P. v. White

Filed 10/18/07 P. v. White 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of San Bernardino County, Joan M. Borba, Judge. Affirmed.

In May 2006 a jury found Stephen Frank White was a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code^[1]section 6600 et seq. He was committed for two years to the custody of the Department of Mental Health (the Department). White appeals, arguing the trial court erred in excluding expert testimony that the treatment offered him by the Department would not benefit him and that the evidence was insufficient to find him an SVP.

BACKGROUND

A. Prior Convictions and Initiation of SVP Proceedings

In 1987 appellant was convicted of lewdness with a minor under the age of 14 in Nevada and sentenced to three years in prison. Appellant orally copulated the five-year-old son of a woman whose car he was repairing. The child and appellant were essentially strangers.

In 1992 appellant was convicted in California of a violation of Penal Code section 288a, subdivision (c), oral copulation of a minor under the age of 14, and sentenced to three years in prison. Appellant orally copulated the nine-year-old daughter of a woman with whom he was living.

In August 1996, after the appropriate screening procedures were completed, the District Attorney of San Bernardino County filed a petition, alleging appellant was an SVP within the meaning of section 6600 et seq.

After lengthy pretrial procedures, including litigation of various defense motions, and discussion of defendant's refusal to be interviewed by plaintiff's clinicians, the matter came to trial on May 15, 2006. On June 30, 2006, a jury found appellant was an SVP, and the trial court committed him to the custody of the Department for two years.

B. Respondent's Case

1. Dr. Kathleen Longwell

Dr. Kathleen Longwell, a clinical psychologist, first evaluated appellant in June 1996. Longwell reviewed the police reports concerning appellant's 1987 and 1992 convictions for orally copulating minors. She noted that in both cases appellant stated the children appeared to want the sexual contact. Longwell concluded appellant was a pedophile and had an anti-social personality disorder. She found it was likely he would reoffend and that within the meaning of the Welfare and Institutions Code he was an SVP.

In June 2004 Longwell examined appellant using a predictive testing technique and determined there was a moderately high risk appellant would reoffend. She concluded that within the meaning of the Welfare and Institutions Code appellant continued to be an SVP.

In April 2005 appellant refused to participate in a further evaluation by Longwell but made a 30-minute statement to her. Following the statement, Longwell concluded appellant remained a pedophile and an SVP.

In April 2006 Longwell again tried to examine appellant to update the evaluation. Appellant stated he would not speak to her because she was biased against him and would not change her opinion. Longwell concluded appellant was still an SVP.

At trial Longwell stated that her initial conclusion concerning appellant remained the same. He was a pedophile. He had a cognitive distortion that causes him to view children as older than they are, as being sexually developed and as requesting or demanding that he orally copulate them. She stated that while pedophilia cannot be cured, pedophiles could learn with treatment to manage their condition. Appellant, however, would not submit to treatment. Longwell concluded appellant's conditions predisposed him to molesting children and he was at a high risk to commit sexually violent and predatory offenses.

2. Dr. Dawn Starr

Clinical psychologist Dr. Dawn Starr evaluated appellant in May 1996. She evaluated appellant again in 2004. In 2005 and 2006 appellant refused to be interviewed by Starr. Starr concluded after each evaluation that appellant is a pedophile. She also diagnosed appellant as having an antisocial personality disorder. The combination of these two disorders increased the probability that if released to the community he would reoffend. She noted his lack of cooperation with supervision while in custody and his verbal and physical aggressiveness. She considered his belief that it was acceptable to have sex with children and concluded that if released there was a high risk appellant would commit sex offenses.

C. Appellant's Case

1. Dr. Mary Jane Adams

At the defense request, clinical psychologist Dr. Mary Jane Adams evaluated appellant. Adams interviewed appellant in 2003, 2004 and 2005. She diagnosed appellant as suffering from a post-traumatic disorder, depression and a mixed personality disorder that included some symptoms of antisocial personality disorder and passive-aggressive personality disorder all arising from being sexually abused as a child. She concluded appellant was not a pedophile. Adams concluded appellant was not predisposed to the commission of sexually violent acts.

2. Appellant

With regard to his 1987 conviction in Nevada for orally copulating a five-year-old boy, appellant testified he was working on a car while the boy fondled his own penis. Appellant stated this "brought back memories" of his own youth and his history of sexual abuse. He stated that as a child the only way he felt loved was in a sexual manner. Noticing the boy had an erection, appellant told him to expose his penis. The child did so and appellant orally copulated him for a few seconds.

Appellant also testified about his 1992 conviction in California for orally copulating the nine-year-old daughter of the woman with whom he was living. Appellant stated his sexual relationship with the child began when he first moved in with her mother in Nevada, about a year and a half after being released from prison for his first oral copulation conviction. He stated that one afternoon while he was sleeping on a couch, he awoke to find the girl on his chest "humping" him. Appellant stated he found this sexually exciting. Appellant stated on another occasion the child was naked on a bed in the bedroom appellant shared with her mother. When the child's mother essentially invited appellant to have a sexual relationship with the girl, appellant orally copulated the child. Appellant stated this happened on several more occasions before he moved to California.

Later, appellant's girlfriend and her daughter moved to California to join appellant. Appellant's relationship with his girlfriend was acrimonious. When they argued, the girlfriend would threaten to turn him in for having sexual relations with her daughter. On one occasion appellant and the daughter were wrestling on a bed. As appellant orally copulated the child, his girlfriend came into the room saw what was happening and "stormed" out of the house.

Eventually, during an argument with appellant, his girlfriend called the police. During the investigation of the argument, the police learned appellant had orally copulated his girlfriend's daughter. Eventually, appellant was arrested for the crime, pled guilty and was sentenced to prison.

Appellant stated he was able to control his sexual urges, and his oral copulations of the girl simply happened as the result of wrestling with the child. Appellant stated periods of several months would pass during which he would have no sexual relationships with the child.

Appellant stated he believed he had a problem but not to the extent claimed by the state. He did not feel he had a strong attachment to children and was able to control his sexual urges. He noted that months would go by without him orally copulating the daughter of his girlfriend. Appellant stated he did not blame either of his victims for his sexual contacts with them. Appellant testified he had gained insight into the reason for his sexual offenses. Appellant stated he wanted to be castrated. He stated he took a drug for several years to lessen his sex drive. He was no longer taking the drug but positive effects from it remained and his sex drive was greatly reduced. Appellant stated that while in the past he was a danger to reoffend, he no longer was.

DISCUSSION

A. Expert Testimony

Appellant argues the trial court erred when it excluded expert testimony that treatment offered at the state hospital to sex offenders would not benefit him.

1. Background

Prior to trial defense counsel stated that unless the issue became relevant in light of the testimony of the state's experts, its expert would not offer an opinion concerning the effectiveness of sex offender treatment programs at Atascadero State Hospital.

Both of the state's expert witnesses offered their opinion that appellant was a pedophile and if released there was a high probability he would reoffend. Both based their opinions on a host of factors arising from appellant's psychological disorders, his history and attitude. One of the several factors relevant to the predictive tools used by the state's experts was a subject's participation in, completion of and withdrawal from, sexual offender treatment programs. The factor was only one part of a complex matrix made up of many historical and dynamic factors in the subject's life.

After the first of the state's experts testified, the defense was allowed to call its expert out of order. Immediately before the defense expert testified, the district attorney asked the trial court to exclude any evidence concerning the efficacy of the treatment appellant was refusing at the hospital. It appears that in her report the defense expert had opined that because in her opinion appellant was not a pedophile, the sex offender treatment programs offered him at the hospital were useless and other treatments would be more effective. The district attorney stated issues of treatment in that regard were collateral, irrelevant and excludible. He also argued they were also excludible pursuant to Evidence Code section 352 as needlessly time consuming and misleading.

Defense counsel stated he was not sure the issues of diagnosis and treatment could be separated. Counsel noted the purpose of the sex offender treatment programs was to treat pedophiles. Because it was the defense position appellant was not a pedophile, the treatment programs could not benefit him. Counsel noted the state's experts discussed the treatment programs and it would be unfair to preclude the defense from discussing the issue.

The trial court stated the issue of treatment was irrelevant but was discussed in a limited way by the state's first expert. The court stated the defense would not be allowed to question its expert about treatment unless the matter was raised in more detail during the testimony of the state's second expert.

2. Discussion

The trial court properly precluded the defense expert from discussing the issue of treatment.

It is not altogether clear what trial counsel wished its expert to say concerning treatment and why it wished its expert to comment on the subject. The state's experts concluded appellant was a pedophile. In assessing his risk to reoffend, they employed predictive devices relevant to pedophiles that considered, among a host of complex factors, whether a subject completed sex offender treatment or withdrew from treatment. The defense position was that appellant was not a pedophile. It took as irrelevant, therefore, that predictive devices applicable to pedophiles indicated, based on appellant's history including his withdrawal from sex an offender treatment program, there was a high probability he would reoffend. If the jury accepted the defense position that appellant was not a pedophile, then his withdrawal from a sex offender treatment program was meaningless.

The trial court could reasonably conclude that given the nature of the defense, no good purpose would be served by allowing the defense expert to discuss treatment programs applicable to pedophiles. In any event, the jury clearly accepted the prosecution's position that appellant is a pedophile. That being the case, the defense position that because he was not a pedophile he would not be benefited by sex offender treatment programs was of no significance.

B. Sufficiency of Evidence

Appellant notes in order to be committed as an SVP, it is necessary, among other elements, that the state prove he has a "diagnosed mental disorder that [renders him] a danger to the health and safety of others in that it is likely that he . . . will engage in sexually violent criminal behavior." ( 6600, subd. (a).) He argues the evidence was insufficient to prove it was likely he would engage in sexually violent behavior. He complains the focus of the prosecution's case was on his past crimes, medical reports and behavior in the state hospital. He notes the conflicting nature of the expert opinions offered at trial and the inherent difficulty of predicting future behavior.

In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)

Simply because factual questions may be difficult and because evidence is often in conflict does not mean that reasonable conclusions based on competent and reliable evidence cannot be made. If this was not the case, any system of adjudication would be impossible. In this case, qualified experts, based on accepted psychological testing and analytical techniques, concluded appellant had a mental disorder and was a danger to the health and safety of others in that it is likely he would engage in sexually violent behavior. The evidence was sufficient.

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

McINTYRE, J.

IRION, J.

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