P. v. Orozco

Filed 9/30/08 P. v. Orozco CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Marcelita V. Haynes, Judge. Affirmed.

Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In 2005, defendant and appellant Hernan Orozco was found by a jury to be a sexually violent predator (SVP) under Welfare and Institutions Code section 6600 et seq.^[1] He thereafter petitioned for an annual show cause hearing in 2006. The trial court heard evidence, including evidence from Orozcos expert witness. The court denied Orozcos petition. Orozco now appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Orozco petitions for an annual show cause hearing.

In January 2006, Orozco petitioned for an annual show cause hearing under section 6605. The hearing, at which Orozco had the burden of proof, began in January 2007.

A. Orozcos expert witness, Dr. Brian Abbott.

Dr. Abbott prepared a report dated December 2006. Dr. Abbott tested and interviewed Orozco, spoke to Orozcos sister, and reviewed Orozcos records from Atascadero State Hospital and Coalinga State Hospital. Orozco reported that he had a normal, happy upbringing, and his sister agreed that Orozco did not have behavioral or emotional problems during his childhood and adolescent years. Orozco said he has no sexual interest in males.

Orozco denied committing any crimes before immigrating to the United States when he was 20. But his adult criminal history, which began at the age of 24, includes: battery on a peace officer in 1975; acquittal on charges of kidnapping, rape by force, rape by threat, sodomy and penetration with foreign object in 1977; a conviction of petty theft in 1977; a guilty plea to exhibiting a deadly weapon in 1977; a no contest plea to reckless driving in 1977; a guilty plea to forcible rape in 1978; a dismissal of charges of forcible rape and forcible copulation in 1978; and a conviction of assault with intent to commit sodomy, five counts of forcible sodomy, sexual battery, and three counts of forcible oral copulation in the 1980s.

The 1977 rape of which he was acquitted involved a 17-year-old female, who Orozco claimed engaged in sex with him willingly. While in jail facing that rape charge, a fellow inmate accused Orozco of slapping him, forcing him to remove his clothes, and using a razor to make the victim fellate Orozco and other inmates. Orozco was convicted of only a petty theft in connection with money taken from the victim. Orozco told Dr. Abbott he merely was an onlooker during this incident.

In 1978 he allegedly offered money to a 15-year-old girl in exchange for sexual favors. When she refused, Orozco choked and raped her, while the victims five-year-old companion sat in the front seat. About 11 months after this incident, Laurie alleged that she and defendant went out one night. Orozco drove her to an isolated spot. He hit, choked and threatened to kill her. He raped her. Then, in 1982, Orozco repeatedly raped his girlfriends 14-year-old son. While on parole in 1994, Orozco was charged with parole violations for rape, oral copulation, sodomy, battery and driving a vessel while drunk. While sailing with the victim, Orozco threatened to throw her overboard, and he ordered her to fellate him. He slapped, strangled and raped her. Sexual assault charges were dropped when the victim could not be found.

Orozco denied to Dr. Abbott engaging in either any of this or other forcible sexual behavior.

Dr. Abbott reported that Orozco had no significant adjustment problems during his first prison term. But Orozco had significant behavior adjustment problems during his second prison commitment; he engaged in physically and sexually assaultive behavior toward inmates and staff.

Dr. Abbott tested Orozco on the AASI Mens Questionnaire and the MCMI-III. On the questionnaire, Orozco indicated, among other things, that he has not engaged in sexual behaviors such as child molestation or been sexually aroused by forcible behavior. His scoring indicates he does not endorse items on the test consistent with the ways pedophilic offenders rationalize or justify their sexual behavior toward children. The MCM-II assesses major mental disorders, with an emphasis on personality disorders. Orozco displayed no signs of a DSM-IV-TR Axis I diagnosis.

Dr. Abbott also found that Orozco verbally abused staff and patients, and he used sexually derogatory terms aimed often at female staff. By 2001, however, Orozcos physically assaultive, combative and intimidating behavior subsided, although his verbal abuse continued at a high frequency per quarter. By 2003, the frequency of his rule violation reports decreased substantially. The improvement in his behavior is consistent with research showing significant reduction in antisocial behavior co-occurring with advancing age. Orozco, who was born in April 1951, was 56 years old at the time of these proceedings.

The doctor admitted, however, that he did not review all of the notes concerning Orozco from Coalinga, including one from August 2006. In August 2006, Orozco sexually harassed a fellow patient by, on several occasions, going into his room, disrobing and asking for sex. Dr. Abbott also did not review a 2003 report stating that Orozco pressured someone else for sexual favors. When the victim refused Orozcos advances, Orozco said he had a shank and would stab him if he told anyone.

Dr. Abbott concluded that Orozco does not suffer from a current personality disorder or from paraphilia not otherwise specified, nonconsenting. As to the personality disorder, although Orozco displays symptoms of adult antisocial behavior, he does not have an antisocial personality disorder, as diagnosed by the state hospital clinicians. There is no evidence Orozco had a conduct disorder before the age of 15, and he did not display a pattern of antisocial behavior in his adolescence. The lack of evidence of conduct disorder before the age of 15 rules out an antisocial personality disorder diagnosis. The seriousness and frequency of Orozcos acting out has subsided, and this also contradicts the presence of a current personality disorder. One would expect a constant rate of behavior if there is a current personality disorder.

Dr. Abbott also criticized other doctors focus on Orozcos crime-related behavior, while failing to establish the general conditions of a personality disorder, namely, a pervasive and inflexible behavior across a broad range of personal and social contexts. He never displayed antisocial and narcissistic behavior in other important areas of functioning, such as during his childhood and at work.

Nor does Orozco suffer from paraphilia not otherwise specified, nonconsenting. Dr. Abbott said that this diagnosis is not in the DSM-IV. A paraphilia diagnosis cannot be based on behavior alone. The individual must suffer from recurrent, intense sexually arousing urges, fantasies or behavior. Orozco does not suffer from such urges, fantasies or behavior. Phallometric testimony showed that sexually assaultive behavior did not arouse Orozco, although cross-examination revealed that Orozcos response to nonconsenting sexual scenarios was higher than Dr. Abbott believed, 42 percent rather than 14 percent. Dr. Abbot could not determine that Orozcos offenses involved a specific arousal to a force aspect. Rather, Orozco is more consistent with someone who exercises sexualized assertion of power and control. Orozco engages in sexualized behavior with what he thinks is a consenting person; when they resist, he becomes angry and escalates the physical violence so he can complete the sex act. This is common with power and control rapists. The number of Orozcos mutually consenting sexual relations far exceed his acts of forcible sexual conduct.

Dr. Abbott also found that Orozco has a low risk of reoffending. He criticized the state evaluators use of the Static-99, a risk assessment methodology, which Dr. Abbott considers invalid and unreliable. The Static-99 was developed to predict sexual recidivism with SVPs in Canada and England, but recidivism there is higher than in the United States. Data suggests that the Static-99 may over predict sexual recidivism in sex offenders in the United States by a magnitude of three or four times. Advancing age also mitigates the risk for sexual offense. Sexual reoffense peaks at 40, and declines linearly thereafter. There is a sharp drop after 60. Orozcos risk for reoffense is around 6 percent, and he is not a serious and well-founded risk to engage in criminally violent predatory sex acts.

B. The Peoples expert witness, Dr. Diane Imrem.

Dr. Imrem is a clinical psychologist at Atascadero State Hospital. She diagnosed Orozco with (1) paraphilia, not otherwise specified, sexual activity with nonconsenting persons, and (2) personality disorder, not otherwise specified, with antisocial and narcissistic features. As to the paraphilia, Orozco meets the criteria according to the DSM-IV T.R.; namely, he has a number of offenses involving nonconsensual activity with different people over a period of time exceeding the recommended guideline of six months. Paraphilia can be diagnosed based on behavior alone, for example, where a person confesses to fantasies of nonconsensual, aggressive sex with someone, but has not acted on those fantasies.

As to the personality disorder, Orozco has exhibited a number of antisocial and narcissistic traits for a long period of time in different settings. Personality disorders typically are not diagnosed until late in adolescence or early adulthood. There is evidence of narcissistic tendencies in Orozcos early adulthood, beginning at the age of 24. A 1979 report refers to verbal sexualizations of a victimOrozco said he would not dirty his Mercedes by having sex with the victim in it. According to Dr. Imrem, this statement shows a lack of empathy and a narcissistic quality. His behavior at Atascadero, his rules violations, his interactions with others, and his thinking and responses also point to a personality disorder with antisocial and narcissistic traits. It is unnecessary to see evidence of the disorder to have it; there is no known cure. But the risk of acting out can be addressed by treatment, which defendant has refused.

Dr. Imrem also looked at the Static-99, which is of a moderate degree of predictive accuracy. It is a good screening device for categorizing different risk levels of sexual offenders. She scored Orozco as high risk at an 8, possibly a 9. A score of 6 or greater is a 39 percent reoffense risk in five years; 45 percent in ten years; and 52 percent in fifteen years.

She disagrees with Dr. Abbotts criticism that the Static-99 is not valid for sexually violent predators because the base rates were from tests in Canada and the United Kingdom. Over 60 studies in the United States have cross-validated the Static-99. The Static-99 is known to under predict, because it measures convictions rather than new sexual offenses, which can go unreported.

Dr. Imrem prepared a report dated February 2006, in which she concluded that there has been no change in Orozcos status since he was found to be a SVP in September 2005. She considered his failure to attend treatment programs, all documents regarding his history and medical status, and his verbal behavioral reports. Orozcos derogatory remarks speak to his difficulty working with authority, cooperation level, his sense of entitlement, lack of empathy, and arrogance. She has found him to be aggressive, irritable and lacking remorse. From 2005 to 2006, she did not see a significant change in Orozcos condition based on review of the records.

Nothing in Dr. Abbotts report changes her opinion. She disagreed with how he utilized the DSM. Although Dr. Abbott felt that Orozco would have current evidence of fantasies if he still had a disorder, the DSM includes behaviors. And although Dr. Imrem did not tally Orozcos behavioral notes from 2003 to 2006, the meaningful point is he still exhibits inappropriate behaviors.

She disagrees with Dr. Abbotts conclusion that Orozcos sexually assaultive behavior results merely from adult antisocial behavior. She said that a cause-effect relationship cannot be drawn in that manner; there are, for example, adults who engage in antisocial behavior who are not sexually aggressive. So theres something specific to . . . Orozco that connects that.

C. The Peoples expert witness, Dr. Dawn Starr.

Dr. Starr is a psychologist who evaluates people who might fall under the SVP law for the Department of Mental Health. Dr. Starr first evaluated Orozco in 2001, at which time he declined to be interviewed. She reevaluated Orozco in 2004; he again declined an interview. She talked to him in 2005 about his concerns regarding legal issues. A 2006 evaluation included an interview. She wrote an evaluation for the Department of Mental Health in October 2006.

She diagnosed Orozco with paraphilia not otherwise specified, nonconsensual sex, and with personality disorder not otherwise specified or a mixed disorder with narcissistic and antisocial features. Her diagnosis has not changed from 2001 to 2006. Paraphilia is a relatively rare finding; less than 1 percent of Californias sex offenders are committed as a SVP based on that diagnosis.

Since Orozcos arrival in the United States, he has had a pattern of violent criminal and sexual behavior, which includes multiple sexual partners: male, female and juveniles. The last documentation of unwanted sexual desires while in custody were in 2003 at Atascadero and in 2006 at Coalinga. These incidents are important because he continues to pressure or harass people.

In terms of the narcissistic features, Orozco believes he is special. He tries to intimidate people and to take charge of the situation. He has a sense of entitlement. He has made statements while in custody to that effecthe deserves respect, but he does not show it to other people. He has particular problems with women. His callous disregard for the feelings of others evidences his antisocial features. Deceit and irresponsibility are features of an antisocial personality disorder.

Orozco began his criminal behavior at 24, which Dr. Starr would characterize as early adulthood. Orozco has at least 10 documented different victims in and out of custody that are nonconsensual, which undercuts Dr. Abbotts statement that he found no evidence indicating that Orozco acted sexually with his victims because he was aroused by their resistance. The diagnostic criteria for paraphilia not otherwise specified does not require evidence of the disorder currently.

Dr. Starr disagrees with Dr. Abbotts conclusion that Orozco showed no significant adjustment problems during his first prison term in the late 1970s and early 1980s. Orozco received 16-month specialized housing for threatening the life of another inmate and for securing sexual favors from that inmate using a razor blade. He also tried to push a correctional officer after an altercation.

Orozco was not exhibiting better adjustment by 2003, as Dr. Abbott asserted. Although the frequency at which Orozco received behavior notes fluctuated, it was still high. The problems continue to exist. An example of forced sexual activity is what happened in August 2006, when Orozco repeatedly entered another patients room, disrobed, and asked for sex.

The doctor has seen nothing to make her believe his condition has changed since 2005. She does not contact family members because they are not reliable sources of information.

A score of anything over 20 percent on a rape arousal test is significant. Orozco received a 42 percent. His highest and only significant arousal was to a rape scene; it was higher than to consensual sex.

Orozco is a risk to reoffend.

D. The trial court does not find probable cause that Orozcos mental condition has changed so that he is no longer a danger to others.

The trial court first noted that a show cause hearing could not be just a battle of the experts, otherwise all the respondent would ever have to do is bring in a different opinion. It has to be credible, reliable, to raise it to a strong suspicion or to a reasonable suspicion. The court then said it did not have a strong suspicion that Orozcos condition had changed whatsoever. The court credited Dr. Imrems and Dr. Starrs testimony. The court found Dr. Abbott to be biased in that he discounted and downplayed matters. He was biased towards the defense and against the DSM-IV. Moreover, Dr. Abbott had spent the last four and one-half years profiling sexual offenders, rather than diagnosing them. The court concluded, So I credit the testimony of the two of them [Dr. Imrem and Dr. Starr]. I dont believe its a battle of the experts. The court does not have a strong suspicion or even a reasonable suspicion that the defendants mental condition has changed so that he isdoes no longer fit the definition . . . in . . . Welfare and Institution[s] Code section . . . 6600.

Orozco was then committed for the remainder of his conditional term.

DISCUSSION

I. Orozco did not meet his burden of proof at the show cause hearing.

A sexually violent predator is a person who has been convicted of a sexually violent offense against one 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 the person will engage in sexually violent criminal behavior. ( 6600, subd. (a)(1).)^[2] A person who has been committed under the SVP law has an annual right to petition for an order to show cause hearing. ( 6605.) If the court at the show cause hearing determines that probable cause exists to believe that the committed persons diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged, then the court shall set a hearing on the issue. ( 6605, subd. (c).)

The SVP at a show cause hearing has an evidentiary burden similar to the prosecutions burden at the preliminary hearing in a felony case: both must establish probable cause to believe in the existence of the requisite facts. . . . At the show cause hearing, the SVP must establish probable cause to believe that his mental condition has changed so that he is no longer a danger to others. (People v. Hardacre (2001) 90 Cal.App.4th 1392, 1402.) Probable cause has a lower threshold of proof than proof beyond a reasonable doubt or by a preponderance of the evidence, and has been defined as a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the fact to be proved. (Id. at p. 1400.) On appeal from an order after a show cause hearing, [t]he question, then, is whether the evidentiary record of the show cause hearing disclosed a rational basis for believing that [the defendant] was no longer a danger to others, accepting any factual findings made by the trial court to the extent they were supported by substantial evidence. (Id. at p. 1402.)

Dr. Abbotts testimony, when considered with Dr. Imrems and Dr. Starrs testimony, did not disclose a rational basis for believing that Orozco is no longer a danger to others. As to the paraphilia diagnosis, Dr. Abbott denied that is a proper diagnosis on the DSM-IV, a conclusion that Drs. Imrem and Starr contradicted and that the trial court found to show Dr. Abbotts bias against the DSM-IV. As to the personality disorder diagnosis, Dr. Abbott found important the lack of evidence of any disorder in Orozcos adolescence and early adulthood. But the record also shows that Orozco immigrated to the United States when he was around 20 years of age, and his documented criminal behavior began soon thereafter, at the age of 24, which Drs. Imrem and Starr considered to be early adulthood.

Dr. Abbotts also based his opinion on Orozcos self-reporting. Orozco told Dr. Abbott that he had never engaged in nonconsensual sex or sexual conduct with males. Orozcos criminal record, however, shows a history of nonconsensual sex, with males and females. His record, moreover, reveals a continuation of attempts to use force. For example, Orozco, while committed, threatened to stab someone with a shank when the person refused Orozcos sexual advances. Most recently, in 2006, Orozco made repeated and unwanted advances to a fellow inmate. Orozco went into his room on several occasions, disrobed, and asked for sex, although the person had made it clear he did not want to engage in sex with Orozco. Dr. Abbott was unaware of these reports, which undercuts his point that there was no evidence of current behavior to support the paraphilia and personality disorder diagnoses. And, when made aware of the more recent incidents, he downplayed them and questioned their veracity.

This recent 2006 incident also undercuts Dr. Abbotts conclusion that Orozco has a low risk of reoffending. All experts acknowledged that advancing age has been found to mitigate the risk for sexual reoffense, but Orozco sexually harassed someone in 2006, when he was in his 50s. Thus, Dr. Imrem scored Orozco on the Static-99 as having a high risk of reoffending. Also, Orozco has never participated in treatment, which might evidence a lowered risk of reoffending. (See People v. Hardacre, supra, 90 Cal.App.4th at p. 1402 [It was uncontested that Hardacre would not participate in the second phase of his therapy, and nothing in the annual evaluation suggests that he was in a better position to control his pedophilia than he was when he was first committed].)

Orozco, however, argues that the evidence did not show that his prior offenses, or any future offenses, were or would be predatory in nature. This is not a correct statement of what must be shown at a show cause hearing. The petitioner, Orozco, has to establish probable cause that his diagnosed mental disorder has so changed that he . . . is not likely to engage in sexually violent criminal behavior if discharged[.] ( 6605, subd. (c).) Only if a petitioner meets his or her burden of proof at a show cause hearing, is a full blown hearing held. To the extent the showing of a predatory nature had to be made at the show cause hearing, it had to be made by Orozco, who had the burden of proof. Orozco does not clarify what in the record shows he would not commit predatory acts directed toward a stranger, a person of casual acquaintance . . . , or an individual with whom a relationship has been established or promoted for the primary purpose of victimization. ( 6600, subd. (e).) The record instead shows that Orozco committed a predatory act in 2006 by sexually harassing a fellow inmate.

Orozco also argues that the trial court employed an erroneous standard in making its findings. The argument is meritless. Orozco cites nothing in the record to substantiate his argument. Indeed, the record reveals that the court understood that the standard was probable cause. The court said it did not have a strong suspicion or even a reasonable suspicion that Orozcos mental condition had changed so that he no longer fits the definition of an SVP.

We therefore conclude that the trial court did not err by concluding that Orozco failed to meet his burden of proof at the show cause hearing.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All further undesignated statutory references are to the Welfare and Institutions Code.

^[2] Former section 6600 required the person to have been convicted of a sexually violent offense against two or more victims.