Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Benito County Super. Ct. No. CV-01-27684
Mihara, J.
After the jury found Lance Duane Purcell to be a sexually violent predator (SVP), the trial court extended his civil commitment in the custody of the State Department of Mental Health pursuant to the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). On appeal, defendant contends that there was insufficient evidence to support the finding that he currently had a qualifying mental disorder that rendered him unable to control his conduct. We find no error and affirm.
All further statutory references are to the Welfare and Institutions Code.
I. Statement of Facts
Defendant stipulated that he had suffered two qualifying convictions that are predicate priors under the SVPA.
Two mental health professionals testified as prosecution experts at trial. Dr. Robert Owen testified that he evaluated defendant when he was originally committed as an SVP in 2003 and again in 2005. Dr. Owen interviewed defendant in 2003, but defendant refused to be interviewed by him in 2005 unless the interview was tape recorded. Dr. Owen was not allowed to tape record the interview without a court order. Though a court order was eventually obtained, it is unclear whether Dr. Owen knew about the order. In any event, Dr. Owen based his evaluation on defendant’s interview in 2003, defendant’s file from Atascadero and Coalinga State Hospitals, his medical records from 1965 to the present, his prison and criminal history records, and conversations with defendant’s treating physicians.
Dr. Owen testified that defendant’s two qualifying prior convictions were “the tip of the iceberg.” These convictions were for two forcible rapes in 1976. The first offense occurred when defendant grabbed an 18-year-old woman, threatened her with a handsaw blade, fondled her crotch area, made her take her pants down, and raped her. The second offense involved a 14-year-old girl. Defendant, who had a rifle, forced the girl to kneel down, licked her chest, orally copulated her, and raped her.
Dr. Owen then testified regarding defendant’s extensive history of sexual offenses. At age 13, defendant, while wearing a ski mask, went to a girl’s home in his neighborhood and exposed his erection to her. “Since then, he has had multiple occasions where he has exposed his penis to unsuspecting people. In ’62, Santa Clara County, he did that. 1962, again. He was only 13 years old. He -- has sustained charges of molest[ing] and annoying a child, was placed in juvenile halls [sic] and then the James Boys’ Ranch in the San Jose area . . . .” In 1963, three or four days after being released from the ranch, defendant stopped a girl on the street and asked her to pull her pants down. After he was arrested, he was sent to the California Youth Authority (CYA).
Defendant was released from CYA in 1965 when he was 18. Defendant was riding a motorcycle and stopped a nine-year-old girl. After she refused to go with him, he told her he was a member of the police department and that if she did not cooperate, he was going to call the police. He had her lie down and take off her clothes. When he began masturbating, she screamed and ran away. Defendant was then sent to Atascadero State Hospital as a mentally disordered sex offender.
Between 1969 and 1976, defendant was arrested five times, mostly for indecent exposure. In 1976, he was arrested and convicted of the qualifying offenses. At that time, defendant faced other charges. He drove by two girls, who were 11 years old and 10 years old, held up pornographic material, and made lewd comments. He also approached another girl with a rifle and attempted to force her into his car. She ran away. He offered yet another girl $10 to get in his car and “play nasty” with him.
In 1982, while defendant was on parole, he approached Diane B. and slugged her in the head. The same day, he approached two other females and forced them into some bushes at knifepoint. They ran away and contacted the police. The police then located defendant and found alcohol and pornography in his car. Defendant returned to prison.
In 1989, defendant committed several parole violations. On numerous occasions, he drove by girls, showed them pornography, and made comments that were designed to get “a reaction.” The victims were a 14-year-old, a 15-year-old, two 7-year-old, and two 9-year-old girls.
In 1993, after defendant was released from prison, he approached an eight-year-old girl and asked her to look at a map in his van. She became frightened and ran away. On another occasion later that year, defendant concealed his license plate with tape. He put on a wig and sunglasses and approached a five-year-old girl. He pointed a gun at her and told her to get in the van or he would shoot her. His pants were down to his knees. The girl’s father saw defendant and chased him. The police eventually stopped defendant and found a .32 caliber revolver, three pairs of sunglasses, wigs, makeup, and masking tape in his vehicle. Defendant was convicted of attempted kidnapping, annoying and molesting a child, and ex-felon in possession of a handgun, and sentenced to 16 years in prison. Dr. Owen noted that this last offense demonstrated that defendant was becoming “more sophisticated,” because he used a disguise, concealed his license plate, and attacked younger victims.
According to Dr. Owen, “[t]his case here is certainly much worse than almost any case I see, even in the Sexually Violent Predator realm, where we see some of the most serious offenders. This case has more arrests, many more convictions starting at a much earlier age. The more serious escalation, this is far from common. This case, this is very unusual.”
Dr. Owen testified that defendant became a sexual deviant at an early age. His older brother sexually abused him. He was also sexually abused by a preacher. As a result of his early introduction to sexual abuse, defendant began “his own pattern of sexually exploitive conduct.” Defendant was not always held accountable for his conduct. He claimed to have committed 25 to 30 sexual offenses.
Defendant’s first wife left him because he was sexually deviant. He was married to his second wife, Arlene Webb, for four and a half years, and they had two sons. When they had sex, defendant was “fantasizing about rape and child molest[.] . . . In fact, he said this is what allowed him to climax is he needed these fantasies.”
Though defendant received treatment for his deviancy, he continued to commit sexual offenses. Dr. Owen explained that defendant’s illness was difficult to treat because it was “so entrenched” that it was “really a way of life.”
When Dr. Owen interviewed defendant in 2003, defendant said that his sexual fantasies were gone. However, Dr. Owen did not believe him, because defendant had previously claimed that he would not commit sexual offenses when he was released, and then had done so. In Dr. Owen’s opinion, defendant did not have “the skills to contain this level of sexual perversion.” Dr. Owen was also concerned, because in 2004 defendant took a polygraph exam and referred to two rape victims from the mid-1970’s that he had not mentioned during his treatment at Atascadero State Hospital.
Dr. Owen explained the five phase treatment program for SVPs at the state hospitals. In Phase I, men learn about the treatment program, while Phase II involves self-assessment. Defendant completed the first two phases of treatment. However, he dropped out of Phase III, in which men learn skills to deal with their sexual problems. According to Dr. Owen, “‘[w]hen asked about this decision to drop out of Phase III, Mr. Purcell stated, ‘As long as I’ve been involved in phase treatment, I made it clear that my reasons were selfish.’ [¶] Mr. Purcell stated that phased treatment is a direct contradiction to volitional control. In order to believe and continue going through treatment, he must believe that he lacks volitional control, which he does not. He states that he does have volitional control, and the commitment is fraudulent because it requires the lack of volitional control. [¶] Mr. Purcell did state that treatment was very helpful to him; however, there was a point where, quote, ‘The psychological effects of treatment outweigh the benefits, and I’ve reached that point . . . .’”
Dr. Owen found that defendant suffered from paraphilia, pedophilia, and exhibitionism. He also diagnosed him with alcohol abuse in a controlled environment, psychopathy, and personality disorder with antisocial features. Dr. Owen explained that “there are two ways of predicting whether a man’s going to offend. One is based on sexual deviance; no shortage of that here. The other is on general criminality and anti-social tendencies. So both of those ways help us predict whether a man’s going to offend, and we have both of those in this case.”
In Dr. Owen’s opinion, defendant was at high risk of reoffending if he did not receive appropriate treatment. Dr. Owen based this opinion, in part, on the results of the Static-99 test, which is an actuarial tool that estimates an individual’s risk for sexual reoffense. Defendant’s score on the Static-99 test correlated to a 52 percent chance of recidivism in 15 years. A score of 6 or higher places an individual in a high risk category for reoffending. Defendant’s score was 9. According to Dr. Owen, “a Static-99 score of 9 is extremely rare,” and he believed defendant fell “into a very select and highly dangerous group because of it.”
Though Dr. Owen acknowledged that defendant did not act out sexually while he was confined in state hospitals, he pointed out that there were no girls, pornography, or cars in the facilities. He also conceded that the rate of reoffense generally decreases with age. However, he pointed out that defendant committed his latest offense when he was 47 years old. In Dr. Owen’s opinion, defendant was so sexually deviant, the fact that he was 59 years old was not “going to make a difference.” Dr. Owen also did not believe that defendant would succeed with outpatient treatment. He noted that defendant did not previously seek outpatient treatment, did not have the financial resources to obtain treatment, was unlikely to seek treatment on his own, and had dropped out of treatment in the state hospital.
Dr. Owen concluded that “[o]f the five hundred plus evaluations I’ve done for SVP’s, I can think of just a handful who have this level of serious mental disorder and this level of dangerousness. I would certainly put him in a group of more serious offenders.”
Dr. Douglas Korpi interviewed defendant in 2003 and in 2005. He used a “meta analysis,” which is an examination of risk factors, to determine defendant’s likelihood for reoffense. Dr. Korpi determined that defendant had six of ten risk factors: he began committing sexual offenses at a young age; he had committed several sex offenses, and then reoffended; his victims were strangers; he had several “[n]oncontact” sexual offenses, thus he believed he was not harming his victims; he had deviant sexual interests; and he had an interest in pubescent girls. Based on these factors, Dr. Korpi concluded that defendant was at a “medium high or high risk to offend.”
Dr. Korpi next examined defendant’s “criminological orientation” and concluded that he was not “highly antisocial.” He noted that “most of the risk in this case probably derives from the sexual deviance, although these antisocial elements certainly don’t help the risk, and again [are] consistent with medium-high to high ratings on the actuarial index.”
Dr. Korpi testified that recidivism decreases with age. He pointed out that there is little data on individuals who reoffend after the age of 60, and thus the tests were “a little bit compromised.” However, he noted that the “only people that are reoffending in their late 50s, 60s, and 70s, . . . are the people who are really high risk to begin with.” He concluded that defendant’s age was a protective factor, but he did not know to what extent.
Dr. Korpi guessed that defendant was “probably not masturbating to deviant sexual fantasies.” He also pointed out that defendant’s ability to hold a job was a protective factor that “didn’t seem to make a whole lot of difference.” In Dr. Korpi’s view, defendant had an “[i]ntimacy deficit.” Though defendant had thoroughly examined his attitudes about his sexual offenses, Dr. Korpi noted that defendant had also previously performed well in therapy and committed sexual offenses when he was released. Dr. Korpi explained: “I mean, in any normal case I would say he’s all but completed treatment. Were it not for the fact that he’s been in treatment for six other times and it didn’t work, I would say this is a wonderful thing that he’s done the two years of treatment. But, I mean, this is a man with a disease that’s so ingrained and so powerfully part of him that this dropping out is going to be very problematic.”
Dr. Korpi diagnosed defendant with pedophilia and paraphilia. While an individual with these conditions cannot be cured, he can learn to change his behavior. However, defendant had repeatedly demonstrated that he was not able to do so. According to Dr. Korpi, defendant had a 45 percent likelihood of reoffense, plus or minus 12 percent, which put him in the high risk category. Dr. Korpi’s “bottom-line evaluation” was that defendant was “likely to sexually reoffend.”
Dr. Brian Abbott testified as an expert for the defense. Dr. Abbott interviewed defendant and defendant’s ex-wife, Arlene, reviewed defendant’s medical and criminal records, and administered the Millon Clinical Multiaxial Inventory-III (MCMI-III) and the Abel Assessment for Sexual Interest. According to Dr. Abbott, defendant was not currently suffering from a mental disorder as defined in section 6600.
Dr. Abbott testified that defendant’s adjustment when he was first committed to a state hospital was poor. However, defendant had responded well to treatment in his current commitment. Dr. Abbott also stated that defendant had told him that he had withdrawn from treatment, because information that he had provided had been used to justify continued commitment and he did not want to participate in a procedure called covert sensitization, which would have required him to conjure up sexual fantasies.
According to Dr. Abbott, defendant never became dependent upon alcohol. While defendant occasionally drank alcohol in the prison setting, he stopped doing so in 1995, and was participating in alcohol programs during his current commitment. Thus, defendant no longer met the criteria for an alcohol abuse disorder.
Dr. Abbott concluded that results from the phallometric test, the Multiphasic Sex Inventory, and the Abel Assessment for Sexual Interest indicated that defendant had no deviant sexual interests. Dr. Abbott also emphasized that defendant also did not exhibit any sexually deviant behavior while committed to Atascadero or Coalinga State Hospitals. Dr. Abbott believed that any indication on the MCMI-III that defendant suffered from a personality disorder was based on defendant’s past, rather than current, behavior. Dr. Abbott further noted that defendant’s treating psychologist diagnosed defendant with a personality disorder not otherwise specified with antisocial features based on the results of the Minnesota Multiphasic Personality Inventory and the MCMI-III. In Dr. Abbott’s opinion, the results were inaccurate because defendant had answered questions based on his “lifetime of behavior.”
Dr. Abbott testified that defendant displayed what “may look like personality disorder symptoms, but they’re really not.” He asserted that defendant did not have a personality disorder, because he was not currently exhibiting signs of one. He explained that “[w]ith a personality disorder so much a part of the person, they’re not going to be able to hide the symptoms for a protracted period of time, . . . especially when he’s under close supervision like he is . . . .”
Dr. Abbott did not believe that defendant suffered from a current diagnosis of pedophilia, based on his test results and his psychosexual history. He pointed out that the majority of defendant’s conduct was directed at pubescent, rather than prepubescent, females. According to Dr. Abbott, defendant’s “sexually acting out towards a young child during his teenage years was -- resulted from him trying to deal with his own sexual victimization and his own negative feelings that he was developing about sexuality because of what happened in his family.”
Dr. Abbott concluded that defendant suffered in the past from paraphilic coercive disorder. Defendant was a rapist who exercised power and control over his victims through his sexual behavior, and he chose younger victims because he could overcome their resistance, not because he was attracted to them.
Both defendant’s son, Damon Webb, and his ex-wife, Arlene, testified that they had continued to have contact with defendant while he was incarcerated or committed to the state hospital. They were willing to support him when he was released. Defendant had told them generally about his criminal history. Damon offered defendant a room in his home in Washington upon his release and planned to help him find a job. Defendant told Arlene that he intended to enroll in an out-patient program for sex offenders at the University of Washington and get a job as a prison minister.
Larry Waugh, a unit supervisor and psychiatric technician at Atascadero Hospital, testified that defendant was in his unit for four years. Though some patients had possessed banned pornography, defendant was never found with pornography. Defendant also never exposed himself or engaged in other inappropriate behaviors. Defendant explained to Waugh why he dropped out of treatment. He did not want to engage in deviant fantasizing, because he had actively worked to stop this behavior.
Defendant testified on his own behalf. He acknowledged that he had victimized between 25 and 30 individuals. Defendant entered the Phase Treatment program at Atascadero State Hospital, and worked very hard in the Phase II portion to replace his deviant fantasies. According to defendant, he has not had any deviant sexual fantasies since July 2000.
Defendant testified that during his prior commitment in the 1960’s and his incarceration in the 1980’s, the treatment that he received was inadequate. Regarding the Phase Treatment program, defendant stated that “there’s a lot of good stuff . . ., stuff that will stay with me for the rest of my life, and I’m a proponent of most of the truths that are in phase treatment.” Since defendant did not want to have deviant sexual fantasies, he consulted with his therapist about his concerns. This therapist told him that he would not have to participate in this part of the program. However, once he was in Phase III, his instructors told him that he was required to participate. Consequently, he dropped out of treatment, though he continued to “do phase work with other people” and attended some group meetings.
Defendant testified that he felt badly about his deviant behavior and was concerned that his behavior had affected other people’s lives. In order to refrain from such behavior, defendant explained that he would not engage in aimless driving or drinking alcohol. He also realized that he must be employed, and that he cannot rationalize or distort his behavior. He believes that reunification with his family will be stressful, but he has attempted to minimize this stress by discussing potential problems with them. Defendant intended to move to Washington, enter an out-patient treatment program, join a church, and help the pastor with the prison ministry. He also intended to be honest and forthcoming with people.
II. Discussion
Defendant stipulated that he has suffered two qualifying convictions. He contends, however, that there was insufficient evidence to support a finding that he “currently has a qualifying mental disorder or is unable to control his conduct.”
In order to recommit defendant as an SVP, the prosecution was required to prove that he was “a person who has been convicted on a prior occasion of a sexually violent offense against two 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 . . . will engage in sexually violent criminal behavior.” (Former § 6600, subd. (a)(1).) Under the SVPA, 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).)
In determining whether there is sufficient evidence to support a commitment under section 6600, “courts apply the same test as for reviewing the sufficiency of the evidence to support a criminal conviction.” (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) “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.’” (Ibid.)
In the present case, Dr. Owen diagnosed defendant with pedophilia, paraphilia, exhibitionism, and alcohol abuse in a controlled environment. Dr. Owen also noted that defendant is a “psychopathic man.” Dr. Korpi diagnosed him with pedophilia and paraphilia. Both experts agreed that defendant’s mental disorders were lifelong afflictions. Dr. Owen characterized them as “chronic problems; they don’t magically go away.” He believed that defendant’s illness was difficult to treat, because it was “really a way of life.” According to Dr. Korpi, defendant’s condition was not “curable.” Dr. Korpi also stated: “[T]his is a man with a disease that’s so ingrained and so powerfully part of him that this dropping out is going to be very problematic.” Thus, both prosecution experts testified that defendant suffers from mental disorders that impair his volitional capacity, and that he was likely to reoffend if released.
Contrary to defendant’s claim, Drs. Owen and Korpi did not rely entirely on defendant’s past conduct in making their diagnoses. In addition to reviews of his past criminal and medical records, their evaluations were based on recent interviews with defendant, his current medical records and test results, and conversations with his treating physicians. They also properly considered defendant’s current refusal to undergo treatment for sexual deviancy. (People v. Sumahit (2005) 128 Cal.App.4th 347, 354-355 (Sumahit).)
Defendant focuses, however, on the lack of any evidence that he has exhibited deviant behavior since 1994. He asserts that there is no evidence that he has sexual fantasies involving children, that he has child pornography in his possession, or that he has acted out sexually. Thus, defendant claims that he is capable of controlling his conduct. Defendant’s position is not persuasive. In Sumahit, supra, 128 Cal.App.4th 347, the court considered the same issue, and concluded that “[t]he fact that defendant has not misbehaved in a strictly controlled hospital environment does not prove he no longer suffers from a mental disorder that poses a danger to others. Defendant has an abnormal attraction to female children. Because he currently lacks access to children, his lack of outwards signs of sexual deviance is not dispositive of whether he is likely to reoffend if released into society at large. Such an assessment must include consideration of his past behavior, his attitudes toward treatment and other risk factors applicable to the facts of his case. [Citation.] This was precisely the methodology followed by the prosecution’s experts.” (Id. at p. 353.) Similarly, here, as both experts pointed out, the fact that defendant has not engaged in such behavior in a controlled environment does not prove that he does not currently suffer from a qualifying mental disorder under the SVPA.
Defendant also focuses on factors which have changed since his last commitment hearing. He points out that his son and ex-wife have offered their support upon his release, and he intended to become involved in his family’s church and to enroll in a sex offender treatment program. Given that defendant was married and had children when he committed numerous sexual offenses, he had no history of seeking outpatient treatment and he dropped out of treatment in the state hospital, the jury could have reasonably rejected this testimony. The jury could also have properly rejected defendant’s claim that his age established that he was no longer a risk to others. As Dr. Owen explained, defendant had already demonstrated that recidivism does not always decrease with age.
In conclusion, there was substantial evidence to support the finding that defendant currently suffers from a mental disorder that made him a danger to others and likely that he would reoffend. (Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1054.)
III. Disposition
The order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.