Opinion
B202958
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL ROBINSON, Defendant and Appellant.
Susan S. Bauguess, 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, Assistant Attorney General, Mary Sanchez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Appellant Samuel Robinson appeals from a judgment entered after a jury determined he met the criteria for commitment as a sexually violent predator (SVP). (Welf. & Inst. Code, § 6600.)
Appellant was committed to the custody of the Department of Mental Health at the Coalinga State Hospital (Hospital) for two years.
CONTENTIONS
Appellant contends that (1) the evidence was insufficient to support the jurys finding that he was an SVP; (2) the Sexually Violent Predator Act (SVPA) violates the ex post facto clause; and (3) the SVPA violates appellants right to equal protection.
FACTS AND PROCEDURAL HISTORY
In 1976, appellant was convicted of raping at knifepoint a 16-year-old girl, whom he did not know. After the rape he hit her on the head with a piece of wood and kicked her. In 1981, appellant was convicted of raping a 14-year-old neighbor girl in his apartment. He had forced his wife to strip, then bound her. Appellants wife was able to free herself and help the girl escape. In 1985, appellant was convicted of committing a lewd and lascivious act upon a child under 14 years of age by inserting a finger into the vagina of his eight-year-old niece. In 1987, appellant was convicted of assault with great bodily injury with a deadly weapon and attempted robbery, when he grabbed a woman from behind. In 1995, appellant choked a woman until she passed out, struck her in the face several times when she revived, and forced her to perform oral copulation on him, while threatening to kill her if she hurt him. He had never met the woman before.
Dr. Jesus Padilla evaluated appellant under the SVPA in 2002, 2003, 2004, 2006, and 2007 and opined that appellant met the criteria for qualification as an SVP.
Dr. Padilla opined that appellant had a disorder which affected his emotional or volitional capacity in that it predisposed or rendered him likely to commit another offense. He diagnosed appellant with "paraphilia not otherwise specified, sex with non-consenting persons." Appellant was also alcohol and polysubstance dependent and had a personality disorder with antisocial traits. Appellant had an extensive criminal history that began when he was 19 years old, including disturbing the peace, resisting arrest, aggravated assault, carrying a concealed weapon, robbery, escape from prison, battery on a peace officer, and assault with a deadly weapon on a police officer. Appellant continued to engage in sexualized behaviors at the Hospital with the female staff by making sexually suggestive comments, writing sexual stories about them, and posting pornographic pictures on his wall labeled with the names of staff. While in custody, appellant manufactured alcohol, used profane language, and raged against staff.
Dr. Padilla opined that appellant had not acted out in a sexually violent way since 1995 only because there was a great deal of protection for the female staff and he was subject to strict supervision in the Hospital. Appellant was at high risk of reoffending because he had scored very high on a risk assessment test, had never participated in treatment, did not cooperate with supervision in the Hospital or prison, lacked the ability to control himself and avoid negative behavior, was impulsive, and was young and healthy enough to live for 15 more years. Dr. Padilla opined that appellant was a danger to the health and safety of others because it was likely he would engage in violent predatory criminal behavior.
Dr. Dale Arnold separately evaluated appellant in 2003, 2004, 2006, and 2007. Dr. Arnold opined that appellant had a diagnosed mental disorder that affected his emotional or volitional capacity such that it predisposed him to commit sexually violent acts. According to Dr. Arnold, appellant suffered from paraphilia not otherwise specified, schizoaffective disorder, alcohol dependence, polysubstance abuse, and antisocial personality disorder. Dr. Arnold believed appellant suffered from paraphilia because he forced women who were screaming and fighting to have sex, even when he had access to consenting sexual partners. Dr. Arnold based his opinion on appellants behavior in the Hospital where he cursed at staff, threatened staff, propositioned staff members for sex, posted full frontal pornography on his walls, made alcohol, and had to be restrained because of anger issues.
Dr. Arnold opined that appellant was a danger to the health and safety of others and that it was likely he would engage in violent sexual predatory behavior if he were released to the community. Dr. Arnold based his opinion on appellants high score on a risk assessment test, childhood maladjustment, conduct disorder, poor employment history, violation of conditional release, intimacy deficit, lack of concern for others, and failure to obtain treatment. In addition, appellant had a deviant sexual preference, did not comply with supervision, did not cooperate with treatment, was unable to regulate himself, had negative emotions, was impulsive, and made poor decisions. Dr. Arnold diagnosed him with antisocial personality disorder and borderline narcissism, placing him at increased risk of reoffending. Moreover, appellant continued to engage in antisocial behaviors even as he aged, which was unusual because typically advancing age indicates a lower risk of reoffending.
DISCUSSION
I. The evidence was sufficient to support the jurys finding that appellant met the criteria set forth in the SVPA
Appellant contends that because of his current age of 57, the absence of any sexual behavior while confined, and the length of time since his last sexual offense, the evidence was insufficient to support the jurys finding that he was an SVP. We disagree.
The SVPA provides for the involuntary civil commitment of convicted sex offenders following their prison terms if they are found to be an SVP. (§ 6604; People v. Roberge (2003) 29 Cal.4th 979, 982 (Roberge).) An SVP is someone 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 if released. (§ 6600, subd. (a)(1); Roberge, supra, at p. 982.) A currently diagnosed mental disorder includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to the commission of criminal sexual acts in a degree constituting the person to be a menace to the health and safety of others. (§ 6600, subd. (c).) Likely to engage in sexually violent criminal behavior means "if at trial the person 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, at p. 988.)
While the trier of fact must find, based on proof beyond a reasonable doubt, that the person to be involuntarily committed meets the statutory definition of an SVP, we review the entire record in the light most favorable to the judgment to determine where there is substantial evidence to support the jurys finding. (People v. Mercer (1999) 70 Cal.App.4th 463, 466; People v. Johnson (1980) 26 Cal.3d 557, 576-577.)
Here, the two experts gave their opinions based on separate evaluations that appellant was a danger to the health and safety of others and that it was likely he would engage in violent predatory criminal behavior if he were released. The doctors opinions were amply supported by the record of appellants lifelong pattern of engaging in violent, sexually-oriented offenses against women and were based on appellants prior offenses, his personal history, his failure to participate in treatment, risk assessment scores, behavior under supervision, behavior toward staff, and continuing sexual threats and behavior.
Dr. Padilla opined that appellant was likely to reoffend because he had a past history as a sex offender against women using violence, scored high on a risk assessment test, had past violations of conditional release, was preoccupied with sex, was diagnosed with paraphilia, failed to cooperate while in custody, was unable to exercise self-control, was impulsive, had poor cognitive problem solving skills, refused treatment, and was relatively healthy and young. Moreover, some of his victims were strangers or casual acquaintances. Despite his repeated arrests, incarceration, and punishment, he continued his pattern of behavior, indicating that he was at higher risk of reoffending. Similarly, Dr. Arnold opined it was likely that appellant would engage in violent sexual predatory behavior if released based on his high score on the risk assessment test, criminogenic factors, intimacy deficit, lack of concern for others, failure to obtain treatment, posting of pornography on his walls, and disregard of supervision. Also, he diagnosed appellant with antisocial personality disorder and borderline narcissism. Dr. Arnold noted that appellants behaviors had persisted for 20 years, that his sexual orientation was not in remission, and that appellant continued to engage in antisocial behaviors at the Hospital even though he was advancing in age.
Appellant asks us to reweigh the evidence, which we cannot do. (People v. Proctor (1992) 4 Cal.4th 499, 529.) He complains that neither expert gave any substantive weight to the fact that he had not committed any sexually based offenses since 1995, that none of appellants behavioral problems involve sexual offenses, that appellant did not act out sexually against either staff or peers, that statistically, men of appellants current age of 57 have a lesser risk of engaging in violent predatory behavior, and that failure to obtain treatment should not be deemed a factor for a re-offense. But, there is no requirement under the SVPA that the offender must have committed a recent act of sexual misconduct while in custody. (§ 6600, subds. (d), (f); People v. Buffington (1999) 74 Cal.App.4th 1149, 1161.) In any event, the experts took into account that appellant continued to attempt to make sexual propositions and post pornographic photos while in the Hospital, and that appellant had not committed further sexual offenses since 1995 because he had been incarcerated or in the Hospital under close supervision. Moreover, Dr. Arnold addressed appellants continued sexualized behavior even though he was aging. And, prior dangerous behavior may be considered to establish the likelihood of reoffending. (§ 6600, subd. (a)(3); Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1164 (Hubbart).) Thus the experts properly considered appellants record of sexual violence in forming their opinions.
We conclude that substantial evidence supports the jurys finding that appellant met the criteria set forth in the SVPA.
II. The SVPA does not violate the ex post facto clause
Appellant contends that the SVPA violates the ex post facto clause because it is punitive in its intent and effect. We disagree.
The ex post facto clause of the federal and state Constitutions prohibits those laws which "`retroactively alter the definition of crimes or increase the punishment for criminal acts." (Hubbart, supra, 19 Cal.4th at p. 1170.) Appellant concedes that the United States Supreme Court in Kansas v. Hendricks (1997) 521 U.S. 346, 361-362 upheld the SVPA of Kansas against an ex post facto challenge by concluding that commitment under that act was civil rather than penal in nature. Appellant also acknowledges that in Hubbart, supra, at page 1175, the California Supreme Court upheld Californias SVPA against an ex post facto challenge, relying on Kansas v. Hendricks, supra, 521 U.S. 346.
Appellant contends that "[f]or purposes of further review," the California statute differs from the Kansas statute because the primary purpose of the California statute is not to provide meaningful treatment, but to punish. First, we are bound by the principles of stare decisis to follow precedent established by our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) And, as stated in Hubbart, supra, 19 Cal.4th at page 1171, the Legislature disavowed a punitive purpose behind the SVPA and declared its intent to establish civil commitment proceedings in order to provide treatment to mentally disordered individuals who cannot control their sexually violent criminal behavior. "The Legislature also made clear that, despite their criminal record, persons eligible for commitment and treatment as SVPs are to be viewed `not as criminals, but as sick persons. (§ 6250.) Consistent with these remarks, the SVPA was placed in the Welfare and Institutions Code, surrounded on each side by other schemes concerned with the care and treatment of various mentally ill and disabled groups. (See, e.g., §§ 5000 [LPS Act], 6500 [Mentally Retarded Persons Law].)" (Hubbart, supra, at p. 1171.)
Appellants contention that the treatment provisions of the SVPA are pretextual because there is no requirement that the person "previously has been identified as having a mental disorder and of being in need of treatment," is unpersuasive. Hubbart, supra, 19 Cal.4th at page 1162, found that in order to satisfy due process concerns, the verdict must be based on a currently 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).)
We conclude that the SVPA does not violate the ex post facto clause.
III. The SVPA does not violate the equal protection clause
Appellant contends that the SVPA violates the equal protection clause of the United States Constitution because SVPs are similarly situated to mentally disordered offenders who cannot be held unless, by reason of a severe mental disorder, the individual represents a "substantial danger of physical harm to others." (Pen. Code, § 2972, subd. (c).) We disagree.
The Court in Hubbart also rejected an equal protection challenge to the SVPA where the plaintiff theorized that the commitment of mentally disordered offenders requires a "`present" and "`substantial" threat of harm, but that SVP commitments are not similarly limited. (Hubbart, supra, 19 Cal.4th at pp. 1168-1169.) In concluding that the statute does not violate equal protection laws, our Supreme Court determined that an SVP must be found to be dangerous at the time of commitment in a manner similar to that of mentally disordered offenders who are subject to commitment beyond the duration of their prison terms under Penal Code section 2972 if they are shown to be substantially dangerous to others. (Hubbart, supra, at pp. 1168-1169.)
We conclude that appellants equal protection argument must fail.
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J.
CHAVEZ, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.