P. v. Guinn

Filed 6/1/06 P. v. Guinn CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

George Guinn appeals the judgment and order committing him to the California Department of Mental Health for treatment as a mentally disordered offender (MDO). (Pen. Code, § 2960 et seq.)[1] He contends there is insufficient evidence that he received 90 days of treatment for his pedophilia in the year prior to his parole date. He also contends that pedophilia does not qualify for commitment under MDO law because it is not treatable or capable of remission, and that classifying pedophiles with other MDOs violates his equal protection rights for the same reason. We affirm.

FACTS AND PROCEDURAL HISTORY

In May 2000, Guinn was sentenced to eight years in prison after being convicted of two counts of child molestation. (§ 288, subd. (a).) The Board of Prison Terms (BPT) determined that Guinn satisfied the criteria for commitment set forth in section 2962, subdivisions (a) through (d). On August 24, 2004, Guinn filed a timely petition contesting the decision of the BPT. (§ 2966, subd. (b).)

At trial, undisputed evidence established that Guinn suffered from the severe mental disorder of pedophilia, his pedophilia was a cause or aggravating factor in the qualifying offenses, he was not in remission, and he represented a substantial danger of physical harm to others. (§ 2962, subds. (a), (b), (d).) The only contested MDO criterion was whether Guinn received "treatment for [his] severe mental disorder for 90 days or more within the year prior to [his] parole or release." (§ 2962, subd. (c).)

Dr. Douglas Burton, Guinn's treating psychologist at Atascadero State Hospital, testified that Guinn received the required 90 days of treatment for pedophilia from the prison's mental health department during his incarceration at Mule Creek State Prison. Dr. Burton testified that, because Guinn's pedophilia was "egodystonic," it resulted in "associated features" of depression, anxiety, and guilt. He testified that Guinn's principal caseworker at the prison had assessed Guinn as suffering from pedophilia, and referred him to "stress management and depression and anxiety [therapy] to treat those emotional features." In forming his opinion, Dr. Burton also considered evidence that Guinn discussed his sex offenses and pedophilia in an anonymous inmate 12-step program.

In written reports, psychologists Gilbert Foss, Robert Owen, and Fred Cutter agreed with Dr. Burton's conclusion that Guinn had satisfied the 90 days of treatment criterion. Dr. Foss and Dr. Cutter stated that Guinn had been in treatment for pedophilia as well as for depressive and anxiety disorders. Dr. Owen stated that Guinn had been treated for depression and anxiety without mention of pedophilia.

Psychologist Lynne Bartz concluded that Guinn was treated for depression and anxiety but had not received the required 90 days of treatment for pedophilia. Dr. Bartz noted that Guinn had attended "an inmate-led 12-step program in which he . . . discussed his sex offenses," but relied on prison records that did not refer to a paraphilic disorder, and Guinn's statement denying that he received professional treatment for his "sexual deviancy."

The trial court found that Guinn received treatment for symptoms associated with, and attributed to, his pedophilia and that, based on the opinion of Dr. Burton, this treatment constituted treatment for pedophilia. The court concluded that, although it did not focus directly on Guinn's sexual proclivities, treatment of his "stressors, his depression, and his anxiety" was a necessary element of the treatment of Guinn's pedophilia. The court also credited evidence that Guinn participated in a 12-step program for sex offenders, and noted that the lack of references to pedophilia in the prison records could be explained as protection against the dangers a pedophile faces at the hands of other inmates.

DISCUSSION

Substantial Evidence Supports the Order

Guinn contends that the evidence is insufficient to establish that he had been "in treatment for [pedophilia] for 90 days or more within the year prior to [his] parole or release." (§ 2962, subd. (c).) He argues that the evidence showed treatment for depression and anxiety but not for the mental disorder that resulted in his MDO commitment. (People v. Sheek (2004) 122 Cal.App.4th 1606, 1610-1611 [insufficient evidence of treatment for disorder that resulted in commitment]; see also People v. Garcia (2005) 127 Cal.App.4th 558, 567 [treatment must be for the same mental disorder that qualifies inmate for an MDO commitment].)

"We review the court's finding on an MDO criterion for substantial evidence, drawing all reasonable inferences, and resolving all conflicts, in favor of the judgment." (People v. Martin (2005) 127 Cal.App.4th 970, 975; People v. Clark (2000) 82 Cal.App.4th 1072, 1082.) We do not reweigh the evidence or substitute our decision for that of the trier of fact. (Clark, at pp. 1082-1083.) Here, substantial evidence and reasonable inferences from the evidence support the trial court's ruling that Guinn received 90 days of treatment for pedophilia "within the year prior to [his] parole or release." (§ 2962, subd. (c).)

Dr. Burton acknowledged that, because the prison did not have a sex offender treatment program, the "crux of the issue" was whether Guinn's treatment qualified as treatment for pedophilia. Dr. Burton testified that, before reaching his opinion, he determined that Guinn had 109 contacts with the prison's mental health department, that Guinn had been assessed by his clinical social worker as suffering from pedophilia, and that Guinn was treated for emotional features that were the "direct result of his pattern of child molestation" and pedophilia. Dr. Burton testified that depression and anxiety are not diagnostic criteria for pedophilia because not all pedophiles have that feature, but that they are characteristics of Guinn's form of pedophilia. In Guinn's case, "depression and anxiety are very important precursors and warning signs" of his deviant behavior, and treatment of Guinn's pedophilia appropriately included treatment of its "internal and external precursors."

Guinn points out that, contrary to Dr. Burton's opinion, Dr. Bartz concluded that Guinn's treatment was not limited to depression and anxiety and was not treatment for pedophilia. But, it is the trial court's role to weigh conflicting evidence and the court is not required to accept the opinion of a particular expert. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923.)

Guinn also relies on the case of People v. Sheek, supra, 122 Cal.App.4th at page 1611, where the court affirmed a trial court finding of insufficient evidence to show treatment for the qualifying mental disorder of pedophilia. A psychiatrist testified that the defendant suffered from depression and pedophilia and, although not treated for pedophilia, he received an antidepressant drug which also benefits pedophiles. (Id., at p. 1609.) The court concluded that the People were "bootstrapping" treatment for depression onto pedophilia, and that the defendant had not even been diagnosed with pedophilia at the time of his treatment. (Id., at pp. 1609-1611.)

Sheek does not support Guinn's position. In the instant case, Dr. Burton and the trial court were guided by Sheek in focusing on the object of Guinn's treatment. Similarly to the defendant in Sheek, Guinn suffered from both depression and pedophilia but, after careful consideration, Dr. Burton concluded that Guinn's pedophilia had been diagnosed and that his treatment was directed at features of his pedophilia. The trial court also considered the "bootstrapping" problem, but found Dr. Burton's opinion to be persuasive.

Guinn also claims that the failure to provide treatment prior to commitment violated his constitutional right to due process. This claim has been waived by his failure to raise it in the trial court. (See People v. Brown (2003) 31 Cal.4th 518, 546; People v. Pecci (1999) 72 Cal.App.4th 1500, 1503.) Also, Guinn cites no legal authority that due process requires pre-commitment treatment and, as discussed above, substantial evidence supports the finding the Guinn received the treatment required by the MDO statute.

Pedophilia Satisfies MDO Criteria

This court has held that pedophilia is a "severe mental disorder" within the meaning of the MDO law. (People v. Starr (2003) 106 Cal.App.4th 1202, 1206.) Guinn urges us to reexamine Starr, contending that the MDO law does not apply to pedophilia because pedophilia is neither treatable nor capable of being placed in remission. (See § 2962, subd. (a).) We decline to reassess Starr, and reject Guinn's position.

In Starr, we relied on the classification of pedophilia as a mental disorder in other statutory commitment proceedings, and the broad definition of severe mental disorder which requires only that the disorder be "an illness or disease or condition" which "grossly impairs behavior." (People v. Starr, supra, 106 Cal.App.4th at pp. 1205-1206; § 2962, subd. (a).) Although Guinn attempts to approach the application of MDO law to pedophilia from a different perspective, he is essentially asserting that pedophilia is not a severe mental disorder that permits a commitment under the MDO law.

Apart from Starr, the evidence does not support the conclusion that pedophilia has no overt signs or symptoms, or is not treatable and manageable. In People v. McCune (1995) 37 Cal.App.4th 686, 696, the court summarized expert opinion that "many pedophiles, following treatment, have been released into the community and have been able to control their behavior and lead fairly normal lives[.]" Even if some experts believe it is difficult to treat pedophilia, there is no evidence or contention that Guinn cannot benefit from further therapy.

No Equal Protection Violation

Guinn also contends that an MDO with pedophilia is denied equal protection of the law by being placed in the same classification as MDOs with severe mental disorders that can be treated and placed in remission through treatment. This claim is waived because it was not raised in the trial court or supported by evidence concerning the efficacy of treatment for pedophilia. (People v. Carpenter (1997) 15 Cal.4th 312, 362; People v. Pecci, supra, 72 Cal.App.4th at p. 1503.)

Moreover, the record does not show that pedophiles and other MDOs are not similarly situated under the MDO law or that pedophiles are not subject to the same rules as other MDOs. (See People v. Quinn (2001) 86 Cal.App.4th 1290, 1294; People v. Buffington (1999) 74 Cal.App.4th 1149, 1164.) Difficult challenges in treating pedophilia and utilization of different treatments for different mental disorders does not constitute discrimination. (Quinn, at p. 1294; see also Kansas v. Hendricks (1997) 521 U.S. 346, 360, fn. 3, 366.)

The judgment (order of commitment) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Barry T. LaBarbera, Judge

Superior Court County of San Luis Obispo

______________________________

Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler, Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

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