P. v. Padilla

Filed 4/12/07 P. v. Padilla CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Consolidated appeal from an order of the Superior Court of San Diego County, Peter C. Deddeh, Judge, and petition for writ of habeas corpus. Order affirmed, petition denied.

In this appeal and writ proceeding, Juan Padilla challenges an order committing him to the custody of the Department of Mental Health after a jury found he was a sexually violent predator (SVP). He raises several contentions of error arising from the fact that he was not personally examined by a defense expert. He also challenges the sufficiency of the evidence to support the SVP finding. We reject his arguments and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Overview

Padilla served a prison term for multiple rapes committed in 1978. After his release on parole in 1986, he again committed rape in 1991 and was sentenced to prison. Prior to his release for his 1991 sexual offense, the People filed a petition to have him civilly committed as an SVP. A jury found him to be an SVP, and the court ordered him to be committed to a state mental hospital for treatment.

At the civil commitment proceeding, the People called two experts who testified that Padilla had a mental disorder that qualified him as an SVP. Both of the People's experts personally examined Padilla for purposes of their evaluations. To refute the People's showing, the defense called an expert who opined that Padilla's behavior did not reflect an SVP mental disorder. To formulate this opinion, the defense expert had not personally examined Padilla, but had relied on a review of the information set forth in the reports submitted by the People's experts.

In addition to his challenge to the sufficiency of the evidence to support the SVP finding, the focus of Padilla's arguments in this appeal and writ proceeding arise from the lack of a personal examination by a defense expert. Padilla contends the court should have ordered a personal examination by a defense expert when Padilla complained about the lack of examination at a Marsden^[1]hearing; the court should have granted his request for new counsel because of defense counsel's failure to secure the personal examination; and his counsel provided ineffective representation by failing to obtain the personal examination.

To resolve Padilla's contentions, we present a detailed summary of the testimony presented by the People's experts and the defense expert at the civil commitment proceeding. In the discussion section of this opinion, we summarize a report prepared by a defense expert who personally examined Padilla after trial at appellate counsel's request.

People's Expert Testimony

Drs. Dana Putnam and Craig Updegrove testified on behalf of the People. Both experts reviewed materials regarding Padilla's criminal and medical history, and each personally interviewed him for about two hours.

The criminal history reviewed by the People's experts revealed that over the course of three months in 1978, when he was 24 years old, Padilla committed multiple counts of rape and sodomy against different victims. During each of these offenses, Padilla was accompanied by the same male companion, who also participated in the sexual assaults. On February 26, 1978, Padilla and the male companion pushed a 19-year-old female into a car and threatened her with a knife. They drove to a secluded area, where Padilla's companion raped the victim and Padilla sodomized her. On March 19, 1978, Padilla and the other man forced a female into a car and beat her when she resisted. The defendants drove the car to another location, where the victim escaped. They recaptured her, beat her, threatened her with a knife, and raped and sodomized her. On April 12, 1978, Padilla's accomplice drove a car and picked up a 20-year-old female, and then picked up Padilla, who pretended to be hitchhiking. While the accomplice drove, Padilla pushed the victim's head down and tied a rope around her neck. Both men raped her. For these 1978 offenses, Padilla was convicted of three counts of rape, two counts of sodomy, and kidnapping.

In December 1978, while Padilla was in jail awaiting sentencing for these offenses, he sodomized another inmate. This incident occurred when Padilla and three other men in an unlocked cell invited a male victim to move from the hallway into the cell. When the cell was locked, the perpetrators placed a sheet to block the view into the cell. Using a "shank" as a weapon, two of the men forced the victim to orally copulate them, and Padilla and a third man sodomized the victim. Pursuant to a plea bargain, Padilla pleaded guilty to assault with deadly weapon for this offense.

Padilla was sentenced to state prison for his 1978 offenses. He was released on parole on June 8, 1986.

On October 27, 1991, when he was 37 years old, Padilla and another man forced a 22-year-old female into a car. Padilla and his companion put a sweater over the woman's head, choked her, and told her they were going to kill her. The men drove the victim to a deserted area and pushed her down an embankment, where Padilla raped her and digitally penetrated her. When Padilla went to get his companion, the woman escaped. For this offense, Padilla pleaded guilty to two counts of rape and one count of kidnapping and was sentenced to prison.

When interviewed by the People's experts for the SVP proceeding, Padilla did not admit that he raped anyone. He denied the rape of the three female victims in 1978, and stated that he slept through the incident in the jail. Regarding the 1991 victim, he stated there was some sexual activity, but that it was consensual. Padilla told Dr. Updegrove that he did not have a problem and did not need any kind of treatment.

When recounting his sexual history to the People's experts, Padilla stated that when he was a young man he had sexual intercourse with female donkeys (which he claimed was common in rural Mexico), and that over the years he had had about 80 to 100 sexual partners, including 40 prostitutes. Padilla was 52 years old at the time of the commitment proceedings. He told Dr. Putnam that he masturbated about every 10 days. He stated that if released he planned to return to Mexico and get married. He also stated he would seek sexual gratification from prostitutes or by picking someone up at a bar.

Drs. Putnam and Updegrove diagnosed Padilla as having the mental disorder of paraphilia, not otherwise specified, with the specification of nonconsenting sexual behavior with adult strangers. Paraphilia is a general sexual disorder, characterized by recurrent, intense sexually-arousing fantasies, urges or behaviors involving nonhuman objects, suffering or humiliation of one's self or one's partner, or behavior involving children or nonconsenting adults. Both experts explained that the specification of nonconsensual sex with adults (i.e., rape) is not included in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as a separate diagnostic category under paraphilia. However, the disorder is included as an example of paraphilia in the DSM case book, and experts in the field generally agree that it is a proper diagnosis.^[2]

The People's experts stated that not all rape constitutes paraphilia. However, evidence of paraphilia exists if the person uses a weapon and maintains sexual arousal even though the victim is resisting, as this reflects that the person is "very aware" that the encounter is nonconsensual. Repetition of the behavior over multiple occasions is particularly indicative of paraphilia. To distinguish a mental disorder from merely temporary, aberrant behavior that could occur when a person is in a particular situation or with a particular group of people, the diagnosis requires that the behavior continue for a minimum of six months.

The People's experts testified that Padilla's paraphilia diagnosis was based on his repeated behavior (which exceeded the six-month period required for the diagnosis) and the nature of his behavior. The fact that Padilla repeated the sexual offense while in jail for previous rape offenses, and then again repeated the offense after being released from prison, showed a lack of control that is indicative of paraphilia. Further, Padilla's ability to maintain sexual arousal even though the victims were crying or fighting reflected the existence of paraphilia. The diagnosis was also supported by the common pattern

employed to commit the offenses which suggested that Padilla was playing out a fantasy. Although Padilla did not report any rape fantasies when interviewed, the experts stated the fantasies could be inferred from his behavior.^[3] Dr. Putnam explained that Padilla's conduct appeared scripted because almost the same events occurred each time. Padilla's pattern of rape included the participation of another man, a threat, abduction of a stranger or casual acquaintance, and use of force to dominate the victim and maintain sexual arousal throughout the nonconsensual encounter. Dr. Updegrove opined the existence of a fantasy was suggested by the fact that the offenses showed a primary sexual motivation; that is, they were planned out and did not just occur opportunistically during the commission of another offense such as robbery.

The presence of another man was a distinctive feature noted by both prosecution experts. Dr. Putnam viewed the presence of another man as part of Padilla's arousal pattern, which reflected the fantasy component of paraphilia. Additionally, the inability to control component of the disorder was shown by the fact that Padilla continued to commit sexual offenses in the presence of another man, even though this increased his risk of being identified as the perpetrator in a plea bargain situation. Dr. Putnam noted that the testimony of the other man who participated in the 1978 rapes against the three females contributed to Padilla's conviction for these offenses. Notwithstanding this negative consequence arising from the presence of another man, Padilla participated in a rape with other men while in jail for the 1978 rapes, and then, after he was released from prison, he sought out another situation where he was with another man during a rape. In the experts' opinion, this behavior reflected that Padilla was driven to engage in the sexual conduct despite the consequences. Additionally, the fact that Padilla was married when he committed the 1991 rape suggested that he was driven to engage in rape notwithstanding the opportunity for consensual sex.

To assist with the determination of Padilla's risk of reoffending if released, the People's experts evaluated Padilla with the Static 99 actuarial tool. This tool evaluates the risk of committing future sexual offenses after release based on such factors as age, involvement in a committed romantic relationship, and the particulars of the person's criminal history in terms of the conduct and victims involved. Padilla scored a 9 on the Static 99, which placed him in a high risk category.

In evaluating the risk of reoffending, the People's experts also considered the unique features of Padilla's sexual history. These included his early nonconsensual sexual experiences with donkeys and his high number of sexual partners, including prostitutes, notwithstanding his lengthy imprisonment. This information reflected that Padilla suffered from intimacy deficits and sexual self-regulation problems which increased his risk of reoffending. Dr. Putnam also opined that Padilla's statements that if released he would seek sexual gratification from prostitutes or by picking up women at bars suggested his lack of appreciation of appropriate sexual outlets. Regarding Padilla's age, the experts noted that he still had sexual urges as reflected in his reports of regular masturbation. Dr. Putnam stated that recent research suggested there was no significant decrease in sexual offense recidivism for middle-aged men up to age 60, particularly for men who had been in prison for lengthy periods of time.

The People's experts acknowledged that Padilla's prison record did not show he had engaged in any sexual misconduct while in prison. However, Dr. Putnam noted that Padilla had not spent a significant period of time in the community free from confinement without committing another sex offense. Rather, after his release from prison in 1986, he committed another sex offense in 1991.

Drs. Putnam and Updegrove opined that because of his mental disorder Padilla lacked the ability to control his behavior and he was likely to commit a predatory sexual offense if released. The People's experts stated that Padilla required treatment for any change in his behavior to occur, and noted that Padilla had not participated in any meaningful sex offender treatment program.

Defense Expert Testimony

Dr. Theodore Donaldson testified on behalf of Padilla. Dr. Donaldson did not personally interview Padilla, but reviewed Drs. Putnam's and Updegrove's reports regarding Padilla and concluded their conclusions were unsupported.^[4] Dr. Donaldson opined that it was not clear that the mental disorder identified by the People's experts existed, and that even if it did exist, Padilla's behavior did not show that he suffered from the disorder.

Dr. Donaldson explained that there was a significant dispute in the medical community whether rape could be characterized as a mental illness rather than just a crime, and thus whether paraphilic rape was a proper diagnosis. He stated that a recommendation had been made to include a diagnosis for paraphilic rape in the DSM, but that the diagnosis was ultimately rejected, in part because the criteria were too difficult to determine or measure. He testified that in the most current edition of a classic psychiatric textbook, the author noted that some clinicians thought paraphilic rape existed but most did not accept this view.

Dr. Donaldson acknowledged that the DSM case book included an example of a person who suffered from paraphilic rape disorder, and stated that in his view a paraphilic rape disorder did exist. However, he stated the condition was very rare, or even if it was common, it was very difficult to prove. To properly diagnose the disorder, he opined the following criteria had to exist: the person has a preference for rape but has inhibitions against rape; the urge eventually overcomes the inhibitions and the person commits rape; the person then feels guilty; and when the guilt subsides the person repeats the behavior. He testified that without the inhibition and guilt, the conduct was simply criminal behavior. Dr. Donaldson stated that it was contrary to well-established diagnostic principles to conclude paraphilic rape existed merely because a person engaged in six months of nonconsenting sexual behavior.

Dr. Donaldson opined that Padilla did not meet the criteria for paraphilic rape because there was no evidence that he had a sexual preference for rape or that he felt inhibitions or guilt about it. Dr. Donaldson stated that Padilla's reports of two marriages and about 80 consensual sexual relationships showed that his preference was for consensual sex.

Dr. Donaldson rejected the proposition that the fact that a person rapes again after being released from prison reflects paraphilia. He noted that there are many repeat offenders for a variety of offenses, and being a repeat offender does not mean the person is mentally ill. He stated the consensus of medical opinion is that the fact that a person commits multiple rapes does not indicate that the person is driven by a mental disorder.

Dr. Donaldson did not view Padilla's ability to maintain arousal in the face of a resisting victim as indicative of paraphilic rape, stating that this feature was inherent in the nature of rape. He was also unpersuaded by the common pattern that emerged in Padilla's rapes. He opined that paraphilia required a high degree of detailed ritualistic behavior, such as certain hair styles, clothes, and statements reflecting a pathological script that was being repeatedly played out. Dr. Donaldson testified that the common pattern of Padilla's rapes was not enough to show paraphilia based on ritualistic behavior. The fact that another man was involved could simply mean Padilla did not have enough nerve to commit the offenses by himself or that it was a "bravado thing" when he got together with other men.

Dr. Donaldson rejected the People's experts' assumptions that Padilla's rapes were planned rather than opportunistic so as to reflect paraphilia. He noted that for one of the offenses the codefendant stated that he and Padilla had decided to "go out and get ourselves a woman." Dr. Donaldson posited that the crimes could have been opportunistic in the sense of being behavior that arose when Padilla got together with other men.

Dr. Donaldson testified that if Padilla suffered from paraphilic rape disorder, he would have sexually acted out in prison, such as by assaulting female staff or other male inmates or masturbating in front of female staff. Because there was no evidence of symptoms of the disorder while he was in prison, Dr. Donaldson opined he either did not have the disorder or was in remission. Dr. Donaldson stated that a paraphilic diagnosis could not be supported for a person who had been in prison for 20 to 25 years with no signs or symptoms.

Dr. Donaldson also questioned the accuracy of the Static 99 tool to predict the risk of reoffending, noting that the data underlying the tool were outdated. Dr. Donaldson disagreed with the People's expert's view that Padilla's age did not support a decreased risk of reoffending, stating that statistics revealed the risk of reoffending for rapists decreased with age.

DISCUSSION

I. Lack of Personal Examination by Defense Expert

Padilla raises several contentions of error arising from the failure of a defense expert to personally examine him. On appeal, he asserts the trial court committed error by (1) failing to order a defense expert to personally examine him based on his statements at a Marsden hearing, and (2) denying his Marsden motion for new counsel given defense counsel's failure to obtain a personal examination. In his writ petition, Padilla asserts that counsel's failure to have a defense expert examine him constituted ineffective representation. We first consider his arguments derived from the Marsden hearing, and then evaluate his ineffective assistance of counsel claim in the writ petition.

A. Arguments Derived fromMarsden Hearing

Prior to the commencement of trial, Padilla made a request for new counsel. At the Marsden hearing, Padilla complained that his counsel had not contacted the victims to ask why they accused him of the sex offenses. The trial court explained to Padilla that contacting the victims was not appropriate because the proceedings did not involve relitigating the facts of his past offenses. Rather, the issue was whether he had a mental condition causing him to commit the sexual offenses. The court noted that defense counsel would likely be calling mental health experts to say he did not have the condition and the district attorney would be calling experts to say he did have the condition. Padilla then asked: "But don't the psychologists or the psychiatrists have to talk to me in order to evaluate me?" The court responded that they should, and then asked defense counsel if it was true Padilla had not been evaluated.

Defense counsel explained that the expert selected by the defense indicated that he did not need to do a personal evaluation because the theory of the case was that Padilla's behavior did not amount to a mental illness and there was sufficient information to present this opinion based on the evaluations done by the People's experts. Further, the defense expert planned to testify that paraphilic rape was not a valid mental disorder, and that rape was merely criminal behavior.

Speaking with Padilla, the trial court clarified that Padilla had been personally examined by two experts for the People, and that Padilla was currently complaining because he thought he should have been examined by the defense expert. After discussing several other unrelated complaints, the trial court denied the Marsden motion. The trial court explained to Padilla that his attorney would call a psychologist to testify that his behavior was not a mental disorder but was merely criminal behavior, that his attorney made a tactical decision that the psychologist did not need to personally examine him, and that a tactical disagreement did not provide grounds for substitution of counsel.

To support his argument that the trial court should have ordered an examination by a defense expert after hearing Padilla's complaints at the Marsden hearing, Padilla cites Welfare and Institutions Code^[5]section 6603, subdivision (a), which delineates certain rights applicable to persons subject to civil commitment proceedings. The statute states in relevant part: "In the case of a person who is indigent, the court shall appoint counsel to assist him or her, and, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf." ( 6603, subd. (a), italics added.)

Padilla argues that at the Marsden hearing he effectively requested examination by a defense expert, and the trial court should have ordered an examination. In a related argument, he contends there could be no reasonable tactical reason for failing to secure an examination by a defense expert and thus the court should have granted his request for new counsel. Padilla asserts that the examination was a necessary component of trial preparation, and even if the examination ultimately did not reveal information favorable to the defense, defense counsel was required to explore this avenue of information.

We are not persuaded by Padilla's interpretation of section 6603 or his claim that he was entitled to new counsel. Contrary to Padilla's assertion, we do not view section 6603 as automatically requiring the trial court to order a personal examination by a defense expert whenever requested by the defendant without the concurrence of defense counsel. Except for a few fundamental rights, when a defendant is represented by counsel, counsel is the " ' "captain of the ship" ' " and the defendant must accept counsel's tactical decisions. (People v. Valdez (2004) 32 Cal.4th 73, 96.) We do not construe the reference in section 6603 to "the person's request" as altering this essential principle. If defense counsel presents a reasonable explanation for not obtaining a personal examination of the defendant, the trial court is not required to override counsel's decision based on the defendant's request.

Here, defense counsel told the court that the defense expert would testify that Padilla's behavior did not constitute a mental disorder, and that the expert believed he had sufficient information to present this testimony without personally examining Padilla. This statement reflected that the defense expert had examined Padilla's case, although he had not examined Padilla personally. The trial court was entitled to rely on defense counsel's representation that the expert had obtained sufficient information to properly testify on Padilla's behalf.

For the same reason, the trial court was not required to grant Padilla's request for new counsel.^[6] We review the denial of a Marsden motion for abuse of discretion. (People v. Roldan (2005) 35 Cal.4th 646, 681.) "[A]ppellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would 'substantially impair' the defendant's right to effective assistance of counsel." (Ibid.) Based on defense counsel's statements that a defense expert would refute the People's allegation that Padilla's behavior showed he suffered from a mental disorder, the trial court could reasonably conclude Padilla was being provided effective representation and there was no need for substitution of counsel. The trial court was not required to conclude that reasonably competent defense counsel would in all cases secure a personal examination by a defense expert as part of trial preparation.

B. Writ Review for Ineffective Assistance of Counsel

1. Background

In his petition for writ of habeas corpus, Padilla again focuses on the issue of defense counsel's failure to secure a personal examination by a defense expert. He contends his counsel's failure to obtain an examination constituted ineffective representation. The writ petition includes information from trial counsel stating that she relied on Dr. Donaldson's assessment that a personal examination was not necessary, and a declaration from appellate counsel opining that the failure to obtain a personal examination constituted ineffective representation. Padilla has also submitted a report prepared by an expert (Dr. Clark Clipson) who personally examined Padilla after trial at appellate counsel's request. As we shall delineate, Dr. Clipson's report concludes that Padilla presents a substantial risk of reoffending, but that he does not suffer from a mental disorder.

Dr. Clipson reviewed the relevant legal and medical documents and interviewed Padilla for one and one-half hours. As he had stated when interviewed by the People's experts, Padilla told Dr. Clipson he had not raped any of the victims.

Dr. Clipson acknowledged that coercive paraphiliac disorder is well-documented in the research literature even though the disorder is not included in the DSM. He also explained that it is well accepted in sex offender research that although "some rapes are caused by a paraphiliac preference for the use of force and coercion during sexual activity, most rapes are not caused by a paraphilia." From cases he had been involved in, Dr. Clipson had formed the opinion that some rapes are caused by paraphilia.

Based on his interview of Padilla and review of the case documents, Dr. Clipson opined that Padilla did not have coercive paraphiliac disorder. He conceded that Padilla's case met some of the criteria for the disorder (including nonconsenting victims, verbal threats during the crimes, ejaculation or other signs of sexual arousal during the offenses, a repetitive pattern of behaviors during the rapes, and a history of rape behaviors that occurs over a period of at least six months), but stated these criteria did not suffice to show the diagnosis. For example, Dr. Clipson noted that Padilla's crime spree against the three females in 1978 occurred over a period of only two months, not the six-month minimum. Dr. Clipson also opined that Padilla's subsequent rapes in the jail and in 1991 may have been different in motivation than the 1978 spree against the three women. Dr. Clipson posited that the jail incident may have been gang-related and the 1991 offense may have been motivated by revenge.^[7]

Dr. Clipson concluded that "if the spree of rapes in 1978 had occurred over a period of more than six months rather than only two, the criteria for coercive paraphiliac disorder may be possible. However, given the alternative, more likely explanations for [Padilla's] sexually aggressive behavior in the cases of his fourth and fifth victims, it is unlikely that a coercive paraphiliac disorder was the basis for these offenses. Rather, they were more likely motivated by anger and revenge."

Dr. Clipson also opined that Padilla's history and thinking did not indicate that he could not exercise sexual self-control. During the interview with Dr. Clipson, Padilla denied having sexual impulses that he had to resist or disturbing sexual thoughts; he denied being aroused by sexual situations involving the use of force; and he denied

having any problems with self-control when sexually aroused. Dr. Clipson stated that the only two indicators of lack of control were that Padilla reoffended while in jail after being convicted of and incarcerated for a sexual offense and while under supervision. However, no other indicators were present, such as "reoffense a short time after release from prison, sexual preoccupation, attitudes supportive of sexual offending, sexual compulsions, statements suggestive of lack of sexual self-control, and the presence of a mental disorder or personality disorder with symptoms of decreased self-control . . . ."

Although Dr. Clipson concluded Padilla did not suffer from a paraphiliac disorder, he agreed with the People's experts' conclusions that Padilla was at a high risk of reoffending. He evaluated Padilla with the same Static 99 instrument used by the People's experts, and agreed with their assessment that Padilla scored a 9 which placed him at a high level of risk. Considering factors apart from the Static 99, Dr. Clipson also agreed with the People's experts' view that Padilla suffered from intimacy deficits which increased his risk of reoffending. Although there were also some factors that reduced his risk level, Dr. Clipson found these factors did not alter the Static 99 results.

Dr. Clipson concluded there was a substantial risk that Padilla would commit a predatory sexual offense if released into the community without supervision but that he did not suffer from an SVP mental disorder. Dr. Clipson stated: "It is the final opinion of this examiner that Mr. Padilla is at substantialthat is, a serious and well-founded riskto commit another sexually violent, predatory offense. The actuarial predication of high risk is maintained after consideration of the various risk factors not included in the Static 99. However, his sexual offenses were not caused by a mental disorder so that his volitional control is not diminished. He can, in my opinion, be safely treated in the community without placing the public in danger."

2. Analysis

To prevail on a claim of ineffective representation, the defendant must show that defense counsel "fail[ed] to perform as a reasonably competent attorney, and it is reasonably probable that, absent counsel's deficiencies, a more favorable result would have been obtained." (People v. Wader (1993)5 Cal.4th 610, 636; People v. Lucas (1995) 12 Cal.4th 415, 436.) If the record does not show prejudice from the alleged incompetence, a reviewing court may reject the claim without determining whether counsel's performance was deficient. (People v. Kipp (1998) 18 Cal.4th 349, 366.)

Padilla argues that trial counsel's failure to have an expert personally examine him constituted ineffective representation because basic trial preparation required investigation into what might be revealed by a personal examination by a defense expert. Padilla contends that defense counsel focused only on a theory that there was no such mental disorder as paraphilic rape, and that defense counsel should have presented an alternate theory that even if there was such a mental disorder Padilla did not suffer from it. He argues that Dr. Clipson's report would have supported this alternate theory.

As noted, we are not persuaded that basic trial preparation necessarily requires a defense expert to personally examine the defendant in every case. Depending on the facts of the case, including the nature of the defendant's criminal history, the psychiatric diagnosis, and the defendant's current mental state, competent defense counsel may devise a defense strategy that does not require, or might be best served without, a personal examination by a defense expert. The courts recognize that defense counsel must be given wide discretion to select defense strategies, and accordingly the courts exercise a high level of restraint when reviewing incompetency claims that may involve tactical decisions. (See People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)

In any event, the record does not show Padilla suffered any prejudice from the lack of personal examination in his particular case. Contrary to Padilla's characterization of the record, defense counsel did not merely present a theory that paraphilic rape was an invalid diagnosis. The record shows defense counsel also pursued the theory that even if the disorder does exist, Padilla does not suffer from it. Dr. Donaldson testified that although the existence of the disorder was disputed in the medical community and was difficult to prove, he believed it did exist. He also opined that the evidence did not show Padilla suffered from the disorder. Dr. Donaldson described the essential criteria he believed were necessary to support the diagnosis (i.e., preference for rape, inhibitions, and guilt), and stated there was no evidence Padilla manifested these criteria. In rendering his opinion, Dr. Donaldson referred to the details of Padilla's criminal history, and specifically refuted the prosecution's reliance on such factors as repetitive rapes, maintenance of arousal in the face of victim resistance, the presence of another man, and planned rather than opportunistic behavior. Dr. Donaldson also supported his view by pointing to the lack of evidence of Padilla's sexual misbehavior in prison, Padilla's preference for consensual sex as reflected in his two marriages and the high number of sexual partners, and Padilla's advancing age.

Thus, Dr. Donaldson's testimony was based on a detailed examination of Padilla's criminal and personal history and presented meaningful evidence contradicting the People's experts' opinions that Padilla suffered from paraphilia. The record does not show the failure to secure a personal interview by a defense expert deprived the defense of any information necessary to present the theory that Padilla did not suffer from the disorder.

Additionally, the report prepared by Dr. Clipson which is included in the writ petition does not advance Padilla's claim of prejudice from defense counsel's failure to obtain a personal examination by a defense expert. Like Dr. Donaldson, Dr. Clipson concluded that the evidence did not show Padilla suffered from paraphilic rape disorder. Although Dr. Clipson formed this opinion in part from his interview with Padilla, and the fact that he personally interviewed Padilla could serve to bolster his opinion, other aspects of his statements would likely have weakened the defense. Indeed, when comparing the two experts' presentations, Dr. Donaldson's approach appears more favorable to the defense than Dr. Clipson's approach. For example, Dr. Donaldson questioned many of the criteria relied upon by the People's experts to diagnose the disorder, whereas Dr. Clipson validated much of the criteria and conceded that Padilla met several of them. Further, Dr. Donaldson questioned the reliability of the Static 99, whereas Dr. Clipson used the tool to reach the same conclusion as the People's experts regarding Padilla's high risk of reoffending. Dr. Clipson's ultimate concession that Padilla "is at substantial . . . risk . . . to commit another sexually violent, predatory offense" could have been particularly damaging to the defense and significantly undermines a claim of prejudice from defense counsel's reliance on Dr. Donaldson's presentation.

Finally, we are not persuaded by Padilla's assertion of prejudice based on the claim that counsel's omission allowed the jury to discredit Dr. Donaldson because he failed to follow the protocol used by the Department of Mental Health for SVP evaluations, which provides for a personal examination. The record shows that the People briefly cross-examined Dr. Donaldson and presented a short argument to the jury on this point. When the record is viewed in its entirety, this was a minor factor in the prosecution's favor that does not show any significant undermining of the strength of Dr. Donaldson's presentation on behalf of the defense.

Because the record does not show prejudice, Padilla's incompetency of counsel claim fails.

II. Substantial Evidence

Padilla asserts there is insufficient evidence to support a finding that he currently suffers from a disorder that makes it likely he will reoffend. He contends the People's experts relied solely on his past criminal history and speculation that nothing had changed. He points out that his prison record reflects no improper sexual behavior, and he has not engaged in any sexual misconduct since 1991.

To prove that a person is an SVP allowing involuntary commitment, the People must prove beyond a reasonable doubt that the offender currently suffers from a mental disorder that seriously impairs the person's ability to control his or her sexually violent behavior and creates a substantial danger that the person will commit a sexually violent offense if released. ( 6600, 6604; People v. Munoz (2005) 129 Cal.App.4th 421, 430; People v. Roberge (2003) 29 Cal.4th 979, 988; People v. Williams (2003) 31 Cal.4th 757, 776.) Although evidence of past SVP convictions may not be used as the sole basis to establish the likelihood of reoffending, they may be considered on this issue. ( 6600, subd. (a)(3); Hubbart v. Superior Court (1999)19 Cal.4th 1138, 1163-1164.) There is no requirement that the offender have committed a recent act of sexual misconduct while in custody. ( 6600, subds. (d), (f); People v. Buffington (1999) 74 Cal.App.4th 1149, 1161; People v. Sumahit (2005) 128 Cal.App.4th 347, 353.) The likelihood of reoffending may also be evaluated based on the chances that the offender "will voluntarily accept community treatment to ameliorate the substantial danger." (People v. Superior Court (Ghilotti) (2002)27 Cal.4th 888, 925-926; People v. Roberge, supra, 29 Cal.4th at p. 988, fn. 2; People v. Sumahit, supra, 128 Cal.App.4th at pp. 354-355; People v. Grassini (2003) 113 Cal.App.4th 765, 777.)

When reviewing a challenge to an SVP commitment based on insufficient evidence, we review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the fact finder's determination. (People v. Sumahit, supra, 128 Cal.App.4th at p. 352.)

The record shows that the People's experts did not rely solely on the fact of Padilla's prior offenses, but rather considered the pattern and nature of his offenses, as well as his current attitude toward the offenses, to show he suffered from a current mental disorder that made it likely he would reoffend. The People's experts assessed that Padilla's past offenses reflected a serious lack of control because he engaged in repeated acts of rape in concert notwithstanding the increased risk of identification from the presence of another man; he committed rape while in jail awaiting sentencing for the very same type of offense; and he committed yet another rape five years after release from prison even though he had endured a long confinement for the same conduct. As to his current mental state, the experts pointed out that Padilla completely denied commission of any rapes, he had not received therapy to address his disorder, and he stated he did not have a problem and did not need treatment. Thus, the record shows he would not voluntarily accept treatment if released.

Padilla's past inability to control himself notwithstanding severe negative consequences and his ongoing lack of insight into his behavior supports an inference that his lack of control was persistent and that he would likely repeat the conduct if released. The fact that there was no evidence Padilla engaged in sexual misconduct in the controlled environment of prison does not defeat this conclusion. Drawing all inferences in favor of the jury's verdict, there is substantial evidence to support the finding that Padilla currently suffers from a disorder that creates a substantial danger he would commit a sexually violent offense if released.

DISPOSITION

The order is affirmed. The petition for writ of habeas corpus is denied.

HALLER, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.

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^[1]People v. Marsden (1970) 2 Cal.3d 118.

^[2] The DSM case book is a companion to the DSM that provides case examples to assist with diagnosis.

^[3] The experts stated that offenders did not usually self-report rape fantasies.

^[4] Dr. Donaldson explained he did not believe it was necessary to conduct a personal interview because Padilla had been thoroughly interviewed by the People's experts and the People's expert's reports showed their conclusions were unsupported.

^[5] Subsequent statutory references are to the Welfare and Institutions Code.

^[6] The People assert that a defendant at an SVP commitment proceeding does not have the right to request new appointed counsel. We will assume for purposes of our analysis that this right applies at civil commitment proceedings. (See People v. Williams (2003) 110 Cal.App.4th 1577, 1591-1592 [statutory right to counsel triggers due process principles]; In re James S. (1991) 227 Cal.App.3d 930, 935, fn. 13 [due process right to counsel at parental rights termination proceedings requires some inquiry by court regarding complaints about counsel].)

^[7] Regarding the possible gang motivation for the jail offense, Dr. Clipson noted that Padilla told Dr. Updegrove that the offense involved several Hispanic males who assaulted a white male. Regarding the possible revenge motivation for the 1991 offense, Padilla told Dr. Clipson that he believed the victim "set [him] up" to be robbed a few days before. Padilla explained that the victim had called him to come to her apartment to sell drugs; after he arrived there he was robbed by a group of people; and about a week later the victim voluntarily masturbated him. During his pretrial interview with one of the People's experts, Padilla described a similar scenario regarding the 1991 victim.