P. v. Guinn

Filed 6/26/07 P. v. Guinn CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

George Guinn appeals from an order determining that he is a mentally disordered offender (MDO) and recommitting him to the Department of Mental Health for treatment. (Pen. Code, 2960 et seq.)[1]He claims there is insufficient evidence to support the finding that he represents a substantial danger of physical harm to others. ( 2972, subd. (c).) We affirm.

FACTS AND PROCEDURAL HISTORY

In 2000, Guinn was convicted of two counts of child molestation and sentenced to eight years in prison. ( 288, subd. (a).) In August 2004, the Board of Prison Terms (BPT) determined that Guinn satisfied the criteria for commitment as an MDO. ( 2962, subds. (a)-(d).) Guinn filed a petition contesting that decision, and the trial court determined that he met the requirements of section 2962, subdivision (d)(1) beyond a reasonable doubt. We affirmed in an unpublished decision. (People v. Guinn (June 1, 2006, B179384).)

On August 22, 2005, the BPT decided that Guinn's severe mental disorder was not in remission or could not be kept in remission without treatment and sought to extend Guinn's commitment pursuant to section 2970. Guinn filed a petition challenging that decision and the matter was tried by the court on April 11, 2006.

It was undisputed that Guinn suffered from the severe mental disorder of pedophilia that was not and could not be placed in remission. The only issue at trial was whether Guinn "represents a substantial danger of physical harm to others" by reason of the disorder. ( 2966, subd. (c).) The expert witnesses, Drs. Douglas Burton and Amy Phenix, reached conflicting conclusions regarding this requirement for recommitment.

Dr. Burton, Guinn's treating psychologist, testified that, in his opinion, Guinn represented a substantial danger of physical harm to others in the form of sexual violence. Dr. Burton testified that pedophilia is a disorder that can be managed but not placed in remission, and that Guinn remained unprepared "to manage it effectively." He testified that, despite an adult partner, Guinn has preferred sexual contact with minors, has engaged in such conduct over long periods of time, and is unable to admit the possibility that any situation might lead him to commit sexual acts towards children in the future.

Dr. Burton testified that he conducted a Static-99 risk assessment of Guinn. Static-99 is a test designed to estimate the likelihood of future convictions for sexual offenses based on historical risk factors. Dr. Burton testified that Guinn scored in the low risk range for reoffending, but that other dynamic factors not included in the Static-99 test increased the danger that improper sexual behavior would cause physical harm to others in the future. Such factors included Guinn's "lack of insight into the nature of his pedophilia, lack of insight into the effects of his pedophilic behavior on his victim, negative attitudes and impulsivity." Dr. Burton testified that Guinn suffered from a personality disorder that also increased the danger that he would cause physical harm to others.

Dr. Amy Phenix testified that in her opinion Guinn did not represent a substantial danger of physical harm to others. Her opinion was based upon a one hour interview of Guinn and an assessment of risk factors applicable to sexual offenders in general. She testified that Guinn's low risk Static-99 score was a critical factor in her opinion, and, in particular, that Guinn's age (57), long-term marriage, absence of nonsexual violence, and absence of victims who were strangers to him were Static-99 factors that reduced the level of risk.

Dr. Phenix, however, also relied on other risk factors not measured on the Static-99 assessment, concluding that these factors supported her opinion that the risk that he would commit sexual offenses in the future fell below the "substantial danger" standard in the MDO statute. Such factors included the absence of an offense when Guinn was a juvenile, participation in treatment, absence of a cognitive or antisocial disorder, completion of probation after the 1985 offense, existence of an adult relationship, and what Dr. Phenix considered to be opportunistic rather than predatory behavior in his prior offenses.

After the completion of testimony, the trial court found that Guinn satisfied the section 2972, subdivision (c) criteria for recommitment beyond a reasonable doubt. The court concluded that Dr. Burton's testimony was persuasive, in part because he had seen Guinn on almost a weekly basis.

DISCUSSION

Guinn contends that the trial court's finding that he represents a substantial danger of physical harm to others is not supported by substantial evidence. ( 2962, subd. (d)(1).) We disagree.

Under the MDO law, a parolee may be committed for treatment if he or she has a severe mental disorder that was a cause or aggravating factor in the commission of an offense involving the use of force or violence, if the parolee was treated for the mental disorder for at least 90 days in the prior year, the mental disorder is not in remission or capable of being kept in remission without treatment, and, as a result of the disorder, the parolee represents a substantial danger of physical harm to others. ( 2962.) The extension of a commitment requires findings that the parolee continues to suffer from a severe mental disorder that is not in remission or cannot be kept in remission without treatment, and "represents a substantial danger of physical harm to others" by reason of the disorder. ( 2972, subd. (c); In re Qawi (2004) 32 Cal.4th 1, 23-24.) The phrase "substantial danger of physical harm to others" has been interpreted "to mean a prediction of future dangerousness by mental health professionals." (In re Qawi, at p. 24.)

We review the findings of a trial court in an MDO proceeding under the substantial evidence test. 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." (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.) The evidence must be reasonable, credible, and of solid value, but we do not determine the credibility of witnesses, reweigh the evidence, or substitute our decision for that of the trier of fact. (Id., at pp. 1082-1083.) Here, substantial evidence supports the trial court's ruling.

Guinn argues that the evidence showed that he "represented a low risk of re-offense based on the objective actuarial static factors considered by the experts," and that the trial court made a determination "based on emotion and prejudice." The record does not support these assertions.

Dr. Burton and Dr. Phenix both testified that Guinn was a medium to low risk for committing future sex crimes based on the Static-99 test which allows an evaluator to assess the risk that a sex offender will commit future sex offenses based on historical (static) factors such as age, marital status, the number of prior sex and non-sex offenses, the relationship of the offender to the victims, and sentencing dates. (See People v. Therrian (2003) 113 Cal.App.4th 609, 613; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1214.) But, both Dr. Burton and Dr. Phenix also made it clear that the result of Guinn's Static-99 test was only one factor in the formulation of their respective opinions. Both experts testified that the Static-99 test does not consider all the relevant risk factors including so-called "dynamic risk factors" that are subject to change through treatment, interpersonal influences, self-insight or other efforts on the part of the person to effect change in his condition.

Guinn argues that these additional "factors overwhelmingly suggested that appellant represented a lesser, rather than greater, risk," but, again, the evidence does not support his assertion. Dr. Burton testified that several dynamic risk factors increased the danger that Guinn would cause physical harm to others in the future. Dr. Burton specifically stated that Guinn's problems with intimacy, difficulty cooperating with supervision, and failure to participate in substance abuse treatment or sex offender treatment were indicators of heightened risk. Conversely, Dr. Phenix testified that certain dynamic risk factors and static factors not included in the Static-99 supported her opinion that Guinn posed little danger, including his responsiveness to treatment, long-term marriage, a "prosocial nature," and the absence of a cognitive disorder.

In short, the evidence shows that Dr. Burton and Dr. Phenix emphasized different factors and evaluated certain of the same factors differently and, as a result, formed different opinions. That the evidence relied upon by experts in forming their opinions is subject to conflicting interpretations and inferences does not demonstrate the absence of substantial evidence in support of the trial court's finding. (See People v. Mercer (1999) 70 Cal.App.4th 463, 466.) It is not the role of this court to reweigh the evidence, or to resolve the conflict in a manner that does not support the judgment. (Id., at pp. 466-467; People v. Clark, supra, 82 Cal.App.4th at pp. 1082-1083.)

The judgment (order of commitment) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Barry Hammer, Judge*

Superior Court County of San Luis Obispo

______________________________

Rudy Kraft, 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, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.

* (Retired Judge of the San Luis Obispo Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)