P. v. Stuber

Filed 8/22/06 P. v. Stuber CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Joseph Stuber appeals an order determining him to be a mentally disordered offender (MDO), and recommitting him to the Department of Mental Health for treatment. (Pen. Code, § 2962 et seq.)[1] We conclude that sufficient evidence supports the recommitment order and affirm. (§ 2972, subd. (c).)

FACTS AND PROCEDURAL HISTORY

In 1996, Stuber was convicted of six counts of child molestation and one count of attempted forcible child molestation. (§§ 288, subds. (a) & (b), & 664.) The San Diego County Superior Court sentenced him to sixteen years' imprisonment.

On August 16, 2004, the Board of Prison Terms determined that Stuber was an MDO pursuant to the criteria of section 2962. As a condition of parole, it required him to accept treatment from the Department of Mental Health. Stuber filed a petition pursuant to section 2966, subdivision (b), to contest the decision of the Board of Prison Terms. The trial court determined that Stuber met the requirements of section 2962, subdivision (d)(1), beyond a reasonable doubt. In an unpublished decision, we affirmed. (People v. Stuber (Nov. 28, 2005, B180231).)

On August 22, 2005, the Board of Prison Terms decided to continue Stuber's mental health treatment. Stuber filed a petition pursuant to section 2966, subdivision (b), to challenge the decision. A court trial followed.

At trial, Doctor Allen Roske testified that he is Stuber's treating psychologist at Atascadero State Hospital. He opined that Stuber suffers from the severe mental disorder of pedophilia. Stuber described pedophilia as "a lifelong disorder, so by definition, [it is] not known to go in remission." Roske opined that Stuber required further treatment "in order to have reasonable hopes of being kept in remission in the sense of an absence of the offending [pedophilia] behavior" upon release.

Doctor Roske opined that Stuber presents a substantial physical danger to others by reason of his pedophilia. He explained that Stuber suffers from a serious mental disorder that caused him to commit sexually violent crimes, he had failed supervised release and treatment efforts, he had possessed assault and other rifles, paralyzing spray, knives, duct tape, and a handcuff key, and was fascinated with serial killers. Roske read a portion of a letter that Stuber had written to the probation officer at the time of sentencing: "I feel extremely helpless after many years of involvement in pedophilia. You could tell me a hundred different things to do to change[.] I'm not interested. Death is my only deliverance. I needed help. Now it is too late."

Doctor Roske also testified that Stuber recently had received a "very bizarre" letter from "a person who has an ongoing pedophilic desire." Stuber kept the letter with his property at the hospital.

The trial court determined that Stuber met the criteria of section 2972, subdivision (c), beyond a reasonable doubt. It recommitted him to the Department of Mental Health for treatment.

Stuber appeals and contends that the MDO law does not apply to him because pedophilia is not treatable or subject to remission.

DISCUSSION

Stuber argues that the MDO law encompasses severe mental disorders that are treatable and that can remit. He points out that section 2962, subdivision (a), defines "remission" as "a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support." (See generally § 2960 [Legislative findings and declarations regarding MDO law].) Stuber relies upon Doctor Roske's opinion that pedophilia is a lifelong mental disorder that does not remit.

For several reasons, we reject Stuber's contention that pedophilia, either abstractly or as his severe mental disorder, is untreatable and incapable of remission.

In People v. Starr (2003) 106 Cal.App.4th 1202, 1205-1207, we concluded that pedophilia is a severe mental disorder within the MDO law. We reasoned that the Legislature used a broad definition of "severe mental disorder," and that it expressly included child molestation as an underlying offense for purposes of the MDO law. (§ 2962, subd. (e)(2)(I-J).) We also rejected the contention that pedophiles fall exclusively under the Sexually Violent Predators Act, and not the MDO law. (People v. Starr, supra, 106 Cal.App.4th 1202, 1207.) Moreover, a judicial opinion recognizes that pedophilia is amenable to treatment. In People v. McCune (1995) 37 Cal.App.4th 686, 696, the court summarized expert opinion that concluded that "many pedophiles, following treatment, have been released into the community and have been able to control their behavior and lead fairly normal lives."

In addition, Doctor Roske testified that Stuber had not committed pedophilic acts in the state hospital because children were not present. Roske opined that Stuber required "further treatment, as well as ongoing treatment once released into the community, in order to have reasonable hopes of being kept in remission in the sense of an absence of the offending behavior being repeated." Thus, Roske believed that Stuber would benefit from further treatment to reduce the risk of reoffending after his release from the hospital. Remission in this sense is possible for Stuber – control of the "overt signs and symptoms" of pedophilia. (§ 2962, subd. (a).)

The order of recommitment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Michael L. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

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

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Marc E. Turchin, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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