P. v. Whitley

Filed 10/16/07 P. v. Whitley CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Barry Creath Whitley appeals from an order extending his commitment to the Department of Mental Health for treatment and confinement at Coalinga State Hospital,[1] entered after the trial court found him to be a sexually violent predator under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, 6600 et seq.)[2] We affirm the order.

I. BACKGROUND

On May 13, 2005, the Contra Costa County District Attorney filed a petition to extend defendants commitment as a sexually violent predator. Finding probable cause to believe that defendant had a currently diagnosed mental disorder that made him likely to engage in sexually violent predatory criminal conduct upon his release, the trial court ordered him to stand trial on the petition. A jury trial commenced on April 24, 2006.

A. Prosecution Case

1. Prior Sexual Offenses

In March 1965, Sharon S. invited defendant into her home when he inquired about renting an apartment at the rear of the property. Defendant picked up Sharon S.s nine-month-old baby and threatened to kill the baby if she did not have sex with him. Sharon S. complied. After having intercourse with Sharon S., defendant talked with the victim, apologized, gave her a partial pack of cigarettes, and left. Defendant later admitted the offense to police. He also told police that he had raped another woman and attempted to sexually assault a third woman that same day.

On February 3, 1976, defendant saw a For Rent sign and discussed renting the home with Kathy H., who was inside. Kathy H. invited him in to see the house. While in the bedroom, defendant grabbed Kathy H. around the throat and threatened to harm her children if she did not submit to him. She submitted to his demands, including unzipping his pants, fondling his penis, and orally copulating him until she gagged. Defendant then raped her. Afterward, he walked around the house as if nothing had happened and then left. He later admitted the rape. Defendant was convicted of rape by threat and oral copulation for the attack on Kathy H.

On February 4, 1976, defendant offered his girlfriends 12-year-old babysitter, Brenda D., a ride home. On the way to her house, defendant pulled over, threatened her with a knife, and forced her to undress. When Brenda D. refused to touch his penis defendant said, You dont want to be killed now, do you[?] Brenda D. complied. He digitally penetrated her vagina and forcibly raped and sodomized her, leaving bite marks on her breasts and a fingernail scratch on her right thigh. Defendant was convicted of lewd and lascivious conduct, rape, and sodomy with force of Brenda D.

2. Expert Testimony

Dr. Dawn Starr is a licensed psychologist and was qualified by the court as an expert in the diagnosis of mental disorders and in the assessment of risk associated with those disorders. She interviewed defendant in February 2005. In Dr. Starrs opinion, defendant suffered from paraphilia not otherwise specified (paraphilia NOS). The essential features of paraphilia NOS are recurrent, intense, sexually arousing fantasies, urges, or behaviors involving either: (1) nonhuman objects; (2) the suffering or humiliation of ones self or ones partner; or (3) children or other nonconsenting persons that occur over a period of at least six months. Dr. Starr based her diagnosis of paraphilia NOS in defendants case on his conduct toward nonconsenting persons. Based on defendants records, Dr. Starr stated also that defendants paraphilia disorder encompassed a wide variety of sexual deviancy, including acts of exhibitionism toward both male and female victims, pedophilia, and voyeurism.

Dr. Starr also diagnosed defendant as suffering from antisocial personality disorder (ASPD). She defined this disorder as an enduring pattern of inner experience or behavior, typically beginning in childhood, that deviates markedly from the norms and expectations of the persons culture. In defendants case, he was reported as being truant from school, getting into fights, stealing, going into the girls bathroom, and engaging in other behaviors that are illegal. As an adult, in addition to the rape convictions described earlier, he was involved in documented or admitted incidents of indecent exposure, sexual assaults or attempted assaults that did not result in criminal convictions, the molestation of his stepdaughter, an attempted jail escape that included assault on a police officer, multiple vehicle thefts, and writing bad checks.

Dr. Starr also opined that defendant suffered from a mood disorder and dementia caused by a previous head injury that exacerbated his tendencies to be impulsive and angry. Although defendant at one point took Prozac for his mood disorder, he later refused to take the medication.

In assessing defendants risk of reoffending in a violent, predatory manner, Dr. Starr looked to both static factors that do not change over time and dynamic factors, such as personality characteristics and lifestyle situations, that a person has the ability to change. She utilized an actuarial instrumentthe STATIC 99to rate defendants risk of reoffending based on historical factors. The STATIC 99 assigns a score to an offender based on the presence or absence of certain static (historic) risk factors that were found to be statistically correlated, in a sample population of offenders, with subsequent reconvictions for sexual offenses. Starr gave defendant a STATIC 99 score of 11 out of a maximum possible score of 12. Dr. Starr explained that a score of 6 puts an offender in the highest risk category. A score of 6 or higher is predictive of a 39 percent probability that the sex offender will be caught and reconvicted of an offense within five years, a 45 percent chance of reconviction within 10 years, and a 52 percent chance of reconviction within 15 years. According to Dr. Starr, these numbers are believed to underestimate the actual risk of reoffense since they do not take into account reoffenses that do not result in convictions. Having scored approximately 400 individuals on the STATIC 99 in her career, Dr. Starr has never seen anyone with a higher STATIC 99 score than defendant. Dr. Starr cited as additional risk factors that defendant: (1) had a wide victim pool given that he had committed sexual offenses against victims of a wide variety of ages and of both genders; (2) had an offense history as a juvenile as well an adult; (3) had refused since 1998 to participate in the sex offender treatment program at the state hospital; and (4) was found unamenable to treatment as a mental disordered sex offender.

Dr. Starr also opined that defendant possessed dynamic risk factors, including intimacy deficits; problems with sexual self-regulation; holding distorted attitudes about sex; a history of sexually acting out and breaking rules while in custody; a history of probation and parole violations while out in the community; and problems with impulsivity and anger.

Dr. Starr did not find defendants age, 62 years old, to be a significant protective factor. She acknowledged a body of research showing that sexual recidivism decreases with age, particularly, after age 60, but in her opinion, defendant remained likely to reoffend because he continued to manifest a sex drive and remained in good enough physical health to be capable of assaultive behavior. She also questioned the validity of research on over-60-year-old sex offenders because of the small sample size and lack of consensus among researchers.

According to Dr. Starr, defendants only observable symptoms of paraphilia while in the hospital consisted of five incidents in which he had been caught violating a hospital rule prohibiting patients from masturbating in their rooms without covering themselves with a sheet. The absence of more serious incidents did not suggest to Dr. Starr that defendant had a lesser risk of reoffending if released because, in her view, the confines of a hospital did not provide defendant with the opportunity to act on his predatory sexual urges. In fact, Dr. Starr characterized the masturbation incidents as acts of exhibitionism that she found to be quite unusual at Atascadero.

Dr. Harry Goldberg, a licensed psychologist who was also qualified as an expert in the diagnosis of mental disorders and the risk assessment of persons suffering from them, examined defendant in March 2005.

Dr. Goldberg also diagnosed defendant as suffering from the SVPA-qualifying mental disorders of paraphilia NOS and ASPD. According to Dr. Goldbergs calculations, defendant scored a 9 on the STATIC 99. He did not believe there was a significant difference between a score of 9 and 11 since both were above 6. He opined that several static or historic factors increased defendants reoffense risk including the number of his sexual victims and the fact that defendants sexual deviance began in his adolescence and had been going on for many years, his noncompliance with treatment, and his general criminality and lifestyle instability while in the community. Relative to dynamic factors increasing his likelihood of reoffending, Dr. Goldberg cited defendants intimacy deficits, emotional identification with children, hostility toward women, lack of concern for others, sexual preoccupation, lack of cooperation with supervision, failure to complete probation and parole successfully, and impulsivity.

Dr. Goldberg agreed with Dr. Starrs comments on the contradictory research concerning recidivism among over-60-year-old offenders and opined that defendant continued to pose a serious and well-founded risk of reoffending despite his age.

3. Defendants Testimony

Defendant admitted the sexual assaults against Sharon S. and Kathy H. but denied that he had raped and sodomized Brenda D. He would not discuss the offense involving Brenda D. He admitted that approximately six months after he was paroled in 1982, he struck Sheila S. with a board. He explained that he hit Sheila S. so that he could tell another woman he was attracted to, [Y]ou see what I did for you . . . Im doing this because I care this much about you. He admitted that his actions did not make sense and were inappropriate.

Defendant also admitted that while in prison he committed a number of rule violations between 1983 and 1996, including exposing himself to a female guard. He also admitted that he had broken hospital rules by masturbating without covering up, but thought this might have happened fewer than five times.

B. Defense Case

1. Expert Testimony

Dr. Theodore Donaldson, a clinical psychologist with a specialty in forensic psychology, testified on defendants behalf as an expert in the diagnosis of mental disorders and the evaluation of allegedly sexually violent predators.

Dr. Donaldson disagreed that defendant suffered from paraphilia. He disagreed with Drs. Starr and Goldberg in that he did not find defendant had a preference for nonconsensual sex. He noted that defendants behavior while incarcerated was not consistent with the paraphilia diagnosis. The only sexual write-ups defendant received in the hospital were related to masturbation. Dr. Donaldson agreed with the prosecution experts that defendant met the criteria for ASPD, but he pointed out that antisocial behavior lessens with age.

Dr. Donaldson testified that the question of volitional control posed by the SVPA was not based on science and that it was impossible to measure ones ability to control ones behavior with any precision. Although defendant was in a high-risk category according to the STATIC 99, his score was immaterial because he did not suffer from a mental disorder as that phrase is defined in the SVPA.

Dr. Brian Abbott, a licensed clinical psychologist, testified as an expert in the diagnosis of mental disorders and conducting SVP evaluations. He stated that the STATIC 99 may over-predict sexual recidivism in the SVP context because it assesses the likelihood that the test subject will commit a sex offense without limiting the potential new offenses to predatory offenses. However, he admitted that the STATIC 99 could be said to under-predict the risk of reoffense because it does not account for unreported sex offenses. Abbott believed that STATIC 99 did not account for older age offenders and he cited a study by one of the founders of STATIC 99 indicating that the risk of reoffense goes into a steep decline after the age of 40. Dr. Abbott stated that the eight or nine studies that have been done on the subject seem to show unanimously that the risk for sexual recidivism is significantly reduced for offenders who are 50 years old and older, and drops even more for those 60 years old and older.

Dr. Abbott diagnosed defendant as suffering from dementia due to a head injury. In his view, defendant did not meet the mental disorder requirement set forth in the SVPA. Dr. Abbott also opined that defendant was not likely to reoffend if released and that defendant clearly has shown a significant reduction in his aggressive and antisocial behavior as he has aged.

2. Non-expert Testimony

Three psychiatric technicians who worked with defendant at Atascadero testified that they had never seen defendant engage in any inappropriate sexual behavior. One of the psychiatric technicians, Chris Bjarnson, noted that defendant was one of the few Atascadero patients who did not possess pornography. According to Bjarnson, defendant had a good sense of humor and was well liked by both staff and patients. He also reported that defendant had no problems interacting with women at the hospital.

Robert Sterling, an acquaintance of defendants, testified that he had gone through similar things that defendant had gone through and would help defendant secure public benefits, food, clothing, and shelter if he was released.

C. Jury Verdict

The jury found the petition true beyond a reasonable doubt and the court extended defendants state hospital commitment to August 20, 2007. Defendant timely appealed.

II. DISCUSSION

Defendant contends that: (1) there was no substantial evidence that he presented a serious and well-founded risk of engaging in sexually violent criminal behavior if released from the state hospital; and, in the alternative, (2) the SVPA commitment standard, as construed by the California Supreme Court, violates defendants substantive due process rights.

A. Substantial Evidence

In order to establish that a defendant is an SVP, the state had to prove that: (1) defendant was convicted of two separate sexually violent offenses; (2) he had a diagnosable mental disorder that made him a danger to the health or safety [of] others; (3) his disorder makes it likely he will engage in sexually violent criminal conduct if released; and (4) his sexually violent criminal conduct will be predatory in nature. (People v. Fulcher (2006) 136 Cal.App.4th 41, 52, italics omitted.) In People v. Roberge (2003) 29 Cal.4th 979 (Roberge), the California Supreme Court held that a person is  likely  to engage in sexually violent predatory behavior when  the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.  (Id. at p. 986, quoting People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922, italics in Ghilotti.)

When a defendant challenges the sufficiency of the evidence to support a finding that he is a SVP, we must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination made in the trial court. (People v. Sumahit (2005) 128 Cal.App.4th 347, 352.) To be substantial, the evidence must be    of ponderable legal significance . . . reasonable in nature, credible and of solid value.  [Citation.] [ Citation.] In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. [Citation.] (Ibid.) The testimony of a single expert witness that an individual has a diagnosed mental disorder that presents a serious and well-founded risk that the individual will engage in sexually violent predatory criminal behavior if free in the community is sufficient evidence on that issue. (People v. Scott (2002) 100 Cal.App.4th 1060, 1064.)

Defendant maintains that the prosecution offered no evidence that the STATIC 99 instrument, which both of its experts assertedly relied on, was reliable or valid when it came to predicting that a past sex offender of defendants age would reoffend. Since defendant, a 62-year-old, was not similarly situated to the sample population on which STATIC 99 is based, the experts testimony could not have furnished substantial evidence that he qualified as a SVP, absent additional evidence that defendant himself acted in a manner that demonstrated a serious and well-founded risk of reoffending.

We are not persuaded. First, the evidence that STATIC 99 was unreliable as applied to persons in defendants age category was inconclusive. A reasonable jury might well have accepted the testimony of Drs. Starr and Goldberg that there were conflicting research findings on this point, and that the claim that the STATIC 99 instrument was unreliable for defendants age category was no more than an unconfirmed hypothesis that was not uniformly accepted by experts in the field and could not in any event be generalized to all older offenders. Dr. Starr testified, for example, that the lower recidivism rates found for older offenders who had been convicted only of rape offenses could not be generalized to offenders, like defendant, who had committed a wide variety of offenses against adults and children. She also pointed out that, unlike some older offenders, defendant still had a strong sex drive and was in good enough physical health that he was still capable of assaultive behavior.

Second, the prosecutions experts in fact pointed to a litany of additional evidence about defendant upon which they based their opinion that he posed a serious and well-founded risk of reoffending notwithstanding his age. Dr. Starr cited defendants wide victim pool, his lengthy offense history dating back to when he was a juvenile, his refusal to participate in treatment, his history of parole and probation violations when outside of custody, his distorted views and attitudes about sex, and his impulsivity, anger, and mood disorder, as reasons to consider that defendant presented a high risk of reoffending. Dr. Goldberg pointed to, among other things, defendants intimacy deficits, emotional identification with children, hostility toward women, and lack of cooperation with supervision as additional risk factors.

Defendant stresses that his conduct while in confinement fails to support a finding that he is unable to control his dangerous behavior. (See In re Anthony C. (2006) 138 Cal.App.4th 1493, 1508 [although failure to act out during confinement may not affirmatively establish that an offender has impulse control, it leaves an evidentiary gap as to whether he lacked control].) But the prosecutions experts pointed to evidence that defendant had acted out by repeatedly engaging in acts of masturbation that were tantamount to exhibitionism in view of the hospitals rules about covering up. Further, unlike the juvenile in In re Anthony C., defendant refused to participate in the sex offender treatment program and told Dr. Goldberg that he did not believe he had a sexual disorder and did not need treatment.

In our view, the prosecutions experts based their diagnoses and risk assessment conclusions on a careful and individualized evaluation of defendant that included interviewing him, reviewing all relevant documentation on his past history and recent conduct, and utilizing relevant, probative factors to arrive at a rational conclusion that there is a serious and well-founded risk that he would commit sexually violent predatory offenses if free in the community. In reaching their conclusions, the experts explicitly considered the state of research concerning the effect of age generally on an offenders risk of reoffending, and the weight that should be given to this defendants age in comparison to other factors in assessing his risk of reoffending. Substantial evidence therefore supported the jurys verdict.

B. Due Process Violation

At trial, defendant requested that the court apply a standard of dangerousness under which he could only be found likely to reoffend for purposes of the SVPA if the evidence established beyond a reasonable doubt that he was highly likely to reoffend.[3] The trial court denied defendants requested standard, holding that it was bound by the definition of  likely  adopted by the California Supreme Court in Roberge, supra, 29 Cal.4th 979, that a defendant is  likely  to reoffend for purposes of the SVPA if there is a  serious and well-founded risk  that he would commit sexually violent offenses if released. (See id. at pp. 986988, italics omitted.)

The standard applied by the trial court was proper and constitutional under Roberge. As defendant anticipates, we are bound by Roberges holding under Auto Equity Sales, Inc. v.Superior Court (1962) 57 Cal.2d 450, 455, and do not reach his claim that the Roberge standard is unconstitutional.

III. DISPOSITION

The order appealed from is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Stein, Acting P.J.

_________________________

Swager, J.

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[1] Appellant was previously confined at Atascadero State Hospital.

[2] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[3] Section 6605, subdivision (d), provides in relevant part that [t]he burden of proof at the hearing [on a petition for conditional release under the SVPA] shall be on the state to prove beyond a reasonable doubt that the committed persons diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged. (Italics added.)