Opinion
NOT TO BE PUBLISHED
San Francisco County, No. 103687
RIVERA, J.
Charles L. Christman, who is committed as a sexually violent predator (SVP) pursuant to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) appeals an order denying his motion for conditional release. We conclude the order was supported by substantial evidence, and affirm.
All statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
Christman has been committed to the Department of Mental Health as an SVP since 1997. He filed a petition for outpatient status pursuant to section 6608 on August 24, 2005. The hearing on the petition took place on several court dates between March 14, 2007, and January 9, 2008.
Under section 6608, subdivision (a), a person committed as an SVP may petition the court for conditional release without the recommendation or concurrence of the Director of Mental Health. At a hearing on the petition, the trial court determines “whether the person committed would be a danger to the health and safety of others in that it is likely he or she will engage in sexually violent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community.” (Id., subd. (d).)
A. Evidence Presented by Christman
1. Jeremy Coles, Ph.D.
Dr. Jeremy Coles, a clinical psychologist who performs forensic evaluations for the Sexually Violent Predator Program, the Mentally Disordered Offender Program, and the Conditional Release Program (CONREP) for the Department of Mental Health, testified on behalf of Christman. Coles was aware that Christman had an “extensive history of pedophilic behavior dating back to 1961.” In 1961, 1980, and 1989, he had been convicted of sexual offenses against young boys. After the 1961 incident, Christman had received treatment at Atascadero State Hospital (ASH) for two years. In 1980, he was convicted of molesting six boys between the ages of 9 and 12 at parks. In 1989, while in the CONREP, he molested two teenage boys at a park. However, in Coles’s opinion, the risk that Christman would reoffend was reduced by two factors: he was 63 years old, in an age group in which recidivism rates declined; and he had been in treatment for 10 years and had shown himself committed to his treatment, both during his commitment at ASH and during the prison term that preceded his commitment. It was his opinion that Christman was appropriate for outpatient treatment with Liberty Healthcare CONREP (Liberty CONREP), a program in which he would have a GPS monitor, multiple group meetings per week, and a “very tight leash.”
Discussing Christman’s mental and emotional state, Coles noted that he had a diagnosis of “pedophilia, sexually attracted to males, nonexclusive,” and had also been diagnosed with “personality disorder, not otherwise specified, with a borderline in narcissistic traits.” Although Christman had been diagnosed in the past with bipolar II disorder, Coles did not believe the diagnosis was correct. He believed that the personality disorder accounted for Christman’s “maladaptive” behaviors: “his inner personal problems, his emotional kind of eruptions, [and] his general difficulty regulating his emotion when he’s faced with stressful situations.”
The treatment program at ASH, where Christman was committed at the time Coles testified, has five steps. The first phase is treatment readiness, and is educational in nature. In the second phase, called skills acquisition, the patients develop an understanding of the behaviors and thoughts that led to their offenses and identify situations that could lead to further offenses. The third phase is skills application. There, the patients try to develop mechanisms for coping if faced with a high-risk situation. Phase three treatment typically involves one or two group meetings a week for sex offenders, and could also involve Alcoholics Anonymous (AA) meetings, anger management meetings, and other resources. In the fourth phase, the patients prepare further for returning to the community, exploring the obstacles they might face and the resources that are available. The fifth phase is outpatient treatment with Liberty CONREP, which is the outpatient treatment and supervision program for SVP’s.
In June 2007, Christman was transferred to Coalinga State Hospital.
Christman began phase two in 1997, and phase three in 1998. He had not progressed to phase four, although Coles was unsure why he had not done so. Coles’s review of Christman’s records indicated there was no evidence that he had acted out in a sexual manner since 1997 or that he was sexually preoccupied in any way. Christman had taken antiandrogen medications to reduce his sex drive from 1999 to 2001, but discontinued them for medical reasons. During his time at ASH, Christman had had “write-ups” of behavioral problems, which Coles attributed to his personality disorder, saying that Christman had “frequent emotional responses to situations and people that are not meeting his needs,... and he can get loud and offend people in those situations.” These incidents had been occurring on an “infrequent but regular basis” since 2001, and continued into 2007. There was evidence that Christman was “often shunned by his peers due to his unpredictability.” However, Christman’s outbursts had not interfered with his treatment. Christman’s records indicated that he had been described as needy and attention-seeking, and that he would “erupt” and yell if his questions were not answered to his satisfaction.
Christman’s polygraph tests indicated that he was being truthful when he said he had not committed crimes against undisclosed victims and when he said he had not had sexual fantasies about children since 1989. Tests also indicated that Christman demonstrated “ ‘a deviant [sexual] arousal to pubescent males.’ ” A test to assess the risk of reoffending, the Static 99 test, indicated that Christman was in a high-risk category. However, Coles did not believe the Static 99 alone accurately reflected Christman’s risk, largely because of his age and his history of participating in treatment.
Christman had received treatment for pedophilia in the past. After his first offense, which occurred in 1957, when he was 14 years old, he was sent to a state hospital in Pennsylvania. He again committed a pedophilic offense in 1961, and was sent to ASH, apparently for less than three years. He reoffended in 1980, with six victims, received approximately four years of inpatient treatment, and was released in 1985. He reoffended in 1989, when he was participating in outpatient treatment. Christman had told Coles that among his risk factors for offending were the facts that he did not connect with others emotionally, that he became needy and wanted attention, and that he alienated other people. In connection with his 1989 offense, he had told Coles that he had been unable to control his pedophilic urges because of his frustration at having his sexual advances to adults rebuffed.
2. Christman’s Testimony
Christman testified that he spent three years at a state hospital in Pennsylvania as a teenager after molesting a boy, and that while there he did not receive the sort of treatment for sex offenders that he was receiving during the commitment at issue here. He moved to California with his father and stepmother when he was in high school. There, he molested a five-year-old boy, and as a result spent two years at ASH. He said that his treatment at ASH consisted of being told to direct his sexual activities toward men rather than boys. Between the mid-1960’s and 1980, he worked, attended school, and had an eight-year relationship with a doctor in San Francisco. During that time, he had sexual contact only with adult males, and committed no offenses against children.
Christman testified that his next offenses against children took place in 1980, when he was about 37 years old. That year, he molested six boys by meeting them at a park, taking them into the bushes, and fondling them. He spent five years at ASH after those offenses, and participated in therapy there. After he was released from ASH, he spent about four years in CONREP, and continued to receive treatment, including weekly group therapy, AA meetings, and visits with his social worker.
In 1989, while still in CONREP, Christman fondled two teenage boys at a park and was sent to state prison. In prison, he participated in treatment programs, including a victim offender reconciliation group, a group for incest survivors, a sex offender group, and AA and Narcotics Anonymous meetings. At the end of his prison term, rather than being released, he was committed to ASH as an SVP, arriving in 1997. He began participating in ASH’s five-phase program as soon as possible, and had been in treatment continuously ever since. He was in phase two for 18 months, focusing on understanding the reasons behind each offense and learning the coping skills to handle the types of events that led to the offenses. When he testified in January 2008, he had been in phase three for about eight or nine years. He described his therapy in phase three as applying the skills he had learned; the treatment included classes in mindfulness, posttraumatic stress disorder, stress management, and anger management. He also did writing exercises, which he described as “challenging the cognitive distortions”—such as thinking the victims would enjoy the molestation—in which he had previously engaged. He was in phase three at Coalinga State Hospital, and was participating in 14 hours of therapy groups a week. His clinician had told him that in 90 days, she would consider him for phase four.
Christman would prefer to be released to Liberty CONREP supervision, rather than released unconditionally. It was his understanding that the Liberty program would find housing for him, provide mental health services, give polygraph and drug tests, have him on a global positioning device, and set boundaries for him to protect the safety of the public.
Christman acknowledged that in the past, he had reoffended after being placed on conditional release. He testified that he was different now. He understood that it was wrong to harm children, and said that he was no longer tempted to molest children and was less interested in sex than he had been when he was younger. When he reoffended while on conditional release, he had been lonely and under stress, and did not communicate well with his supervisors. He testified that he was now more mature, had empathy for his victims, and did not want to harm people. He intended to continue to work on his recovery, and knew there were resources available to him if he were released. He testified that he had three friends in San Francisco, and that he intended to do volunteer work with senior citizens.
On cross-examination, Christman was asked about his previous offenses. Discussing his 1989 offense, he said, “I made a mistake and was unable to—there was temptation. I was in that situation and I can’t explain what happened. I just didn’t mean to do it.” He went on to explain that a relationship had ended and he was lonely. As to the six boys he molested in 1980, he said that he was lonely and under stress, and that he wanted to “make contact with these boys.” He said that that frustration, anger, loneliness, and resentment were among his internal risk factors for reoffending, and acknowledged there had been incidents at ASH in 2006 and 2007 in which his anger and frustration had led to his “acting out.”
B. Evidence Presented by the People
1. Robert Owen, Ph.D.
Dr. Robert Owen, a licensed clinical psychologist who treated sex offenders and who had performed hundreds of SVP evaluations for the Department of Mental Health, testified on behalf of the People. Owen had evaluated Christman in 2002, 2004, 2005, and 2006, and had prepared a report dated July 18, 2006, the date he last saw Christman. According to Owen, Christman had been diagnosed with pedophilia, bipolar II disorder, polysubstance dependence disorder, and personality disorders with borderline and narcissistic traits. Owen believed that the diagnosis of bipolar disorder was correct, based on Christman’s “volatility, anger,... kind of brittle emotional control,” and the fact he was “easily overwhelmed by his emotions”; and that the disorder increased the danger he would be more sexually aggressive and reckless. Owen also believed that Christman’s personality disorder, which included “ongoing neediness, emotional volatility, [and] fear of abandonment,” contributed to his dangerousness. That was so because the disorder made it difficult to maintain relationships, and Christman’s loneliness, difficulty getting his needs met, frustration, and lack of stable relationships were risk factors for recidivism. Tests had demonstrated that Christman had a clear sexual preference for boys. Although Christman told Owen he had not been sexually aroused for a year, Owen testified pedophilia tends to be a lifelong condition that does not disappear with age. Christman’s history of reoffending after treatment, particularly the 1980 incidents in which he molested several victims within a two-month period, indicated that his behavior was compulsive and his pedophilia was strong.
Owen had reviewed Christman’s records and spoken with Dr. Gabrielle Paladino, Christman’s treating psychiatrist, the day before he testified on May 18, 2007.
Owen discussed the use of the Static 99 test, which is used to assess a person’s risk of sexually reoffending. The test looked at both general criminality and sexual deviance, and included such factors as prior sex offenses, targeting strangers, targeting boys, and prior violence, all of which affected the risk. Christman scored eight on a scale of twelve, which put him in the high-risk category for sexually reoffending. Owen testified that the risk of reoffending decreased with age, and that risk percentages were not used for people who were over 60 years old. However, based on Christman’s risk factors, both those included in the Static 99 test and the facts that Christman had bonding or attachment problems, that he had begun offending early in life, that he had performed poorly on supervised release in the past, that he had “difficulty with self-control,” and that he had not progressed farther in treatment, Owen concluded Christman was at high risk of reoffending and that it was appropriate to be “very cautious with him.” Bearing in mind Christman’s strong and persistent pedophilia, Owen did not believe Christman’s age was strong enough as a protective factor to make him safe in the community, even with the level of monitoring provided by Liberty CONREP.
Owen said that the scores could hypothetically reach 12, but that he had never seen a score above 10.
If Christman’s age were not taken into account, the Static 99 would place him in a risk category with a 39 percent chance of reconviction over five years, a 45 percent chance of reconviction over 10 years, and a 52 percent chance of reconviction over 15 years. Studies had showed a less than 10 percent risk of reconviction among offenders above the age of 60.
2. Mohan Nair, M.D.
Dr. Mohan Nair, a forensic psychiatrist who evaluated sex offenders for the state, testified that he had evaluated Christman three times, most recently in September 2006. He had reviewed Christman’s file through September 2006, and had also reviewed an annual psychiatric update prepared by Paladino in April 2007. In his opinion, Christman continued to be an SVP as defined by section 6600 et seq. because he “continue[d] to have emotional problems, psychiatric problems, interpersonal problems and a lack of insight into his pedophilia.” Nair believed that even if Christman were placed under supervision and treatment through Liberty CONREP, he was likely to reoffend in a sexually violent way. He characterized Christman’s progress at ASH as “rocky,” pointing out that on multiple occasions Christman had been “irritable and explosive towards staff” and that he had difficulty “maintaining personal boundaries.” Christman had acknowledged that he had not progressed in treatment because of his “emotional immaturity.” It appeared that some of Christman’s irritability could have been due to bipolar disorder. Even in the structured environment at ASH, Christman was not able to handle the ordinary demands of life well, and he would face a more stressful environment if released into the community.
Despite Christman’s age of 64 at the time Nair testified, his score on the Static 99 test indicated he was in the high-risk category for reoffending. Nair was unaware of any research showing recidivism rates of more than 10 percent for offenders over the age of 60, but Nair thought that the reduced recidivism rates with increasing age applied more to rapists than to pedophiles.
Christman had told Nair and others in the past that he had gravitated toward children in part because he was not able to form stable and meaningful relationships with adults or to get satisfaction connecting with them. Nair did not think Christman was able to apply the skills he was learning in his treatment program at ASH. Nothing in Christman’s file led Nair to believe he would no longer be a danger if he were conditionally released.
3. Gabrielle Paladino, M.D.
Dr. Gabrielle Paladino, a staff psychiatrist at ASH, was Christman’s treating psychiatrist from February 2006 until he was sent to Coalinga State Hospital in June 2007, approximately six months before Paladino testified. Christman had been diagnosed with pedophilia, sexually attracted toward males, nonexclusive type, and with bipolar II disorder.
Christman had completed phases one and two of ASH’s treatment program, and had participated in phase three for about six years. He was considered to be in “advanced phase 3.” Paladino described Christman as a “highly motivated person,” who was a good patient in groups, but said that he had had “a great deal of difficulty applying theory into his activities of daily life so that his behaviors [were] totally appropriate for the community.”
Paladino testified that Christman had an unusually high number of behavioral notes for an SVP in treatment. His problems stemmed from becoming “very, very frustrated and very angry very quickly when his routine is changed.” Paladino described one incident in November 2006 when Christman became angry because his roommates were making noise early in the morning. Christman stormed out of his room and paced the hallway, angrily complaining that he had been awakened. In doing so, he woke the other patients, some of whom summoned a staff member. The staff member told him “shh,” and he approached her face and mimicked the noise, accidentally ejecting a wad of saliva into the staff member’s eye in the process. Despite the staff member’s requests, he would not back away from her face, and an emergency light was activated. Another incident occurred in June 2007, when defendant became angry at a delay when he tried to return books to the library, and the hospital police were summoned.
Christman had identified his internal risk factors for offending as anger, resentment, boredom, loneliness, and feeling abused, neglected, and out of control. During the course of Christman’s treatment, he had continued to experience most of these factors, particularly anger, frustration, and resentment. Because of his loudness and tendency to be demanding, many of the other patients at ASH shunned him, and they teased him for his neediness.
Paladino testified that defendant engaged in “cognitive distortions,” such as saying that he could “ ‘bend’ ” the rules because staff members did so or that he did not need to follow rules because they were unfair. However, over the course of his time at ASH, Christman’s behavior had improved, and he had eventually been allowed to have a job, a goal he had been working toward for 10 years.
C. Trial Court’s Ruling
The trial court denied Christman’s petition, finding that he had not met his burden to show by a preponderance of the evidence he should be released to a residential program, and that he continued to be a danger to others, because it was likely he would engage in sexually violent criminal behavior due to his mental disorder.
II. DISCUSSION
Christman contends that he met his burden to show he no longer qualified as an SVP and that the evidence does not support the trial court’s ruling. Section 6600, subdivision (a)(1) defines a “ ‘[s]exually violent predator’ ” as “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 that he or she will engage in sexually violent criminal behavior.” To show that the person is a “ ‘[d]anger to the health and safety of others,’ ” it is not necessary to prove “a recent overt act while the offender is in custody.” (Id., subd. (d).)
Section 6608 authorizes the court, upon a proper petition for conditional release (id., subd. (a)), to “hold a hearing to determine whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community. If the court at the hearing determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community, the court shall order the committed person placed with an appropriate forensic conditional release program operated by the state for one year...” (id., subd. (d)). The petitioner has the burden of proof by a preponderance of the evidence. (Id., subd. (i).)
The court in People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1505-1507 (Rasmuson), concluded that the standard for determining whether a person is “ ‘likely’ to reoffend” for purposes of section 6608 is the same as it is in interpreting other portions of the SVPA. Under the meaning established by our Supreme Court in construing another portion of the SVPA, “ ‘likely to engage in acts of sexual violence... connotes much more than the mere possibility that the person will reoffend... [but] does not require a precise determination that the chance of reoffense is better than even. [It means that] the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.’ [Citation.]” (Rasmuson, at pp. 1506 1507, quoting People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922 (Ghilotti), and citing Cooley v. Superior Court (2002) 29 Cal.4th 228, 255, and People v. Roberge (2003) 29 Cal.4th 979, 986; see also Roberge, at pp. 987-988.)
We review the trial court’s determination under section 6608 for substantial evidence. (See Rasmuson, supra, 145 Cal.App.4th at pp. 1503-1504.) Under this standard, “ ‘we review the entire 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 [the fact in question]. [Citations.]’ [Citation.] We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the [finder of fact] could draw from the evidence. [Citation.] The testimony of one witness, if believed, may be sufficient to prove any fact. (Evid. Code, § 411.)” (Id. at pp. 1507 1508.)
The record here discloses substantial evidence that Christman presents a “ ‘substantial danger, that is, a serious and well-founded risk,’ ” he will reoffend if free in the community. (See Rasmuson, supra, 145 Cal.App.4th at p. 1506; Ghilotti, supra, 27 Cal.4th at p. 922.) It is true that the evidence showed Christman had participated consistently in his treatment at ASH. However, there was also evidence that loneliness, frustration, and anger had been factors in precipitating the offenses, that those problems continued, and that they would be risk factors for recidivism. Despite his years of treatment, Christman had difficulty controlling his anger, he would “erupt” when he was frustrated or his needs were not met, and other patients at ASH shunned him because of his behavior. These very problems had prevented him from progressing further in his treatment at ASH, and he would face greater stresses if released to the community. It was reasonable to conclude that Christman remained at risk of the kind of loneliness, frustration, and anger which—in combination with his continuing pedophilia—had led up to his offenses, and that there was a substantial danger he would reoffend in the community.
In addition, the Static 99 test indicated that Christman was at high risk of reoffending. Defendant draws our attention to the evidence that offenders above the age of 60 have recidivism rates of less than 10 percent. However, the trial court also heard evidence that, in light of Christman’s difficulty with self-control and his strong and persistent pedophilia, his age was not a strong enough protective factor to make him safe in the community. Based on this evidence about Christman’s particular problems and risk factors, the trial court was not obliged to conclude that he had only a small risk of reoffending.
Christman argues, however, that the evidence the trial court relied on was stale and outdated and, citing People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon), that the use of the outdated evidence violated his due process rights. As we have noted, the hearing took place over several court dates from March 14, 2007, to January 9, 2008, and the court denied the petition on January 9, 2008. It appears that the evidence of the medical witnesses did not include information on Christman’s treatment after he was moved to Coalinga State Hospital in June 2007.
We reject Christman’s contention. Christman acknowledges that he did not object to the continuances of the hearing, and indeed Christman—who bore the burden of proof—did not seek to present newer medical evidence of his progress. (See § 6608, subd. (i).) We see no reason to conclude he would have been unable to present more up-to-date evidence had he sought to do so.
In any case, it does not appear that the delays in hearing the petition affected the result. Christman himself testified on the day the court ruled, and he acknowledged that his risk factors for reoffending included frustration, anger, loneliness, and resentment, that his anger and frustration had led to his “acting out” within the previous year, and that he was still in phase three of his treatment at Coalinga State Hospital.
Christman also suggests that the “information [he] was trying to present to the court on his behalf through Dr. Coles was... outdated by the length of the proceedings.” However, there is no indication that the trial court discounted Coles’s testimony because it had been given a number of months before the ruling.
Litmon does not assist Christman. The Court of Appeal there reversed a retroactive order of indeterminate commitment under the SVPA. (Litmon, supra, 162 Cal.App.4th at pp. 389-390, 412-413.) The appellant had originally been committed on May 2, 2000. (Id. at pp. 389-390.) At the time, the SVPA provided for two-year commitments; in 2006, sections 6604 and 6604.1 were amended to provide instead for indeterminate terms of commitment. (Litmon, at pp. 408 409.) The appellant’s previous order of recommitment extended his commitment until May 2, 2004. The People filed petitions to extend his SVP commitment for two successive two-year terms (May 2, 2004, to May 2, 2006, and May 2, 2006, to May 2, 2008) (the second and third petitions). As of March 2007, the trial on those consolidated petitions had not yet gone forward, although the appellant’s term of recommitment had long since expired. On March 15, 2007, the superior court issued an order of commitment that was retroactive to the date of the original commitment in 2000, committing him to an indeterminate term under the new provisions of the SVPA. (Litmon, at pp. 389-390.) The Court of Appeal concluded this procedure violated the appellant’s due process rights (id. at p. 406), noting that the appellant had been committed for an extended period without any determination that he was an SVP under the second and third petitions (id. at p. 400), and noting, further, that the appellant had asserted his procedural due process rights by opposing a delay of trial and by moving to dismiss in response to the People’s motion for a continuance of trial (id. at p. 405). Here, on the other hand, there is no contention Christman was deprived of his liberty without a determination that he was an SVP; he did not object to the continuances of the hearing; and in any case, there is no reason to conclude the delay prevented him from presenting relevant evidence.
In the circumstances, we conclude that there was substantial evidence to support the trial court’s order and that Christman was not denied due process.
III. DISPOSITION
The order appealed from is affirmed.
RIVERA, J.
We concur: RUVOLO, P.J., SEPULVEDA, J.