Filed 12/11/18 P. v. Jenks CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, appellant was committed to a state mental hospital as a sexually violent predator (SVP). He contends there is insufficient evidence to support the commitment order, but we disagree and affirm the judgment.

FACTS

Appellant is currently 48 years old. He has “borderline” intelligence – meaning he’s not mentally retarded but has limited cognitive functioning – and has been living in secured institutional settings for the past two decades. Appellant’s institutionalization is predicated on crimes he carried out between the ages of 16 and 25. During that 10-year span, appellant committed multiple sex crimes against young boys. Because probation, treatment efforts, and an extended stay at the California Youth Authority all proved ineffective in terms of curbing appellant’s criminal behavior, he was sentenced to 12 years in prison for his last offense in 1995.

In 2006, the People petitioned to have appellant committed as an SVP. Appellant waived his right to a probable cause hearing and was transferred to Coalinga State Hospital for treatment. He was at Coalinga 10 years before his commitment trial began in 2016. At trial, appellant largely conceded he met the first two criteria for commitment, namely that he has been convicted of a sexually violent offense, and he has a diagnosed mental disorder in the form of pedophilic disorder. (See Welf. & Inst. Code, § 6600 et seq. (SVP Act).) The only disputed issue was whether, because of that disorder, appellant poses a substantial danger to others in that he would likely commit sexually violent predatory crimes if he were released into the community. (Id., subd. (a)(1).)

The jury heard from five expert witnesses during the trial. They all agreed appellant’s pedophilic disorder is a chronic, lifelong condition that impairs his ability to control his sexual attraction toward children. But they disagreed on whether appellant has met all of his treatment goals and has the wherewithal to safely integrate into the community.

Dr. Timothy Salz testified that although appellant was entering the final phase of his treatment at Coalinga, he would have “an extraordinarily difficult time” adjusting to life outside that setting because of his limited intelligence and poor problem-solving skills. The concern wasn’t simply that appellant would be unable to cope with the challenges of everyday life. Rather, Dr. Salz feared appellant would be inclined to sexually reoffend in response to the inevitable frustrations he would encounter if he were released into the community. Beyond that, Dr. Salz was concerned that when he interviewed appellant before trial as part of his evaluation process, appellant minimized his prior sex crimes and lacked insight into why he committed them. In addition, while appellant said he would try to avoid being around children if he were released from Coalinga, Dr. Salz felt he lacked a realistic discharge plan and would have a very hard time keeping his deviant sexual impulses in check. Indeed, Dr. Salz believed that if appellant were released into the community, he would pose a substantial danger to others due to his pedophilic disorder.

Dr. John Hupka concurred in that assessment. He testified appellant scored a six on the Static-99 test, which is used to assess the risk of recidivism for sex offenders. That score indicates appellant is a “high-risk” offender, meaning there is about a 37 percent chance he would reoffend if he were released into the community. Dr. Hupka also noted appellant’s hospital records indicate he continues to have masturbatory fantasies about children. And although appellant has been well behaved in Coalinga and has never been found with child pornography, Dr. Hupka did not place much stock in that because Coalinga is a highly-structured, prison-like facility. Considering appellant’s cognitive limitations, his lack of insight, his minimal social support network, and the fact he has never lived on his own, Dr. Hupka opined there is a substantial, well-founded risk he would reoffend if he were released into the community.

The third expert witness to testify on behalf of the state was Dr. Douglas Korpi. He identified numerous factors that indicate appellant is a substantial danger to others, including the fact he has demonstrated a long-term interest in children, he identifies with children, and he has never been in a normal intimate relationship. Dr. Korpi was not comforted by the fact appellant has taken part in treatment at Coalinga since 2006. That’s because appellant’s prior rehabilitation/treatment efforts were unsuccessful, he has yet to fully complete his treatment program, and he still denies some of the offenses for which he was convicted. Moreover, while appellant has participated in treatment in the regimented setting of a state mental hospital, Dr. Korpi did not believe he would seek out-patient treatment if he were released from Coalinga.

The defense presented expert testimony from two forensic psychologists. Dr. Jeremy Coles testified he has evaluated appellant five times over the course of his ten-year stay at Coalinga. Following the first four evaluations, Dr. Coles was convinced appellant constituted a substantial danger to others. However, he changed his mind after the last evaluation, in 2015. When asked to explain the basis for this reversal, Dr. Coles said, “There’s nothing magical that happened.” He simply felt appellant had matured to the point where he has been able to make “significant improvement in treatment.”

Dr. Charles Flinton was also bullish on appellant’s prospects. He said appellant had addressed most of the issues in his treatment plan at Coalinga and had “kind of gone as far as he’s going to go in [that] setting[.]” He was also confident appellant had a solid discharge plan in that local chaplain Steve Lowe had agreed to assist appellant in finding housing, employment and out-patient treatment.[1] Dr. Flinton was not deterred by the fact appellant admitted having deviant masturbatory fantasies “a few years ago” and that he scored “very high” on the Static-99 recidivism test. In his opinion, enough time had passed, and there were sufficient safeguards in place, such that appellant did not present a serious and well-founded risk to the community.

The jury disagreed. Although the trial lasted several weeks, it took them less than a day to find appellant was an SVP. Based on that finding, the trial court committed appellant to Coalinga for an indeterminate term.

DISCUSSION

Appellant contends there is insufficient evidence to support the jury’s finding he is an SVP. We disagree.

“We review sufficiency of the evidence challenges under the SVP Act according to the same standard pertinent to criminal convictions. [Citation.] We thus review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] We may not determine the credibility of witnesses, nor reweigh any of the evidence, and we must draw all reasonable inferences in favor of the judgment below. [Citation.]” (People v. Fulcher (2006) 136 Cal.App.4th 41, 52.) The same rules apply when, as here, the case rests primarily on expert witness testimony. “‘The credibility of the experts and their conclusions [are] matters [to be] resolved . . . by the jury,’ and ‘[w]e are not free to reweigh or reinterpret [that] evidence.’ [Citation.]” (People v. Poulsom (2013) 213 Cal.App.4th 501, 518; accord, People v. Poe (1999) 74 Cal.App.4th 826, 831.)

Notwithstanding this deferential standard, appellant contends the evidence to support his commitment was insufficient in several respects. His primary argument is that there is a lack of evidence pertaining to what he calls “the Buffington factors,” i.e., recent objective indicia of his mental disorder, and a recent objective basis for finding he is likely to reoffend. (See People v. Buffington (1999) 74 Cal.App.4th 1149, 1161 (Buffington).) In Buffington, the court found these criteria ensure the SVP Act is constitutionally sound compared to other commitment schemes. (Id. at pp. 1159-1162.) However, the court did not rule that there must be proof of these factors at trial to warrant a commitment under the SVP Act. Rather, the court determined it was sufficient that the SVP Act as a whole ensures these criteria will be satisfied during the course of the entire commitment process in any given case. (Id. at p. 1161.) Therefore, appellant’s narrow focus on the Buffington factors is not well placed.

However, appellant’s broader point – that due process prohibits a person from being committed based on dangerousness alone, or simply by virtue of his past offenses – is certainly well taken. To ensure that does not occur, the SVP Act requires proof the person currently suffers from a mental disorder that prevents him from controlling his sexually violent behavior and presently makes him dangerous and likely to reoffend. (Welf. & Inst. Code, § 6600, subd. (a); Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162.)

The record in this case abundantly shows that appellant currently suffers from a mental disorder that prevents him from controlling his sexually violent behavior. All five expert witnesses diagnosed appellant as having pedophilic disorder, and all five of them testified the disorder is an incurable disease that substantially impairs appellant’s ability to control his sexual attraction toward children. While treatment can help appellant learn how to cope with his sexual urges, and avoid acting out on them, those urges – and the concomitant danger they pose to children – will never go away.

The main issue in this case is whether appellant’s pedophilic disorder presently makes him a substantial danger to others in that he is likely to engage in sexually violent predatory behavior if he were released into the community. As to that issue, appellant contends there is nothing in the record showing he currently lacks volitional control over his sexual urges. While it is undisputed he committed a series of child sex crimes as a teen and young adult, appellant claims there is little risk of him offending now because he has undergone treatment at Coalinga for several years and he has never acted out in that setting.

However, appellant had sex offender treatment prior to entering Coalinga when he was a younger, and that did not prevent him from engaging in sexually violent predatory behavior. And despite having had extensive treatment at Coalinga, appellant’s records show he continues to have masturbatory fantasies involving children.

To be sure, appellant deserves credit for demonstrating good behavior at Coalinga. But, as he readily admits, the staff there monitors and cares for him around the clock every single day of the year. If appellant were released into the community, the structured support in which he has spent most of his adult life would be a thing of the past.

According to the state’s experts, that would be a serious concern. They testified that appellant not only has a dangerous sexual disorder, he has limited intellectual functioning, as well. The fear, as expressed by Dr. Salz, is that appellant’s low I.Q. would make it hard for him to cope with and adapt to life outside Coalinga. And in response to those difficulties, appellant would be inclined to act out sexually to relieve his anxiety and frustration.

Appellant’s cognitive disabilities are only part of the problem, however. The state’s experts identified a slew of other factors that make appellant dangerous, including the fact he 1) strongly identifies with children, 2) has serious intimacy issues,

3) continues to minimize his past offenses, 4) lacks insight into his disorder, and 5) has a very limited social support network. Based on these factors, the jury could reasonable conclude appellant is currently a danger to others in that he would likely reoffend if he were released into the community.

In deciding that issue, the jury was also entitled to consider the expert opinions offered by the state’s witnesses. While appellant assails their opinions as speculative and subjective, they each personally interviewed appellant and reviewed his extensive criminal and mental health history before formulating their opinions about his dangerousness. And, rather than relying on their own intuition, they assessed appellant’s dangerousness by employing the Static-99 test, which Dr. Salz described as the most well-researched and highly-regarded instrument for determining the risk of sexual recidivism. Without exception, they concluded appellant’s test score demonstrated he was a high risk for sexually reoffending.

Admittedly, the defense experts had a different take on the issue of appellant’s dangerousness. But the jury ultimately found their opinions unpersuasive, and as we have noted, we are not at liberty to second-guess its assessment of the expert testimony. Instead, we are duty bound to construe the evidence in favor of the jury’s decision. Reviewing the record in that light, there is substantial evidence to support the jury’s finding that appellant meets the criteria for commitment as an SVP. Therefore, we are powerless to disturb its verdict.

DISPOSITION

The judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.