P. v. Lloyd

Filed 8/22/06 P. v. Lloyd CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed.

I.

INTRODUCTION

In 1998, the trial court committed Charles A. Lloyd to the California Department of Mental Health as a sexually violent predator (SVP) pursuant to the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code,^[1] § 6600 et seq.). In August 2004, the People filed a petition to continue Lloyd's involuntary treatment. After a jury trial, the jury found Lloyd to be an SVP. The trial court recommitted Lloyd for an additional two-year term.

On appeal, Lloyd claims that there is insufficient evidence to support the jury's finding that he is an SVP, and that the trial court erred in instructing the jury pursuant to a modified version of CALJIC No. 2.23 regarding the jury's consideration of Lloyd's prior felony convictions. We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural background

In l989, Lloyd pled guilty to seven counts of lewd acts upon a child (Pen. Code, § 288, subd. (a)). In November 1998, the trial court found that Lloyd was an SVP, and committed him to the California Department of Mental Health for two years. The trial court subsequently recommitted Lloyd for two additional two-year terms. In August 2004, the People filed a petition to continue Lloyd's involuntary treatment as an SVP. In June 2005, the trial court held a jury trial on the People's petition.^[2]

B. The People's evidence

At the beginning of the trial, the parties stipulated that Lloyd had been convicted in 1989 of seven counts of felony child molest (Pen. Code, § 288, subd. (a)). The parties further stipulated that the offenses were perpetrated against five boys under the age of 14 years, and involved substantial sexual conduct. In addition, the parties stipulated that these convictions constitute sexually violent crimes within the meaning of the SVPA.

Dr. Craig Updegrove, a psychologist, conducted a recommitment evaluation of Lloyd in June 2004 and March 2005. As part of his evaluation, Dr. Updegrove reviewed numerous documents pertaining to Lloyd, including past SVP evaluations, various psychological evaluations, police and court records, and hospital records. Dr. Updegrove also interviewed Lloyd for more than two hours. Dr. Updegrove concluded that Lloyd suffered from both pedophilia and a personality disorder, not otherwise specified, with antisocial traits.

Dr. Updegrove measured Lloyd's risk of reoffense through the use of a risk assessment scale called the STATIC-99. Dr. Updegrove testified that over a 15-year period, a person with Lloyd's risk factors had a 52 percent chance of suffering an additional conviction for a sexual offense. Dr. Updegrove testified that this percentage probably underestimated Lloyd's risk of reoffending, in view of the presence of additional risk factors not fully accounted for in the STATIC-99, including Lloyd's high level of sexually deviant preferences, his persistent pattern of sexual misconduct, the strength of his urges, and the early onset of his pedophilia. Dr. Updegrove further testified that Lloyd's personality disorder would increase the risk of reoffense.

Although Dr. Updegrove testified that treatment could reduce Lloyd's risk of reoffending, he noted that Lloyd was in the "midstages" of the treatment offered at Atascadero State Hospital (Atascadero), where Lloyd is currently committed. Further, Dr. Updegrove noted that although Lloyd had drafted a relapse prevention plan, his plan had changed significantly from June 2004 to March 2005. In June 2004, Lloyd planned to live within his parents in Philadelphia if released, while in March 2005 he planned to live with a sister in California. Dr. Updegrove concluded that there was a serious and well-founded risk that Lloyd would reoffend if released.

Dr. Shoba Sreenivasan, a psychologist, also performed an evaluation of Lloyd in June 2004 and March 2005. Dr. Sreenivasan concluded that Lloyd suffered from pedophilia and a personality disorder with narcissistic traits. Dr. Sreenivasan testified that Lloyd's pedophilia was "severe and very entrenched." In support of this conclusion, Dr. Sreenivasan noted that Lloyd had kept a diary during the time he was molesting children, in which he described "being in love with some of the boys." Dr. Sreenivasan also testified that Lloyd's statement to her during the evaluation that he was a "pedophile in remission" was of concern to her because such a comment could suggest that Lloyd did not believe he had to continue with "all of the hard work that it takes on a constant basis to monitor your behavior to keep from re-offending."

Dr. Sreenivasan also utilized the STATIC-99 risk assessment scale. She testified that over a 15-year period, a person with Lloyd's risk factors had a 40 percent chance of suffering an additional conviction for a sexual offense. Dr. Sreenivasan explained that her calculation differed from Dr. Updegrove's due to a disagreement as to how one of Lloyd's prior offenses should be weighted in the scale. Dr. Sreenivasan concluded that there was a serious and well-founded risk that Lloyd would reoffend if released.

Dr. Steven Arkowitz, a psychologist, is employed by Liberty Healthcare, a corporation that has contracted with the State of California to provide outpatient treatment for persons who are conditionally released through the SVP program. As a clinical liaison, Dr. Arkowitz is involved in developing the terms and conditions for the conditional release of patients from Atascadero. Prior to working for Liberty Healthcare, Dr. Arkowitz was a staff psychologist at Atascadero.

Dr. Arkowitz outlined the sex offender treatment program at Atascadero, which consists of five phases. He explained that in phase four of the program, the patient prepares for conditional release by developing a concrete plan for living in the community and reviewing the detailed terms and conditions that will accompany the patient's conditional release. In phase five, the patient is conditionally released. Lloyd has completed three of the five phases, and is awaiting approval to begin phase four. Dr. Arkowitz testified that, in his opinion, Lloyd was not ready to be conditionally released.^[3]

The People called Lloyd as a witness. Lloyd admitted that he had molested 10 boys over approximately a 10-year period. He admitted that he met several of the boys through a youth club that he founded.

With regard to his relapse prevention plan, Lloyd stated that if released, he planned to live, initially, with his sister and her 10-year-old daughter in Orange County. Lloyd explained that he would spend most of his time traveling in a car with his sister, a medical courier, as she made deliveries. He also planned to voluntarily attend outpatient treatment at a program in Los Angeles called Sharper Futures. Lloyd testified that Sharper Futures costs $55 a session, and that he anticipated attending three sessions a week.^[4] Lloyd testified that his family would help with the costs of the program. Lloyd also stated that he was still was considering the possibility of living with his aging parents in Philadelphia. Lloyd acknowledged that it would be difficult for him to have to care for his parents, since they had abused him as a child.^[5]

C. Lloyd's evidence

Crystal Rose is a psychiatric social worker at Atascadero and is Lloyd's primary clinician. Rose testified that Lloyd's records did not indicate that he had ever engaged in sexually inappropriate behavior while at Atascadero. In addition, Lloyd had made good progress in treatment. Rose believed Lloyd would pursue treatment if released. Rose testified that she believed Lloyd could be released unconditionally. However, she stated that this was her view as a "human being" and that her opinion was not "within the scope of what social workers are supposed to do within . . . the Atascadero program."

Dr. Clark Clipson, a psychologist, evaluated Lloyd for purposes of determining whether he was an SVP. Dr. Clipson stated that Lloyd was a pedophile and that he had a personality disorder. However, Dr. Clipson testified that Lloyd was now in control of his condition. Among the factors Dr. Clipson relied on in reaching this assessment were that Lloyd had demonstrated no inappropriate sexual behavior while institutionalized, and that he did not demonstrate any current attitudes condoning sexual behavior with children. In addition, Dr. Clipson stated that Lloyd had developed "the most extensive relapse prevention plan of anyone I've evaluated." Further, Dr. Clipson noted that Lloyd had nondeviant sexual outlets, that he had demonstrated victim empathy during his treatment, and that he had a strong family support system. Dr. Clipson testified that in his opinion, Lloyd had benefited from treatment, he posed a low risk for reoffending, and he was no longer an SVP.

Lloyd's sister, Evelyn Lloyd (Evelyn) testified that she was willing to have Lloyd live with her and her 10-year-old daughter if he were released. She stated that she would be able to financially support Lloyd for six months, and that he could accompany her while she made deliveries for her job as a medical courier.

D. The verdict, commitment order, and appeal

The jury found Lloyd to be an SVP within the meaning of sections 6600 and 6604. In July 2005, the trial court entered an amended order committing Lloyd to the Department of Mental Health for continued involuntary treatment as an SVP until November 2, 2006. ^[6]

Lloyd timely appeals.

III.

DISCUSSION

A. There is sufficient evidence to support the jury's finding that Lloyd is an SVP

Lloyd claims there is insufficient evidence to support the jury's finding that he is an SVP.

"We review sufficiency of the evidence challenges under the [SVPA] according to the same standard pertinent to criminal convictions." (People v. Fulcher (2006) 136 Cal.App.4th 41, 52, citing People v. Mercer (1999) 70 Cal.App.4th 463, 466.) Accordingly, this court must review the entire record in the light most favorable to the

judgment to determine whether there is substantial evidence to support the jury's finding that Lloyd is an SVP. (See People v. Johnson (1980) 26 Cal.3d 557, 576-578.) To be substantial, the evidence must be " 'of ponderable legal significance . . . reasonable in nature, credible and of solid value.' [Citation.]" (Id. at p. 576.)

Section 6600, subdivision (a)(1) defines an SVP as "a person who has been convicted 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 or she will engage in sexually violent criminal behavior." Section 6600, subdivision (b) enumerates a list of qualifying sexually violent offenses. Section 6600, subdivision (c) defines a "diagnosed mental disorder" to include "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." Section 6600, subdivision (e) provides: " 'Predatory' means an act is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization."

In Cooley v. Superior Court (2002) 29 Cal.4th 228 (Cooley), the Supreme Court discussed these statutory provisions in outlining what a jury must find in order to determine that a person is a sexually violent predator:

"At the trial stage . . . a judge or jury must find, beyond a reasonable doubt, that (1) the offender has been convicted of qualifying sexually violent offenses against at least two victims as defined in section 6600, subdivision (b); (2) the offender has a diagnosed mental disorder as defined in section 6600, subdivision (c); (3) the disorder makes it likely the offender would engage in sexually violent conduct if released; and (4) that this sexually violent conduct will be predatory in nature as defined in section 6600, subdivision (e)." (Id. at p. 246, fn. 9.)

In order to prove that the offender is likely to engage in sexually violent conduct, the People must demonstrate that "the person is found to present a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody." (People v. Roberge (2003) 29 Cal.4th 979, 988.)

Lloyd claims there is insufficient evidence in the record to establish that he is likely to engage in sexually violent conduct if released. As detailed in part II, ante, both Drs. Updegrove and Sreenivasan testified there is a substantial danger that Lloyd would engage in sexually violent conduct if released. Among the factors supporting the doctors' opinions are the following: Lloyd's persistent history of committing sexual acts against children; various characteristics of Lloyd's offense history, including the gender of his victims and the early onset and severity of his pedophilia; Lloyd's failure to complete all of the phases of treatment offered at Atascadero; and Lloyd's personality disorder. In addition, the jury could have been skeptical of the reasonableness of Lloyd's relapse prevention plan. Lloyd planned to live in a home with a 10-year-old girl, and thereafter live with parents whom Lloyd testified had subjected him to substantial sexual and physical abuse. Lloyd conceded that there were some "bugs" in his plan.

We reject Lloyd's argument that the record lacks sufficient evidence that he would be likely to engage in sexually violent conduct if released because "the experts based their opinions on [Lloyd's] past." While it is true that Drs. Updegrove and Sreenivasan based their opinions that Lloyd currently poses a risk for reoffending, in part, on Lloyd's prior conduct, it was entirely proper for them to do so. (See People v. Poe (1999) 74 Cal.App.4th 826, 830-832 [relying on appellant's offense history in rejecting claim that record lacked sufficient evidence to support the finding that appellant was likely to engage in sexually violent behavior].)

Lloyd cites no cases to the contrary. Unlike in People v. Munoz (2005) 129 Cal.App.4th 421, 432, which Lloyd cites, in this case the People did not suggest to the jury that it could find Lloyd to be an SVP because he had been found to be an SVP in the past and nothing had changed since that determination. Rather, the People presented expert opinion evidence that Lloyd was likely to reoffend. Those experts properly based their opinions on a review of Lloyd's entire case history.

Further, the People did not rely solely on Lloyd's past conduct to prove that he was likely to reoffend. The fact that Lloyd had not yet completed the phased treatment program at Atascadero, that his relapse prevention program was questionable, and that he made a comment to Dr. Sreenivasan that could be interpreted to suggest that he no longer considered himself to be a pedophile, all support the jury's finding that Lloyd is an SVP.

We reject Lloyd's argument that the record lacks substantial evidence to support the jury's finding that he is an SVP because there was no evidence that he acted in an inappropriate sexual manner at any time while institutionalized. In her testimony, Dr. Sreenivasan agreed with the prosecutor that a person may not "act[] out sexually" while institutionalized, only to reoffend when released. She explained that a hospital setting is a restricted environment that might not contain the stimuli likely to contribute to a person's commission of a sexual offense. In Lloyd's case, there were no young boys at Atascadero, and he was constantly being monitored. The absence of evidence that Lloyd had acted sexually inappropriately while at Atascadero does not preclude a finding that he is likely to act in such a fashion if he were released. (Accord, § 6600, subd. (d)

[" 'Danger to the health and safety of others' [in definition of SVP] does not require proof of a recent overt act while the offender is in custody"].)

We conclude that there is sufficient evidence to support the jury's finding that Lloyd is a sexually violent predator.

B. The trial court did not err in instructing the jury pursuant to a modified version

of CALJIC No. 2.23

Lloyd claims the trial court erred in instructing the jury pursuant to a modified version of CALJIC No. 2.23. We apply the de novo standard of review to Lloyd's claim. (See People v. Posey (2004) 32 Cal.4th 193, 218 ["The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law"].)

1. Factual and procedural background

CALJIC No. 2.23 provides:

"The fact that a witness has been convicted of a felony, if this is a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of a conviction does not necessarily destroy or impair a witness's believability. It is one of the circumstances that you may consider in weighing the testimony of that witness."

During a jury instruction conference outside the presence of the jury, the trial court indicated its intention to instruct the jury pursuant to CALJIC No. 2.23. Lloyd's counsel objected on the ground that the instruction could suggest to the jury that Lloyd was untrustworthy because of his status as a convicted felon. The trial court stated that the purpose of CALJIC No. 2.23 was to instruct the jury that the fact that a witness has previously suffered a felony conviction does not necessarily destroy or impair the witness's believability.

The trial court then expressed its concern that CALJIC No. 2.23 instructs a jury that it may consider a witness's felony conviction only for purposes of determining the witness's believability. The People responded to the court's concern by stating that, in other similar proceedings, courts had modified CALJIC No. 2.23 by striking the word "only" from the instruction, and suggested that the court delete the word "only" from the instruction. Defense counsel objected to striking the word "only" from the instruction. The court ruled that it would strike the word "only" from the instruction and would instruct the jury pursuant to the modified instruction. Thereafter, the court instructed the jury pursuant to the modified version of CALJIC No. 2.23.

2. The trial court properly modified CALJIC No. 2.23

On appeal, Lloyd acknowledges that the trial court was required to modify CALJIC No. 2.23 because the jury was entitled to consider the fact that he had previously suffered felony convictions in determining whether he had suffered a qualifying conviction under section 6600. However, Lloyd claims that the trial court's modification was improper because it suggested to the jury that it could consider his prior felony convictions as evidence that he had a propensity to commit such crimes. Lloyd claims the trial court should have instructed the jury that it could consider Lloyd's previous felonies for two limited purposes: to assess his credibility, and to determine whether he had suffered a qualifying conviction.

We reject Lloyd's contention that the instruction as given by the trial court suggested to the jury that the jury could consider Lloyd's prior felony convictions as propensity evidence. On the contrary, the trial court's modified instruction correctly informed the jury that it could consider Lloyd's prior felony convictions in determining his believability as a witness. The instruction in no way suggested that the jury could consider Lloyd's felony convictions as propensity evidence.

The trial court properly struck the word "only" from the instruction because, under the circumstances of this case, it would be a misstatement of the law to instruct the jury that it could consider Lloyd's prior felony convictions only for purposes of determining his credibility. As Lloyd acknowledges, the jury was entitled to consider his felony convictions for purposes of determining whether he had suffered a qualifying conviction under section 6600.

The current standard criminal instructions incorporate the modification the trial court utilized in this case. Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 316, approved for use as of January 1, 2006, after the trial in this case, provides in relevant part:

"If you find that a witness has been convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."

The Bench Note to CALCRIM No. 316 states, "If a felony conviction or other misconduct has been admitted only on the issue of credibility, give the bracketed word 'only.' "

We reject Lloyd's contention that the trial court erred by failing to modify CALJIC No. 2.23 so as to instruct the jury that it could consider his prior felony convictions only for two limited purposes: assessing his credibility and determining whether he had suffered a qualifying offense. Lloyd never requested a modification or clarification along these lines. The contention, therefore, is forfeited. (See People v. Dunkle (2005) 36 Cal.4th 861, 895.)

We conclude that the trial court did not err in instructing the jury pursuant to a modified version of CALJIC No. 2.23.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

McINTYRE, Acting P. J.

IRION, J.

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^[1] Unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.

^[2] We have relied on the People's August 2004 petition for recommitment in outlining this procedural background, which appears to be undisputed.

^[3] Dr. Arkowitz explained that only patients who are committed as SVPs can be conditionally released. A person found not to be an SVP would be unconditionally released.

^[4] In rebuttal, Dr. Eric Fox, the director of the Sharper Futures program in San Diego, testified that the cost for a patient such as Lloyd would be $180 a session, with three required sessions each week. In addition, Dr. Fox testified that Sharper Futures recently developed a policy requiring patients who had been released from Atascadero to prepay for a year of treatment, to increase the likelihood that the individual would complete the treatment program.

^[5] During cross-examination, Lloyd testified that he suffered substantial sexual and physical abuse as a child.

^[6] The trial court's original order mistakenly committed Lloyd until November 2, 2007.