Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. MH101053, Bernard E. Revak, Judge.
HALLER, J.
In 2007, John Norman, a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.), filed a petition for conditional release (§ 6608). The trial court granted the petition and placed Norman in the community under the supervision of Liberty Healthcare (Liberty), which provides services on behalf of the Department of Mental Health's Conditional Release Program. About three months later, Liberty requested that Norman's conditional release be revoked. (Pen. Code, § 1608.) At a revocation hearing in 2009, the court determined that Norman had violated several of the terms and conditions of his release and revoked his conditional release.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
Norman does not challenge the sufficiency of the evidence to support the finding that he violated the conditions of his release. Rather, he argues the court erred in revoking his conditional release because (1) the violations do not show that he was in need of extended inpatient treatment or that he had refused to accept further outpatient treatment; and (2) his ability to comply with the conditions of his release was "largely due to the institutional failure of the system to provide him with a social network that could assist and support him." We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Norman has a lengthy history of sexual activity and pornography with underage boys. The details of his criminal convictions are set forth in two unpublished opinions affirming two of his recommitments as an SVP. (People v. Norman (Sept. 30, 2004, D042457) [nonpub. opn.]); People v. Norman (Jan. 3, 2007, D047343) [nonpub. opn.].)
Between 1960 and 1999 Norman served numerous prison terms arising from incidents in which he sexually abused and exploited boys between the ages of 11 and 15 by orally copulating, sodomizing and fondling them and distributing child pornography. While out of custody in 1995, Norman published and distributed sexually explicit newsletters describing the sexual activities of boys ages 14 through 18. In 1999, after serving a prison term for distributing child pornography, he was declared an SVP and confined at Atascadero State Hospital. He was recommitted as an SVP in 2001, 2003, and 2005. In 2007, as a result of revisions in the SVPA, he was recommitted for an indeterminate term. (See People v. Norman, supra, D042457; People v. Norman, supra, D047343.)
On November 28, 2007, Norman, without the concurrence of the Director of Mental Health, petitioned for outpatient treatment through the conditional release program as provided by section 6608. The trial court granted the petition in March 2008 and in October 2008 the court ordered him released to the community under the supervision of Liberty.
As part of his release, Norman agreed to more than 50 terms and conditions, including those that: (1) placed restrictions on his daily activities and personal associations; (2) required that he actively participate in an individualized treatment program; (3) identified conditions applicable to individuals with a history of sexual offenses (e.g., prohibiting his possession of sexually stimulating materials); (4) mandated drug and substance testing; (5) allowed warrantless searches; and (6) provided for constant surveillance using GPS technology. Norman acknowledged that if he failed to comply with the terms and conditions, his outpatient treatment status could be revoked. He also agreed that he could be rehospitalized if the Community Program Director believed he could "no longer be safely treated in the community."
On November 7, 2008, Norman was placed in a residence in Boulevard, a small community located about 70 miles east of downtown San Diego. Norman, age 81, was supervised seven days a week, 24 hours a day. A security guard lived with him and drove him to his therapy sessions, appointments and errands in the community. In addition, a member of the Liberty community safety team contacted him at least once a day by phone and visited him at home at least once a week. As part of his weekly outpatient therapy, Norman attended 11 individual and 11 group therapy sessions with Dr. James Reavis, a psychologist and specialized sex offender treatment provider. He was provided 10- to 15-minute visits at the Gay and Lesbian Community Center in San Diego once a week, usually before or between his therapy sessions.
On February 2, 2009, Liberty recommended that Norman's conditional release be revoked because he was not cooperating in his therapy program; he had given a note to a young-looking male clerk at a grocery store; and he had sent letters to acquaintances who Liberty had not approved. Upon his arrest, other violations were discovered.
At a revocation hearing on March 11, 2009, the prosecution alleged Norman violated 10 different provisions of the terms and conditions of his conditional release: (1) failing to actively participate in all treatment requirements (condition A.1); (2) failing to cooperate in a meaningful manner in his individual treatment program (condition B.6); (3) associating with a known sex offender (condition A.10); (4) failing to consult with Liberty about the selection of a roommate, a major life decision (condition A.14); (5) possessing sexually stimulating or sexually oriented materials (condition B.4.c); (6) patronizing areas of sexual activity (condition B.4.d); (7) utilizing a "pay for call" phone service (condition B.4.e); (8) using MegaPhone (a communication service) without approval (condition B.4.1); (9) mailing letters without permitting Liberty to review them (condition C.4); and (10) deceiving or lying to Liberty personnel (condition C.29). The prosecution presented four witnesses and several exhibits to substantiate these claims.
Jayne Shale, Liberty's Executive Director and Community Program Director, testified that Norman did not meaningfully participate in his therapy. Although he attended the required sessions, he remained fixated on young boys, he was unwilling to look at his history, he expressed no empathy for his victims, and he was convinced he had not caused his victims any harm. Norman's attitude was contrary to a key component of sex offender treatment and created an impasse in his outpatient treatment. In an interview before the revocation hearing, Norman told Shale he had no remorse for his conduct. In response to her inquiry as to matters he was proud of, Norman referred to a pornographic book he had published that featured teenage boys and a club he had founded where young boys were mentored by men and which included some sexual activities.
Shale also testified that Norman requested and received permission from Liberty to communicate with an adult male, who Norman misidentified and who Liberty later learned was a sex offender Norman had known at Coalinga State Hospital. She further described several incidents she contended violated the terms of Norman's conditional release: (1) attempting to locate a roommate without consulting Liberty; (2) placing advertisements for a young male roommate in the Gay and Lesbian Times describing himself as being "as much into good company as sex"; (3) secretly opening an account (in which he identified himself as "a top") with Megaphone, a telephone social network service used by subscribers for dating, developing long-term relationships and casual sex; (4) possessing newspaper and magazine clippings of young men and underage boys; (5) possessing pornographic materials; and (6) posting the pictures of several young men and underage boys on the wall of his enclosed toilet area, including a picture bearing the handwritten name of one of his victims.
A "top" is a person who gives sexual activity.
According to Shale, Norman continues to display classic sex offender characteristics-deception, secretiveness and manipulation-and her staff cannot adequately supervise him in the community and "assure the community that we can keep it safe from Mr. Norman." Shale stated that her team's concerns about Norman coalesced when it learned that he had passed a note (apparently containing his name and telephone number) to a young-looking male clerk at a grocery store.
The young male was actually 19 years old.
Dr. James Reavis, who treated Norman in individual and group therapy, testified that he quickly formed the impression that Norman was "very resistant" to doing the necessary work to modify his behavior and thought that ultimately he would be immune to treatment. He opined that Norman was unwilling to examine the issues and determined that he had no intention of changing. In response to a therapy assignment, Norman prepared a 75-page, detailed, florid account of his molestations of underage males, recounting more than 175 sexual encounters with underage boys ranging in age from 11 to 17. Reavis was "astonished" that someone with such little remorse would have been released for outpatient treatment. As treatment progressed, Reavis concluded that Norman was "an unrepentant adult male sex offender..., " who had no empathy for his victims, viewed them as conquests and believed his conduct had not harmed anyone.
Norman testified on his own behalf. He admitted he violated the terms and conditions of his release and understood that these conditions strictly constrained his behavior in the community. Norman also stated that he participated in all of his therapy sessions, but thought that his treatment should focus on avoiding a relapse as opposed to analyzing his past behavior. Concerning some of the specific violations, he stated he was trying to find a roommate because he was desperate for human contact beyond those associated with Liberty; he reached out to the young man at the grocery store because he was friendly and he thought he was over 18; he did not intend to deceive Liberty about the individuals he was communicating with by letter; and the photographs were ones he had had in jail and he thought the authorities knew about them.
The court concluded beyond a reasonable doubt that Norman had violated the terms and conditions of his release. The court noted that the conditions of Norman's release were restrictive, but these constraints were justified. The court observed that these restrictions were established to protect society, particularly young males, and that Norman's sexual conduct was so ingrained that he could not help himself and his release had been a failure. The court stated that he was the trial judge who granted Norman's request for conditional release and that the decision had been a mistake. In remanding Norman to the hospital, the court expressed the view that Norman had not been genuine in his attitude about treatment as he had failed to recognize that what he had done was wrong and that it had caused harm to his victims and society generally.
DISCUSSION
A person committed as an SVP may petition for "conditional release or an unconditional discharge without the recommendation or concurrence of the Director of Mental Health." (§ 6608, subd. (a).) If the court determines that the petition is not frivolous (ibid.), the court shall "hold a hearing to determine whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community." (§ 6608, subd. (d)). The person petitioning for conditional release has the burden of proof by a preponderance of the evidence that he or she qualifies for this form of treatment. (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1503.)
If the court determines that the committed person will not be a danger, the court shall order "the committed person placed with an appropriate forensic conditional release program... for one year." (§ 6608, subd. (d).) A substantial portion of that program "shall include outpatient supervision and treatment." (Ibid.) Throughout the program, the person remains under the court's jurisdiction. (Ibid.) The court is to be provided with a copy of the "written contract entered into" between the conditionally released SVP and the "entity responsible for monitoring and supervising the patient's outpatient placement and treatment program." (§ 6608.8, subd. (a).) The terms and conditions are to be drafted to "include reasonable flexibility to achieve the aims of conditional release, and to protect the public and the conditionally released person." (§ 6608.8, subd. (b).)
Persons placed in the conditional release program are subject to Penal Code sections 1605 through 1610 (§ 6608, subd (e)), which include provisions controlling revocation requests. Revocation of an individual's outpatient status can be initiated by the prosecution (Pen. Code, § 1609) or by the director of an outpatient program (Pen. Code, § 1608). As applicable here, Penal Code section 1608 provides that the director may file a written request for revocation if the outpatient treatment supervisor believes that the patient "requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision."
Upon such request, the court must hold a de novo hearing which includes "the constitutional requirements of confrontation, cross-examination, and a fact-finding hearing by a neutral body applying a preponderance of the evidence standard of proof." (In re McPherson (1985) 176 Cal.App.3d 332, 340, fn. omitted; People v. DeGuzman (1995) 33 Cal.App.4th 414, 420.) The burden is on the prosecution to establish that revocation is appropriate. If the court grants the request, the court must order the defendant confined in a treatment facility. (Pen. Code, § 1608.) On appeal, an order revoking outpatient status is reviewed for substantial evidence. (People v. DeGuzman, supra, 33 Cal.App.4th at p. 420.)
In re McPherson, supra, 176 Cal.App.3dat page 340 held that the preponderance of the evidence standard applies at revocation hearings. Here, appellant contends that because of changes in the law providing for indeterminate commitments for sexually violent predators, the burden of proof should be beyond a reasonable doubt. Because the trial court applied the higher standard, we need not consider whether recent revisions compel a change in the standard of proof.
Norman properly asserts that where revocation is sought pursuant to Penal Code section 1608, the prosecution must establish that the outpatient SVP required extended inpatient treatment or refused to accept further outpatient treatment and supervision. He contends the prosecution presented no evidence regarding the need for extended inpatient treatment and insufficient evidence of his refusal to accept further outpatient treatment and supervision. We disagree.
Shale's and Reavis's testimony and Norman's 75-page writing provided ample basis for the court to conclude that both prongs of Penal Code section 1608 had been established. Concerning outpatient treatment and supervision, Shale and Reavis made clear that although Norman attended the required therapy sessions, he mocked the process, he had no intention of meaningfully participating in the program, he rebuffed all requests to examine his past behavior and he manifested an attitude totally at odds with treatment objectives.
These witnesses, who had considerable experience treating and working with sex offenders, expressed serious concerns about Norman's lack of remorse and failure to recognize that his conduct had caused harm. Shale noted that Norman's disposition created an "impasse in his out-patient treatment" and Reavis was "astonished" that someone with so little remorse had been released to outpatient treatment. Because the purpose of treatment is to reduce the threat of harm an SVP poses to the public (People v. Grassini (2003) 113 Cal.App.4th 765, 781), something more than mere attendance is required. Where, as here, Norman's attendance was coupled with disdain for the process, the court did not err in concluding that Norman refused to accept further outpatient treatment.
Likewise, Shale pointed to numerous examples of Norman's unwillingness to comply with the terms of his outpatient release and noted that because he remained manipulative, secretive and deceptive, her staff could not adequately supervise him or assure the public's safety. This evidence supports the court's conclusion that Norman refused supervision.
Norman also contends that because none of the witnesses expressly stated that he requires extended inpatient treatment, his revocation cannot be sustained on this basis. The argument fails. Upon a defendant's commitment as an SVP, the state is required to provide "treatment for his or her diagnosed mental disorder" (§ 6606, subd. (a)) and must assess his or her mental condition at least once every year (§ 6605, subd. (a)). The objective of the treatment is to "so change[]... the person" that he or she is not likely to commit acts of predatory sexual violence while under the supervision and treatment in the community. (§§ 6607, 6608.) Where conditional release fails and the SVP is thereafter confined in a treatment facility, it follows logically that extended inpatient treatment is required to reduce the threat of harm otherwise posed to the public. (See Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143-1144.)
Additionally, although Shale did not expressly state, nor was she asked, whether additional inpatient treatment was required, her testimony supports this conclusion. She opined that Norman remained fixated on young, underage males and referenced the significance of the photographs of young boys located on the wall of his enclosed bathroom area. She also noted that after the incident with the young-looking male at the grocery store, her team became increasingly concerned with its ability to adequately supervise Norman and "keep [the community] safe from Mr. Norman...." The evidence supports the conclusion that Norman required extended inpatient treatment to reduce the threat of harm he posed to the public.
In an attempt to undermine the propriety of the court's findings, Norman argues that his failure to comply with the terms of his conditional release were due "largely" to institutional failure. He complains about his placement in a remote location; states that his only contact was with Liberty personnel; suggests that with additional resources he would have succeeded; and claims that the terms of his release were inflexible and onerous.
However, Norman agreed to the terms and conditions of his release. Had he wished to challenge these conditions, his remedy was to have filed a writ of habeas corpus. (See People v. Ciancio (2003) 109 Cal.App.4th 175, 193.) Moreover, Norman has not shown that the manner in which his release was managed was the cause of his noncompliance. Regardless of any dissatisfaction with the implementation of his release, this would not excuse his failure to cooperate with the therapeutic process and to abide by the express conditions of his release.
Additionally, the record shows that Norman was provided with significant resources to facilitate his success in the community. A team of trained individuals worked with him and contacted him at least once a day by phone and once a week in person. He attended weekly individual and group therapy sessions and on those days had the opportunity for brief visits at the Gay and Lesbian Community Center. A security guard lived with him, and he was transported regularly within the community so that he could attend to personal errands. These facts show the opportunity for social contact, in both a therapeutic and non-therapeutic context.
As noted by the trial court, the conditions of Norman's release into the community were "very restrictive. And justifiably so." Norman has not established that he was deprived of opportunities for social interaction unrelated to the need to closely monitor his activities to protect the public. Further, the record supports that the services incorporated into his conditional release program, including therapy and transportation, provided a springboard for him to develop appropriate social networks had he genuinely wanted them. Norman has not cited any legal authority that requires more extensive services to assist an SVP with social networking upon conditional release.
Norman's reliance on People v. Grassini, supra, 113 Cal.App.4th 765 and section 6608.8, subdivision (b), does not advance his argument. In Grassini, the court observed that the SVPA "provides for confinement of SVP's until they no longer pose a threat to society, thereby employing the least drastic method of attaining its purpose of the protection of society" and noted that the conditional release provisions constitute "less restrictive alternatives to confinement." (People v. Grassini, supra, at p. 781.) The Grassini court addressed a due process challenge arising from the trial court's refusal to consider conditional release in lieu of confinement, and did not address the terms and conditions of a specific conditional release or otherwise evaluate whether the terms were "drafted to include reasonable flexibility to achieve the aims of conditional release and to protect the public and the conditionally released person." (§ 6608.8, subd. (b).)
Where there is a showing that the SVP's condition has materially improved and that he or she is not likely to commit acts of predatory sexual violence, the SVPA provides for conditional release. The release terms should be designed to be reasonably flexible to achieve the aims of conditional release, and to protect the public and the conditionally released person. Norman has not established that his program, which provided for monitoring, contact, and supervised access to the community, did not meet these requirements.
In his reply brief, Norman suggests that the perceived institutional failures and terms of his conditional release were so onerous that his due process rights were violated. An appellate court need not consider arguments raised for the first time in a reply brief or raised without citation to legal authority (People v. Peevy (1998) 17 Cal.4th 1184, 1206; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327), and we decline to do so here.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J.IRION, J.