P. v. Luers

Filed 5/19/08 P. v. Luers 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant Derek Luers committed a sex offense involving a minor and was sentenced to state prison. After serving his sentence, the Board of Parole Hearings (BPH) determined that he met the criteria for treatment as a mentally disordered offender (MDO) and recommended that he be confined to the Department of Mental Health (DMH) as a condition of parole. (Pen. Code,  2962.)^[1]

Appellant filed a petition requesting that the trial court overturn the determination of the BPH. ( 2966, subd. (b).) The trial court found that he met the statutory criteria beyond a reasonable doubt, certified him as an MDO and ordered him committed to the DMH. Appellant challenges the sufficiency of the evidence supporting the trial court's finding that he represents a substantial danger of physical harm to others.^[2] We affirm.

FACTS

Appellant is committed at AtascaderoState Hospital (ASH) as both an MDO and a sexually violent predator (SVP). (Welf. & Inst. Code,  6604.) As an SVP, appellant had previously been housed at Coalinga State Hospital, but that facility is not licensed to treat MDO's.

Dr. Joshua Deane, a staff psychiatrist at ASH, diagnosed appellant as suffering from pedophilia and major depression. Dr. Deane testified that appellant is not in remission and cannot be kept in remission without treatment. Pedophilia is a lifelong condition. Appellant has refused treatment at ASH and has no relapse prevention plan.

According to Dr. Deane, appellant first offended when he was age 11. In 1984, he committed an offense with a young boy. In 1986 he was committed to the California Youth Authority (now the Department of Corrections and Rehabilitation, Division of Juvenile Facilities). He had committed "similar crime[s] in '90, '91 and '96," and at least one of his offenses consisted of fondling. Dr. Deane did not know the details of any of the crimes, but believed appellant had committed one offense while in out-patient treatment. Dr. Deane did not know if any of appellant's offenses resulted in physical injury to the victim.

Dr. Deane also made reference to a 1984 offense that involved "assault with a deadly weapon, not a firearm." He did not know the details of that offense.

ASH has a "Phase Treatment" program that is designed to treat SVP's. For the past year appellant has refused to attend group treatment because he prefers to be treated at Coalinga State Hospital. Dr. Deane explained that appellant was transferred to ASH because Coalinga is not licensed to treat dual commitment patients. Appellant has told Dr. Deane that, once he is released from ASH and transferred back to Coalinga, he will resume treatment there. It was Dr. Deane's opinion that appellant represents a substantial danger of physical harm to others due to his refusal of treatment.

MDO Trial

At the MDO trial, the People indicated that appellant had previously been the subject of a similar proceeding, but did not specify whether it was an SVP commitment or another MDO commitment. At the instant trial only three of the statutory criteria were addressed: whether appellant suffered from a severe mental disorder; whether he was in remission or could not be kept in remission without treatment; and whether he represented a substantial danger of physical harm to others.^[3]

At trial, defense counsel argued that appellant did not represent a "substantial danger of physical harm" because there was no evidence he caused physical harm to a victim. He contended that the statute specifically required a showing of physical, rather than emotional, harm. As to future dangerousness, the People contended that, in a prior proceeding, there was a judicial finding that appellant had used force or violence on a child in the commission of the offense.

The court asked, "Are you arguing res judicata or collateral estoppel?" The People repeated that a finding had already been made on the issue of force or violence and the court interjected, "Isn't [Penal Code section] 288 a crime of force or violence?" The People responded, "There's a couple of them, I'm not sure which. But, yes, I think that's true."

The trial court's inquiry is the only reference in the record concerning the statutory basis for appellant's conviction.^[4] Its comments regarding res judicata and collateral estoppel are irrelevant to our analysis of future dangerousness. However, we acknowledge the parties' efforts to respond to this statement in their briefs.

The trial court concluded that Dr. Deane's testimony established that appellant is not undergoing treatment and is not in remission. It indicated that "[t]he fact that [appellant] may not have hurt anybody up until now is not, in itself, a showing that he's not dangerous and a crime of this sort, I think the doctor's testimony that he fits the criteria is justified by the evidence in the case."

DISCUSSION

Appellant challenges only the criterion of future dangerousness. He claims that substantial evidence does not support the trial court's finding because there is no evidence that his behavior "ever represented a substantial danger of physical harm to anyone at any time." Appellant claims that the trial court erred in determining future dangerousness without considering that he was also an SVP and would remain in the custody of the DMH even if he were found not to qualify as an MDO. He argues that it is difficult for a pedophile to reoffend while in custody because he is not in the presence of children.

The substantial evidence rule applies to appellate review of MDO proceedings. (People v. Miller (1994) 25 Cal.App.4th 913, 919-920.) We review the record in the light most favorable to the judgment to determine whether it discloses "evidence that is reasonable, credible, and of solid value" such that a reasonable trier of fact could find beyond a reasonable doubt that appellant met the MDO criteria. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Beeson (2002) 99 Cal.App.4th 1393, 1398.) We may not reweigh the evidence and substitute our judgment for the trial court. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Expert Testimony

The MDO law does not define the requirement of "substantial danger of physical harm to others." ( 2962, subd. (d)(1); In re Qawi (2004) 32 Cal.4th 1, 24.) "In context, it appears to mean a prediction of future dangerousness by mental health professionals." (In re Qawi, at p. 24.) Appellant acknowledges that an expert may testify as to dangerousness and that such an opinion can constitute substantial evidence to support the trial court's finding. He argues, however, that Deane's opinion was conjectural and speculative and not based on any evidence to suggest that appellant had done anything in the past that would support a finding of future dangerousness.

Relying upon People v. Bassett (1969) 69 Cal.2d 122, appellant argues that there was no basis for Deane's testimony that that he was dangerous. He contends that Deane did not know the circumstances of his offenses, except that one offense involved fondling; Deane did not claim that appellant's behavior was likely to escalate beyond fondling; nor did Deane state that the fondling caused a physical injury or was likely to cause physical injury. Appellant contends that his conviction of assault with a deadly weapon had no evidentiary value, "absent any specific information."

A qualified expert is entitled to render an opinion on the criteria necessary for an MDO commitment, and may base that opinion on information that is itself inadmissible hearsay if the information is reliable and of the type reasonably relied upon by experts on the subject. (People v. Gardeley (1996) 14 Cal.4th 605, 618; People v. Martin (2005) 127 Cal.App.4th 970, 976; People v. Miller, supra, 25 Cal.App.4th at p. 917.) An expert may also offer an opinion as to future dangerousness. (People v. Ward (1999) 71 Cal.App.4th 368, 374.) An expert's testimony rests upon the material from which his opinion is fashioned and the reasoning by which he reaches his conclusion. (People v. Bassett, supra, 69 Cal.2d at p. 141.) Expert opinion that is speculative or conjectural cannot constitute substantial evidence. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)

Deane's testimony was not speculative. It is undisputed that appellant is a pedophile. He has committed four separate sex offenses, one while he was an out-patient. He has served a prison term and been previously hospitalized as an SVP. He has refused treatment at ASH and has no relapse prevention plan. Appellant makes no argument that Deane based these statements on unreliable information. Deane has observed appellant at ASH for over one year. From his direct observation, Deane could properly offer an expert opinion as to appellant's future dangerousness. We agree that appellant's conviction for assault with a deadly weapon was irrelevant to a determination of appellant's future dangerousness as a sex offender. However, the trial court did not rely on that conviction in finding that appellant met the statutory criteria.

Appellant presents no authority to support his contention that his minor victims must suffer lasting physical injury for him to represent a substantial danger of physical harm. His argument that he is not a danger as long as he remains in custody as an SVP is irrelevant to his MDO status.

Deane's testimony constituted substantial evidence supporting the trial court's finding that appellant represents a substantial danger of physical harm to others.

The judgment (order of commitment) is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Barry Hammer, Judge

Superior Court County of San Luis Obispo

______________________________

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Paul M. Roadarmel, Jr., Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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^[1]All further statutory references are to the Penal Code, unless otherwise stated.

^[2]The MDO Act allows the state to civilly commit certain types of prisoners for mental health treatment as a condition of parole. To qualify as an MDO the trial court must find that the prisoner: (1) suffers from a severe mental disorder; (2) used force or violence in committing the underlying offense; (3) his severe mental disorder was a cause or an aggravating factor in the commission of the offense; (4) his disorder is not in remission or capable of being kept in remission without treatment; (5) he was treated for the disorder for at least 90 days prior in the year prior to parole or release; and (6) because of the disorder he represents a substantial danger of physical harm to others. ( 2962, subds. (a)-(d)(1).)

^[3]Only three of the criteria listed in section 2962 are capable of change: "the existence of a severe mental disorder; whether the disorder is in remission and whether the prisoner poses a serious threat of physical harm to others." (People v. Hannibal(2006) 143 Cal.App.4th 1087, 1094; see also People v. Merfield (2007) 147 Cal.App.4th 1071, 1075.) The remaining three criteria concern past events and are incapable of change: whether the prisoner used force or violence in committing the underlying offense; whether he was treated for the disorder for at least 90 days in the year before his release; and whether his severe mental disorder was one of the causes or an aggravating factor in the commission of the underlying offense. (Ibid.)

^[4]On appeal, the People assert that "[t]he record shows that appellant's present crime consisted of a violation of section 288 involving lewd acts on a child under the age of 14 years . . . ." He cites to appellant's MDO petition, which indicates only that appellant was sentenced to a determinate term of eight years. It does not reflect the nature of the offense.