Opinion
B330011
05-01-2024
THE PEOPLE, Plaintiff and Respondent, v. ALBERT SALCEDO, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Eric J. Kohm, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. ZM015866, Nicole C. Bershon, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Eric J. Kohm, Deputy Attorneys General for Plaintiff and Respondent.
GRIMES, J.
Defendant and appellant Albert Salcedo appeals from the trial court's decision finding him to be a sexually violent predator (SVP) pursuant to Welfare and Institutions Code section 6600 et seq. and committing him to the custody of the Department of State Hospitals. Defendant's sole contention on appeal is that the court's decision is not supported by substantial evidence.
We affirm.
FACTUAL AND PROCEDURAL SUMMARY
1. Qualifying Offenses
It is undisputed defendant has been convicted of multiple sexual offenses against minor female victims that qualify as sexually violent offenses under the SVP Act. (Welf. &Inst. Code, § 6600, subd. (a)(1) [" 'Sexually violent predator' means 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"].) We therefore do not need to recite all of the facts regarding each offense, but briefly summarize the offenses for context.
In 1978, defendant kidnapped two girls (Martha and Michelle), 11 and 12 years old, respectively. Defendant brandished a firearm, forced them into his car and drove to a different location where he molested Martha, and raped Michelle several times. Defendant was convicted of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2) [former § 261.2]), two counts of lewd or lascivious conduct with a minor (§ 288), two counts of oral copulation of a minor (§ 287 [former § 288a]) and two counts of kidnapping (§ 207). Defendant was committed to Atascadero State Hospital as a mentally disordered sex offender. (Welf. &Inst. Code, § 6316.)
In 1985, after serving part of his sentence, defendant was conditionally released and transitioned to outpatient treatment. In 1990, defendant sexually assaulted two 9-year-old girls (Heidi and Rebecca) who were friends of his stepdaughters. Defendant was convicted of two counts of lewd acts upon a child. (Pen. Code, § 288, subd. (a).) He received a three-year sentence.
Defendant was paroled in late 1992. In October 1993, he sexually assaulted the 10-year-old daughter (Ryan) of a woman he had begun dating upon his release. Defendant was convicted of one count of lewd act upon a child. (Pen. Code, § 288, subd. (a).) He received a three-year sentence.
After serving 18 months, defendant was paroled. Six months later, in June 1996, defendant violated his parole and was returned to custody. He was declared an SVP and has been in custody ever since. Defendant is currently housed at Coalinga State Hospital.
2. The Commitment Petition
In May 2010, the People filed a petition seeking an extension of defendant's SVP commitment. In accordance with Welfare and Institutions Code section 6601, the petition was supported by the opinions and reports of two expert psychologists, Timothy Salz and Craig Updegrove. Both Dr. Salz and Dr. Updegrove evaluated defendant and independently came to the same conclusion that he continued to meet the criteria of an SVP and posed a high to moderate-high risk of reoffending if released.
3. Bench Trial
Defendant waived his right to a jury trial and his right to be personally present at the bench trial, appearing via Webex instead. Trial took place over several days in March and April 2023.
Four medical professionals testified on behalf of the People. Dr. Kaushal Sharma, a psychiatrist, and Martha Rogers, a psychologist, both of whom had previously evaluated defendant, testified as percipient witnesses. Psychologists Mark Patterson and Michelle Vorwek testified as the People's experts.
Dr. Sharma testified that he interviewed defendant in 1983 while he was being treated at Atascadero State Hospital. Defendant admitted to him that he forcibly raped Michelle and attempted to rape Martha (the 1978 incident), and he admitted he had committed 10 to 20 additional sex crimes going back to 1965 in both California and New Mexico, most of which were not reported to police. Defendant told Dr. Sharma that starting around the age of 20, he began to have "intrusive thoughts" about forcing females into having sexual contact with him. Defendant admitted to a conviction in 1965 for assault to commit rape of an adult woman for which he served time. He also spoke about an attempted rape of a minor girl that same year. Defendant said he was unable to maintain an erection and let the girl go. Defendant said he had probably been with 150 prostitutes and admitted to forcing one of them into sex when he did not have any money to pay her.
Dr. Rogers testified to statements made by defendant during her interviews of him in 1990 before his release from outpatient treatment. Dr. Rogers said defendant acknowledged his anger issues and problems with alcohol and told her that, if released from treatment, he intended to voluntarily continue with counseling sessions and Alcoholics Anonymous meetings. He told Dr. Rogers that he knew alcohol was a factor for him and that if he drank, "he would be at a higher risk of offending again." Dr. Patterson interviewed defendant twice, once in 2017 and again in 2018. Defendant declined to meet with
Dr. Patterson for the annual update evaluations in 2019 through 2022. Dr. Patterson diagnosed defendant as currently suffering from pedophilic disorder, other specified paraphilic disorder (nonconsenting victims), antisocial personality disorder, and alcohol use disorder. Dr. Patterson used a number of actuarial tools, including the Static 99-R which he said most members of his profession considered the "gold standard" for risk assessments. He scored defendant a 6, placing him in the "well above average" risk group for reoffending.
Dr. Vorwek testified that she interviewed defendant in 2017 but that he declined to be interviewed for the annual update evaluations thereafter. Dr. Vorwek diagnosed defendant as currently suffering from the same four disorders Dr. Patterson attested to. In performing her risk assessment, Dr. Vorwek relied on the Static 99-R and the Stable 2007 to assess both static and dynamic risk factors. Dr. Vorwek scored defendant a 6 based on static factors, placing him in the "well above average" risk group for reoffending. She placed defendant in the upper moderate risk range for reoffending in terms of dynamic risk.
Dr. Vorwek testified that defendant exhibited "a lifetime pervasive pattern of disregarding the rights of others, both generally and in his sexual offenses.... This is somebody whose mental disorders volitionally impair him, meaning that sanctions do nothing to deter his sexual behavior towards the victim." In her opinion, defendant was "likely to commit another predatory sexually violent offense if he were released." She emphasized that "[i]t's the constellation, meaning, all of his disorders together that cause him to have emotional and volitional impairment and predispose him to commit criminal sexual acts."
We need not summarize all of the other lengthy and detailed expert testimony. We note just some of the more significant evidence presented.
Defendant admitted cheating on both of his wives, despite having regular sexual relations with them. Dr. Patterson testified it was significant that most of defendant's sex offenses were committed while he was married because it showed that defendant "has a preference or predisposition to commit sexual offenses and that the person's sexual needs or sexual urges or desires are not being met within consenting relationships."
Defendant reported he was not particularly interested in or satisfied by masturbation or pornography and denied having any sexual interest in children or coercive sexual activity. When asked why he victimized children, defendant told Dr. Patterson "something to the effect of I just wanted to." Dr. Vorwek testified it was not unusual for individuals with pedophilia to deny an attraction to children. As a result, a pedophilia diagnosis is routinely made by review of records, and defendant's record of behavior strongly demonstrated a sexual interest in prepubescent girls. Defendant had six years of sexual offender treatment after the 1978 crimes against Martha and Michelle but he reoffended upon release with three additional prepubescent victims. It was also not unusual that defendant had not victimized anyone while hospitalized. There were no minor females in the hospital. Dr. Vorwek said that only a small number of offenders make attempts in a structured hospital setting. It was not reflective of how defendant would react if released in the community.
Dr. Patterson testified it was significant defendant had previously reported he needed women who were "needy" and those women usually have children. Dr. Patterson described this as a cognitive distortion-a thought pattern allowing one to rationalize their own behavior. It reflected defendant's desire to seek out women, and their children, who were vulnerable and easily dominated and manipulated.
Dr. Vorwek acknowledged that defendant has behaved reasonably well in the hospital setting, which is an improvement in the behavioral aspect of his antisocial personality disorder. However, she explained that he continued to demonstrate the affective aspects of the disorder, including a lack of insight, failure to take responsibility for his actions, and no showing of remorse or empathy for his victims. When asked by Dr. Vorwek about his admissions during earlier evaluations (including fantasies regarding forceful sex and having committed multiple unreported sex crimes), defendant denied making them, claiming instead to have only had 12 sexual partners, inclusive of his two wives.
Defendant's attitude toward his past conduct and current commitment reflected emotional impairment-a defective understanding and lack of appreciation of the consequences of his own behavior.
When asked about his crimes, defendant minimized his behavior. He said the sex with Michelle in 1978 was consensual and performed in exchange for him buying Michelle and Martha cigarettes and beer. With Rebecca and Heidi in 1990, defendant said he only hugged them and they falsely accused him, referring to one of the victims as merely a "fat little girl" who had falsely accused others as well. Of his last sexual offense against Ryan in 1993, defendant denied doing anything inappropriate or sexual at all, saying he just woke her up by "snap[ping] her panties" and told her to go to bed.
Both experts acknowledged defendant had reported medical issues, including prostate cancer. He told Dr. Vorwek that he no longer masturbated and claimed he was unable to have sex because of the prostate cancer. Even assuming some dysfunction due to the prostate cancer, both experts expressed their opinion that defendant would remain capable of, and was likely to commit, other types of sexually assaultive behavior. His offenses in the past included other lewd sexual acts perpetrated against minors and not just rape with sexual penetration.
Moreover, Dr. Patterson did not believe defendant would be amenable to voluntary treatment if released. He said defendant has demonstrated over the years his belief that he does not suffer from any mental disorder, that sexual offender treatment has no value, and he did not identify any specific plan to engage in treatment if released. Dr. Vorwek concurred in this opinion, saying defendant has not participated in treatment while hospitalized at Coalinga.
Defendant told Dr. Vorwek he did not believe he would reoffend if released but said his real problem was drinking alcohol and that if he went back to drinking, it was possible he would get into trouble again in a sexual way. Defendant also told Dr. Patterson that if he could stay sober, he did not think he would commit more crimes.
Psychologist Brian Abbott testified on behalf of defendant. Dr. Abbott interviewed defendant multiple times, including in 2021. Dr. Abbott testified that defendant's current age and medical conditions significantly reduce the likelihood of him reoffending if released. Dr. Abbott relied solely on the Static 99-R actuarial tool in assessing defendant. He gave defendant a score of 4, with a 6.4 percent chance of recidivism in five years, which does not equate with a serious and well-founded risk of reoffending. Dr. Abbott also criticized the assessments and methodology used by Dr. Patterson and Dr. Vorwek in evaluating defendant's current risk. He testified that he did not believe defendant suffered from pedophilia, and even assuming he suffered from a mental disorder, his risk of sexually reoffending remained low based on his age and other dynamic risk factors.
Defendant also called four workers from Coalinga State Hospital who all testified that defendant was quiet, respectful and cooperative with staff and generally conducted himself well in the hospital setting. He has not been cited for rule violations or any activity involving alcohol or the possession of pornography.
4. Statement of Decision
The trial court issued a 46-page statement of decision sustaining the petition and ordering defendant to remain committed to the custody of the Department of State Hospitals for treatment and confinement in a secure facility. The order of commitment was filed May 25, 2023.
This appeal followed.
DISCUSSION
We review for substantial evidence the trial court's commitment decision under the SVP Act. We"' "apply the same test as for reviewing the sufficiency of the evidence to support a criminal conviction."' [Citation.] 'Thus, this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be" 'of ponderable legal significance . . . reasonable in nature, credible and of solid value.'" '" (People v. McCloud (2013) 213 Cal.App.4th 1076, 1088.)
1. Forfeiture
The People argue defendant's substantial evidence argument has been forfeited, citing People v. Sumahit (2005) 128 Cal.App.4th 347. In Sumahit, the defendant "fully cooperated" with his own psychologist but denied the People's experts any opportunity to interview him. (Id. at p. 353.) Sumahit found forfeiture, explaining that "A sex offender cannot deny the state access to the workings of his mind and then claim a lack of proof that he has a 'current' psychological disorder. Because he refused to be interviewed by the state's experts, who could have formed an opinion as to his present dangerousness, defendant has forfeited the claim that the state did not prove that he was currently dangerous." (Id. at pp. 353-354.)
Here, defendant agreed to be interviewed by both Dr. Patterson and Dr. Vorwek in 2017 and agreed to a follow-up interview with Dr. Patterson in 2018. Thereafter, he declined any further interviews with either of them, choosing to meet only with his own psychologist, Dr. Abbott, whose last interview with defendant took place in 2021.
Even if defendant forfeited his right to raise a substantial evidence challenge, our factual recitation above demonstrates there is substantial evidence to support the finding that he currently suffers from a mental disorder. By denying the People's experts the ability to obtain any relevant information from him after 2018, defendant has forfeited any claim that their opinions fail to take into account any such information, or that the court erred in relying on their opinions in concluding he currently suffers from a mental disorder.
2. Substantial Evidence Supports the Court's Decision
In urging us to conclude there is insufficient evidence supporting the trial court's finding he is an SVP, defendant makes two arguments. He contends the evidence does not support the finding he currently suffers from a mental disorder that predisposes him to commit sexual offenses or the finding he currently presents a serious and well-founded risk of reoffending. We disagree."' "A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" '" the verdict. (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
The record here contains substantial, overwhelming evidence, including extensive testimony from two qualified experts, regarding defendant's current mental disorders that predispose him to committing violent sexual offenses and the current risk he presents to the health and safety of others within the meaning of the SVP Act. The trial court's 46-page decision set forth in detail its reasons for finding the testimony of the People's experts was more credible and persuasive than the defense expert on those issues. The court made specific findings on the qualifying offenses, defendant's current mental disorders, the factors evidencing defendant's volitional and emotional impairment, his likelihood of reoffending, and his failure to meaningfully participate in treatment or have any identified exit plan.
Defendant focused a good portion of his argument on his current age and cited to three cases which he argues show a "recent trend" acknowledging the significance of the decreased risk associated with older sex offenders. None of those cases holds that old age is dispositive in risk assessment. The law remains unchanged that age is but one of the relevant factors to be taken into consideration. (People v. Hoffman (2021) 61 Cal.App.5th 976, 979 [rejecting substantial evidence challenge by 74-year-old sex offender where three experts opined he still posed a serious and well-founded risk of reoffending].) Dr. Patterson and Dr. Vorwek both acknowledged defendant's age. They also explained, and the trial court credited their opinions, that defendant's age is not dispositive in assessing risk and explained the other relevant risk factors that demonstrated defendant's level of risk of reoffending.
DISPOSITION
The trial court's decision sustaining the petition pursuant to Welfare and Institutions Code section 6600, finding defendant to be a sexually violent predator, and committing him to the custody of the Department of State Hospitals for an indefinite term is affirmed.
WE CONCUR: STRATTON, P.J., WILEY, J.