People v. Burroughs CA2/4 ( 2024 )

Filed 10/14/24 P. v. Burroughs CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B332383
Plaintiff and Respondent,
(Los Angeles County
Super. Ct. No. ZM014605)
v.
JOSEPH BURROUGHS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
David V. Herriford, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah
P. Hill and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and
Respondent.
This is the second appeal by Joseph Burroughs from a jury verdict
adjudicating him a sexually violent predator (SVP) under the Sexually
Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.),1 and
ordering his indeterminate commitment to Coalinga State Hospital
(Coalinga). In People v. Burroughs (2016) 6 Cal.App.5th 378 (Burroughs), a
different panel of this court reversed the jury’s finding based on prejudicial
errors in the admission of expert testimony at trial. Upon retrial, the jury
again found that appellant met the definition of an SVP.
In this appeal, appellant contends that there was insufficient evidence
to support the jury’s finding beyond a reasonable doubt. He argues that the
prosecution’s experts relied only on his predicate offenses, which he
committed decades ago, and discounted his subsequent good behavior during
his commitment. As such, he contends that the experts’ conclusions that he
remained at serious risk of reoffending were improperly based on speculation
rather than evidence that he has a current mental disorder that would make
it likely he would commit a violent sexual offense if released. We find no
prejudicial error and affirm the judgment.
PROCEDURAL HISTORY
We take the following, in part, from the opinion in appellant’s first
appeal, Burroughs, supra, 6 Cal.App.5th 378. On May 12, 2009, the Los
Angeles County District Attorney (“the People”) filed a petition pursuant to
section 6601 to commit appellant as an SVP. (Id. at p. 383.) An SVP is “a
person who has been convicted of a sexually violent offense against one or
more victims and who has a diagnosed mental disorder that makes the
person a danger to the health and safety of others in that it is likely that he
or she will engage in sexually violent criminal behavior.” (§ 6600, subd.
(a)(1).) Under the SVPA, the People may seek to confine and treat SVPs
“until their dangerous disorders recede and they no longer pose a societal
threat.” (Moore v. Superior Court (2010) 50 Cal.4th 802, 815 (Moore).) The
special proceedings that follow are civil in nature, but an SVP defendant
retains many procedural protections afforded criminal defendants, such as
the right to court-appointed counsel and experts, the right to a unanimous
1
All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
2
jury verdict, the right to testify in one's defense, and the right to have the
People prove his or her SVP status beyond a reasonable doubt. (Burroughs,
supra, 6 Cal.App.5th at p. 384, citing Moore, supra, 50 Cal.4th at pp. 816–
817; see also People v. Allen (2008) 44 Cal.4th 843, 861, 870.)
Following a trial in August 2015, the jury returned a verdict finding
true the allegation that appellant was an SVP within the meaning of the
SVPA. The trial court ordered him committed to Coalinga State Hospital for
an indeterminate term. (Burroughs, supra, 6 Cal.App.5th at p. 384.)
Appellant appealed. A different panel of this court reversed the judgment,
finding that some of the expert testimony at trial was based on inadmissible
hearsay and that the admission of that testimony was prejudicial.
(Burroughs, supra, 6 Cal.App.5th at pp. 411-412.) This court accordingly
remanded the matter to the trial court for further proceedings. (Id. at p.
413.)
On remand, a second trial was held in June 2023. Appellant waived his
appearance for trial and was not present. On July 6, 2023, the jury returned
a verdict, again finding true the allegation that appellant was an SVP within
the meaning of the SVPA. The court ordered appellant committed to
Coalinga for an indeterminate term. Appellant timely appealed.
FACTUAL BACKGROUND
The People presented three experts who opined that appellant met all
three statutory elements to be classified as an SVP. The three elements are:
“(1) conviction of a ‘sexually violent offense’; (2) a diagnosed mental disorder
that makes a person a danger to the health and safety of others; and (3) the
mental disorder makes it likely the defendant will engage in ‘sexually violent
criminal behavior.’ [Citation.]” (People v. White (2016) 3 Cal.App.5th 433,
448; see also § 6600, subd. (a)(1).) Only the second and third elements are
contested here.
I. Qualifying Sexually Violent Offenses
It was undisputed at trial that appellant was convicted of two sexually
violent offenses that met the first element under section 6600. In 1994,
appellant committed lewd and lascivious acts with the 13-year-old child of a
woman he was dating. He was convicted of the offense and sentenced to
probation. In 1995, he was convicted of assault with a deadly weapon, his
3
probation was revoked, and he was sentenced to prison. After his release, he
attempted to rape a 19-year-old neighbor in 1996. He was convicted of
assault with intent to rape in 1997. All the experts testified at trial that the
1994 and 1997 convictions qualified under the SVPA.
II. The People’s Evidence
A. Dr. Busby
Dr. Tricia Busby is a clinical psychologist who provides SVP
evaluations for the state of California. She received a referral to evaluate
appellant in April 2022. Appellant refused to interview with her, so she
relied on her review of his medical, court, and prison records.
Busby diagnosed appellant with unspecified schizophrenic spectrum
and other psychotic disorder, and with antisocial personality disorder
(ASPD). She concluded that appellant met the second SVP criterion: he had
a mental disorder that predisposed him to commit sexually violent offenses.
She explained that appellant met the criteria for ASPD as demonstrated by
his crimes, because he denied committing the offenses, was impulsive and did
not think about the consequences, lacked remorse, and used aliases and
deception to gain access to his victims. Busby testified that appellant was
volitionally impaired and unable to control his sexual behavior, noting that
he reoffended a short time after release from his first conviction. She also
noted that during his first offense, appellant continued to try to sexually
assault the daughter even after the mother walked in, which further
demonstrated “a lack of ability to manage his behavior.” She also found that
appellant exhibited emotional impairment, as he “does what he wants and
doesn’t consider how his sexual behavior impacts his victims.”
Regarding his current behavior in the hospital, Busby testified that
appellant kept to himself, did not “socialize very well with others,” and did
not speak to staff “unless he has a need that needs to be met.” Other than an
incident in December 2022, appellant had not “shown any aggressions” since
2014 and was “low-risk for in-patient violence.” In 2022, appellant received
multiple DVDs containing pornography, titled “Naughty Teen Girls or
something like that.”2 Although appellant was allowed to possess
2
A defense expert later testified that the title was “Naughty Teen
Whores.”
4
pornography at the hospital, Busby explained that the incident was relevant
because it demonstrated that appellant still had sexual interest and it was
concerning because appellant’s victims were teenagers. This concern was
heightened because appellant was not involved in treatment at the hospital
and had “not addressed the reasons for his past sexual offending. He hadn’t
addressed his dynamic risk factors or [sic] sexual re-offense. And so he also
doesn’t talk to staff which is problematic in my opinion because we don’t
know what’s happening . . . with Mr. Burroughs necessarily.” Given these
indications of appellant’s current mental state, she opined that the second
criterion was met.
Busby also opined that appellant met the third criterion for an SVP,
likeliness to engage in sexually violent predatory criminal behavior as a
result of his diagnosed mental disorder without appropriate treatment in
custody. To reach this conclusion, Busby used an actuarial instrument, the
Static-99R, to assess the risk level of recidivism. She testified that the
highest score possible is a 12 and the average score for a sex offender is 2.
Appellant received a score of 7, placing him in the well-above-average
category of risk of re-offense. She explained that recidivism often wanes after
the age of 60, at which point appellant’s score would go down. Busby also
used another assessment tool, the Stable 2007, which evaluates dynamic risk
factors. On that test, appellant scored a 15, in the high range for reoffending.
Combining the two scores gives the evaluator a modified percentage for
future risk of reoffending, which Busby explained provides additional
predictive validity for the results. For appellant, Busby testified that his risk
of reoffending within five years was 27 percent, meaning that 27 out of 100
people with that score would reoffend. Busby noted that if appellant were
participating in sex offender treatment in the hospital, his dynamic score
would be lower. As a result, she concluded that appellant met the criteria
and needed treatment and supervision for the safety of the community.
On cross-examination, Busby acknowledged that although appellant
had exhibited aggressive and hostile behavior early in his time at Coalinga,
the last incident she recalled was in 2014. She noted that more recently,
appellant would get “irritable when the treatment team tries to encourage
him to participate in treatment,” but “for the most part he doesn’t yell or
5
become violent.” She discussed two earlier incidents, one in 2013 when
appellant threatened a staff member and one in 2014 when he yelled at a
staff member while clenching his fists. She also noted a more recent incident
involving deceit by appellant. In 2018, appellant received a package with
shampoo bottles containing alcohol, then refused to directly answer questions
about it. She agreed that appellant had demonstrated less irresponsibility
recently, as he had been employed consistently in the hospital for the past
five or six years.
Busby also testified about the difficulty in diagnosing appellant with a
schizophrenic disorder because he refused to speak with clinical staff or
evaluators. However, she identified behaviors by appellant that would
suggest schizophrenia, including that he “perseverates on religious themes
which can be a symptom of schizophrenia.”
He had also been observed speaking on the phone to a dial tone,
mumbling to himself, and making unusual jerking movements, all of which
would be indicative of schizophrenia. She was not aware that appellant had
acted out sexually during his time at Coalinga or of any evidence of any
sexually themed delusions or sexual command hallucinations. However, she
noted that an evaluator would generally get that information from
interviewing the patient. She also noted that although appellant had not had
recent instances of impulsive behavior, the manual for the Static-99R
instructs the evaluator to consider that a person’s behavior in a structured,
confined environment will be different than in the community. She
considered that in her evaluation, as well as the fact that appellant had not
addressed the risk factors through treatment. She opined that outside of a
structured environment, especially given that appellant had demonstrated
that he still had sexual interests, “because of his emotional impairment he
will essentially give into his sexual desires and needs because he hadn’t
learned the skills necessary to engage in a ‘normal’ . . . relationship with
someone to get his sexual needs met.”
B. Dr. Flinton
Dr. Charles Flinton, a forensic psychologist, testified that he had
worked almost exclusively with violent and sexual offenders since 1992 and
had performed over 500 sexual offender evaluations. He evaluated appellant
6
in 2018 and 2022; both times appellant refused to meet with him. He
reviewed appellant’s criminal records, prison records, and hospital records,
and spoke with individuals at the Department of State Hospitals regarding
appellant.
Flinton diagnosed appellant with ASPD, based on appellant’s early
criminal conduct starting at age 14 and continuing into adulthood. He also
testified that appellant’s two predicate crimes were consistent with this
diagnosis, as appellant was driven to commit the crimes “by his own desire
without an understanding or concern for the impact on the other person.
Flinton acknowledged that appellant had not been getting into trouble in the
hospital, had been described as “pretty polite,” and that ASPD often
decreases as a person ages. But he opined that appellant still met the
criteria for ASPD because he remained “resistant to authority,” did not
participate in treatment, and did not always follow the rules. Flinton also
opined that appellant’s ability to behave in a custodial setting did not mean
that appellant lacked the internal drive to act out and thus did not establish
that appellant would behave similarly well once released. In particular,
Flinton explained that during his predicate offenses, appellant took great
efforts not to get caught, including threatening the victims. However, in a
hospital setting, appellant was much more likely to be caught and was
therefore less likely to engage in the behavior. He concluded that appellant
“suffers from antisocial personality disorder in which he is willing to work to
achieve his own ends despite the impact on others.” Flinton testified that
appellant met the second criteria “without a doubt,” as his mental disorder
predisposed him to the commission of criminal sexual acts. He found that
appellant lacked volitional and emotional control and there was “no evidence
to suggest that he has gained insight or has made efforts to change his
behavior.” Flinton also noted that appellant was not participating in
treatment, so he could not be part of the sexual offender conditional release
program, which would allow the evaluators to observe his behavior in the
community.
Flinton also opined that appellant continued to pose a serious well-
founded risk to the community. He noted that sexual recidivism often goes
down markedly after age 60, but appellant, at age 52, was still “well above
7
the average risk for sexual re-offense.” Using the Static-99R, he scored
appellant as a 6, in the category of “well above average risk.” He also opined
that appellant was unlikely to participate in treatment if released.
Flinton did not diagnose appellant with any psychotic disorder, because
he felt he could not fully assess appellant without an interview. Flinton
acknowledged that appellant had not recently broken any rules at the
hospital, but noted that appellant was under “pretty close supervision” and
did well in the custodial environment. Flinton also testified that while in
prison appellant “had a long list of rule violations including mutual combat.”
He also noted that appellant was not taking any medication and had
instances where he was “somewhat verbally aggressive. He talks to himself.
He seems disorganized.” Flinton testified that appellant demonstrated
impulsive behavior while out of custody, including failing to learn from
experience and respond to consequences, and that treatment and proper
community integration would be key to reducing appellant’s risk.
C. Dr. Korpi
Dr. Douglas Korpi, forensic psychologist, testified that he had
completed approximately 1,300 SVP evaluations since 1997. He evaluated
appellant in 2018, 2022, and 2023. He too was limited to appellant’s file, as
appellant refused to be interviewed. Korpi also talked to staff at Coalinga
regarding appellant.
Korpi diagnosed appellant with ASPD and schizophrenia. He described
appellant as a “high functioning schizophrenic.” He found that appellant had
volitional or emotional incapacity that predisposed him to criminal sexual
acts, thus meeting the second SVP criterion. He testified that it was “some
combination of [appellant’s] antisocial orientation and schizophrenia that
disallows himself the control necessary to resist his baser impulses.”
Regarding appellant’s conduct at Coalinga, he testified that appellant had
“self-control most of the time,” and that the hospital was a helpful setting for
him, but that appellant “sometimes . . . just can’t help himself.” Korpi
expressed concern that upon release, appellant “would face some sort of
stressor and . . . once again become actively psychotic and act in an irrational
and imprudent . . . fashion as he has in the past.” He opined that appellant
would have benefited from the sexual offender treatment program at the
8
hospital, to learn coping strategies for triggers. Korpi agreed that ASPD by
itself rarely was sufficient to establish a predisposition to criminal sexual
acts. However, he concluded that this was one such rare case where
appellant was “so sexually preoccupied and so antisocial, [these] join up
together . . . to be predisposed to criminal sexual acts.”
Korpi assessed appellant using the Static-99R. He initially gave
appellant a score of a 5 or 6, but upon review of additional documents, he
changed the score to an 8. He opined that appellant would not seek
treatment if released. He also considered appellant’s receipt of the DVDs in
2022 as evidence of appellant’s continuing sexual desires. Korpi noted that
appellant’s risk level had improved from when he was first institutionalized,
based on the fact that he had not gotten in trouble in the past 10 years, had
held a job, and was older. But even taking those factors into account, he
believed appellant met the criteria for an SVP.
On cross-examination, Korpi testified that there was no “evidence that
[appellant] is currently manifesting sexually inappropriate behavior,” but
that “when he’s predisposed, a predisposition never leaves you.” He opined
the link between schizophrenia and sexually violent offenses is the lack of
good judgment and self-control.
III. Defense evidence
A. Dr. Malinek
Dr. Hy Malinek, a clinical forensic psychologist, also testified for the
defense in appellant’s first trial. He has been a member of the state SVP
expert panel for 26 years and has done close to 1,000 SVP evaluations.
Malinek met and spoke with appellant twice in 2009 and once in 2013, but in
each instance appellant declined to be interviewed.
Malinek diagnosed appellant with ASPD and schizophrenia. He opined
that appellant had a weaker form of ASPD, noting that his behavior had
improved substantially in the past 10 years. Appellant was quiet, kept to
himself, “engages in weird behavior sometimes,” and did not “relate to anyone
much,” but showed no evidence of aggression. Malinek did not believe that
the ASPD diagnosis established a predisposition to committing sexually
violent criminal offenses. He opined that appellant previously met the SVP
criteria in his 20s and early 30s, but had “aged out of it.” He explained that
9
there was no evidence for the past 15 years of “sexual preoccupation and
aggression or misconduct or inappropriate behavior” by appellant. Malinek
also opined that if appellant’s schizophrenia were accompanied by sexual
perversion “we would have had some evidence of it.”
Malinek administered the Static-99R and gave appellant a score of 6.
He explained that score was “above average” and put appellant into a group
where about 20 out of 100 people would reoffend. Despite this risk
assessment, he opined that appellant did not have a mental disorder
currently that predisposed him to commit a sexually violent offense. He
testified that appellant was “fragile and frail and has a major mental illness
and needs to be monitored. I don’t know that [the] SVP program at Coalinga
is the right place for him.”
On cross-examination, Malinek acknowledged that he wrote in his May
2023 report that appellant had a “powerful antisocial personality disorder”
and that men with “entrenched antisocial attitudes like [appellant] think
primarily of themselves” and disregard legal boundaries and the safety of
victims. He also agreed that an ASPD diagnosis could support an SVP
finding in rare cases. He opined that appellant’s case was “unique” because
he was diagnosed with both ASPD and schizophrenia. He explained that it
was unusual to have both “major mental illness and a history of sexual
offenses. [Appellant’s] behavior has been weird.” He stated that appellant
was difficult to diagnose, and the doctors disagreed as to his diagnoses. He
doubted that appellant would seek treatment outside of the hospital.
Malinek also admitted that he had testified in 2015 that appellant was
violent and dangerous, but he believed appellant was less dangerous now.
He opined that appellant “needs help in monitoring and assistance by the
state,” and it was possible that appellant could become dangerous and act out
inappropriately again, but he did not believe appellant met the SVP criteria.
Malinek previously testified that evidence of sexual preoccupation could
include watching pornography all the time. He acknowledged several
instances in the record reporting that appellant was watching pornography at
Coalinga, including a nursing report from November 2020 stating that
appellant was watching pornography all day.
10
B. Dr. North
Psychologist Dr. Christopher North testified for the People at
appellant’s first trial. He had performed close to 2,000 SVP evaluations since
1995. He evaluated appellant six times, beginning in 2009. He based his
evaluations on review of his records, as appellant again declined an
interview.
North diagnosed appellant with ASPD and schizophrenia. Even
though it had improved over the last five to 10 years, North opined that
appellant’s ASPD currently predisposed him to commission of sexually
violent criminal offenses. He did not believe the same was true of appellant’s
schizophrenia.
North gave appellant a score of 7 on the Static-99R. He concluded in
2015 that appellant met all three criteria to qualify as an SVP. However, as
of 2018, he concluded that over time appellant had been behaving well, had
no reported problems, no evidence of sexual preoccupation, and no sexually
inappropriate behavior. As a result, he opined that appellant was no longer
likely to commit a sexually violent offense. North still believed that appellant
posed “some” risk and had some concerns, but he did not think appellant was
likely to re-offend.
North acknowledged that it was not likely that appellant would seek
treatment upon release. He also testified that appellant could have reduced
his risk of reoffending if he participated in treatment. He noted that while
appellant did well in the structured hospital setting, if released into the
community, appellant could experience increased stress, which could result in
“more antisocial behavior. He’s gonna get angry. He might explode.”
North admitted that he had not previously seen the nurse’s note from
2020 reporting that appellant “spends the majority of time in the dorm
watching porn.” Regarding the DVDs, he agreed that it was relevant that
appellant wanted to keep them as it indicated information about his sex
drive. The fact that “teen” was in the title was “somewhat concerning” and
related to the predicate crimes. It also demonstrated poor judgment. North
also noted that appellant did not think he had a problem with sex offending.
11
C. Piatt
Jennifer Piatt, a clinical social worker at Coalinga, testified that
appellant had been a patient on her unit for the past 5 months. She reported
that appellant was “very well-behaved,” “low-key,” and “very polite to staff.”
She also testified that he “interacts in a social manner with peers.” She was
not aware of any behavioral incidents involving appellant.
DISCUSSION
Appellant contends that there was insufficient evidence to establish
beyond a reasonable doubt that he was an SVP. Specifically, he argues that
the People’s experts relied only on his past conduct and therefore lacked a
sufficient basis to conclude that he currently suffered from a mental disorder
that predisposed him to commit future sexually violent offenses or that he
posed a serious and well-founded risk of sexually reoffending, both of which
are required for continued commitment as an SVP. We conclude that the
record contains substantial evidence to support the jury’s finding.
I. Legal Principles
As noted earlier, to commit a defendant as an SVP, the People must
prove three elements beyond a reasonable doubt: “(1) [defendant’s] conviction
of a ‘sexually violent offense’; (2) a diagnosed mental disorder that makes [the
defendant] a danger to the health and safety of others; and (3) the mental
disorder makes it likely the defendant will engage in ‘sexually violent
criminal behavior.’” (White, supra, 3 Cal.App.5th at p. 448; § 6600, subd.
(a)(1).) Appellant challenges the sufficiency of the evidence supporting the
second and third elements.
A person is likely to engage in sexually violent criminal behavior if,
“because of the person’s diagnosed mental disorder, he or she currently
presents a substantial danger—that is, a serious and well-founded risk—of
criminal sexual violence. . . .” (People v. Superior Court (Ghilotti) (2002) 27
Cal.4th 888, 895.) Evidence of sexually violent behavior occurring while the
offender is in custody is not required. (§ 6600, subd. (d); People v. McCloud
(2013) 213 Cal.App.4th 1076, 1090.)
As with any challenge to the sufficiency of the evidence, we review the
entire record in the light most favorable to the verdict to determine whether
substantial evidence supports the SVP finding. (People v. Mercer (1999) 70
12
Cal.App.4th 463, 466.) “[T]his 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. Poe
(1999) 74 Cal.App.4th 826, 830.) In particular, we do not reassess the
credibility of experts or reweigh the relative strength of their conclusions.
(Ibid.) “Reversal for insufficiency of the evidence is warranted only if it
appears that ‘“upon no hypothesis whatever is there sufficient substantial
evidence to support [the judgment].”’” (People v. Orey (2021) 63 Cal.App.5th
529, 561.)
“A single psychiatric opinion that a person is dangerous because of a
mental disorder constitutes substantial evidence to justify the extension of
commitment.” (People v. Williams (2015) 242 Cal.App.4th 861, 872.) But
“‘expert medical opinion evidence that is based upon a “‘guess, surmise or
conjecture, rather than relevant, probative facts, cannot constitute
substantial evidence.”’’” (People v. Redus (2020) 54 Cal.App.5th 998, 1011.)
II. Analysis
Appellant argues there was insufficient evidence he currently poses a
risk of committing further sexually violent offenses and that the People
improperly relied primarily, if not solely, on the decades-old evidence of his
predicate crimes. We disagree.
All five of the experts at trial agreed that appellant suffered from
ASPD and four of the five, including one defense expert, opined that
appellant’s ASPD predisposed him to commit sexual offenses. This was
substantial evidence that the second criterion for an SVP was met.
Appellant primarily focuses his challenge on the third criterion,
arguing there was insufficient evidence that he currently presents a serious
and well-founded risk of committing violent sexual offenses. Appellant
contends that evidence of his past sexual offenses is irrelevant to his risk of
re-offense. We disagree. To the contrary, such evidence is highly probative of
whether he is “likely to engage in sexually violent behavior if released.”
(People v. Hubbart (2001) 88 Cal.App.4th 1202, 1234.) Moreover, the experts
testified that they based their assessment of appellant’s likelihood of
recidivism not just on the crimes themselves, but the fact that appellant
committed the second offense shortly after his release from prison,
13
demonstrating his inability to control his impulses or to learn from past
conduct. The People’s experts also based their risk assessments on evidence
that appellant continued to have sexual desires, including his receipt of
DVDs involving teen pornography and observations by staff that appellant
watched pornography at the hospital. While appellant points out that this
conduct did not violate hospital rules, the experts were entitled to consider it
as evidence supporting a finding that appellant continued to pose a risk of
sexual recidivism if released.
We also find it critical that all five experts used structured risk
assessment tools, including the Static-99R, which resulted in scores placing
appellant in the “above average” to “well above average” category for risk of
reoffending. Appellant does not challenge any of the experts’ qualifications or
their use of these assessment tools. These tools have been shown to
reasonably predict a person’s risk of violence and are “more reliable than
unstructured clinical judgment.” (People v. Jenkins (2023) 95 Cal.App.5th
142, 158 (Jenkins)(conc. opn. of Buchanan, J.).) The unanimous use of these
tools, accompanied by thorough expert testimony regarding how the scores
informed their opinions, constitutes substantial evidence that appellant
posed a substantial risk of sexual violence if released.
We also reject appellant’s contention that the record contains no
relevant evidence of his conduct after he was committed to the hospital in
2009. It was undisputed that appellant failed to seek treatment for his
mental disorders, and even defense expert North agreed that such treatment
could have reduced the risk of reoffending. It was also undisputed that
appellant was unlikely to seek treatment if released and that the pressures
in the community were likely to be more challenging than in the structured
setting of the hospital. The People’s experts also relied on their assessment
of appellant’s demonstrated lack of empathy and remorse, failure to learn
from experience, lack of social engagement, volitional and emotional
impairment, and his denial of his sexual offense history as relevant risk
factors when assessing the likelihood he would reoffend. Although some
evidence suggested that appellant’s behavior had improved while at
Coalinga, the experts cited instances where he yelled at and threatened staff
and exhibited symptoms of hallucinations or delusions. Moreover, “[t]he fact
14
that defendant has not misbehaved in a strictly controlled hospital
environment does not prove he no longer suffers from a mental disorder that
poses a danger to others.” (People v. Sumahit (2005) 128 Cal.App.4th 347,
353 (Sumahit).) Although appellant attempts to dismiss the evidence of more
recent incidents as “innocuous” or irrelevant, we do not reweigh the evidence
on appeal. (People v. Poe, supra, 74 Cal.App.4th at p. 830.) In particular,
appellant’s refusal to undergo treatment was highlighted as a concern by
most of the experts at trial. While alone insufficient to establish a
substantial risk, it was properly considered by the experts as a factor
strongly weighing in favor of their conclusion that appellant met the criteria
for an SVP. (See Sumahit, supra, 128 Cal.App.4th at pp. 354-355 [“A
patient's refusal to cooperate in any phase of treatment may . . . support a
finding that he ‘is not prepared to control his untreated dangerousness by
voluntary means if released unconditionally to the community.’”].)
Appellant argues his case is similar to several recent cases in which
appellate courts reversed Mentally Disordered Offender commitment orders3
after concluding the dangerousness finding was based solely on violence
occurring decades earlier, People v. Johnson (2020) 55 Cal.App.5th 96(Johnson), People v. Cheatham (2022) 82 Cal.App.5th 782 (Cheatham), and
Jenkins, supra, 95 Cal.App.5th 142. Appellant’s reliance on these cases is
misplaced. In Johnson, the appellate court found substantial evidence did
not support the trial court’s conclusion that the patient, who was 69 years old
and diagnosed with schizophrenia that was partially in remission,
represented a substantial risk of harm to others. (Johnson, supra, 55
Cal.App.5th at pp. 108-109.) The court found the record was devoid of
evidence that the defendant’s decompensation in an unsupervised setting
would lead to violence. To the contrary, the evidence showed that the
defendant had spent 11 years in the community under conditional release,
and had stopped taking his medication for several months, with “no evidence
of a single violent—or even aggressive—incident” despite an increase in his
symptoms of schizophrenia. (Ibid.)
3
Commitment of a mentally disordered offender requires a finding the
person poses “a substantial danger of physical harm to others” because of his
or her mental disorder. (Pen. Code §§ 1026.5, subd. (b)(1), 2972, subd. (c).)
15
In Cheatham, the charges that led to the defendant’s commitment
involved an escape from criminal custody after he heard voices that led him
to believe the police planned to shoot him. (Cheatham, supra, 82 Cal.App.5th
at p. 786.) Cheatham was eventually placed on supervised release, but then
returned to a state hospital commitment four years later, after “a number of
rule violations.” (Ibid.) He was diagnosed with schizoaffective disorder and a
separate substance use disorder and began taking a medication in the
hospital that largely stabilized his symptoms. (Ibid.) At trial, the
prosecution presented testimony from two psychologists who acknowledged
that they had never seen Cheatham hurt or threaten anyone. Nevertheless,
they opined that he posed a substantial physical danger to others if released
because he could discontinue his medications, which could lead to increased
delusions and an inability to control his “dangerous behavior.” (Id. at pp.
787-788.) On appeal, the court accepted “that a substantial risk exists that if
Cheatham were released from commitment his compliance with his
treatment plan would decrease and his mental health symptoms would
increase.” (Id. at p. 790.) However, the record was devoid of any evidence
that Cheatham had ever engaged in behavior dangerous to others because of
his mental disorder, even during the period of his release. Thus, the
appellate court found that the experts’ speculation that he might be unable to
control such dangerous behavior in the future was not supported by
substantial evidence. (Id. at pp. 790-791.)
In Jenkins, the defendant was convicted of attacking her landlord with
a hammer, fracturing his skull, and imprisoning him on her apartment floor
for six hours. (Jenkins, supra, 95 Cal.App.5th at pp. 145-146.) She was
subsequently transferred from prison to a state psychiatric hospital for
treatment and diagnosed with schizoaffective disorder (bipolar type). (Id. at
p. 146.) In 2022, the court granted a petition to extend her commitment as a
mentally disordered offender, finding that Jenkins represented a substantial
danger of physical harm to others because of her severe mental disorder.
(Id. at p. 149.) The appellate court reversed, finding no evidence in the record
that Jenkins had ever been violent or dangerous other than her commitment
offense 23 years earlier. (Id. at p. 153.) The court also noted that the
People’s experts failed to address Jenkins’ age or declining health, even
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though at the time of the hearing she was almost 70 years old, her health was
“starting to go downhill,” and she had recently begun using a wheelchair due
to decreased mobility. (Id. at p. 153.) On those facts, the court found that the
experts’ belief that Jenkins should not be released because of her lack of
insight as to her mental illness and the violence of her offense of conviction
was insufficient and their opinion that she posed a continued risk of violence
was conclusory speculation. (Id. at pp. 155-156.)
Unlike these cases, appellant was not physically limited in his ability to
potentially commit further sexual offense, nor had he demonstrated that he
could function on release without incident. Moreover, none of the trial courts
in those cases relied upon the structured professional judgment of a qualified
expert who applied a structured risk assessment instrument. (See Jenkins,
supra, 95 Cal.App.5th at pp. 155–156; Cheatham, supra, 82 Cal.App.5th at p.
794; Johnson, supra, 55 Cal.App.5th at p. 109.) As such, the appellate courts’
rejection of expert opinions based only on past crimes or on speculative
assertions of future risk is inapplicable here.
We conclude that the evidence was sufficient to support the conclusion
that appellant suffers from a diagnosable mental disorder that makes it
likely he will engage in sexually violent criminal and predatory conduct if
released. We therefore affirm the jury’s finding that appellant met the
statutory criteria of an SVP.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, P.J. MORI, J.
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