he was at high risk of reoffending if released.
Appellant presented two expert witnesses, Lee Coleman, M.D., who specialized in adult and child psychiatry, and Theodore Donaldson, a clinical psychologist who specializes in forensic psychology. Coleman does not perform SVP evaluations. He did not determine whether appellant qualified as an SVP or suffered from polysubstance abuse. Coleman opined that antisocial personality disorder is not relevant to an SVP determination. Coleman concluded that the diagnoses by Longwell, Rueschenberg and Owen simply restated appellant's past behavior. There is no available psychiatric evaluation for SVP, which concerns issues of volitional control. Addressing appellant's refusal to participate in treatment, Coleman believed that there have been inconsistent results in studies comparing institutionalized persons who accept and reject treatment.
Donaldson concluded that the diagnoses of Longwell, Rueschenberg and Owen were not supported by sufficient evidence. Appellant had not exhibited any symptoms of the diagnosed disorders since the 1983 offense. Donaldson found no evidence that appellant was aroused by children. Donaldson noted that the later parole violation involved a 15-year-old female, which would not qualify for a pedophilia diagnosis, and there was no indication that appellant had touched her or the 12-year-old female. The fact that appellant lacked access to children did not alter his findings. Donaldson concluded that appellant did not currently suffer from pedophilia. While Donaldson acknowledged that appellant's history was consistent with the antisocial personality disorder diagnosis, he considered that diagnosis irrelevant to the SVP criteria. Donaldson did not address substance abuse because he did not think it was related to appellant's recidivism. Donaldson believed appellant's risk of reoffending was between five and twenty percent.
DISCUSSION
I
Appellant argues that insufficient evidence supports the finding that he is an SVP pursuant to statutory criteria. He claims there is no substantial evidence of an existing mental disorder, a lack of volitional control, or current dangerousness, and that his continued commitment violates federal and state principles of due process of law. (Kansas v. Hendricks (1997) 521 U.S. 346, 358; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162 [SVP finding may not rest upon prior crimes absent evidence of current mental disorder making person a danger to others].)
In reviewing the sufficiency of evidence to support a person's civil commitment as an SVP, we apply the substantial evidence standard of review. (People v. Flores (2006) 144 Cal.App.4th 625, 632.) We review the record most favorably to the judgment, and draw all reasonable inferences therefrom, to determine whether reasonable and credible evidence supports the decision of the trier of fact. (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) We do not reweigh the evidence nor do we substitute our reasonable inferences for those drawn by the trier of fact. (People v. Mercer (1999) 70 Cal.App.4th 463, 466-467.) Moreover, the credibility of witnesses, including expert witnesses, is the sole province of the trier of fact. (People v. Jones (1990) 51 Cal.3d 294, 314.)
Under the SVPA, an expert must conclude than an SVP is "'likely to engage in acts of sexual violence'" or "'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." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.)
Sufficient evidence supports the SVP finding here. All of the state experts opined that appellant suffers from pedophilia, and that he was at high risk of reoffending.
Appellant asserts that the state experts improperly relied on his prior criminal history "to the exclusion of any other facts, to support their diagnosis of appellant as a pedophile" in violation of section 6600, subdivision (c)(3). That history includes offenses that were committed in 1980, 1983, 1996, and a 1995 parole violation, and an arrest that occurred in 1976. He notes that his 13-year-old parole violation involved a "casual contact with two girls," and did not involve any touching or other inappropriate action and stresses that one of the girls was 15. In fact, more recent evidence supports his updated pedophilia diagnosis.
During his 2007 interview with Longwell, appellant made several comments regarding his prior sexual crimes that she considered in evaluating him. For example, he said that a six-year-old victim threw herself on him against his will, put her tongue in his mouth, removed his clothes, rubbed her genitalia against his chest, and inserted his penis into her vagina. Such comments indicate that he retained cognitive distortions common among pedophiles.
Appellant also asserts that there is no substantial evidence of his dangerousness. While committed, appellant blamed others for his problems, failed to accept responsibility for his actions and refused treatment. "A patient's refusal to cooperate in any phase of treatment may... support a finding that he 'is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community.' [Citation.]" (People v. Sumahit (2005) 128 Cal.App.4th 347, 354-355.)
He complains that a "peeping" did not support the determination of present dangerousness because it involved neither "an underage woman [nor] actual physical conduct." The fact that appellant has not committed sexual crimes in the controlled hospital environment does not prove that he no longer suffers from a mental disorder that poses a danger to others. (People v. Sumahit, supra, 128 Cal.App.4th at pp. 353-354.) In the hospital setting, appellant lacks access to female victims whom he can molest. Longwell concluded that he had not reoffended in recent years was because he was in custody.
There is also sufficient evidence that appellant poses a serious and well-founded risk that he would reoffend if released. His scores on the Minnesota Sex Offender Screening Tool, the Sex Offense Risk Appraisal Guide and the Static-99 test indicate he was at high risk of reoffending if released. His substance abuse problems, which are in remission during his commitment, exacerbate the risk of his reoffending.
Appellant also claims that there is no evidence that he lacks volitional control. "[A] recidivist violent sexual offender who, due to a mental disorder, is unlikely to be deterred by the risk of criminal punishment lacks control in the requisite sense." (People v. Burris (2002) 102 Cal.App.4th 1096, 1106-1107.) Appellant's pattern of reoffending and violating his parole shortly after his release suggests that punishment has not deterred him from reoffending. An offender can lack control if he has an antisocial personality disorder. (Id. at p. 1108.) Longwell, Rueschenberg and Owen diagnosed appellant with antisocial personality disorder or a similar disorder. Substantial evidence supports the finding that appellant is an SVP pursuant to statutory criteria.
II
Appellant further contends that the trial court erred by applying the revised SVPA to him because the 2006 amendments do not contain provisions permitting the recommitment of a previously committed SVP. Alternatively, he argues that the two-year extension period of the former SVPA applies to him.
Comparable arguments have been rejected in People v. Carroll (2008) 158 Cal.App.4th 503, Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, and People v. Shields (2007) 155 Cal.App.4th 559. Appellant argues that Bourquez and Shields were wrongly decided. We agree with the reasoning of those cases and conclude that the trial court had jurisdiction to conduct the trial and commit appellant for an indeterminate period of treatment under the revised SVPA, although he was committed prior to the 2006 amendments. Moreover, the indeterminate commitment does not constitute a retroactive application of the revised SVPA. (Carroll, at pp. 508-510, 512-515; Bourquez, at pp. 1283-1289; Shields, at pp. 562-564.)
III
Appellant also contends that the revised SVPA is unconstitutional as applied to him because it denies him due process and equal protection of the law, and violates ex post facto rules. We disagree.
Both parties acknowledge that the California Supreme Court has granted review in several cases involving constitutional challenges to the revised SVPA. (See, e.g., People v. McKee (2008) 160 Cal.App.4th 1517 (review granted July 9, 2008, S162823); People v. Johnson (2008) 162 Cal.App.4th 1263 (review granted Aug. 13, 2008, S164388); People v. Garcia (2008) 165 Cal.App.4th 1120 (review granted Oct. 16, 2008, S166682); People v. Riffey (2008) 163 Cal.App.4th 474 (review granted Aug. 20, 2008, S164711); and People v. Boyle (2008) 164 Cal.App.4th 1266 (review granted Oct. 1, 2008, S166167).)
Appellant asserts that the revised SVPA denies him equal protection of the law afforded by the federal and state Constitutions, because he was committed for an indeterminate term, unlike the fixed terms provided under other civil commitment statutes. He argues that persons committed under the revised SVPA, and the Mentally Disordered Offender Act (Pen. Code, § 2960 et seq.), are similarly situated for purposes of evidentiary burdens and jury trial rights in recommitment proceedings. He adds that reviewing courts must strictly scrutinize involuntary civil commitment schemes because they affect a fundamental liberty interest. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1153, fn. 20; People v. Buffington (1999) 74 Cal.App.4th 1149, 1155-1156 [a legislative distinction that "involves a suspect classification or infringes on a fundamental interest,... is strictly scrutinized and is upheld only if it is necessary to further a compelling state interest"].)
The contention that SVP's are similarly situated to mentally disordered offenders (MDO's) overlooks significant differences in the commitment schemes and their purposes concerning the degree and danger that persons committed under the respective schemes present. The contention also ignores the severity of mental illness, prognosis, and amenability to treatment of persons in the different groups. The SVPA concerns "'a small but extremely dangerous group of sexually violent predators....'" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Other commitment schemes, including the Mentally Disordered Offenders Act, involve a broad range of mental illness and conduct.
Moreover, an SVP is civilly committed in part because of the likelihood that he will engage in sexually violent criminal behavior upon release. SVP's present a substantial danger to others, have a very high recidivism rate, require long-term treatment, and have only a limited likelihood of improvement. MDO's under the other statutory schemes include those suffering mental illnesses of short duration with greater potential to be successfully treated with medication or other treatment. (See, e.g., People v. Buffington, supra, 74 Cal.App.4th at p. 1163 [determining that SVP's and MDO's are not similarly situated for purposes of equal protection based upon differing treatment requirements].)
Even if we were to assume that SVP and MDO groups are similarly situated, their disparate treatment furthers a compelling state interest. SVP's receive an indeterminate term of civil commitment because they are less likely to be cured and more likely to reoffend than other civilly committed MDO's. The law deems SVP's more dangerous than persons who are committed under other civil commitment schemes. "The problem targeted by [the SVPA] is acute, and the state interests--protection of the public and mental health treatment--are compelling." (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1153, fn. 20.) The purpose of the revised SVPA is to protect the civil rights of SVP's and at the same time, protect society and the system from unnecessary or frivolous jury trials when there exists no competent evidence to suggest a change in the SVP. (Bourquez v. Superior Court, supra, 156 Cal.App.4th 1275, 1287.) The particular dangers that SVP's present and their limited success in treatment justify the state's treating them differently from other civilly committed persons, such as MDO's. We conclude that the disparate treatment does not offend federal or state constitutional guarantees of equal protection of the law.
Appellant further claims that the revised SVPA violates ex post facto rules. As we have already stated, a commitment under the SVPA is civil in nature and legally does not amount to punishment. (People v. Vasquez (2001) 25 Cal.4th 1225, 1231-1232; see also Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1179 [SVPA does not violate constitutional proscription against ex post facto laws because SVPA does not impose punishment or implicate ex post facto concerns].)
The above-cited cases interpret the SVPA prior to its amendment calling for an indefinite term. Appellant argues that the indefinite term makes the current version of the SVPA particularly punitive. The indefinite term of commitment does not itself convert a civil commitment under the SVPA to a punitive confinement. Ex post facto rules are constitutional guarantees applicable only to criminal cases--not to civil commitments under the SVPA.
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.