P. v. Hunt
Filed 1/29/13 P. v. Hunt CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE
PEOPLE,
Plaintiff and Respondent,
v.
EARNELL
HUNT,
Defendant and Appellant.
2d Crim. No. B236983
(Super. Ct.
No. F464977)
(San Luis Obispo
County)
Earnell Hunt appeals
from an order committing him to the State Department of Mental Health (DMH) for
treatment as a mentally
disordered offender (MDO). (Pen
Code, § 2962 et seq.)
support the finding that his severe mental disorder (pedophilia) is not in
remission, that he received 90 days of treatment during the year preceding his
parole release date, or that he represents a substantial risk of harm to
others. (§ 2962, subd. (d)(1).) We affirm.
Facts
In
1999 appellant was sentenced to state
prison for lewd and lascivious act
upon a child under the age of 14 by force and violence (§ 288,
subd. (b)(1)), and dissuading a witness by force or threat (§ 136.1 subd.
(c)(1)). Over an eight month period,
appellant forced a seven-year-old girl to watch pornographic movies, held the
victim down, and inserted his penis in her vagina. The victim reported that appellant
"busted open" her vagina and threatened to kill her if she told
anyone. Appellant was sentenced to state prison for nine years and violated
parole three times.
On July 21, 2011, the Board of Parole Terms (BPT),
now known as the Board of Parole Hearings,
determined that appellant was an MDO.
Appellant petitioned the superior court for trial and waived jury and
the matter was tried to the court.
Doctor J. V. Ruffman
reported that appellant suffered from pedophilia, a severe mental disorder, and
met all the MDO criteria. Appellant had
little insight about his mental disorder, was not treatment compliant, and had
a history of not keeping his mental illness in remission.
Doctor Joe Debruin
testified that appellant met all the MDO criteria and received treatment at the
Parole Outpatient Clinic in Stockton
for more than six months.
Mental Disorder Not In Remission
Appellant argues that
the evidence does not support the finding that his pedophilia is not in
remission or cannot be kept in remission without treatment. (§ 2962, subd. (d)(1).)
we resolve all factual conflicts and draw all reasonable inferences in favor of
the judgment. (People v. Poe (1999) 74
Cal.App.4th 826, 830.) The
testimony of a single mental health professional is sufficient to support the
MDO commitment. (People v. Clark
(2000) 82 Cal.App.4th 1072, 1082-1083. )
Here three mental health
experts opined that the severe mental disorder was not in remission. In a May 13, 2011 MDO evaluation, Doctor Dawn
Starr reported that pedophilia is "chronic and lifelong" and that
appellant had no grasp of the concepts of sex offender treatment Appellant had little insight of his mental
disorder and was found with sexually explicit photos including a photo of his
penis. California Department of
Corrections MDO evaluator Doctor J. V. Ruffman
reported that appellant was not in remission and "over the past
year he has not been compliant with his mental health treatment plan (currently
incarcerated on a parole violation for association with prohibited person - a
10 year old girl)."
Appellant claims that he
displayed no overt symptoms of pedophilia but that is not dispositive. "The 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." (People v. Sumahit (2005) 128
Cal.App.4th 347, 353.) Doctor Debruin
explained that pedophilia "is a disorder that sort of hangs on
indefinitely. It can be managed, but it
does not go into remission."
Although appellant had no overt symptoms, it was "really [an]
artifact of the fact that he is in a controlled setting without access to
children . . . ."
Doctors Ruffman and
Debruin opined that the mental
disorder was not in remission because appellant, among other things,
violated his parole by associating with a 10-year-old girl and was not
treatment compliant. Appellant's failure
to follow the treatment plan is one of many factors supporting the finding that
the severe mental disorder was not in remission. (§ 2962, subd. (a); People
v. Beeson (2002) 99 Cal.App.4th 1393, 1399.)
90 Days of Treatment
Appellant contends that
he did not receive 90 days of treatment during the year preceding the BPT
hearing. (§ 2962, subd. (c).) Appellant saw Doctor James Frank for sex
offender treatment on a weekly basis for six months at the Parole Outpatient
Clinic in Stockton. Appellant was also
prescribed medication and received treatment from a staff psychiatrist, Doctor
John Lindgren.
Appellant asserts that
weekly treatment sessions over a span of six+ months totals only 30 days of
treatment rather than the requisite 90 days.
But the treatment regimen does not have to be daily treatment so long as
the treatment is approved by the Department of Mental Health through the
Department of Corrections. (§ 2964,
subd. (a); Cal. Code Regs, tit. 15, §
2577, subd. (a); see People v. Achrem (Jan. 29, 2013, B236100)
___ Cal.App.4th. __, __ (slip op. p. 1) [disapproving People v. Del Valle (2002)
100 Cal.App.4th 88 and People v. Martin (2005) 127 Cal.App.4th
970].) All the mental health experts
agreed that appellant received the requisite 90 days of treatment.
Appellant argues that
treatment must be conducted on an inpatient basis in a penal institutional
setting unless the Department of Mental Health (DMH) agrees to treat the
prisoner on an outpatient basis.
(§ 2964, subd. (a); People v. Superior Court (Salter)
(2011) 192 Cal.App.4th 1352, 1356; People v. Superior Court (Myers)
(1996) 50 Cal.App.4th 826, 830.) But
that is what happened here. Appellant
was treated at the Parole Outpatient Clinic in Stockton. Doctor Debruin testified that the clinic was
overseen by DMH and the California Department of Corrections and
Rehabilitation, and that it was not a private clinic. MDO evaluators Doctors Starr and Ruffman
agreed that the 90-day treatment criteria was satisfied. (Compare People v. Dodd (2005) 133
Cal.App.4th 1564, 1567-1568 [prisoner received required 90 days of treatment at
state sanctioned parole outpatient clinic], with People v. Del Valle, supra, 100 Cal.App.4th 88, 93 [treatment at private clinic did not meet
MDO criteria].)
Serious Danger to Others
Appellant finally
contends that the evidence does not support the finding that he poses a
substantial danger of physical harm to others.
Under the MDO statute,
"
'substantial risk of physical harm' does not require proof of a recent overt
act" of violence. (§ 2962,
subd. (f); In re Qawi (2004) 32 Cal.4th 1, 24; People v. Buffington
(1999) 74 Cal.App.4th 1149, 1161.) A
mental health professional may take into account the prisoner's entire history
in making an MDO evaluation. This
includes prior violent offenses as well as the prisoner's mental health
history. (People v Pace (1994) 27
Cal.App.4th 795, 799.) Whether the
prisoner "is mentally ill and dangerous either to himself or others . . .
turns on the meaning facts which must
be interpreted by expert psychiatrists and psychologists." (Addington
v. Texas (1979) 441 U.S. 418, 429 [60 L.Ed.2d 323, 333].)
The evidence shows that
the severe mental order was not in remission and appellant was not treatment
compliant. Doctors Ruffman and Debruin
opined that appellant represented a substantial danger because of the severe
mental disorder, the violent nature of the commitment offense, and appellant's
parole violations. Two parole violations
involved the destruction of a GPS tracking device and appellant's association
with a 10-year-old girl. The commitment
offense occurred over a time span of eight months in which appellant
"busted-open" the victim's vagina and threatened to kill her. Appellant claimed that the victim "made
it up."
Substantial evidence
supports the finding that appellant met all the MDO criteria and posed a
substantial danger of physical harm to others by reason of his severe mental
disorder. (People v. Bowers (2006)
145 Cal.App.4th 870, 879 [single psychiatric opinion constitutes substantial
evidence].) "The purpose underlying the MDO law is to protect the public
by identifying those offenders who exhibit violence in their behavior and pose
a danger to society. (§ 2960.)"
(People v. Dyer (2002) 95 Cal.App.4th 448, 455.)
The judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Jacquelyn
Duffy, Judge
Superior
Court County of San Luis Obispo
______________________________
Gerald Miller, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and
Respondent.
Code.
court find that the prisoner meets six criteria, i.e., that the prisoner: (1)
has a severe mental disorder; (2) used force or violence in committing the
underlying offense; (3) the severe mental disorder was a cause or an
aggravating factor in the commission of the underlying offense; (4) the
disorder is not in remission or capable of being kept in remission without
treatment; (5) the prisoner was treated for the disorder for at least 90 days
in the year prior to his parole; and (6) the prisoner poses a serious danger of
physical harm to others by reason of the disorder. (§ 2962, subd. (d)(1); People
v. Merfield (2007) 147 Cal.App.4th 1071, 1075, fn. 2.)
