P. v. Scott

Filed 8/29/07 P. v. Scott CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant appeals from a jury finding determining that he is a sexually violent predator (SVP) under Welfare and Institutions Code section 6600 et. seq.,^[1]and the subsequent order of the trial court committing him to Coalinga State Hospital for two years. We affirm.

Background

The District Attorney for the City and County of San Francisco filed a petition to commit appellant as an SVP on October 24, 2000. A probable cause hearing was held in May of 2001, and the court determined that probable cause had been adequately demonstrated. After procedural delays, the matter was tried to a jury on March 8, 2006. The jury found the petition true, and the trial court ordered appellant committed to Coalinga State Hospital for two years. The following evidence was presented at the trial.

A. Prosecution Case.

Several experts testified for the prosecution. Dale Arnold, Ph.D., testified that appellant met the criteria for commitment as an SVP. He based his opinion on the criminal, medical, and mental health records relating to defendant. Appellant refused to be interviewed by Dr. Arnold, but Dr. Arnold was nevertheless confident in his opinion that appellant was an SVP, since that diagnosis is based upon a long-term pattern of behavior, over time.

Appellant had been convicted of sexually violent offenses against several persons.^[2] In 1968, appellant (then 17 years of age) pleaded guilty in Oklahoma to the rape of Patricia D. The victim was alone at a friends house when appellant and an accomplice tried to get into the home, claiming they knew the owner. When the victim refused them entry, they broke into the house. Appellant raped the victim while his accomplice stole items from the residence. Appellant told the police that he heard screams and entered the residence to help the victim, but his accomplice confessed to the crime and gave an account similar to that of the victim. Appellant was sentenced to state prison and was released in 1973.

In 1974, appellant (then 23 years of age) was convicted in Oklahoma of raping a 12-year-old victim, J.P. Appellant had been babysitting several children, including the victim. He sent some of the children upstairs and locked J.P.s brother out of the house. He then showed J.P. a knife, saying he was going to rape her; he used the knife to cut her underwear. He penetrated her vagina with his penis until she was bleeding and in pain; when the bleeding would not stop, he used a tampon and towel to try to hide what had happened. He told the police that someone else raped the victim and that he was trying to help her, but the victims brother had witnessed the rape through a window. Appellant was again sentenced to prison, and was released in 1980.

In 1981, appellant was charged with sexually assaulting a victim named Paulette, but the charges were dropped when she failed to appear in court to testify.^[3] In this incident, the victim returned to her apartment early in the morning; appellant was there wearing a security uniform. Believing that appellant was associated with police officers who had just arrested her boyfriend, the victim spoke with him. When she attempted to shut the apartment door, however, appellant stepped in. He raped her and attempted to sodomize her. During the assault, appellant told the victim that he had been watching the apartment and would have preferred to rape her roommate, whom he found more attractive. He told her that he would kill her if she reported the crime. After she reported the offense, he returned three days later and beat her badly.

In 1982, appellant was convicted of raping and sodomizing a 15-year-old victim, Delores B., whom he had met while talking with her mother. The victim was walking to a friends house when appellant confronted her and invited her to join him for a drink. She agreed and went to his home, where he supplied her with alcohol and showed her his gun. There was a conflict in the evidence as to whether she was forcibly pulled to his bedroom, or simply led there by her hand. They had intercourse; she indicated that she was dizzy, resisted him, and told him no.^[4] Afterward, he took her to a tennis court, where he forcibly raped her. She vomited during the rape, but appellant continued to rape her and then sodomized her. Appellant was sentenced to prison for this offense, and was released in 1994.

In 1994, appellant pleaded guilty to molesting six-year-old A.F. over a two-month period, including digital penetration, oral copulation, rape, and sodomy. He initially denied the offenses when a probation officer interviewed him, but ultimately admitted his prior sexual offenses and asked for treatment. He was placed on five years probation. He was put in a treatment program when he was on probation, but failed to show up, fell asleep during sessions he did attend, and was generally noncompliant, which caused the program to terminate him. He was placed in a second program, but rather than attend, he absconded from probation for a year before being arrested, and subsequently sentenced to prison.

Dr. Arnold diagnosed appellant with paraphilia (not otherwise specified),^[5]with pedophilic and coercive traits. Appellants pattern of sexual offenses from age 17 to 43 demonstrated that nonconsenting sex was a drive he could not control. Despite the penal and personal consequences of his crimes, appellant was not deterred from offending, usually within a short period of time. The manner in which appellant committed his crimes also supported the diagnosis; for example, he continued raping Delores B. even though she was vomiting, and he had been watching Paulette and responded to her crying and indicating that she had a medical condition by saying, I dont care. That stuff doesnt work with me. The terror of the victims was apparently exciting to him. Notable also was the fact that appellant had dating relationships in the past and thus had access to consensual sexual partners; the fact that he nevertheless chose to commit forcible sex crimes supported the paraphilia diagnosis. Dr. Arnold also found it unusual that appellant assaulted both adults and children, as most sex offenders tend to prefer one or the other age group, and most pedophiles groom their victims rather than use force. Most rapists are not paraphilic, but Dr. Arnold opined that appellant was a paraphilic rapist.

Dr. Arnold testified that appellant was likely to engage in violent sexual predatory conduct if released into the community. Appellant received a score of seven on the Static 99 (an actuarial instrument for predicting sexual recidivism), which put him in the high risk category. This corresponded to a 52 percent chance of reoffense within 15 years. The intensity of his sexual deviancy (demonstrated by his sexual offenses starting when he was a juvenile), his dropping out of sex offender treatment, his high score on the psychopathy checklist, his intimacy deficits, his lack of sexual self-regulation, his poor cooperation with community supervision, and his lack of general self-regulation (impulsivity, poor problem-solving skills), all made appellant likely to reoffend. Factors that decreased his risk of reoffense included appellants age and medical problems, though neither was sufficient to bring his risk level below that required for SVPA commitment. His most recent offense, against a six-year-old victim, demonstrated that had adapted to his age and physical condition by changing the victims he selected.

Mohan Nair, M.D., was the second expert for the prosecution. Appellant again refused to submit to an interview by this prosecution witness. Dr. Nair diagnosed appellant with paraphilia (not otherwise specified), nonconsenting adults; pedophilia; and alcohol abuse. Paraphilia is indicated by persistent sexual urges, fantasies, or behaviors directed toward nonconsenting partners. Dr. Nair based his diagnosis of paraphilia on the fact that appellant had essentially dedicated his life, from age 17 on, to pursuing his sexual drive to rape women and children. As the doctor explained, The urge to rape and commit sexual acts against children is so strong that it overrides his fear of the law, punishment, and the hurt that he causes people, including his own family members.  [] . . .[] When he has been on the outside and he has had the opportunity, his sexual deviance disease resurfaces over and over again. Paraphilia is chronic and generally does not abate without intervention. The diagnosis may be based upon a pattern of behavior alone, as an individual may not admit fantasies or urges. Only those rapists with strong, repeated urges over a long period of time qualify for this diagnosis.

Dr. Nair opined that appellant was likely to commit sexually violent predatory acts if released into the community. Appellant twice failed to complete sex offender treatment, when ordered to do so as a condition of probation. His score on the Static 99 put him in the highest risk category for reoffense. The strength of his sexual deviance and lack of self regulation also contributed to his risk of reoffense. Appellants medical problems would not prevent him from reoffending in a sexually violent manner, nor did his age reduce the risk, since his offenses included crimes against children. Offenders who sexually assault children may continue to commit crimes into their 60s and 70s.

John Hupka, Ph.D., also testified for the prosecution. When he evaluated appellant in 2000, appellant consented to be interviewed; when Dr. Hupka updated his evaluation in 2003, appellant refused to participate. Dr. Hupka found appellant to qualify as a psychopath on the Hare Psychopathy Checklist, which means that appellant functioned without any constraints of conscience to make him feel guilty or remorseful for his conduct. In the 2000 interview of appellant, appellant first claimed he did not remember the Patricia D. offense, yet later made reference to his arrest for the crime. He minimized the J.P. offense, claiming that he caught a rape case, and that he was tricked into the Delores B. crime because the victim looked older than 15. He denied the A.F. offense, despite his request for sex offender treatment when he was arrested for it.

Dr. Hupka diagnosed appellant with paraphilia (not otherwise specified), sex with nonconsenting persons, pedophilia, and mixed personality disorder with antisocial and narcissistic characteristics. He noted an element of sexual sadism in appellants crimes, exemplified by cutting off one victims clothes with a knife and by his disregard of the victims pleas for him not to rape them. Dr. Hupka did not, however, separately diagnose sexual sadism. In Dr. Hupkas opinion, forcing sex with nonconsenting victims aroused appellant, and he used sexual sadism in accomplishing that end. Although appellant was diagnosed with pedophilia, Dr. Hupka felt it was secondary to appellants need to have sex with nonconsenting victims; children just made easier targets for his crimes. Appellants motivation, to have sex with nonconsenting victims, was exemplified by his longstanding pattern of committing forcible sex crimes, being incarcerated, and then reoffending, as well as by the fact that the vast majority of his crimes were sexual assaults. The coercive sexual nature of appellants offenses indicated that his motivation was rooted in sexual deviance, rather than in his antisocial personality. Most rapists are not repeat offenders, and most are not paraphiliacs. Appellants repeated forcible sexual offenses, despite capture, incarceration, and treatment, demonstrated that his continuous interest in coercive sex was deep seated and recalcitrant. Appellant was unable to limit his sexual deviancy to fantasy or masturbatory activity and instead repeatedly acted upon it.^[6]

Dr. Hupka also opined that appellant was likely to engage in sexually violent predatory behavior in the future, as a result of his mental disorder. History, in his opinion, is the best predictor of the future. Here, appellant committed forcible sex crimes over four decades and the doctor felt there is no reason to think that his behavior in the year 2000 would be any different. Appellants score on the Static 99 put him in the high risk category, as did other factors such as his psychopathy, personality disorder, and history of poor cooperation with supervision. Neither age nor medical problems reduced the risk sufficiently to bring his risk level below that required for commitment as a SVP.

As to Dr. Hupkas diagnosis of antisocial narcissistic type personality disorder, he found that appellant was guarded and not forthcoming in the 2000 interview. Appellant disclosed nothing about being sexually abused himself. While he said that sex offenses were shameful, he denied guilt for any. He was very self-focused, taking no responsibility and feeling no remorse for his actions.

Finally, L. C. Miccio-Fonseca, Ph.D., testified as an expert for the prosecution. When she evaluated appellant in 2000, he participated in an interview with her; he refused to do so for subsequent evaluations. In 2000, Dr. Miccio-Fonseca found that appellant qualified for commitment as an SVP; in 2003, she found he did not, stating that his medical condition would reduce likelihood that he would commit sexual crimes in the future. In 2005, she found he again qualified for SVP commitment, as his medical condition had improved. Like the other prosecution experts, she diagnosed appellant with paraphilia (not otherwise specified), based upon his pattern of repeated reoffending despite incarceration, and based upon the manner in which his offenses were committed. She emphasized his use of excess force on his child victims, including using a knife to cut off J.P.s panties and using a gun (as well as continuing to assault the victim despite her vomiting) in Delores B.s case. The use of the additional force, above that required to subdue a minor victim, raised the victims level of terror; the victims fear did not stem appellants arousal.

Dr. Miccio-Fonsecas opinion that appellant was likely to engage in sexually violent predatory acts in the future was based upon his score on the Static 99, as well as the Sex Offender Risk Appraisal Guide; both put him in the high risk category for reoffending. His antisocial personality disorder, high score on the Hare Psychopathy Checklist, high score on the Level of Service Inventory (Revised), early onset of sexual offenses, past poor cooperation with probation and parole, developmental trauma and early educational problems, substance abuse issues, anger management problems, and early departure from prior treatment programs, all increased his risk of reoffending in a sexually violent, predatory manner.

B. Defense Case.

Three experts testified for the defense. Raymond Anderson, Ph.D., interviewed appellant in 2002 and 2005, and opined that appellants risk of reoffending was less than five percent over five years, based upon a study different from those used by the prosecution experts. Dr. Anderson felt that the Static 99 had a weak, although statistically significant, accuracy in predicting future serious sexual offenses. He opined that appellant did not suffer from a qualifying mental disorder, as required for commitment as an SVP.

Dr. Anderson felt that appellant was a situational, opportunistic offender, not one who was motivated by an internal urge to rape. It appeared that appellant had consensual sex with some of his victims before he raped them, which Anderson felt was inconsistent with an offender who prefers nonconsensual sex. Dr. Anderson felt that someone with preferential rape disorder would have a lot more than four offenses in his record, and some of the personality tests he administered to appellant suggested that he did not function like an offender who prefers forcible sex. Even though Anderson was aware that appellant had previously requested treatment for his condition, he did not discuss the treatment (or appellants failure to complete it) in his interviews.

The second defense expert was John Podboy, Ph.D., who interviewed appellant three times in 2002.^[7] Dr. Podboy administered personality tests which showed that appellant was not antisocial or psychopathic. He felt a diagnosis of antisocial personality disorder was inappropriate since appellants crimes did not begin before the age of 15. He found no indication of paraphilia or pedophilia. In Dr. Podboys opinion, appellant was not driven by a mental disorder; he committed sex crimes because he was a criminal. Dr. Podboy concluded that appellant was highly unlikely to reoffend if released, in light of his age and medical condition.

Theodore Donaldson, Ph.D., was the third defense expert. Dr. Donaldson interviewed appellant in 2005. He also opined that the Static 99 was not an accurate instrument for predicting reoffense, as the percentage of recidivism had significantly declined in the last several years, because the Static 99 had a false positive rate, and because factors otherwise considered in addition to the test could overlap with those already considered by implementation of the Static 99. He found insufficient evidence of paraphilia and noted that the Diagnostic and Statistical Manual of the American Psychiatric Association did not include a category for paraphilic coercive disorder because, among other reasons, indicators of paraphilic rape are too difficult to determine.

Discussion

Appellant contends that there was insufficient evidence that his volition was impaired as the result of a mental disorder and that the SVPA, as applied to him, violated his due process right to remain free from confinement. Neither contention has merit.^[8]

A. Sufficiency of Evidence.

We of course evaluate the entire record in the light most favorable to the judgment and determine if it is supported by substantial evidence. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) We do not reevaluate the credibility of the witnesses, nor do we reweigh the strengths of their expert opinion; we must draw all reasonable inferences, and resolve all conflicts in the evidence, in favor of the judgment. (People v. Sumahit, supra, 128 Cal.App.4th at p. 352.)

Applying this standard of review in the present case, it is abundantly clear that the jurys determination that appellant qualified as an SVP was supported by sufficient evidence. The prosecution had the burden of proving that appellant had been convicted of two distinct sexually violent offenses, that he had a diagnosed mental disorder which rendered him a danger to the health and safety of others, that his mental disorder made it likely that he would reoffend sexually if released, and that his sexual offenses would be predatory. (People v. Roberge, supra, 29 Cal.4th at p. 985.) That appellant had suffered at least two distinct sexually violent offenses is without question; appellant does not contend otherwise. Instead he argues that the prosecution failed to prove that he currently suffered from a sexual mental disorder, or that he was volitionally impaired because of a mental disorder. Although each of the prosecutions four expert witnesses agreed that appellant met these criteria, appellant contends that their testimony should be discounted.

Appellant first contends that the prosecution experts based their diagnoses solely on his prior convictions, and not on anything else. Thus, the argument goes, there was no evidence of present fantasies, or urges or misconduct with respect to minors or non-consenting partners and thus no evidence that appellants diagnosis was current. While a prior conviction of an enumerated sex offense shall not be the sole basis for the determination that the individual is an SVP, the SVPA specifically recognizes that prior convictions of enumerated offenses shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, and there is no restriction on the use of a persons prior conduct by a mental health expert in diagnosing a person with a requisite mental disorder. ( 6600, subd. (a)(3).) As testified to by the prosecution experts, all of whom agreed that appellant suffered from the mental disorder of paraphilia, that diagnosis may be based upon an individuals past conduct. While the diagnosis of paraphilia also could be based upon a persons fantasies or masturbatory conduct, neither is a sine qua non of the diagnosis. Additionally, since appellant refused to be interviewed recently by the prosecution experts, none of them could question him about current conduct, including his current fantasies or masturbation.^[9] Additionally, two prosecution experts diagnosed appellant with pedophilia; he was also diagnosed with antisocial personality disorder.

The prosecution experts did not rely solely upon appellants prior sexual offenses in their determination that he qualified as an SVP. They also relied upon the manner in which appellant committed the offenses (sexual deviance, sadism, use of force above that required to subdue his minor victims, and his choice of both adult and child victims), the frequency and continuous nature of those offenses (despite periods of incarceration and treatment),^[10]the young age at which he began to sexually assault victims, his failure on probation and parole, and in treatment programs (poor cooperation with community supervision), lack of self-regulation (impulsivity, poor problem-solving skills, lack of constraints of conscience, anger management problems), his developmental trauma and early educational problems, his substance abuse issues, his antisocial personality disorder, and test results, as supporting their opinions that appellant had a diagnosed mental disorder which rendered him a danger to the health and safety of others, and that his risk of reoffending in a sexually violent predatory manner rose to the level required for commitment as an SVP. While appellant can point to instances in the record where his own experts disagreed with the prosecution witnesses, that conflict in the evidence was for the trier of fact, not the appellate court, to resolve. The record was replete with evidence that appellant qualified as an SVP; there certainly was sufficient evidence to support the jurys determination in that regard.

B. Due Process Violation.

Appellant cites authority which indicates that, in order to be committed as an SVP, he must be diagnosed with a mental disorder that makes it difficult, if not impossible, for [him] to control his dangerous behavior. (Seee.g., Kansas v. Hendricks (1997) 521 U.S. 346, 358.) He basically argues that the prosecution experts relied exclusively upon his prior sexual offenses as the basis for their diagnoses of a mental disorder, and that the SVPA therefore violates due process, as applied to his case.

The California Supreme Court has rejected arguments that the SVPA violates due process because it authorizes the use of an individuals prior convictions to prove that an individual is mentally disordered, a predator, and dangerous. As the court indicated in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1163, in addressing defendant Hubbarts due process challenge to the SVPA, In a related vein, Hubbart criticizes the Act because it authorizes the use of prior qualifying sex crimes to prove that the alleged predator is mentally disordered and dangerous. Hubbart suggests that this method of establishing the likelihood of future criminal conduct is inherently flawed, and that the statute does little more than establish a presumption of danger based on past crimes. [] We disagree. Notwithstanding the nuances of psychiatric diagnosis and the difficulties inherent in predicting human behavior, the United States Supreme Court has consistently upheld commitment schemes authorizing the use of prior dangerous behavior to establish both present mental impairment and the likelihood of future harm. [Citations.] [] Here too, the Legislature could reasonably conclude that the evidentiary methods contemplated by the Act are sufficiently reliable and accurate to accomplish its narrow and important purposeconfining and treating mentally disordered individuals who have demonstrated their inability to control specific sexually violent behavior through the commission of similar prior crimes. As noted, the Act precludes commitment based solely on evidence of such prior crimes. ( 6600, subd. (a).) We find no patent due process violation on this ground.

By similar reasoning here, the fact that the prosecutions experts relied upon appellants past offenses in diagnosing him with mental disorders which rendered him a danger to the health and safety of others and which made it likely that he would reoffend sexually in a predatory manner if released, does not mean that the SVPA violates due process as applied to appellant. This is not the case which caused Justice Werdegar concern in her separate concurring opinion in Hubbart, cited by appellant, where she indicated that If, however, such a diagnosis is based largely on the persons prior offenses, it may add little to the reliability of the finding. To the extent the diagnosis simply places a psychiatric label on a particular character structure or a generalized propensity to do ill, Fouchas^[11]warnings assume more immediate constitutional significance. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1181.)^[12]As in Hubbart, however, we find no reason for concern that appellants diagnosis was so rooted in his prior sexual offenses so as to simply place a label on appellants particular character structure or . . . generalized propensity to do ill . . .  (Ibid.) The Court of Appeal unanimously rejected a similar due process argument in People v. Talhelm (2000) 85 Cal.App.4th 400, where the court explained While we are mindful of Justice Werdegars concern, we are convinced that defendant was found a sexually violent predator in full compliance with his substantive due process rights . . . . [T]wo qualified mental health professionals testified that defendant was a pedophile, and that he would likely engage in future sexually violent behavior if released into the community without treatment. The expert testimony was based not only on defendants prior convictions, but also on the results of clinical tests . . . . [] [Moreover], the jury was instructed that although it could consider defendants priors as evidence that he was a sexually violent predator, it could not find defendant a sexually violent predator based only upon the priors without relevant evidence of a currently diagnosed mental disorder. Absent evidence to the contrary, we must assume that the jury followed the courts instruction. [Citation.] (Id. at p.409.) The situation is no different here, where multiple qualified mental health professionals testified that appellant had mental disorders and that he was likely to reoffend in a sexually violent predatory way if released, based not only on his prior convictions, but also upon the results of clinical tests and numerous other factors detailed above.

Nor is there reason for concern that appellants prior sex offenses are the only basis for the experts opinions that he has the requisite mental disorder, which may in turn be the only basis for an experts further opinion that he lacks control, as argued by appellant, relying on People v. Burris (2002) 102 Cal.App.4th 1096, 1109. As noted by the Burris court in rejecting that argument, there is evidence in the present case that each time appellant was released into the community he would reoffend, and community supervision, whether through probation, parole, or sex offender treatment programs, did not inhibit his conduct. Here, as in Burris, this evidence, along with the expert opinion that appellants lack of control was due to a diagnosed mental disorder (even though that opinion was tied back to the manner in which he committed the crimes and his inability to stop committing crimes despite penal intervention) was sufficient evidence that he had a mental illness which made him unlikely to be deterred by the threat of criminal punishment, and hence likely to reoffend. This amounted to sufficient evidence of lack of control. (Id. at pp. 1110-1111.)^[13]

We note also that to hold otherwise would be ludicrous in light of appellants refusal to currently be interviewed by the states experts. The prosecutions experts had their hands tied, to a degree, by appellants lack of cooperation. Because of this, they were required to rely more heavily than they otherwise might have upon the circumstances of his past offenses and behavior when he was previously released into the community.^[14] However, the record reflects ample evidence of the required factors for appellants commitment as an SVP, as detailed above, including evidence apart from the fact that he committed prior sexual offenses.

Disposition

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Reardon, J.

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^[1]All further section references are to the Welfare and Institutions Code.

^[2]The prosecution had the burden of proving that appellant had been convicted of two distinct sexually violent offenses, that he had a diagnosed mental disorder which rendered him a danger to the health and safety of others, that his disorder made it likely he would reoffend sexually if released, and that his sexual offenses would be predatory. (People v. Roberge (2003) 29 Cal.4th 979, 985.)

^[3]The psychologist considered this offense in forming his opinions, even though it did not result in a conviction and was therefore not a qualifying conviction under the Sexually Violent Predator Act (SVPA).

^[4]Appellant was not convicted of any forcible sex crime for this first sexual intercourse.

^[5]Dr. Arnold described the criteria for paraphilia as for a period of six or more months, the person has recurrent urges, fantasies, or behaviors that has [sic] nonconsenting sexual contact.

^[6]When Dr. Hupka interviewed appellant in 2000, he was not forthcoming about fantasies or urges, but Dr. Hupka felt that such urges and fantasies probably existed, due to appellants behavior.

^[7]Dr. Podboy also interviewed appellants mother and other family members.

^[8]Respondent, citing People v. Sumahit (2005) 128 Cal.App.4th 347, 349, contends that appellant is precluded from challenging the sufficiency of the evidence that he currently lacks the ability to control his behavior, since he refused to be interviewed recently by the prosecutions experts regarding the current status of his mental abnormality that is the basis of his SVP commitment. Appellant responds that he was twice interviewed by experts for the state, and was not required to submit to any further interviews. While appellant did participate in interviews with two experts for the prosecution in 2000, he refused to do so in later years. We agree that appellant should be foreclosed from raising this issue on appeal, but elect to address the merits of his arguments as well.

^[9]Appellant contends that since he has not acted out sexually in prison, he is unlikely to do so if released. Appellants argument not withstanding, one could hardly expect that he would engage in coercive sexual conduct while in prison, given the severe restrictions of his confinement, the lack of available female victims during his imprisonment, and his recent turn to very young victims (also unavailable in the prison setting). Appellants conclusion, that if he had desires to act out sexually while confined that he obviously was exercising control over them, is therefore virtually irrelevant to his ability to exercise such control if released into the community.

^[10]Dr. Hupka described appellants continual interest in coercive sex as deep seated and recalcitrant, for example.

^[11]Justice Werdegar references the Supreme Courts holding in Foucha v. Louisiana (1992) 504 U.S. 71, where the court rejected the states argument that because Foucha (an insanity acquitee) once committed a criminal act and now had an antisocial personality that sometimes leads to aggressive conduct (for which there is no treatment), he could be held indefinitely.

^[12]We initially note that a concurring opinion by a single justice, representing less than a majority of our Supreme Court, does not constitute binding authority. (E.g., Adoption of Kelsey S. (1992) 1 Cal.4th 816, 841.)

^[13]Nor do we find Kansas v. Crane (2002) 534 U.S. 407, relied upon by appellant, to be helpful to the determination of this case. The court in Crane rejected the civilly committed sex offenders argument that Kansas v. Hendricks, supra, 521 U.S. 346 requires total or complete lack of control in order for civil commitment. The court did, however, require some lack-of-control determination, in order to maintain a distinction between a dangerous sexual offender subject to civil commitment from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings,. . . lest civil commitment become a mechanism for retribution or general deterrence. . . . [Citation.] (Crane, supra, at p. 412.) Given the prosecutions experts opinions and appellants history of reoffending very soon after release and poor response to community control, there was ample evidence that appellant had a severe lack of control.

^[14]We do not intend, however, to imply that their reliance upon these factors was in any way improper, as previously explained.