P. v. Zetterholm

Filed 4/28/06 P. v. Zetterholm CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Albert T. Harutunian III, Judge. Affirmed.

Daniel Roy Zetterholm appeals an order extending for two years his commitment as a sexually violent predator after a jury determined he has convictions of sexually violent offenses against two or more victims, and he has a currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely he will engage in sexually violent criminal behavior. (Welf. & Inst. Code, § 6600.)^[1] Zetterholm contends there is insufficient evidence to support the finding he is a sexually violent predator. We disagree and accordingly affirm the judgment.

FACTS

In February 1990, Zetterholm was convicted in Nevada of committing lewd and lascivious conduct by fondling and stroking the vaginal area of a girl under 14 years of age. He was sentenced to prison for two and one-half years. In April 1995, in San Diego, Zetterholm entered a guilty plea of two counts of lewd and lascivious conduct with a minor under 14 years of age by rubbing a youth's genital area causing an 11-year-old boy to have an erection (Zetterholm said he wanted to place his mouth on the youth's penis) and fondling the breasts and genital area and placing his finger in the vagina of an 11-year-old girl. The court sentenced him to prison for 13 years. On February 7, 2002, Zetterholm was committed to the Department of Mental Health for two years as a sexually violent predator. (Pen. Code, § 6600 et seq.) On December 13, 2004, a jury made the findings underlying the court's extension of Zetterholm's commitment as a sexually violent predator that he appeals here.

At trial on the recommitment Zetterholm is now appealing, Psychologist Dana Putnam testified that she interviewed Zetterholm and reviewed his mental health records. She diagnosed Zetterholm with mental problems including pedophilia. Dr. Putnam believed Zetterholm's conduct was predatory because the children that were the victims were only casual acquaintances whom he came to know after befriending their parents. Dr. Putnam believed Zetterholm's risk of reoffending was increased by his criminality, lifestyle instability, high level of psychopathy, substance abuse, failure to take full responsibility for his crimes, and failure to complete a sexual behavior program.

Psychologist Jesus Padilla also interviewed and evaluated Zetterholm. Dr. Padilla agreed with Dr. Putnam.

Zetterholm called Psychiatrist Alan Abrams. Dr. Abrams testified that he did not view Zetterholm as a pedophile, but one who committed crimes of opportunity while under the influence of a controlled substance.

DISCUSSION

We affirm a judgment supported by substantial evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence is evidence of legal significance, reasonable in nature, credible and of solid value. (People v. Samuel (1981) 29 Cal.3d 489, 505.) The court must review the entire record most favorably to the judgment below and presume in support of the judgment the existence of every fact the fact finder could reasonably deduce from the evidence. If the evidence permits a reasonable trier of fact to conclude the charged crime was committed, the opinion of a reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal. (See Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)

Section 6600, subdivision (a)(1) defines "sexually violent predator" as "a person who has been 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 the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." The jury found the presence of each of these elements and Zetterholm does not challenge these findings.

However to extend a defendant's commitment as a sexually violent predator, the defendant's conduct also must be predatory. (See People v. Hurtado (2002) 28 Cal.4th 1179, 1182.) Zetterholm argues the evidence does not support the required finding that he was a predator because two of his victims were children who live in the same home he shared with their mother and the third was the child of a friend from work.

As used in section 6600, "predatory" means, "an act is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." (§ 6600, subd. (e).) While testifying here, Dr. Putman recognized the victims were not complete strangers to Zetterholm, but believed Zetterholm was predatory because the children victims were only causal acquaintances whom he came to know through their parents and his sexual involvement with the children was "promoted for the primary purpose of victimization." Dr. Putman testified Zetterholm isolated himself with the children, engaged in activities they were interested in, and used the opportunity to become sexually involved with them. Furthermore, Dr. Padilla agreed that Zetterholm was a risk to others as a sexually violent predator. Because Dr. Abrams did not believe Zetterholm was a pedophile he never reached the question of whether he was predator.

The jury's finding is supported by the testimony of Doctors Putnam and Padilla and its complete rejection of the testimony of Dr. Abrams. In determining whether the conviction is supported by substantial evidence, we must not usurp the trier of fact's assessment of credibility. " 'Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]' [Citations.]" (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)

Nothing in the record suggests that the testimony of Doctors Putnam and Padilla is physically impossible or that its falsity is apparent without resorting to inferences or deductions. Therefore, we determine that substantial evidence supports the judgment adjudicating Zetterholm a sexually violent predator.

DISPOSITION

The order extending Zetterholm's commitment is affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.

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