P. v. Savage
Filed 9/20/07 P. v. Savage 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. LEROY SAVAGE, Defendant and Appellant. | 2d Crim. No. B195870 (Super. Ct. No. F392296) (San Luis Obispo County) |
Leroy Savage appeals the order continuing his commitment as a mentally disordered offender (MDO) (Pen. Code,[1] 2962). He contends that his commitment cannot be continued as a condition of his parole because his severe mental disorders, pedophilia and dementia, are no longer treatable. He alternatively contends that his continued commitment constitutes cruel and unusual punishment, in violation of the state and federal Constitutions. We affirm.
FACTS AND PROCEDURAL HISTORY
Dr. Constantine Davantzis, appellants treating psychiatrist at Atascadero State Hospital (ASH) since April of 2006, testified that appellant was suffering from pedophilia and dementia at the time of the Board of Prison Terms (BPT) hearing. Appellant had served 16 years in state prison for sexually abusing his nine-year-old niece and her cousin while he was living at his grandmothers house. According to Dr. Davantzis, appellant used the Nintendo videogame to induce his victims to play other "games" involving sexual acts. Appellants dementia, which was caused by head trauma and drug abuse, had significantly affected his cognitive and motor skills.
Dr. Davantzis opined that appellants pedophilia was not in remission at the time of the BPT hearing. In the doctors opinion, pedophilia is a chronic disorder that can never be placed in remission. Appellants dementia is not in remission either, but rather is progressing. As a result of that disorder, appellant is usually oriented to his name, location, and the date, but nothing else. He has never admitted that he is a pedophile, and does not remember abusing his victims.
Dr. Davantzis also concluded that appellant cannot benefit from the treatment available for his pedophilia because "[t]he treatment for pedophilia that we know of thats been successful involves not only using antiantigen medication, medication that lowers male testosterone, but also very lengthy and in depth cognitive processing type of therapy where the patient analyzes his desire to do these acts and also the negative consequences on not only the victims, but society and has to come up with some type of relapse prevention plan that would prevent him from doing those type of acts again and recognizing the harm that those acts have on the victims." As a result of his pedophilia and dementia, appellant represents a substantial danger of physical harm to others. Even though his dementia might prevent him from engaging in the sophistication he employed in perpetrating the offenses resulting in his conviction, he is still capable of sexual arousal and is unable to understand that his sexual desire for children is wrong. If he is not in a secure placement, he is likely to reoffend.
DISCUSSION
Appellant contends that the order continuing his MDO commitment must be reversed because his treating doctor testified that neither of his severe mental disorders, pedophilia and dementia, are treatable. We disagree.
First, the evidence does not support appellants claim that he is unable to derive any benefit from his treatment for pedophilia and dementia. Although Dr. Davantzis testified that appellant is unable to effectively participate in cognitive therapy for his pedophilia, his treatment for that disorder also includes the administration of medication to lower his testosterone. Moreover, appellant is being taught coping skills for his dementia. The doctor also opined that Savage's pedophilia will never be in remission as a result of his dementia. Remission, as contemplated by the MDO Act, however, requires only that "'. . . the overt signs and symptoms of [it] are controlled either by psychotropic medication or psychosocial support.'" (People v. Beeson (2002) 99 Cal.App.4th 1393, 1399, fn. omitted, italics added; 2962, subd. (a).) Nothing in Dr. Davantzis's testimony precludes the finding that appellant's medication assists in controlling his pedophilic urges.
In any event, we reject appellants argument that an actual benefit from treatment must be shown in order to sustain an MDO commitment. In order to continue an MDO commitment, the court need only find "(1) that the parolee has a severe mental disorder; (2) that the disorder is not in remission or cannot be kept in remission without treatment; and (3) that the parolee represents a substantial danger of physical harm to others by reason of the disorder. ( 2972, subd. (c).)" (People v. Merfield (2007) 147 Cal.App.4th 1071, 1075, fn. 2.) Although successful treatment is certainly a goal of the commitment, it is not a prerequisite to it. The states interest in protecting the public from prisoners who present a substantial danger of physical harm by reason of a severe mental disorder "is no less legitimate and compellingand arguably is even greater" when the treatment is problematic. (People v. Buffington (1999) 74 Cal.App.4th 1149, 1164.) "[T]here is no broad constitutional right of treatment for persons involuntarily confined as dangerous and mentally impaired, at least where 'no acceptable treatment exist[s]' or where they cannot be 'successfully treated for their afflictions.'" (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1166.) While the MDO law expressly refers to prisoners with treatable mental disorders ( 2960), treatment need not be successful in order to sustain a commitment. Indeed, mental health professionals disagree whether pedophilia is a severe mental disorder, much less one that is treatable. (See People v. Starr (2003) 106 Cal.App.4th 1202, 1206.) "Californias involuntary civil commitment schemes are founded on the competing interests in public safety and in humane treatment of the mentally disturbed. [Citations.]" (Buffington, supra, at p. 1164, italics added.) Humane treatment is not synonymous with successful treatment, i.e., that which ultimately leads to total remission of the disorder.
Appellant correctly notes that the Sexually Violent Predators Act (Welf. & Inst. Code, 6600 et seq.) expressly provides that "amenability to treatment" is not required in order to sustain a civil commitment pursuant to that statute (id., at 6606, subd. (b)), while the MDO Act contains no such corresponding provision. The Lanterman-Petris-Short (LPS) Act also contains such a provision. (Id., at 5300, subd. (c).) The absence of such a provision in the MDO law, however, does not compel the conclusion that amenability to treatment is compulsive. Our Supreme Court has recognized that such provisions merely "stand for the unremarkable proposition that some mentally disordered and dangerous persons might not benefit from treatment for a variety of reasons, and that commitment is not foreclosed in those cases." (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1167.) The same rationale applies with equal force in MDO proceedings, notwithstanding the absence of any express provision to that effect. (See People v. Poe (1999) 74 Cal.App.4th 826, 833 [recognizing that "no significant difference exists regarding treatment provisions once a person is found to be a[n] MDO or an SVP"].) "[I]t would be of little value to require treatment as a precondition for civil confinement of the dangerously insane when no acceptable treatment existed. To conclude otherwise would obligate a State to release certain confined individuals who were both mentally ill and dangerous simply because they could not be successfully treated for their afflictions. [Citations.]" (Kansas v. Hendricks (1997) 521 U.S. 346, 366; Hubbart, supra, at pp. 1165-1166.) We discern no reason why such an obligation should be inferred with regard to prisoners committed under the MDO law.
Appellant correctly notes that he might also be subject to custodial treatment under the LPS Act. Our Supreme Court has recently recognized, however, that the LPS Act and MDO law are not mutually exclusive. (People v. Allen (2007) 42 Cal.4th 91, 105-107.)
Appellant alternatively contends that continuing his commitment under the circumstances when he cannot benefit from treatment violates the state and federal Constitutions proscriptions against cruel and unusual punishment. This claim is waived because it was not raised below. (People v. Carpenter (1997) 15 Cal.4th 312, 362.) In any event, the claim fails. Appellant's MDO commitment is civil in nature and does not constitute punishment. (People v. Otis (1999) 70 Cal.App.4th 1174, 1176.) Moreover, the United States Supreme Court and California Supreme Court have both recognized that the Constitution does not compel treatment for MDOs subjected to civil commitments where no successful treatment exists. (Kansas v. Hendricks, supra, 521 U.S. at p. 366; Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1165-1166.) People v. Feagley (1975) 14 Cal.3d 338, which appellant cites for the contrary proposition, was effectively overruled on that point. (Hubbart, supra, at p. 1167, fn. 29.)
The judgment (order continuing commitment) is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
COFFEE, J.
Michael L. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Linda C. Johnson, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
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[1] All statutory references are to the Penal Code unless otherwise stated.