Opinion
H042704
04-12-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK STEVEN SIMMONS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. E9909752)
Defendant Mark Steven Simmons challenges the sufficiency of the evidence to support the trial court's July 2015 order extending his involuntary commitment as a mentally disordered offender (Pen. Code, § 2972) for the twelfth time. We conclude substantial evidence supports the order and will affirm.
All undesignated statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
The facts and procedural history are based on the record in this case and on this court's nonpublished opinions in defendant's prior appeals.
Defendant has filed seven prior appeals in this court arising out of his involuntary commitment, all of which are entitled "People v. Simmons." Defendant has asked us to take judicial notice of the record and nonpublished opinions filed in four of those appeals: case Nos. H026672 (opn. filed Aug. 25, 2004), H028499 (opn. filed April 26, 2006), H031491 (opn. filed Jan. 31, 2008), and H041329 (opn. filed Sept. 24, 2015). We have granted his request for judicial notice.
On our own motion, we have also taken judicial notice of the record and nonpublished opinions filed in two other appeals: case Nos. H037403 (opn. filed June 5, 2013) and H039198 (opn. filed Nov. 4, 2013). (Evid. Code, §§ 452, subds. (a), (d), 459.) Defendant's appeal in case No. H040133 was dismissed as abandoned.
I. Procedural History Regarding Original Conviction and Commitment as a Mentally Disordered Offender
On multiple occasions in late 1998 or early 1999, defendant molested a 14-year-old girl (Victim) who lived in the house where he rented a room. Defendant was 39 years old at that time.
In March 1999, defendant pleaded no contest to two counts of lewd and lascivious acts on a 14-year-old child by a person more than 10 years older than the child. (§ 288, subd. (c)(1).) Defendant was placed on probation with a number of conditions, including no contact with Victim.
In November 1999, the court revoked defendant's probation based on allegations that he had contacted Victim twice. According to the most recent psychological report, defendant sent Victim a letter containing a two of hearts from a deck of playing cards, and signed it " 'Big Bad Wolf.' " Shortly thereafter, he boarded a bus, sat directly behind Victim, and said " 'hello.' " Defendant told the psychologist Victim looked scared. In December 1999, after defendant admitted a probation violation, the court sentenced him to two years eight months in prison.
In November 2000, defendant was transferred from Folsom State Prison to Atascadero State Hospital (Atascadero). In August 2001, defendant was discharged from Atascadero to the conditional release program for outpatient treatment. Three weeks later, defendant was re-hospitalized at Napa State Hospital for disobeying conditional release rules and expressing suicidal thoughts. In September 2001, defendant was transferred back to Atascadero.
The Mentally Disordered Offender Act (MDO Act) (§ 2690, et. seq.) " 'provides that individuals convicted of certain enumerated violent offenses caused or aggravated by a severe mental disorder, and who pose a substantial threat of harm to others, may be required to receive mental health treatment' " as a condition of parole (§ 2962), in conjunction with the extension of parole (§ 2966, subd. (c)), or following release from parole (§§ 2970, 2972). (People v. Blackburn (2015) 61 Cal.4th 1113, 1122 (Blackburn).) In August 2003, at the request of the medical director of Atascadero, the District Attorney filed a petition pursuant to the MDO Act to compel defendant's continued involuntary treatment past his November 2003 parole date.
At his first trial, defendant disputed whether his crimes qualified for continued treatment under the MDO Act, since lewd or lascivious conduct with a 14-year-old child is not one of the offenses enumerated in the statute. (§ 2962, subds. (e)(2)(A)-(O).) However, defendant's crimes qualified as treatable offenses if they involved either "force or violence, or caused serious bodily injury" or an express or implied threat "of force or violence likely to produce substantial physical harm" (§ 2962, subd. (e)(2)(P), (Q)). The trial court found defendant's offenses qualified him for continued treatment. A jury then found that defendant "represents a substantial danger of physical harm to others" under section 2962 "by reason of" "a severe mental disorder," pedophilia, "that is not in remission or cannot be kept in remission without treatment." The trial court ordered further treatment until November 4, 2004.
In his first appeal, defendant challenged the sufficiency of the evidence to support the trial court's conclusion that his crimes qualified him for continued involuntary treatment. In People v. Simmons (Aug. 25, 2004, H026672 [nonpub.]), this court held there was insufficient evidence to support a finding that defendant's crimes qualified as predicate offenses under section 2962 and remanded for further proceedings.
On remand, the trial court received additional evidence, including the testimony of Victim, and found that defendant's offenses were qualifying offenses under section 2962, subdivision (e)(2). The trial court ordered defendant committed to the State Hospital for one year. In defendant's second appeal (People v. Simmons (April 26, 2006, H028499 [nonpub.]), this court concluded that substantial evidence supported the court's finding and affirmed the order.
II. The Underlying Crimes
Victim testified at the second trial on the petition to continue defendant's involuntary treatment. She was 20 years old at that time.
Victim testified that her mother took defendant in as a boarder about the time Victim started high school. Initially, defendant only talked to Victim, saying he wanted to be her first sexual partner. Then one day, when Victim was home from school and her mother was at work, defendant physically molested her. As Victim lay in her bed watching TV, defendant came into her room and lay down under the covers next to her, naked except for his bathrobe. He pressed his body against her back, holding onto her shoulders, until she felt his penis. Victim squirmed and pushed herself away. Defendant stopped for a few minutes and then pulled her closer to him and repeated the conduct. He told her not to tell her mother or he would take her away from her mother. Similar incidents occurred four or five times in Victim's bedroom. Defendant told his probation officer that when Victim pushed him away, he would reassure her to manipulate her.
On another occasion when Victim was sleeping in her mother's bed, she awoke to find defendant next to her, touching her legs and thighs and between her legs. Victim pretended to be asleep. After 5 to 10 minutes, defendant got on the bed and was "more on top of" Victim. He kept touching her. Victim pretended to suddenly awaken and tried to push defendant off her. Victim had to "push a little to get [her] legs out from underneath him." Defendant eventually moved off of her and started talking like nothing had happened. He was in physical contact with her for 30 to 40 minutes. The molestations ended when Victim told her aunt, who told her mother, and they called the police.
III. Subsequent Commitment Orders
Between 2004 and 2014, the court periodically extended defendant's commitment as a mentally disordered offender (sometimes MDO). Defendant appealed the recommitment orders entered in 2007, 2011, 2012, and 2014. In three appeals, he challenged the sufficiency of the evidence to support the order extending his commitment as a mentally disordered offender. In each case, this court affirmed the trial court's order.
IV. 2015 Petition to Extend Defendant's Commitment
In April 2015, the District Attorney filed a petition to extend defendant's commitment for an additional year to November 2, 2016. The evidence attached to the petition included: (1) a report by John McIlnay, Psy.D., Senior Psychologist and Sex Offender Treatment Clinical Coordinator at Napa State Hospital, and (2) an affidavit by the Medical Director at Napa State Hospital.
V. Court Trial on 2015 Petition
The court held a bench trial on the petition on July 13, 2015. The prosecution relied on Dr. McIlnay's written report, which the court admitted without objection. The prosecution did not present any live witnesses. Defendant testified via closed circuit television from Napa State Hospital. At the time of the hearing, he was 56 years old.
A. Dr. McIlnay's Report
Dr. McIlnay diagnosed defendant with four conditions: (1) pedophilic disorder, not in remission; (2) narcissistic personality disorder; (3) major depressive disorder, in full remission; and (4) alcohol use disorder, in sustained remission in a controlled environment.
Dr. McIlnay reported that the diagnostic criteria for pedophilia requires the person to experience " 'recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger)' " over a period of at least six months. The person must have " 'acted on these sexual urges, or the sexual urges or fantasies caused marked distress or interpersonal difficulty.' " The person must have been 16 years old or older and at least five years older than the victim.
Dr. McIlnay reported, as have previous examiners, that defendant acted on sexual urges toward prepubescent children on four occasions prior to molesting Victim. When defendant "was 15 or 16 years old, he had multiple sexual contacts, including sexual intercourse, with his 10-year-old sister." Around age 21, defendant digitally penetrated his best friend's four-year-old daughter. At age 21, defendant digitally penetrated a 13-year-old girl while visiting her in the hospital. At age 34, defendant molested the eight-year-old daughter of another friend. Dr. McIlnay opined this "pattern of behavior is sufficient for a diagnosis of pedophilic disorder."
The District Attorney's 2014 petition to extend defendant's involuntary commitment relied on a report by William Cirimele, Psy.D., a staff psychologist at Napa State Hospital. Dr. Cirimele's report, which was dated March 12, 2014, contained additional information regarding defendant's prior sexual conduct with minors.
As for the assault on the fouryearold when he was around age 21, defendant told Dr. Cirimele it occurred when he was in the Army and on alert for possible deployment to Iran during the Iran Hostage Crisis. Defendant was thinking about the prospect of having to kill someone and feared he was not evil enough to be a good soldier, so he decided to do " 'the most evil thing [he] could do' " short of killing someone, which was to "deflower a virgin" and "sacrifice an innocent." He said he planned the assault carefully while he was sober, but had to get drunk to carry out his plan. Defendant said Satan had pointed out his victim—the fouryearold daughter of his best friend—to him by having her play with a snake. He said he victimized the 14yearold in this case to make amends for his evil act with the fouryearold.
As for the assault on the eightyearold, defendant told Dr. Cirimele that while the girl was laying on top of him, he put his hand under her dress and touched her pubic area over her panties. Defendant explained that after he molested the fouryearold, he feared " 'this is who I am" and decided to test himself with the eightyearold. Defendant said he failed the test, learned that alcohol was not the only factor that led to the assault on the fouryearold, and realized he has " 'a bug . . . a character defect . . . a screw loose.' "
In addition to these acts, at age 39, defendant molested the 14-year-old victim in this case. Although Victim does not meet the diagnostic criteria of a child 13 years or younger, the age criteria is a general guideline. Moreover, Dr. McIlnay did not rely on defendant's conduct with Victim to make the diagnosis.
Dr. McIlnay also noted that defendant "was assessed to have sexual interest in both prepubescent and pubescent females and males in a 2001 penile plethysmography (ppg)." When Dr. McIlnay interviewed defendant in March 2015, defendant "was highly evasive when asked repeatedly about his sexual interest in children. He acknowledged sexual interest in girls ages 13 and older, but said he does not have sexual interest in girls under age 11 or boys of any age." He also stated, " 'I'm a bad daddy. I can't have kids. . . . It scares me.' "
According to Dr. Cirimele's March 2014 report, the ppg was done in August 2002.
As for defendant's narcissistic personality disorder, Dr. McIlnay reported that defendant displays "a pervasive pattern of beliefs and behavior" that include "having a grandiose sense of self-importance, preoccupation with fantasies of ideal love and success, a need for admiration, and a sense of entitlement." Defendant has a history of exploitive behavior and he lacks empathy for others.
Dr. McIlnay also reported on defendant's conduct and treatment during the prior year, as well as risk assessment testing. We shall describe those aspects of his report in detail in the Discussion portion of this opinion. Dr. McIlnay concluded that defendant's "pedophilic disorder is not in remission as evidenced by signs and symptoms of [his] severe mental disorder not controlled by either medications or psychosocial support" and recommended continued involuntary treatment for one year.
B. Defendant's Testimony and Defense Counsel's Statements
Defense counsel told the court defendant had been in a sex offender treatment program for 15 years: 3 years at Atascadero and 12 years at Napa State Hospital. At the time of the hearing, the only medication defendant took for his mental disorder was Lupron, a testosterone suppressant, "to deal with hypersexuality, sexuality aggression, and other testosterone-related behavior." Defendant had been on Lupron since June 2015 (four to six weeks). Thus, he started Lupron after Dr. McIlnay completed his report. According to defense counsel, defendant's doctor had said "it takes about three cycles to start seeing the effects." (Counsel did not clarify what she meant by "cycles.") Defendant hoped Lupron would help with some issues Dr. McIlnay had identified and make him "deal[] better" in his groups and be more effective in sex offender therapy.
Lupron is administered by injection in one-, three-, four-, or six-month intervals. (https://medlineplus.gov/druginfo/meds/a685040.html [as of April 11, 2017].) The record does not indicate the frequency of defendant's Lupron injections. Assuming the shortest interval between injections, defendant would have at the most received two injections by the time of the hearing.
Defendant's wellness recovery action plan centers on his participation in Alcoholics Anonymous. His 12-Step sponsor is the manager of the Alano Club in San José. Defendant would like to volunteer at the club and share his message of recovery; he believes he can stay sober by working with other alcoholics. Defendant wants to help "people in an appropriate way" instead of the way he tried to help Victim. Defendant said Victim "needed some kind of a message. She got it. Unfortunately, it had repercussions, too. [¶] But I hope she survives the disease, in spite of my . . . bumbling."
Among other things, an Alano Club is (1) a meeting place for recovery groups; and (2) a facility that provides social and recreational activities for recovering addicts, alcoholics, and their families in a clean and sober environment. (http://alanoclubs.org/ [as of April 11, 2017].)
Defendant wants to help people not drink and drive by buying a Tesla and working as a driver for Uber, the ride-sharing service. He knows there is "venture capital" and "voc rehab" "out there to help [him] get started." Everything he does "focuses around sobriety." (When Dr. McIlnay told defendant Uber does background checks and said it is highly unlikely Uber would hire a sex offender, defendant was not dissuaded and said he would sue Uber for discriminating against sex offenders.)
Defendant has several ideas for a backup plan in case driving a Tesla for Uber does not work out. He could work at the Alano Club full time. In 2001, he got a job at Jiffy Lube "on the spot" from a man he met at the Alano Club. He can work with cars and has experience driving trucks and forklifts; he could work as a route driver for a vending machine company or build things with tools. He said he is a "safe driver" and Victim "was always safe with [him]." Defendant said, "By the grace of God, what happened between me and [Victim] won't happen again with her age group. I still like girls. . . . I'm always nice to them. And I don't mean any harm."
Defendant said he tends to live in the past. Lupron helps him stay in the present and move forward. He asked to be treated with Lupron. But he is not willing to take Lupron once he is released into the community. He plans to take Lupron for six to 12 months in the hospital to break his "thinking habits" and get over "resentments and [] sentiments from the past, so [he] can be in today and move forward." With Lupron, he is trying to erase old "sentimental attachments" and "the inappropriate responses to those memories." As an example, he described a girl he was infatuated with "as a kid," "the girl [he] was going to marry." With the Lupron, he is not trying to fix an attraction to younger girls, just the memory of it. Defendant believes once he is back in the community, his thoughts will have been fixed and he will not need Lupron any more.
Defendant complained that in sex offender therapy "they keep . . . rubbing our noses in stuff we already know about." If released to the community, defendant is willing to attend sex addicts' anonymous meetings at the Alano Club. He went to those meetings when he was on conditional release for three weeks in 2001. If placed on conditional release, he is willing to see a certified therapist for sex offender treatment. His response suggested, however, that he would only go to sex offender therapy if it did not interfere with his job.
Defendant said he is able to recognize some of the triggers that caused him to engage in inappropriate behavior in the past. Defendant is "alone in the world": his parents are deceased, his siblings live out of state, and he maintains no family relationships. Consequently, holidays are difficult for him, as they are for many alcoholics. He started living with victim and her mother during the winter holidays; he had lost his job in a camera store and was "desperate for a place to live." He described Victim as "a very pretty high school cheerleader." Defendant was also a freelance photographer, "looking for a new business." He saw Victim "as a model," a "little business partner." Now, he has "no reason [] to hook up with a 14-year-old girl"; he can "stick with [his] own age group—at least above 18." (Defendant was 56 at the time of the hearing.) He apologized for hurting Victim and said he cares about her.
On cross-examination, defendant admitted sexually penetrating a four-year-old when he was 21 and molesting an eight-year-old when he was 34. Defendant does not believe the results of the 2001 ppg exam, which showed that he was attracted to prepubescent children. The prosecutor asked defendant if he believed he cannot have children because he might molest them. Defendant responded, "Because, if there's the slightest inkling in the back of my mind—I don't want to be a danger to a child—certainly not my own. And that's always been the concern."
The trial court found the allegations of the petition true. It found defendant continues to suffer from a severe mental disorder that is not in remission and represents a substantial danger of physical harm to others and extended defendant's involuntary commitment for one year to November 2, 2016.
DISCUSSION
I. General Principles
"[A] prisoner adjudicated to be a mentally disordered offender (MDO) may be civilly committed during and after parole if certain conditions are met. (See §§ 2962, 2966.) The People, represented by the district attorney, may file a petition for the MDO's continued involuntary treatment for a period of one year. (§§ 2970, 2972, subds. (a)-(c).) Thereafter, the district attorney may petition to extend that commitment in one-year increments. (§ 2972, subd. (e).)" (People v. Allen (2007) 42 Cal.4th 91, 93.) "An MDO commitment is neither penal nor punitive; it has 'the dual purpose of protecting the public while treating severely mentally ill offenders.' " (Blackburn, supra, 61 Cal.4th at p. 1122.)
Section 2972 mandates a one-year extension of an MDO's commitment if three criteria are satisfied. The statute provides: "If the court or jury finds that the patient has a severe mental disorder, that the patient's severe mental disorder is not in remission or cannot be kept in remission without treatment, and that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others, the court shall order the patient recommitted to the facility in which the patient was confined at the time the petition was filed . . . . The commitment shall be for a period of one year from the date of termination of . . . a previous commitment . . . ." (§ 2972, subd. (c).) Thus, a recommitment "requires proof beyond a reasonable doubt that (1) the patient has a severe mental disorder; (2) the disorder 'is not in remission or cannot be kept in remission without treatment'; and (3) by reason of that disorder, the patient represents a substantial danger of physical harm to others." (People v. Burroughs (2005) 131 Cal.App.4th 1401, 1404.) We refer to these three requirements as "criteria" for ease of reference.
"[T]he three criteria that must be satisfied for continued treatment relate, not to the past, but to the defendant's current condition. At an extension proceeding, the questions are: Does the defendant continue to have a severe mental disorder? Is the disorder in remission? Does the defendant continue to represent a substantial danger of physical harm to others? (§ 2972, subd. (c).) A defendant's condition a year earlier is relevant but not dispositive of these questions." (People v. Cobb (2010) 48 Cal.4th 243, 252 (Cobb).) At a recommitment hearing, the issue is whether the defendant's "current condition justifie[s] extension of his commitment." (Ibid.)
II. Standard of Review
"In considering the sufficiency of the evidence to support MDO findings, an appellate court must determine whether, on the whole record, a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding. [Citation.] ' " 'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the [finding] is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. . . .' [Citation.]" ' " (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.)
III. Criteria 1: Sufficiency Of the Evidence That Defendant Has a Severe Mental Disorder
Dr. McIlnay opined that defendant's major depressive disorder and alcohol use disorder are in remission and that his pedophilic disorder and narcissistic personality disorder are not in remission. The primary reason for defendant's continued commitment appears to be his pedophilic disorder.
As he has in previous appeals, defendant challenges the conclusion that he has a severe mental disorder, specifically pedophilic disorder. He argues "the record is devoid of reliable evidence that [defendant] engaged in 'pedophilic' behavior in the past, as neither his current statements regarding teenage girls, nor his underlying offense constitute evidence of pedophilic tendencies." He contends the "self-reported incidents" with young children, "which all took place decades ago, if they took place at all . . . never resulted in any prosecution or police report." He adds that "many of the details lack a basis in reality, thus the evidence cannot be deemed reliable."
Dr. McIlnay's report sets forth the diagnostic criteria for pedophilia from the Diagnostic and Statistical Manual-V (DSM-5). The diagnosis requires: " 'recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger)' " over a period of at least six months. The person must have " 'acted on these sexual urges, or the sexual urges or fantasies caused marked distress or interpersonal difficulty." The person must have been 16 years old or older and at least five years older than the victim. Dr. McIlnay then described facts that support the diagnosis in defendant's case: sexual activity with the four-year-old girl, the eight-year-old girl, defendant's 10-year-old sister, and a 13- year-old girl. This activity occurred when defendant was between the ages of 16 and 34, and in each case, defendant was at least five years older than his victim. Moreover, the attraction and the sexual conduct with young girls under the age of 13 persisted for a period much longer than six months. In addition, defendant admitted the conduct with the 4-year-old and the eight-year-old at the hearing. According to Dr. McIlnay, "[t]his pattern of behavior is sufficient for [the] diagnosis of pedophilic disorder." This was substantial evidence that defendant has had a severe mental disorder.
Moreover, the DSM-5 criteria provides that the victim is "generally" 13 or younger. That defendant's fifth victim—the victim in this case—was 14 years old, does not change the diagnosis.
There was also substantial evidence that defendant continues to have a severe mental disorder, pedophilia. Dr. McIlnay reported that in his March 3, 2015 interview, defendant was "highly evasive when asked repeatedly about his sexual interest in children. [Defendant] acknowledged sexual interest in girls ages 13 and older, but said he does not have sexual interest in girls under age 11 or boys of any age." Thus, in March 2015, defendant told Dr. McIlnay he still had a sexual interest in 13-year-old girls, which fits the diagnostic criteria for pedophilic disorder. At the July 2015 hearing, he said he still likes girls and is afraid that if he has children, he might molest them, stating "I don't want to be a danger to a child—certainly not my own. And that's always been the concern." He added, "there are women that can't have kids" "who could be in a relationship with [him] without kids." Dr. McIlnay opined that defendant's statement during the interview and similar statements he has made "in sex offender treatment indicate that, at a minimum [defendant] has sexual urges or intrusive thoughts or fantasies about children that continue to cause him distress." In light of the diagnostic criteria described in Dr. McIlnay's report, this was substantial evidence that defendant continued to suffer from pedophilic disorder at the time of the recommitment hearing.
IV. Criteria 2: Sufficiency Of the Evidence That Defendant's Mental Disorder Is Not In Remission Or Cannot Be Kept In Remission Without Treatment
Defendant argues there was insufficient evidence to support criteria 2. Under criteria 2, to extend defendant's commitment, the prosecution was required to show beyond a reasonable doubt that defendant's "severe mental disorder is not in remission or cannot be kept in remission without treatment." (§ 2972, subds. (a), (c); italics added.) Since the statute uses the conjunctive term "or," criteria 2 is satisfied if there is substantial evidence that either (1) defendant's severe mental disorder is not in remission; or (2) his severe mental disorder, which has been in remission, "cannot be kept in remission without treatment."
Section 2962 subdivision (a) contains definitions relating to these two options. It defines "remission" as "a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support." (§ 2962, subd. (a)(3).)
The statute also defines the phrase "cannot be kept in remission without treatment." (§ 2962, subd. (a)(3).) Under that definition, the court was required to find that during the year prior to the July 13, 2015 hearing, defendant's condition had been in remission and at that least one of four events listed in the statute had occurred, which demonstrated that his condition could not be kept in remission. The four events include: (1) defendant was physically violent, except in self-defense; or (2) defendant made a serious threat of substantial physical harm upon the person of another that caused the person to reasonably fear for his or her safety or the safety of his or her immediate family; or (3) defendant intentionally caused property damage; or (4) defendant had not voluntarily followed his treatment plan. (Ibid.)
Section 2962, subdivision (a)(3) provides in relevant part: "A person 'cannot be kept in remission without treatment' if during the year prior to the question being before the . . . trial court, he or she has been in remission and he or she has been physically violent, except in self-defense, or he or she has made a serious threat of substantial physical harm upon the person of another so as to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family, or he or she has intentionally caused property damage, or he or she has not voluntarily followed the treatment plan. In determining if a person has voluntarily followed the treatment plan, the standard shall be whether the person has acted as a reasonable person would in following the treatment plan." (Italics added.)
Defendant contends there was insufficient evidence to support a finding that at the time of the hearing he suffered "from a serious mental disorder not in remission." Defendant argues that there was insufficient evidence he (1) "exhibited overt signs or symptoms of the severe mental disorder over the past year or while in custody"; (2) "has been physically violent, caused property damage or made any serious threats of substantial harm against others"; and (3) "has not voluntarily followed the treatment plan." This argument however, conflates the two definitions in section 2962, subdivision (a)(3).
In recommending continued commitment, the State Hospital relied on the first statutory ground (that defendant's condition was not in remission) and not the second ground (that his condition, which had been in remission, cannot be kept in remission). The trial court also based its order on the first ground. As we shall explain, there was substantial evidence that defendant's "severe mental disorder [was] not in remission." (§ 2972, subds. (c).) As we have noted, the statutory scheme defines "remission" as "a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support." (§ 2962, subd. (a)(3).)
A. Psychotropic Medication
There was substantial evidence that the signs and symptoms of defendant's mental disorders were not controlled by medication. In April 2015, Dr. McIlnay reported that defendant "does not take routine medications for his psychiatric condition and none are indicated. [Defendant] denies he has any mental disorder that requires or would be improved by medication. At times he has requested specific medications that he would like to take, however the medications were deemed to be inappropriate choices for his mental disorders. . . . [H]e has been unwilling to consider taking a medication that might reduce his sex drive and subsequently reduce his risk for violence. Instead he prefers to remain off psychotropic medications."
At the hearing in July 2015, defendant testified that in June 2015, he had started taking Lupron, a testosterone suppressant. However, there was no evidence that the Lupron controlled defendant's mental disorders. Defendant had just started taking Lupron and defense counsel said "it takes about three cycles to start seeing effects." Defendant expected to take Lupron for six to 12 months in a hospital setting to break his "thinking habits" and get over resentments and sentimental attachments from the past. He did not expect Lupron to fix an attraction to younger girls. He expected his thoughts to be fixed by the time he is released and said he would not be willing to take Lupron when he is released into the community. This evidence does not support the conclusion that defendant's severe mental disorder was controlled by Lupron. Thus, there was substantial evidence that the overt signs and symptoms of defendant's severe mental disorder were not controlled by psychotropic medication. (§ 2962, subd. (a)(3).)
B. Psychosocial Support
Dr. McIlnay opined that defendant's pedophilic disorder is not in remission and stated there is no evidence to suggest the disorder has gone into remission. Dr. McIlnay reported that defendant asserts "he is not attracted to prepubescent children and that his past sexual behaviors with prepubescent girls have been mischaracterized by providers." Despite evidence of sexual interest in prepubescent children (ppg result, past behavior) defendant "continues to deny a sexual attraction, although he acknowledges lapses in behavior." Defendant discredits the penile plethysmography results, saying the assessment technique is flawed and the test is not credible.
According to Dr. McIlnay, defendant "expressed ambivalence when asked if he believes he has pedophilia and he would not answer this and related questions directly." The closest thing to a response were defendant's comments about not having children. In general, defendant "asserts that his pedophilia is a 'character defect' that he believes to be 'fixed' " Discussing this character defect in group, defendant recently said, " 'Is the broken piece still there? No. But the dog still has teeth. Hopefully it won't bite.' " In his interview with Dr. McIlnay, defendant "could not articulate how he believes his pedophilia was fixed." Defendant cited 12-Step literature about admitting his flaws and praying to God for healing. He also said he was not sure if he has been cured and the only way to know is to let him out of the hospital. He frequently asserts he does not need treatment and says he could easily handle a job where he routinely has access to young women because he had similar jobs in the past and "only became sexual with two of them (teenagers)."
According to Dr. McIlnay, defendant exemplifies the principal that "attendance should not be confused for treatment progress." Although defendant "attends groups very reliably," every week, he "approaches treatment not to engage in developing insight into maladaptive behaviors or making changes, but with belligerence as he creates and attempts to win arguments." As a result, he was deemed an inappropriate fit for four groups between February and April 2015. Defendant responds to correction poorly, whether for a minor infraction or a significant treatment concern.
Dr. McIlnay reported that defendant "continues to push the boundaries of sexuality—arguing that 'inappropriate' sexualization of young teens is a cultural construct." Defendant's "fixation on young teens goes beyond 'normal' and is unabated when compared to his presentation documented in early records," and there "is no evidence to suggest his sexual interests have changed since he began treatment." Thus, despite 15 years of sex offender therapy, defendant's condition has remained unchanged. Indeed, reviewing the prior reports and opinions defendant has asked us to judicially notice, no psychologist has ever reported that defendant's condition has ever been in remission.
For example, Dr. Cirimele reported in 2014 that defendant had not "received enough sex offender treatment [to] control his behavior," did not believe he needed sex offender treatment, had made "no progress" in his sex offender treatment in the prior year, and was unable to "recognize any symptoms or red flags that could cause him to molest a child in the future." Although not dispositive, this information is relevant to our analysis. (Cobb, supra, 48 Cal.4th at p. 252.)
We also consider defendant's narcissistic personality disorder, which Dr. McIlnay opined is not in remission. The essential features of the disorder are a " 'pervasive pattern of grandiosity, need for admiration, and lack of empathy that begins by early adulthood and is present in a variety of context[s].' " For the diagnosis to apply, the patient must "meet 5 of 9 criteria. [Defendant] meets at least 8 of 9 criteria. He has a pervasive pattern of beliefs and behavior that includes having a grandiose sense of self-importance, preoccupation with fantasies of ideal love and success, a need for admiration, and a sense of entitlement. . . . He has a history of exploitative behavior and he lacks empathy for others."
Dr. McIlnay explained that in the past, defendant "was preoccupied with fantasies of ideal love" with an 18- or 19-year-old beautiful virgin. Most recently, defendant has focused on finding a " 'blond-haired blue-eyed "Scorpio kitty," ' " which he believes would be the best astrological match for him. Defendant's ideal woman would have the western zodiac sign of Scorpio and be born in the year of the "rabbit/cat" under the Chinese zodiac calendar, in the years 1963, 1975, 1987, or 1999. Although defendant's list goes back to 1963, he has also expressed a preference for younger women. Dr. McIlnay noted that a female born in 1999 could be just 15 years old. In addition, defendant's current love interest cannot be overweight, cannot " 'have baggage,' " and would preferably be a virgin.
We take judicial notice of the fact that there is no year of the "rabbit/cat" in the Chinese calendar. The Chinese zodiac animals include the rabbit and the tiger, but no cat. The birth years defendant listed correspond to the year of the rabbit. (http://www.chinesezodiac.com/calculator.php [as of April 11, 2017].)
Another aspect of defendant's narcissistic personality disorder is that he is "interpersonally exploitative." He continues to believe he was helping Victim by molesting her. He lacks empathy for her and others and claims he saved Victim "from certain death by suicide or drug abuse or a life of prostitution—to the extent of calling himself a martyr." In group therapy in February 2015, defendant expressed anger toward Victim for "ratting" him out, calling her his " 'personal Judas' " and " 'Queen of the rats.' " He was unwilling to listen when someone said it is possible to help others without molesting them or having a sexual relationship with them.
Dr. McIlnay reported that defendant "continues to express a high level of sexual drive and general disregard [for] others' boundaries and the age of the women who capture his interest." Defendant believes he should have the right to date young female staff members at the State Hospital. He fails to see that they do not appreciate his advances; that such relationships are against hospital policy, as well as the young women's licensing requirements and ethics.
The year before the hearing, defendant focused his attention on two young female staff members. In October 2014, defendant wrote an unwelcome poem to a young blond female dietician, expressing his attraction to her, after being told not to contact her due to previous unwelcome contacts. Defendant refused to accept that she did not want contact with him, and she transferred out of his unit. Dr. McIlnay opined that this mirrored his prior stalking behavior involving a female radio personality between 2007 and 2010. In February 2015, defendant enrolled in an emotion management group. He lied to Dr. McIlnay about his reasons for joining the group and later admitted "unrepentantly" that he had no interest in the group content and had enrolled because he wanted to spend time with the young female intern leading the group, whom he found attractive. Defendant got angry when the treatment team intervened for both young women, saw the intervention as interfering with his constitutional rights, was not receptive to feedback about the inappropriateness of his conduct, and threatened to sue the hospital. Although Dr. McIlnay tried repeatedly to help defendant focus on making changes within himself rather than relying on finding a partner to make his life better, defendant refuses to consider that he may benefit from making changes to his life.
In summary, defendant continues to deny his pedophilic disorder. He cannot articulate how his pedophilia has been "fixed." Even though he is not sure he has "been cured," he frequently asserts he does not need treatment. Although physically present, defendant does not engage in his sex offender therapy and other groups. He is unwilling to listen in group therapy, refuses to consider making changes in his life, attends group for inappropriate reasons, and still believes he was helping Victim by molesting her. Defendant has not made any progress despite years of sex offender therapy. Thus, there is substantial evidence that defendant's severe mental disorder is not controlled by psychosocial support.
Since there was substantial evidence that defendant's pedophilic disorder was not controlled "either by psychotropic medication or psychosocial support" (§ 2962, subd. (a)(3)), the trial court did not err when it concluded that defendant's severe mental disorder was not in remission. In light of our conclusion, we need not consider whether there was substantial evidence that defendant's severe mental disorder "cannot be kept in remission without treatment." (§ 2962, subd. (a)(3).)
V. Criteria 3: Sufficiency of the Evidence That Due to His Severe Mental Disorder Defendant Represents a Substantial Danger of Physical Harm to Others
We next consider whether there was substantial evidence that "by reason of his . . . severe mental disorder, [defendant] represents a substantial danger of physical harm to others." (§ 2972, subd. (c).) The phrase " 'substantial danger of physical harm' does not require proof of a recent overt act." (§ 2962, subd. (g).) A single psychological opinion that the defendant is dangerous due to a severe mental disorder constitutes substantial evidence to support the extension of the defendant's commitment. (See People v. Bowers (2006) 145 Cal.App.4th 870, 879 [section 1026.5 recommitment].)
Defendant argues the trial court extended his "commitment based upon stale and immutable factors that do not support a finding of current 'substantial danger of physical harm to others.' " Defendant contends Dr. McIlnay relied on stale assessments from 2001 and 2006 and "unreliable data" to conclude that defendant represents a substantial danger of physical harm to others. He argues Dr. McIlnay acknowledged the staleness of the assessments by stating that certain of defendant's evaluations would be "rescored using new versions in the near future."
Defendant is mistaken as to the timing of the testing. Dr. McIlnay's April 2015 report described risk assessment testing done at the State Hospital, quoting and adopting statements from Dr. Cirimele's March 2014 report. Contrary to defendant's assertion, the risk assessment testing described in Dr. McIlnay's report included: (1) testing done by M. Geca, Psy.D., in July 2006; (2) testing by an unnamed examiner in July 2010; and (3) an assessment by Dr. Cirimele for his March 2014 evaluation. Although defendant criticizes Dr. McIlnay for relying on prior risk assessments, a mental health professional "may and should take into account the [defendant's] entire history in making an MDO evaluation. This includes prior violent offenses as well as the [defendant's] mental health history." (People v. Pace (1994) 27 Cal.App.4th 795, 799.) In our view, there was nothing inappropriate about Dr. McIlnay's consideration of risk assessment testing done in 2006, 2010, and 2014. In addition, the 2014 assessment by Dr. Cirimele can hardly be deemed "stale."
Dr. Cirimele reported that in addition to the testing in 2006 and 2010, defendant "was assessed with the HCR-20." Although Dr. Cirimele's report does not state precisely when he assessed defendant with the HCR-20, the quoted language and his description of the test results suggest it was done as part of his 2014 evaluation. In addition, at defendant's 2014 recommitment hearing, Dr. Cirimele testified that he started administering the HCR-20 to patients at the State Hospital in October 2012, personally administered the test in defendant's case, and some of the factors assessed conduct in the previous three months.
Dr. McIlnay reported that in 2006, Dr. Geca assessed defendant with the Hare PCL-R2, and three other tests. Defendant's score on the Hare PCL-R2 "met the cutoff score indicative of psychopathy, a trait linked with an increased risk of violence" (italics added); defendant scored higher than 90 percent of males "in forensic settings." Based on his scores on the other three tests, defendant fit "the profile of medium-high risk in the community setting." Taken together, his scores on two tests placed him in "medium-high risk for sexual reoffending." In addition, in 2006, "several dynamic factors placed [defendant] at high risk for sexual reoffending. Among them are intimacy deficits and emotional identification with children, sexual self regulation, cooperation with supervision, and general self regulation." After the testing in 2010, the psychologist recommended defendant be housed in a secure facility, complete a sex offender treatment program, and submit to a full disclosure polygraph. By 2015, defendant still had not completed this recommendation.
In 2014, Dr. Cirimele assessed defendant using the HCR-20. Dr. McIlnay described the HCR-20 as a set of professional guidelines that concern assessment of risk of violence. The test assesses 20 items: 10 risk factors from the past; 5 from the patient's current profile, and 5 concerning future risk management. Defendant had all 20 risk factors. They suggest he presents a moderate risk for violence while in the hospital and a high risk for violence in the community, "with [the] greatest risk for violence occurring if he does not continue treatment for his mental illness, uses substances, stops participating in treatment . . . , or experiences high amounts of stress without supervision or support."
"HCR" stands for "Historical Clinical Risk." --------
Dr. McIlnay reported that defendant "continues to express a high level of sexual drive" and a "general disregard for others' boundaries and the age of the women who capture his interest." Defense counsel said defendant was taking Lupron to deal with his "hypersexuality and sexual aggression" and defendant testified that he was "concerned" he might be a danger to a child. The testing in 2006 indicated that defendant was at a medium-high to high risk for sexual reoffending. Despite years of sex offender therapy, defendant had not made any progress. The most recent risk assessment testing in 2014 indicated that he still presented a high risk for violence if released into the community. This was substantial evidence that defendant represents a substantial danger of physical harm to others.
Defendant argues the only incidents of pedophilic behavior are exceptionally remote and cannot reasonably relied upon to assess current dangerousness. As we have stated, there was sufficient evidence to support defendant's diagnosis of pedophilia. To the extent this argument challenges the veracity of the reports of his pedophilic conduct, we note that defendant admitted the conduct with the 4-year-old and the eight-year-old at his recommitment trial in 2015 and described the conduct in detail at his trial in 2014.
Dr. McIlnay reported that defendant's last incident of physical violence at the State Hospital occurred in May 2013, more than one year before Dr. McIlnay authored his report. In that incident, defendant exchanged punches with another patient who wanted to cut in line and admitted he " 'lost control.' " In the most current reporting period, there were incidents of verbal aggression. In June 2014, defendant argued with another group member. When treatment staff asked him to step out of the group, defendant started shouting at staff, "pounding on [the] table with balled fists, and was unredirectable." In July 2014, he became verbally aggressive with escort staff after a delay in escorting him to his housing unit. He yelled profanities at the staff member and threatened to call her licensing board. In March 2015, he became angry when a nurse refused to address him as "Uncle Mark" and threatened to have her license revoked. Defendant's lack of recent violence in a controlled institutional setting did not prove he no longer represented a substantial danger to others when placed outside that controlled setting. (People v. Sumahit (2005) 128 Cal.App.4th 347, 353; § 2962, subd. (f).)
Defendant contends that in addition to demonstrating dangerousness, due process " 'prohibit[s] the involuntary confinement of persons on the basis that they are dangerously disordered without "proof [that they have] serious difficulty in controlling [their dangerous] behavior." ' " In support of this contention, defendant cites People v. Williams (2003) 31 Cal.4th 757 (Williams) and In re Howard N. (2005) 35 Cal.4th 117 (Howard N.). In Williams, the California Supreme Court reviewed an involuntary commitment under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.). (Williams, at pp. 759, 764.) And in Howard N., the court reviewed the extended detention scheme for the commitment of individuals under the control of the Division of Juvenile Justice under the Extended Detention Act (Welf. & Inst. Code, § 1800 et seq.). (Howard N., at pp. 122, 126.) In both cases, the court concluded that in addition to demonstrating dangerousness, due process principles require the State to demonstrate that the defendant's mental disorder causes the defendant to have serious difficulty controlling his or her dangerous behavior. (Williams, at pp. 759, 772, 774; Howard N., at pp. 122, 135, 136 [" 'A finding of dangerousness, standing alone, is ordinarily not a sufficient ground to justify indefinite involuntary commitment' "].) In Howard N., the California Supreme Court explained that this due process requirement is consistent with the then-recent United States Supreme Court cases of Kansas v. Crane (2002) 534 U.S. 407 (Crane ) and Kansas v. Hendricks (1997) 521 U.S. 346, both of which reviewed Kansas's sexually violent predator laws.
Defendant does not cite any cases that have extended this requirement to recommitment proceedings under the MDO Act and does not brief the issue further. The Attorney General does not address this question or even mention Williams or Howard N. We shall assume without deciding that due process requires a showing in an MDO recommitment proceeding that the defendant's mental disorder causes him or her serious difficulty in controlling the dangerous behavior. We also conclude there was substantial evidence that defendant had serious difficulty controlling his dangerous behavior.
To satisfy this requirement, it is not necessary to show a total lack of control. (In re Brian J. (2007) 150 Cal.App.4th 97, 115.) "The [United States] Supreme Court in Crane stated: 'It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, 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.' " (Id. at pp. 115-116, citing Crane, supra, 534 U.S. at pp. 411, 413 and Howard N., supra, 35 Cal.4th at p. 129.)
Defendant's diagnosis is pedophilic disorder exacerbated by his narcissistic personality disorder. Dr. McIlnay opined that defendant continues to have sexual urges and intrusive thoughts about children that cause him distress. There was substantial evidence defendant currently has serious difficulty controlling his behavior. Cooperation with supervision is one of the factors considered in assessing risk of violence. Defendant was evasive when Dr. McIlnay asked him about his sexual interest in children. Defendant continued to pursue the young dietician after he was counselled that his efforts to woo her were inappropriate and was asked not to contact her. When confronted about his conduct by the treatment team and Dr. McIlnay, defendant argued he had a free speech right to contact the woman and refused to accept that she did not want contact with him. Defendant was deceitful about his reasons for joining the group led by the young intern and after being removed from the group, got angry and threatened to sue the hospital. He was not receptive to feedback about the inappropriateness of pursing a relationship with hospital staff and became angry when the treatment team intervened on behalf of the young women. In a group session in February 2015, defendant complained about some of his things being lost by staff, and despite efforts to redirect him to the group topic, he focused on his anger and said, " 'I want a little device to call in an airstrike' in order to 'fuck these people up. . . . Being here is wasting my time.' " He approaches treatment with belligerence and creates arguments. In addition to the angry outbursts described previously, he has expressed anger toward Victim saying, " 'She ratted me out' " and calling her the " 'Queen of the rats.' " He refused to listen when others said he could have helped Victim without molesting her. Defendant continues to deny his diagnosed pedophilia, refuses to consider that he may benefit for making changes in his life, has not progressed in therapy, and expresses fears that he might molest his own children if he ever became a father. This was substantial evidence that defendant has serious difficulty controlling his dangerous behavior.
Defendant argues this case is comparable to In re Anthony C. (2006) 138 Cal.App.4th 1493, 1499 (Anthony C.), where the appellate court found insufficient evidence that the defendant had serious difficulty controlling his dangerous behavior to support extending his commitment under the Extended Detention Act. Defendant's reliance on Anthony C. is misplaced. In Anthony C., a psychologist, Dr. Herskovic, testified that the defendant had pedophilia and ADHD and posed "at least medium" risk of reoffending, although the psychologist had not done a formal risk assessment. (Id. at p. 1506.) Another psychologist, who was unable to testify, had done a formal risk assessment. The district attorney did not offer that report into evidence. Dr. Herskovic reviewed the report, but could not recall the relevant risk factors his colleague had relied upon, and was " 'not sure exactly how high a risk' [the defendant] posed to the community if released." (Id. at pp. 1506-1507.) Moreover, the defendant's confinement behavior did not support a finding of current lack of control. He had no history of acting on fantasies, understood he had a mental illness, participated in the sex offender program, and was serious about his treatment. (Id. at pp. 1507-1508.) The court concluded Dr. Herskovic's testimony was not substantial evidence that the defendant had serious difficulty controlling his behavior since it was based on guesswork, surmise or conjecture, and not relevant probative facts. (Id. at p. 1507.)
Unlike Anthony C., Dr. McIlnay's report reviewed defendant's risk assessment testing between 2006 and 2014 and recounted his confinement behaviors that supported the conclusions that defendant's condition had not improved, he still posed a high risk of danger if released into the community, and he had serious difficulty controlling his behavior. There are no children at the State Hospital; defendant acted on his fantasies by pursuing the closest substitutes: young, blond female staff who fit his type. He denied his diagnoses, did not participate meaningfully in the sex offender program, and was not serious about his treatment.
For these reasons, we conclude there was substantial evidence that by reason of his severe mental disorder, defendant represents a substantial danger of physical harm to others and has serious difficulty controlling his dangerous behavior.
DISPOSITION
The July 2015 recommitment order is affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.