Opinion
D058977 Super. Ct. No. J212787
08-18-2011
In re S.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Appellant, v. S.H., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.
California's juvenile Extended Detention Act (EDA) provides for civil commitment of juvenile offenders in the custody of the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (CDCR/DJJ or DJJ), for a term of two years. (Welf. & Inst. Code, §§ 1800 et seq.; see § 736.) To extend a ward's detention beyond the date juvenile jurisdiction would normally expire, there must be proof beyond a reasonable doubt "the person [is] physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality which causes the person to have serious difficulty controlling his or her dangerous behavior." (§ 1801.5.)
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Here, after a jury found that S.H. came within the definition of section 1801.5 and returned a verdict of recommitment, the trial court granted the defense motion for a new trial on the ground the evidence was insufficient to support the verdict. (Pen. Code, § 1181, subd. (6).) We conclude the court did not abuse its discretion when it granted the motion for a new trial, and affirm.
FACTS
In March 2006 four-year-old T.S. told his daycare provider his half-brother S.H., then 17 years old, "sucked [his] pee" and touched his private parts. T.S. said their sister, V.S., "sucked [S.H.'s] pee pee a lot." V.S., then six years old, described acts of sexual abuse by S.H., including oral and anal sex, masturbation and ejaculation. She said the acts occurred when she was four, five and six years old.
At the start of the child welfare investigation, S.H.'s mother made immediate arrangements for S.H. to live with his grandfather in another state. In July 2006 the matter was referred to the juvenile division of the district attorney's office for proceedings under section 602. S.H. admitted the offenses to the juvenile probation officer. The juvenile probation officer said S.H. was remorseful and recommended probation.
In October 2006, pursuant to a plea bargain, the juvenile court sustained one count of a four-count petition alleging S.H. sexually abused his siblings in violation of Penal Code section 288, subdivision (a). (§ 602.) The court placed S.H. on probation on condition he reside with his grandparents and participate in counseling with a licensed therapist with expertise in treating sexual offenders.
S.H.'s performance on probation was satisfactory until approximately January 2008. In December 2007 S.H.'s grandparents asked him to leave their home. S.H. became homeless. His attendance in sex offender treatment was sporadic. In April 2008 S.H. returned to San Diego and lived on the streets. In August the juvenile court committed S.H. to a two-year term with the DJJ, and ordered the DJJ to provide him with transitional skills training, vocational training, substance abuse treatment and sex offender counseling.
In April 2010, approximately one week before S.H. was scheduled to be released on juvenile parole, he disclosed in therapy that he dreamt he was having sex at a party with a girl who was about the same age as his sister when he molested her. S.H. said, "I'm afraid I won't be able to control my body and I'll reoffend." Because of S.H.'s statement, his treating psychologist, Kelli Colbert, Ph.D., referred S.H. for an evaluation to determine whether he met the criteria for an extended commitment under section 1800 et seq. (§ 1800 evaluation).
Regina Uliana, Ph.D., a clinical psychologist at CDCR/DJJ, conducted S.H.'s section 1800 evaluation. Dr. Uliana concluded that S.H. met the criteria for a diagnosis of pedophilia, nonexclusive type, mood disorder, cannabis abuse and attachment deficit hyperactivity disorder, by history. On May 20, 2010, the district attorney's office filed a petition to extend S.H.'s commitment for two years.
The seven-day trial began on December 9 and concluded on December 21, 2010. Dr. Colbert and Dr. Uliana testified as experts for the prosecution. Dr. Colbert diagnosed S.H.'s mental health condition as major depressive disorder. Based on available information, Dr. Colbert was not able to make a clinical diagnosis of pedophilia.
The prosecution also called three lay witnesses to testify about S.H.'s statements concerning his dream, his remarks that he was concerned about reoffending and his admission of prior drug use, primarily marijuana.
Dr. Colbert testified individuals that completed treatment were less likely to engage in problematic behaviors. She acknowledged that S.H. did not present as a behavior problem, and was usually quiet and cooperative. There was no evidence he had any memory impairment or delusional thinking. However, S.H. did not complete treatment and did not have effective coping skills. His inability to cope with his depression and anger, coupled with cannabis abuse, created a higher risk of reoffending. Dr. Colbert could not quantify that risk on a level from one to 10.
Dr. Uliana had attended a CDCR/DJJ training for section 1800 evaluations. She conducted four section 1800 evaluations in the last 10 years. Dr. Uliana explained that section 1800 required the person to "have a mental disorder, that . . . the mental disorder prevents them from controlling their behavior and likelihood of then making them dangerous to the public." Based on her evaluation, Dr. Uliana believed that S.H. met the criteria for an extended commitment under section 1800.
Dr. Uliana said she diagnosed S.H. with pedophilia, nonexclusive type. She believed that S.H., if released, posed a substantial danger of physical harm to the public because he was a pedophile. He repeatedly committed sexually deviant behaviors against his siblings, and he did not recognize the seriousness of his behavior or have insights into the reasons for his behavior. There was a high probability S.H. would reoffend because he committed sexually deviant behaviors in the past and he had not gained sufficient understanding to interrupt his pattern of abuse. Dr. Uliana declined to quantify the risk that S.H. would reoffend, stating generally that past behavior, if not addressed through treatment, had a higher probability of repetition.
Brian Abbott, Ph.D., a clinical psychologist specializing in forensic assessments, testified for the defense. Dr. Abbott explained a forensic assessment is a process in which a psychologist or evaluator addresses criminal or civil legal issues using principles of psychology. Dr. Abbott had been evaluating and treating sex offenders for 32 years and conducted from 400 to 500 forensic evaluations. He published a variety of studies and scholarly articles on juvenile sex offenders and recidivism.
After testing and interviewing S.H., Dr. Abbott diagnosed S.H.'s mental condition as major depression, recurrent, in partial remission, with features of anxiety. Dr. Abbott considered and rejected a diagnosis of pedophilia. S.H. had an adult heterosexual orientation. During physiological testing, S.H. was aroused by teenage and adult females, and did not have clinically significant arousal to prepubescent children. Dr. Abbott said the weight of the clinical evidence and testing suggested S.H.'s offenses against his siblings were a result of other psychological, developmental and situational circumstances.
Dr. Abbott did not believe S.H. presented as having a serious and well-founded risk for recidivism. There was no scientific basis to the theory that incomplete treatment increased the risk of recidivism. Based on research literature, Dr. Abbott believed that S.H.'s risk for reoffending was quite low. S.H. had lived in the community for more than two years without any reports or confirmations of sexually abusive behavior. There was no evidence S.H.'s current depressive condition was causing him serious difficulty in controlling sexual acting out.
The trial court instructed the jury that the People must prove beyond a reasonable doubt (1) S.H. had a mental or physical deficiency, disorder or abnormality; (2) the disorder causes serious difficulty in controlling his dangerous behavior; and (3) S.H. would be physically dangerous to the public if released from custody. The jury returned a verdict of recommitment.
Section 1801.5 states the trier of fact must answer the question: "Is the person physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality which causes the person to have serious difficulty controlling his or her dangerous behavior?"
The defense filed a motion for a new trial on the ground the verdict was contrary to the evidence. (Pen. Code, § 1181, subd. (6).) The hearing on the motion was held on December 29, 2010. The trial court found the defense expert more credible than the prosecution experts, who were not forensic psychologists. The trial court determined the evidence was insufficient to show that S.H.'s mental disorder, whether pedophilia or major depressive disorder, was causing him serious difficulty in controlling his dangerous behavior. The court granted the motion for new trial.
DISCUSSION
The People contend the trial court erred when it granted the motion for a new trial. They contend the trial court "overlooked the extensive evidence that supported the jury's verdict." The People argue there is no evidence to support the trial court's ruling and on appeal set forth facts in support of the jury verdict. They maintain the trial court erred when it based its ruling on the prosecution experts' inability to quantify the risk S.H. would present if released from custody. Citing a provision of the Sexually Violent Predators Act (SVPA), section 6600 et seq., they further assert the defense expert's opinion was unreliable because he relied on the absence of any recent overt acts by S.H. in forming his opinion.
A
Legal Framework
To sustain a true finding on a section 1800 petition, there must be proof beyond a reasonable doubt the person has a mental, physical or psychological disorder that makes him or her physically dangerous to the public and causes serious difficulty in controlling his or her dangerous behavior. (§ 1801.5; In re Brian J. (2007) 150 Cal.App.4th 97, 115.) A person alleged to be physically dangerous within the meaning of section 1801.5 has the right to a jury trial, and is entitled to all rights guaranteed under the federal and state Constitutions in criminal proceedings. (§ 1801.5.)
On a motion for a new trial, the court may grant a new trial when the verdict or finding is contrary to law or evidence. (Pen. Code, § 1181, subd. (6).) "The court extends no evidentiary deference in ruling on a section 1181[, subdivision] (6) motion for new trial. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' " (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) If the court is not convinced the charges have been proven beyond a reasonable doubt, the court may rule the jury's verdict is contrary to the evidence and grant the motion for a new trial. (Ibid.)
The trial court has broad discretion when ruling on a motion for a new trial. The reviewing court will not disturb the trial court's ruling " 'absent a manifest and unmistakable abuse of that discretion.' " (People v. Lewis (2001) 26 Cal.4th 334, 364, quoting People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.) We conclude the trial court did not abuse its discretion when it granted the motion for a new trial.
B
The Trial Court's Determination of Credibility is Conclusive on Appeal
This case concerns the trial court's power to judge the credibility of witnesses and to resolve conflicts in the testimony. " 'It is not a proper appellate function to reassess the credibility of the witnesses.' " (People v. Friend (2009) 47 Cal.4th 1, 41, quoting People v. Mayfield (1997) 13 Cal.4th 668, 736.) "A trier of fact may accept such witnesses as he wishes and reject others." (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 787.) To the extent the trial court's findings rest on an evaluation of credibility, the findings should be regarded as conclusive on appeal. (Estate of Fries (1965) 238 Cal.App.2d 558, 561.) Consequently, the testimony of a witness rejected by the trier of fact cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204-1205; see People v. Barnes (1986) 42 Cal.3d 284, 306 [to warrant rejection of statements by a witness whose testimony has been credited by the trial of fact, there must exist either a physical impossibility the statements are true, or their falsity must be apparent without resorting to inferences or deductions].)
Here, in its capacity as the "13th juror," the trial court determined Dr. Abbott was more credible than Drs. Colbert or Uliana, and believed Dr. Abbott's opinion. "A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
The People do not show there was no reasonable basis for the trial court to discredit the testimony of the prosecution experts. (Beck Development Co. v. Southern Pacific Transportation Co., supra, 44 Cal.App.4th at pp. 1204-1205; People v. Barnes, supra, 42 Cal.3d at p. 306.) Dr. Colbert was not a forensic psychologist and had never conducted a section 1800 evaluation. She testified that a lack of treatment generally increases the risk of recidivism, and concluded that without treatment S.H. was at an increased risk of reoffending. She did not know of any studies showing a correlation between incomplete treatment and risk of dangerousness. Dr. Uliana did not practice forensic psychology. She attended juvenile EDA training early in her career and conducted only four section 1800 evaluations in 10 years. Dr. Uliana did not correctly state the legal requirements of a section 1800 commitment yet concluded S.H. met the criteria for a section 1800 commitment. She acknowledged a diagnosis of pedophilia did not necessarily mean an individual would have serious difficulty controlling his or her dangerous behavior but believed S.H. would have serious difficulty controlling his dangerous behavior because of his pedophilia. When asked the method she used to quantify risk, Dr. Uliana said she did not know if she was quantifying it. Dr. Uliana said there was a good probability someone with a pattern of pedophilic behaviors like S.H. would reoffend without treatment. She was certain there were studies confirming her statement but had no recollection of those studies.
We are not persuaded by the People's argument that the trial court erred when it said the prosecution experts were unable to quantify the risk S.H. would reoffend. In ruling on the motion for a new trial, the trial court stated, "I don't think we have any competent evidence of quantification of risk assessment. I don't think there would be sufficient evidence to support this verdict, whether it was pedophilia or whether it was major depressive diagnosis." The People argue the prosecution is not required to quantify an individual's level of dangerousness. (In re Howard N. (2005) 35 Cal.4th 117, 129 [inability to control dangerous behavior is not demonstrable through mathematical precision].)
Although the prosecution need not apply a mathematical percentage or a " 'more likely than not' " standard to prove the individual's mental disorder causes serious difficulty in controlling his or her behavior, it is required to show beyond a reasonable doubt the individual's disorder causes the person to have serious difficulty controlling his or her dangerous behavior. (In re Lemanuel C. (2007) 41 Cal.4th 33, 43; cf. People v. Superior Court (Ghilotti)(2002) 27 Cal.4th 888, 924.) The Third District Court of Appeal characterized " 'serious difficulty' " as a quantitative requirement, noting the term "serious" is defined as "considerable." (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1507, citing Webster's 3d New Internal Dict. (1971) p. 1451.) It is not enough to show there is some or a moderate risk the individual will not be able to control his or her dangerous behavior.
Here, the trial court's remarks show it did not believe the prosecution presented sufficient evidence to establish beyond a reasonable doubt S.H. would have serious or considerable difficulty in controlling his dangerous behavior if released from custody. Dr. Colbert testified a lack of treatment generally increases the risk of recidivism. She concluded that without treatment S.H. was at increased risk of reoffending. Dr. Uliana testified there was a good probability S.H. would reoffend if released. The record does not show the trial court imposed a "more likely than not" or other mathematical formula on the prosecution's burden to prove the elements of the section 1800 commitment.
Citing a provision of the SVPA, the People contend Dr. Abbott's opinion was not reliable as a matter of law because he considered the absence of any recent overt acts by S.H. in the section 1800 evaluation, contravening section 6600, subdivision (d), of the SVPA, which explicitly states that proof of a recent overt act is not required to show dangerousness. We find the People's argument problematic for several reasons. The defense was not required to show S.H. would be able to control his dangerous behavior to prevail on a motion for a new trial. The trial court granted the motion because it found the prosecution did not prove its case. Even were we to determine that Dr. Abbott's opinion was not reliable as a matter of law, we would not necessarily conclude the trial court abused its discretion.
The People do not show that section 6600, subdivision (d), applies to proceedings brought under section 1800. The SVPA is not statutorily commensurate with the juvenile EDA. (Compare § 1800 et seq. to § 6600 et seq.) Although section 6600, subdivision (d), "does not require proof of a recent overt act while the offender is in custody," the juvenile EDA does not mention "overt acts." (See § 1800 et seq.) When a statute omits a particular provision, the inclusion of such a provision in another statute concerning a related matter indicates an intent that the provision does not apply to the statute from which it was omitted. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1186.)
Even if section 6600, subdivision (d), applied to section 1800 proceedings, it would not make Dr. Abbott's opinion unreliable. A provision that does not require the prosecution to prove a recent overt act does not by its plain terms bar an expert witness from considering the individual's behavior, including the absence of any recent overt acts, when forming an opinion whether the individual has serious difficulty controlling his or her dangerous behavior. (Cf. In re Anthony C., supra, 138 Cal.App.4th at p. 1508 [although the individual's failure to act out while confined may not be relevant to affirmatively establish poor impulse control, it leaves an evidentiary gap whether there was a lack of control]; see also People v. Sumahit (2005) 128 Cal.App.4th 357, 353 [assessment must include consideration of past behavior and other risk factors applicable to case].) Further, section 6600, subdivision (d), refers only to the lack of overt acts "while the offender is in custody." (Ibid.)The record shows Dr. Abbott, in forming his opinion, considered the absence of any overt acts by S.H. during the two-and-a-half years he lived in the community on probation, not while confined. The People do not show the trial court improperly relied on the defense expert's opinion in granting the motion for a new trial.
The testimonies of the prosecution's experts were rejected by the trial court when it independently reviewed the evidence as the " '13th juror.' " (Porter v. Superior Court, supra, 47 Cal.4th at p. 133.) We conclude the trial court did not abuse its considerable discretion when it granted the defense motion for a new trial. (People v. Lewis, supra, 26 Cal.4th at p. 364.)
DISPOSITION
The order is affirmed.
McDONALD, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.