Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 9820424
Sepulveda, J.
Defendant Kevin Shumake appeals from the extension of his commitment as a sexually violent predator (SVP) under former Welfare and Institutions Code section 6604. He contends that there was insufficient evidence to support the trial court’s finding that he suffers from a “diagnosed mental disorder” and that the trial court misapplied the relevant law in granting the petition to extend his commitment. We find there was sufficient evidence to support the trial court’s determination and that no error otherwise occurred and, accordingly, affirm the judgment.
Background
A. Procedural History.
Defendant has previously appealed from orders committing him as an SVP, the most recent of which was decided by this court in People v. Shumake (June 29, 2005, A106560) [nonpub. opn.]). In affirming his recommitment in that case, we summarized defendant’s background which originally led to his commitment under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et. seq.) As we indicated there, defendant is a twice-convicted rapist. (Pen. Code, § 261, subd. (a)(2).) In 1998, shortly before his scheduled release from prison for his second rape conviction (committed in 1990), the People instituted proceedings for a two-year civil commitment as a sexual predator. (Welf. & Inst. Code, §§ 6600, subd. (a)(2), 6604.) A court found the allegations under the SVPA true in December 1999, and committed defendant to Atascadero State Hospital for a two-year term, ending December 2001. We affirmed that judgment. (People v. Shumake (Jan. 30, 2001, A089612) [nonpub. opn.]) Defendant’s commitment was extended an additional two years, until December 2003, upon a jury finding that he remained an SVP. Defendant did not pursue an appeal from that commitment order. The third petition for commitment, which extended appellant’s commitment to December 2005, once again resulted in his recommitment. We affirmed that judgment. (People v. Shumake, supra, A106560.) The present appeal concerns the fourth petition for commitment, which extended defendant’s commitment to December 8, 2007.
B. Defendant’s Prior Behavior.
Defendant has engaged in criminal behavior dating back to his teens. In 1979, at the age of 16, defendant struck a bus driver in the mouth in an argument over a transfer. At age 17, defendant kidnapped and assaulted a teenaged girl with intent to commit sodomy. At about age 20, he was convicted of sexual battery for forcibly raping a prostitute, and served almost a year in county jail. In June 1985, within four months of release from jail for that offense, defendant beat up an 18-year-old woman he was dating for resisting his efforts to force her into prostitution. Defendant beat her in the face with the wooden handle of a knife, and returned a couple of weeks later to pistol-whip her. Defendant’s involvement with this woman is the only “relationship” he has ever had with a woman.
On June 20, 1985, a day after pistol-whipping his girlfriend, defendant forcibly raped a 14-year-old girl. Defendant convinced the girl to accompany him by offering to sell her stolen clothes. When the girl realized that they were walking in circles and became alarmed, defendant grabbed her and dragged her behind a store building saying: “Shut up or I’ll kill you right now.” Defendant demanded her jacket and ring, and she complied. Defendant forced her to orally copulate him, and then raped her. Defendant was convicted of rape, forcible oral copulation, and robbery, and was imprisoned until April 1989. (Pen. Code, §§ 211, 261, subd. (a)(2), 288a, subd. (c)(2).)
About a year after his release, defendant forcibly raped two 18 year old women. On the night of May 18, 1990, defendant confronted the two young women on their walk to the Richmond Bay Area Rapid Transit station. Brandishing a gun and with a stocking over his face, defendant threatened to “blow their brains out” if the women did not go with him to a remote location near the railroad tracks. The women complied. Defendant then raped one of the women, and ordered the other to orally copulate him and then sodomized her with the use of petroleum jelly that he brought with him. After assaulting the women, defendant apologized to them and told them he hated “Black on Black Crime,” and “asked God to forgive him.” Defendant left, saying that he was “going to kill him a Honky.” Defendant was convicted of rape, attempted rape, forcible oral copulation, forcible sodomy, and being a felon in possession of a firearm. (Pen. Code, §§ 261, subd. (a)(2), 286, subd. (c)(2), 288a, subd. (c)(2), 12021, subd. (a)(1).) While in prison on the latest of his offenses, defendant committed 11 rule violations, the last one in 1996 for fighting. Defendant has not exhibited any violent or inappropriate sexual behavior since that time.
Defendant and the victims are African-American.
C. Diagnosis and Risk Assessment.
At the bench trial on the current petition to recommit defendant as an SVP, psychologist Christopher North, Ph.D., testified as an expert for the People. He reviewed defendant’s criminal and medical history, and interviewed defendant in August 2005. In addition to defendant’s criminal history detailed above, North recounted defendant’s history in treatment since his 2000 commitment as an SVP. Defendant had not been participating in sex offender treatment in the hospital and told staff shortly after his arrival that the 1990 offenses involved consensual sex (he has since abandoned that claim). Defendant has consistently maintained that his sexually deviant behavior was due to his abuse of drugs, which began at age nine or ten. Because he behaved appropriately while in the hospital, defendant believed he could control his behavior without sex offender therapy. If released into the community, defendant planned to live in Seattle with his cousin, get a job in a shipyard, and avoid associating with persons who used drugs or alcohol.
Since his last recommitment, defendant’s behavior at the hospital had generally been good, although there had been a few negative reports. In September 2004, defendant reacted quite angrily toward a staff member who had counseled him about using the latrine to wash his clothes; he continued to harass her despite repeated warnings. Defendant’s pass level was reduced as a result. In November of 2004, defendant had another confrontation with staff, which again resulted in a reduction of his pass level. In February 2005, defendant refused to clear the hallway during an emergency and in May of 2005 he stormed out of a treatment team meeting. He angrily confronted the psychologist after being encouraged to attend sex offender treatment, and hit his hand against a wall, breaking his thumb.
Dr. North diagnosed defendant as suffering from paraphilia not otherwise specified—sex with non-consenting partners, polysubstance dependence, and antisocial personality disorder. Paraphilia not otherwise specified is defined as recurrent intense sexually arousing fantasies, urges, or behavior, involving (in this case) non-consenting persons, which persists for at least six months and leads to distress or impairment in functioning (or which is acted out with a non-consenting partner). Dr. North’s diagnosis was based on many factors, including the number of sexual offenses that defendant committed, the fact that his criminal history consisted primarily of sex offenses, the fact that he came prepared to carry out a planned attack (bringing a pantyhose mask, petroleum jelly, and a gun), and his maintaining sexual arousal despite the victims’ resistance and distress. Defendant’s ability to control his sexual behavior while in the custodial setting of the hospital did not mean that he was not currently suffering from paraphilia, as he could still be suffering from fantasies and urges. Additionally, paraphilia is a chronic condition that may evidence itself in response to psychosocial stressors, when other mental disorders are present, or with an increased opportunity to act upon urges. The more often a patient has acted out these paraphilic urges or fantasies, the more engrained the condition becomes and the more chronic it is. Despite the fact that defendant’s antisocial behavior has decreased some with age (he was then 42) and there had been no major incidents at the state hospital, Dr. North believed that defendant was still likely to reoffend in a sexually violent predatory manner if released.
Defendant still lacked insight into his sex offenses, beyond his recognition that substance abuse played a part in their commission; he totally denied having any sexual pathology. The Static-99, an actuarial tool for predicting sexual recidivism, was administered to defendant and resulted in a score of eight (which put him in the high risk category, corresponding to a 52 percent likelihood of reoffense within 15 years). Other factors supporting Dr. North’s belief that defendant was likely to reoffend included his high degree of sexual deviance (including his commission of sexual offenses as a juvenile), his general criminality (reflected in his suffering from a conduct disorder), and his multiple violations of parole. Additional factors supporting this opinion included defendant’s intimacy deficits (demonstrated by his having never having married, his assaultive relationship with a prior girlfriend, and inappropriate involvement with female staff at the state hospital), his lack of sexual self-regulation, his failure to participate in treatment, his failure to recognize that he suffered from a sexual problem, his poor performance under community supervision in the past, and the fact that he suffered from an antisocial personality disorder. Dr. North was not optimistic about defendant’s ability to succeed under voluntary treatment in the community since defendant did not think that he had a sexual disorder or that he needed treatment for one.
Psychologist Nancy Rueschenberg, Ph.D., also testified as an expert for the People. She similarly opined that defendant suffered from paraphilia, not otherwise specified, with non-consenting female victims, an antisocial personality disorder, and polysubstance dependence (in remission in the institution). She also felt that defendant’s failure to act out in the state hospital did not indicate that he no longer suffered from paraphilia, as it was a chronic disorder, and that the ability of one with this disorder to control his behavior would change given the amount of stress the individual was under, whether he engaged in drug use, and with the opportunity to engage in paraphilic behavior. She was of the opinion that defendant would engage in sexually violent predatory behavior if released; he received a score of eight on the Static-99 and a score of 18 on the MnSOST-R (another actuarial tool), putting him in the high risk category. Further, defendant qualified as a psychopath under the Hare psychopathy checklist, and other factors such as his general childhood maladjustment, his commission of sex offenses as a juvenile and meeting the criteria for conduct disorder as a child, his violation of the terms of conditional release in the past, and his insignificant work history, all supported the determination that he was a risk if released. Defendant’s intimacy deficits, deviant sexual interests, lack of sexual self-regulation, lack of impulse control, tolerant attitude toward sexual assault, poor cooperation with supervision while released in the community, drug use, poor cognitive problem-solving ability, interest in engaging in conduct for the thrill of it, lack of a clear plan for avoiding the commission of sexual offenses in the future, antisocial personality disorder, and lack of any of the three protective factors that tend to diminish risk also contributed to his risk of reoffending in a sexually violent predatory manner if released. Dr. Rueschenberg noted that past behavior is often the best predictor of future behavior, and felt that defendant was not amenable to voluntary treatment in the community due to a general lack of, and expense associated with, appropriate programs in the community, defendant’s failure to see himself as someone needing such treatment, and his failure to participate in such treatment even in the controlled environment of the state hospital.
His childhood maladjustment was reflected in his being abandoned by his mother at birth, his poor school performance and placement at boy’s camp as a teenager.
These factors include being offense-free in the community for more than five years, having less than 15 years of life left, and completing sex offender treatment.
While not all rapists suffer from paraphilia, defendant exhibited many of the factors which would indicate that his behavior was driven by this disorder, including his numerous prior sexually violent offenses committed close in time to one another, the fact that he continued to reoffend despite being sanctioned for his conduct (in one case while he awaited sentencing in another case), his use of a “rape kit” (including a jar of petroleum jelly that he gave to one victim to use as a lubricant, his possession of a gun, gloves and ski mask), and his commission of such offenses when the chance of getting caught was great. Defendant also had a girlfriend at the time, with whom he was having consensual sex, and he appeared to target victims close to his own age, suggesting that he was specifically selecting victims (and not just committing opportunistic offenses). Although Dr. Reuschenberg based her diagnoses and scoring primarily on defendant’s behavior prior to 1996, she also testified that hospital reports indicated defendant only had a superficial understanding of why he committed his prior offenses and demonstrated a continuing lack of empathy with his victims. He also continued to exhibit attitudes of tolerance toward sexual offending and anger at women.
Defendant was called by the prosecution as an adverse witness and testified that he did not participate in sex offender treatment at the state hospital because he did not have a mental disorder; he was also concerned that there was no trust in group therapy and that hardly anyone was ever released from treatment. His plan upon release was to live with his cousin in Seattle, but he had last spoken with her over a year earlier. He would use money inherited from his grandmother to enroll in therapy. He felt sorry about what he had done to his victims and realized it was wrong. He also claimed that he did not fantasize about rape, believed that he could have a healthy relationship with a woman, and had been clean and sober for 16 years.
Defendant did indicate that he would be willing to participate in individual therapy.
Defense experts included psychiatrist Alan Abrams, Ph.D., who testified that defendant was an out-of-control youth and young adult due to an abusive and neglected childhood, drug use, and antisocial influences. Since 1991 or 1992, however, defendant had shown substantial maturation and did not now suffer from paraphilia or substance dependency, nor did he represent a danger to the community if released. Nothing in defendant’s record showed a continuing preoccupation with deviant sexual interest. The “not-otherwise specified” category of paraphilia is controversial, as it allows clinicians to rely upon subjective concepts. Dr. Abrams indicated that the maintenance of arousal during rape was not evidence of paraphilia, as the perpetrator’s arousal was not necessarily in response to the victim’s suffering. As far as defendant’s antisocial personality disorder, that decreases significantly beginning at age 40 (and decreases at a rate of 10 percent with each decade), and defendant had not exhibited antisocial behavior for the last 10 years. Being around other antisocial individuals, such as in a custodial setting, should have reinforced his antisocial behavior. Defendant required continuing substance abuse treatment, but not sex offender treatment.
Psychologist Brian Abbott, Ph.D., also testified as a defense expert and similarly opined that defendant did not suffer from paraphilia or antisocial personality disorder. He felt that defendant’s sexual assaults in the past were fueled by his anger toward women, not by a sexual inclination. His behavior in committing those assaults was opportunistic rather than reflecting a preference for forcible sex. There was no evidence that defendant tried to control, dominate, or humiliate female staff or that he viewed pornography at ASH, the kind of continuing paraphilic behavior that Dr. Abbott would expect from someone who truly suffered from that disorder. Additionally, Abbott testified that the majority of defendant’s sexual relationships were consensual and that defendant denied fantasizing about forcible sex; there was no evidence that defendant possessed pornographic materials while confined in the state hospital. Tests administered by Dr. Abbott, in conjunction with historical information that he reviewed and his interview with defendant, showed no significant personality problems or psychological disturbances. Abbott found that defendant did not show any clinically significant sexual interest in sadistic sexual behavior when Abbot administered the MCMI III test and the Abel Assessment for Sexual Interest. Dr. Abbott concluded that defendant was not likely to commit sexually violent predatory acts if released into the community, in light of his age and lack of recent antisocial behavior.
Defendant did respond positively to a series of questions asking whether he sometimes thought about forcing adult females to have sex, but he later told Abbott that he was thinking about his prior offenses when he responded to those questions. Defendant indicated that prior to some of those offenses he had the urge to engage in forced sex and acted upon that impulse.
The court also considered the testimony of psychiatrist Jay Seastrunk, M.D., who testified in a previous hearing. Dr. Seastrunk, while conceding that defendant’s past behavior satisfied the criteria for a diagnosis of paraphilia, indicated that a diagnosis cannot accurately predict future conduct.
D. Findings by the trial Court.
A bench trial was conducted on the People’s petition to commit defendant and based upon this evidence, the court found the allegations of the petition true and ordered defendant committed to the state hospital for an additional two years, until December 8, 2007. This timely appeal followed.
Discussion
Defendant contends that there was insufficient evidence that his volition was impaired as the result of a mental disorder and that his commitment therefore deprived him of due process under the Fourteenth Amendment. He additionally argues that the trial court improperly applied the law regarding the application of the SVPA, in that it did not require proof that a mental condition caused defendant to have “serious” difficulty controlling his behavior, and that the court did not require proof that there was “a serious and well-founded risk” that defendant would reoffend. None of these contentions has merit.
A. Sufficiency of the Evidence.
In trial on the petition to commit defendant as an SVP, the prosecution had the burden of proving that defendant had been convicted of two distinct sexually violent offenses, that he had a diagnosed mental disorder which rendered him a danger to the health and safety of others, that his disorder made it likely he would reoffend sexually if released, and that his sexual offenses would be predatory. (People v. Roberge (2003) 29 Cal.4th 979, 984-985.) We of course evaluate the entire record in the light most favorable to the judgment and determine if it is supported by substantial evidence. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) We do not reevaluate the credibility of the witnesses, nor do we reweigh the strengths of their expert opinion; we must draw all reasonable inferences, and resolve all conflicts in the evidence, in favor of the judgment. (People v. Sumahit (2005) 128 Cal.App.4th 347, 352.)
Applying this standard of review in the present case, it is abundantly clear that the trial court’s determination that defendant qualified as an SVP was supported by sufficient evidence. The prosecution had the burden of proving that defendant had been convicted of two distinct sexually violent offenses, that he had a diagnosed mental disorder which rendered him a danger to the health and safety of others, that his mental disorder made it likely that he would reoffend sexually if released, and that his sexual offenses would be predatory. (People v. Roberge, supra, 29 Cal.4th at p. 985.) That defendant had suffered at least two distinct sexually violent offenses is without question; he does not contend otherwise. Instead he argues that the prosecution failed to prove that he currently suffered from a sexual mental disorder, or “that he was volitionally impaired because of a mental disorder.” Essentially, he argues that the order of recommitment was not based upon his suffering currently from a mental disorder, but rather upon his prior commission of sex offenses and prior underlying paraphilia. Although each of the prosecution’s expert witnesses agreed that defendant met the required criteria, defendant contends that their testimony should be discounted.
Defendant argues that his diagnosis had to “truly be ‘current’ in the sense that it is manifested by current symptoms or observations,” and that no such objective symptoms or observations were demonstrated by the evidence here. Defendant first contends that the prosecution experts based their diagnoses solely on his prior convictions, and not on anything else. Thus, the argument goes, there was “no evidence of present fantasies, or urges or misconduct with respect to minors or non-consenting partners” and thus “no evidence that … [defendant’s] diagnosis was current.” While a prior conviction of an enumerated sex offense “shall not be the sole basis for the determination” that the individual is an SVP, the SVPA specifically recognizes that prior convictions of enumerated offenses “shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator,” and there is no restriction on the use of a person’s prior conduct by a mental health expert in diagnosing a person with a requisite mental disorder. (Welf. & Inst. Code, § 6600, subd. (a)(3).) As testified to by the prosecution experts, who agreed that defendant suffered from the mental disorder of paraphilia, that diagnosis may be based upon an individual’s past conduct. While the diagnosis of paraphilia also could be based upon a person’s fantasies or masturbatory conduct, neither is a sine qua non of the diagnosis. Additionally, the prosecution experts diagnosed defendant with antisocial personality disorder.
The prosecution experts did not rely solely upon defendant’s prior sexual offenses, or the paraphilia underlying them, in their determination that he qualified as an SVP. They also relied upon the manner in which he committed the crimes (including his sexual deviance, his employment of a “rape kit,” his targeting of women near his own age demonstrating that his crimes were not merely opportunistic, and his ability to maintain arousal even in the face of his victims’ resistance and distress), the frequency and continuous nature of those offenses (despite periods of incarceration), the young age at which he began to sexually assault victims, his failure on parole (poor performance while under community supervision), his failure in treatment programs (poor cooperation with treatment as sex offender), his intimacy deficits, his lack of self-regulation (impulsivity, poor problem-solving skills, lack of constraints of conscience, anger management problems), his failure to recognize that he had a sexual problem and that he needed treatment for it, his raping despite having a willing sexual partner available, his general childhood maladjustment problems, his substance abuse issues, his antisocial personality disorder, his poor work history, his poor cognitive problem-solving abilities, his interest in doing things for a thrill or a rush, his lack of a clear plan to avoid sexual offenses in the future, the lack of any of the three protective factors that tend to diminish risk of reoffending, and test results, as supporting their opinions that defendant had a diagnosed mental disorder which rendered him a danger to the health and safety of others, and that his risk of reoffending in a sexually violent predatory manner rose to the level required for commitment as an SVP. While defendant can point to instances in the record where his own experts disagreed with the prosecution witnesses, that conflict in the evidence was for the trier of fact, not the appellate court, to resolve. The record was replete with evidence that defendant qualified as an SVP; there certainly was sufficient evidence to support the trial court’s determination in that regard.
Defendant relies upon People v. Hubbart (2001) 88 Cal.App.4th 1202 (Hubbart) and People v. Buffington (1999) 74 Cal.App.4th 1149 (Buffington), to support his position that the SVPA requires “recent objective indicia” of a mental disorder and “current psychological symptoms,” which he argues were lacking in the present case. Neither case assists defendant. In Buffington, the court upheld the constitutionality of the SVPA in part by determining that it requires “ ‘recent objective indicia of the defendant’s condition’ ” as well as “ ‘current psychological symptoms.’ ” (Id. at p. 1161.) Those requirements are satisfied, the court explains, by the administrative process for screening and evaluation of SVPs, requiring professional assessments of the diagnoses and risk factors, which must be sufficient to demonstrate the required criteria for SVP commitment beyond a reasonable doubt. (Ibid.) Of course, as defendant concedes, the Buffington court notes that the SVPA does not require a recent overt act to support a finding that a defendant is likely to reoffend. As the Buffington court explained, “The SVPA . . . states that ‘ “[d]anger to the health and safety of others’ does not require proof of a recent overt act while the offender is in custody.’ ” (Ibid.)
Hubbart reaches a similar conclusion. In Hubbart the defendant contended, inter alia, that the SVPA violated equal protection because “it does not require ‘current psychological symptoms, any overt acts suggesting a current mental disorder, or an objective basis for a finding an inmate is likely to re-offend.’ ” (Hubbart, supra, 88 Cal.App.4th at p. 1219.) The court rejected this argument, finding that the established protocol for evaluation by two mental health professionals and their mandated determination 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 . . . .’ [Citation.]” in themselves assure that the defendant suffers from current psychological symptoms that render the defendant likely to reoffend. (Ibid.) As the court explained in People v. Poe (1999) 74 Cal.App.4th 826, 833, the SVPA requires a recent objective basis for the commitment as an SVP “in the form of the determination of two experts, credited by the trier of fact, that ‘a subject presently suffers from a mental disorder which predisposes him to commit further sexually violent predatory crimes. . . .” While a current disorder is thus required, a defendant need not currently be exhibiting symptoms or manifestations of the disorder. To hold otherwise would border on ludicrous, as a defendant in the secure setting of a state hospital frequently will be constrained from acting upon his urges or fantasies and may well not admit them to staff, yet still suffer currently from a disorder such as paraphilia. As the prosecution experts here testified, paraphilia is a chronic mental disorder which tends to manifest itself when the patient is under stress or has the opportunity to act upon his urges.
B. Application of Relevant Law by Trial Court.
The final two arguments raised by defendant are issues that he recognizes have been decided adversely to his position by the California Supreme Court; he indicates that he presents them here solely to “preserve them for further review.” The first of these issues is presented in a somewhat confusing manner, as the heading for the argument reads, “The Court Decided the Case by Requiring Proof That a Mental Condition Causes the Defendant to Have a Serious Difficulty in Controlling His Behavior.” (Italics original.) Yet defendant goes on to argue that the trial court here applied the law set forth in jury instructions determined sufficient in People v. Williams (2003) 31 Cal.4th 757, which held that the use of the statutory language alone (that defendant have a “ “diagnosed disorder that makes the person a danger to the health and safety of others in that is it likely that he or she will engage in sexually violent criminal behavior’ ”) was sufficient to convey the necessity that a defendant have serious difficulty in controlling his behavior. Thus, defendant’s argument goes, the trial court must have restricted itself to the statutory language and failed to find that defendant had the kind of “serious difficulty” controlling his behavior as required by Kansas v. Crane (2002) 534 U.S. 407, 413. The heading for the argument thus appears internally inconsistent with the substance of the argument. That aside, as defendant recognizes, we are bound to follow California Supreme Court authority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In any event, given the evidence presented here, and summarized ante, the record would support a finding that defendant had “serious difficulty” controlling his behavior.
The portion of Crane relied upon by defendant states, “[T]here must be proof of serious difficulty in controlling behavior. And this . . . must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.” (Kansas v. Crane, supra, 534 U.S. at p. 413.)
The last of defendant’s arguments is that the trial court erred by not requiring the prosecution to prove that it was “more probable than not” that he would reoffend, and instead only required that he was likely to commit new offenses as there was “ ‘a serious and well-founded risk’ ” that he would do so. As defendant recognizes, this argument has also been rejected by the California Supreme Court in People v. Roberge, supra, 29 Cal.4th at p. 988 and People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888. Again, these decisions are binding upon us (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), and even if it were not, the evidence presented certainly would support a finding that it was more probable than not that defendant would reoffend.
Disposition
The judgment is affirmed.
We concur: Reardon, Acting P. J., Rivera, J.