Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. ZM010214, Norman J. Shapiro, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Bobbie Suter appeals an order recommitting him as a sexually violent predator (SVP) for a term of two years, the maximum permitted at the time under the Sexually Violent Predator Act (SVPA). (Former Welf. & Inst. Code, § 6600 et seq.)
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
Two of the experts who examined Suter found he qualified as an SVP; a third found he did not. Suter contends the opinion of the defense psychiatrist is entitled to greater weight than the opinions of the prosecution psychologists, especially where Suter’s advanced age and poor health are factors to be considered. We reject this contention and affirm the order.
FACTS AND PROCEDURAL BACKGROUND
1. The People’s petition.
A petition filed May 15, 2006, alleged Suter was an SVP. Suter waived jury trial and the matter was tried to the court. In opening statement, defense counsel indicated 71-year old Suter planned to move to Missouri to live in a convalescent home near his daughter. Defense counsel asserted Suter would not present a risk of reoffending in that setting.
2. The People’s evidence.
The parties stipulated Suter previously was convicted of sexually violent offenses, namely, forcible oral copulation, forcible sodomy and lewd act upon a child under the age of 14 years in 1977, and forcible oral copulation and forcible sodomy in 1984. (Pen. Code, §§ 288a, subd. (c), 286, subd. (c); 288, subd. (a)).)
The evidence offered in support of the petition indicated Suter has been diagnosed as a pedophile with sexual sadism and a narcissistic personality disorder. Suter was molested at the age of 10 or 11 years by an adult cousin and thereafter has focused on sex with young boys. Suter began having sex with young boys as a teenager but also has molested girls. Suter married at the age of 20 in 1957. That same year, he was arrested for molesting three boys but was not prosecuted. In 1963, he was arrested in Missouri for molesting three boys. He was declared a criminal sexual sociopath and was committed to the state hospital for 20 months.
In 1968, while on parole, he was arrested in Missouri for having sex with a 15-year-old boy and was recommitted to the mental hospital where he remained until 1975. At that time, Suter was released to an open ward. He walked away from the hospital and came to California where, by his own admission, he started to kidnap and molest boys.
It was during this time that Suter committed the first of the sexually violent offenses required under the SVPA. In 1976, when Suter was 40 years of age, he saw 13-year-old Roger walking down the street in San Dimas. Suter ordered Roger into a car, tied twine around his penis and took him to a motel where he kept him over night, sodomizing and orally copulating him.
Fifty three days later, Suter kidnapped 12-year-old Steven from the street, forced the child into a car, tied his penis with twine and drove to an apartment Suter maintained in downtown Los Angeles where he sodomized and orally copulated the child. When Suter fell asleep, the child escaped and led police to the apartment where they found a list of 266 names. Suter admitted this was a list of the individuals he and a partner, Charles Dickens, sexually violated or kidnapped. Dickens assisted Suter in taking victims off the street. Some of the names on the list were Dickens’s victims. Suter indicated Dickens preferred children 11 years of age and under, whereas Suter preferred 13 to 15 year old boys.
After Suter was convicted of the crimes involving Roger and Steven, he was committed to Patton State Hospital as a mentally disordered sex offender (MDSO). Suter told a probation officer that, when he hit the age of 40, he felt his sex drive waning, so he returned to molesting children because he found it stimulating.
Suter was released in November of 1983. Seven months later, Suter lured 20-year-old Thomas into a car on the promise of smoking marijuana. Thomas weighed 115 pounds and was five feet, seven inches tall. Suter tied twine around Thomas’s penis, forced Thomas to orally copulate him and sodomized him. Thomas escaped and ran down the street. Suter chased him in the car, ran a red light, hit another car and was arrested. He was sentenced to prison for 21 years.
Suter was paroled in 1995 and moved to Oklahoma to live with his sister. In October of 1996, he was arrested at the age of 60 for propositioning a 16-year-old boy. While in custody awaiting trial on that charge, Suter propositioned another 16-year-old male. Suter was extradited to California. He was found to be an SVP and was admitted to Atascadero State Hospital in November of 1997. He has not been in the community since that time. Suter told evaluators he has had sex with 50 to 60 individuals in the hospital. Suter also has continued to act in a predatory fashion toward younger, smaller and low functioning patients.
Dawn Starr, a licensed psychologist specializing in forensic evaluations, interviewed Suter in May of 2006 and in May of 2007. Starr concluded Suter is likely to commit further predatory acts. Starr indicated sexual orientation does not change with age and noted Suter collected child pornography while at the state mental hospital in 2001. Suter has been sexually preoccupied his entire life and “in spite of his age or medical conditions, [he was] very sexually active at Atascadero....” Suter admitted that, once he gets wound up sexually, he cannot stop himself. Suter told Starr he did one of the boys he molested a favor by getting the child to ejaculate.
Starr computed Suter’s Static-99 score at 8, which is high. Starr then considered other factors that might corroborate the risk or mitigate against it, including age and health. Starr conceded Suter has diabetes, diabetic neuropathy, cervical spondylosis, hypertension, hyperthyroidism and he suffered a stroke in 1984. However, Suter commenced a walking regimen some years ago that has improved his health. When Star interviewed Suter in 2007, he was walking 10 to 12 miles a day and he claimed he had “walked off his hypertension and his diabetes....”
Static-99 is an instrument used to help predict the likelihood that a sex offender will reoffend. It “measures the statistical risk of reoffense based on characteristics of the subject’s personal history and past offenses as they compare with those of known criminal sexual recidivists.” (People v. Williams (2003) 31 Cal.4th 757, 762, fn. 3.)
Further, Starr noted Suter has had physical problems for many years but has managed to overcome them. Starr testified, “I don’t think being in a wheelchair or unstable in his gait makes him unable” to molest children. Starr did not believe Suter’s stroke was significant in that he committed sexual offenses after he had the stroke. Starr noted Suter and Charles Dickens once kidnapped a Marine, took him to a mountain cabin and had sex with him.
Starr concluded Suter’s behavior in recent years suggests ongoing sexually deviant interests and inclinations. Although Suter claims he now has no sex drive, he repeatedly has made that claim.
Starr admitted the frequency of recidivism goes down as an offender ages. However, a small subset of pedophiles continues to offend into their eighties. Starr believed Suter was in that small minority. Starr does not believe Suter is amenable to treatment on a voluntary basis in the community.
Gary Zinik, a clinical forensic psychologist, evaluated Suter in March of 2002 and interviewed Suter in March of 2006 and July of 2007. Zinik determined it was likely Suter will engage in future sexually violent and predatory crimes. Zinik noted that pursuing sexual conquests was Suter’s highest priority. Although Suter is now an older man who has health problems, Zinik testified, “despite all those problems, I think there is still a serious and well-founded risk that he is likely to commit sexual crimes against young adolescent boys in a certain kind of situation.”
Zinik noted Suter first complained of impotence in the mid-1970’s. Zinik believed this may have caused Suter to become aggressive and violent in his sexual offenses, whipping the victims, blindfolding them and using twine to enhance his excitement. Thus, “[r]ather than retreat from sexual activity..., he actually kind of redoubled his efforts. He became aggressive. He sought out sex in other ways in order to, quote, rejuvenate himself and in order to kind of recapture his sexual potency.”
Zinik believed Suter was “clearly physically capable” of committing a sexual crime. In Zinik’s opinion, if Suter could get alone with a boy, there was a serious and well-founded risk he would try to commit a sexual crime. The fact Suter would live in a convalescent home reduced the risk but did not eliminate it because Suter would likely be allowed off premises and he engages in a walking regimen during which he would be able to find boys. Suter also might molest a child who visited the convalescent home.
Zinik indicated Suter has such a long chronic history that he will always be a risk to reoffend unless he was “very disabled and... weak and frail, to the point where he would not be able to... grab on to a child....”
Zinik found Suter had a Static-99 score of 8. However, Zinik conceded that, for someone Suter’s age, Static-99 “is really just sort of a crude tool to compare his risk level to other sex offenders.” Zinik agreed pedophiles rarely offend over the age of 60 years. However, Zinik opined Suter’s case is “very unique. I mean, he’s in a class of [his], own....” He needs to be in a structured environment where we can guarantee he will never have contact with a child alone.
3. The defense case.
Suter testified in his own defense. He indicated he promised himself in 1976 that he would never touch another child and he has been true to that vow. Suter claimed his medical condition and trouble with his balance have rendered him “safe enough that I can be in a room with” boys. Suter continues his walking regimen but it is much reduced due to his health problems. Suter admitted that, 20 years ago, committing sexual offenses was the highest priority in his life.
Ronald Markman, M.D., examined Suter in 1999 and in 2007. On both occasions, Markman concluded Suter did not qualify as an SVP because he does not present a serious and well-founded risk of reoffending. Markman noted Suter will be in a facility with 24-hour care, he would not drive a car and the faculty of the convalescent home would prevent sexual misconduct. Markman placed the chance of Suter violating a 12-year-old visitor at the convalescent home at “slim and none.”
However, Markman agreed Suter is physically capable of orally copulating a child or fondling a child’s penis and that Suter continues to have an impulse to reoffend. Further, Suter’s personality disorder with narcissistic features increases the risk of future offenses.
Suter’s daughter testified she recently has reconnected with her father after 42 years, having last seen him when she was seven years old. She plans to have Suter move with her to Missouri, obtain Social Security disability income and then place him in a convalescent home near her residence. Until he is placed there, Suter will live in her home, which she claimed was in an older neighborhood that has no children. She admitted Suter might have to live with her “permanently if he is not physically able to go into this convalescent home.”
4. The trial court’s findings.
The trial court found that, despite Suter’s age and health, the evidence showed there is a high likelihood and substantial danger Suter will engage in sexually violent predatory criminal behavior unless he is confined in a secure facility.
CONTENTIONS
Suter contends the evidence is insufficient to support the finding he was likely to commit a sexually violent offense in the future.
DISCUSSION
1. Applicable legal principles.
To qualify as an SVP, a person must have “been convicted of a sexually violent offense against two or more victims” and must suffer from “a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).) Such behavior must be predatory in nature. (People v. Hurtado (2002) 28 Cal.4th 1179, 1186.) It is likely that a person will engage in such behavior if “the person is found to present a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody.” (People v. Roberge (2003) 29 Cal.4th 979, 988.) The finding must be upheld if supported by substantial evidence. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.)
2. Sufficiency of the evidence.
Suter claims he has not committed a sexual offense in nearly 25 years and has not engaged in improper sexual conduct with a minor for over 30 years. He argues the length of time since his last offense, as well as his plans for release and his age and physical condition, which includes evidence of sexual dysfunction, reduced testosterone levels and diabetes, establish that he is not likely to reoffend. Thus, the People are unable to prove, beyond a reasonable doubt, a substantial danger of committing sexually violent and predatory criminal acts if released. (People v. Hurtado, supra, 28 Cal.4th at p. 1186; People v. Burns (2005) 128 Cal.App.4th 794, 801.)
Suter argues the prosecution’s experts improperly relied on the prior offenses. He claims such remote acts, which are generally characteristic of sex offenders, do not reflect the current likelihood of reoffending. Suter also claims the defense expert, Dr. Markman, a psychiatrist, possessed medical training and expertise superior to that of the psychologists presented by the prosecution. Suter notes Markman testified the Static-99 test score, which the prosecution’s experts relied on, does not accurately predict the sexual behavior of individuals over sixty. Also, Markman opined the chance of Suter being able to molest a child visiting the convalescent home was “slim and none.”
Suter asserts it was undisputed he would receive appropriate treatment and he would reside in a convalescent facility with 24-hour supervision and care near his daughter in Missouri. Suter concludes the trial court relied on the mere possibility of reoffending rather than a likelihood. (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 923-924.)
Suter’s argument is not persuasive.
The People presented two experts who personally evaluated Suter and were aware of his physical condition but concluded he was likely to reoffend. Their testimony is substantial evidence supporting the conclusion Suter was likely to engage in sexually violent and predatory behavior. It is not the role of this court to redetermine the credibility of experts or to reweigh the relative strength of their conclusions. (People v. Mercer, supra, 70 Cal.App.4th at pp. 466-467.)
With respect to the claim Suter’s inability to achieve sexual arousal precludes commission of a sexually violent crimes, the evidence showed Suter gained sadistic pleasure out of binding the genitals of young boys and orally copulating them. These crimes may be committed without achieving arousal. Indeed, Markman conceded Suter was physically capable of committing sexual offenses. Further, the evidence showed that, in the past, Suter compensated for what he perceived as a reduction in his sex drive by engaging in more egregious conduct. In sum, although the likelihood Suter will reoffend is lower than it was when Suter was younger, this does not mean Suter is unlikely to reoffend if released.
With respect to Suter’s attack on the prosecution experts’ use of the Static-99 score for an older individual, neither expert relied on the test score and Zinik conceded the score becomes less accurate as a predictor of future behavior as the subject ages. Both experts found Suter belonged to a small minority of pedophiles who continue to be sexually active into their dotage. Zinik described Suter as being “very unique” in this regard.
Finally, contrary to Suter’s assertion, it was not undisputed that he would reside in a convalescent home. Suter’s daughter testified Suter might have to live in her home if he was not admitted to the convalescent home.
In sum, substantial evidence supports the trial court’s finding.
DISPOSITION
The order recommitting Suter as an SVP is affirmed.
We concur: CROSKEY, J., KITCHING, J.
Prior to amendments in 2006, the SVPA required the People to file a new petition for commitment every two years and to prove beyond a reasonable doubt that the defendant was an SVP. (Former §§ 6601, subd. (i), 6604, 6604.1; People v. Munoz (2005) 129 Cal.App.4th 421, 429-430.) As a result of the 2006 amendments to the SVPA, if the People bring a petition and prove beyond a reasonable doubt that an individual is an SVP, the individual is committed for an indefinite term. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1281.)