Filed 6/22/22 P. v. Gust CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.

____________________

Erick Gust attacks the sufficiency of the evidence for his commitment under the Sexually Violent Predator Act (the Act). (Welf. & Inst. Code, § 6600 et seq.) Gust’s admission of watching child pornography, his convictions for lewd conduct with children, and his long-lasting compulsion to make reams of drawings of children having sex provide ample evidence for the judgment. We affirm.

I

In 2009, Gust pleaded no contest to two counts of lewd or lascivious acts with children. (Pen. Code, § 288, subd. (a).) We call these his qualifying offenses.

The victims, a nine-year-old boy and an eight-year-old girl, came to Gust’s home to play with his children. Gust was 41 years old.

In May 2008, Gust showed the boy magazines with naked women. Gust touched the boy’s hips or buttocks over his clothes approximately 10 times. He texted the boy photos, including a photo of a naked child urinating. Gust asked the boy if he would ever take a photo like that. Gust gave the boy gifts including a video game. He called the boy “sexy.” Gust gave the boy a flash drive with a video of a woman undressing.

In July 2008, Gust tried to touch the girl’s buttocks, lifted her shirt and touched her stomach, and put his hands down her underwear and tried to touch her vaginal area three or four times.

A detective pretending to be the boy talked to Gust online. Gust sent child pornography, including a photograph of a naked preteen girl kneeling on a bed with her genitals exposed. The next day, police arrested Gust as he was bringing another flash drive to the boy’s home.

The court sentenced Gust to eight years and eight months in prison.

On June 8, 2016, the prosecution brought a Welfare and Institutions Code section 6600 petition alleging Gust was a sexually violent predator.

In 2016, Gust was moved to a state hospital.

The court held a bench trial from June 29 to July 9, 2021. Prison officials and mental health professionals testified.

While Gust served his sentence, he drew pictures of children having sex. Gust does not dispute that he created the drawings. We provide a comprehensive account of these drawings because the appellate briefs emphasize them.

Prison officials found and confiscated Gust’s drawings in 2013, 2014, and 2015. Officials at the state hospital found and confiscated more drawings in 2018.

The prison copied some drawings and these copies are in the record. The remaining drawings are not in the record. Prison officials and a member of the hospital staff testified about the confiscations and described the drawings.

The first confiscation was on November 16, 2013.

William Kirby, a prison lieutenant, described the drawings from memory. He said he remembered them because they were very disturbing.

The drawings were of naked children having anal and oral sex, adults having anal and oral sex with children, and a little boy masturbating and ejaculating. Kirby recalled there were 30 to 50 drawings.

Edwin Tapia Borrero, another prison official, viewed the drawings in 2013. He estimated there were about 1,000 drawings because the stack of pages was over four inches thick. There were about 200 drawings of adults have sexual contact with children and about 800 drawings of children that were having sexual contact with other children or were nude but not having sexual contact with others.

Borrero described from memory some of the drawings. For example, “there was a dressed older male orally copulating a young boy without pubic hair.” “[A] lot of the pictures were of nude boys or girls only in various sex positions; either standing, kneeling, laying down, or masturbating.”

Borrero also recounted stories that were in the 2013 confiscation. In one story, a man offered a girl candy, invited her to his house to play with toys, touched her and told her this was normal, and then dressed the girl.

Gust told Borrero he had made the drawings over the past four years. Gust felt “compelled” to draw them because they comforted him. Gust contended there was nothing wrong with the drawings and demanded the prison return them to him.

On December 31, 2014, prison officials found over 100 more drawings. Kirby said these drawings were of naked children, children having oral and anal sex with children, and children having oral and anal sex with adults. Two drawings were of a balding man having anal sex with a little boy. Gust was balding.

On January 21, 2015, prison officials discovered and confiscated about 30 more drawings. Kirby said the drawings depicted little naked girls and boys having anal and oral sex, anal sex involving an adult man, and masturbation with ejaculation.

After the confiscations, prison officials assessed penalties against Gust. Each time, Gust lost 30 credit days and was placed in disciplinary detention for 10 days. He also lost various prison privileges for 90 days for the 2014 offense and for 30 days for the 2015 offense.

A psychologist from the state hospital testified about meeting with Gust after the confiscation in July 2018. The psychologist did not remember the exact content, but recalled the drawings included children posed with their legs open. Gust asserted he was an artist and he did not admit the drawings were inappropriate.

Our record includes 21 pages of Gust’s drawings. The drawings match the witnesses’ descriptions. To offer a sense of the drawings, one page depicts over a dozen children involved in sexual activity: one girl has oral sex with a naked boy, one boy has his hand on his penis and fluid is coming out, one boy has anal sex with a girl, and so on. Across the drawings, teddy bears figure prominently as a prop and as a decoration on the children’s clothing. Some drawings include male figures that appear to be adults because they are significantly larger than the other figures.

Two psychologists, Kathleen Longwell and Mark Miculian, testified for the prosecution. Both believed Gust met the criteria for commitment under the Act.

Longwell interviewed Gust in March 2018 and June 2019. Miculian interviewed Gust in March 2016, April 2018, and July 2019. Both psychologists attempted to interview Gust in 2020 but Gust refused.

Gust told Longwell he looked at pornography daily before the qualifying offenses. This was when Gust was in his mid-30s until his early 40s. Gust enjoyed viewing pornography with prohibited types of sexual activity, including pornography with children. He found it “soothing.” Gust admitted viewing child pornography that involved violent sex and children having sex with animals, adults, and other children.

Gust also admitted to Miculian that he viewed child pornography before the qualifying offenses.

Gust denied committing the qualifying offenses. He admitted giving the boy child pornography but minimized it. Gust believed the boy was interested in the content and it did not harm the boy. According to Gust, he did not do anything wrong.

Gust enrolled in a sex offender treatment program at the hospital in 2017, but he dropped out by 2019. Gust reenrolled in the program in April 2021.

Longwell and Miculian each diagnosed Gust with pedophilic disorder. Longwell diagnosed him in 2018. Miculian diagnosed Gust in 2016, 2018, 2019, and 2020. Gust’s disorder is “non-exclusive,” which means he is attracted both to children and to adults.

Pedophilic disorder involves intense sexual urges, fantasies, or behaviors toward prepubescent children. The diagnostic criteria require the sexual urges to persist for at least six months. Both psychologists found Gust met this requirement.

Longwell explained that Gust’s sexual urges, fantasies, and behaviors lasted a “very long period of time” and were a persistent problem. In making their diagnoses, both psychologists considered Gust’s viewing of child pornography for years before the qualifying offenses, the qualifying offenses themselves, and Gust’s production and possession of the drawings of children while in custody.

Longwell and Miculian believed Gust’s production and possession of the drawings despite being in custody evidenced his lack of volitional control.

Longwell and Miculian concluded Gust was likely to engage in sexually violent criminal behavior because of his disorder.

Longwell used two actuarial instruments to predict the likelihood of Gust committing future sex offenses. On one instrument, Longwell found Gust was in the “above average range” for sexual recidivism. On the second instrument, Longwell found Gust was in the “average range.”

Miculian used an actuarial tool but his scoring for Gust changed over time. Miculian found, regardless of the scoring, that there was a serious and well-founded risk Gust would reoffend. Pedophilia is a longstanding condition and Gust’s conduct had lasted many years. The fact that officials last found drawings three years earlier did not change Miculian’s belief about Gust’s current risk.

Longwell believed Gust’s future sexually violent behavior would likely be predatory. In forming this belief, Longwell considered Gust’s qualifying offenses, which involved non-related children. Gust cultivated a relationship with the boy for the purpose of victimization. Miculian also believed Gust had been “grooming” the boy by giving him gifts and by showing him pictures to normalize sex.

Longwell and Miculian concluded it would not be safe and effective to treat Gust in the community. Gust did not say he planned to attend voluntary outpatient treatment. His release plans did not include plans for sex offender treatment.

Longwell did not believe Gust would enroll in treatment outside the hospital. Gust denied needing treatment. He believed he had not done anything wrong. Gust also called the treatment abhorrent because it would “take away his identity.”

Miculian said sex offender treatment was important for Gust, but Gust had dropped out in the past and might not remain in treatment in the community.

The defense’s psychologist, Brian Abbott, met with Gust on April 9 and 16, 2021. Abbott’s opinion differed from Longwell and Miculian’s opinion.

Abbott believed Gust did not have pedophilic disorder. He based his conclusion on a test that measured Gust’s visual reaction time and allowed Gust to self-report his arousal level to stimuli. Abbott said the test showed Gust was not sexually interested in prepubescent children.

Abbott also relied on Gust’s self-reported statements about his arousal. Gust denied being sexually aroused by prepubescent children and denied currently experiencing sexual fantasies about them.

Regarding Gust’s admitted viewing of child pornography before the qualifying offenses, Abbott found this did not support a diagnosis. Gust “happened upon” and “inadvertently download[ed]” child pornography while looking at other pornography, but Gust was not sexually interested in it.

Abbott did not think Gust had a volitional impairment. Gust’s compulsive drawings were a “sexual way of coping with negative emotions,” were related to childhood trauma, and were acts of defiance to authority.

Abbott did not think Gust needed to participate in sex offender treatment at the state hospital.

Gust called members of his treatment team and hospital personnel to testify.

Darrell Broaddus, a psychologist at the hospital, said Gust was respectful, recently reentered treatment, and did not display inappropriate behavioral instability. Broaddus could not say whether Gust had been responding positively to sex offender treatment because Gust had been reenrolled only briefly.

Broaddus reported that Gust’s treatment team unanimously believed Gust needed to continue in treatment at the state hospital to qualify for safe discharge into the community.

Other hospital workers testified, including a clinical social worker and the psychologist we already mentioned, who testified about the 2018 confiscation.

An art therapist said she had supplied Gust with art supplies in 2020 through the time of the trial and she did not see him create anything inappropriate.

A longtime friend of Gust’s said she and her husband had helped Gust prepare a release plan and had made arrangements for Gust to have a therapist if he were released.

The court found the petition was true.

The court found Gust denied responsibility for his behavior, lied about his involvement in the qualifying offenses, and had not completed sex offender treatment. The court acknowledged Gust had gone three years without making the drawings but noted that was less than one-third of the amount of time he had devoted to making them.

The court did not find the defense expert credible because he minimized or ignored certain evidence and because the expert said Gust may have viewed numerous items of child pornography by mistake.

II

Substantial evidence supports the court’s findings.

The Act authorizes involuntary commitment of convicted sex offenders who complete their prison terms but are found to be sexually violent predators. The law is meant to protect the public from dangerous felony offenders with mental disorders and to provide mental health treatment to offenders. (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 344.)

To establish a person is a sexually violent predator, the prosecution must prove beyond a reasonable doubt the person: (1) has a conviction for one or more sexually violent offenses and (2) has a diagnosed mental health disorder that (3) makes it likely the person will engage in predatory sexually violent criminal behavior. (Welf. & Inst. Code, §§ 6600, subd. (a), 6604.)

As to the second criterion, the diagnosed mental disorder must affect the person’s emotional or volitional capacity and predispose the person to committing criminal sexual acts. (Welf. & Inst. Code, § 6600, subd. (c).)

The Supreme Court defined “likely” in the third criterion to mean a “serious and well-founded risk” of committing a sexually violent crime if released from custody. (People v. Roberge (2003) 29 Cal.4th 979, 988.)

The Act defines the word “predatory” as an action directed toward someone with whom a person has no substantial relationship or with whom a person establishes a relationship for victimization. (Welf. & Inst. Code, § 6600, subd. (e).)

We review the trial court’s findings under the Act for substantial evidence. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.)

Under this standard, we review the record in the light most favorable to the judgment. We presume in support of the judgment all facts the fact finder could reasonably deduce from the evidence. (People v. Osband (1996) 13 Cal.4th 622, 690 (Osband).)

The fact finder, not the reviewing court, determines witness credibility and resolves conflicts and inconsistencies in testimony. (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).)

We take the Act’s three criteria in turn.

First, Gust concedes his convictions for lewd conduct with children constitute qualifying offenses.

Second, Gust has a diagnosed mental health disorder. Two psychologists diagnosed him with pedophilic disorder. Miculian made the diagnosis four times between 2016 to 2020. He and Longwell interviewed Gust as recently as 2019. But for Gust’s refusal, they would have interviewed him more recently.

The psychologists backed their diagnoses with evidence including Gust’s admission of viewing and enjoying child pornography before the qualifying offenses, the offenses themselves, and his creation and possession of over 150 drawings of children having sex. Gust’s persistence in creating the drawings over many years while in custody for child sex offenses and in spite of receiving punishment for possessing them demonstrates a volitional impairment. Substantial evidence supports the diagnoses.

Third, Gust’s disorder makes it likely he will engage in sexually violent criminal behavior. From their interviews with Gust, the prosecution’s psychologists believed Gust needed sexual offender treatment. Gust’s participation in treatment outside the hospital setting was unlikely: he denied needing it, he called it abhorrent, he had dropped out in the past, and he excluded it from his release plan. Longwell also relied on actuarial instruments to determine Gust was likely to reoffend.

Furthermore, Gust’s treatment team unanimously believed Gust needed to continue in treatment at the state hospital to qualify for safe discharge into the community.

Substantial evidence supports the third element.

Gust attacks the evidence supporting the second and third elements, but the evidence was substantial.

We address Gust’s contentions one at a time, but we begin by noting an overarching flaw in his reasoning. He emphasizes conflicts in the evidence and relies on the defense expert’s conclusions. Under our standard of review, we look for facts in favor of the judgment and we defer to the court’s adverse credibility findings against the defense expert. (See Osband, supra, 13 Cal.4th at p. 690; Young, supra, 34 Cal.4th at p. 1181.) We apply these rules as we address his arguments.

Gust incorrectly contends there is no evidence he had a recurrent sexual attraction to children. His argument focuses on the diagnostic criteria’s time requirement of six months or longer. The prosecution’s experts and the court were entitled to consider Gust’s admitted viewing of child pornography before the offenses and his drawings of children having sex. Together with the qualifying offenses, this conduct spanned far more than six months.

Gust gives three reasons the drawings cannot support his diagnosis, but the arguments have no basis.

First, Gust asserts the production dates of the drawings are “inconclusive,” but this is of no moment. The trial court’s statement that Gust refrained from making the drawings for less than one-third of the time he had made them is a factual finding. Gust produced drawings for about nine years or more. This figure is supported by Borrero’s testimony that Gust told him in 2013 about making the drawings for four years. Gust thus began making the drawings in 2009 and the final confiscation was nine years later.

Contrary to Gust’s contention, it is more reasonable to infer each confiscation was of new drawings than to infer he produced all the drawings before the first confiscation. Indeed, Gust fails to explain how the various searches would not have uncovered his complete collection. The trial court’s nine-year timeline of production is conclusive, and it proves Gust’s urges were longstanding.

Second, Gust incorrectly calls the character and the quantity of drawings “inconclusive.” Kirby and Borrero gave detailed testimony about this issue, and we have copies of some drawings. This evidence proves the drawings show children having sex. Sometimes the sex is with adults. Using the most modest figures, there were more than 150 drawings. The experts and the trial court reasonably found Gust’s creation and possession of these many drawings reflected his repeated, intense, sexually arousing fantasies or urges toward children.

Third, Gust says the drawings were not probative of his current mental condition, but this is wrong. The time between the final confiscation and Gust’s trial was not too attenuated. He viewed child pornography years before his 2008 offenses, and he created and possessed the drawings in 2013, 2014, 2015, and 2018. Thus there was more than a decade of evidence of his repeated, intense, sexually arousing fantasies, urges, or behavior toward children. The three years between the last confiscation and the hearing did not mean the experts and the court could not consider the drawings to support Gust’s diagnosis and risk of reoffending.

In a footnote, Gust implausibly contends his viewing of child pornography does not support his diagnosis of pedophilic disorder. According to Gust, because he looked at all forms of pornography and self-identified as being sexually attracted to adults, viewing child pornography has no probative value. Neither law nor logic supports this position.

Gust says there is no evidence he currently is likely to engage in sexually violent criminal behavior. This argument fails. As we explained, it is proper to consider his viewing of child pornography, the qualifying offenses, and his drawings. There is some evidence of Gust’s recent behavioral correction, but the court was not required to find this evidence negated his lengthy earlier conduct. Gust’s reenrollment in treatment came a mere four months before trial. The evidence Gust was likely to engage in sexually violent criminal behavior was current enough to be probative.

Gust makes two final arguments: there is no evidence he lacked volitional control and no evidence future offenses would be predatory. These arguments fail.

Gust’s continued creation and possession of drawings of children having sex demonstrated lack of volitional control. His comparatively brief period of pausing production of the drawings does not compel a different finding.

There was evidence Gust’s future offenses would be predatory. His prior offenses were predatory. Gust says it is improper to rely on his qualifying offenses and cites Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145, which says prior crimes play a limited role in the sexually violent predator determination. Hubbart does not completely ban consideration of these offenses.

Gust’s more recent statements about the prior offenses are probative: he denied committing the offenses or said his conduct was not harmful. Gust believes his conduct was acceptable. It was not.

Other evidence, like Borrero’s testimony about a story Gust wrote of luring a girl to his home, also demolishes Gust’s argument and signals that future conduct would be predatory.

DISPOSITION

The judgment is affirmed.

WILEY, J.

We concur:

STRATTON, P. J.

GRIMES, J.