P. v. Dooley























Filed 1/29/13 P. v. Dooley CA4/3











>NOT TO BE PUBLISHED IN OFFICIAL REPORTS





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opinion has not been certified for publication or ordered published for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



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. BRYAN DOOLEY, Defendant and Appellant.

G045827 (Super. Ct. No. M-11783) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Derek Guy Johnson, Judge. Affirmed.

Laurel M. Nelson, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, William M. Wood and Bradley A. Weinreb,
Deputy Attorneys General, for Plaintiff and Respondent.

Appellant is a juvenile
sex offender whose confinement was extended after a jury determined that, if
released, he would be physically dangerous to the public due to a mental
disorder that causes him to have serious difficulty controlling his
behavior. (See Welf. & Inst. Code, §§ 1800, et seq.) He contends his jury was misinstructed on the
law and its verdict is not supported by substantial and reliable
evidence. He also contends he was denied
equal protection because he was not
afforded the same procedural protections that are provided to other inmates who
are subject to involuntary commitment. Finding no basis to disturb the judgment, we
affirm.

FACTS

Born
in 1987, appellant had a horrific childhood.
His mother was a drug-addicted prostitute, and his father, also a drug
user, physically and sexually abused him and the other children in the
family. Appellant was also sexually
abused by a neighbor and one of his teachers.
Unsurprisingly, appellant molested his younger sister and eventually
sought out other victims.

At
the age of 14, appellant attempted to molest several young victims. He was placed on probation, but he continued
to prey on younger children, mostly boys.
In 2003, at age of 16, he was declared a ward of the juvenile court for
committing sexual battery and engaging in lewd conduct with multiple
children. The record does not reveal the
precise number of children appellant victimized during these offenses. However, he subsequently admitted he molested
as many as 40 children during his childhood.
His maximum term of confinement was set at eight years and four
months.

Appellant was initially
placed in a sexual offender program in Riverside
County, but within months he was
terminated from the program for continuing to act out sexually. He couldn’t keep his hands off other wards
and was often caught staring at their genitals in the bathroom. Appellant also admitted he frequently
fantasized about having sex with young boys.


In
2004, appellant was housed at the Orange County Juvenile Hall. During that time, he was often found in
possession of pictures of young children, some of whom were naked and appeared
as young as four years old. Appellant
admitted cutting the pictures out of magazines and using them to
masturbate. He said his therapy wasn’t
helping him and he simply couldn’t control his sexual urges. He also said he was certain he would reoffend
if he were released from custody.

In
2005, at the age of 18, appellant was sent to the California Youth Authority,
now known as the Division of Juvenile Justice (DJJ). While in treatment there, it became clear
appellant’s attitudes about sex were deeply engrained due to his abusive
upbringing. One of the main objectives
of his treatment team was to help him understand it is not normal for children
to engage in sex. His treatment team
also tried to educate appellant about the dynamics of victimization and the
triggers that can set off sexually inappropriate behavior. Initially, appellant appeared receptive to
the treatment and cut down on his picture-hoarding behavior. However, in the spring of 2006, he admitted
to sneaking a parenting magazine out of the library and using it as
masturbation material.

Later
that year, appellant was caught having sex with a ward named “Blanco.” Appellant had asked permission to use the
bathroom, but guards discovered him orally copulating Blanco in the
shower. Although Blanco was as old as
appellant, 19, he looked much younger than that at the time. He was described as being very short, with
child-like features, and having a well-known reputation for promiscuous
behavior. When confronted about the
incident, appellant said he had been feeling “horny” and was having trouble
controlling his sexual urges.

In
2007, Dr. Inga M. Talbert, a staff psychologist at the DJJ and a member of
appellant’s treatment team, evaluated appellant using an extensive
questionnaire known as the Multiphasic Sex Inventory. During the interview, appellant claimed he
hadn’t looked at any pictures of children during the last six months. And while he still had sexual fantasies
involving children and masturbated with them in mind, he said he was having
fewer deviant fantasies than before.

However, Dr. Talbert
found appellant was not entirely forthcoming with regard to his sexual
obsession and tended to justify his deviancy.
She also found marked evidence of cognitive distortions, immaturity and
poor decisionmaking. Although appellant was
making some progress in treatment, Dr. Talbert believed he suffered from chronic
pedophilia and needed much more work and time to address his problem with
children. In her view, appellant still
hadn’t internalized the concepts he was being taught or sufficiently dealt with
his own history of sexual abuse.
Therefore, she recommended he remain in custody for further
treatment.

During
2008 and 2009, appellant continued to participate in therapy. He also held a job in the print shop and was
studying toward an associate degree. At
times he struggled with the concepts discussed in therapy and failed to
complete his homework assignments, but overall, he was believed to be making
good progress toward his treatment goals.
In a supplemental report prepared in March 2009, Dr. Talbert wrote that
appellant had been working to decrease his deviant sexual fantasies and had not
been found with any pictures of children for masturbatory stimulation since
2006. Because there was no evidence of
recent inappropriate sexual behavior by appellant, Dr. Talbert felt there was
no need to extend his confinement. She
still believed appellant was a potential danger due to his pedophilia, but she
believed he had the condition sufficiently under control to justify his
release.

In
early 2010, however, appellant admitted it was daily struggle for him not to
think about having sex with children.
Although he claimed to be having far fewer deviant fantasies than
before, he told a counselor in March 2010 that he felt he needed more time to
complete his treatment plan and that he wasn’t ready to be released from
custody. He also revealed he had engaged
in sexual conduct with other wards in his prior placements.

The
following month, in April 2010, a female guard discovered appellant
masturbating in his cell late one evening.
The incident was deemed significant because the guard had been passing
by appellant’s cell every 30 minutes that night as part of her inspection
duties. Since her inspections were set
on regular intervals, it was suspected that appellant masturbated at a time
when he knew or should have known she would be coming by his cell.

Appellant
was subsequently transported to the Chaderjian Youth Correctional Facility,
where he began participating in an intense therapy program called the Inner
Child Workshop. Because appellant had
such a terrible childhood, it was very difficult for him to revisit it in an
attempt to work through his sexual abuse issues. However, he persevered and eventually
completed the program. His progress was
on display in early 2011, when another ward made a sexual advance toward
him. Instead of submitting to
temptation, appellant rebuffed the advance and reported it to his
counselor.

However,
on the heels of that incident, appellant began hoarding his medication as part
of a suicide scheme. He had planned to
overdose around his birthday in March 2011, but ultimately decided against
it. He later explained he always felt
guilty around his birthday because he had a twin who had died at birth. Appellant said he simply couldn’t come to
terms with the fact his twin had died instead of him.

As
appellant’s expected release date neared, the state petitioned to extend his
confinement pursuant to the Extended Detention Act (EDA). (Welf. & Inst. Code, §§ 1800, et. seq.)href="#_ftn1" name="_ftnref1" title="">[1] The trial court determined there was probable
cause to support the petition, and in July 2011 a jury was empanelled to hear
the case.

At trial, Wesley Maram,
Ph.D., testified as an expert witness on behalf of the state. Dr. Maram is a clinical and href="http://www.sandiegohealthdirectory.com/">forensic psychologist who
specializes in the treatment, testing and assessment of sex offenders. He has evaluated hundreds of adult sex
offenders to determine whether they met the criteria for commitment under the
Sexually Violent Predators Act (SVPA). (§§ 6600 et seq.) He has also treated and tested many juvenile
sex offenders over the years. However,
this is the first case in which he was asked to evaluate and testify about whether
a particular juvenile offender should be committed under the EDA.

Although
Dr. Maram has received training on the EDA criteria, he said there is no
standard protocol for testing individuals to determine whether they meet that
criteria. In evaluating appellant, Dr.
Maram did not personally interview him.
Rather, he conducted a “paper evaluation” by reviewing the records in
appellant’s voluminous file and using that information to determine whether it
would be safe for him to be released into the community. He prepared his initial report in 2009 and
did a follow-up report two years later in 2011.

Dr.
Maram testified that while appellant’s primary mental illness is pedophilia, he
also suffers from psychosis, not otherwise specified. In addition, he’s also been diagnosed with
schizophrenia, schizoaffective disorder, bipolar disorder, pyromania and
depression at various times over the years.
Pedophilia is characterized by intense recurring sexually arousing
fantasies directed at prepubescent children.
Given appellant’s long history of pedophilic interest and acting out,
Dr. Maram believed he had a rather severe case of the disorder. And although appellant had made some progress
in treatment, Dr. Maram was concerned about several aspects of his record.

For
one thing, appellant’s record indicates he has been somewhat inconsistent with
his treatment plan. While there have
been times when he’s shown considerable dedication to the plan, at various
points he has failed to do his homework, shown little emotion or focus and been
disengaged from the treatment process.
In 2010, he was reported to have very little insight into himself or the
concept of victim consent. And, he has
struggled with empathy, intimacy, relationship and trust issues. Appellant has also reported that his
medications are not always effective and that he has experienced hallucinations
and voice commands telling him to engage in violent behavior.

Dr.
Maram was also troubled by the fact that appellant had a sexual encounter with
Blanco, he masturbated in plain view of a guard, he secretly hoarded his
medications as part of a suicide plan, he continues to have pedophilic
fantasies, and he has admitted he needs further treatment before being
released. In Dr. Maram’s clinical
judgment, these facts not only evidence emotional instability and poor
judgment, they show appellant still has a sexual preoccupation with children,
continues to have problems regulating his sexual behavior, and needs further
treatment.

As
part of his evaluation of appellant, Dr. Maram utilized a variety of actuarial
instruments, including the STATIC-99, HCR-20 and the STABLE-2007. Dr. Maram testified that, in statistical
terms, these instruments have about a 65 to 70 percent accuracy level. He referred to them as analytical “tools”
that helped him formulate his opinions about appellant. He did not rely on them exclusively, but
instead used them in conjunction with his own clinical judgment to assess
appellant’s recidivism risk.

In
utilizing the STATIC-99, Dr. Maram looked at ten unchangeable factors in
appellant’s background. He admitted
consideration of only ten factors is not enough to get a complete picture of
the person being tested. He also
conceded the STATIC-99 is designed for adult offenders and is “not the best
test in the world” for assessing juvenile offenders who are now adults, such as
appellant. Still, Dr. Maram believed the
test has some utility for assessing juvenile offenders. He used it with caution in this case, simply
to get a sense of appellant’s risk level compared to adult offenders. As it turned out, appellant tested in the
90th percentile, meaning he was in the top 10 percent in terms of
dangerousness.

In
administering the HCR-20, Dr. Maram looked at both static and dynamic, i.e.,
changeable, risk factors in appellant’s background that are associated with
sexual recidivism. After measuring those
factors on a standard scale and applying his own clinical judgment to them, Dr.
Maram determined appellant presented a “high risk” for recidivism. On cross-examination,
Dr. Maram admitted the HCR-20 is designed for adult offenders and is most
accurate when the evaluator personally interviews the test subject in the
course of the evaluation process.
Nonetheless, Dr. Maram was confident in appellant’s HCR-20 tests results
because he had access to vast amounts of information about appellant’s personal
history and his progress in treatment.

The
STABLE-2007 is a testing mechanism that was developed by looking at recidivism
factors in a group of Canadian adult sex offenders living in an outpatient
setting. Because appellant did not match
that test group, Dr. Maram only used the STABLE-2007 as a guide with respect to
appellant; he did not utilize the specific scoring system associated with the
test.

In
the end, after analyzing all of the information in appellant’s record and
considering all of the testing results, Dr. Maram concluded in his initial 2009
report that appellant met the criteria for commitment under the EDA in that: 1) He has a mental disorder; 2) the disorder
causes him serious difficulty controlling his dangerous behavior; and 3) he
would be physically dangerous to others if released from custody.

As
noted, Dr. Maram evaluated appellant again in 2011, at which time he utilized
an updated version of the STATIC-99.
Appellant scored in the upper 90th percentile on that test, indicating
he had a 45 percent chance of reoffending within 5 years, and a 55 percent
chance of reoffending within 10 years.
Dr. Maram also applied the Structured Risk Assessment Test, which is
used to assess psychological factors and long-term vulnerabilities. Appellant scored in the highest risk category
available on the test, leading Dr. Maram to believe he still has “profound
treatment needs.” Just as he did in
2009, Dr. Maram concluded in his 2011 report that appellant met the criteria
for commitment under the EDA. He was
firmly convinced appellant’s “mental disorders, the pedophilia combined with
the psychosis, make him” physically dangerous to others.

The
defense countered Dr. Maram’s testimony with the expert opinions of Dr. Krys
Hunter, who is a clinical and forensic psychologist for the DJJ. Dr. Hunter has testified as an expert witness
in over 100 cases and is considered a “super trainer” because she teaches other
psychologists how to conduct forensic evaluations of sex offenders. She is the DJJ’s primary EDA evaluator for
all of Northern California.

Dr.
Hunter is also appellant’s treating psychologist at the Chaderjian Youth
Correctional Facility. At the time of
trial, she had been working with appellant for about eight months. That is why she did not formally evaluate
appellant on behalf of the state in this case.
As Dr. Hunter admitted, treating psychologists have a natural interest
in seeing their patients succeed and are generally inclined to give an overly
favorable assessment of their patients’ progress. Still, that did not stop Dr. Hunter from
testifying on appellant’s behalf in this case.


Based
on her treatment of appellant, Dr. Hunter believes he suffers from
schizophrenia and depression. She said
appellant hears voices and sees images that are not there, and when he gets
depressed, the symptoms tend to get worse.
While appellant can ignore the voices most of the time, if he’s under
stress or not taking his medications, they begin to sound like his father and
can be very stressful to him.

Dr.
Hunter thinks appellant also suffers from pedophilia “by history.” She used the phrase “by history” because, in
her view, juvenile sex offenders commit their crimes for revenge or for
opportunistic reasons, not because they are attracted to children. Therefore, in diagnostic terms, they cannot
be categorized as true pedophiles.

Dr.
Hunter found it significant that in the last six months leading up to trial,
appellant’s sexual urges have not interfered with his daily functioning and he
has not acted on those urges. Dr. Hunter
viewed this as proof that appellant can control his urges. She does not believe appellant suffers from
any personality disorders, has any antisocial traits or has “any difficulty
whatsoever controlling his behaviors.”

In
coming to that conclusion, Dr. Hunter made a distinction between planned and
impulsive behavior. She was not troubled
by the fact that appellant had sex with Blanco in 2006, because it was planned
and consensual. Nor was she concerned
that appellant was caught masturbating in his cell in 2010 because all of the
wards “frequently masturbate.” It was
more important to Dr. Hunter that appellant has not engaged in impulsive
behavior, such as grabbing or groping people in a sexual fashion, which would
reflect lack of control on his behalf.

Speaking
to the DJJ’s sex offender treatment program, Dr. Hunter said the program has 10
stages, and each stage has roughly 10 assignments or exercises associated with
it. Appellant struggled on some of the
stages but was ultimately able to finish the “core” aspects of the program. Dr. Hunter admitted appellant’s ability to
complete the program did not mean he was cured or would not reoffend. Still, she thought it was a significant
accomplishment that he was able to get through all 10 stages.

Dr.
Hunter was also encouraged by appellant’s progress in group therapy. She testified that appellant has made friends
and taken a leadership role in his group.
He’ll confront his peers if he thinks they are lying or shirking, and
he’s able to give and take advice, which is a sign of maturity. He now understands that children are
vulnerable and fragile and should not be having sex. He is able to see how his own abusive
childhood has shaped his attitudes about sex, and he is eager to learn how to
deal with sexual issues in an appropriate manner. Most importantly, in Dr. Hunter’s opinion,
appellant has demonstrated in his daily living that he has internalized his
treatment plan. By behaving himself and
refraining from sexually inappropriate conduct, he has demonstrated he is
capable of controlling his dangerous behavior and can contribute to society in
a positive fashion.

As
for the actuarial testing that Dr. Maram conducted in this case, Dr. Hunter
thought it was meaningless because the instruments he utilized are designed to
be used on adult offenders or juvenile offenders when they are still underage. As such, they would not accurately reflect
appellant’s risk of recidivism. Dr.
Hunter said there are no actuarial tests to assess the risk of recidivism for a
person like appellant, who offended as a juvenile but is currently over the age
of 18. However, from a purely
statistical standpoint, Dr. Hunter believed appellant’s risk of reoffending was
“very low.”

Dr.
Hunter was also of the opinion that appellant’s history of deviant behavior was
not particularly relevant in determining whether he should be committed under
the EDA. She said the central question
was not appellant’s past behavior but how much difficulty he currently has
controlling his dangerous behavior. Dr. Hunter
was convinced that, by virtue of maturity and addressing his risk factors and
history of victimization, appellant has demonstrated the ability to control his
dangerous behavior and utilize strategies to prevent himself from
reoffending.

The
jury did not see it that way. It found
true beyond a reasonable doubt the allegation that, if released, appellant
would be physically dangerous to others because of a mental disorder that
causes him serious difficulty controlling his behavior. As such, the court extended appellant’s
confinement by committing him to the DJJ for two years.

I

Appellant contends the
trial court was remiss for failing to give an instruction analogous to the
presumption of innocence instruction that is given in criminal cases. He had asked the court to instruct the jury
to presume he did not meet the criteria for commitment and the allegations in
the petition were not true, but the trial court determined such an instruction
was unnecessary. We agree.

The trial
procedures applicable for EDA proceedings are set forth in section 1801.5. Pursuant to that section: 1) “The person shall be entitled to all rights guaranteed under the federal
and state constitutions in criminal proceedings[;]” 2) “The court’s previous
order entered pursuant to Section 1801 [regarding probable cause for trial]
shall not be read to the jury, nor alluded to in the trial[;]” 3) “A unanimous
jury verdict shall be required in any jury trial[;]” 4) “As to either a court
or a jury trial, the standard of proof shall be that of proof beyond a
reasonable doubt[;]” and 5) The issue to be decided is whether the person is
“physically dangerous to the public because of his or her mental or physical
deficiency, disorder, or abnormality which causes the person to have serious
difficulty controlling his or her dangerous behavior[.]” (§ 1801.5.)

By its terms, the
statute does not expressly require the trial court to instruct the jury to
presume the allegations in the commitment petition are not true. It does entitle the subject of the petition
to all of the constitutional rights that are provided in criminal cases,
including the standard of proof of proof beyond a reasonable doubt. However, while the presumption of innocence
is an important aspect of that standard, the United States Supreme Court has determined
that a “defendant is not entitled automatically to an instruction that he is
presumed innocent of the charged offense.
[Citation.] An instruction is
constitutionally required only when, in light of the totality of the
circumstances, there is a ‘“genuine danger”’ that the jury will convict based
on something other than the State’s lawful evidence, proved beyond a reasonable
doubt.” (Delo v. Lashley (1993) 507 U.S. 272, 278.)

Likewise,
our own Supreme Court has held that the failure to instruct on the presumption
of innocence does not amount to constitutional error, so long as the jury is
instructed to decide the case based upon the evidence adduced at trial and told
not to consider the fact the defendant has been arrested and brought to
trial. (People v. Aranda (2012) 55 Cal.4th 342, 355-356.)

In this
case, the jury was instructed, “The fact that a petition to extend
[appellant’s] commitment has been filed is not evidence that the petition is
true. You must not be biased against
[appellant] just because the petition has been filed and this matter has been
brought to trial. The [state] is
required to prove the allegations of the petition are true beyond a reasonable
doubt. [¶] [Reasonable doubt defined.] [¶] In deciding whether the [state] has
proved the allegations of the petition are true beyond a reasonable doubt, you
must impartially compare and consider all the evidence that was received
throughout the entire trial. Unless the
evidence proves what must be proved in this proceeding . . . beyond a
reasonable doubt, you must find the petition is not true.” (CALCRIM No. 219, as modified.)

These
instructions made it clear to the jurors that they were to base their decision
solely only the evidence that was adduced at trial. Appellant fears that in determining the truth
of the charges against him, the jury may have considered his original
commitment offenses and his subsequent confinement in the DJJ. However, the circumstances of appellant’s
crimes and his custodial history were proven by lawful means and properly
admitted into evidence for the jury’s consideration. Because there was no danger the jury decided
the case based on factors other than the
state’s evidence, the court did not violate appellant’s rights by failing
to instruct the jury to presume the allegations in the petition were not true.

II

Appellant also faults
the trial court for failing to instruct the jury that “current” dangerousness
is a criteria for commitment under the EDA.
Although the court did not explicitly instruct the jury in that manner,
its instructions properly informed the jury that appellant could only be
committed if he was dangerous at the time of trial. We discern no functional difference.

As noted above, the
issue to be decided in an EDA trial is this:
“Is the person physically dangerous to the public because of his or her
mental or physical deficiency, disorder, or abnormality which causes the person
to have serious difficulty controlling his or her dangerous behavior?” (§ 1801.5.) The statute does not specifically require a
finding of “current” dangerousness, but as the Attorney General concedes, due
process generally demands such a finding before a person may be civilly
committed because of mental
infirmity. (See Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162; >Conservatorship of Hofferber (1980) 28
Cal.3d 161, 177-178.)

Even though the trial
court did not use the words “current” or “currently” in instructing the jury on
the requirements for commitment in this case, its instructions were worded so
as to preclude a true finding on the petition unless the jury found appellant
was currently dangerous. Speaking to the
requirements for commitment, the court explained, “The petition alleges that
[appellant] is physically dangerous
to the public because of a mental . . . disorder . . . that >causes him to have serious difficulty
controlling his dangerous behavior. [¶]
To prove this petition is true, the [state] must prove beyond a reasonable
doubt that: [¶] One, he >has a mental . . . disorder . . . . [¶] Two, the mental

. . . disorder . . .
causes him serious difficulty in
controlling his dangerous behavior. [¶]
And three, because of his mental . . . disorder . . . he would be physically
dangerous to the public if released from custody.” (Italics added.)

By
describing the requirements for commitment in the present tense, the court
signaled that current dangerousness was a prerequisite for having appellant
involuntarily committed. (Cf. >People v. Carroll (2007) 158 Cal.App.4th
503, 513-514 [Legislature’s use of present tense in SVPA indicated requirements
of act, including dangerousness, must currently exist at the time of trial to
justify a person’s commitment under the act].)
The expert testimony and the attorneys’ closing arguments also brought
this point home. Considering everything
the jurors were told, it is not reasonably likely they interpreted the court’s
instructions as not requiring a finding of current dangerousness. Therefore, the instructions are not cause for
reversal. (See People v. Franco (2009) 180 Cal.App.4th, 713, 720 [in assessing
claim of instructional error, appellate court must consider the record as a
whole, including the parties’ closing arguments, to determine whether there is
a reasonable likelihood the jury construed the challenged instructions in a
manner that violated the defendant’s rights].)


III

Appellant also contends his href="http://www.fearnotlaw.com/">equal protection rights were violated
because his confinement was extended based largely on the testimony of a single
expert witness, Dr. Maram, who did not follow a standard testing protocol in
determining whether he met the criteria for commitment under the EDA. Appellant contends other type of offenders,
such as a sexually violent predators (SVP’s) and mentally disordered offenders
(MDO’s), can only be committed when standardized testing protocols are followed
and at least two professionals agree that commitment is warranted, and had
those same protections been afforded to him, his case never would have gone to
trial. However, as appellant admits, he
did not raise this claim in the trial court.
Therefore, it has been forfeited. (People
v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14; People v. Burgener (2003) 29 Cal.4th 833, 860-861, fn. 3; >Neil S. v. Mary L. (2011) 199
Cal.App.4th 240, 254.)

Notwithstanding
his failure to raise it below, appellant asks us to consider his equal
protection argument on the basis the alleged violation of his rights was
“clear” and “obvious.” However, the
California Supreme Court has indicated that, when it comes to involuntary
commitment procedures, juvenile offenders may be treated differently than adult
offenders without violating equal protection.
(In re Lemanuel C. (2007) 41
Cal.4th 33. ) Indeed, simply because “‘the Legislature has made it more difficult to
commit a more serious, adult name="citeas((Cite_as:_41_Cal.4th_33,_*49,_158">offender — especially one
who faces the stigma of being declared an SVP [or MDO] — does not give rise to
an equal protection violation.’” (>Id. at pp. 48-49.) Thus, the failure to afford appellant all of
the procedural protections afforded adult offenders who are subject to
commitment did not constitute clear or obvious error. We see no reason to depart from the forfeiture rule in this
case. (See generally >In re Seaton (2004) 34 Cal.4th 193,
198-199 [explaining rationale for the forfeiture rule and noting it applies
even when the complained of error is based on an alleged violation of the
defendant’s fundamental constitutional rights].)

IV

Appellant’s
remaining claims have to do with the strength of the evidence that was
presented against him. He contends the
evidence was not only insufficient to justify the jury’s findings, but it was
so unreliable and untrustworthy that his trial and subsequent commitment
violate due process. We cannot
agree.

In reviewing the sufficiency of the evidence to
support a commitment under the EDA, “[t]he question to be determined is
whether, on the whole record, there is substantial evidence from which a
rational trier of fact could have found each essential element beyond a
reasonable doubt. [Citations.] We must consider all the evidence in the
light most favorable to the People, drawing all inferences the trier could
reasonably have made to support the finding.
[Citation.]” (>In re Anthony C. (2006) 138 Cal.App.4th
1493, 1503.)

Establishing a conflict
in the evidence is not enough to impugn the jury’s verdict, especially when, as
here, the conflict arises from the proverbial “battle of the experts.” While experts must form their opinions based
on “relevant, probative facts rather than conjecture,” the jury is generally
free to “give each expert opinion the weight they feel it deserves and may
disregard any opinion they find unreasonable.
[Citation.]” (>In
re Brian J. (2007) 150
Cal.App.4th 97, 115.) No due process
will be found unless the state’s evidence was so unreliable or prejudicial that
it rendered the trial fundamentally unfair.
(People v. Partida (2005) 37
Cal.4th 428, 439.)

In challenging the
sufficiency of the state’s evidence, appellant claims there is not substantial
evidence proving that, “at the time of
trial, [he] posed a risk to society because he had a diagnosed mental
disorder that caused a serious difficulty controlling his dangerous behavior .
. . .” (Italics added.) Appellant acknowledges there is an abundance
of evidence showing he engaged in sexually deviant behavior up until at least
2006. However, he contends that evidence
doesn’t mean much because the EDA and due process require a finding of >current dangerousness.

We
disagree. Appellant’s criticism of the
state’s evidence as being based on historical evidence is not well taken
because in determining whether a person is subject to commitment, the jury may
properly consider the person’s criminal history, his behavior while in
confinement and the extent to which he has progressed on his treatment plan
over time. (See In re Brian J., supra, 150 Cal.App.4th at pp. 115-120; >In
re Anthony C., supra, 138
Cal.App.4th at pp. 1503-1509.) Indeed,
our Supreme Court has recognized that past criminal conduct may be a >significant factor in predicting an
inmate’s future behavior should he be released from custody. (In re
Shaputis (2011) 53 Cal.4th 192, 219.)


Like many
child molesters, appellant was the victim of childhood sexual abuse
himself. That set him on a course of
sexually deviant behavior at a very young age, as reflected in the nature of
his initial commitment offenses, which involved sexual battery and lewd conduct
involving children. By the time he was
made a ward of the court at the age of 16, appellant, had already victimized as
many as 40 children, most of whom were boys.
His initial years in confinement were marked by excessive picture
hoarding, constant pedophilic fantasies and a pronounced inability to control
his sexual urges involving children. And
when Dr. Talbert evaluated him in 2007, she was convinced he needed further
treatment to address his problems.


In 2009,
Dr. Talbert prepared an updated report based on appellant’s treatment
records. At that time, she felt
appellant “had actually made some progress in treatment” and was no longer
having serious difficulty controlling his dangerous behavior. At the trial in 2011, however, Dr. Talbert
admitted she had not been involved in appellant’s treatment since 2009, nor was
she aware of how he was currently doing.
Thus, she was unable to render an opinion as to whether appellant met
the criteria for commitment at the time
of trial.

Drs. Maram
and Hunter did have access to appellant’s complete, updated file. As such, they were qualified to speak to the
issue of appellant’s current dangerousness and his present suitability for
commitment. Unlike Dr. Hunter, Dr. Maram
never treated or interviewed appellant.
However, Dr. Hunter admitted that treating psychologists often lack the
objectivity needed to render an accurate assessment of their client’s risk of
recidivism. She also admitted there is
no standard protocol for testing individuals to determine whether they meet the
criteria for commitment under the EDA.
Because of this, and because Dr. Maram had access to vast amounts of
information about appellant’s background and treatment history, the jury could
reasonably consider his opinions in reaching their verdict.

Although
Dr. Hunter was critical of the actuarial testing instruments Dr. Maram employed
in this case, Dr. Maram made it very clear throughout his testimony that he did
not base his opinions solely on the data he gathered from utilizing those
instruments. Rather, the data was simply
one of the many factors he considered in formulating his opinion about
appellant’s dangerousness. Dr. Maram was
the first to admit there are no testing devices that are perfectly suited to
test the recidivism risk of someone like appellant. Yet, he felt the tests he employed, which
indicated appellant was a “high risk” for reoffending, could give him an
approximate idea of how appellant compared to other offenders in terms of both
static and dynamic factors in his background.
Given that Dr. Maram considered the testing data with a grain of salt to
supplement – not dictate – his own clinical judgment, the jury was entitled to
consider his opinion that appellant is a physical danger to others due to his
serious inability to control his dangerous behavior.

Irrespective
of Dr. Maram’s opinions, the record shows that appellant suffers from psychotic
symptoms such as hallucinations and delusions.
He has received voice commands telling him to engage in violent
behavior, and he nearly took his own life a few months before the trial
commenced in 2011. As recently as 2010,
appellant admitted it was a constant struggle for him not to think about having
sex with children, and even he thought he needed further treatment and was not
ready to be released from custody.

Based
on all of the evidence that was presented, we are convinced a reasonable jury
could find appellant remains a physical danger to others because of a mental
disorder which causes him serious difficulty controlling his dangerous
behavior. Although it was not undisputed
or unassailable in every respect, the evidence on that key issue was
substantial in nature and sufficiently reliable to satisfy the constitutional
requirement of due process. We therefore have no occasion to disturb the
judgment.

name="sp_999_6">DISPOSITION

The
judgment is affirmed.









BEDSWORTH,
J.



WE CONCUR:







O’LEARY, P. J.







THOMPSON, J.