People v. Greene CA2/3 ( 2022 )

Filed 7/20/22 P. v. Greene CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B315882
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. ZM027029)
MARCELLUS GREENE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, David C. Brougham, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Lindsay Boyd, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
Marcellus Greene appeals from a commitment order
classifying him as a sexually violent predator and committing
him to the State Department of State Hospitals (SDSH), under
the Sexually Violent Predator Act (Act) (Welf. & Inst. Code,1
§ 6600 et seq.), for an indeterminate term. On appeal, Greene
argues that his commitment cannot stand because there was
insufficient evidence that he suffers from a severe mental
disorder that predisposes him to commit sexually violent
predatory crimes if released. We disagree and affirm.
BACKGROUND
I. The Act
The Act “allows for the involuntary commitment of certain
convicted sex offenders, whose diagnosed mental disorders make
them likely to reoffend if released at the end of their prison
terms.” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 235.) A
sexually violent predator (SVP) is “a person who has been
convicted of a sexually violent offense against one 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.”
(§ 6600, subd. (a)(1).) Further, the offender’s future sexually
violent criminal behavior must be “predatory” in nature (People v.
Hurtado (2002) 28 Cal.4th 1179, 1186), meaning that it 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).)
1 All
further undesignated statutory references are to the
Welfare and Institutions Code.
2
A person who is declared an SVP is committed to the SDSH
for treatment. (§ 6604.) The Act is “not punitive in purpose or
effect” (People v. Yartz (2005) 37 Cal.4th 529, 535), and a
commitment proceeding under the Act is a “ ‘special proceeding of
a civil nature.’ ” (Id. at p. 536.) To support a person’s
commitment under the Act, the People must prove beyond a
reasonable doubt that the person is an SVP. (§ 6604; Cooley v.
Superior Court, supra, 29 Cal.4th at p. 246.)
II. Greene’s underlying offense
In 1996, Greene pleaded no contest to a violation of Penal
Code section 289, sexual penetration with a foreign object with
force or violence. The conviction stemmed from a July 1996
incident that began when the victim was on the phone and
Greene had a telephone operator interrupt the victim’s call. After
the victim answered, Greene offered her candy, and she went
over to his house. When she entered, Greene pulled down her
underwear and she attempted to fight him off. She continued to
fight and scream, and Greene turned up the music that he was
playing. Greene threatened to anally penetrate her, but instead
grabbed her by the throat and forced his penis into her vagina.
Prior to doing so, Greene refused the victim’s request that he use
a condom. The victim left Greene’s house and told a friend what
had happened. The friend called the police.
III. The SVP proceedings
On July 1, 2015, the district attorney petitioned to commit
Greene as an SVP. The trial court found probable cause to
believe that Greene was an SVP and ordered a trial.
After Greene waived a trial by jury, a bench trial was held
in September and October of 2021. Dr. Tricia Busby and
3
Dr. Christopher Matosich testified for the prosecution,2 and
Dr. G. Preston Sims and Greene testified for the defense.
A. The People’s expert testimony
1. Dr. Busby
Dr. Busby, a SDSH forensic evaluator, evaluated Greene.
Dr. Busby reviewed the 1996 police report from the commitment
offense, the abstract of judgment, Greene’s rap sheet, state
hospital treatment records, and the preliminary hearing
transcript. She attempted to interview Greene multiple times
but was unable to do so because he was considered dangerous
and was confined to his unit.
Dr. Busby diagnosed Greene with exhibitionist disorder
(i.e., becoming aroused by exposing oneself to unsuspecting
strangers), schizoaffective disorder, bipolar type, antisocial
personality disorder, and substance abuse disorder. The
exhibitionist disorder diagnosis was premised upon a pattern of
behavior beginning in 2007 of Greene exposing himself to
unsuspecting female correctional staff, and masturbating while
looking at them. Greene was convicted of indecent exposure in
2012 and 2018 based upon two of these incidents, one in prison
and the other in the state hospital.
Greene’s schizoaffective disorder diagnosis involved
symptoms such as delusions, hallucinations, and disorganized
behavior. More specifically, Greene called himself King
Marcellus and an “Afrikan Warrior,” and also displayed
2 During the testimony, Greene, who appeared remotely,
was seen walking around, exercising, or breathing loudly. At one
point, Greene interrupted Dr. Busby’s testimony, exclaiming
“[t]his is fucking bullshit.”
4
disorganized speech and manic symptoms such as agitation,
depression, and a decreased need for sleep.
Greene’s antisocial personality disorder involved a lack of
empathy and disregard for lawful behavior beginning before
Greene turned 15. Greene reported that at age 9, he received
stolen property, and between 14 and 15, he trespassed several
times. Greene’s adult criminal history consisted of arrests for
assault and exhibitionist behaviors. His rule violations while
incarcerated were further manifestations of his antisocial
personality disorder.
Greene’s substance abuse disorders, pertaining to alcohol
and cocaine, stemmed from his being found in possession of
controlled substances while incarcerated, including prison-made
alcohol, a straw and some white powder, and pills that may not
have belonged to him.
These diagnoses, according to Dr. Busby, predisposed
Greene to sexually violent behavior because he continued to act
out sexually on an almost daily basis. Dr. Busby viewed Greene’s
behavior, including violating the rights of correctional staff, to
unwanted letters and exposing behavior, as a continuation of his
conduct surrounding the commitment offense, which the
controlled environment only tempered. That Greene was not
violent during these institutional encounters did not affect Dr.
Busby’s diagnosis of exhibitionist disorder.
Dr. Busby applied the Static-99R, an actuarial assessment
of sexual offense risk that identifies risk factors found to be
significantly associated with sexual recidivism. She obtained a
score of seven for Greene, which indicated he was a high risk for
sexual reoffense, with a 31 percent chance of reoffending within
five years, and a 43 percent chance within 10 years. Dr. Busby
5
also applied a test that assessed dynamic risk factors, or risks
that could be improved or mitigated with appropriate behavior
and treatment. Greene was assessed at 20, meaning that he was
in a high-needs treatment group. However, Greene did not
partake in the treatment offered to him in the state hospital.
Finally, Dr. Busby considered protective factors that might have
reduced Greene’s likelihood of recidivism, including advanced
age, completion of sex offender treatment, and medical
conditions.
Taking these factors together, and particularly in light of
Greene’s multiple diagnoses and his refusals to learn coping
skills for his diagnoses through treatment, Dr. Busby concluded
that Greene was likely to reoffend in a sexually violent predatory
manner in the community. Dr. Busby explained that Greene’s
refusal to avail himself of treatment in custody rendered him
unlikely to seek treatment at liberty. Greene’s sexually
aggressive behavior, a product of his schizoaffective disorder, his
use of alcohol and drugs while in custody, and statements that he
gets triggered by women, wishing to expose himself to staff in
situations where they would not expect it, likewise supported Dr.
Busby’s conclusions.
Dr. Busby noted that Greene’s qualifying offense was
predatory because he sought the victim out and enticed her to
come over. Nonetheless, she acknowledged that, according to the
preliminary hearing transcript, Greene and the victim had a
prior relationship, including having consensual sex on one
occasion, and that the victim knew where Greene lived and
voluntarily came to his residence.
6
2. Dr. Matosich
Dr. Matosich, a clinical forensic psychologist who had
completed over 1,200 SVP evaluations, conducted SVP
evaluations on Greene in 2015, 2017, 2019, and 2021, and
interviewed him in 2015 and 2021. Before completing his
evaluations, Dr. Matosich reviews probation and police reports,
legal records, and institutional mental health and behavioral
records, and he reviewed some of those records for Greene.
During Dr. Matosich’s 2015 interview, Greene recalled that
his first sexual contact, at age 11 or 12, “opened the floodgate”
and was followed by more sexual encounters, two of which were
in prison. Greene admitted to 17 rule violations since 2012, but
denied victimizing anyone in prison. Most of his violations were
for masturbating publicly or indecent exposure, but he was also
accused of writing a love letter to a female correctional staff
member, in which he invited her to take a bubble bath with him.
Greene attributed his incidents to his desire to explore his sexual
fantasies, and that seeing a ponytailed woman chewing
bubblegum made him horny.
When asked about fulfilling his sexual needs while in
custody versus in the community, Greene stated it was his right
to masturbate to prevent prostate cancer. Greene used
pornography while in custody. According to Greene, exposing
himself was his own right and his own business. He got an
adrenaline rush from doing so, finding it “exciting” to surprise
someone by masturbating, claiming that he is in his “prime”
when doing so. Greene also claimed that officers had encouraged
him to expose himself while in custody.
Greene recalled that he was first arrested at age nine for
receiving a stolen VCR. Greene was arrested for trespassing on
7
city property at ages 13 and 14, and again at 18. In 2002, Greene
received an additional eight-year sentence for having a weapon in
prison.
Greene stated that he was wrongfully convicted because of
the racism surrounding the O.J. Simpson case. Greene planned
to take legal action against the state based upon his illegal
incarceration and against prison officers for refusing to move him
away from predatory prisoners and conducting illegal strip
searches. He also planned to obtain his undergraduate and law
degrees, open his own law firm as a way to assist people with
publishing poetry, and to live until age 112. Greene also stated
he was in a romantic relationship with a woman he had not yet
physically met.
Dr. Matosich interviewed Greene again in 2021. At the
time, Greene was going by the name “Marvelous Afrikan
Warrior.” He had just been removed from the state hospital to
prison for exposing himself. Greene stated he was sexually
frustrated, and his overall presentation was pressured and rapid.
His speech was unfocused and hard to follow.
Based upon these facts, Dr. Matosich diagnosed Greene
with other specified paraphilic disorder, nonconsent, meaning
that Greene had frequent fantasies, urges, and behaviors
involving sexual activity with nonconsenting individuals,
children, or objects. Although this diagnosis was required to be
present for at least six months, and Greene’s diagnosis stemmed
from the commitment offense, Dr. Matosich believed that
Greene’s spontaneous statement in 2015 that he enjoys
controlling his partner uniquely qualified him.
Dr. Matosich also diagnosed Greene with exhibitionistic
disorder in a controlled environment, in which an individual
8
experiences excitement or pleasure from surprising strangers
with sexual behavior. Dr. Matosich attributed this to Greene’s
persistent rule violations and to his statements that surprising
individuals as he is masturbating, both in custody and the
community, was arousing to him.
Dr. Matosich further diagnosed Greene with bipolar
disorder, moderate, with a recent episode of hypomania. Greene’s
loud and hostile tone, and specifically his incoherent thoughts
and speech, during the two interviews accounted for this
diagnosis. With respect to the 2021 interview, Dr. Matosich
observed that Greene suffered from grandiosity within his bipolar
condition and had goals and plans that were unrealistic or
delusional. For example, Greene claimed that director Ava
DuVernay would write a movie about his life and that he would
have $5 million to donate.
Greene also met the criteria for antisocial personality
disorder on account of his early onset of criminal behavior and
inability to conform to community and institutional standards.
Finally, Dr. Matosich diagnosed Greene with cocaine use
disorder, moderate, in sustained remission in a controlled
environment.
In Dr. Matosich’s opinion, these diagnoses, working
together, predispose Greene to sexually violent predatory
criminal behavior. In particular, Greene’s paraphilic disorder
had become more severe because of issues related to his bipolar
disorder and the need to express himself through exposure and
anti-social personality characteristics and traits. Thus, although
each disorder, standing alone, would constitute a qualifying
diagnosis, the combination of those disorders created a greater
risk for acting on Greene’s paraphilic tendencies, urges, and
9
behaviors, and it was difficult to separate them out as causes for
Greene’s behavior.
Dr. Matosich also deployed the Static-99R, and scored
Greene an “eight,” placing him in the “well-above average”
category of risk for reoffending. Dr. Matosich also utilized the
structured risk assessment, which measured dynamic variables
that are changeable through treatment and other interventions.
Greene scored above “3,” placing him in the high-risk group. This
scoring included consideration of Greene’s lack of emotionally
intimate or continuous relationships with adults, his lack of
emotional congruence with children, and his callousness and
degree of psychopathy.
These reasons, combined with Greene’s lack of insight and
participation in treatment, formed the basis for Dr. Matosich’s
conclusion that Greene was likely to engage in sexually violent
predatory criminal behavior in the community and needed to stay
in a secured facility. Greene continued to be preoccupied with
sexual behavior and believed he was entitled to follow through on
his urges. He was more prone to sexually violent predatory
behavior, rather than mere exhibitionism, in the community
because of the severity of his sexual deviances, as well as his
refusing treatment to address his delusions and grandiosity,
entitlement, and aggression. Based on these factors, and the
unique callousness and predatory nature of the commitment
offense,3 Dr. Matosich concluded that Greene would act
consistent with the qualifying offense without treatment.
3 Like Dr. Busby, Dr. Matosich concluded the commitment
offense was predatory, even though Greene and the victim had a
previous relationship, including having sex one time before the
10
B. The defense case
1. Dr. Sims
Dr. Sims, an SDSH clinical and forensic psychologist, had
conducted over 1,200 evaluations and testified approximately
100 times as an expert, 95 percent of the time for the prosecution.
Dr. Sims first evaluated Greene in 2015, reviewing several
case documents and interviewing him for 90 minutes. During
that interview, Greene denied the commitment offense, as well as
any substance abuse and mental health issues. Greene claimed
that he gave the victim her first penetrating orgasm. Dr. Sims
also evaluated Greene in 2021, reviewing previous evaluations,
rule violation reports, and hospital records and Greene’s writings
before doing so.
After both evaluations, Dr. Sims concluded that Greene had
mental disorders that predispose him to sexual criminal
behavior, but not sexually violent or predatory acts. Specifically,
Dr. Sims diagnosed Greene with exhibitionistic disorder,
schizoaffective disorder, cocaine and alcohol use disorders, and
antisocial personality disorder.
Exhibitionistic disorder, Dr. Sims described, involves a
sexual interest in exposing one’s genitals to unsuspecting persons
and actually doing so, causing interpersonal difficulty. Greene
repeatedly engaged in such behavior, but Dr. Sims did not
consider it sexually violent because it does not involve physical
contact.
Schizoaffective disorder combines the symptoms of
schizophrenia and mood disorders such as depression or mania.
incident, and even though the victim voluntarily came to
Greene’s residence at his invitation.
11
Though Dr. Sims did not observe any such evidence during his
2015 interview, he relied on hospital records describing
symptoms that Greene exhibited matching that diagnosis,
including delusions, depression, mania, and disorganized
thoughts and speech. Symptoms were also described in the
transcript of Dr. Matosich’s 2021 interview.
Despite these diagnoses, however, Dr. Sims did not believe
that any criminal sexual acts by Greene would be violent or
predatory. This was because the vast majority of Greene’s
criminal sexual behavior were acts of indecent exposure, having
only committed one sexually violent predatory offense in 1996.
Dr. Sims noted that the majority of sex offenders have a
relatively low risk of sexually reoffending, in part because they
are motivated to stay out of prison. Though Greene had been
continuously incarcerated or institutionalized since his 1996
conviction, he could have committed a contact offense in prison or
the hospital, but had not done so, instead merely exposing
himself to various staff members. Because most persons do not
reoffend after their initial incarceration, Dr. Sims opined that
there is no reason to say with any degree of certainty that Greene
would similarly reoffend. Moreover, if a person is sexually
aroused based on lack of consent, that person would be expected
to have reoffended after receiving a criminal sanction, which was
not the case with Greene.
Dr. Sims evaluated Greene using the Static-99R, Static-
2002R, and two dynamic instruments, the Structured Risk
Assessment Forensic Version, and the Hare Psychopathy
Checklist (also known as the PCLR). Greene received a “seven”
on both the Static-99R and Static-2002R, placing him in the “well
above average” risk category, or the highest level of possible
12
recidivism risk. His structured risk assessment score was 3.3,
placing him in the highest risk category. Greene’s PCLR score
was in the higher average range (22.1 out of 40 points). In
Dr. Sims’s view, however, these instruments had limited value in
assessing whether one qualifies as an SVP, because they measure
only sexual recidivism generally, rather than the risk of
committing sexually violent offenses.
This consideration, combined with Greene’s only having
committed a single sexually violent predatory offense in 1996,
suggested that he was not a serious and well-founded risk for
committing a violent predatory sexual offense in the future.
Dr. Sims acknowledged, however, that he could not recall
submitting an evaluation supporting an SVP finding where the
subject only had one sexually violent offense. Dr. Sims further
conceded that Greene remained at high risk of committing a
nonviolent sexual offense, and was unlikely to pursue treatment
upon release.
2. Greene
Greene began his testimony stating, “I, marvelous Afrikan
Warrior, am making a special limited appearance on behalf of the
defendant, who is right here, Marcellus Alexander Greene, Sr.”
Greene met the victim while they were enrolled in a
substance abuse program. The victim called Greene the first
night she got out of the program, and they went out on a date
that ended in consensual sex.
Five days later, the night of the incident, Greene used an
emergency breakthrough to tell her he had candy for her. When
the victim arrived, Greene said he would meet her in the
bedroom, where the candy was located. The victim agreed and
told Greene “[d]on’t take long.”
13
In the bedroom, Greene, who had a bad day because he was
found academically ineligible at school, attempted to kiss the
victim. When she refused, he told her he would masturbate
instead. As Greene started to ejaculate, the victim told him that
she wanted to suck his penis, but Greene refused because she
didn’t want to have sex earlier. He then pushed her off the bed,
finished ejaculating, and went into the bathroom. Greene denied
having sex with the victim, but acknowledged holding her down
by the neck as he was masturbating.
Greene denied other incidents with nonconsenting sexual
partners, being aroused by having nonconsenting partners, or
that he said as much to Dr. Matosich. No crime occurred in 1996;
rather, his 1996 counsel coerced his plea.
Greene admitted to masturbating and exposing himself in
the presence of institutional staff, but denied being turned on by
it, claiming that he and other prisoners did so to identify the
“good” staff members, and that it was an “adrenaline rush.”
Greene acknowledged refusing treatment while institutionalized,
calling it a “farc[e]” and reasoning that he did not have sex with
children. He did, however, participate in some sex offender
treatment prior to the pandemic.
Upon release, Greene planned to reside in South Carolina
with his future wife and engage in sex offender treatment there.
During the two months in his current unit, he had not engaged in
any indecent exposures. He denied having a sexual disorder or
that he would sexually act out while at liberty, explaining that he
will have a “loving wife that’s waiting for me.” While
acknowledging his prior cocaine addiction, he disavowed using
alcohol or any current addiction, and did not anticipate substance
abuse problems after being released.
14
C. The trial court’s SVP finding and commitment
order
After hearing argument from counsel, the trial court issued
its finding and commitment order. The court held that the
People had proven beyond a reasonable doubt that: (1) Greene
had been convicted of a sexually violent offense; (2) Greene had
diagnosed mental disorders, and, as a result, poses a danger to
the health and safety of others because it is likely that he will
engage in sexually violent predatory criminal behavior; and (3) it
was necessary to keep Greene in custody to ensure the health and
safety of others.
Addressing whether Greene’s diagnoses predispose him to
sexually violent predatory criminal behavior, the trial court
found the testimony of Dr. Busby and Dr. Matosich persuasive
based on the thoroughness of their evaluations, interviews, and
review of underlying documents. Though acknowledging Dr.
Sims’s extensive qualifications, the trial court found his
testimony less credible in light of his reluctance to qualify an
individual as a SVP without a repeat offense.
The trial court declared Greene an SVP and committed him
to the state hospital for an indeterminate term. Greene timely
appealed.
DISCUSSION
Greene acknowledges that the People demonstrated beyond
a reasonable doubt that his severe mental disorders predispose
him to commit criminal sexual acts, but contends that reversal is
nonetheless required because the People failed to show that such
acts will be violent and predatory. Though two analytically
distinct arguments, Greene’s complaints, boiled down, are alike:
the trial court afforded undue weight to—or otherwise
15
misconstrued—certain facts of the decades-old commitment
offense in concluding that the People met their burden as to these
prongs. Contrary to Greene’s contentions, the People’s expert
testimony, together with the actuarial tests they performed,
Greene’s statements, conduct in custody, and refusals of
treatment, among other considerations, provide substantial
evidence to support the trial court’s findings.
I. Standard of review
“In reviewing the evidence sufficient to support a
commitment under section 6600, ‘courts apply the same test as
for reviewing the sufficiency of the evidence to support a criminal
conviction.’ [Citation.] ‘Thus, [the appellate] court must review
the entire record in the light most favorable to the judgment to
determine whether substantial evidence supports the
determination below. [Citation.] To be substantial, the evidence
must be “ ‘of ponderable legal significance . . . reasonable in
nature, credible and of solid value.’ ” ’ ” (People v. Carlin (2007)
150 Cal.App.4th 322, 333.)
Further, “ ‘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 on which that determination depends.
[Citation.] Thus, if the verdict is supported by substantial
evidence, we must accord due deference to the trier of fact and
not substitute our evaluation of a witness’s credibility for that of
the fact finder.’ [Citation.] This is true even in the context of
expert witness testimony.” (People v. Poulsom (2013)
16
213 Cal.App.4th 501, 518; accord People v. Sumahit (2005)
128 Cal.App.4th 347, 352.)4
II. Substantial evidence supports the trial court’s
determination that Greene’s mental disorders
predispose him to violent and predatory criminal
sexual acts.
As noted, an SVP adjudication requires a diagnosed mental
disorder that renders one likely to engage in sexually violent and
predatory criminal behavior. Substantial evidence supports the
trial court’s conclusion that the “violent” and “predatory”
requirements were satisfied here.
All three experts—including the defense expert—diagnosed
Greene with mental disorders that, in their totality, predisposed
him to committing another sex offense. Their opinions departed
only on the matter of whether such offense would be violent and
predatory. Greene primarily contends that the trial court erred
in concluding any future criminal acts would be violent and
predatory by relying exclusively on the facts of Greene’s
commitment offense and diagnoses. The record belies that
assertion.
For example, Dr. Busby’s diagnoses of exhibitionist
disorder, schizoaffective disorder, antisocial personality disorder,
and substance abuse disorders predisposed Greene to sexually
violent and predatory behavior because he continued to act out in
a sexual manner on a near daily basis. That Greene’s
institutional misconduct, a product of his schizoaffective disorder
and antisocial personality disorder, was not violent or hands-on
4 We reject Greene’s implication that we are required to
substitute our judgment for that of the trial court.
17
did not alter her opinion because the controlled environment
tempered his behavior. Dr. Busby’s conclusions were premised
upon her consideration of extensive documentation relating to
both the commitment offense and Greene’s subsequent history,
including his refusals of treatment, his substance abuse while in
custody, and his statements that women trigger his desire to
surprise them by exposing himself.
Dr. Matosich similarly concluded, after review of extensive
documents and interviews with Greene, that Greene suffered
from other specified paraphilic disorder, exhibitionist disorder,
bipolar disorder, antisocial personality disorder, and cocaine use
disorder. These present mental health diagnoses rendered him
prone to violent conduct, rather than mere exhibitionism, because
of the severity of his sexual deviances and preoccupations, and
his refusing to accept treatment to address his delusions and
grandiosity, entitlement, and aggression. These diagnoses and
clinical observations, combined with the uniquely callous nature
of the commitment offense, led Dr. Matosich to conclude Greene
would similarly reoffend if released without treatment.
After interviewing Greene and reviewing numerous case
and institutional documents, Dr. Sims concurred with the
diagnoses of exhibitionist disorder, schizoaffective disorder,
cocaine and alcohol use disorder, antisocial personality disorder,
and further agreed that these predisposed Greene to commit
criminal sexual acts. Nonetheless, because most of Greene’s past
sexual misconduct was not violent, Sims was uncertain that
Greene would reoffend in a violent and predatory manner. Still,
Dr. Sims joined Dr. Busby and Dr. Matosich in concluding that
18
Greene was in the high range of risk of reoffending based on his
use of actuarial tools and analyses of dynamic risks.5
As such, the multiple clinical evaluations, the results of
several standardized tests, and the evidence of Greene’s conduct
while confined (ranging from additional sex offenses to refusing
treatment), supported the trial court’s conclusion that Greene
posed a present risk of sexually violent recidivism. (§ 6600,
subd. (3) [evidence of “currently diagnosed mental disorder”
rendering one likely to engage in sexually violent criminal
behavior is required].) Indeed, as Greene acknowledges, the trial
court afforded extensive consideration to his lack of a contact
offense in custody, noting that he was “not completely unable but
far less able” to engage in sexually violent offenses. The court
thus implicitly credited Dr. Busby’s reasoned prognosis, echoed
on the whole by Dr. Matosich, that Greene was likely to violently
reoffend irrespective of the lack of additional sexually violent
misconduct over Dr. Sims’s contrary conclusion. (See People v.
Sumahit, supra, 128 Cal.App.4th at p. 353 [prognosis often must
account for more mild misbehavior in “controlled hospital
environment”].)
Greene’s argument, therefore, amounts to an invitation to
reweigh the evidence, which “confuses our task in a substantial
evidence review.” (People v. Poulsom, supra, 213 Cal.App.4th at
p. 526.) Because the test is only whether there is substantial
5While Greene correctly asserts that these tools measure
generalized sexual conduct, rather than violent recidivism, they
are nonetheless commonly utilized devices that, when considered
together with other evidence of the kind presented here, courts
have accepted as predictive of violent sexual behavior. (People v.
Roa (2017) 11 Cal.App.5th 428, 445.)
19
evidence supporting the factfinder’s conclusions, we are not
concerned with contrary evidence or inferences that a party urges
should have been drawn from that evidence. (Id. at p. 527.)
Dr. Sims’s testimony was found not credible by the trial court
because he was hesitant to qualify an individual as an SVP
without a repeat offense. We “are not free to reweigh or
reinterpret the evidence.” (People v. Mercer (1999)
70 Cal.App.4th 463, 466–467.)
Nor do we fault the trial court’s conclusion that any future
criminal behavior was likely to be predatory, i.e., “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).) Greene seeks to
undermine that holding by arguing that the commitment offense
was not predatory, and, in any event, occurred far too long ago to
have the heavy predictive value that the trial court and expert
witnesses allegedly afforded it. These arguments are
unconvincing.
First, it is well established that the commitment offense
need not be a predatory act. (People v. Torres (2001) 25 Cal.4th
680, 684 [spousal rape would rarely be predatory under the
Act].)6 Second, Greene’s argument suffers from the same
6 We therefore need not reach the issue, but Greene’s claim
that the commitment offense was not predatory is dubious.
Greene and the victim met just two months before the incident,
having gone on one date that ended in consensual sex a mere five
days prior the incident. The incident began with Greene using an
emergency breakthrough call to coerce the victim to come to his
house with candy. Because this inquiry focuses upon whether
20
infirmity outlined above: the court had a far more expansive
record before it than merely the facts of the commitment offense.
Accounting for the testimony of two experts, the results of
the tests they conducted, Greene’s statements, as well as his
conduct in custody, there was substantial evidence for the
conclusion that any further offenses were likely to be predatory.
(See People v. Orey (2021) 63 Cal.App.5th 529, 563 [sufficient
evidence where jury relied on testimony of two experts and
defendant’s refusal of treatment].) Considering Greene’s sexual
aggression toward unsuspecting facility personnel and his
statements that the surprise nature of those interactions
motivated his actions, the conclusion that Greene would push the
envelope without supervision had ample evidentiary support.
(See People v. Sumahit, supra, 128 Cal.App.4th at p. 353.)
Greene’s refusals of treatment only buttressed the conclusion
that he lacked any structure for controlling his impulses upon
release (see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th
888, 929 [noncompliance with treatment indicative of lack of
preparedness to voluntarily control impulses upon release]), and
potential victims could become “aware of the defendant’s status
as a sex offender” (People v. Hurtado, supra, 28 Cal.4th at
pp. 1187–1188), the brief period of Greene’s interactions with the
victim—the vast majority of which was confined to a
rehabilitation center—suggests that Greene and the victim were
at most “casual acquaintance[s] with whom no substantial
relationship exists” (§ 6600, subd. (e)). Thus, Greene’s further
attempt to cast doubt upon the testimony of the prosecution’s
experts by arguing they failed to fully consider Greene’s
relationship with the victim is not just an improper request to
reweigh the evidence (People v. Mercer, supra, 70 Cal.App.4th at
pp. 466–467), but a meritless one.
21
his outbursts and unbalanced testimony during the trial
proceedings did not aid his cause.
Drawing all reasonable inferences in favor of the order, we
are satisfied that substantial evidence supports the trial court’s
findings.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
KIM, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
22