Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F435746 San Luis Obispo County Hugh F. Mullin, III, Judge
(Retired Judge of the Santa Clara Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Sharlene A. Honnaka, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Rick Lee Hicks appeals from his involuntary commitment as a mentally disordered offender (MDO) under Penal Code section 2960 et seq. He contends that the commitment order must be reversed because he was indisputedly in remission for the disorder for which he was committed. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
In 1999, appellant was convicted of committing lewd and lascivious acts on a three-year-old girl, a qualifying offense under the MDO statutes. (Pen. Code, §§ 288, subd. (a) & 2962, subd. (e)(2)(I).) Appellant had two prior convictions for committing lewd and lascivious acts on children. He was sentenced to 12 years in state prison. His parole release date was July 22, 2009. While in prison he received treatment for major depressive disorder.
On April 1, 2009, the Chief Psychiatrist for the Department of Corrections and Rehabilitations certified that appellant was an MDO. When appellant arrived at Atascadero State Hospital (ASH) on April 24, 2009, he was diagnosed for the first time with pedophilia.
Less than 90 days later, on July 22, 2009, the Board of Prison Terms (BPT) determined that appellant met all six criteria for commitment for MDO treatment as a condition of parole. (§ 2962.) He challenged that determination by petition to the trial court. (§ 2966, subd. (b).) The court conducted a bench trial in September 2009 after appellant waived jury.
Michael J. Selby, Ph.D., testified that he evaluated appellant on June 16, 2009. Appellant was suffering at that time from two severe disorders: major depressive disorder and pedophilia. Neither disorder was in remission and both contributed to the commitment offense. Appellant had received at least 90 days of treatment for major depressive disorder in the year preceding parole. He received no treatment for pedophilia in prison, and fewer than 90 days of treatment for pedophilia at ASH. He received psychotropic medication for depression while in prison.
Appellant had a long history of depression, including two suicide attempts as a teenager and one when he was arrested for the commitment offense. Appellant's symptoms of depression were suicidal ideation, suicide attempts, difficulties with sleep, poor appetite, and lethargy. Although he exhibited no signs or symptoms of depression in June 2009, the major depressive disorder was not in complete remission because he had exhibited overt symptoms in February of 2009, including, "restricted affect" and "appetite problems, " according to appellant's medical charts.
During Dr. Selby's evaluation, appellant admitted that he was sexually attracted to children and he described multiple pedophilic acts. Appellant told Dr. Selby that when he committed the offense, his long-term relationship with an adult male had just ended, and he had been using methamphetamine regularly to self-medicate for depression. In Dr. Selby's opinion, "[Appellant] was in fairly good control of his pedophilia, but as a consequence of the environmental stressors of the breakup of the relationship, he suffered a major depressive episode [and] used methamphetamine, both of which lowered his volitional capacity to control his sexual urges, and the crime was committed." Although pedophilia was the primary cause, the major depressive disorder also contributed. There was a high risk that appellant, because of his major depressive disorder, would not be able to control his sexual urges and would commit more sexual crimes.
John Eibl, Ph.D., a clinical psychologist in the Forensics Department at ASH, testified that he evaluated appellant on August 26, 2009. In his opinion appellant was suffering from pedophilia, but was not suffering from major depressive disorder, at the time of the BPT hearing in July. Pedophilia contributed to the commission of the underlying offense, but major depressive disorder did not because depression decreases libido. Moreover, in Dr. Eibl's opinion, the depressive disorder was in remission at the time of the BPT hearing. Dr. Eibl, observed no signs or symptoms of a depressive disorder in August 2009. The primary diagnosis in April 2009 was not depression. Appellant had stopped taking anti-depressants before he arrived at ASH. Appellant's pedophilia was not in remission and he posed a substantial danger to others. With respect to depression, Dr. Eibl conceded that appellant was committed for a suicide attempt when he was arrested for the commitment offense. (Welf. & Inst., § 5150.) Appellant told the officers that his mother had died, his long-term relationship had fallen apart, he had recently filed for bankruptcy, and he could not take it anymore.
The trial court requested briefs on the question of whether the prosecution was impermissibly using appellant's treatment for depression to commit him for pedophilia, a disorder for which he had not been treated. (People v. Sheek (2004) 122 Cal.App.4th 1606.) It concluded that "the people are not attempting to bootstrap the treatment petitioner received for his depressive disorder onto his later diagnosed pedophilia." The court did not consider pedophilia in deciding the petition.
Relying only on the major depressive disorder, the trial court found that each of the six criteria for commitment had been proven beyond a reasonable doubt. The court found that the major depressive disorder was not in remission based on Dr. Selby's testimony that appellant had exhibited symptoms of depression in February 2009 and had been treated in prison for more than six months for depression. It found that the major depressive disorder was a cause or aggravating factor in the commitment offense based on the testimony of Dr. Selby that it lowered appellant's volitional capacity to control his sexual urges.
DISCUSSION
Appellant contends that his commitment is unauthorized because his depression was indisputedly in remission on the date of the BPT hearing. We disagree.
Six criteria are necessary for initial commitment as an MDO: (1) the prisoner has a severe mental disorder; (2) he committed a qualifying offense; (3) his severe mental disorder was a cause or aggravating factor in his commission of that offense; (4) the disorder "is not in remission or cannot be kept in remission without treatment"; (5) he was treated for the disorder for at least 90 days in the year prior to parole; and (6) as a result of his disorder he represents a substantial danger of physical harm to others by reason of the disorder. (§ 2962.)
A prisoner who disagrees with a BPT determination that these criteria have been met may petition the superior court for a hearing at which the certifying agency has the burden of proving each of the criterion beyond a reasonable doubt. (§ 2966.) Evidence of behavior or mental status subsequent to the BPT hearing may not be considered. (Id., subd. (b).) We review the trial court's determination for substantial evidence. (People v. Pace (1994) 27 Cal.App.4th 795, 797.)
The prosecution must show that the defendant was treated for the same mental disorder for which the commitment is sought. (People v. Garcia (2005) 127 Cal.App.4th 558, 567.) Thus, the trial court properly refused to consider commitment based on pedophilia, a disorder for which appellant had not received the required treatment.
In People v. Sheek, supra, 122 Cal.App.4th 1606, ninety days of drug treatment for a prisoner's depressive disorder did not qualify as treatment for his pedophilia. There was insufficient evidence that he met the commitment criteria based on either disorder because his depression was in remission and he had not been treated for pedophelia. Sheek does not control here because Dr. Selby offered evidence that appellant's depression was not in remission. Each of the commitment criterion is the proper subject for expert testimony. (People v. Miller (1994) 25 Cal.App.4th 913, 917.)
There was substantial evidence that appellant met the MDO criteria based on his major depressive disorder. Appellant displayed no signs or symptoms of depression in June or August of 2009 when the experts evaluated him, but he had displayed overt symptoms five months before the BPT hearing. "Remission" for purposes of the MDO statutes, means that "the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support." (§ 2962, subd. (a).) Whether momentary control is sufficient, or whether it must be sustained over a particular period of time, is not answered by the statute. If it is answered in science, such testimony was not elicited. The experts offered conflicting opinions on the question and disagreed whether five months of control constituted complete remission. The court credited Dr. Selby. It is the trial court's role to resolve conflicts in the evidence. We do not reweigh the evidence on appeal. (People v. Pace, supra, 27 Cal.App.4th at p.798.)
DISPOSITION
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.