P. v. Williams

Filed 5/16/06  P. v. Williams CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Frederick Maguire, Judge.  Affirmed.

            A jury found Matt Lyon Williams to be a sexually violent predator within the meaning of Welfare and Institutions Code sections 6600-6604.^[1]  The trial court ordered Williams recommitted to Atascadero State Hospital for a term of two years.  Williams appeals the continued involuntary commitment, contending there was insufficient evidence to show: (1) a current diagnosed mental disorder impairs his volitional capacity, and (2) he was likely to engage in sexually violent criminal behavior upon release.  We affirm the judgment.

FACTS

I

Procedural Background

            In 1983, Williams was convicted of two counts of forcible oral copulation in violation of Penal Code section 288a, and one count of rape in violation of Penal Code section 261.  Williams was sentenced to 29 years in prison and served 16 years before he was paroled in 1999.  Before Williams's parole, he was evaluated by psychiatrists to determine whether he should be designated a sexually violent predator (SVP).  The psychiatrists concluded Williams did not meet the SVP criteria.

            On December 24, 2001, Williams was caught receiving consensual oral copulation from an adult woman in a grocery store parking lot.  Williams's lewd conduct constituted a parole violation for which he was arrested and served five months in prison.  Before Williams's parole, another SVP evaluation was conducted.  Williams submitted to the finding he was an SVP and served a two-year term at Atascadero State Hospital. 

            In anticipation of Williams's release from Atascadero in 2004, a petition for continued involuntary treatment of an SVP was filed.  Williams challenged the petition by a jury trial.  The jury found him to be an SVP.

II

Expert Opinions

            At trial, Joshua Deane, M.D., staff psychiatrist at Atascadero State Hospital, Jack Vogensen, Ph.D., clinical psychologist, and Clark Clipson, Ph.D., clinical psychologist, all testified for the prosecution.  All three diagnosed Williams with paraphilia not otherwise specified (NOS) and considered Williams likely to engage in sexually violent criminal behavior upon release, designating him an SVP.

            Dr. Deane served as Williams's admitting psychiatrist at Atascadero.  During the admission evaluation, Dr. Deane noted Williams suffered from paraphilia NOS, that is, deviant sexual urges, substance abuse problems, and a possible history of depression.  Dr. Deane also found Williams had exhibited voyeuristic behavior, suffered from fetishism, and had a history of " enormous" interpersonal difficulties. 

            In reviewing Williams's treatment records, Dr. Deane noted Williams participated in anger management classes but did not register for the SVP treatment program offered at the hospital.  Dr. Deane commented Williams did not register for the SVP program because Williams believed he no longer had a problem and had a strong enough will to prevent sexually predatory behavior.  Further, Williams believed ultimately there was no realistic chance of being released after completing the program.

            Commenting on Williams's self-control, Dr. Deane discussed the early age at which Williams began to run afoul of the law.  Beginning at age 13 or 14, Williams had begun using drugs and a few years later incurred multiple arrests for auto theft and driving under the influence.  Williams subsequently began exhibiting sexually deviant behavior, first by stealing women's garments, then becoming sexually aroused while engaged in voyeuristic behavior, eventually culminating in the forcible rape of multiple women.  Once paroled, Williams was caught in broad daylight receiving oral copulation in the parking lot of a grocery store and was arrested for violating his parole.  While serving his term at Atascadero, Williams violated hospital policy by drawing sexual organs on a baseball cap.  Dr. Deane found these incidents to be inconsistent with the exercise of discipline and a strong will to avoid trouble. 

            Dr. Vogensen, a member of the State of California SVP evaluation panel, first evaluated Williams in 1999.  Dr. Vogensen found Williams to have the requisite sexual offenses and mental disorder for an SVP designation.  However, Dr. Vogensen concluded Williams was not an SVP because he was not likely to reoffend. 

            Clarifying his conclusion, Dr. Vogensen explained he accepted Williams's statement that his offenses were an outgrowth of marital difficulties.  Dr. Vogensen further explained that in 1999 guidance for evaluating " likelihood to reoffend" did not exist and the commonly accepted standard was that one must have above a 50 percent chance of reoffending to be considered likely to reoffend.  The risk prediction scheme used by Dr. Vogensen, Rapid Risk Assessment for Sex Offense Recidivism, indicated the likelihood of Williams reoffending to be 20 percent, considered fairly low. 

            Dr. Vogensen reevaluated Williams in 2002 and 2004 with a broader actuarial risk prediction instrument, additional information about Williams, and guidance from the California Supreme Court concerning the likelihood of reoffending aspect of the SVP criteria.  Under these circumstances, Dr. Vogensen found Williams to be an SVP. 

            Dr. Vogensen found Williams's recent sexual activity increased his risk of reoffending.  When asked about his sexual experience while on parole for two and one‑ half years, Williams responded he had 40 to 60 girlfriends.  Dr. Vogensen found the statement illustrative of Williams's need to be sexually dominant and expressed concern that Williams, approximately 45 years old, was still driven by compulsive sexuality.  That Williams was able to meet so many women between his hours working and the parole curfew restrictions reinforced Dr. Vogensen's concerns of Williams's sexual preoccupation.  Further, Dr. Vogensen found Williams's parole violation significant evidence of his sexual defiance. 

            The broader actuarial risk assessment tool, the Static-99, used by Dr. Vogensen, gave Williams a risk evaluation score of seven out of 12.  This score predicted Williams would receive a sexual offense conviction at the following percentages: 39 percent over five years, 45 percent over 10 years, and 52 percent over 15 years.  Because the Static-99 predicts reconvictions rather than charges or offenses, Dr. Vogensen stressed the percentages were underestimates of the likelihood Williams will reoffend.  Dr. Vogensen considered the substantial danger and well-founded risk standard delineated in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888.  Dr. Vogensen found Williams's risk to reoffend well-founded as it was based on a scientifically derived instrument, the

Static-99. 

            Dr. Clipson evaluated Williams in 2004.  Dr. Clipson found Williams to suffer from paraphilia NOS and specific paraphilia, causing Williams to become sexually aroused by the use of force or coercion during sex.  Based on Dr. Clipson's evaluation of Williams's behavior, past history and the actuarial risk prediction given by Static-99, Dr. Clipson concluded there was a substantial and well-founded risk Williams would commit new sexual offenses if released.

            A significant factor in Dr. Clipson's conclusion was Williams's 2001 public sex act.  Dr. Clipson noted while a public sex act for a nonsex offender would not bear on that person's risk to commit a sexual offense, the same is not true for a sex offender.  When a sexual offender, having a history of rape, engages in consensual sex in a public place, it significantly increases his or her risk of committing a new sexual offense.  Further, the specific circumstances of Williams's public sexual encounter concerned Dr. Clipson.  The encounter was not planned, it occurred on Williams's way to visit his father on Christmas Eve, and the sex act took place in a public place, all demonstrating Williams's impulsivity and hyper-sexuality.

            Discussing Williams's history, Dr. Clipson testified that most men, when force and coercion become involved in sex, lose their erections, Williams found it arousing.  Moreover, Williams remained aroused after repeated sex acts on his rape victims.  Dr. Clipson found Williams's heightened level of arousal indicative of a high risk of reoffending.  Other factors increasing Williams's risk were his antisocial personality disorder, intimacy deficiency, noncompletion of treatment programs, excessive criminality, impaired sexual self-regulation and multiple paraphilias, voyeurism and fetishism. 

            Based on all the information and records, Drs. Deane, Vogensen and Clipson concluded Williams suffers from a mental disorder which makes him likely to engage in sexually violent predatory behavior.  Further, they found there was a substantial and well-founded risk Williams would reoffend if not in a secure facility. 

            The defense offered the testimony of Dr. Theodore Donaldson, clinical psychologist.  In making his assessment, Dr. Donaldson reviewed Williams's file at Atascadero State Hospital, numerous evaluations by other psychologists and the transcript of the probable cause hearing.  Dr. Donaldson concluded Williams was not an SVP because there was insufficient evidence to conclude he suffered from a diagnosable mental disorder.  Dr. Donaldson believed the guidelines delineated by the Department of Mental Health for the diagnosis of paraphilia NOS were inadequate and therefore Williams's diagnosis was erroneous.  Supporting his conclusion, Dr. Donaldson noted Williams has not committed a sexually violent offense in 22 years.  Further, Dr. Donaldson explained there is no evidence Williams prefers nonconsensual sex.  Finding insufficient evidence of a mental disorder, Dr. Donaldson concluded it cannot be assumed Williams is dangerous. 

DISCUSSION

I

Sexually Violent Predator Act

            The Sexually Violent Predator Act (SVPA) " provides for the involuntary civil commitment of certain offenders, following the completion of their prison terms, who are found to be SVP's."   (Ghilotti, supra, 27 Cal.4th at p. 902.)  An SVP is a person convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to others in that it is likely he or she will engage in sexually violent criminal behavior.  (§  6600, subd. (a)(1).) 

"   'Diagnosed mental disorder' includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others."   (Id., subd. (c).)

            When the Director of Corrections determines an individual who is either serving a determinate prison sentence or whose parole has been revoked may be an SVP, the director shall, at least six months before that individual's scheduled date for release from prison, refer the person for evaluation.  (§  6601, subd. (a)(1).)  Each person found likely to be an SVP is evaluated in accordance with a standardized assessment protocol to determine whether the person is an SVP.  (Id., subd. (c).)  " The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders.  Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder."   (Ibid.) 

            "   'The trier of fact is charged with determining whether the requirements for classification as an SVP have been established " beyond a reasonable doubt."   '  "   (Ghilotti, supra, 27 Cal.4th at p. 904.)  "   '[W]here the requisite SVP findings are made, " the person shall be committed for two years to the custody of the [Department of Corrections] for appropriate treatment and confinement in a secure facility  .  .  .  ."   '  "   (Ibid.) 

II

Volitional Impairment

            Williams contends insufficient evidence exists to prove he has a current diagnosed mental disorder which impairs his volitional capacity, making him likely to reoffend.  We disagree.

            In determining the sufficiency of the evidence to support a commitment under the SVPA, we apply the same test as we do when reviewing the sufficiency of the evidence to support a criminal conviction.  (People v. Mercer (1999) 70 Cal.App.4th 463, 466.)  " Thus, this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below.  [Citation.]  To be substantial, the evidence must be '  " of ponderable legal significance  .  .  .  reasonable in nature, credible and of solid value."   '  [Citation.]"   (Ibid.)  In reviewing the record to determine the sufficiency of the evidence, we do not " reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment."   (People v. Poe (1999) 74 Cal.App.4th 826, 830.)

            Dr. Clipson testified volitional capacity " has to do with self-control" and one's ability to control his or her behavior to avoid breaking the law or hurting others.  The record is rife with evidence of Williams's volitional impairment.  Dr. Deane specifically noted Williams's extensive history of criminal and sexual deviant behavior was inconsistent with the exercise of discipline and a strong will to keep free of trouble.  Dr. Clipson further noted while he has treated and worked with paraphilias who have developed tools and learned how to control their deviant sexual impulses, those who do not have these tools in place " lack the self-control to keep themselves from acting out under certain situations."   According to Dr. Clipson, the main indicator of Williams's risk or volitional impairment was his deviant sexual interest causing him to become sexually aroused by the use of force or coercion during sex.  Other indicators of high risk were Williams's early history of sexual deviancy, specifically fetishism and voyeurism.  Also, Williams's criminal orientation, antisocial personality disorder and lack of sexual self-regulation further signified his volitional impairment. 

            Section 6601, subdivision (c) requires the standardized assessment protocol for SVP evaluations to include an assessment of risk factors such as criminal and psychosexual history, type, degree and duration of sexual deviance, and severity of mental disorder.  The facts and opinions presented by the prosecution's experts clearly address volitional impairment and correspond to various factors " known to be associated with the risk of reoffense among sex offenders."   (Ibid.)  Thus, the testimony of Drs. Deane, Vogensen and Clipson provided substantial evidence supporting the jury's determination that Williams suffered from a mental disorder impairing his volitional capacity. 

III

Likelihood of Reoffense

            Williams contends there is insufficient evidence to support the jury's finding that it was " likely" he would engage in "   'sexually violent criminal behavior'  " if released.  (§  6600, subd. (a)(1).)  Williams argues he was labeled an SVP because of his public consensual sex act and this incident was the only difference between his first and second SVP assessments.  We disagree. 

            A convicted sex offender is likely to engage in sexually violent predatory conduct if released 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."   (Ghilotti, supra, 27 Cal.4th at p. 922.)  This does not require a finding that it is more likely than not the person will reoffend.  (Id. at p. 916.)  However, a finding of such danger requires " much more than the mere possibility that the person will reoffend."   (Id. at p. 922.) 

            In considering the likelihood of Williams reoffending, Drs. Vogensen and Clipson began their analysis with the Static-99 actuarial risk prediction instrument.  Each then considered other important aggravating and mitigating factors before reaching a final determination.  Based on their analyses, Drs. Vogensen and Clipson both concluded Williams presents a substantial danger if released. 

            The Static-99, as administered by each psychologist, yielded a final score of seven out of 12, placing Williams in a " high risk" category of reoffending.  The Static-99 predicted Williams would suffer a reconviction at the following percentages:  39 percent over five years, 45 percent over 10 years, and 52 percent over 15 years following release.  As the Static-99 predicts reconvictions rather than charges or offenses, Dr. Vogensen stressed the percentages were underestimates of the likelihood that Williams would reoffend. 

            A myriad of aggravating factors were then considered in determining Williams's likelihood to reoffend.  The main incident considered was Williams's public sex act.  Dr. Clipson noted a public sex act committed by a sex offender significantly enhances that person's risk of committing new sexual offenses.  Moreover, Dr. Clipson found the specific circumstances of Williams's public sexual encounter demonstrated Williams's impulsivity, poor judgment and hypersexuality, further increasing his likelihood to reoffend.

            Another significant high risk factor, according to Dr. Clipson, was the fact Williams became sexually aroused by the use of force or coercion during sex.  Dr. Clipson explained while most men, when force and coercion become involved in sex, lose their erections, Williams found it so arousing that he was able to perform multiple sex acts on his rape victims.  Dr. Clipson found Williams's heightened level of arousal indicative of a high risk of reoffending.

            Dr. Clipson also found Williams's lack of sexual predator treatment an aggravating risk factor.  Williams participated in only one phase of the SVP treatment program at Atascadero.  On parole, Williams attended a sexual abuse class.  However, Williams failed to benefit from the class because he hid the high volume of his sexual activity from the counselor and did not discuss his mode of achieving sexual gratification despite it being the focus of the class.  Dr. Vogensen found these incidents enhanced Williams's risk of reoffending.

            Dr. Vogensen also found Williams's level of sexual activity on parole an important factor increasing his likelihood of reoffending.  Dr. Vogensen found Williams's high volume of sexual activity indicative of Williams's need to be sexually dominant.  The fact Williams was able to meet so many women between his hours working and the parole curfew restrictions evidenced Williams's sexual preoccupation.  Further, because Williams maintained a high level of sexual activity given his age, Dr. Vogensen found Williams to be driven by compulsive sexuality compounding his likelihood of reoffending.

            Drs. Vogensen and Clipson concluded these aggravating risk factors show Williams is a substantial danger to the community and likely to reoffend if not confined in a secured facility.  The prosecution experts considered all the relevant factors and provided a reasoned basis for their conclusions which are supported by the evidence.  Substantial evidence supports the jury's finding Williams to be an SVP.

            While we conclude that there is substantial evidence to support the jury's conclusion that Williams is an SVP, we note that in assessing his current likelihood of reoffending the experts placed minimal importance on the fact that for the two and one-half years Williams was out on parole, he did not commit a forcible or violent sexual act, but a good deal of emphasis on the fact that at the end of that period he committed a consensual sexual act with a woman in public or at least a semipublic place.  To some this relative emphasis may seem counterintuitive in determining his likelihood of reoffending.  However, under the substantial evidence standard of review, we are not

permitted to substitute our view of these matters for that of the experts the jury apparently found credible.

DISPOSITION

            The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

    NARES, J.

  McINTYRE, J.

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^[1]            Statutory references are to the Welfare and Institutions Code unless otherwise specified.