P. v. Simmons

 

 

 

 

 

 

 

 

Filed 11/4/13  P. v. Simmons CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SIXTH
APPELLATE DISTRICT

 

 
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THE PEOPLE,   Plaintiff and Respondent,       v.   MARK STEVEN SIMMONS,   Defendant and Appellant.

H039198      (Santa Clara County       Super. Ct. No. E9909752)

 

            Defendant Mark
Steven Simmons appeals from an order extending his involuntary commitment as a href="http://www.fearnotlaw.com/">mentally disordered offender (MDO),
arguing that insufficient evidence supports the order.  We will affirm. 

Factual and Procedural Historyhref="#_ftn1" name="_ftnref1" title="">[1]

            In early 1999,
defendant, who was then 39 years old, boarded at a home where a 14-year-old
girl, D., lived with her mother.  One day,
defendant entered D.’s bedroom wearing only a bathrobe, held D.’s shoulders,
and pressed himself against her back until she felt his penis.  Similar incidents occurred four or five
times.  On a separate occasion, D. woke
up and discovered that defendant was touching her legs, thighs, and the area
between her legs.  D. pretended to be
asleep, and defendant continued to touch her for 30 minutes or more.  D. tried to push defendant away, and he
eventually stopped touching her. 

            In March 1999,
defendant pleaded no contest to two counts of lewd and lascivious acts on a
14-year-old girl who was more than 10 years younger than him.  (Pen. Code, § 288, subd.  (c)(1).)href="#_ftn2" name="_ftnref2" title="">>[2]  He was placed on probation in May 1999, on
condition that he have no contact with D.  Probation was revoked in November 1999 because
defendant violated that condition.  Defendant
admitted the probation violation in December 1999, and he was committed to
prison for a term of two years eight months.

            In November
2000, defendant was transferred from prison to Atascadero
State Hospital
for treatment.  He was discharged to the
Conditional Release Program (CONREP) in August 2001, but shortly thereafter he
was re-hospitalized at Napa State Hospital (NSH) because he expressed suicidal
ideations and failed to follow the CONREP rules.

            In August
2003, the Santa
Clara County District Attorney filed a petition, pursuant to the MDO Act (Pen.
Code, § 2960 et seq.), to extend defendant’s involuntary commitment beyond the expiration
of his parole term.  A jury found that
defendant was an MDO, and the trial court extended defendant’s commitment for a
one-year period.  Between 2004 and 2011,
the court periodically extended defendant’s MDO commitment.

            In April
2012, the Santa Clara County District Attorney filed a petition to extend
defendant’s MDO commitment for an additional year.  A court trial on the petition commenced on December 6, 2012.

            At the
trial, Dr. Benjamin Philip Rose, a clinical staff psychologist at NSH,
testified as an expert in the diagnosis of mental disorders and risk
assessment.  At the time of the trial,
Dr. Rose had been treating defendant for approximately one year.

            Dr. Rose
opined that defendant suffered from the severe mental disorder of
pedophilia.  He explained that pedophilia
is “an attraction to and behavior related to sexual contact with children under
the age of 14 that persists for at least six months.”  In diagnosing defendant with pedophilia, Dr.
Rose relied on records that showed the following:  defendant placed his finger inside a
four-year-old girl’s vagina, defendant touched an eight-year-old girl between
her legs, at the age of 16 defendant had sex with his 10-year-old sister, and defendant
masturbated to images of his 10-year-old sister.  Dr. Rose also opined that defendant
suffered from narcissistic personality disorder, a condition that “has to do
with attitudes and beliefs of grandiosity and a lack of empathy and a need for
adoration.”

            Dr. Rose
opined that defendant’s pedophilia was not in remission through treatment.  He explained that defendant failed to discuss
his sexual misconduct with his treatment team, defendant would not discuss the
triggers to his pedophilic impulses, defendant did not have a relapse
prevention plan, defendant denied all sexual contact with children under age 14
on several occasions, and defendant did not believe that he suffered from
pedophilia.  As recently as the week
before the trial, defendant told Dr. Rose that he did not suffer from
pedophilia and that he had not had sexual contact with any child under the age
of 14.  Dr. Rose also explained that,
although defendant had not demonstrated any overtly pedophilic behaviors at NSH,
some “comments that he’s made . . . give evidence to pedophilic
behaviors.”  In particular, defendant
told Dr. Rose that “relationships between an adult and a pubescent child are
acceptable in many cultures.”  Defendant
argued that such a practice was appropriate. 


            Dr. Rose also
opined that defendant had not voluntarily followed his treatment plan.  He explained that defendant’s treatment plan
required him to address his past instances of pedophilic behavior, and yet
defendant had denied that he suffered from pedophilia and refused to address
his past pedophilic conduct.  Dr. Rose’s
opinion was also based on a report that specified that defendant told a
psychiatrist that he attended sex-offender treatment only to satisfy the court
and not because he believed he needed it. 
Although defendant had recently been appropriately participating in
treatment, during the previous five months there had been a period of four to
five weeks in which defendant did not attend sex-offender treatment due to
argumentative behavior. 

            Dr. Rose
finally opined that defendant posed a substantial danger of physical harm to
others because of his pedophilia.  His
opinion was based on several factors: 
defendant’s lack of insight regarding his pedophilia, defendant’s lack
of treatment to specifically address his dangerous behavior toward children, defendant’s
lack of planning and skills to prevent himself from engaging in sexual conduct
with children in the future, 2006 actuarial testing that showed defendant posed
a danger due to his pedophilia, defendant’s statement that he attended sex-offender
treatment only to satisfy the court, and defendant’s poor judgment.  Dr. Rose personally observed the following
instances in which defendant exercised poor judgment:  defendant told an NSH staff member that she
was his “type of girl,” defendant’s statement that he did not believe there was
any problem with patients having romantic relationships with NSH staff members,
and defendant’s presentation of justifications any time Dr. Rose informed him
that romantic relationships between patients and NSH staff members were
prohibited.  Dr. Rose was also aware that
defendant repeatedly called female NSH staff members “baby girl,” and that
defendant had written letters to staff members proposing sexual relationships.  Dr. Rose emphasized that when making a
determination regarding the risk posed by a pedophile, “we are wanting to know
whether or not they can make good judgments with regard to sexuality.”

            Defendant
testified that he did not suffer from pedophilia and was not sexually attracted
to children.  He emphasized that there
was no proof that he had pedophilia.  He
did not believe that he needed sex-offender treatment.  Defendant noted, however, that “18 is not the
magic bullet number of physically mature” for girls.  He also testified that “the business of being
an adult at 18 is actually arbitrary.”

            Defendant
admitted that he molested a four-year-old girl, but he explained that it was an
“occult ritual” in preparation for his role in the 1980s Iran hostage
situation.  Defendant testified that he
molested the eight-year-old girl during a “test” to determine whether he could
be a father.  Defendant acknowledged that
14-year-old D.’s body was in “transition phase from little girl to grown woman,”
and he explained that he “was actually trying to help her get over the
hump.”  He testified that “if [he] hadn’t
intervened in D.’s life, she would have killed herself.”

            Defendant
described his wellness and recovery plan. 
Pursuant to that plan, defendant intended to live in Los Angeles and
attend Alcoholic Anonymous and Sex Addicts Anonymous meetings. ~(RT 148-149)~

            Dr. Douglas
Korpi testified for defendant as an expert in the diagnosis of mental disorders
and risk assessment.  He evaluated
defendant during an October 2012 interview, and he reviewed defendant’s state
hospital records.  He diagnosed defendant
with a “mild form” of pedophilia.  He
determined that defendant’s pedophilia was not in remission, but he noted that
the determination was made “in an abundance of caution.”  Dr. Korpi explained that defendant’s
narcissistic personality disorder, which was not a serious mental disorder, was
“the primary diagnosis in this case.”  He
noted that defendant’s molestations of the four-year-old girl and the
eight-year-old girl were “primarily” driven by defendant’s pedophilia, but that
defendant’s narcissistic personality disorder could also have been a factor in
the molestations.  He explained that
defendant’s narcissistic personality disorder was a contributing factor in
defendant’s molestation of 14-year-old D.

            Dr. Korpi
opined that defendant did not pose a substantial danger of physical harm to
others based on his pedophilia diagnosis. 
In support of his opinion, Dr. Korpi cited the results of actuarial
tests he administered to defendant, which showed that defendant posed a two to
10 percent chance of sexually reoffending in five years and a three to 16
percent chance of sexually reoffending in 10 years.  He opined that defendant had a “significant
likelihood of doing stalking-like behavior” as a result of his narcissistic
personality disorder.  He noted that
defendant experienced delusions as part of his narcissistic personality
disorder, and that defendant’s delusions could cause him to sexually reoffend
with an underage girl.

            At the
conclusion of the trial, the court found that the People had proved the
allegations in the MDO petition beyond a reasonable doubt.  The court accordingly ordered defendant’s
involuntary commitment to be extended for one year. 

            Defendant
filed a timely notice of appeal.  This
appeal followed. 

Discussion

            Defendant argues
that we must reverse the commitment order due to insufficient evidence.  Defendant attacks the sufficiency of the
evidence in two respects:  1) he contends
that there was insufficient evidence that his pedophilia was not in remission and
could not be kept in remission without treatment; and 2) he contends that there
was insufficient evidence that he represented a substantial danger of physical
harm to others as a result of his pedophilia. 
As explained below, defendant’s contentions are unpersuasive. 

            “In
considering the sufficiency of the evidence to support MDO findings, an
appellate court must determine whether, on the whole record, a rational trier of
fact could have found that defendant is an MDO beyond a reasonable doubt,
considering all the evidence in the light which is most favorable to the
People, and drawing all inferences the trier could reasonably have made to
support the finding.  [Citation.]  â€˜ “ ‘Although we must ensure the evidence is
reasonable, name="citeas((Cite_as:_82_Cal.App.4th_1072,_*1">credible, and of solid
value, nonetheless it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts on
which that determination depends.  [Citation.]
 Thus, if the [finding] is supported by
substantial evidence, we must accord due deference to the trier of fact and not
substitute our evaluation of a witness’s credibility for that of the fact finder.
. . .’  [Citation.]” ’ ”  (People
v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.) 

            Section
2972 mandates a one-year extension of an MDO’s commitment if three criteria are
satisfied:  “If the court or jury finds
that the patient has a severe mental disorder, that the patient’s severe mental
disorder is not in remission or cannot be kept in remission without treatment,
and that by reason of his or her severe mental disorder, the patient represents
a substantial danger of physical harm
to others, the court shall order the patient recommitted to the facility in
which the patient was confined at the time the petition was filed . . . .  The commitment shall be for a period of one
year from the date of termination of . . . a previous commitment . . . .”  (§ 2972, subd. (c).)  Thus, a recommitment “requires proof beyond a
reasonable doubt that (1) the patient has a severe mental disorder; (2) the
disorder ‘is not in remission or cannot be kept in remission without treatment’;
and (3) by reason of that disorder, the patient represents a substantial danger
of physical harm to others.”  (>People v. Burroughs (2005) 131
Cal.App.4th 1401, 1404.) 

            Section
2962 defines “remission” as follows: 
“The term ‘remission’ means a finding that the overt signs and symptoms
of the severe mental disorder are controlled either by psychotropic medication
or psychosocial support.”  (§ 2962, subd.
(a)(3).)  Section 2962 also defines the
phrase “cannot be kept in remission without treatment”:  “A person ‘cannot be kept in remission
without treatment” if during the year prior to the question being before the .
. .  trial court, he or she has been in
remission and he or she has been physically violent, except in self-defense, or
he or she has made a serious threat of substantial physical harm upon the
person of another so as to cause the target of the threat to reasonably fear
for his or her safety or the safety of his or her immediate family, or he or
she has intentionally caused property damage, or he or she has not voluntarily
followed the treatment plan.  In
determining if a person has voluntarily followed the treatment plan, the
standard shall be whether the person has acted as a reasonable person would in
following the treatment plan.”  (>Ibid.) 


            Here, there
was substantial evidence that defendant’s pedophilia was not in remission.  Dr. Rose and Dr. Korpi both opined that
defendant’s pedophilia was not in remission. 
Dr. Rose specifically opined that defendant’s treatment had not caused
defendant’s pedophilia to remit.  In
explaining the basis of his opinion, Dr. Rose noted that defendant made
comments that “give evidence to pedophilic behaviors.” ~(RT 65)~  In particular, defendant argued with Dr. Rose
and told him that relationships between adults and children are
acceptable.  Thus, there was substantial
evidence that the signs and symptoms of defendant’s pedophilia were not controlled
by treatment.  Indeed, defendant’s own
testimony suggested that his pedophilia was not in remission—he specifically
testified that “18 is not the magic bullet number” for the physical maturity of
girls.  We therefore conclude that there
was sufficient evidence that defendant’s pedophilia was not in remission.  (See § 2962, subd. (a)(3 [pedophilia is in
remission if “the overt signs and symptoms . . . are controlled either by
psychotropic medication or psychosocial support”].) 

            Even if we
were to agree with defendant’s claim that there was insufficient evidence that
his pedophilia was not in remission, we would nonetheless conclude that there
was substantial evidence that defendant’s pedophilia could not be kept in
remission without treatment.  (See >People v. Beeson (2002) 99
Cal.App.4th 1393, 1400 [where overt symptoms of a severe mental disorder are
not present, the issue is whether the MDO can be kept in remission without
treatment].)  Pedophilia cannot be kept
in remission without treatment “where the person has been in remission for the
past year, but also has . . . failed to voluntarily follow his treatment plan.”  (Id. at
p. 1399.)  Whether a person has
voluntarily followed his treatment plan is determined using a reasonable person
standard.  (Ibid.)  Here, Dr. Rose opined
that defendant had not voluntarily followed his treatment plan.  He explained that defendant’s treatment plan
required defendant to address his past instances of pedophilic behavior, but
defendant repeatedly told Dr. Rose that he did not suffer from pedophilia and
that he had not had sexual contact with children.  Dr. Rose also noted that that there had
recently been a four-to-five-week period in which defendant failed to attend
his sex-offender treatment.  “A
reasonable person, whose mental disorder can be kept in remission with
treatment, must, at minimum, acknowledge if possible the seriousness of his
mental illness and cooperate in all the mandatory components of his treatment
plan.”  (Ibid.)  Thus, Dr. Rose’s
testimony that defendant failed to acknowledge the existence of his pedophilia
and failed to follow all of the components of his treatment plan constituted
substantial evidence that defendant’s pedophilia could not be kept in remission
without treatment. 

            Finally,
there was sufficient evidence that defendant presented a substantial danger of
physical harm to others.  Dr. Rose opined
that defendant posed a substantial danger of physical harm to others because of
his pedophilia.  His opinion was based on
many factors, including defendant’s lack of planning and skills to prevent
himself from engaging in sexual conduct with children, defendant’s lack of insight
regarding his pedophilia, and defendant’s exercise of poor judgment in pursuing
romantic and sexual relationships with NSH staff members.  Dr. Rose expressed concern regarding
defendant’s history of poor judgment, and he emphasized that the danger posed
by a pedophile is determined by “whether or not he can make good judgments with
regard to sexuality.”  Dr. Rose’s
testimony constituted substantial evidence of defendant’s dangerousness.  (See Evid.Code, § 411 [the testimony of one
witness may be sufficient to prove any fact]; People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508 [same].)  Although Dr. Korpi disagreed with Dr. Rose’s
opinion regarding the danger associated with defendant’s pedophilia, the “credibility
of the experts and their conclusions were matters resolved against defendant”
by the trier of fact, and “[w]e are not free to reweigh or reinterpret the
evidence.”  (People v. Mercer
(1999) 70 Cal.App.4th 463, 466-467.) 
Accordingly, we conclude that there was sufficient evidence that
defendant posed a substantial danger of physical harm to others by reason of
his pedophilia. 

            For the forgoing
reasons, we conclude that sufficient evidence supported the trial court’s MDO
findings.  We therefore must affirm the
order extending defendant’s involuntary commitment. 

Disposition

            The order
extending defendant’s commitment is affirmed.

 

 

                                                                        ______________________________________

                                                                                                RUSHING, P.J.

 

 

WE CONCUR:

 

 

____________________________________

PREMO, J.

 

 

____________________________________

ELIA,
J.