P. v. Chavira

Filed 8/2/07 P. v. Chavira CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Larry Chavira appeals an order committing him to the California Department of Mental Health for treatment as a mentally disordered offender (MDO) (Pen. Code,  2962, 2966),[1]after his conviction of committing a lewd act on a child under the age of 14 ( 288). We conclude: 1) that Chavira had been offered and declined treatment for his disorder and 2) that substantial evidence supports the finding that he posed a substantial danger of physical harm to others and met the MDO criteria. ( 2962, subd. (a).) We affirm.

FACTS

Chavira filed a petition in the superior court to challenge a decision of the Board of Prison Terms that he qualified as an MDO. He waived his right to a jury trial.

Dr. Phillip Kelly, a staff psychiatrist at Atascadero State Hospital (ASH), testified that Chavira suffers from pedophilia, a severe mental disorder which is not in remission. He "sodomized" an 11-year-old boy. Chavira was offered "sexual offender group treatment" for his disorder, but he refused it because he felt it would increase his "fantasies." Kelly relied on an "M.D.O. evaluation" written by Dr. Gilbert Foss who said that Chavira admitted to Foss that he had refused sex offender group treatment for his disorder "within the past year."

Kelly said that Chavira represents "a substantial danger of physical harm to others." He does not have a "relapse prevention plan" and has not "come to grips with" the fact that he must register as an offender and "remain away from children." There is a "risk of reoffense."

Michael Selby, a "forensic" psychologist, testified that Chavira's pedophilia is a severe mental disorder which is not in remission. He had sexual relations with a child twice a week for several years. Twenty years earlier he had another conviction for molesting children. Chavira admitted being "attracted to children sexually" and felt sex with an 11-year-old boy was appropriate because the child "was very sophisticated sexually." The commitment offense involved "force or violence."

Selby said that in making his evaluations he relied, in part, on medical records from the California Department of Corrections (CDC). Selby said Chavira "has not participated in sex offender treatment, although he's been offered it." The CDC treatment, which includes group therapy and relapse prevention, is "targeted specifically to pedophilia." Chavira refused such treatment. Selby talked with John Rohda, the clinical social worker "who ran the sexual treatment groups at [the] California Men's Colony," to verify that Chavira had refused treatment. Chavira had not "developed any viable relapse prevention skills" and represents a "substantial danger of physical harm to others." He "has yet . . . to acknowledge the extent of the severity of his mental illnesses" and has "a very bad prognosis" if he is released.

Chavira testified that he was not offered sex offender treatment. He said Foss's report which indicated that he had admitted refusing sex offender treatment was incorrect. Chavira said, "I'm working on my relapse prevention plan. I've not yet been asked to present it, that's why there's no relapse prevention plan." Chavira introduced a report by Ronald Mihordin, M.D., who concluded that Chavira did not meet the MDO criteria. Mihordin said Chavira did not pose "a substantial danger based on his pedophilia."

The trial court found that Chavira met all the MDO criteria. It said there was a conflict about whether Chavira was offered treatment and had refused it. It found that Kelly and Selby were credible.

DISCUSSION

I. 90 Days of Treatment

Chavira contends there was insufficient evidence to support the finding that he received 90 days of treatment for his disorder and therefore a necessary element for his MDO commitment is missing. We disagree. "The MDO law is a civil commitment scheme targeting state prisoners with severe mental disorders who are about to be released on parole." (People v. Martin (2005) 127 Cal.App.4th 970, 973.) "Among the six criteria necessary for an MDO commitment is a showing 'that the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day.' ( 2962, subd. (d)(1).)" (Id., at pp. 973-974.)

Here Kelly and Selby testified that Chavira was offered treatment, but he refused it. MDOs who refuse treatment may not claim that the 90-day treatment element is not established. (People v. Kirkland (1994) 24 Cal.App.4th 891, 908-909; Thor v.Superior Court (1993) 5 Cal.4th 725, 738.)

Chavira claims there is no evidence that he was offered treatment for pedophilia. We disagree. From Selby's testimony the trial court could reasonably infer that the CDC offers sex offender treatment "targeted specifically" for pedophilia and Chavira refused it. Kelly testified, "my understanding is he was offered sexual offender group treatment, which would be for the pedophilia, and that he declined . . . ."

Chavira notes that in one portion of his testimony Kelly mentioned that the CDC treatment programs deal with paraphilia. He claims this is a separate disorder from pedophilia which shows that these programs could not treat Chavira. We disagree. Kelly testified that "pedophilia is a form of paraphilia" and the treatment methods for both are the same.

Chavira contends that Kelly and Selby relied on reports and discussions with medical professionals who did not testify. He argues that their testimony was therefore based on inadmissible hearsay from sources who may be unreliable. But he waived this claim because he did not raise these objections at trial. (People v. Miller (1994) 25 Cal.App.4th 913, 917.) Yet even on the merits the result is the same.

Medical experts who testify in MDO cases may rely on reports from other medical professionals. (People v. Miller, supra, 25 Cal.App.4th at p. 917.) They "need not have personal knowledge of the matter as a prerequisite to testifying about it." (Ibid.) Kelly relied on Foss's MDO evaluation, Selby considered CDC medical records and information from Rohda. Medical reports documenting a patient's refusal of treatment are routinely and properly relied on by medical experts. (Ibid.; People v. Hannibal (2006) 143 Cal.App.4th 1087, 1097.) Chavira has not shown why Rohda who ran the treatment programs would not be a reliable source for an expert to verify a patient's refusal to participate in treatment. (Hannibal, supra, at p. 1097; People v. Catlin (2001) 26 Cal.4th 81, 138-139.) In addition, Selby relied on "the interdisciplinary" treatment progress notes which "documented that . . . Chavira had refused treatment." Experts may properly rely on such information. (Hannibal, supra, at p. 1097; Miller, supra, at pp. 917-918; Catlin, supra, at pp. 138-139; In re Fields (1990) 51 Cal.3d 1063, 1070; People v. Cramblit (1978) 84 Cal.App.3d 437, 448-449.)

Moreover, the weight and credibility of such evidence is a matter for the trial court. (People v. Martin, supra, 127 Cal.App.4th at p. 975.) Chavira testified, but the court did not find him credible. It could also reasonably draw inferences favorable to the prosecution from his admissions. Chavira initially said that Rohda never offered him a sex offender treatment program. Later he admitted Rohda "offered" to "sign [him] up to a group taught by another social worker." Chavira said this group involved "other inmates convicted of sex crimes [who] voice their opinions and talk about it." He claimed this happened in 2003, but the trial court was not bound by his version about when this occurred. It could reasonably infer it happened when Rohda, Foss, Selby and Kelly said it did or it could rely on Chavira's admission to Foss.

In addition, Chavira suggested that he had actually received treatment at CDC by Rohda. He testified that he had "active sexual symptoms towards males," but "since my time in confinement in C.D.C. . . . under the help and care of Dr. Gordon, and LCSW Rohda, I had overcome that." (Italics added.)

II.

Substantial Danger of Physical Harm To Others

Chavira contends that the evidence is insufficient to support the finding that he represented a substantial danger of physical harm to others. We disagree. There must be evidence that an MDO represents a substantial danger of physical harm to others, but proof of a recent overt act is not required. (People v. Buffington (1999) 74 Cal.App.4th 1149, 1161.)

Here Kelly and Selby testified that Chavira met this requirement. Selby said Chavira is not in remission, he did not appreciate the extent of his disorder, lacked relapse prevention skills and had "a very bad prognosis" if released. Chavira believed it was appropriate to have sexual relations with a sexually "sophisticated" child. Kelly said there was a risk Chavira would reoffend, he did not understand his registration obligations and his need to keep away from children. Their testimony is substantial evidence. (People v. Pace (1994) 27 Cal.App.4th 795, 798.)

Chavira claims their conclusions should be disregarded and notes that Mihordin said he did not meet this requirement. But we do not decide the credibility of experts, weigh the evidence or resolve evidentiary conflicts. (People v. Martin, supra, 127 Cal.App.4th at p. 975; People v. Pace, supra, 27 Cal.App.4th at p. 798.) The evidence is sufficient.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

John A. Trice, Judge

Superior Court County of San Luis Obispo

______________________________

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Deborah J. Chuang, Deputy Attorney General, for Plaintiff and Respondent.

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