People v. Bortswick CA2/7 ( 2022 )

Filed 8/11/22 P. v. Bortswick CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B314786
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM016912)
v.
RONALD BORTSWICK,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, James R. Dabney, Judge. Affirmed.
Gerald J. Miller, by appointment, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Paul M. Roadarmel, Jr. and
Steven D. Mathews, Supervising Deputies Attorney General, for
Plaintiff and Respondent.
___________________
In June 2017, Ronald Bortswick admitted the allegations of
a petition filed by the People to commit him as a sexually violent
predator (SVP) under the Sexually Violent Predator Act (SVPA;
Welf. & Inst. Code, § 6600 et seq.) and was committed to a
1
California state hospital. In September 2020, Bortswick filed a
motion for unconditional discharge pursuant to section 6605.
Following a bench trial, the court found that Bortswick continued
to meet the criteria for commitment and denied his motion.
On appeal, Bortswick argues the court improperly placed
the burden of proof on him at trial. He also asserts the court,
when considering whether he would likely engage in sexually
violent criminal acts if released, erroneously assessed Bortswick’s
propensity to reoffend on his historic predatory behavior instead
of his current state of mind. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
2
A. Five Qualifying Offenses
The first two qualifying offenses took place in close
succession in September 1961 when Bortswick was 17 years old.
Bortswick was convicted in Wayne County, Michigan of gross
indecency, accosting a child for an immoral purpose and indecent
1
Undesignated statutory references are to the Welfare and
Institutions Code.
2
Descriptions of the offenses are taken from the 2010
petition for commitment, the 2010 reports prepared by Dr. Jack
Vognsen and Dr. Robert M. Owen, the 2020 annual report
prepared by Dr. Rebecca Martin and the trial testimony of Dr.
Kathleen Longwell.
2
liberties with a child. The victims were a nine-year-old female,
Wanda, and her four-year-old brother, Eric, both strangers to
Bortswick.
Wanda was playing outside with her siblings when
Bortswick drove up and asked if she wanted to earn money
counting homes on the block. Wanda agreed and got into the car.
Bortswick drove into an alley and parked. He told Wanda to get
into the back seat and to take off her clothes. Bortswick
threatened if she did not comply, he would throw her clothes out
the window. Bortswick unzipped his pants, pulled out his penis,
placed Wanda’s hands on his penis and told her to play with it.
Bortswick told her to sit on his lap, and he placed his penis
between her legs. He pushed her head down and made her kiss
his penis. He told her to lie down, and he got on top of her.
Bortswick rubbed his penis against her until he ejaculated.
Bortswick admitted to police that he made Wanda touch and kiss
his penis, and that he put his penis between her legs.
In a separate incident in September 1961, Bortswick
fondled Eric’s penis and forced Eric to touch his penis.3
Bortswick explained to one evaluator that he tried to have anal
sex with Eric but not to the point of penetration; instead, he
“rubbed [Eric’s] buttocks” with his penis. Bortswick stated the
incident “was just written off as a curiosity stage for me.”
Following those two convictions, Bortswick was remanded
to a Michigan state hospital as a sexual psychopath. While he
was on a home visit approximately 18 months after commitment,
Bortswick eloped and never returned to the hospital.
3
The record does not indicate how Bortswick came to be
alone with Eric.
3
Bortswick’s third qualifying offense occurred in May 1966
when he was convicted in Los Angeles County of committing lewd
or lascivious acts (Pen. Code, § 288). The victim, eight-year-old
Doris, was a stranger to Bortswick. Doris, her brother and a
friend were walking home from school. Bortswick approached the
children on foot and offered to pay them for helping to deliver
newspapers. All of the children agreed, but Bortswick told the
other two children they were too young, and they should go back
to school. Bortswick escorted Doris to his car and drove her to his
apartment. Doris was scared and asked when she could go back
to school. Bortswick told her he would take her back after they
got the newspapers. Once in the apartment Bortswick ordered
Doris to take off her clothes. When she refused, he threatened to
tear off her clothes. Doris removed her clothes. Bortswick
ordered her to get on his bed and sexually assaulted her by
forcing her to have intercourse. After he was done, Bortswick
told Doris she could get dressed. Bortswick told Doris if she told
anyone about what happened she would get in trouble.
Bortswick walked with Doris some distance away from his
apartment and left her alone on the sidewalk. Doris eventually
walked to a friend’s home. According to Dr. Vognsen’s report, “a
medical examination revealed torn areas of Doris’ private parts,
and the presence of semen.”
Bortswick was sent to Atascadero State Hospital for a 90-
day observation as a mentally disordered sex offender. After
being found unamenable to treatment, he was sentenced to state
prison for a period of one year to life. Bortswick was paroled in
October 1971 and was discharged from parole two years later at
the age of 30.
4
Bortswick’s fourth and fifth qualifying offenses occurred in
Los Angeles County in May 1990 when he was 46 years old. The
qualifying offenses included convictions of seven counts of
committing lewd or lascivious acts with a child under 14 years
old (Pen. Code, § 288, subd. (a)), and one count of committing
lewd or lascivious acts “by use of force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the victim or
another person” (id., § 288, subd. (b)). The two victims were
Bortswick’s daughter, Angel, and his niece, Janice. Bortswick
started sexually abusing Angel when she was nine years old,
began regularly having intercourse with her before she was 12
years old and sexually abused her until she was 13 years old.
Bortswick made Angel and Janice look at pornography while he
watched them. Bortswick regularly had intercourse and oral
copulation with 11-year-old Janice, and also sodomized her. He
forced Angel to watch and photograph him and Janice engaging
in sexual acts. At one point, Janice became pregnant by
Bortswick and was taken by Bortswick’s ex-wife to have an
abortion. Bortswick also paid Angel and Janice to engage in
sexual acts with him and to have sex with other men. Bortswick
threatened the girls that he would tell their mothers if they did
not continue to have sex with him. Bortswick was sentenced to
26 years in prison.
B. 2010 Petition for Commitment
On December 14, 2010, the Los Angeles County District
Attorney filed a petition to commit Bortswick as an SVP under
section 6000 et seq. The petition alleged that Bortswick suffered
convictions in four cases involving various sex crimes over a 30-
year period. Two psychologists, Dr. Owen and Dr. Vognsen,
5
evaluated Bortswick. They concluded Bortswick suffered from a
mental disorder and, unless he received treatment and remained
in custody, Bortswick was likely to engage in sexually violent
predatory acts in the future.
On June 8, 2017, Bortswick admitted the allegations in the
petition and was committed to a state hospital for an
indeterminate term. His commitment was continued on June 7,
2018, and June 6, 2019.
C. 2020 Motion for Unconditional Discharge and Show
Cause Hearing
On April 16, 2020, the Department of State Hospitals
(Department) filed its annual report assessing Bortswick’s civil
commitment as an SVP pursuant to section 6604.9. The report
and declaration, prepared by Dr. Rebecca Martin, a consulting
psychologist at Coalinga State Hospital, concluded Bortswick
suffered from pedophilic disorder and antisocial personality
disorder but that he was unlikely to engage in sexually violent
predatory acts if released. Dr. Martin explained Bortswick’s
age—76 years old at the time of the 2020 evaluation—negatively
correlated with recidivism and factors such as “impulsivity,
resistance to rules and overt acts of anger or aggression.”
Dr. Martin recommended Bortswick’s unconditional release.
Dr. Robert Withrow, the medical director at Coalinga State
Hospital, agreed with Dr. Martin’s evaluation and
recommendation.
On April 22, 2020, the Department requested judicial
review of Bortswick’s commitment. On September 10, 2020,
relying on Dr. Martin’s and Dr. Withrow’s recommendation,
Bortswick filed a motion for unconditional discharge and a
6
request to set a show cause hearing. At the November 9, 2020
show cause hearing, Dr. Martin testified, and the trial court
found probable cause that Bortswick’s diagnosed mental disorder
had changed, that he no longer posed a danger to the health and
safety of others and that he was not likely to engage in sexually
violent criminal behavior if released.
D. The People’s Expert Witness Testimony: Dr. Longwell
4
Bortswick’s bench trial commenced on June 9, 2021. The
5
People offered the testimony of Dr. Longwell. Dr. Longwell
works as a psychologist with the Department and conducts SVP
evaluations. She has worked with the Department since
February 1996 and has evaluated over 3,000 individuals, at least
three-quarters of whom were sex offenders. She has prepared
annual reports for approximately 50 individuals and has
recommended unconditional release in one case due to an
offender’s medical condition.
Dr. Longwell explained that annual reports differed from
initial commitment evaluations in that they focused on whether
“the person’s situation or condition [has] changed such that they
no longer meet the criteria” for commitment. Dr. Longwell
described the factors she typically considered when preparing an
annual report, including treatment progress, any significant
changes impacting the motivation or ability to commit sex
offenses in the manner committed in the past and a well-
4
The parties waived their rights to a jury trial.
(§ 6605, subd. (a)(3).)
5
The People retained Dr. Longwell after the show cause
hearing.
7
documented treatment plan, if released.
Dr. Longwell evaluated Bortswick in March 2021.
Dr. Longwell opined that Bortswick “still met the criteria [for an
SVP] and it wasn’t safe at this time [to release him], that he still
presented a serious and substantial risk of sex offense, and that
he had not made adequate progress in treatment.” Dr. Longwell
believed Bortswick would reoffend if released and that future
offenses would be predatory in nature. In reaching her opinion,
Dr. Longwell reviewed approximately 2,000 pages of the
Department’s documents, including Bortswick’s treatment
records and past evaluations. Bortswick declined to be
interviewed by Dr. Longwell.
Dr. Longwell testified about Bortswick’s qualifying offenses
and observed the offenses involved “manipulation and threats” to
lure children to engage in sexual activity. She diagnosed
Bortswick with non-exclusive pedophilic disorder and antisocial
personality disorder using the criteria set forth in the Diagnostic
6
and Statistical Manual of Mental Disorders, Fifth Edition.
Dr. Longwell had “no reason to believe that [Bortswick’s]
pedophilic disorder has been extinguished” simply “because he’s
been locked up for so long and hasn’t had access to children.” He
“did not show any guilt or remorse” for his past crimes, which
indicated to Dr. Longwell that Bortswick would likely reoffend if
6
Dr. Longwell defined pedophilic disorder as requiring
evidence of “a period of time of six months or greater of sexual
urges, fantasies, or behaviors towards prepubescent children,
which is generally defined as age 13 or younger” and antisocial
personality disorder as “a condition where the person has
persistently violated the rights and welfare of others, commonly
but not always as evidenced by extensive criminal history.”
8
released. Bortswick last participated in a sexual offender
treatment program in 2015, and Dr. Longwell testified that
refusing and complaining about treatment indicated to her that
Bortswick continued to suffer from antisocial personality
disorder. Bortswick also repeatedly acknowledged he had a
problem but failed to seek treatment. She noted Bortswick
generally had been well behaved while in custody but that did not
necessarily mean he would not reoffend if exposed to children and
presented with an opportunity to molest a child. She explained
that antisocial personality disorder “makes it more difficult for
you to have what we call prosocial traits that might mitigate . . .
or prohibit from acting on pedophilic urges.”
Dr. Longwell performed a standard risk assessment using
actuarial tools including the Static-99R, the Static-2002R and the
structured risk assessment-forensic version (SRA-FV), which
assess the averages for recidivism. Bortswick fell into the above-
average range in the Static-99R assessment and into the well-
above-average range in the Static-2002R assessment. For the
SRA-FV, Dr. Longwell placed Bortswick in the high treatment
needs risk category. She described Bortswick’s case as
“exceptional” in that he has “an extremely extensive history of
sexual offending and repeat sex offending,” which she explained
supported her conclusion that Bortswick would likely reoffend if
released.
Dr. Longwell testified that certain protective factors may
mitigate a high risk of recidivism, such as the completion of a
comprehensive sex offender treatment program or health issues,
but these factors did not apply favorably to Bortswick. Bortswick
had not completed a comprehensive sex offender treatment
program, and he had not suffered from any deterioration of
9
health that would minimize the risk of recidivism. Dr. Longwell
explained that age was also a protective factor, but the
significance of age was not the number in isolation; rather, it was
important to consider whether a committed person’s age
impacted their health, vitality, sexual motivation and sexual
ability. Although some of the existing data suggested a negative
correlation between advanced age and the likelihood of
recidivism, Dr. Longwell considered the data “weak” due to the
small sample size available for elderly offenders. In any event,
Dr. Longwell did not see any evidence that Bortswick’s physical
or sexual health had deteriorated since he was committed in 2017
and did not conclude there were factors that would mitigate
Bortswick’s risk of recidivism.
E. Bortswick’s Expert Witness Testimony: Dr. Martin
Bortswick offered the testimony of Dr. Martin. Dr. Martin
became certified as a California licensed psychologist in 2016.
She began working at Coalinga State Hospital in 2013
facilitating sex offender treatment groups and conducting
treatment assessments. At the time of the trial Dr. Martin had
completed annual reports for approximately 64 different patients
and recommended conditional release or unconditional discharge
for four of them.
Dr. Martin prepared an annual report for Bortswick each
year from 2018 to 2021. In preparing those reports, Dr. Martin
reviewed, among other documents, psychology progress notes,
rehabilitation therapy notes, treatment plans, case histories, risk
assessments, prior annual evaluations and evaluations from
Bortswick’s initial commitment. For her 2021 report Dr. Martin
also spoke with staff at Coalinga State Hospital including
10
Bortswick’s psychologist and rehabilitation therapist. Bortswick
declined to submit to a full interview.
Dr. Martin explained the purpose of an annual review was
to determine whether circumstances had changed such that an
individual no longer met the criteria for commitment. In 2018
and 2019 Dr. Martin concluded Bortswick continued to meet the
criteria for commitment because she “could not verify significant
substantial change or difference that would have overridden his
current commitment.”
In 2020 and 2021 Dr. Martin changed her opinion.
Consistent with her previous reports, she found Bortswick had
qualifying offenses, and her “diagnoses remain[ed]” that he
suffered from pedophilic disorder and antisocial personality
disorder given these disorders were “lifelong” constructs.
Dr. Martin concluded, however, that Bortswick no longer met the
commitment criteria because he was unlikely to reoffend if
released. One of the factors that caused Dr. Martin to change her
opinion was that Bortswick had “participated in a fair amount of
treatment” from July 2012 to February 2015 including group
classes and a sex offender treatment program “with good progress
and good participation.” Dr. Martin acknowledged that
Bortswick completed this treatment before her 2018 annual
report, in which she concluded Bortswick’s participation in
further treatment prior to release was an important step to
ensure the community was adequately protected. Dr. Martin also
acknowledged that in her 2019 report she recommended further
treatment for Bortswick. At trial Dr. Martin testified that while
she “definitely would have preferred” Bortswick to continue
treatment, she did not believe it was “mandatory” for him to do so
before being unconditionally released given his age and risk
11
scores.
Dr. Martin also relied on information that during the
several years leading up to her 2020 and 2021 reports, Bortswick
did not show “behavior indicators of impulsivity or
hypersexuality.” She noted there were no serious incident
reports documenting any major rule violations while Bortswick
had been in custody, including no evidence Bortswick had been
caught with pedophilic or pornographic material. She described
his behavior with hospital staff as “affable and kind of
cooperative.” Given his participation in a treatment program and
his behavioral indicators, and based on “evidence by a large body
of research on elderly offenders,” Dr. Martin opined that it was “a
difficult case to say that [Bortswick’s] likely to engage in future
predatory sexual behavior.”
Dr. Martin stated, “we just don’t see a lot of sexual
recidivism for offenders in their 70s.” She explained that
physiological and social emotional changes take place with age,
including decreases in aggression, physical violence, impulsivity
and risk taking. Beginning from the fifth decade of life there are
“pretty consistent decreases in levels of testosterone,” a “very
important [hormone] when it comes to sexual arousal and desire.”
Regarding Bortswick’s sexual health in particular, however,
Dr. Martin was unaware of any information suggesting a
decrease in his libido or in his mental arousal to prepubescent
children. The only major health condition Dr. Martin identified
in Bortswick’s records was high cholesterol. She agreed the
statement from her 2018 and 2019 reports that Bortswick “has no
significant medical conditions that would reduce his libido or
reduce his life” remained true for her most recent report. When
questioned by the court, Dr. Martin agreed that from 2018 to
12
2020 the only change in Bortswick, which caused her to change
her opinion about whether he should be released, was the fact
that Bortswick had aged two years.
Dr. Martin performed a risk assessment using the Static-
99R and SRA-FV actuarial tools. Dr. Martin rated Bortswick
above average-risk on the Static-99R assessment. For the SRA-
FV, which looks at dynamic risk factors including long-term
vulnerabilities in a person’s personality, Dr. Martin placed
Bortswick in the above-average need range. She stated the risk
of recidivism for someone over 70 years old is 3 percent and
continues to decrease over time. Dr. Martin explained that
actuarial tools overestimated recidivism risks for elderly
offenders due to the underrepresentation in the sample group
and that age should be considered separately and in addition to
the risk assessment.
Dr. Martin testified that if released she did not believe
Bortswick would reoffend in a predatory manner and any future
7
victim would likely be familial. She explained that his history of
sexual offenses became increasingly “asexual” in that “[h]e chose
easier target victims, lower risk victims, victims to whom he had
easier access.”
Dr. Martin acknowledged that Bortswick previously
claimed he would not have molested again except for the
“convenience” of his daughter, Angel; Bortswick also stated he
7
According to Dr. Martin, an offense is predatory in nature if
the offender and the victim do not have an existing substantial
relationship.
13
8
molested Angel because she acted provocatively. Dr. Martin
testified that it appeared Bortswick had made progress
demonstrating insight into his offenses since making those
statements.
Regarding a post-release plan, Dr. Martin testified that
Bortswick informed her that he believed he could have
relationships with his two biological daughters and that he could
9
live with either of them if needed. According to Bortswick, no
children were living in either home.
F. The Trial Court’s Findings and Order
Following the bench trial, the court issued a memorandum
of decision denying Bortswick’s motion for unconditional
discharge. The court noted the existence of qualifying offenses
and Bortswick’s diagnosed mental disorder were not in dispute.
8
Dr. Martin’s 2019 annual report summarized a 2002
interview with Bortswick in which he admitted to being a
pedophile and the evaluator noted Bortswick “believes that he
would not have been engaged with little girls except for the
convenience of his daughter.” Dr. Martin also summarized a
2013 interview with Bortswick in which he discussed his sexual
abuse of Angel and Janice. He minimized his behavior by
claiming the girls were pubescent and placed blame on the girls
because they acted provocatively and suggested exchanging sex
for money. Bortswick acknowledged they may have been
psychologically harmed by his actions but stated Angel may have
enjoyed herself as well because she experienced orgasms with
him.
9
Dr. Martin did not identify the names of the two daughters
Bortswick referenced. The record does not contain any additional
information about Bortswick’s post-release plan.
14
The expert witnesses, however, offered differing conclusions
about whether Bortswick posed a danger to the health and safety
of others and was likely to engage in sexually violent behavior if
unconditionally released. The court observed that since his
commitment in 2017 “the only thing that has changed is that
Mr. Bortswick is almost four years older” and even “Dr. Martin
acknowledged that other than being a year older, there was not
any evidence that Mr. Bortswick’s physical condition had
deteriorated between the 2019 review and the 2020 review.”
Bortswick had not participated in any organized activities since
his commitment in 2017, and there appeared to be “no detailed
post release plan in place.” Although it was appropriate to
consider Bortswick’s age in making the updated assessment, the
court concluded “merely aging from seventy-four to seventy-eight,
without more is not sufficient to raise a reasonable doubt that
Mr. Bortswick is still likely to reoffend in a sexually violent
manner if unconditionally released.”
Bortswick timely appealed.
DISCUSSION
A. Relevant Law and Standard of Review
The SVPA “authorizes the involuntary civil commitment of
a person who has completed a prison term but is found to be a
sexually violent predator . . . . [Citations.] The SVPA’s purposes
are ‘“to protect the public from dangerous felony offenders with
mental disorders and to provide mental health treatment for
their disorders.”’” (State Dept. of State Hospitals v. Superior
Court (2015) 61 Cal.4th 339, 344.)
15
To establish an individual is an SVP, the People must
prove beyond a reasonable doubt (1) the individual has been
convicted of a qualifying sexually violent offense against one or
more victims; (2) the individual suffers from a diagnosed mental
disorder that makes him or her a danger to the health and safety
of others in that (3) it is likely he or she will engage in sexually
violent criminal behavior. (§§ 6600, subd. (a)(1) [defining
elements of an SVP], 6604 [imposing beyond a reasonable doubt
standard]; see generally People v. Roa (2017) 11 Cal.App.5th 428,
443; State Dept. of State Hospitals v. Superior Court, supra, 61
Cal.4th at pp. 345-346.)
Once committed, an SVP is evaluated annually to consider
“whether the committed person currently meets the definition of
a sexually violent predator and whether conditional release to a
less restrictive alternative, pursuant to Section 6608, or an
unconditional discharge, pursuant to Section 6605, is in the best
interest of the person and conditions can be imposed that would
adequately protect the community.” (§ 6604.9, subd. (b).) If the
Department determines that a person no longer meets the
definition of an SVP, or conditional release is in the best interest
of the person and the community can be adequately protected if
the person is so released, the person may petition the court for
either conditional release (§ 6608) or unconditional discharge
(§ 6605). (§ 6604.9, subds. (d)-(f).)
“The burden of proof at the hearing [for unconditional
discharge] shall be on the state to prove beyond a reasonable
doubt that the committed person’s diagnosed mental disorder
remains such that he or she is a danger to the health and safety
of others and is likely to engage in sexually violent criminal
behavior if discharged.” (§ 6605, subd. (a)(3).) “[A] person is
16
‘likely [to] engage in sexually violent criminal behavior’ if at trial
the person is found to present a substantial danger, that is, a
serious and well-founded risk, of committing such crimes if
released from custody.” (People v. Roberge (2003) 29 Cal.4th 979,
988.) Evidence of a committed person’s amenability to voluntary
treatment “is relevant to the ultimate determination whether the
person is likely to engage in sexually violent predatory crimes if
released from custody.” (Id. at p. 988, fn. 2.)
“‘In reviewing the evidence sufficient to support a
commitment under [the SVPA], “courts apply the same test as for
reviewing the sufficiency of the evidence to support a criminal
conviction.”’ [Citation.] ‘Thus, this 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. McCloud (2013) 213 Cal.App.4th
1076, 1088; accord, People v. Reynolds (2010) 181 Cal.App.4th
1402, 1407 [substantial evidence standard of review applies to
review of motions for unconditional discharge].) “‘In reviewing
the record to determine the sufficiency of the evidence this court
may not redetermine the credibility of witnesses, nor reweigh any
of the evidence, and must draw all reasonable inferences, and
resolve all conflicts, in favor of the judgment.’” (People v.
Sumahit (2005) 128 Cal.App.4th 347, 352 (Sumahit); accord,
People v. Westerfield (2019) 6 Cal.5th 632, 713 [discussing the
substantial evidence standard of review generally, outside the
context of the SVPA].)
17
B. The Trial Court Did Not Err in Denying Bortswick’s
Motion for Unconditional Discharge
Bortswick contends the trial court erred by inverting the
burden of proof at trial and requiring him to prove he no longer
met the criteria for commitment as an SVP when the burden
should have been on the People to prove the criteria were met
beyond a reasonable doubt. Bortswick also contends the court
erred by basing its decision on his past criminal sexual behavior
rather than his current mental state. Neither contention is
persuasive.
1. The trial court applied the correct burden of
proof
Bortswick argues the People’s expert, Dr. Longwell,
incorrectly characterized the burden of proof during her
testimony. For example, Dr. Longwell stated, “I think that once
somebody is committed, then I think the burden of proof falls on
that individual to show why they should . . . be unconditionally
release[d].” She further explained that “the burden is on the
evaluator to come up with a reason why they no longer meet the
criteria if they’re not doing treatment, if they don’t have some
severe, you know, physical impairment that affects them.”
Irrespective of Dr. Longwell’s statements, the trial court
did not invert the burden of proof at trial. The court repeatedly
stated at trial that the People bore the burden of proof. Before
the expert witnesses testified the court explained that “the
burden of proof to sustain the petition remains on the People”
and “the burden remains the same that each of the allegations
have to be proven beyond a reasonable doubt.” The court also
made clear the People “can’t rely on the finding from 2017 to
18
2018 in concluding that [Bortswick] presently has a mental
disorder that qualified him as [an] SVP.” Before closing
arguments, the court asked to hear from the People “since they
have the burden of proof.” Additionally, the court’s memorandum
of decision correctly cited section 6605, subdivision (a)(3), for the
burden of proof and explained “the question for the court to
decide is whether the People have proven beyond a reasonable
doubt that Mr. Bortswick’s mental disorder has not changed to
the extent that he is no longer a danger to the health and safety
of others and unlikely to engage in sexually predatory behavior if
released.” The record establishes that the court understood, and
properly applied, the burden of proof at trial.
2. Substantial evidence of Bortswick’s current
circumstances supports the trial court’s denial
of his motion for unconditional discharge
Bortswick contends the trial court improperly relied on his
past conduct in denying his motion for unconditional discharge
because the court used his commitment as an SVP and prior
evaluations as a “base line” to determine whether circumstances
had changed to support unconditional discharge. Bortswick also
cites the prosecutor’s closing argument that “[t]he past is a best
predictors [sic] of the future” in support of his contention that the
court’s decision was based on past conduct.
Bortswick’s contention is belied by the SVPA’s statutory
language and by his own expert witness’s testimony. In
determining whether unconditional discharge is appropriate,
section 6605 instructs the trial court to focus on whether “the
committed person’s diagnosed mental disorder remains such that
he or she is a danger to the health and safety of others” at the
evidentiary hearing. (§ 6605, subd. (a)(2), (3) [italics added].)
19
Consistent with the statute, Bortswick’s own expert explained,
“[T]he purpose of [the annual review] is to determine whether or
not things have changed such that the individual no longer meets
the criteria [for commitment].” The court properly focused on the
question of how Bortswick’s circumstances have changed during
his commitment.
Bortswick further argues the trial court failed to
sufficiently consider his advanced age, which he interprets as a
failure to consider his current circumstances. Bortswick relies on
People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1075 (LaBlanc),
which stated “[t]he ‘sheer passage of time’ since an SVP’s
diagnosis and commitment may be a relevant consideration” in
seeking release. LaBlanc is procedurally and factually
inapposite. In LaBlanc, a trial court, without holding an
evidentiary hearing, denied as frivolous a committed person’s
petition for unconditional discharge. (Id. at p. 1062.) The court
of appeal reversed the order because the defendant demonstrated
changed circumstances in his petition: he was 70 years old, had
lost interest in sex after receiving radiation therapy for prostate
cancer, had heart disease, had been provisionally diagnosed with
multiple sclerosis, had difficulty getting an erection and had one
testicle removed. (Id. at p. 1064.) The court of appeal explained
that “advanced age and onset of serious medical conditions of an
SVP are potentially relevant factors in determining whether a
petition for unconditional release is frivolous, because various
studies have concluded that recidivism rates decrease
significantly among older male sex offenders.” (Id. at p. 1076.)
In contrast to LaBlanc, here, the trial court held a full
evidentiary hearing before determining that Bortswick continued
to meet the criteria for commitment. The court did not reject
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Bortswick’s age out-of-hand or suggest age was irrelevant.
Instead, it considered Bortswick’s age but determined that age
alone was insufficient to conclude Bortswick was not a danger to
the health and safety of the community and would not likely
engage in sexually violent criminal behavior if released. Unlike
the defendant in LaBlanc, who in addition to his advanced age
suffered from serious medical conditions and a decreased libido,
there was no evidence that Bortswick had suffered any medical
conditions that affected his sex drive or his ability to carry out
sexual offenses in the manner of his qualifying offenses. Instead,
the evidence at trial revealed that despite being four years older,
Bortswick’s health had not deteriorated since he was committed
in 2017.
Lastly Bortswick asserts that the evidence of his current
circumstances supports his unconditional discharge because since
being committed in 2017, he has participated in sex offender and
other treatment; he has not displayed any signs of impulsivity or
hypersexuality; he has not engaged in any serious rule violations;
and he has been cooperative with hospital staff. There is
evidence in the record to support those contentions, except for
Bortswick’s position that he has participated in a sex offender
treatment program since he was committed in 2017; the last time
he participated in treatment was 2015. Nevertheless,
Bortswick’s insistence that we reverse the trial court’s order is
incorrect because on appeal we review the record for substantial
evidence supporting the court’s order, view the evidence in the
light most favorable to upholding the order and refrain from
reweighing the credibility of witnesses.
The existence of a qualifying offense was not in dispute.
Both expert witnesses testified that Bortswick was currently
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suffering from pedophilic disorder and antisocial personality
disorder. The testimony of the People’s expert, Dr. Longwell,
provided substantial evidence from which the trial court could
conclude that Bortswick was a current danger to the health and
safety of others, and it was likely that he would engage in
sexually violent criminal behavior because of his diagnosed
mental disorders. (Evid. Code, § 411 [“the direct evidence of one
witness who is entitled to full credit is sufficient for proof of any
fact”].) In reaching her opinion, Dr. Longwell relied on
Bortswick’s failure to complete a comprehensive sexual offender
treatment program and to engage in any sexual offender
treatment since his commitment in 2017; Bortswick’s repeated
acknowledgments that he had a problem but failed to seek
treatment; and Bortswick’s avoidance of treatment because he
felt he was being mistreated. (See Sumahit, supra, 128
Cal.App.4th at pp. 354-355 [“A patient’s refusal to cooperate in
any phase of treatment may therefore support a finding that he
‘is not prepared to control his untreated dangerousness by
voluntary means if released unconditionally to the community’”].)
Dr. Longwell also relied on the lack of evidence that
Bortswick felt any guilt or remorse for his actions and the scores
generated by risk assessment tools that indicated Bortswick had
an above-average likelihood of recidivism. While Dr. Longwell
considered Bortswick’s age as a protective factor, she determined
age was not a mitigating factor in this case because there was no
evidence that Bortswick’s health had deteriorated in any way to
impact his libido or his ability to commit sexual offenses in the
manner he committed the qualifying offenses. On this record, the
trial court did not err in denying Bortswick’s motion for
unconditional discharge.
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DISPOSITION
The order is affirmed.

WISE, J.
We concur:
PERLUSS, P. J.
SEGAL, J.

Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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