People v. Hoffman ( 2021 )

Filed 3/16/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B306360
(Super. Ct. No. 2011035385)
Plaintiff and Respondent, (Ventura County)
v.
EARL HOFFMAN,
Defendant and Appellant.
Old age! As John Steinbeck would say, “bastard Time” is
always ticking. (Steinbeck, Sweet Thursday (1954) Penguin
Books, p. 19.) And for some people, as it ticks, the person may
mature, learn, and grow, and perhaps grow out of sexual
deviancy. But there are others who may not mature, learn, and
grow, and grow out of sexual deviancy. Here, for example,
appellant is a 74-year-old self-admitted child molester, who, in a
moment of candor, said that he could not guarantee that he
would not molest another child upon release.
Appellant was found to be a sexually violent predator (SVP)
after trial by the court. (Welf. & Inst. Code, § 6600 et seq.) His
sole contention on appeal is that the evidence was, and is,
insufficient as a matter of law because, currently, he is just too
old to pose “a serious and well-founded risk” of sexually
reoffending upon release. (E.g., People v. Roberge (2003) 29
Cal.4th 979, 986.) The trial court, sitting as the trier of fact,
determined to the contrary. As we explain, traditional appellate
rules dictate that we affirm. To reverse, we would have to
impermissibly substitute our judgment for that of the trial court.
Appellant has an extensive history of sexual deviancy,
including numerous convictions for sexual offenses against
children. But he has not reoffended for 30 years. Why not? He
has been imprisoned and/or deprived of his freedom by civil
commitment for 30 years. There is no need to elongate this
opinion and recount the factual history leading to appellant’s 19
separate arrests, most of them involving sexual aggression
against children. We recite one example of such aggression. In
1988, appellant accosted a 16-year-old female riding a moped. He
told her he was a scout for models. Although he was an adult and
the victim was a complete stranger, he sexually penetrated her
vagina with his finger.
Five psychologists offered opinions concerning his
qualifying as an SVP. They were unanimous in the opinion that
appellant met the SVP commitment criteria. However, two of the
psychologists opined that appellant was just too old to support
the opinion that he posed “a serious and well-founded risk” of
sexually reoffending upon release. One psychologist said that
appellant’s age was the “paramount issue,” and as a person ages,
he loses his sexual aggressiveness. The other psychologist said
that if appellant were younger, he would be an SVP but “age” is
“huge.” Thus, both of these psychologists opined that appellant
should not be committed as an SVP.
2
Appellant has declined treatment for 20 years and does not
think that he needs treatment. He has also refused to be
interviewed by forensic psychologists on occasion. If there is an
“attitude test” at the SVP program, appellant has surely flunked
it.
Appellant attempts to convince us that the evidence is
insufficient to support the SVP determination. “‘A reversal for
insufficient evidence “is unwarranted unless it appears ‘that
upon no hypothesis whatever is there sufficient substantial
evidence to support’” the . . . verdict. [Citation.]’ [Citation.]”
(People v. Manibusan (2013) 58 Cal.4th 40, 87.) Here, three
experts have opined that appellant, at age 74, still poses a serious
and well-founded risk of sexually reoffending upon release.
While a person may “slow down” with age, it does not necessarily
follow that interest in sexual deviancy slows down. And we
cannot so hold as a matter of law. We hold that “old age,”
standing alone, does not relieve a person from SVP commitment.
It is a factor to be considered by mental health professionals and
the trier of fact in coming to an SVP determination.
If we were to credit appellant’s claim, at age 74, all SVP’s
would be released. We take appellant at his word: “[N]obody can
predict what I can do in the future. Not even I can.” “[P]eople in
here think I’m a rapist because I’m aggressive in sports. But I’m
a child molester.” The trial court believed appellant to the extent
that he might molest another child upon release. This credibility
determination, coupled with expert testimony, leads to but one
rational conclusion on appeal.
3
The judgment (order of SVP commitment) is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
4
Anthony T. Sabo, Judge
Superior Court County of Ventura
______________________________
Gerald J. Miller, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.