Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. F442851 Roger Picquet, Judge
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, Lance E. Winters, Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Randall Pete appeals from an order determining him to be a mentally disordered offender (MDO), and committing him to the Department of Mental Health for treatment. (Pen.Code, § 2962 et seq.) He contends that the evidence is insufficient to support the findings that he qualified as an MDO. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Appellant has a long history of mental illness, and was first treated with psychotropic medications in the 1980's. His diagnoses have included psychotic disorder, not otherwise specified (NOS), and depressive disorder NOS.
In 1990, when appellant was 27 years old, he was arrested and convicted of sexual offenses after his 14-year-old cousin reported that he had sexually abused her for two or three years. A court sentenced him to prison for three years.
The commitment offenses in this case occurred on April 2, 2001. Several young girls, including the 11-year-old victim, were selling pies door-to-door to raise money for her school. They knocked on appellant's apartment door. He took them upstairs to his mother's apartment and she bought a pie. Appellant told the girls to return to his apartment at 7:00 p.m. to sell him a pie. When the victim returned that evening, appellant let her into his apartment, said he could not read and asked her to read the Bible to him. After reading to him, the victim said that she had to leave. Appellant grabbed her, pulled down her pants and underwear, and licked her vagina while holding her. Appellant was arrested and charged with multiple offenses. He pleaded guilty to committing a lewd or lascivious act on a person under 14 years of age, false imprisonment and sexual battery. (§§ 288, subd. (a), 236, 243.4, subd. (c).) The court sentenced him to state prison for nine years and four months.
While in prison, appellant received treatment at the management system level of care and the enhanced outpatient level of care. Appellant was on parole for one day in March 2009, but returned to prison because he violated the conditions of his parole by drinking alcohol. Later in 2009, appellant was placed in a mental health crisis bed on several occasions. After his October 2009 admission to Atascadero State Hospital (ASH), doctors diagnosed him with psychosis, schizophrenia, undifferentiated type, pedophilia and antisocial personality disorder (psychotic disorder). He received treatment for his psychotic disorder for at least 90 days in the year preceding his scheduled October 14, 2009 parole date, but received no treatment for his pedophilia.
On January 25, 2010, the Board of Prison Terms certified that appellant met the MDO criteria. Appellant petitioned for a review of this certification pursuant to section 2966. He waived his right to a jury trial.
During the hearing, the trial court considered and admitted reports of the five doctors who evaluated appellant: Brandon Yakush, Psy.D., Forensic Psychologist (March 3, 2010 report); Robert Sargent, Ph.D, Forensic Psychologist (September 10, 2009 report); Andrea Shelley, Psy.D, Psychologist, California Department of Mental Health (September 15, 2009 report); Michael J. Selby, Ph.D. (October 30, 2009 report); and Dawn Starr, Ph.D. (October 27, 2009 report). The doctors concurred that appellant suffered from pedophilia as well as severe psychotic disorders. Drs. Selby, Sargent and Starr concluded that his pedophilia and his psychotic disorder each played a role in his commitment offense. Drs. Yakush and Shelley concluded that his psychotic disorder did not play any role in, or significantly influence, his behavior in the commitment offense.
The trial court expressed concern that "rather than provid[ing necessary treatment] the pressure [could lead]... the Department [of Mental Health to] find another disorder so then we can say, well we treated him for depression and we treated him for psychotic symptoms, we treated him for hangnails, therefore he meets the criteria." The court further indicated that it would "much rather see a system where something as significant as pedophilia is receiving treatment" and expressed its hope that the district attorney's office would... address[] that" to avoid "the risk of... people coming up with other diagnoses to support [an MDO] commitment."
The trial court ultimately concluded that the psychotic disorder was a cause or aggravating factor in the commitment offenses and denied the petition. Before doing so, it stated that it was a "close call" and that if there had not been "significant evidence that... [appellant's] psychotic condition... preexisted the commitment offense..., the court would have had a reasonable doubt as to whether or not it was an [aggravating factor]."
DISCUSSION
"The purpose of the MDO law is to protect the public by identifying those prisoners who would pose a danger to society upon release due to their mental disorder. [Citation.]" (People v. Martin (2005) 127 Cal.App.4th 970, 974.) "In order to qualify an MDO for commitment, the trial court must make a finding that the prisoner meets six statutory criteria. (§ 2962, subds. (a)-(d)(1).) Among them, the court must determine whether the prisoner's severe mental disorder was one of the causes or an aggravating factor in the commission of the crime for which he was sentenced to prison (§ 2962, subd. (b); People v. Green (2006) 142 Cal.App.4th 907, 911) and whether the prisoner received treatment for that disorder during at least 90 days of the year immediately preceding his parole or release (§ 2962, subd. (c)).
"We review the court's finding on an MDO criterion for substantial evidence, drawing all reasonable inferences and resolving all conflicts in favor of the judgment. [Citations.]" (People v. Martin, supra, 127 Cal.App.4th at p. 975.) We cannot determine the credibility of witnesses or reweigh the evidence. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.)
Appellant notes that Drs. Yakush and Shelley concluded that his psychotic disorder had no relationship to the commitment offenses, which support his position. But the issue is not whether there is evidence to support his position; it is whether substantial evidence supports the judgment. Here there is substantial evidence.
Appellant stresses that Drs. Yakush and Shelley observed that nothing in the facts of the commitment offenses indicated that appellant displayed any symptoms of a psychotic disorder or schizophrenia, or otherwise behaved bizarrely just prior to those offenses. However, three other doctors interviewed appellant, reviewed his records, considered the facts of the commitment offenses, and concluded that his psychotic disorder caused or was an aggravating factor in the offenses. They stressed the impaired judgment and lack of impulse control associated with appellant's psychotic disorder. The facts of the commitment offenses exemplify impaired judgment and lack of impulse control. Sufficient evidence supports the doctors' conclusions that appellant's psychotic disorder caused or was at least an aggravating factor in the commitment offenses. (People v. Valdez (2001) 89 Cal.App.4th 1013, 1017-1018.)
Citing People v. Gibson (1988) 204 Cal.App.3d 1425, 1439-1440, appellant seems to argue that the experts who concluded that his psychotic disorder caused the commitment offenses improperly relied on the fact that he suffered from a severe mental disorder--a separate MDO criteria. In so arguing, he refers to experts' references to the fact that appellant had been treated for those disorders for many years before the date of his commitment offenses. This argument is not persuasive, despite the trial court's emphasis on the fact that the psychotic disorder existed before the date of the commitment offenses. The experts who found that appellant's psychotic disorder was an aggravating factor in the commitment offenses recognized that those offenses displayed key aspects of his psychotic disorder (impaired judgment and lack of impulse control). For example, Dr. Selby wrote that appellant's "sexual pathology... causes him to view pre-pubescent females as sexually desirable and... impairs [his] volitional capacity to resist prurient urges regarding little girls, " and that his psychotic disorder "further lowered his ability to understand and control his sexual urges, which caused him to commit the qualifying offenses."
People v. Gibson, supra, 204 Cal.App.3d 1425 was superseded on another ground by statute and a subsequent United States Supreme Court decision, Kansas v. Hendricks (1997) 346, 350, 352, as this court recognized in People v. Robinson (1998) 63 Cal.App.4th 348, 350, 352.
Noting that pedophilia involves a lack of impulse control and impaired judgment, appellant argues that the court's finding that his psychotic disorder caused or was an aggravating factor in the commitment offenses "ignored the fact that appellant's volition control was already inhibited as a result of his pedophilia, ... for which appellant... had not been treated in the year preceding his schedule parole." He then argues that "for the experts and trial court to hold that the offense committed by appellant, a diagnosed pedophile, was caused or aggravated by his psychosis or schizophrenia would be tantamount to blaming the Gulf Coast oil spill on ocean breezes, rather than the drilling rig explosion." We disagree. Appellant's psychotic disorder and his pedophilia each impaired his judgment and reduced his impulse control, and caused or constituted an aggravating factor in the commitment offense, as required by section 2962, subdivision (b). Nothing in that statute precludes an expert or a court from concluding that one disorder caused or constituted an aggravating factor where some of its characteristics overlap with those of another co-occurring disorder.
Appellant further argues that upholding the trial court's finding would contravene the policies underlying the MDO law by enabling prosecutors to base an MDO commitment upon subordinate or secondary disorders that were at most tangentially related to the offense, but for which the prisoner in fact received treatment, to "avoid treating a prisoner's most obvious and serious disorder, while continuing to subject that prisoner to continued involuntary confinement as an MDO." In making this argument, appellant cites People v. Sheek (2003) 122 Cal.App.4th 1606, an inapposite case. In Sheek, an expert testified that two disorders--pedophilia and depression--caused or were aggravating factors in the commitment offense. The prisoner's depressive disorder could not satisfy the MDO criteria because it was in remission during the relevant timeframe. The prisoner had been treated with medication (Zoloft) for his depressive disorder but had not received any specific treatment for his pedophilia. A doctor testified that the Zoloft could have incidentally lowered his libido and therefore could be considered as a treatment for pedophilia. The trial court concluded that the prosecution failed to offer proof that the prisoner was treated for pedophilia, and the reviewing court upheld its conclusion. (Id. at pp. 1609-1611.) Here, in contrast, appellant's psychotic disorder was not in remission, and he received treatment for it. Further, it was more than "tangentially related" to the commitment offenses.
Moreover, the disposition of this case should not undermine the policy of the MDO law. The trial court carefully analyzed the evidence before it concluded that appellant's psychotic disorder was a cause or a contributing factor in the commitment offenses. The court also candidly expressed concern that appellant had not been treated for pedophilia in the year before his October 14, 2009 parole date. Under the circumstances, we trust that the Department will have provided appellant with at least 90 days of such treatment since the 2010 hearing, or that the Department will have made a showing why he could not have received such treatment.
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.