People v. Andrade CA6

Filed 8/16/22 P. v. Andrade CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or ordered published for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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048701
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS031532A)
v. ORDER MODIFYING OPINION
AND DENYING PETITION FOR
TONY ANDRADE, REHEARING
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
BY THE COURT:
It is ordered that the opinion filed herein on July 26, 2022, be modified as follows:
On page 17, at the end of the first sentence in the first partial paragraph, insert the
following footnote:
In a petition for rehearing, Andrade points out that the DSM-5’s definition of
pedophilic disorder is limited to an interest in prepubescent children and that Sidhu’s use
of “pubescent” is inaccurate rendering his expert opinion entirely unreliable and
mandating reversal. We disagree. Whether Sidhu misspoke or there was a transcription
error, Simon accurately described pedophilic disorder as an abiding sexual interest in
prepubescent children and diagnosed Andrade with pedophilic disorder. The testimony
of a single mental health expert witness is sufficient to support a finding that a person
suffers from a severe mental disorder. (People v. Bowers (2006) 145 Cal.App.4th 870,
879.)
On page 17, delete the last sentence in the first partial paragraph and replace it
with the following sentences:
While there may have been anecdotal evidence of T.D.’s physical development, it
is undisputed she was 11 years old at the time of her encounter with Andrade and thus
well within the DSM-5’s guideline of 13 years or younger. The experts’ diagnoses of
Andrade with pedophilic disorder based on his interaction with T.D. are not entirely
conjectural.
There is no change in the judgment. Appellant’s petition for rehearing is denied.
2
___________________________________
Wilson, J.
______________________________________
Bamattre-Manoukian, Acting P.J.
______________________________________
Danner, J.
People v. Andrade
H048701
Filed 7/26/22 P. v. Andrade CA6 (Unmodified Opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048701
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS031532A)
v.
TONY ANDRADE,
Defendant and Appellant.
After a jury determined that defendant Tony Andrade met the criteria describing a
sexually violent predator (SVP), as defined by the Sexually Violent Predator Act (SVPA)
(Welf. & Inst. Code, § 6600 et seq.),1 the trial court committed him to a state hospital for
an indefinite term.
On appeal, Andrade argues that there was insufficient evidence to support the
jury’s finding that he has a diagnosed mental disorder because the expert witness
testimony that one or more of Andrade’s victims were prepubescent was entirely
speculative.
For the reasons explained below, we disagree and will affirm the order finding that
Andrade meets the criteria describing an SVP and committing him to the California
Department of State Hospitals.
1 Unspecified statutory references are to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural history
In August 2003, Andrade pleaded guilty to one count of sexual penetration with a
foreign object by means of force, violence, duress, menace, or fear (Pen. Code, § 289,
subd. (a)(1); count 2) and no contest to two counts of first degree burglary (Pen. Code,
§ 459; counts 1, 4). Andrade also admitted the allegation that he committed count 1
while he was on bail (Pen. Code, § 12022.1). In October 2003, the trial court sentenced
Andrade to 16 years in prison.
On October 28, 2016, the district attorney filed a petition seeking to have Andrade
committed as a sexually violent predator under section 6600 et seq. On December 17,
2020, a jury found that Andrade met the criteria of a sexually violent predator as defined
in section 6600, subdivision (a), and the court ordered Andrade committed to the
California Department of State Hospitals (DSH) for an indeterminate term.
Andrade timely appealed.
B. Facts
1. The prosecution case
a. The sexual offenses
i. November 14, 2002 incident
On November 14, 2002, Salinas Police Officer Cesar Trujillo responded to a
report of a sexual assault. Trujillo spoke with the victim, 15-year-old Irma Doe, who
said that she was assaulted by Andrade at approximately 1:30 a.m. In a recorded
interview at the police station, which was played for the jury, Andrade said Irma was
friends with his sister and he had attended her quinceañera. 2 Andrade thought Irma was
“good lookin[g]” but he had never asked her out or talked to her about being in a
relationship. On the night in question, Andrade “had a couple beers” and ended up
2 Irma turned 15 in January 2002. Andrade was born in April 1982 and was 20 at
the time of the assault.
2
outside Irma’s house. Andrade said he knocked on the door but no one answered. 3 When
he tried the doorknob, it opened so Andrade went inside.
Andrade went into Irma’s bedroom and when she woke up, he told her not to yell.
Andrade thought he wanted to have sex with Irma and he got on top of her “from the
waist” up. He began kissing her and grabbing her breasts. Irma was telling him to stop
and saying no. Andrade put his hand between her legs and inserted a finger into her
vagina. Irma was crying, said he was hurting her, and told him to leave. Andrade was
thinking to himself, “ ‘What am I doing?’ ” and “ ‘[T]his is not the way you do things.’ ”
Andrade eventually left, but soon came back to Irma’s window to apologize to her.
Trujillo testified that when he spoke to Irma she looked “like a normal
15-and-a-half year old” in terms of her physical development and had “clearly gone
through puberty.” He then said that she “was a child” and in his recollection “somewhat
underdeveloped,” “short,” and appeared to be “younger, around 11.” However, Trujillo
did not include this information in his written report.
In January 2003, while Andrade was awaiting sentencing, defense counsel retained
Dr. James Eddy, a psychologist, to evaluate Andrade. Andrade told Eddy that he had
dated a 16-year-old when he was 17, and also dated a 17-year-old when he was 18.
Andrade did not have intercourse with either of these girls.
ii. April 14, 2003 incident
T.D. testified she was 11 years old and living in Salinas with her parents and three
brothers on April 14, 2003. T.D. was sleeping in her parents’ bed that night when she felt
someone shaking her arm and asking in a whisper if she could “go with him . . . to talk.”
At first, T.D. thought it was one of her brothers, but when she asked who it was, he said
3 Trujillo asked how loudly Andrade knocked and Andrade said “[l]ike medium.”
3
“ ‘It’s Tony.’ ”4 T.D. told him “No” and that he should “go back to where you came
from.” T.D.’s mother woke up and asked what was happening. T.D. said that it was
Andrade and her mother confronted him, asking what he was doing. Andrade stood up,
backed out of the door and left the house.
T.D. testified that, in April 2003, she looked “older” than 11 and her mother told
her she “develop[ed] pretty fast.” T.D. said she “was always a pretty curvy girl.”
Salinas Police Officer Justin Duval arrested Andrade on April 15, 2003, at
approximately 3:00 a.m. Duval conducted a recorded interview with Andrade, and that
interview was played for the jury.5 In that interview, Andrade said he did not know T.D.
but he “kn[e]w her from somewhere” and previously lived on the same street. Andrade
later told Duval he wanted to talk to T.D. about her sister whom he had dated “back in the
day.”
Andrade said he entered the house through the garage which was unlocked. He
went into the bedroom where T.D. was sleeping with her parents and tapped her on the
head to wake her. Andrade asked her to go with him to the living room to talk and told
her who he was. T.D.’s mother woke up and Andrade left.
Duval told Andrade he did not believe Andrade entered T.D.’s house just to talk to
her and asked Andrade what he “wanted to do with [T.D.].” Andrade replied, “I didn’t
go for her.” Duval pressed Andrade further, asking if he wanted to have sex with T.D.,
touch her, or kiss her, but Andrade denied each of those suggestions. Duval then said
4T.D. knew Andrade because he had dated her older sister when they were both in
high school. T.D.’s sister, who was 10 years older than her, was married and living in
Castroville at the time of the incident.
5 The transcript of the interview does not indicate what time it started, but at the
end of the transcript, Duval states that he is concluding the interview at “04:31 hours on
4/15/03.” The transcript then includes the following notation: “[End 39 minutes.]” We
presume therefore that the interview commenced at or around 3:52 a.m.
4
that he thought Andrade “wanted to have sex with [T.D.].” The following exchange took
place:
“[Duval]: [Y]ou [have] some kind of a problem that makes you do this, okay?
You get some kind of sexual urges, alright? And I think you were wanderin’ around
lookin’ for an open door. Lookin’ for some place to go into, alright? And you’re
thinkin’ about sex. Is that pretty much what’s goin’ on here, Tony?
“[Andrade]: Yeah, pretty much.
“[Duval]: Alright. When you found [T.D.] back there in the bedroom, and if
you’d had the opportunity to have sex with her, you would have done it. Am I right? I’m
right, huh, Tony?
“[Andrade]: Yeah.”
Andrade then denied that he intended to have sex with [T.D.] when he entered her
home, but his goal was to “see what I could find.” Duval said he did not believe that
explanation because there were things Andrade could have stolen in the house, but he
instead went into the bedroom where T.D. was sleeping. Duval again said that Andrade’s
“goal was sexual” and Andrade agreed.
Duval then said he did not believe that Andrade had only “done this twice.”6
Duval told Andrade that he knew “of some other incidents where there’s been girls that
have woken up and found people in their homes . . . just like last night” and Duval
believed that Andrade “might be involved in some of these other cases.” The following
exchange took place:
“[Duval]: I think this has happened more than twice. Is that correct?
“[Andrade]: . . . (inaudible) . . .
6 Duval was apparently also referring to the November 2002 assault of Irma.
5
“[Duval]: Come on Tony. You’ve been honest so far. You’ve been upfront.
Okay? I think this has happened more than twice. I think there’s been other times that
this has happened?
“[Andrade]: . . . (inaudible) . . .
“[Duval]: Pretty much? How many other times have you done it?
“[Andrade]: . . . (inaudible) . . . times.
“[Duval]: Three or four times? Has it always been young girls?
“[Andrade]: Yeah.”
Duval asked Andrade how long “this” had been going on and Andrade initially
said “[a] couple months.” When Duval said he knew it had been longer, Andrade
responded “[a] couple years.”
Duval then asked Andrade about the pipe that officers found in his pocket when he
was arrested and whether the white residue in that pipe would test positive as cocaine or
crank. Andrade said he did not know and that he found the pipe at work. Eventually,
Andrade said that he last used crank a couple of weeks before.
b. Expert testimony
i. Dr. Simon’s testimony
Dr. Eric Simon, a clinical and forensic psychologist employed by the DSH, was
appointed to conduct an SVP evaluation of Andrade. Andrade refused to be interviewed
by Simon, so Simon’s evaluation was based on his review of “the institutional staff and
recommendations summary [sic] from 2003; the abstract of judgment from 2003; and the
complaint from 2003 and the probation officer’s report . . . from 2003; RAP sheets and
the Salinas Police Department reports from . . . 2002 [and] 2003.”
Simon explained that there are three criteria for determining whether someone is
an SVP under the Welfare and Institutions Code: (1) “whether the individual has
committed or been convicted of a sexually violent criminal offense against one or more
victims”; (2) “whether the individual has a diagnosed mental disorder which predisposes
6
the person to the commission of sexual offenses”; and (3) “whether the individual is
likely to commit a new predatory sexually violent criminal offense.”
Simon testified that Andrade’s conviction for sexual penetration with a foreign
object by force or violence met the first criterion. The second criterion involves use of
the Diagnostic and Statistical Manual, Edition 5 (DSM-5) to determine whether Andrade
has a diagnosed mental disorder which predisposes him to commit sexual offenses.
Based on his evaluation, Simon diagnosed Andrade with four such disorders: pedophilic
disorder, other specified personality disorder with antisocial features, alcohol use
disorder, and stimulant use disorder.
Simon testified the DSM-5 defines “[p]edophilic disorder” as “a deviant sexual
arousal pattern to prepubescent children.” In making a diagnosis of pedophilic disorder,
evaluators “look for . . . some evidence of an enduring pattern of sexual deviant arousal
to prepubescent children.” This would consist of a “timeline of six months or longer of
interest, fantasies, urges or behaviors involving sexual activity with a prepubescent child
or children.” “[A]s a general guideline,” the DSM-5 provides that “prepubescent” refers
to children aged 13 or under.
Simon opined that, in this case, Andrade “tried to kidnap and intended to have sex
with” an 11-year-old, and when he was interviewed by police about that offense he
admitted “that he had committed three to four similar offenses over the previous two
years and that he needed help.” According to Simon, this was significant as it “provides
evidence of an ongoing sexual interest in children. This was not a one-time instance.
The other main relevance of this is him stating he needs help. That in my opinion
suggests some subjective evidence of his own sense of impairment.”
Simon further testified that pedophilic disorder could cause emotional or volitional
impairment, meaning that Andrade would have “a defective understanding or
appreciation of the consequences” of his behavior (i.e., emotional impairment) and
“difficulty in controlling” his behavior (i.e., volitional impairment). Simon opined that
7
Andrade’s emotional impairment “results in . . . empathy deficits” toward his victims,
and thus he responds inappropriately to “their fear and protest and resistance as he
demonstrated.” As to volitional impairment, Simon testified that “the strength of
[Andrade’s] sexually deviant urges . . . results in him lacking . . . sufficient cognitive
priority of the legal consequences of his illicit sexual behavior to prohibit him from
engaging in it.”
Simon described other specified personality disorder, as a “condition [which] . . .
has to do with the way a person relates in the world characterologically.” The word
“characterological” “refers to personality, a person’s basic disposition in the world, how
they tend to be predisposed to orient and act and think and feel.” Pursuant to the DSM-5,
other specified personality disorders are ones that do not perfectly fit into one of the other
“discrete personality disorders.” Simon’s diagnosis that Andrade suffers from another
specified personality disorder is based on Andrade’s criminal records and his records
while in custody, both in state prison and at Coalinga State Hospital. These records
indicated that Andrade has “a characterological disrespect for the rights of others and a
disregard for societal rules.” In Simon’s opinion, a patient who has both pedophilic
disorder and another specified personality disorder with antisocial features would be at
increased risk of committing new sex offenses, and the personality disorder increases the
risk that the patient acts out on a victim rather than, for example, using child
pornography.
Simon’s diagnosis that Andrade has alcohol use disorder is based on the “vast
amount of data in [Andrade’s] records indicating that he has had a problem of using
alcohol for much of his life.” While in custody, Andrade had been cited for making
alcohol in his room and was “often found to be intoxicated.” According to Simon,
although alcohol use disorder does not “predispose[] [Andrade] to the commission of sex
offense[s],” it is an “added risk factor” because it “tends to decrease impulse control and
decrease judgment.”
8
With respect to stimulant use disorder, Simon testified that Andrade “has used
stimulants . . . includ[ing] cocaine and methamphetamine over the course of his life.”
Because there is no evidence stimulants are available to Andrade at Coalinga State
Hospital, Simon opined that this disorder is in “institutional remission.” According to
Simon, stimulant use disorder is a risk factor for someone who has pedophilic disorder
because “stimulants, in particular methamphetamine, . . . tend to increase sex drive and
often . . . increase aggressiveness.” In the reports Simon reviewed, Andrade gave
conflicting statements about his use of methamphetamine at the time of the incidents with
the two victims and Simon was concerned that substance use could be a risk factor for
Andrade if he were released.
Simon testified that, in his opinion, Andrade has a diagnosed mental disorder that
predisposes him to commit criminal sex acts, specifically pedophilic disorder, and meets
“all of the criteria for SVP commitment.”
On cross-examination, Simon confirmed that the DSM-5’s definition of pedophilic
disorder uses a “general parameter” of children aged 13 or under “not because there’s a
strict age cutoff[, but] [i]t’s more of a determination of 13 being the normal age of
development for children.” Simon also agreed that there is variation in how children
develop at different ages and variability in how boys and girls develop.
In a hypothetical, Simon was asked to “assume [T.D.] was more developed than an
average 11-year-old,” and whether that would “lessen the impact of that element” in
supporting a diagnosis of pedophilic disorder. Simon responded, “In isolation in the
hypothetical it could, yes.”
ii. Dr. Sidhu’s testimony
Dr. Laljit Sidhu, a clinical psychologist and SVP evaluator for the DSH, was
appointed to conduct an SVP evaluation of Andrade. Because Andrade refused to be
interviewed, Sidhu’s evaluation was based on records of Andrade’s “sexual offense
history” such as “police reports, probation officer reports” as well as any records relating
9
to his “psychological history, if any” while in custody. After reviewing these records,
Sidhu diagnosed Andrade with pedophilic disorder and alcohol use disorder.
Sidhu testified that the DSM-5 describes “pedophilic disorder” as “a paraphilia
where the individual has a sexual interest, . . . urges, fantasies or some sort of behaviors
that are directed towards individuals that are generally 13 years of age or younger.”
There is a “temporal component” as well and the “urges and the behaviors . . . should
occur over around [sic] a six-month time period.” Sidhu said his diagnosis of pedophilic
disorder was supported by two comments Andrade made d uring his police interview
about the incident with T.D. First, Andrade “commented that he had done it before
which . . . implied multiple incidents.” Second, and more importantly in Sidhu’s opinion,
Andrade “indicated to the officers that he believed he needed help regarding these
behaviors which suggested . . . there was some recognition of a deviant sexuality
[involving young girls].”
Sidhu described how pedophilic disorder causes emotional and volitional
impairment through the patient’s “drive to fulfill those urges.” The patient’s “brakes
are . . . disconnected in a sense” and they do what a person “[n]ormally” would not do,
such as “engage in an act of child molestation.” As an example of emotional and
volitional impairment, Sidhu referenced what occurred with T.D., “an 11-year-old who is
sleeping with her parents in bed and he goes into this bedroom. [¶] . . . [¶] And, yet,
rather than backing away from the situation he ends up . . . touching this 11-year-old
trying to converse with her. And he only leaves because the mother eventually wakes up.
[¶] That’s a pretty strong drive to have that you’re willing to engage with a child who is
sleeping with her parents.” Despite the fact that Andrade had previously been caught
after assaulting a young girl in her bedroom, Sidhu noted that Andrade was not deterred
by the presence of two adults in T.D.’s bedroom.
Like Simon, Sidhu testified that Andrade’s alcohol use disorder would not cause
Andrade to commit sex offenses, but it was a risk factor as it would “exacerbate those
10
urges” and “contribute to that emotional impairment.” Andrade’s records showed a
history of using alcohol with negative consequences, which continued during his time at
Coalinga State Hospital.
In Sidhu’s opinion, Andrade has a diagnosed mental disorder that predisposes him
to the commission of criminal sex acts and meets the criteria for civil commitment as an
SVP.
On cross-examination, Sidhu admitted that “an 11-year-old who is developed and
is getting curves and . . . has reached menses, would . . . not be a prepubescent child.”
2. The defense case
a. Expert testimony
i. Dr. Halon’s testimony
Dr. Robert Halon, a clinical and forensic psychologist, was retained by the
defense. Halon reviewed Andrade’s records and reports, and listened to the testimony
presented at trial, including the testimony offered by Simon and Sidhu. In Halon’s
opinion, there was no evidence in the record since 2003 to support a conclusion that
Andrade has a currently diagnosable mental disorder, a deviant sexual preference, or
emotional or intimacy deficits. Halon testified that if Andrade had pedophilic disorder,
he could not control his urges even while in custody and would have sought out child
pornography or created his own if he could not obtain it. According to Halon, the
evidence of Andrade’s impulsivity, drinking, and fighting while in custody have no
bearing on whether he has a sexual disorder or is likely to commit a predatory sexual
offense in the future.
Halon testified that, in his opinion, the circumstances of Andrade’s offenses
involving Irma and T.D. indicated that he was not “a bona fide pedophile,” but rather “a
kid drunk and on drugs a lot of the time.” According to Halon, a pedophile would be
“sly” and would not “do things that bring attention to themselves” or “to the parents of
the children or teachers.” Halon testified that Andrade’s behavior was consistent with
11
him being “at the age where his sexual drive physically is high and he doesn’t have any
sexual partners and he’s looking for the easiest ones.” Halon acknowledged that the fact
that Andrade committed the offense against T.D. while out on bail “would show he’s
probably back on drugs and alcohol because that would impair his judgment” and that he
was “more likely to be dangerous than less likely to be dangerous.”
ii. Dr. Murphy’s testimony
Dr. Carolyn Murphy, a clinical and forensic psychologist, testified that
“[p]edophilic disorder . . . involves recurrent intense sexually arousing fantasies, urges or
behaviors involving prepubescent children that have to go on after the age of 16 and over
a period of at least six months.” Regarding sexual development, Murphy said that the
average age of pubertal onset for girls was “about 11.” Because pedophilic disorder
requires a “pattern of conduct . . . over a period of at least six months,” a single incident
of inappropriate sexual activity with an 11-year-old does not support a diagnosis of that
disorder. A sexual incident with a 15-year-old “cannot . . . support a finding of
pedophilia,” because that victim is not prepubescent. When asked if a person in their 20s
“with special education and a reading level of fifth grade” indicated to a police officer
that he had done something like these incidents with other girls, Murphy responded that,
in her opinion, the person’s statements would indicate that he “may well have
misunderstood the question.” It would not, however, signal that the person is a
pedophile. Murphy also testified that she reviewed Andrade’s custodial records but
found nothing to indicate that he has pedophilic disorder.
Murphy was asked about the recorded interview with Duval, in which Andrade
agreed that he would have had sex with T.D. if the opportunity arose, said that he had
done something similar three or four times previously over the past “couple years,” and
agreed when Duval asked if it was “always . . . young girls.” Murphy opined that, based
on “additional information,” the statements Andrade made to Duval were “not
concern[ing]” to her. On redirect, Murphy clarified that her lack of concern was “with
12
respect to the nature of the statements and the applicability to the diagnosis [of pedophilic
disorder].” Murphy explained that she was not concerned by the interview with Duval
because Andrade “presented with some rather significant auditory processing issues,” an
11-year-old “could well be and would most likely be pubescent[,] and there is no other
evidence [of sexual contact with prepubescent children] because the other victim was
15.” “[A]s a diagnostician,” Murphy did not believe the evidence “reach[ed] the level
where it can” support a finding that Andrade had pedophilic disorder. In her opinion,
Andrade did not meet the criteria to be classified as an SVP.
II. DISCUSSION
A. Applicable legal principles
1. Overview of SVPA
“Under the SVPA, the state can civilly commit individuals found to be SVPs after
they conclude their prison terms.” (Reilly v. Superior Court (2013) 57 Cal.4th 641, 646.)
At trial on a commitment petition under the SVPA, the prosecution must prove three
elements beyond a reasonable doubt: (1) the person has suffered a conviction of at least
one qualifying “sexually violent offense,” (2) the person has “a diagnosed mental
disorder that makes the person a danger to the health and safety of others,” and (3) the
mental disorder makes it likely the person will engage in future predatory acts of sexually
violent criminal behavior if released from custody. (§ 6600, subd. (a)(1); see §§ 6603,
6604; People v. Shazier (2014) 60 Cal.4th 109, 126.) “A ‘ “[d]iagnosed mental disorder”
includes a congenital or acquired condition affecting the emotional or volitional capacity
that predisposes the person to the commission of criminal sexual acts in a degree
constituting the person a menace to the health and safety of others.’ (§ 6600, subd. (c).)”
(Shazier, supra, at p. 126.) “Expert testimony, specifically testimony regarding diagnosis
of a current mental disorder, is an important element in an SVPA civil commitment
proceeding.” (People v. Roa (2017) 11 Cal.App.5th 428, 443.)
13
A person alleged to be an SVP is entitled to a jury trial (§ 6603) at which the
attorney petitioning for commitment must prove, “beyond a reasonable doubt, [that] the
person is a sexually violent predator” (§ 6604). If the person is found to be an SVP, he or
she “shall be committed for an indeterminate term to the custody of the State Department
of State Hospitals for appropriate treatment and confinement in a secure facility
designated by the Director of State Hospitals.” (§ 6604.)
2. Sufficiency of the evidence
“ ‘In reviewing the evidence sufficient to support a commitment under
section 6600, “courts apply the same test as for reviewing the sufficiency of the evidence
to support a criminal conviction.” [Citation.] “Thus, this court must review the entire
record in the light most favorable to the judgment to determine whether substantial
evidence supports the determination below. [Citation.] To be substantial, the evidence
must be ‘ “of ponderable legal significance . . . reasonable in nature, credible and of solid
value.” ’ ” ’ ” (People v. Wright (2016) 4 Cal.App.5th 537, 545 (Wright).) In conducting
our review, an appellate 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.)
It is well established, however, that “[t]he value of opinion evidence rests not in
the conclusion reached but in the factors considered and the reasoning employed.”
(Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135
(Zuckerman).) “Where an expert bases [their] conclusion upon assumptions which are
not supported by the record, . . . or upon factors which are speculative, remote or
conjectural, then [their] conclusion has no evidentiary value.” (Ibid.) A conclusion
without evidentiary value “cannot rise to the dignity of substantial evidence.” (Ibid.)
14
B. Analysis
Andrade argues that, like the expert’s conclusions in Wright, supra, 4 Cal.App.5th
537, the prosecution’s experts’ conclusions in this case were too speculative to amount to
substantial evidence to support the jury’s verdict. We disagree.
In Wright, supra, 4 Cal.App.5th 537, the prosecution’s expert psychologist
diagnosed the defendant with hebephilia, which he described as “ ‘sexual interest in
pubescent-age children.’ ” (Id. at p. 541.) The expert testified that this diagnosis “is
dependent on knowing more than the victim’s age—because children mature physically
and develop sexually at different ages, it is important to know a victim’s appearance”
since that appearance “is what is driving the defendant’s behavior.” (Id. at p. 542.)
Because the expert did not know anything about the defendant’s victims other than their
ages, he “had to ‘make assumptions that their physical development [wa]s such that [it]
meets the definition of hebephilia.’ ” (Id. at p. 543.)
On appeal, the court reversed the trial court’s finding that defendant was an SVP
for lack of substantial evidence. (Wright, supra, 4 Cal.App.5th at p. 547.) The expert’s
opinion that defendant suffered from a diagnosed mental disorder “was based, in
principal part, on assumed and hypothesized facts about the . . . victims’ physical and
sexual development, and those assumed and hypothesized facts were not supported by the
record.” (Id. at p. 546.) Consequently, the opinion had no evidentiary value because it
was “based on pure speculation and conjecture about the victims’ physical and sexual
development.” (Ibid.)
The Attorney General argues that Wright is distinguishable because the mental
disorder at issue in that case—hebephilia—was deliberately excluded from the DSM-5 as
it was a controversial diagnosis. (Wright, supra, 4 Cal.App.5th at p. 541.) Because the
experts in this case diagnosed Andrade with pedophilic disorder, which is included in the
DSM-5, the Attorney General contends Wright is inapposite.
15
We do not read the outcome in Wright to be founded on the controversial nature of
the diagnosed mental disorder of hebephilia or its exclusion from the DSM-5. In fact, the
court expressly noted that “an SVP’s mental disorder need not be listed in the DSM for
purposes of commitment.” (Wright, supra, 4 Cal.App.5th at p. 541, fn. 2.) Rather, the
court focused entirely on the “evidentiary hole at the core” of the expert’s diagnosis. (Id.
at p. 546.)
Accordingly, we also must examine the prosecution experts’ opinions in this case
to determine whether they suffer from a similar “evidentiary hole.” (Wright, supra, 4
Cal.App.5th at p. 546.) Reviewing both the expert testimony and the information on
which they relied, it is clear that they do not.
At trial, both Simon and Sidhu accurately described the DSM-5 definition of
pedophilic disorder as an abiding (over six months or more) sexual interest in
prepubescent children, i.e., children aged 13 or younger. In concluding that Andrade
suffered from pedophilic disorder, the prosecution’s experts relied principally on the
charged offense involving T.D., as well as the statements Andrade made during his
interview with Duval where he appeared to admit having entered the homes of “young
girls” “three or four times.”7
Andrade’s encounter with T.D. supports a diagnosis of pedophilic disorder
because it is undisputed that she was under 13 years old at the time. It is true that T.D.
testified that, even at age 11, her mother indicated that she “develop[ed] pretty fast as,
like my woman features” and that she “was always a pretty curvy girl.” While both
Simon and Sidhu testified that an 11-year-old who has shown signs of having entered
puberty, through physical development or reaching menses, could not be considered
“prepubescent” at least for purposes of pedophilic disorder, Sidhu testified that the
7Duval did not clarify during the interview whether the offenses against Irma and
T.D. were included in the “three or four” incidents admitted by Andrade or whether it
was “three or four” times in addition to those two.
16
condition is one where the individual “seek[s] fulfillment in their sexual needs that are
directed toward . . . prepubescent/pubescent children.” Given this broader range of
development, the experts’ diagnoses of Andrade with pedophilic disorder based on his
interaction with T.D. is not entirely conjectural.
We now turn to whether there was evidence to support the experts’ conclusions
that Andrade’s sexual interest in prepubescent children persisted over a period of at least
six months. The prosecution’s experts told the jury that Andrade’s interview with Duval
in which he stated that he had similarly entered the homes of “young girls” “three or four
times” over “a couple years” demonstrated such an abiding sexual interest in
prepubescent children. Their conclusion is a reasonable inference from the context of the
interview, which was instigated by Andrade’s entering T.D.’s home with the admitted
intent to have sex with her, opportunity permitting.
Duval was interviewing Andrade about the incident with T.D. (age 11), and then
said he knew of other similar incidents of “girls that have woken up and found people in
their homes” before suggesting Andrade might have been involved in those incidents.
We agree with the Attorney General that Simon and Sindhu “could reasonably assume
that [Andrade]’s desire to have sex with one young girl under the age of 13 years meant
that he had a desire to have sex with more than one such young girl, since he admitted in
connection with the [T.D.] assault to having cravings to have sex with young girls.”
In addition, Sidhu testified that his diagnosis was based, in large part, on
Andrade’s admission that he “needed help regarding these behaviors” as this indicated
“some recognition of a deviant sexuality at that point.” The circumstances of Andrade’s
interaction with T.D., where Andrade was not deterred by the presence of T.D.’s parents
in the same room even though he had recently been arrested for his assault on Irma,
further supports the conclusion that Andrade had an abiding interest in young girls.
Because the prosecution’s expert’s conclusions were supported by the record and
were not based on “factors which are speculative, remote or conjectural,” we conclude
17
that they provide substantial evidence to support the jury’s finding that Andrade meets
the definition of an SVP. (Zuckerman, supra, 189 Cal.App.3d at p. 1135.)
III. DISPOSITION
The order finding Andrade to be an SVP and committing him to the California
Department of State Hospitals is affirmed.
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___________________________________
Wilson, J.
WE CONCUR:
______________________________________
Bamattre-Manoukian, Acting P.J.
______________________________________
Danner, J.
People v. Andrade
H048701