People v. Myers CA5

Filed 5/12/21 P. v. Myers CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080177
Plaintiff and Respondent,
(Kern Super. Ct. No. FP004465A)
v.
DAVID EARL MYERS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Gregory A.
Pulskamp, Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P.J., Levy, J. and Detjen, J.
INTRODUCTION
Appellant David Earl Myers1 was recommitted to the Department of State
Hospitals as a mentally disordered offender (MDO) after a bench trial. On appeal, her
appellate counsel has filed a brief that summarizes the facts with citations to the record,
raises no issues, and asks this court to independently review the record to determine
whether there are any arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders).
We dismiss the appeal for the reasons explained below.
FACTUAL AND PROCEDURAL BACKGROUND
In August 1999, appellant (born 1952) approached two male minors who were
playing near a church and asked whether they needed help. The minors ignored her.
Appellant patted her groin and told one minor that she wanted the minor to touch
appellant’s “private part.” As the minors started to walk away, appellant told them, “I am
going to come back and take you away tonight.” The minors ran home, but appellant
followed them on a bicycle and again said, “I am going to take you.” The mother of one
of the minors saw appellant, called the police, and appellant was arrested shortly
afterwards.
In 2001, appellant was sentenced to six years in prison after pleading guilty to
annoying or molesting a child under the age of 18 years (Pen. Code, § 647.6,
subd. (c)(1)).2
In October 2007, appellant was certified by the Board of Parole Hearings for
treatment under section 2970.
1According to appellate counsel, appellant “currently identifies as female and uses
the name Susie. Since the case was filed under her old name, appellate counsel has
continued to use it in this brief but will refer to appellant using female pronouns.” This
opinion will similarly refer to appellant using female pronouns.
2 All further statutory references are to the Penal Code unless otherwise stated.
2.
In August 2008, after a bench trial, the court found appellant was a mentally
disordered offender and committed her to the Department of State Hospitals (DSH).
Appellant was admitted to Coalinga State Hospital.
Thereafter, the Superior Court of Kern County conducted annual hearings from
October 15, 2008, to October 15, 2019, and determined appellant met the criteria to
extend her commitment each year.
The current petition
On or about July 19, 2019, a petition was filed in the Superior Court of Kern
County pursuant to section 2970 to again extend appellant’s commitment as an MDO.
On October 9, 2019, appellant’s attorney advised the court that appellant was
going to waive her right to a jury trial, she had a jury trial two years earlier, and she
understood the process. The court advised appellant that she had the right to a jury trial
on the petition for recommitment. Appellant personally waived her right to a jury trial,
and the court conducted a bench trial.
Evidence introduced at the hearing on the current petition
Dr. Zahida Azam, a psychiatrist at Coalinga State Hospital, testified appellant was
previously diagnosed with bipolar disorder. Appellant was compliant with orders for
psychotropic medications and took Abilify, an antipsychotic medication for bipolar
disorder, and Mirtazapine, an antidepressant used to encourage sleep.
Dr. Jyoti Rajpoot had been appellant’s psychiatrist since January 2019 and saw
appellant monthly. Dr. Rajpoot testified that, in addition to the psychotropic medication,
appellant also took medication for a heart condition, cholesterol, anticlotting medication,
and hormone therapy for her transitioning.
Richard Madero, a social worker at Coalinga State Hospital, was a member of
appellant’s treatment team. Madero worked with appellant to develop skills she needed
for community integration, including her discharge plan. Madero testified appellant was
unwilling to participate in discharge planning because it conflicted with her work
3.
schedule at the hospital, and she needed to earn money. Appellant said she would take
discharge planning if it was offered on Fridays or Saturdays, but that was not possible.
Madero enrolled appellant in the sex offender treatment, but she never attended any
sessions. Madero explained that the staff cannot force someone to attend the sessions.
Appellant’s team determined she had not met the discharge criteria.
Appellant’s possession of child pornography
The district attorney introduced evidence about an incident in 2015, when
appellant was found in possession of and watching child pornography.
Thomas Hall testified that he was a patient at the hospital and was convicted of
oral copulation of a minor in 2000. It was stipulated that Hall also had prior convictions
for three counts of violating section 288a in 1993 and two counts of violating section 290,
subdivision (g)(2) in 2000.
Hall testified that at the hospital, he was the chair of the unit advisory council, that
was a leadership position to maintain peace, advocate for patients, and act as an
intermediary between the staff and the patients.3
Hall testified that on August 5, 2015, he was housed in the same unit as appellant.
He was looking for another patient and walked by appellant’s room. Hall testified
appellant was watching a video on a DVD player. Hall knew appellant had recently
earned enough money to purchase the DVD player. Hall testified that he saw the screen
for about 40 seconds, and believed the DVD was showing nude children engaging in
lewd and sexual behavior. Hall did not believe appellant saw him. Hall was taken aback
by what he saw because such contraband was not commonly found in the unit. He
immediately notified a staff member.
3Hall testified that at the time of appellant’s trial, he had completed all required
counseling and services, he had been ordered released, and he was awaiting placement in
the community.
4.
Luis A. Solorio, a psychiatric technician at the hospital, testified that appellant
resided in his unit with other MDOs. It was standard protocol to search patients’ rooms
for contraband at least once a week, and he had searched appellant’s room on previous
occasions.
Solorio testified Hall approached him in the unit’s dayroom and advised him about
what he had seen. Solorio immediately went to appellant’s room, where appellant was
removing a gold colored disc from a DVD player. Solorio asked appellant what was on
the disc. Appellant said she did not know, the disc was not working, and she needed a
new DVD player.
Solorio testified patients were allowed to have DVDs and order discs
manufactured and purchased from certain catalogues approved by the hospital. They are
not allowed to have blank discs. Solorio could see that the disc did not have a movie title
printed on it.
Solorio did not touch or play the disc, contacted the hospital’s Department of
Police Searches, and requested officers to respond to appellant’s room. Solorio advised
appellant that the officers were going to seize the disc. Appellant became upset and said
the staff was not supposed to search her property and take DVDs away from her. She
said she was going to report them to Sacramento.
Officers Pizarro and Alvarez responded to appellant’s room. Solorio advised them
about the situation, and that the disc might contain child pornography. Alvarez seized the
gold DVD disc, the DVD player, and additional DVDs that were in appellant’s room.
Officer Pizarro spoke to Hall about his observations. Based on Hall’s report,
Pizarro determined the unlabeled gold disc was contraband because it was not a
manufactured DVD. Pizarro also spoke to appellant, who said the gold disc was left on
her bed, she thought it contained movies, and she did not know who it belonged to.
Appellant said she tried to watch the disc, but it did not work on her DVD player.
5.
Sergeant Jerry Duvall, also with the hospital’s police unit, attempted to speak to
appellant about the incident, but she declined to answer questions.
Sergeant Duvall obtained a search warrant to examine the gold DVD disc seized
from appellant’s room using scanning software. The DVD was not within a commercial
sleeve. Duvall recognized the titles on multiple files and folders from recent
investigations as likely being child pornography. Duvall testified there were 84 video
files on the gold disc that constituted child pornography and depicted children, primarily
boys, engaging in sexual acts with other boys and adult males. There was no contraband
on the other discs seized from appellant’s room, which were in separate sleeves and
consisted of commercial movies and music.
Expert testimony
Dr. Robert Wagner, a clinical psychologist for the DSH, first evaluated appellant
in 2014 and has done so every year since. Dr. Wagner again evaluated appellant in
February 2019.
Dr. Wagner diagnosed appellant with pedophilic disorder and bipolar disorder.
Dr. Wagner testified that appellant continued to take medication to deal with bipolar
disorder, and the disorder was under control.
Dr. Wagner considered pedophilia disorder to be a lifelong mental disorder that
would not go into remission, and the goal was to help people manage their urges and
fantasies. If a pedophiliac says that he or she no long has such urges and fantasies, the
pedophilia disorder remains a diagnosis. Dr. Wagner considered appellant’s pedophilia
restrained only because of her custodial status in a child-free environment at the state
hospital, and believed she continued to suffer from pedophilia disorder.
When Dr. Wagner first interviewed appellant in 2014, she said that she had been
in sex offender treatment but had been kicked out. She claimed not to have a pedophilic
disorder, she was only interested in men or women her age or older, and she had never
6.
been interested in children. Dr. Wagner testified that appellant’s claim that she had no
interest in children was contradicted by the police reports and other documents.
In 2015, appellant told Dr. Wagner that she was in sex offender treatment, and she
did not want to reoffend. Appellant showed her sex offender treatment workbook, where
she acknowledged that she was willing to talk about her crimes, her drug and alcohol use,
and that she was trying to work on these things. Dr. Wagner was of the impression that
appellant was genuinely trying to work on her mental health issues.4
Dr. Wagner did not recommend appellant’s release in 2016 but was encouraged by
her stated intent to make progress and work on her problems.
In 2017, appellant told Dr. Wagner that she quit attending the sex offender
treatment program because she was not getting anything out of it; she wanted to be happy
and not waste her time looking for kids. Appellant discussed having been married to a
woman, they went on a honeymoon in Las Vegas, and they had a young daughter who
was living with her mother. Dr. Wagner had been unable to determine whether
appellant’s claims were real or delusional.
In 2018, appellant told Dr. Wagner that she stopped attending group therapy
because she did not like the way it was being run; she claimed they had “introduced
gangs” into the group. Appellant said she no longer had any desire for sex because of her
age and did not have any interest in children. Dr. Wagner did not believe appellant’s
statements because pedophilia is a lifelong disorder and never goes into remission.
Instead, a pedophiliac will struggle to contain and control his or her urges based on
learned coping mechanisms.
In February 2019, appellant told Dr. Wagner that she did not need sex offender
treatment because she was not a pedophile, and she had never been interested in children.
4 It was in August 2015 that appellant was seen watching and found in possession
of the disc that contained child pornography and claimed she did not know what was on
the disc and it would not work on her DVD player.
7.
Dr. Wagner asked appellant about her conviction, and appellant claimed that the boys
took her actions wrong; she was only trying to help them; and the police lied in their
report. Appellant also said that her substance abuse was involved in her criminal
convictions, and she had previously completed a substance abuse treatment program at
another facility. Dr. Wagner was concerned that appellant failed to attend any
maintenance programs because it was easy to relapse upon being released.
Dr. Wagner testified that he hoped appellant would admit her problem and seek
treatment, and he was concerned because she failed to do so. Dr. Wagner did not believe
appellant was ready for participation in a conditional release program. Appellant’s score
on the Static-99R was an eight, and that indicated appellant had a predicted recidivism
rate for reoffending of around 35 percent, with a range of 30 to 40.1 percent over five
years; that was in the above-average risk range. Appellant’s attendance and completion
of sexual offender therapy would help reduce her risk range.
While appellant’s bipolar disorder appeared to be controlled by medication, Dr.
Wagner also wanted appellant to address her pedophilia disorder. Dr. Wagner was not
aware of any medication that could stop someone from being a pedophile. Appellant’s
pedophilia was still active, she still represented a substantial danger of physical harm to
others, and her repeated denials were not helpful. Dr. Wagner wanted appellant to be
actively engaged in or completing sex offender treatment given her repeated denials of
her “well-documented history of attraction to children and crimes involving that that
she’s done prison terms for.” Dr. Wagner concluded appellant was not ready to be
discharged and should be recommitted.
The court’s ruling
On October 15, 2019, after conducting the bench trial, the court granted the
petition to extend appellant’s commitment for one year, up to October 15, 2020. The
court acknowledged that appellant was in compliance with all medications, and there was
no evidence that appellant committed any acts of physical violence within the prior year.
8.
The court found it “in counterbalance” that appellant had not complied with the
other parts of her treatment program, notably her failure to meaningfully participate in the
sex offender treatment program, discharge planning, and programs to maintain her
sobriety. The court found appellant’s failure to comply with treatment was “very
significant” and caused “great concern.” The court additionally cited appellant’s
possession of child pornography, that Hall saw appellant watching the child pornography
on the DVD player, and appellant’s denial that she knew what was on the disc. The court
noted Dr. Wagner’s testimony that appellant repeatedly denied she suffered from
pedophilia and was highly at risk for reoffending.
The court found beyond a reasonable doubt that appellant had a severe mental
disorder; her severe mental disorder is not in remission; she represented a substantial
danger of physical harm to others; and the court recommitted appellant to the Department
of State Hospitals for continued treatment at Coalinga State Hospital, up to October 15,
2020.
On October 23, 2019, appellant timely filed a notice of appeal.
DISCUSSION
As noted above, appellant’s counsel has filed a Wende/Anders brief with this court
and requests this court independently review the entire record on appeal in this case.
The brief also includes the declaration of appellate counsel indicating that counsel
advised appellant of the nature of this brief, her right to file a supplemental brief, that in
the supplemental brief she may bring to the court's attention any issues she believes
deserve review, that present counsel will send appellant a copy of the record on appeal
for the purpose of preparing a supplemental opening brief, and appellant may ask the
court to relieve present counsel.
By letter on August 7, 2020, we invited appellant to submit additional briefing.
To date, she has not done so.
9.
In Conservatorship of Ben C. (2007) 40 Cal.4th 529, the California Supreme Court
concluded that Wende and Anders procedures do not apply to conservatorship
proceedings under the Lanterman-Petris-Short Act (Welf. & Inst.Code, § 5000 et seq.).
Subsequently, the Second District Court of Appeal held that, under the rationale of Ben
C., the Anders/Wende review procedures do not apply to postconviction commitments
under the MDOA. (People v. Taylor (2008) 160 Cal.App.4th 304, 312 (Taylor).)
Appellate counsel acknowledges Taylor, disagrees with it, but concedes it now
appears to be well-established California law. We find the reasoning in Taylor
persuasive and apply it here.
We have reviewed the brief submitted by appellant’s appointed counsel. We
decline to exercise our discretion to review the record for error. Competent counsel has
represented appellant in this appeal.
DISPOSITION
The appeal is dismissed.
10.