People v. Carder CA4/1 ( 2022 )

Filed 8/31/22 P. v. Carder 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079073
Plaintiff and Respondent,
v. (Super. Ct. No. MH110799)
ALBERT RAYMOND CARDER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Jay M. Bloom, Judge. Reversed.
Katherine Braner, Chief Deputy Public Defender, and Kristen Santerre
Haden, Deputy Public Defender, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Eric A. Swenson, Marvin E. Mizell
and Anthony DaSilva, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Albert Raymond Carder was convicted in separate cases of
molesting eight young girls in the 1980s. After completing a lengthy prison
term, he admitted to being a sexually violent predator (SVP) under the
Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) and
was committed to Coalinga State Hospital (Coalinga).1 Five years into his
treatment, Carder petitioned to be conditionally released to the CONREP
program run by the state’s private contractor, Liberty Healthcare (Liberty).
The State Department of State Hospitals (DSH) supported that move, so the
People bore the burden to prove by a preponderance of the evidence that
conditional release was inappropriate because Carder was likely to reoffend
in outpatient care. (§ 6608, subds. (g), (k).) During a two day evidentiary
hearing, three experts acknowledged that Carder could not be cured of his
pedophilia and would remain predisposed to commit sex crimes.
Nevertheless, all believed that Carder could safely be treated at CONREP.
Although Carder could not change his past, he had developed insight into the
reasons for his past behavior and made significant progress in addressing his
dynamic risk factors and creating detailed release plans. The experts felt
that Carder had developed the ability to self-regulate and avoid reoffending
while under community supervision. Various assessments would monitor his
treatment progress, while a GPS ankle monitor and strict security protocols
would restrict his movement and interactions to safeguard the community.
Despite this evidentiary record, the trial court denied Carder’s petition
for conditional release, concluding the experts had “downplayed the danger
petitioner represents to the public,” and additional time was needed to
confirm his treatment progress given his “extensive and serious criminal
1 Further undesignated statutory references are to the Welfare and
Institutions Code.
2
record.” The court rejected Carder’s comparison to People v. Rasmuson (2006)
145 Cal.App.4th 1487, 1508 (Rasmuson), reasoning that while in that case
there was “not a scintilla of evidence the petitioner would reoffend,” the
experts here cautioned about Carder’s dangerousness even as they
recommended his release.
Carder appeals the order denying his petition for conditional release.
As we explain, despite minor factual differences this case is substantively
analogous to Rasmuson and requires reversal for similar reasons. Applying
an incorrect legal standard, the court focused on the possibility of reoffense
and weighed Carder’s treatment progress against his criminal record. While
the court was correct that each of the experts said Carder would remain
predisposed to sex crimes given his mental disorder, there was similar
evidence in Rasmuson. And as in Rasmuson, the same experts who said
Carder could never be “cured” also agreed he was not likely to reoffend if
placed under strict supervision in CONREP. The People presented no
contrary evidence on that dispositive issue, and they bore the burden of proof.
Although the trial court remained free to disregard the experts’ conclusions
for nonarbitrary reasons, there was insufficient evidence from which it could
find by a preponderance of the evidence that Carder was likely to reoffend if
placed in community supervision. For these reasons, the order must be
reversed.
FACTUAL AND PROCEDURAL BACKGROUND
Carder committed a series of sex crimes in the late 1980s and served a
lengthy prison sentence. At the end of his term, he agreed to commitment as
an SVP and petitioned five years later for conditional release. The trial court
held a two day evidentiary hearing and ultimately denied his petition.
3
A. Criminal Background and SVP Commitment
In his early twenties, Carder molested eight young girls and was
convicted in separate cases of six lewd and lascivious acts (Pen. Code, § 288,
subd. (a)), and two forcible lewd acts (id., subd. (b)).2 Carder first fondled
two girls ages 6 and 10 in 1988—daughters of people he knew. Convicted of
one lewd act ‒and placed on probation, Carder then fondled four girls ranging
in age between 7 and 13 in 1989, for which he was sentenced to 17 years in
prison. While serving that sentence, he was charged and convicted with two
separate abductions occurring a week apart in 1989. In one, Carder abducted
a 4-year-old girl from her bedroom window early one morning and digitally
penetrated her in his car. In another, he abducted an 8-year-old from her
bedroom window and drove her around the corner where he raped and
sodomized her. Carder knew most victims’ parents and had taken advantage
of his relationship with the families to access their children. He gravitated
toward children because he felt intimidated by women his own age.
Carder was incarcerated for over 25 years in state prison for these
crimes. In 2014, the San Diego County District Attorney petitioned for his
commitment under the SVPA. Carder waived his right to trial and admitted
he was an SVP. He was committed to Coalinga in December 2014 and
enrolled in the four-step sex offender treatment program.3
2 The parties stipulated that the court could consider hearsay evidence
contained in two expert reports admitted at trial. The facts underlying
Carder’s convictions are drawn from those reports.
3 As explained at trial, the sex offender treatment program at Coalinga
consists of four separate modules. Module I (Treatment Engagement) orients
committed SVPs to the program, providing an overview of treatment steps
and the assessments used, and introducing the concept of dynamic risk
factors, which the program aimed to address. Module II (Self-
Regulation/Better Life) requires patients to do in-depth work to address the
4
B. Treatment and Petition for Conditional Release
Five years into his treatment at Coalinga, Carder filed a petition for
conditional release in January 2020. (§ 6608.) He stated in his petition that
the staff psychologist who wrote his last annual review report in October
2019 believed he could be safely treated in the community through
conditional release.
At the time he petitioned, Carder was still in module III. He was
denied advancement to module IV in February 2020. Although very
disappointed, Carder worked on the recommendations made by the review
panel over the next six months.4 He advanced to module IV on August 5,
2020. Just two weeks later, he was deemed ready for conditional release by
DSH and CONREP evaluators.
emotions, behaviors, and thoughts that led to offending. Module III
(Treatment Integration and Community Preparation) refines skills learned in
module II; patients role-play scenarios they might face in the community and
think about how to deal with their dynamic risk factors. Module IV is the
final stage of the program, where patients work to maintain their awareness
of their risk factors and refine their skills by mimicking real-world situations.
Module IV can be completed at the hospital or potentially in outpatient care
on conditional release.
4 As Carder would tell examiner Dr. Vanessa Leite in July 2020, he felt
flustered and anxious during his February review when he was asked “tough”
questions about his intimacy with women by female examiners. In
subsequent months, “he made a diligent effort to address this aspect of his
interactions with females by journaling and considering his perspective on
roles of men and women in relationships.” Carder worked to understand his
feelings of anxiety about forming healthy intimate relationships with adult
females. He also worked to develop a reentry plan, a 30 day community
transition plan, and a relapse prevention plan. Carder viewed CONREP as
critical to his transition into the community, given that he had spent more
than half his life in custody. By July 2020, he had developed emotional
awareness and empathy and expressed remorse regarding the violent nature
of his sexual offenses.
5
C. Trial
In May 2021, the court held a two day evidentiary hearing on Carder’s
petition. Because DSH recommended conditional release in its annual
report, the People bore the burden of proof to demonstrate that conditional
release would be inappropriate in that Carder would be likely to reoffend.
(§ 6608, subds. (g), (k).) The People called two experts during their case in
chief—Dr. Vanessa Leite, a psychologist at Coalinga who concluded in her
July 2020 report that Carder was suitable for conditional release, and
Dr. Robert Cureton, CONREP’s clinical director, who agreed. Carder called
one witness—Dr. Jordan Hopkins, his facilitator for module III, who
described his treatment journey and readiness for module IV.
1. Dr. Vanessa Leite
Dr. Vanessa Leite examined Carder in July 2020, shortly before he
advanced to module IV. She had never met him before their interview, and
DSH adopted her recommendation for conditional release in submitting its
statutorily required annual report. (See § 6604.9, subd. (a).) Carder’s
offenses were more violent and severe than most, which Leite took into
account in evaluating community risk. Abducting strangers from their
bedrooms and molesting them certainly posed a greater management risk.
Even so, Leite sought to assess Carder’s understanding of the dynamic risk
factors underlying his offenses and evaluate how he had learned to manage
those risks in treatment.5 While Carder had reoffended in the past after
5 As explained at trial, dynamic risk factors are things a patient can
change through treatment. They capture “the way a person processes
relationships, the way they manage their impulse behavior, their general
cognitive problem-solving . . . [,] deviant sexual interest, . . . their sexual
drive[,] [and] their cooperation with supervision.” Each patient is assessed on
admission, and treatment is tailored to that patient’s specific dynamic risk
factors. “A person might start with eight dynamic risk factors, and ideally by
6
being apprehended and released on probation, he was using drugs at the time
and had no skills in place to self-regulate his behavior.6
The People examined Dr. Leite about Carder’s assessments at
Coalinga. Penile plethysmograph (PPG) assessments are designed to
determine sexual arousal when shown visual stimuli.7 Soon after his
commitment, Carder completed a PPG for treatment planning purposes. He
was deemed a nonresponder and referred for a validation polygraph and an
Abel Assessment for Sexual Interest (AASI-3).8 The polygraph validation
deemed Carder truthful, his AASI-3 scores in 2016 revealed he had “a high
sexual interest in white pubescent and adult females” (a nondeviant profile).
In 2019, Carder took the PPG test again, yielding no clinically significant
results. He was referred for a validation polygraph to confirm the results and
was found to be truthful. An AASI-3 test in 2019 revealed (consistent with
2016) that Carder demonstrated a high sexual interest in adolescent and
adult female stimuli.
the time they get to the final module, the hospital treatment program, they
may be down to four active dynamic risk factors.”
6 By 1989, Carder was using methamphetamine daily. According to
Carder, he had not used controlled substances since his incarceration and
subsequent commitment at Coalinga. Leite deemed his stimulant use
disorder to be mild and in sustained remission at Coalinga.
7 As Dr. Cureton would explain in his testimony, the PPG test involves
placing a strain gauge around a patient’s penis and showing images that
could be deviant or normative to see which ones lead to physiological arousal.
Although it is possible to fake the test (most commonly by masturbating
beforehand), a cardiac measure and follow-up polygraph root out deceptive
behavior.
8 The AASI-3 test evaluates how a person responds to stimuli that could
reflect a deviant sexual interest.
7
Carder also took polygraph assessments in 2015, 2016, 2017, and 2019.
In 2016, Carder admitted having sexual thoughts about children aged 13 to
17, two to three times a month. He was untruthful when asked if he had
masturbated to fantasies of a minor in the last month or fantasies of a victim
in the last year. And in a follow up exam a month later, he was found
untruthful when asked if he was concealing anything about his sexual
fantasies in the questionnaire. In 2017, Carder admitted to still having
sexual thoughts and fantasies involving minors but was truthful when he
denied masturbating to those thoughts or fantasies. He gave the same
truthful responses in 2019. He was further truthful in 2019 in stating that
he only thought about his victims in the context of treatment when reviewing
his offense history.
The last time Carder acted on a deviant thought was 2016. Given his
more recent polygraph tests, it did not raise a red flag for Dr. Leite that
Carder had masturbated to sexual fantasies involving minors as recently as
2016. When asked by the prosecutor whether it concerned her that Carder
continued to be attracted to young girls, Leite said no. It was not uncommon
for this attraction to persist. For some, being institutionalized reduced those
feelings while for others treatment brought those feelings to the forefront.
The important thing was for a patient to demonstrate understanding of the
dynamic risk factors associated with offending. This was true even as to a
sex offender who had kidnapped children from their bedroom windows to
molest them.
Dr. Leite spoke with Carder’s module III facilitator to understand why
he had not advanced to module IV in February 2020 and what had changed
to let him progress six months later. In those months, Carder completed an
AASI-3 evaluation and deemed to have a nondeviant profile. He had also
8
developed release and relapse prevention plans to map out what type of
support he would need in the community if he felt triggered. Leite described
Carder’s plans as “some of the most detailed plans” she had ever seen. Dr.
Cureton, who had felt in March 2019 that Carder was not ready for
conditional release, had since changed his view. By the time he advanced to
module IV at Coalinga, Cureton felt that Carder had increased his insight
and understanding of his dynamic risk factors.
Dr. Leite used two tests to evaluate recidivism risk. The STATIC-99R
test looked to Carder’s criminal history alone, which placed him at average
risk for reoffending with a score of two. That meant that he had about the
same risk for recidivating as the typical sex offender. Those released to
community supervision would have lower risk. Leite acknowledged that Dr.
Kelley gave Carder a level 4 (above-average risk) on the STATIC-99R in her
2019 evaluation.9
Dr. Leite also used the STABLE-2007 test, which evaluated thirteen
dynamic risk factors empirically linked to sexual recidivism. Carder’s scores
put him at “a moderate level of stable dynamic needs.” (Boldface omitted.)
In Leite’s view, Carder’s main remaining risks were his capacity for
relationship stability (given that he had never been in a stable live-in
9 Dr. Sharon Kelley, a consulting psychologist at Coalinga, prepared
Carder’s 2019 annual evaluation report under section 6604.9. Although her
report was admitted at trial with the parties stipulating to its admissibility,
she did not testify. In 2019, Kelley gave Carder a STATIC-99R score of four
based on his prior convictions. But that same report noted Carder’s
treatment progress and stated that his “current sexual risk would be over-
estimated by the Static-99R if used in isolation” because that test “does not
incorporate treatment change.” Despite evaluating Carder as above-average
risk on the STATIC-99R, Kelley recommended conditional release in 2019,
when Carder remained in module III.
9
relationship) and his continued pedophilic disorder which left him
predisposed to commit sexual criminal acts. The People questioned Leite’s
scoring choices as to several of the enumerated dynamic risk factors.10
Ultimately, while Dr. Leite did not believe Carder was ready for
unconditional release, she believed he should be conditionally released. She
credited his advancement to module IV, progress in addressing dynamic risk
factors, and detailed release plans. In Leite’s view, Carder had essentially
done what he could in the hospital setting. He had a stronger understanding
of his risk factors compared to 2018 and 2019, advanced farther in his
treatment, and developed a much more detailed release plan. Leite believed
that CONREP supervision could adequately manage lingering risks
stemming from his pedophilia and relationship instability. Polygraph tests
would continue to assess his deviant sexual thoughts and fantasies, and
Carder would continue to participate in group and individual therapy. The
fact that Carder himself sought only supervised release demonstrated his
10 For example, Leite rated Carder a zero (no concern) rather than a one
(some concern) or two (great concern) for emotional identification with
children despite his statement to Dr. Cureton in past interviews that he felt
close and connected to the kids. Leite had concerns about Carder’s ability to
develop close, intimate relationships with women, and yet rated him zero on
hostility toward women and loneliness. She also scored him as zero for
impulsive acts, crediting Carder’s explanation about the offenses and his lack
of impulsive behaviors while institutionalized, and pinning past opportunistic
behavior on his substance abuse. As to grievance thinking, Leite rated
Carder a zero despite his statement to Cureton that he had intercourse with
an eight-year-old because he was mad at the system for viewing his previous
sex crimes so harshly. As Leite explained, this statement reflected his past
thinking, not his current risk.
10
insight and awareness into his risk factors and was “a big indicator of his
progress.”11
With that, the People concluded their examination of Dr. Leite.
Carder’s counsel then probed the sex offender treatment program at Coalinga
and the nature of Carder’s mental disorder. Leite explained that although
Carder could never be “cured” of pedophilia, the goal of his treatment was to
help ensure that he could self-regulate his behavior to avoid reoffending. The
mere fact that Carder was diagnosed with a pedophilic disorder and would
always be attracted to children did not mean he was unable to decrease his
risk of recidivism. PPG and polygraph assessments at the hospital evaluated
whether patients were having sexual thoughts and fantasies and if they were
masturbating to them. Treatment helped patients learn how to cognitively
process sexual thoughts when they emerged.
Dr. Leite testified that treatment at Coalinga was voluntary, and only a
quarter of SVPs agreed to it. Carder stipulated to his commitment and
immediately enrolled in the sex offender treatment program on admission to
Coalinga in December 2014. Of 50 patients Leite had evaluated over the
years, only five met the criteria for conditional release. She would never
recommend someone for conditional release if she believed there was a
serious or well-founded risk they would reoffend. Leite explained that if
Liberty staff had concerns about Carder’s performance at CONREP, there
were mechanisms to bring him back to the hospital. In short, Leite believed
that Carder was not likely to engage in sexually violent criminal behavior
11 As Leite explained in her report, Carder demonstrated “insight into his
need for continued treatment under supervised conditions in the community
in light of the amount of time he has been incarcerated.” She believed based
on his treatment progress that “it is reasonable to expect him to voluntarily
pursue treatment in the community.”
11
due to his mental disorder if placed under Liberty’s supervision and
treatment.
Asking a few follow-up questions, the court inquired whether Dr.
Leite’s recommendation would change if it turned out there were more
victims. Leite explained why it would not—Carder could not change his past,
and the focus now was whether he could address the issues that led to his
behavior. The goal of therapy was not to prevent Carder from having
pedophilic thoughts but rather to prevent him from acting on those thoughts.
2. Dr. Robert Cureton
The People next called Dr. Robert Cureton, the clinical director of
CONREP’s statewide conditional release program. Cureton coordinates with
hospitals to identify individuals suitable for community release and prepares
treatment plans for them once they are released. As Carder approached
module IV at Coalinga, Cureton prepared a hospital liaison report evaluating
his suitability for conditional release. Cureton recommended conditional
release on August 31, 2020, even though Carder had just advanced to module
IV two weeks before. Carder had made substantial progress since 2019,
when Cureton previously opined that he needed additional hospital-based
treatment to understand his risk factors and develop community transition
plans.
During treatment, Carder admitted to molesting 30 children across 100
incidents. He was untruthful in his 2016 polygraph exam when asked if he
was concealing his sexual fantasies in his questionnaire. A key finding from
that failed polygraph was that he had one or more instances of masturbating
to thoughts of a minor victim. Reflecting on his crimes, Carder admitted in
2019 that his kidnap-rapes occurred because of grievance thinking. Carder
was mad at the system for viewing his previous acts of fondling so harshly
12
and decided to commit an offense to justify it. But that grievance thinking
was in the past—how he felt at the time he committed the offenses 30 years
ago, rather than how he felt in 2019. Carder also attributed his past conduct
to using methamphetamine, which heightened his sexual reactivity.
Overall, Dr. Cureton believed that Carder’s willingness to admit past
criminality demonstrated his transparency and openness to treatment. With
Coalinga shutting down hospital services due to COVID-19, Carder paid for
an outside therapist. Over the years, he had “been participating
meaningfully in treatment” and was “regarded as an excellent participant in
his programming.” Whereas before his pedophilia was unregulated, it was
now regulated, allowing Carder to be safely treated in the community.
Carder had completed all the treatment he could in a hospital setting.
His statements could not be discounted as empty words. Polygraphs showed
he was being transparent and was not acting out on fantasies “for a fairly
prolonged period of time”; the latest PPG demonstrated no deviant response
needing to be addressed. Moreover, Carder had no serious incident reports
throughout his time at Coalinga.
Dr. Cureton believed that Carder understood his dynamic risk factors
and had regulated them well enough that they could be managed in the
community without posing undue risk.12 He made statements
demonstrating empathy, which in combination with his polygraph and PPG
results indicated substantial progress. Carder remained a pedophile (as he
himself acknowledged). But through treatment and monitoring, he could
12 This was a positive change since February 2020, when the CONREP
panel interviewed Carder and concluded he was not ready for conditional
release. At that time, the panel felt that Carder’s understanding of his
dynamic risk factors was not as robust as it needed to be for the panel to feel
he would do well in community-based treatment.
13
self-regulate his emotions, ensuring he did not backslide into grievance-
thinking.
Asked why not just wait longer to see if his sexual interest in children
subsided, Dr. Cureton remarked that the hospital had a duty to him as a
patient to continue his treatment. Treatment required patients to divulge
their offense histories, which caused thoughts to resurface. While Carder’s
sexual thoughts might never subside, the goal was to ensure those thoughts
did not turn to fantasies or morph into behavior. Cureton believed that
CONREP could safely supervise Carder in the community.
As Dr. Cureton explained, CONREP offered far more intensive
treatment than the hospital—more group, individual, and psychiatric
treatment, mandatory substance abuse treatment, and more frequent
polygraph tests. Even after hospital programs returned to prepandemic
levels, CONREP would provide “close to twice as much treatment as the
hospital can provide.” The treatment would be overlaid with periodic
evaluations and assessments of a patient’s dynamic risk factors.
CONREP supervises its patients closely to ensure community safety.
Patients are placed on an ankle bracelet with severe restrictions on where
they can travel, who they can talk to, and steps they need to take to reduce
their restrictions. A community safety team would monitor Carder closely,
and the program would take immediate steps ranging from more intensive
treatment to a petition for rehospitalization if they saw any negative signs.
Each month, a community safety team meeting is held with victim advocates,
a representative from the district attorney’s office and public defender’s
office, and law enforcement to describe the patient’s behavior over the past
month. With these measures in place, no participant in the CONREP
program had placed hands on a potential victim in the program’s entire 18
14
year history. That reflected the strength of the monitoring system in place
and its ability to catch problems early. All things considered, Dr. Cureton
believed Carder was not likely to engage in sexually violent criminal behavior
due to a mental disorder if treated and supervised at CONREP.
The court probed CONREP’s supervision further, asking a few follow-
up questions of Cureton. In response to the court’s questioning, Cureton
explained that although Carder’s molestation of 30 victims was on the higher
end, in the past year CONREP had seen a patient be conditionally released
who had molested more than 30 victims. To the court’s suggestion that
CONREP did little to monitor movements besides the ankle monitor, Cureton
disagreed. Apart from the GPS monitor, patients have restricted zones of
travel and might not be able to leave their homes without a prior written
plan. CONREP conducts covert surveillance of newly released patients and
accompanies patients on any forays into the community, especially early in
the program. For much of a patient’s first year in conditional release, they
would be accompanied by Liberty staff wherever they went. Only when the
team felt it safe would they reduce their supervision with court approval. At
some point, CONREP’s goal is to reduce the level of intensive supervision,
and that happens “toward the later stages” when patients submit their
schedules in advance and the GPS movements and polygraph tests confirm
their whereabouts.
The court then asked how it could be that someone could suddenly be
cleared for conditional release after a year of treatment following 30 years of
suffering from a mental disorder. Dr. Cureton responded that significant
change as a result of this kind of treatment never happens in as little as a
year; rather, “the shortest anyone has gone through the hospital-based
treatment program has been three and a half years.” He went on to explain
15
that factors such as aging and intensive treatment could lead to real change.
Finally, the court probed the possibility of bias in reports. Cureton replied
that independent panels and input from module facilitators themselves
mitigated that risk.
3. Dr. Jordan Hopkins
In his case-in-chief, Carder called Dr. Jordan Hopkins, a staff
psychologist at Coalinga who was his program facilitator for module III.
Hopkins believed Carder made great strides since entering module III. He
was very serious about his treatment, always willing to present on various
readings during group meetings and ready to discuss and participate during
check-ins. Carder stood out as a model patient—in contrast to those who did
not seem to take treatment as seriously, he was transparent even about
things he felt uncomfortable sharing in front of a female facilitator.
Given his progress, Dr. Hopkins recommended that Carder advance to
module IV in 2019. An independent review panel met in February 2020 but
did not pass him.13 The panel wanted Carder to continue journaling,
address his intimacy deficits and hostility toward women, learn DBT
(dialectical behavior therapy) coping skills, address his trauma history, and
continue participating in assessments required by his facilitator.
The pandemic greatly reduced the number of treatment programs
available at Coalinga, but Carder continued his individual treatment with
Dr. Hopkins or another cofacilitator at least every other week. Hopkins
believed Carder carried out each of the review panel’s recommendations.
Specifically, he: (1) continued journaling and discussed his entries with
13 Advancement to module IV is not about conditional release, but rather
about whether the patient is ready to move to the next phase of treatment at
the hospital.
16
Hopkins; (2) completed an assignment about his past relationships with
women and imagined what a future relationship with a woman might look
like; (3) completed an assignment identifying times he imposed gender roles
or stereotypes on women; (4) completed worksheets relating to specific DBT
skills the panel wanted him to address; and (5) paid out of pocket for
additional sex offender treatment offered by phone.
With Carder having completed everything in module III, Hopkins had
no concerns about him advancing to the next stage. She again referred
Carder for advancement to module IV in August 2020. Even if Carder was
cleared for conditional release, she noted that finding a placement in the
community could take a long time; in this interim period, he would continue
to participate in module IV in a hospital setting at Coalinga.
4. Closing Arguments
In his closing, the prosecutor highlighted the severity of Carder’s
crimes, his continuing sexual interest in minors, and the speed at which he
was recommended for conditional release after progressing to the fourth and
final treatment module. Although all three experts recommended conditional
release, “[T]here were some things that the People were not entirely satisfied
with, specifically Dr. Leite’s assessment on the dynamic risk scale.” The
People urged the court to consider the questions they raised as to the expert
assessments and reach a contrary conclusion that Carder was likely to
reoffend if conditionally released.
By contrast, Carder’s counsel argued that conditional release was
simply the next step in his treatment, and he would remain “very, very
highly supervised” at CONREP. It was the People’s burden to prove that
Carder was likely to reoffend while under community supervision, but they
presented no evidence that would support such a finding.
17
The court interjected, asking if it had to follow the doctors’
recommendation or if it could instead “balance that against [Carder’s] record
to determine whether the public would be protected if he is released.”
Defense counsel pointed the court to Rasmuson, supra, 145 Cal.App.4th 1487,
which explained at page 1509 that a court may not arbitrarily disregard
unanimous and uncontradicted recommendations of medical experts. To the
extent the People wanted to cast doubt on the expert recommendations—for
example, based on the number of victims Carder had molested—it was
incumbent on them to introduce evidence linking that statistic to a likelihood
of reoffending. But the record actually showed the opposite—the experts
explained that recidivism risk turned more on an SVP’s transparency,
insight, and dynamic risk factors than on the number of victims. Here the
court once again interjected, asking if there would be any number of victims
at which the public safety interest would justify diverging from the
unanimous expert view. Carder’s counsel replied that there would not—and
because the People bore the burden of proof, any link between the number of
victims and recidivism risk should have been presented at trial.
Ultimately, counsel explained, the People bore the burden to prove by a
preponderance of the evidence that there was a serious and well-founded risk
of reoffending under community supervision. While the People may have had
concerns about the way Dr. Leite scored Carder’s dynamic risk factors, the
only evidence before the court was that Carder was at average risk of
reoffending even if unconditionally released. Conditional supervised release
was the next logical step in Carder’s treatment notwithstanding his very
recent promotion to module IV, and CONREP imposed stringent conditions to
reduce any risk of reoffending. Ultimately, Carder maintained, to deny his
petition would require the court to conclude based on speculation rather than
18
evidence that more victims or insufficient time in module IV increased the
risk of recidivism. Absent evidence to the contrary, the court could not find
that the People met their burden to prove a serious, well-founded danger that
Carder would engage in sexually violent predatory behavior if released to
community supervision.
5. Order
The court took the matter under submission. Two days later, it issued
an order denying Carder’s petition for conditional release. Making minor
nonsubstantive changes on June 10, the court entered a corrected order nunc
pro tunc to May 7, 2021.
The corrected order began by stating the applicable standard of review:
because the hospital’s annual report recommended conditional release, the
People bore the burden to prove by a preponderance of the evidence that
conditional release was not appropriate. As it viewed the parties’ positions,
“the hospital staff unanimously agreed that petitioner should be on
outpatient status” whereas the People maintained that Carder “should not be
released given his history of sexual deviance.” In the court’s view, “the case
essentially require[d] a determination whether petitioner’s record should
outweigh his current treatment improvement and staff recommendation.” In
balancing these factors, the court concluded that Carder’s “commendable”
treatment progress did not “outweigh[ ] the violence and terror he has
imposed on 30 or more victims.”
The court felt that the hospital “downplayed the danger in favor of his
successful treatment.” As it read the record, “just about every report that
recommends release also notes the potential danger from petitioner.” In the
court’s view, because outpatient status had only recently been recommended,
“some time should pass to confirm the changes [Carder] has made.” While
19
Carder “should not be housed forever if he is in fact not dangerous,” the court
asserted, “[M]ore time is needed to confirm that the changes he has made are
not merely verbal, but real.” Although Carder had a low risk of recidivism
based on his dynamic risk factors, “there is still a reasonable chance of
reoccurrence” and “[i]n the court’s view, one victim more is one victim too
many.”
Turning to the record, the court observed that Carder had failed a
polygraph as recently as 2016 and had not utilized all available treatment at
the hospital.14 Reiterating its concern from trial, the court highlighted the
uncertainty regarding “how many people petitioner has actually molested.”
Hospital staff relied on his estimates of 30 [victims] or 100 [incidents], but
“there is no way to determine with certainty the real number.” Finally, the
court raised concern with the level of supervision. Although Liberty’s
CONREP program would carefully monitor Carder “by ankle bracelet,
clandestine observations, and other means,” it could not guarantee that
Carder would be “guarded 7/24.” Despite CONREP’s reported recidivism rate
of zero, patients that violated CONREP rules were brought back to court
(suggesting less-than-perfect compliance). In the court’s view, Carder
presented a major monitoring challenge. And yet, the court mused, Dr. Leite
recommended conditional release despite finding that Carder was “likely to
14 This appears to reference Dr. Cureton’s statement in his August 2020
hospital liaison report that Carder was enrolled in module II and “[t]here
remain a number of recommended treatments he has not yet availed himself
to.” This information appears to have been dated—by the time Cureton
wrote his report, Carder had advanced to module IV. Cureton’s report
elsewhere highlights that advancement as reflecting Carder’s completion of
“the formal components of the hospital treatment [p]rogram.”
20
engage in future violent predatory criminal behavior if not detained or
treated in a custodial environment.”15
Ultimately, the court distinguished this case from Rasmuson, supra,
145 Cal.App.4th 1487. Whereas that case presented “not a scintilla of
evidence the petitioner would reoffend,” with none of the experts expressing a
concern about his future danger, “[e]ven the experts recommending release
caution about [Carder’s] future dangerousness,” which was buttressed in the
court’s view “by the fact that no one really knows how many offenses
petitioner has perpetrated.” The court summed it up this way:
“As noted above, petitioner has made progress at Coalinga.
However, the court feels the hospital has downplayed the
danger petitioner represents to the public. Also, he has
only been approved for release for a short period of time.
More time is needed to confirm this improvement in the
face of his extensive and serious criminal record.
Therefore, the evidence presented by the state provides
more than a preponderance of the evidence that conditional
release is not appropriate at this time.”
DISCUSSION
Carder appeals the denial of his petition for conditional release. He
claims the court applied the wrong standard in focusing on the mere
possibility he would reoffend. Given the unanimous view of the three
testifying witnesses that he was not likely to reoffend if placed under strict
15 Leite made this assertion based on Carder’s diagnosed pedophilic
disorder; this was the reason she did not recommend unconditional release.
But in the very next line of the concluding paragraph of her report, Leite
highlighted Carder’s treatment progress and explained that CONREP would
provide “supervision that would prevent him from sexually recidivating.”
This was consistent with Carder’s 2019 annual review, where the evaluator
believed that he was predisposed to recidivate but could safely be treated in
the community under conditional release.
21
supervision at CONREP, he argues that no substantial evidence supports the
court’s determination to the contrary. We agree and find this case akin to
Rasmuson, supra, 145 Cal.App.4th 1487, where reversal of an order denying
conditional release was likewise compelled.
A. Overview of the Sexually Violent Predator Act (§ 6600 et seq.)
The SVPA authorizes involuntary commitment of those who “have
previously been convicted of sexually violent crimes and currently suffer
diagnosed mental disorders which make them dangerous in that they are
likely to engage in sexually violent criminal behavior.” (People v. Superior
Court (Ghilotti) (2002) 27 Cal.4th 888, 902 (Ghilotti); see § 6600, subd. (a)(1).)
Since its January 1996 effective date (see Stats. 1995, ch. 763, § 3), the SVPA
has set forth procedures to screen and evaluate prisoners near the end of
their prison terms and commit those found beyond a reasonable doubt to be
SVPs. (See generally, Hubbart v. Superior Court (1999) 19 Cal.4th 1138,
1143−1148; § 6604.) SVP proceedings are civil in nature (People v. Yartz
(2005) 37 Cal.4th 529, 536), but individuals are given a statutory right to the
assistance of counsel, retention of experts, and access to relevant records and
reports (§ 6603, subd. (a)).
Persons adjudicated as SVPs are committed to the custody of DSH for
an indeterminate term. (§ 6604; see also § 6606, subd. (a).) At the hospital,
they are offered structured sex offender treatment programs. (§ 6606, subd.
(c).) Civil commitment of SVPs is deemed nonpunitive because “a person is
committed only for as long as he meets the SVP criteria of mental
abnormality and dangerousness.” (People v. McKee (2010) 47 Cal.4th 1172,
1194 (McKee).)16
16 Prior to the passage of Proposition 83 (Jessica’s Law) in 2006, an SVP
was entitled to a jury trial every two years at which the prosecution had to
22
“Because the SVPA is designed to ensure a committed person does not
remain confined any longer than he or she qualifies as a sexually violent
predator, it provides means for that individual to obtain review of his or her
mental condition to determine if civil confinement is still necessary.” (People
v. Collins (2003) 110 Cal.App.4th 340, 346; accord People v. Superior Court
(Quarles) (2020) 45 Cal.App.5th 637, 647−648.) Each year, DSH files a report
evaluating whether a committed person remains an SVP and if conditional or
unconditional release would serve his or her best interests while
safeguarding the community. (§ 6604.9.) If an SVP’s diagnosis has changed
such that “the person is not likely to commit acts of predatory sexual violence
while under supervision and treatment in the community,” DSH must
forward a report recommending conditional release to the county attorney,
defense counsel, and the court, which must in turn hold an evidentiary
hearing. (§ 6607.)
Regardless of the recommendation made by DSH, an SVP may petition
the court for conditional release. (§ 6608, subd. (a).) Provided the petition is
not frivolous (ibid.), and the person has been committed for at least one year
(id., subd. (f)), the court will hold an evidentiary hearing upon receiving a
report from DSH. (Ibid.) At that hearing, the court must “determine
whether the person committed would be a danger to the health and safety of
others in that it is likely that he or she will engage in sexually violent
prove the person’s status as an SVP. Proposition 83 introduced indefinite
commitment, and the Supreme Court upheld its constitutionality by looking
to the SVPA’s due process safeguards such as annual reviews and procedures
to petition for release. (McKee, supra, 47 Cal.4th at pp. 1188, 1192−1193.)
23
criminal behavior due to his or her diagnosed mental disorder if under
supervision and treatment in the community.” (Id., subd. (g).)17
Likelihood to reoffend carries a special meaning under the SVPA—it
connotes more than the mere possibility, and requires a substantial danger or
a serious and well-founded risk that the SVP will reoffend if placed in the
community for continued treatment and supervision. (Rasmuson, supra, 145
Cal.App.4th at p. 1507.)18 Because a person’s criminal history “is static and
will never change,” it “should not be determinative of whether [the committed
SVP] is a danger to reoffend,” particularly where substantial time has passed
since the crimes. (Id. at p. 1509.) Likelihood to reoffend “ ‘does not inevitably
flow from one’s history of violent sex offenses and a predisposing mental
disorder.’ ” (Ibid., citing Ghilotti, supra, 27 Cal.4th at pp. 920−921.)
On appeal, we review the court’s factual finding that Carder was likely
to reoffend if conditionally released for substantial evidence. (Rasmuson,
supra, 145 Cal.App.4th at p. 1504.) Viewing the record in the light most
favorable to the court’s order, we determine whether it contains evidence
from which a reasonable trier of fact could find that the patient posed a
serious and well-founded risk of reoffending if placed under community
17 If the court concludes the person would not be a danger under
community supervision, it must order conditional release for one year,
retaining jurisdiction over the conditionally released SVP. (§ 6608, subd. (g).)
But if the court denies the petition the patient must wait another year to
refile for conditional release. (Id., subd. (j).)
18 In articulating this standard for petitions filed under section 6608, the
Rasmuson court looked to California Supreme Court cases construing the
meaning of “ ‘likely’ ” in relation to recidivism risk elsewhere in the SVPA.
(Rasmuson, supra, 145 Cal.App.4th at pp. 1506−1507, citing Ghilotti, supra,27 Cal.4th at p. 922; Cooley v. Superior Court (2002) 29 Cal.4th 228, 254‒255;
People v. Roberge (2003) 29 Cal.4th 979, 986.)
24
supervision. (Id. at pp. 1507−1508.) Where, as here, all testifying experts
unanimously agree that the SVP petitioner is not likely to reoffend under
community supervision, the trial court may choose to reject those conclusions,
but only for nonarbitrary reasons. (Id. at p. 1509, citing People v. Sword
(1994) 29 Cal.App.4th 614, 629.)
Generally, a patient must prove by a preponderance of the evidence
that conditional release would serve his or her best interest and that
conditions can be imposed that would adequately protect the community.
(§ 6608, subd. (k).) On appeal from the denial of that order, the focus is
typically whether the trial court reasonably found that the SVP petitioner did
not meet his or her burden of proof. However, where DSH recommends
conditional release in its annual report under section 6604.9, the burden
shifts. The state bears the burden to show “by a preponderance of the
evidence, that conditional release is not appropriate.” (§ 6608, subd. (k).)19
In this case, DSH recommended that Carder be conditionally released in its
October 2020 annual report filed with the court, which adopted Dr. Leite’s
recommendations. That shifted the burden to the People to prove by a
preponderance of the evidence that Carder presented a serious and well-
founded risk of reoffending if conditionally released to CONREP. Therefore,
our inquiry is whether the trial court could reasonably find on our record that
the People met their burden of proof.
19 The Legislature introduced this burden-shifting framework in 2013.
(Stats. 2013, ch. 182 (Sen. Bill No. 295) § 3.) Previously, the petitioning SVP
always bore the burden of proof. (See Stats. 2007, ch. 571 (Assem. Bill
No. 1172) § 3; Rasmuson, supra, 145 Cal.App.4th at p. 1503 [applying former
law].)
25
B. People v. Rasmuson (2006) 145 Cal.App.4th 1487Carder describes Rasmuson as “eerily similar” to his case. Because we
agree the case offers useful parallels, we explore it in detail. Defendant
Kenneth Rasmuson was convicted of forcible oral copulation, sodomy, and a
lewd act on an 11-year-old boy in 1981. At the time of the offense, Rasmuson
was 19. Conditionally released in 1985, he reoffended in 1987, molesting and
then abandoning a three-year-old boy in an isolated mountain location. He
admitted to molesting numerous other victims in treatment after his
commitment. (Rasmuson, supra, 145 Cal.App.4th at p. 1491.)
In 2004 at the age of 43, Rasmuson petitioned for conditional release
from SVP inpatient treatment under section 6608. The statute at the time
placed the burden on him to prove by a preponderance of the evidence that he
was not likely to reoffend if placed on community supervision. (See fn. 19,
ante.) He examined eight expert witnesses involved in his treatment who
universally opined that although he was a “ ‘very serious pedophile’ ” who
“would never be cured” and “faced a lifelong risk of reoffending,” he was not
likely to reoffend if conditionally released. (Rasmuson, supra, 145
Cal.App.4th at p. 1492‒1493.) The experts offered different reasons for this
conclusion. Among them, Rasmuson had started taking antiandrogen
medication; no longer reported deviant sexual fantasies in polygraph and
PPG tests; completed four out of five phases of treatment at Atascadero State
Hospital; had developed skills to manage his sexual deviancy; and would be
closely supervised in CONREP. (Id. at pp. 1492−1499.)20 Although three
20 Rasmuson’s treating psychiatrist highlighted his “dramatic change”
since he was taking antiandrogens to reduce his testosterone to castration
levels. (Rasmuson, supra, 145 Cal.App.4th at p. 1492.) Even so, four of
Rasmuson’s remaining seven experts testified that he should be conditionally
26
experts expressed reservations about the nature of Rasmuson’s crimes, his
ability to manipulate interviewers, his tendency to minimize responsibility
and make conflicting statements, and past drug abuse that intensified his
aggressive impulses, they felt that CONREP’s supervision protocols greatly
reduced his danger of reoffending. (Id. at pp. 1494, 1495−1496, 1498−1499.)
As adduced at trial, CONREP used GPS monitoring, random home visits,
searches, polygraphs, PPGs, blood and urine testing, travel restrictions,
intensive supervision, and restrictions on where he could go or who he could
meet. (Id. at pp. 1495−1496.)
To counter this proffer, the People called two additional experts. A
senior psychologist at Atascadero questioned the efficacy of antiandrogen
medication but conceded he had never treated Rasmuson and had no view as
to whether he was ready for conditional release. (Rasmuson, supra, 145
Cal.App.4th at pp. 1499−1500.) A Liberty director expressed “ ‘concerns’ ”
about Rasmuson’s release, finding it to be a “ ‘very close call’ ” and preferring
to see another six to 12 months of stability. (Id. at p. 1500.) Nevertheless,
that expert conceded that he “would not object to a court-ordered conditional
release.” (Ibid.) During their closing, the People emphasized the heinous
nature of Rasmuson’s offenses, his past substance abuse, his relatively young
age of 43, and his past recidivism after prior release at a time when he was
also a “ ‘model patient.’ ” (Ibid.) Taking the matter under submission, the
court issued a one-line order denying the petition on the basis that Rasmuson
failed to meet his burden of proof.
Rasmuson appealed, and the appellate court reversed. It noted that
Rasmuson presented uncontroverted evidence from eight mental health
released even if he stopped taking medications. (Id. at pp. 1492−1493, 1495,
1496, 1498.)
27
professionals who concluded for various reasons that he “would not be a
significant danger to the community if conditionally released and did not
present a ‘serious and well-founded risk’ of reoffending.” (Rasmuson, supra,
145 Cal.App.4th at p. 1508.) “Against this weighty and impressive evidence,
the People failed to present a scintilla of evidence that appellant would likely
reoffend.” (Ibid.) One expert questioned the efficacy of medication without
addressing any of the other factors offered by Rasmuson’s witnesses. Having
never treated Rasmuson, he offered no opinion on his suitability for
conditional release. (Ibid.) While the other expert expressed reservations
and felt the risk of recidivism was a very close call, he would not object if the
court ordered Rasmuson conditionally released. (Id. at pp. 1508−1509.)
“While the trial court was not required to follow the essentially
unanimous and uncontradicted recommendations of appellant’s eight expert
witnesses,” the court explained, “it could not arbitrarily disregard those
recommendations. (Rasmuson, supra, 145 Cal.App.4th at p. 1509.) The trial
court’s order gave no indication as to why it chose not to accept the opinions
of any of Rasmuson’s experts. (Ibid.) His recidivism within a short period of
his previous conditional release, “occurred nearly two decades earlier, before
appellant began using antiandrogens and went through the cognitive therapy
treatment at Atascadero, which was different and more effective than the
treatment he received before his earlier release.” (Ibid.) The evidence
showed that the current conditional release program, CONREP, “provides far
greater control, supervision and monitoring than did the prior release
program.” (Ibid.)
Rasmuson’s heinous crimes alone could not establish his likelihood to
recidivate. As the court explained:
28
“A person’s history should not be determinative of whether
he or she is a danger to reoffend . . . . That history is static
and will never change. As substantial time has passed, its
reliability as a predictor of a defendant’s future behavior
becomes more equivocal. If such static factors
predominated in the assessment of whether an SVP should
be given conditional release, a serious offender would never
be released regardless of what events subsequent to his
offenses revealed, which is contrary to the intent of the
SVPA, which allows conditional release even with some
risk of reoffending.” (Rasmuson, supra, 145 Cal.App.4th at
p. 1509.)
Based on the evidence presented at trial, the Rasmuson court reasoned that
denying his petition would be “tantamount to concluding that no SVP who
has ever committed a prior serious sexual offense, regardless of how long ago
it occurred, can be conditionally released”—a conclusion that “would present
serious constitutional issues.” (Ibid., citing Foucha v. Louisiana (1992) 504
U.S. 71, 77 [when committed persons recover sanity or are no longer
dangerous, they constitutionally must be released].)
From Rasmuson, we derive two broad principles. First, a court is free
to reject the unanimous conclusion of testifying experts that a patient is not
likely to reoffend in community supervision, but must do so based on rational
findings that are supported by the record. Second, a person’s static criminal
history cannot by itself determine the likelihood that he or she will reoffend.
C. Rasmuson Compels Reversal Here; the Trial Court Applied the Wrong
Standard in Denying Carder’s Petition for Conditional Release
The question before the trial court was whether the People met their
burden to prove by a preponderance of the evidence that Carder was likely to
reoffend if he were subject to supervised conditional release. (§ 6608, subds.
(g), (k).) As discussed, “likely” in this context carries a specific meaning—the
question was not whether it was possible Carder would reoffend but instead
29
whether there was a substantial danger, i.e., a serious and well-founded risk,
that he would reoffend if conditionally released to CONREP for continued
treatment and supervision. (Rasmuson, supra, 145 Cal.App.4th at p. 1507;
see also Ghilotti, supra, 27 Cal.4th at p. 922 [“ ‘likely’ ” as used in a different
part of the SVPA “connotes much more than the mere possibility that the
person will reoffend as a result of a predisposing mental disorder”].) Here, as
in Rasmuson, the evidence did not support a finding that Carder presented a
serious and well-founded risk of reoffending in community supervision.
With the People bearing the burden of proof, both of the experts they
called testified unequivocally that Carder was not likely to reoffend if
conditionally released.21 As Drs. Leite and Cureton explained, although
Carder would probably always have pedophilic thoughts, the focus of
treatment was to prevent him from converting those thoughts to fantasies or
action. Carder had shown substantial progress and had essentially done
everything he could do in a hospital setting. He understood his dynamic risk
factors; developed a comprehensive release plan; and demonstrated insight
and empathy in reflecting on his crimes and those he had hurt. Carder had
been transparent with examiners and facilitators and had not acted on a
sexually deviant thought since 2016. Whereas before his pedophilia was
unregulated, it was now regulated through years of treatment, allowing
Carder to be safely treated in the community. The experts credited not only
his words but also objective polygraph and PPG results.
Drs. Leite and Cureton further explained why CONREP’s supervision
could adequately address any community risk. Aside from ankle monitors,
21 Dr. Hopkins, who served as the facilitator for Carder’s module III, was
only asked whether she had concerns about Carder progressing to module IV.
Because she did not work with module IV patients, she expressed no opinion
on when those patients could be recommended for conditional release.
30
Cureton explained that patients have restricted zones of travel and might not
be allowed to leave their house except as planned in writing two weeks in
advance. CONREP staff conduct covert surveillance and accompany patients
into the community for “probably much of the first year” to supervise their
interactions. A community safety team monitors patient progress closely and
would take immediate steps ranging from more intensive treatment to
petitioning for rehospitalization if warning signs emerged. Over time, the
level of supervision decreases, but the ankle monitor and polygraph tests
ensure that patients are keeping their word.
Never in the program’s 18-year history had a participant placed hands
on a potential victim, reflecting the significant monitoring in place to catch
problems early. Dr. Leite agreed that CONREP supervision would
adequately manage any lingering risks stemming from Carder’s continued
pedophilia and relationship instability. In conjunction with his ongoing
therapy at CONREP, polygraph tests, individual and group therapy would
monitor Carder’s thoughts, fantasies, and actions.
Against this weighty and consistent testimony, the People failed to
present any evidence that Carder was likely to reoffend if treated in
CONREP’s outpatient program. Their approach at trial was to question the
experts’ conclusions. They highlighted Carder’s continuing sexual interest in
young girls and the speed at which he progressed from being initially denied
advancement to module IV in February 2020 to being advanced in August
and recommended for conditional release two weeks later. They further
suggested that Dr. Leite failed to adequately evaluate Carder’s dynamic risk
factors.
Carder responded by establishing through uncontradicted expert
testimony that the focus of treatment was not on his thoughts but rather on
31
his actions. Dr. Hopkins explained the reasons he failed to advance to
module IV in February 2020, and what changed in the next six months to
permit him to advance. Carder’s counsel pointed out in closing argument
that with the People bearing the burden of proof, it was their responsibility to
prove that Carder was likely to offend in community supervision, but no
evidence supported that finding.
Given the state of the record, Carder should have prevailed. There is
no reading of the unanimous and uncontradicted evidence from which a court
could find that the People met their burden of proof. Simply questioning the
experts’ foundational findings, as the People did here, does not establish the
converse is true. (See Wise v. DLA Piper LLP (US) (2013) 220 Cal.App.4th
1180, 1192 (Wise) [disbelief of a witness’s testimony does not constitute
affirmative evidence of the contrary proposition]; People v. Jimenez (1978) 21
Cal.3d 595, 613 [same]; Beck Development Co. v. Southern Pacific
Transportation Co. (1996) 44 Cal.App.4th 1160, 1205 (Beck) [“the fact that
the trier of fact does not credit a witness’s testimony does not entitle it to
adopt an opposite version of the facts which otherwise lacks evidentiary
support”].)
Rasmuson compels our conclusion. There, all the experts testified that
the defendant—who committed heinous sex crimes including after his prior
conditional release—was not likely to reoffend if placed in CONREP. The
People sought to question those conclusions, examining one expert who
debated the efficacy of defendant’s antiandrogen medication and another who
stated he would prefer to wait longer before for conditional release. This
amounted, in the court’s view, to less than “a scintilla of evidence that
appellant would likely reoffend.” (Rasmuson, supra, 145 Cal.App.4th at
p. 1508.)
32
Although the trial court remained free to reject the experts’ conclusions
for nonarbitrary reasons, here the People offered and the record contains no
evidence from which the court could conclude that Carder presented a serious
and well-founded risk of reoffending at CONREP. (See People v. Wright
(2016) 4 Cal.App.5th 537, 546 [findings can rest on reasonable inferences
drawn from the evidence but not mere speculation as to probabilities without
evidence]; Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 483
[inferences must rest on more than mere possibilities].) While the court may
have preferred that Carder have more time in module IV while hospitalized,
there was no evidence from which it could conclude that a short interval
between advancement to module IV, and conditional release made it likely
that Carder would reoffend at CONREP. Similarly, although the court may
have had concerns about Carder’s failed polygraph in 2016, the experts did
not harbor those same concerns where he had passed all subsequent
polygraphs in the four years since. Moreover, even well-founded concern that
one or more of the experts failed to adequately consider public safety risks of
conditional release would at most give the court a basis to reject those
experts’ conclusions. It would not amount to proof by a preponderance of the
evidence of the contrary proposition that Carder was likely to reoffend at
CONREP. (See Wise, supra, 220 Cal.App.4th at p. 1192 [a determination
that a witness is not credible simply means that his or her testimony
disappears from the case as if it had not been given]; Beck, supra, 44
Cal.App.4th at p. 1205 [“The rejection of a witness’s testimony by the trier of
fact has only the effect of removing that testimony from the evidentiary
mix.”].) Ultimately the case for reversal is stronger here than in Rasmuson
because it was the People who bore the burden of proof, and they offered no
33
evidence to permit a conclusion that Carder was likely to reoffend if treated
under the supervision of CONREP.22
Rather than utilize the applicable standard, the court created its own.
It viewed the relevant question as whether Carder’s treatment progress
outweighed his criminal record. It hewed closer to the correct standard at
times—stating for example that Carder “should not be housed forever if he is
in fact not dangerous”—but repeatedly returned to question of how many
victims Carder had molested and expressed the view that “one victim more is
one victim too many.” Because the court believed there was “a reasonable
chance of reoccurrence,” it sought additional time to reassure itself of
Carder’s progress. It emphasized that “just about every report that
recommends release also notes the potential danger from [Carder].” (Italics
added.) Denying conditional release, the court conclusorily reasoned that it
was “not appropriate at this time” without explaining what about “this time”
would make Carder likely to reoffend.
Instead of focusing on whether Carder posed a serious and well-
founded risk of reoffending if placed under CONREP’s supervision, the court
repeatedly considered whether there was a reasonable chance of or potential
22 Attempting to distinguish Rasmuson, the People note that Carder was
not taking medication to reduce his sexual urges, had been convicted of more
crimes, and had fewer experts testify that he should be conditionally
released. We agree with Carder that “small factual differences . . . do not
make the Rasmuson case distinguishable in any legally significant way.”
34
for reoffense.23 Nowhere in the court’s four-page order was the correct
standard discussed or applied. Several of the factors it cited—uncertainty
about the extent of his past crimes, doubt about how Carder would react to
young girls in a community setting, and concern about a 2016 failed
polygraph—at best alluded to the possibility of recidivism, a circumstance
that was accepted by all involved. No witness suggested at trial that any of
these factors made it likely that Carder would reoffend if placed in
CONREP’s conditional release program. Although the nature of CONREP’s
monitoring was plainly relevant to recidivism risk where the experts stopped
short of recommending unconditional release, there was no evidence
permitting the conclusion that despite the monitoring system in place,
Carder would be likely to reoffend.24
Compounding its error in focusing on abstract possibilities of reoffense,
the court weighed Carder’s criminal history against his treatment progress,
23 The People make the same type of mistake in their respondent’s brief,
suggesting Carder’s past conduct in abducting and raping children
established “the potential of how dangerous he could still be to little girls if
he was to regress on conditional release.” Although the People and the court
were understandably concerned about ensuring the safety of young girls in
the community, the question was whether Carder posed a substantial danger
of reoffending in CONREP supervision.
24 The court probed the limits of CONREP’s supervision in its questions to
Cureton. But the evidence elicited—that supervision entails ankle monitors,
travel restrictions, covert surveillance, chaperoned outings, and community
safety team monitoring—at best suggested a possibility that Carder would
reoffend with these measures, rather than a well-founded risk. Cureton
explained that the program had not seen a “hands-on victim” in 18 years,
reflecting the significant monitoring in place to catch problems early. With
the People providing no contrary evidence, the court acknowledged
CONREP’s oversight and “zero recidivism rate” but nevertheless worried that
Carder could not be “guarded 7/24” and expressed that Carder would “be a
major challenge to supervise.”
35
without linking the former to Carder’s risk of recidivism. The question was
not—as the court put it—“whether petitioner’s record should outweigh his
current treatment and staff recommendation” or whether his treatment
progress “outweighs the violence and terror he has imposed on 30 or more
victims.” Rather, it was whether the People met their burden to show that
Carder presented a substantial danger of reoffending if he were given
supervised conditional release.
Naturally, the court was concerned about ensuring community safety
given Carder’s violent record. There was testimony by Dr. Leite, for example,
that the nature of his offenses would be relevant in assessing his recidivism
risk. Nevertheless, the only evidence before the court was that Carder was
not likely to reoffend in conditional release given his treatment progress and
CONREP’s monitoring measures. Despite the court’s concern about
pinpointing the exact number of victims, there was no testimony suggesting
that the precise number of victims affects an SVP’s likelihood to reoffend.
The testimony was in fact the opposite. Leite explained that her
recommendation would not change if it turned out there were more victims.
Because Carder could not change his past, the focus was on whether he could
address the issues that led to his past criminal behavior. Cureton likewise
explained that although someone who molested 30 victims might be on the
higher end of the scale, CONREP had recently seen someone conditionally
released who molested more than 30 victims.
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In human behavior, there are few if any ironclad guarantees. Although
the trial court clearly would have preferred greater certainty, it strayed from
the question at hand in focusing on the possibility that Carder could reoffend
and in attempting to weigh his criminal history against his treatment
progress. Reviewing the unanimous and uncontradicted expert
recommendations presented at trial, this case is functionally identical to
Rasmuson, in which reversal was likewise compelled. Under any reading of
the record, the People did not meet their burden to prove by a preponderance
of the evidence that Carder presented a serious and well-founded risk of
reoffending if conditionally released and provided outpatient care through
CONREP.
DISPOSITION
The order denying Carder’s petition for conditional release is reversed,
and the superior court is directed to enter a new order granting Carder’s
petition.
DATO, J.
WE CONCUR:
AARON, Acting P. J.
IRION, J.
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