People v. Clark CA3

Filed 12/1/20 P. v. Clark CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C089935
Plaintiff and Respondent, (Super. Ct. No. 18MH000001)
v.
MISHAKAL CLARK,
Defendant and Appellant.
Defendant, Mishakal Clark, appeals from his commitment as a sexually violent
predator (SVP) following a court trial. He argues substantial evidence does not support
that: (1) he was currently unable to control his dangerous sexual behavior, and (2) he
could not be safely treated within the community. Disagreeing, we will affirm.
1
BACKGROUND
On January 25, 2018, the People filed a petition to commit defendant as an SVP.
(Welf. & Inst. Code, § 6600 et seq.)1 Following a probable cause hearing on April 19,
2018, defendant was committed to a state hospital pending trial. Defendant waived his
right to a jury trial and the matter was tried to the court.
At trial, the parties stipulated to the expertise of the People’s experts, Dr. Robert
M. Owen and Dr. Steven Lovestrand, and agreed to enter their previous reports and
supplemental reports into evidence. The parties also stipulated to the admission of the
packet concerning defendant’s previous juvenile adjudication and the court took judicial
notice of defendant’s convictions for failing to comply with sex offender registration
requirements and possession of child pornography.
Dr. Owen testified to interviewing defendant twice, first on October 30, 2017, and
then on March 22, 2019. The first interview was to determine whether defendant met the
criteria as an SVP and the second interview was to determine whether substantial changes
altered Dr. Owen’s original conclusion, which they had not. In conducting his
assessment, Dr. Owen also reviewed defendant’s records, including his prison file and
abstracts of judgment.
Defendant’s records showed that in 2001 he had committed an aggravated sexual
assault. Defendant, then 16 years old, took a three-year-old child into the bushes at a
swimming hole. He penetrated her and attempted sexual intercourse before removing her
bathing suit and rubbing his penis on her vagina until he ejaculated, and then he let her
go. Defendant was placed at the California Youth Authority (CYA) for approximately
five years for this offense. Following his parole from the CYA, defendant did not
comply with his release conditions and absconded. He was arrested at a campground
1 Undesignated statutory references are to the Welfare and Institutions Code.
2
with his wife and her three-year-old daughter2 and was sent to prison. After his release
from prison in 2013, defendant was again placed on parole. A search of defendant’s
phone by his parole officer uncovered 43 images of child pornography. Defendant also
acknowledged hiding two thumb drives outside the parole office containing videos of
child sexual abuse, including a video of 1 hour and 40 minutes depicting the sexual abuse
of a six-year-old girl.3 Defendant was arrested, convicted, and sentenced to a new prison
term for possession of child pornography.
Dr. Owen opined that defendant currently suffered from pedophilic disorder.4 He
based this opinion on defendant’s 2001 sexual abuse of a three year old wherein he
ejaculated, the child pornography, and defendant’s admission that he found child
pornography arousing, and as of March 2019, still had “pop-up thoughts of [an] erotic
nature involving children, although he [was] getting better at suppressing those
thoughts.” Dr. Owen also thought it noteworthy that defendant had sex with his 10-year-
old brother when he was 14 years old, and had sexual contact with animals. While
defendant mostly masturbated to adult females, he admitted to sometimes thinking about
children under the age of eight. “He would think about them, fantasize about them and
masturbate. And that really buttresses the diagnosis of pedophilic disorder when you
2 There was no evidence defendant abused this child, but Dr. Owen testified this did not
mean he would not abuse a stranger child and could also have been explained if that
particular child was not attractive to him. Further, Dr. Lovestrand testified that most
pedophiles either abuse individuals they know or strangers (incest versus extrafamilial),
and that extrafamilial offenders are more likely to reoffend.
3 Dr. Lovestrand testified there were also nearly 500 pornographic images on these flash
drives of children between the ages of one and eight.
4 Dr. Owen defined pedophilic disorder as “involv[ing] at least six months of fantasies,
urges or behaviors involving a child under the age of 13 and the perpetrator must be [16]
years or older and it has to result in some kind of impairment in the individual, either a
legal consequence as we have here or distress about the individuals actions.”
3
have these fantasies paired with masturbation, paired with ejaculation.” Defendant
acknowledged still thinking about children even after going to prison for child
pornography.5
Dr. Owen also performed assessments to evaluate defendant’s risk. Defendant’s
score on the Static-99 indicated a high risk of reoffense. Defendant’s score was an eight,
while an average sex offender would score a two. The assessment rated defendant’s
likelihood of being caught and charged for a new sexual offense as 36 percent over five
years and 48 percent over 10 years. Defendant also scored high on the dynamic risk
evaluation, which considered his sexual deviance, failure to have long-term, meaningful
relationships, and poor impulse control. He did, however, register low on the
psychopathy assessment.
Dr. Owen opined defendant posed a substantial risk of sexually reoffending in a
predatory way due to his mental disorder without appropriate in-custody treatment. Dr.
Owen further opined that defendant’s pedophilic disorder impaired his volition and put
him at risk of acting on his impulses. That defendant was forthcoming concerning his
sexual proclivities, including the hidden flash drives, was not tied to whether he is more
or less dangerous. In fact, his failure to cooperate with supervision on parole strongly
indicated a high risk of reoffense. Nonetheless, if defendant completed the treatment
program at the state hospital,6 he could be one-third less likely to be arrested for a
reoffense, even though pedophilia is a lifelong condition.
5 On cross-examination, Dr. Owen stated that defendant told him he no longer
masturbates when children pop into his head (occurring about once a month), but rather
“he had learned to stop masturbating to those.” However, Dr. Lovestrand relayed that
defendant had admitted that he still had thoughts about children when masturbating,
which he tries to redirect.
6 As of April 2019, defendant was in the “early phases of treatment,” although his
progress was “steady.”
4
Dr. Lovestrand also conducted a section 6600 evaluation of defendant, reviewing
his records and interviewing him twice, the first time for his initial evaluation in
November 2017 and the second approximately a month before trial to evaluate
defendant’s continuing risk. Dr. Lovestrand recounted defendant’s personal and criminal
history and then opined defendant had three diagnosable mental disorders that
predisposed him to commit criminal sexual acts: pedophilic disorder, alcohol use
disorder, and marijuana use disorder, the latter two being in remission. Defendant
actively suffered from pedophilic disorder, as he was still having fantasies involving
children and that disorder would remain stable absent effective treatment to counteract it.
In assessing defendant’s ongoing risk, Dr. Lovestrand performed the Structured
Risk Assessment Forensic Version to measure dynamic risk factors and the Static-99
assessment. Both tests placed him in an above-average risk for reoffense, and
defendant’s score of eight on the Static-99 assessment placed him in the 99th percentile.
Defendant’s above-average dynamic risk, his high static risk, combined with his poor
impulse control and history of absconding placed defendant at high risk of reoffense
without appropriate treatment and custody.7 While defendant was actively engaging in
the SVP program at Coalinga State Hospital, defendant had not made sufficient progress
through that program to alter Dr. Lovestrand’s diagnosis and opinion. When asked about
community treatment, Dr. Lovestrand opined that defendant could not “be safely and
effectively treated in the community instead of in a locked, secure facility” and that
community treatment was not “the best option for him.”8
7 Dr. Lovestrand’s report observed defendant’s volitional impairment in his viewing
child pornography after having served time for a prior sex offense and in his repeated
returns to these pornographic sites, despite his attempts to stop thinking about children
sexually.
8 Dr. Owen’s report also rejected the appropriateness of community-based treatment.
5
Following its review of all the reports and in light of the expert testimony, the
court found that defendant was an SVP who could not be safely treated within the
community at this time. Accordingly, the court sustained the petition and committed him
to a state hospital for treatment for an indefinite term. Defendant timely appealed.
STANDARD OF REVIEW
We review the entire record in the light most favorable to the judgment to
determine whether substantial evidence supports the factfinder’s determination that
defendant currently suffers from a diagnosed mental disorder as described by the statute.
(People v. Mercer (1999) 70 Cal.App.4th 463, 466.) To be substantial, the evidence must
be “ ‘ “of ponderable legal significance . . . reasonable in nature, credible and of solid
value.” ’ ” (Ibid.) “ ‘[I]t is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts on which that determination
depends.’ ” (People v. Poulsom (2013) 213 Cal.App.4th 501, 518 (Poulsom).) If
substantial evidence supports the verdict, “ ‘we must accord due deference to the trier of
fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.’
[Citation.] This is true even in the context of expert witness testimony.” (Ibid.) The
credibility of an expert and his or her conclusions are to be resolved by the factfinder;
“ ‘[w]e are not free to reweigh or reinterpret [that] evidence.’ ” (Ibid.)
DISCUSSION
I
Defendant contends insufficient evidence supports the trial court’s determination
that he was currently unable to control his dangerous sexual behavior because the
experts’ conclusory opinions are not substantial evidence. We disagree.
The requirements for classifying someone as an SVP are set forth in section 6600.
The statute defines a “ ‘[s]exually violent predator’ ” as “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
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others in that it is likely that he or she will engage in sexually violent criminal behavior.”
(§ 6600, subd. (a)(1).) The phrase “ ‘[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).) Thus, to
commit defendant as an SVP, the factfinder had to determine that defendant was
previously convicted of a violent sexual offense and that he suffered from a mental
disorder affecting his volitional or emotional capacity, thereby making him a danger to
others because he was likely to engage in sexually violent criminal behavior. (Poulsom,
supra, 213 Cal.App.4th at p. 517.)
Defendant does not dispute that his prior convictions qualify as sexually violent
offenses within the meaning of the statute. (§ 6600, subd. (b) [defining “ ‘[s]exually
violent offense’ ”].) He only challenges the sufficiency of the evidence bearing on the
latter requirement. According to defendant, one cannot decide whether a mental disorder
makes the person a danger unless there is testimony concerning the etiology of that
condition.
But the root cause of defendant’s mental disorder is not relevant under the statute.
Instead, section 6600 requires only that defendant’s mental disorder causes him to be a
danger to others in that he is likely to engage in sexually violent predatory behavior.
(§ 6600, subd. (a)(1).) The underlying etiology of the mental disorder—or what made
him a pedophile in the first instance—is simply not in question. When viewed in the
proper context, then, the issue is whether the record contains sufficient evidence that
defendant is a danger to society because his diagnosed pedophilia makes it likely he will
commit predatory acts of sexual violence if released.
We are satisfied that the People’s expert testimony and reports constitute
substantial evidence that defendant is a danger to others because he was likely to engage
in sexually violent criminal behavior. (Poulsom, supra, 213 Cal.App.4th at p. 517;
7
People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 924 (Ghilotti) [due process
requires a showing there is a “substantial danger of committing similar new crimes”].)
As explained at length above, both Dr. Owen and Dr. Lovestrand opined
defendant then suffered from pedophilic disorder, which may endure for a lifetime unless
aggressively treated. During his qualifying offense, defendant, then 16 years old, took a
three-year-old child into the woods, removed her swimsuit, penetrated her, attempted
sexual intercourse, and then rubbed his penis against her vagina to masturbate to climax.
Defendant’s victim was a stranger child, and extrafamilial offenders are more likely to
reoffend. Defendant participated in sex offender treatment at the CYA, but was unable or
unwilling to control his sexually deviant thoughts following his release and was
rearrested for possession of child pornography. This behavior and his inability to stop
viewing child pornography, despite his attempts to stop thinking about children sexually,
showed defendant’s poor volitional control.
While defendant was actively participating in treatment at the state hospital, he
was only in the early stages. Defendant himself admitted to still having pop-up fantasies
concerning children, at least some of which occurred during masturbation. Further,
assessment testing by both doctors put defendant at an extremely high risk for reoffense.
Defendant’s above-average dynamic risk, his high static risk, combined with his poor
impulse control, and history of absconding from authorities placed defendant at high risk
of reoffense without appropriate treatment and custody. In light of this information, both
doctors opined defendant posed a substantial risk of reoffending in a predatory way due
to his mental disorder without appropriate custodial treatment. This is substantial
evidence supporting the trial court’s SVP commitment.
II
Defendant further challenges his SVP commitment arguing that substantial
evidence does not support the trial court’s determination that he could not be safely
treated within the community. We disagree.
8
While amenability to treatment within the community is one factor that the trial
court must consider in determining whether to commit an individual as an SVP (see
People v. Shazier (2014) 60 Cal.4th 109, 131 [trial court must consider whether an
individual’s dangerous mental condition requires confinement or whether outpatient
treatment could eliminate the substantial risk of reoffense]; Ghilotti, supra, 27 Cal.4th at
pp. 926-928 [same]), here, we find substantial evidence supports the conclusion that
defendant could not be safely treated within the community.
Defendant failed parole on two occasions by absconding and in one instance
reoffending through possession of a sizable cache of child pornography that included
around 500 pornographic images of prepubescent girls and two videos of sexual abuse of
girls around six years of age. Defendant admitted he still had pop-up sexual thoughts
about children, some of which occurred during masturbation, although he was trying to
alter this behavior. Defendant also had extremely high-risk-for-reoffense scores from
assessments conducted by both Dr. Owen and Dr. Lovestrand.
Dr. Lovestrand opined that community treatment was not “the best option” for
defendant and that without appropriate “treatment and custody,” defendant would be at
high risk to reoffend. Dr. Lovestrand worried that defendant lacked the motivation to
voluntarily pursue sex offender treatment that was not affirmatively required of him. Dr.
Owen likewise rejected the appropriateness of community-based treatment. He noted
defendant’s postrelease plans included parole outpatient treatment, but not a formal sex
offender treatment program. Dr. Owen was also concerned that defendant’s lack of
resources, including his history of homelessness and unemployment, would preclude him
from obtaining community-based treatment.
Thus, even though defendant expressed an interest in treatment, was participating
in treatment in a custodial setting at the state hospital, and there was no affirmative
evidence offered that there were no outpatient treatment programs in defendant’s
community, defendant’s poor performance on parole, combined with his continuing
9
pedophilia, and high-risk assessments constituted substantial evidence supporting the
court’s determination that custodial treatment was necessary. (See People v. Shazier,
supra, 60 Cal.4th at pp. 131-133 [factfinder has latitude to consider external factors
bearing on the ultimate issue: whether the individual is likely to reoffend without
confinement].)
We are unpersuaded by defendant’s arguments that he had not committed a new
offense against a child since 2001. As explained by Dr. Owen, defendant spent the
majority of that time in prison, did not have the opportunity to reoffend against children
in prison, and thus, his lack of reoffense merely goes to his outward behavior in a
custodial setting. (See, e.g., People v. Sumahit (2005) 128 Cal.App.4th 347, 353
[absence of assault of staff merely shows the defendant’s behavior in controlled setting].)
Further, that defendant appears not to have reoffended with his three-year-old
stepdaughter is not dispositive of whether he would reoffend against another stranger
child. Finally, defendant’s possession of sizeable amounts of child pornography of
prepubescent girls in 2013 following his completion of sex offender treatment in the
CYA further supports defendant’s continuing risk to the community.
DISPOSITION
The judgment is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
BLEASE, J.
/s/
KRAUSE, J.
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