Opinion
C085173
07-24-2018
THE PEOPLE, Plaintiff and Respondent, v. JACK LEE GUNN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM028448)
Defendant Jack Lee Gunn has been serving an indefinite term at a state hospital after having been found to be a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) He appeals from the judgment entered after the trial court denied his petition for unconditional discharge from his SVP commitment (§ 6605) and found that he was not suitable for conditional release from the same commitment (§ 6608).
Undesignated statutory references are to the Welfare and Institutions Code.
On appeal, defendant contends the trial court erred in denying his petition for unconditional discharge. According to defendant, the evidence presented at trial was insufficient to support a finding he was an SVP. He further contends that trial counsel rendered ineffective assistance by failing to elicit certain expert testimony. We affirm the judgment.
Defendant does not challenge the trial court's finding that he was not suitable for conditional release. Therefore, we need not and do not, address this issue.
I. BACKGROUND
A. Procedural Background
Defendant is an 83-year-old man. In 2001, he was convicted of committing a lewd and lascivious act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)) after he repeatedly molested a five-year-old girl when he was 66 years old. He was placed on probation for three years and ordered to serve 300 days in county jail. In 2005, defendant was convicted of annoying or molesting a child under 18 years of age with a prior sex offense (Pen. Code, § 647.6, subd. (c)(1)) after he molested a six-year-old girl when he was 70 years old. He was placed on probation for five years and ordered to participate in sex offender treatment. In 2010, probation searches of his computer revealed that he had visited multiple children's cartoon sites and had downloaded 46 images of children in sexually suggestive poses. His probation was revoked and he was sentenced to three years in prison.
Both of defendant's victims lived in his neighborhood.
In 2013, defendant was committed to the custody of the Coalinga State Hospital (CSH) pursuant to the provisions of the SVPA.
In August 2016, defendant filed a petition for conditional release pursuant to section 6608. In support of his petition, defendant relied on a report authored by Carl A. Bonacci, Ph.D., and a letter in agreement from Medical Director Robert Withrow, M.D. Dr. Bonacci and Dr. Withrow both agreed that defendant should be conditionally released from his commitment as an SVP. Dr. Bonacci concluded that, given defendant's low risk of reoffending and his deference to authority, he could be treated in a less restrictive setting and adequate protection of the community could be assured through a conditional release program.
In May 2017, while his petition for conditional release was pending, defendant filed a petition for unconditional discharge pursuant to section 6605. In support of his petition, defendant relied on a report authored by Christopher North, Ph.D., and a letter in agreement from Dr. Withrow. Dr. North concluded that defendant should be unconditionally discharged from his commitment as an SVP because his mental condition had changed so much that he was no longer likely to engage in sexually violent predatory behavior if discharged.
Shortly after filing his petition for unconditional discharge, defendant withdrew his petition for conditional release. Two weeks later, the trial court found that probable cause existed to go forward with a hearing on defendant's petition for unconditional discharge, that is, the trial court found there was probable cause to believe that defendant's diagnosed mental disorder had so changed that he was not a danger to the health and safety of others and was not likely to engage in sexually violent criminal behavior if discharged. (§ 6605, subd. (a)(2).) After defendant waived his right to a jury trial, a court trial was scheduled. B. Evidence Presented at Trial
At the court trial in June 2017, each side called one expert witness. Defendant called Dr. North while the People called Dr. Cecilia Groman, Ph.D. Both experts submitted a report.
1. Dr. North's Testimony
Dr. North, a psychologist, was employed by CSH. In April 2017, he performed an annual review evaluation of defendant to determine whether he continued to meet the criteria for civil commitment as an SVP. In performing his evaluation, Dr. North reviewed defendant's CSH records, with a focus on his conduct during the past year. Dr. North also spoke with members of defendant's treatment team at CSH. In doing so, Dr. North learned that defendant got along well with other patients and staff and did not have any behavioral problems. Dr. North also learned that defendant had not displayed "any deviant thoughts or indications" while at CSH.
As part of his evaluation of defendant, Dr. North performed two tests: a Static-99 test and a Structured Risk Assessment (SRA). Dr. North scored defendant as a -1 on the Static-99 test, which placed him in the very low risk category for committing a new sex offense. As for the SRA, Dr. North scored defendant as a 1.17, which placed him in the low range, meaning he did not show evidence of many risk factors outside of the Static-99.
Dr. North explained that he did not administer any cognitive testing to defendant because he did not display any signs of being intellectually or cognitively impaired. Dr. North also did not administer a PCL-R (Hare Psychopathy Checklist-Revised) exam to defendant to test whether he was a psychopath or a "very criminally oriented person without a conscience." Dr. North explained that this exam was unnecessary because there was nothing in defendant's CSH records or behavior indicating he was a psychopath.
Although Dr. North diagnosed defendant as currently suffering from pedophilic disorder, he concluded that defendant was no longer an SVP. Dr. North reasoned that defendant's "motivation to live the rest of his life as a free man is so strong that it outweighs any slight continuing attraction that he still has to children." According to Dr. North, there were multiple factors that showed defendant was suitable for unconditional discharge: his advanced age (82 years old at the time of trial); his low or nonexistent sex drive; his low level of psychopathy; his strong desire to live as a free man; and the fact that he had previously completed "quite a bit" of sex offender treatment.
Dr. North opined that defendant was unlikely to reoffend, even though he was not participating in the sex offender treatment program. According to Dr. North, defendant did not pose "a serious, well-founded risk of reoffending."
On cross-examination, Dr. North acknowledged that there were a series of previous reports that concluded defendant was not suitable for unconditional discharge. Dr. North admitted that he only reviewed the annual report from the previous year (which recommended conditional release) but speculated that a review of the other reports would show that defendant had become "slightly sort of less risky with each year as he ages." Dr. North also admitted that he did not conduct a polygraph test on defendant, which he acknowledged would have been helpful in forming an opinion as to whether defendant was still an SVP. He explained that the test would have been helpful in determining whether defendant had masturbated to fantasies of children within the last year. Absent such testing, Dr. North admitted that the only information he had on this issue was defendant's self-reporting.
2. Dr. Groman's Testimony
Dr. Groman, a psychologist, was employed by Liberty Healthcare. She was the clinical director of the conditional release program (CONREP). She acted as the liaison between CONREP and CSH. She traveled to CSH once a month to determine whether individuals were ready for CONREP.
Prior to preparing her report on defendant's suitability for CONREP, Dr. Groman interviewed defendant in December 2016 and reviewed his CSH records from the previous year. Dr. Groman opined that defendant was not suitable for conditional release, i.e., he was a danger to the health and safety of others in that it was likely that he would engage in sexually violent criminal behavior due to his diagnosed mental disorder if under supervision and treatment in the community. (§ 6608, subd. (g) [conditional release appropriate where committed person is unlikely to engage in sexually violent criminal behavior due to his diagnosed mental disorder if under supervision and treatment in the community].) In forming her opinion, Dr. Groman considered a number of factors, including that defendant had only participated in sex offender treatment for about a year and a half at CSH before dropping out of the program in 2014. She also considered that defendant had expressed opinions and beliefs about his offending behavior that showed he could not be safely treated in the community. Of particular concern to Dr. Groman was defendant's expressed belief that one of his victims had "made him molest her," even though the victim was only six years old and he was in his 60's at the time of the molestation. According to Dr. Groman, defendant's statement was a sign that he did not hold himself accountable for his behavior.
When defendant spoke with Dr. Groman, he claimed that his five-year-old victim made him molest her. Defendant was 66 when he molested his five-year-old victim and was 70 when he molested his six-year-old victim.
In concluding that defendant was not suitable for release, Dr. Groman explained that defendant had not progressed in the sex offender treatment program from Module 2 (the "self-regulation" phase, which is the longest lasting phase of treatment where the majority of the learning takes place) to Module 3 (the "treatment integration and community preparation" phase, where the patients practice applying what they learned in Module 2). Dr. Groman noted that Module 3 is the phase where patients are subject to polygraph tests and penile plethysmograph (PPG) tests, which measure physical arousal. She also noted that patients are subject to psychological, neurological, and cognitive assessments as they progress through the treatment program.
Dr. Groman explained that, because defendant had not taken a polygraph test or a PPG test, there was no evidence to corroborate his claim that he was no longer sexually aroused by children. Nor was there evidence to assess whether he was being truthful in reporting that he did not masturbate to sexual thoughts about children. According to Dr. Groman, even if an older man has little or no physical response to erotic stimuli, he can still pose a threat to public safety. She explained: "You don't need your genitals to offend. Offending starts with the thoughts and the fantasies. Arousal starts in the brain." Dr. Groman noted that defendant's prior offenses were opportunistic in nature, i.e., a child was around. This was particularly concerning to her because young children, and people in general, do not perceive older persons as a potential threat.
Finally, Dr. Gorman considered defendant's lack of a comprehensive relapse prevention plan as another reason he was not suitable for release. She noted that participants in the sex offender treatment program develop such a plan in Modules 2 and 3, and that defendant's stated plan for not reoffending consisted solely of " 'stay[ing] away from kids.' "
3. Dr. North's Rebuttal Testimony
In rebuttal, Dr. North testified regarding defendant's accountability for his prior sexual offenses. Dr. North acknowledged that defendant had consistently claimed that his first victim was the aggressor. However, defendant expressed to Dr. North that "he was the adult in that situation," "[i]t was incumbent upon him to say no," and "[h]e should have stopped it." Based on defendant's statements, Dr. North concluded that defendant held himself accountable for his actions. Dr. North explained: "I think it bodes well for him. I think he realizes he made a terrible mistake. My own opinion is he's not likely to repeat it and do it again." C. Trial Court Ruling
Following the presentation of evidence and the submission of briefs, the trial court denied defendant's petition for unconditional release, finding that the People had proven beyond a reasonable doubt that defendant continued to pose a danger to the health and safety of others, and that defendant was likely to engage in sexually violent criminal behavior if unconditionally discharged. The court also denied "any request for conditional release," finding that the People had proven by a preponderance of the evidence that conditional release was not appropriate. This timely appeal followed.
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant contends the trial court erred in denying his petition for unconditional discharge. According to defendant, the evidence presented at trial was insufficient to support a finding he was an SVP. We disagree.
1. Applicable Legal Principles
The SVPA (§ 6600 et seq.) provides for the confinement and treatment of SVPs. (Historical and Statutory Notes, 73E West's Ann. Welf. & Inst. Code (2010 ed.) foll. § 6600, p. 41.) The Legislature determined that a person adjudicated to be an SVP is a danger to society and should be confined and receive treatment for his or her diagnosed mental disorder, which predisposes him or her to engage in sexually violent criminal behavior as long as the disorder persists and until it can be determined that he or she no longer presents a threat to society. (Ibid.) The SVPA was enacted to treat SVPs and not for punitive purposes. (Ibid.)
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).) 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).) " 'Danger to the health and safety of others' does not require proof of a recent overt act while the offender is in custody." (§ 6600, subd. (d).)
If a court or jury finds, beyond a reasonable doubt, that a person is an SVP, the person must be committed for an indeterminate term to the custody of the Department of State Hospitals (DSH) for appropriate treatment and confinement in a secure facility designated by the director of DSH. (§ 6604.) A committed person must have a current examination of his or her mental condition made at least once every year. (§ 6604.9, subd. (a).) The report must be in the form of a declaration and be prepared by a professionally qualified person. (Ibid.) The report must consider whether the committed person currently meets the definition of an SVP and whether conditional release to a less restrictive alternative, pursuant to section 6608, or an unconditional discharge, pursuant to 6605, is in the best interest of the person and whether conditions can be imposed that would adequately protect the community. (§ 6604.9, subd. (b).) The committed person may retain or, if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the committed person. (§ 6604.9, subd. (a).)
DSH must file the report required under section 6604.9 with the trial court that committed the person under the SVPA. (§ 6604.9, subd. (c).) A copy of the report must be served on the prosecuting agency involved in the initial commitment and upon the committed person. (Ibid.)
If DSH determines (1) the committed person's condition has so changed that he or she no longer meets the definition of an SVP and should, therefore, be considered for unconditional discharge, or (2) conditional release to a less restrictive alternative is in the best interest of the committed person and conditions can be imposed that adequately protect the community, the director must authorize the committed person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge. (§ 6604.9, subd. (d).)
The trial court must order a show cause hearing upon receipt of a petition for unconditional discharge. (§§ 6604.9, subd. (f), 6605, subd. (a)(1).) At the show cause hearing, the trial court can consider the petition and any accompanying documentation provided by the medical director, the prosecutor, or the committed person. (§§ 6604.9, subd. (f), 6605, subd. (a)(1).) The committed person has the right to call witnesses and cross-examine the state's witnesses. (People v. Cheek (2001) 25 Cal.4th 894, 897, 900, 903.) The committed person bears the burden of establishing the probable cause required under section 6605. (People v. Hardacre (2001) 90 Cal.App.4th 1392, 1402.) The trial court must set a hearing on the issue if it determines the requisite probable cause exists. (§ 6605, subd. (a)(2).)
Section 6605, subdivision (a)(3) describes the hearing that must follow a probable cause finding under 6605, subdivision (a)(2). Under that subdivision, the committed person has the right to be present at such a hearing. (§ 6605, subd. (a)(3).) The committed person also has a right to trial by jury, to the assistance of counsel, to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. (Ibid.; see § 6603, subd. (a).) The state bears the burden of proving beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged. (Ibid.) "[A] person is 'likely [to] engage in sexually violent criminal behavior' if at trial the person is found to present a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody." (People v. Roberge (2003) 29 Cal.4th 979, 988.) Evidence of the individual's amenability to voluntary treatment "is relevant to the ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody." (Id. at p. 988, fn. 2.)
"Where the person's failure to participate in or complete treatment is relied upon as proof that the person's condition has not changed, and there is evidence to support that reliance, the jury shall be instructed substantially as follows: [¶] 'The committed person's failure to participate in or complete the State Department of State Hospitals Sex Offender Commitment Program (SOCP) are facts that, if proved, may be considered as evidence that the committed person's condition has not changed. The weight to be given that evidence is a matter for the jury to determine.' " (§ 6605, subd. (a)(3).)
When a trial is held on a petition for unconditional release, the committed person is entitled to have the jury or court determine whether the person qualifies for conditional release. (See People v. Landau (2016) 246 Cal.App.4th 850, 881-882.) The committed person "is entitled to unconditional release if it is not proven beyond a reasonable doubt the committee continues to meet the definition of an SVP (one who has committed the qualifying crime(s) and has a mental disorder that makes it likely he or she will engage in sexually violent conduct if released). [Citations.] And an SVP committee is entitled to conditional release if he [is] not likely to engage in sexually violent criminal behavior due to a mental disorder, ' "if under supervision and treatment in the community." ' " (Id. at p. 881.)
If the trial court or jury rules against the committed person following the section 6605 trial, the term of commitment of the person shall run for an indeterminate period from the date of that ruling and the committed person may not file a new petition until one year has elapsed from the date of the ruling. (§ 6605, subd. (b).) If the court or jury rules for the committed person, he or she must be unconditionally released and unconditionally discharged. (Ibid.)
" 'In reviewing the evidence sufficient to support a commitment under [the SVPA], "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.' " ' [Citation.]" (People v. McCloud (2013) 213 Cal.App.4th 1076, 1088.) " 'In reviewing the record to determine the sufficiency of the evidence this 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.' [Citation.]" (People v. Sumahit (2005) 128 Cal.App.4th 347, 352 (Sumahit).)
2. Analysis
Viewing the evidence in the light most favorable to the judgment, substantial evidence supports the trial court's decision to deny defendant's petition for unconditional discharge. The testimony of the People's expert provided sufficient evidence from which the court could properly conclude that defendant's diagnosed mental disorder remained such that he was likely to engage in sexually violent criminal behavior if unconditionally discharged. While the People offered only one witness at trial, it is axiomatic that one witness, if believed, can be enough. (Evid. Code, § 411.)
Here, the record discloses that defendant was diagnosed as currently suffering from pedophilia disorder. At trial, Dr. Groman opined that defendant was not suitable for conditional release i.e., he was a danger to the health and safety of others in that it was likely that he would engage in sexually violent criminal behavior due to his diagnosed mental disorder if under supervision and treatment in the community. (§ 6608, subd. (g).) In support of her opinion, Dr. Groman testified that defendant dropped out of the sex offender treatment program in 2014 after participating in the program for about a year and a half. She noted that defendant did not complete the second phase of the program (the "self-regulation" phase) and did not participate in the other phases, including the third phase (the "treatment integration and community preparation" phase). Dr. Groman also testified that defendant did not hold himself accountable for his behavior, as he blamed one of his victims for his conduct. He claimed that the victim had "made him molest her." Finally, Dr. Groman noted that defendant did not have a comprehensive plan to avoid reoffending. His stated plan only consisted of avoiding children.
Defendant concedes that substantial evidence supports the determination that, at the time of trial, he had a mental disorder affecting his "emotional or volitional capacity that predispose[d] [him] to the commission of criminal sexual acts in a degree constituting [him] a menace to the health and safety of others." (§ 6600, subd. (c).)
Consistent with Dr. Groman's testimony, defendant's refusal to undergo treatment is "potent evidence that he is not prepared to control his untreated dangerousness by voluntary means" if released unconditionally into the community. (Sumahit, supra, 128 Cal.App.4th at pp. 354-355; see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 929 [it is reasonable to consider a person's refusal to cooperate in any phase of treatment as a sign the person is not prepared to control his untreated dangerousness by voluntary means if released unconditionally into the community].) In Sumahit this court explained: "In enacting the SVPA '[t]he Legislature declared the need to confine and treat a "small but extremely dangerous group of sexually violent predators," already incarcerated, who "are not safe to be at large and if released [at the conclusion of their prison terms] represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence." ' [Citations.] [¶] The availability of treatment is at the heart of the SVPA. [Citation.] 'Through passage of the SVPA, California is one of several states to hospitalize or otherwise attempt to treat troubled sexual predators.' [Citation.] Accordingly, one of the key factors which must be weighed by the evaluators in determining whether a sexual offender should be kept in medical confinement is 'the person's progress, if any, in any mandatory SVPA treatment program he or she has already undergone; [and] the person's expressed intent, if any, to seek out and submit to any necessary treatment . . . . ' [Citation.] A patient's refusal to cooperate in any phase of treatment may therefore support a finding that he 'is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community.' " (Sumahit, at pp. 354-355.)
On this record, we conclude the trial court did not err in denying defendant's petition for unconditional discharge. We reject defendant's contention that Dr. Groman's testimony did not constitute substantial evidence to support a finding that he is an SVP. Defendant's refusal to participate in treatment, coupled with his current mental disorder of pedophilia (a sexual disorder affecting his volitional capacity), are sufficient to support the trial court's finding that he was a danger to the health and safety of others and was likely to engage in sexually violent criminal behavior if unconditionally discharged. (Sumahit, supra, 128 Cal.App.4th at pp. 352, 355 [the defendant's refusal to accept treatment, coupled with a valid diagnosis that he suffers from a sexual disorder (pedophilia) affecting his volitional capacity, are sufficient to sustain the court's finding that he will, if released to the community, represent a substantial danger of committing similar new crimes].) B. Ineffective Assistance
To the extent defendant challenges Dr. Groman's qualifications to render an expert opinion on defendant's suitability for release, he has forfeited his challenge by failing to object on this ground in the trial court. (People v. Dowl (2013) 57 Cal.4th 1079, 1087-1088.) Further, to the extent defendant challenges the credibility of Dr. Groman's opinion, "[i]t is not the role of this court to redetermine the credibility of experts or to reweigh the relative strength of their conclusions." (People v. Poe (1999) 74 Cal.App.4th 826, 831.) The trial court credited Dr. Groman's testimony that defendant was not suitable for release because he was likely to engage in sexually violent behavior due to his mental disorder. Defendant's mental disorder of pedophilia, coupled with Dr. Groman's testimony, is substantial evidence supporting the trial court's denial of defendant's petition for unconditional discharge.
" ' " '[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citations.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " [Citations.]' " (In re Hardy (2007) 41 Cal.4th 977, 1018.) "Ineffective assistance of counsel under the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a similarly objective standard of a reasonable probability of a more favorable outcome in the absence of the deficient performance." (People v. Cole (2004) 33 Cal.4th 1158, 1202, fn. 11.)
"[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington (1984) 466 U.S. 668, 697.)
Defendant contends trial counsel was deficient in failing to elicit the following information from Dr. North's expert report: (1) in 2012 defendant received a score of 8 on a PCL-R exam, indicating that he was in the very low range of psychopathy; and (2) defendant's score of -1 on the Static-99R, combined with his age and SRA-FV (Structured Risk Assessment-Forensic Version) score, demonstrated that he had less than a 1.9 percent chance of reoffending over a five-year period. In addition, defendant contends trial counsel was deficient for failing to elicit more detailed information from Dr. North about the SRA-FV, its use in scoring the Static-99R, and why it demonstrated defendant was unlikely to reoffend. Defendant further contends that trial counsel was deficient for failing to elicit testimony from Dr. North about his health status, including his recent urinary tract infections and cancer. According to defendant, the trial court should have been informed that he told Dr. North he no longer had a desire to masturbate since his kidney was removed as part of cancer treatment, and that sex was not important to him anymore. Finally, defendant contends that trial counsel was deficient for failing to elicit additional information from Dr. North about his community release plan, including his plan to live in an adult mobile home community where he would avoid contact with children. According to defendant, the trial court should have been informed that he would not be in contact with any children because he only planned to cook, garden, play card games, and spend time with family and friends.
On this record, we do not find ineffective assistance of counsel. Defendant has failed to show prejudice from the alleged deficient performance. At trial, Dr. North testified that he did not administer a PCL-R exam to defendant because there was nothing in defendant's CSH records or behavior indicating he was a psychopath. Dr. North also testified that defendant's scores on the Static-99 test and the SRA showed that he was a very low risk of committing a new sex offense. Dr. North specifically opined that defendant did not pose "a serious, well-founded risk of reoffending." Dr. North identified several factors that made defendant suitable for unconditional discharge, including, among others, his advanced age, his low or nonexistent sex drive, and his low level of psychopathy. When Dr. Gorman testified, she noted that defendant claimed he was no longer sexually aroused by children and did not masturbate to sexual thoughts about children. There was also evidence that defendant planned to stay away from children if he was released, and intended to spend his time cooking, gardening, visiting with friends, and playing cards.
In view of the evidence presented at trial, including defendant's refusal to participate in treatment, defendant has failed to demonstrate a reasonable probability of a different outcome. We cannot conclude that but for the alleged deficient performance, the result of the proceeding would have been different.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
MAURO, J.