People v. Waters CA3 ( 2022 )

Filed 12/5/22 P. v. Waters CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C094754
Plaintiff and Respondent, (Super. Ct. No. STK-MH-
SVPR-2013-0000059)
v.
TIMOTHY WATERS,
Defendant and Appellant.
A jury found defendant Timothy Waters to be a sexually violent predator pursuant
to the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.;
statutory section citations that follow are found in the Welfare and Institutions Code
unless otherwise stated.) Defendant contends insufficient evidence supports the verdict.
He also argues the SVPA is not narrowly tailored to promote a compelling state interest
in light of his claim there is a low probability he will reoffend based on his score on the
Static-99R instrument. We affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
The prosecution filed a petition to commit defendant as a sexually violent
predator. The trial court held a jury trial on the petition.
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A. Criminal History
The parties stipulated defendant had qualifying convictions under section 6600
and was sentenced to determinate terms in prison. Defendant had five violations of
parole after his 1987 conviction and prior to 2004. One of those violations was for
failing to register as a sex offender.
Defendant’s first conviction was for molesting the three-year-old daughter of his
girlfriend’s sister. Defendant told one of the examining psychologists he held her down
and had intercourse with her.
Defendant’s second and third convictions were for molesting a friend’s two
children: a nine-year-old boy and a 10-year-old girl.
Defendant self-reported that he molested another six-year-old girl in 2004 who
was “coming up and asking him for sex every day.” Defendant admitted he touched her
buttocks and vagina.
B. Expert Testimony
The prosecution presented testimony from two licensed psychologists, Dr. Dana
Putnam and Dr. Eric Simon.
Dr. Putman evaluated defendant seven times and each time found defendant met
the criteria for a sexually violent predator. Defendant spoke with Dr. Putnam on four of
those evaluations.
Dr. Putnam testified each of the above convictions were qualifying predatory
offenses under section 6600.
Dr. Putnam also testified defendant had a mental health disorder of pedophilic
disorder and alcohol use disorder. The doctor explained to the jury the basis for his
diagnosis of defendant and opined his condition cannot be treated by medication and is a
lifelong disorder. Specifically, Dr. Putnam testified defendant showed a clear
demonstrated interest in pre-pubescent children based on the conduct forming the basis
for his convictions and based on the doctor’s review of documents found in defendant’s
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possession in prison. Those documents included about 200 pages of handwritten notes
describing sex and violence with children, other printed documents, and pornographic
images of adults. Dr. Putnam testified some of the handwriting was defendant’s and he
took special notice of those statements that contained graphic descriptions of defendant
engaging in sexual acts with the six-year-old victim. Dr. Putnam testified he believed
defendant authored these notes because defendant’s name and signature appeared
throughout the documents, and he was familiar with defendant’s handwriting. The doctor
found further evidence of defendant’s interest in young girls in his attempt to order legal
pornography depicting adult women as school girls while he was at the state hospital.
Dr. Putnam testified defendant demonstrated the inability to control his actions in
such a way as to predispose him to committing violent sex offenses. Defendant had
multiple rule infractions in prison which indicated his potential lack of cooperation with
supervision. Defendant also had rule violations during his stay at the state hospital,
including unauthorized possession of DVDs, and pruno (homemade prison alcohol).
Dr. Putnam testified the diagnosis of defendant’s alcohol use disorder is important
because if defendant uses alcohol, he is more likely to act on his pedophilic urges.
Dr. Putnam also stated defendant’s most recent answer regarding his release plan
was to stay away from other people, get a job or recycle scrap metal, and register as a sex
offender. Further, defendant did not believe he needed treatment; and would not
voluntarily seek it out. Defendant did not have any family support if he was released.
The doctor believed this created a risk of future criminal sexual behavior.
Dr. Putnam testified as to his understanding of the key criteria for proving
defendant was a sexually violent predator: Is the person likely without appropriate
treatment in custody to commit sexually violent predatory offenses in the future?
Dr. Putnam testified, the term “likely” “was defined as a serious and well[-]founded
risk.” Dr. Putnam analogized the concept of the serious well-founded risk to the
likelihood of a nuclear plant meltdown. He testified, “the number isn’t the most
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important thing, but whether it’s a serious and well[-]founded risk. . . . I don’t think
anybody would accept a 5 percent risk that that would occur. [¶] We might look at
something that has a risk that is well below 50 percent, but it may be it’s 20 percent
chance [sic] and you could say that that’s a serious and well[-]founded risk in the event
that you’re looking at something of a very serious outcome.”
Dr. Putnam testified he used the leading sex offender assessment tool, the Static-
99R, as part of his evaluation of defendant. The Static-99R is an actuarial tool based
upon static factors that do not change over time and produces estimated recidivism rates.
Dr. Putnam explained to the jury how he came up with a total score of four. Generally,
persons with a score of four have a 9.2 percent chance of being arrested or convicted of a
new offense within the next five years or 13.9 percent within the next 10 years. This
placed defendant in an above-average risk category. Dr. Putnam opined the actual figure
is higher because the Static-99R only captures people with arrests and convictions and
“[w]e know that we don’t catch all sex offenses and we don’t identify or know every time
that someone has committed a sex offense.” Defendant raised no objection to this
testimony.
Dr. Putnam further testified about the other factors contributing to his opinion
defendant’s risk of reoffending was both serious and well-founded: (1) defendant’s
history of offending against young children, and (2) his fantasy life surrounding that
deviance added to the seriousness and well-founded nature of the risk. He explained the
nature of the written materials confiscated from defendant (which were in his
handwriting) and the discussion of violent sexual fantasies with girls as young as three or
four in age further compounded the re-offense risk.
In addition to the Static-99R, Dr. Putnam used dynamic factors to assess
defendant’s likelihood of recidivism. Dr. Putnam testified defendant’s second offense
after being convicted of the first offense put him at a much higher risk for offending
again. Adding the particular dynamic risk factors to the defendant’s Static-99R score,
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Dr. Putnam concluded defendant’s risk assessment is 13.6 percent over the next five
years. His estimated lifetime risk was double his five-year risk or 27.2 percent.
In terms of factors that might reduce defendant’s risk of reoffending (protective
factors), the only one Dr. Putnam concluded applied was defendant was over 60 years
old.
The prosecution’s second witness, Dr. Simon, interviewed defendant once and
diagnosed defendant with a pedophilic disorder, antisocial personality disorder, and
alcohol use disorder. Dr. Simon concluded defendant demonstrated a multi-decade
pattern of sexual interest in pre-pubescent children and acting on those interests. Like
Dr. Putnam, Dr. Simon testified his diagnosis was supported by the 200 pages of
handwritten stories found in defendant’s locker in 2012 depicting sexual contact between
adults and children. Dr. Simon concluded a person with both antisocial personality
disorder and pedophilic disorder would have a bad combination of both a deviant sexual
arousal pattern and disrespect for societal rules. To compound matters, defendant’s
alcohol use disorder reduces his impulse control.
Dr. Simon testified defendant’s poor performance on probation and parole
concerned him, especially the conviction for failing to register as a sex offender.
Dr. Simon explained he believed defendant’s mental health diagnosis was current due to
defendant’s many rule violations in prison. The data points supporting his diagnosis were
the original conviction for molestation in 1986, the molestation of three more children in
2004, and defendant’s possession of the deviant sexual writings in 2012. He testified he
believed the diagnosis was current because the general consensus in psychology is this
diagnosis does not go away with age and was further supported by defendant’s attempt to
order the three pornographic DVDs of adults dressed as Catholic high school girls while
in the state hospital. He also testified defendant had impaired volitional capacity.
Dr. Simon used the Static-99R and explained his reasons for the score of five for
defendant, placing him in the above-average risk category. He explained persons who
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have that score are discovered to have committed a new sex offense about 19 percent of
the time over the next 10 years. This percentage, however, represents only the chance of
detection, not commission, of another offense and thus, represents a gross underestimate
of the true sex offense recidivism rates. Defendant did not object to this testimony.
Dr. Simon believed defendant’s strong sexual interest in children under the age of
14, his hypersexuality and sexual preoccupation, and his extensive criminal history
(including his probation and parole violations), made him more of a risk than those who
scored a five on the Static-99R instrument. Dr. Simon acknowledged the Static-99R
instrument can be wrong about 30 percent of the time but noted it is the best instrument
available.
Dr. Simon acknowledged defendant’s significant medical conditions but testified
none would bar defendant from using his hands, his mouth, or pulling a child onto his
lap. Further, Dr. Simon noted defendant had no family contact or support. Defendant’s
plans to remain homeless and engage in scrap metal recycling appeared to Dr. Simon to
set defendant up for failure and further criminal activities. Dr. Simon’s opinion was
defendant’s low intellectual capacity would increase his risk of sex offense recidivism
because he lacks the capacity to make good judgments.
In response, defendant presented the testimony of Dr. Brian Abbott, a licensed
psychologist, and Dr. Alan Abrams, a medical doctor and attorney, as expert witnesses.
Dr. Abbott tested and found defendant to have a reading comprehension at the
kindergarten level and word recognition at the first grade level. Based on these low
levels, Dr. Abbott did not believe defendant wrote the materials found in his prison cell
or had the ability to comprehend what was written. On cross-examination, he conceded
defendant could have written some of the entries, and defendant admitted he dictated
child pornography to a fellow inmate.
Dr. Abbott diagnosed defendant with post-traumatic stress disorder (PTSD) and
alcohol use disorder due to his self-reported trauma in his childhood and being raped in
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prison. Dr. Abbott opined defendant’s child molestation was his “maladaptive way of
coping with” recollections of his own prior circumstances of being sexually abused.
Dr. Abbot testified defendant did not have serious difficulty in controlling his sexually
violent behavior. Dr. Abbott also testified defendant’s alcohol use disorder was in
remission.
Dr. Abbott did not diagnose defendant with a pedophilic disorder because he
believed there was no indication he exhibited sexual preference to young children.
Dr. Abbott also rejected the contention defendant’s attempt to order Catholic school girl
videos was evidence of pedophilia because the actresses in those films would be
developed women and not similar to pre-pubescent girls. Dr. Abbott also did not
diagnose defendant with antisocial personality disorder.
Dr. Abbott scored defendant as a four on the Static-99R instrument. When asked
about the reliability of the recidivism percentages of the Static-99R scores, Dr. Abbott
agreed some sexual offenses go undetected and thus, there is “a kernel of truth” in the
notion these percentages are understated. But Dr. Abbott believed there was no way to
quantify this understatement. Dr. Abbott also testified he believed the Static-99R
overestimates recidivism percentages because all sexual crimes, not just sexually violent
crimes are counted in its analysis. Dr. Abbott expressed the opinion the 9.2 percent rate
of recidivism predicted by the Static-99R might be subject to a margin of error of plus or
minus 0.9 percent. Dr. Abbott testified it was his opinion the 9.2 percent probability
estimate of the Static-99R instrument did not support defendant is “a substantial danger,
that is a serious and well-founded risk to engage in sexually violent predatory acts.”
Dr. Abrams, like the other doctors, concluded defendant was intellectually
delayed.
Dr. Abrams echoed Dr. Abbott’s diagnosis defendant had PTSD and alcohol abuse
disorder. The doctor did not believe people with PTSD could achieve remission without
intensive treatment, but people with alcohol abuse disorder could.
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Dr. Abrams testified defendant did not suffer from a pedophilic disorder currently,
but he likely would have fit that criteria in 1986 and 2004. He, too, believed the attempt
to order the Catholic school girl videos was part of a normal adult sexual desire.
Dr. Abrams did not review the written materials found in defendant’s cell but testified it
would surprise him to learn that the defendant had written them. He further admitted if
the sexual materials were written by defendant, he would meet the criteria for pedophilia.
Dr. Abrams scored defendant as a three on the Static-99R instrument. He did not
explain the basis for his score to the jury. Dr. Abrams agreed the Static-99R did not
particularly answer the question posed by this case because it only gave the percentage of
future arrests for anything considered sexually related. In the end, he did not believe
defendant met the criteria to be committed under the SVPA.
Defendant did not testify on his own behalf.
The jury found defendant was a sexually violent predator under the SVPA. The
trial court committed defendant to the State Department of State Hospitals for treatment
and confinement for an indeterminate term.
Defendant timely appealed. The case was fully briefed on August 8, 2022, and
assigned to this panel shortly thereafter.
DISCUSSION
Defendant argues substantial evidence does not support the jury’s finding he was a
sexually violent predator “because the required finding that it was ‘likely’ that
[defendant] would engage in sexually violent predatory criminal behavior unless confined
within a secure facility was not proven beyond a reasonable doubt.”
In particular, defendant argues, “An estimated five-year average recidivism rate of
9 percent and a ten-year average recidivism rate of 14 percent did not establish proof
beyond a reasonable doubt [defendant] presented a substantial danger, defined as a
serious and well-founded risk that [defendant] was likely to commit a sexually violent
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predatory crime.” He further asserts the SVPA denies him due process if those specific
rates mean he is likely to engage in sexually violent predatory criminal behavior unless
confined within a secure facility.
A. The SVPA
Under the SVPA, a “ ‘[s]exually 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 that he or she will engage in sexually violent criminal behavior.”
(§ 6600, subd. (a)(1).) The phrase “ ‘[d]iagnosed mental disorder’ ” includes “a
congenital or acquired condition affecting the emotional or volitional capacity that
predisposes the person to the commission of criminal sexual acts in a degree constituting
the person a menace to the health and safety of others.” (§ 6600, subd. (c).)
To commit defendant as a sexually violent predator, the jury had to find defendant
was previously convicted of a violent sexual offense and suffered from a mental disorder
affecting his volitional or emotional capacity thereby making him a danger to others
because he was likely to engage in sexually violent criminal behavior. (People v.
Poulsom (2013) 213 Cal.App.4th 501, 517.)
The term “ ‘likely’ ” does not require a finding it is more likely than not the person
will reoffend. (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 916
(Ghilotti).) Whether a person poses a “danger to the health and safety of others” (§ 6600,
subd. (a)) “does not, by common understanding, evaporate with an expert’s prediction
that the sufferer’s risk of reoffense is no greater than 50 percent.” (Ghilotti, at p. 920,
italics omitted.) At the same time, a finding of such danger requires “much more than the
mere possibility that the person will reoffend.” (Id. at p. 922, italics omitted.) Thus, the
prosecution had to prove beyond a reasonable doubt at trial defendant “present[s] a
substantial danger, that is, a serious and well-founded risk” defendant will commit such
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crimes if released. (People v. Roberge (2003) 29 Cal.4th 979, 988; §§ 6600, subd. (a),
6604.)
B. Sufficiency of the Evidence
Defendant limits his challenge to the sufficiency of the evidence that it is likely he
will engage in sexually violent criminal behavior. Defendant focuses on the evidence
establishing he was 9 percent likely to be charged or convicted of a sexual offense in the
next five years and 14 percent likely over the next 10 years.
We review the sufficiency of the evidence in a sexually violent predator case
under the same substantial evidence test used in criminal appeals. (People v. McCloud
(2013) 213 Cal.App.4th 1076, 1088.) “In assessing the sufficiency of the evidence, [the
court] review[s] 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 defendant guilty beyond a reasonable doubt.”
(People v. Bolin (1998) 18 Cal.4th 297, 331.) Reversal for insufficiency of the evidence
is warranted only if it appears that ‘ “upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ ” (Ibid.)
Here, all four experts used the Static-99R instrument as a starting point for their
evaluations but disagreed as to whether defendant should receive a score of three, four or
five. The prosecution experts gave their expert opinion this instrument was merely a
starting point, and the actual percentages were higher due to inherent measuring flaws
with the test. Even one of defendant’s experts supported the opinion the Static-99R
instrument percentage understated the probabilities of recidivism. The other defense
expert agreed the instrument did not specifically predict the nature of the risk being
assessed here due to its limit to crimes that have been detected. The jury heard the basis
for each doctor’s opinion and were entitled to determine which testimony was credible.
From their baseline percentages, the prosecution’s experts considered other
dynamic factors, beyond those captured by the test, to evaluate defendant and shared their
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thought processes with the jury. This evidence included the nature of the underlying
crimes as demonstrating defendant’s deviant interest in pre-pubescent children. It also
included his inability to stop committing these sex crimes on children after his first arrest,
and his fantasy life about sexual deviance with young girls as evidenced by his
possession of writings at least partially in his handwriting of a deviant sexual nature, and
his attempt to order adult pornography that depicted school girls.
Further, defendant had no real plan for reintegrating into society and no family or
community support to keep him on the straight and narrow if he were to be released.
Defendant’s alcohol use disorder made it more likely he would reoffend, and his
unwillingness to engage in any treatment for his admitted deviant behavior was another
warning factor of his propensity to commit these same crimes in the future.
We conclude this evidence is reasonable, credible, and of solid value such that a
reasonable jury could find beyond a reasonable doubt defendant will likely engage in
sexually violent, predatory, criminal behavior if released. While the four experts
provided differing opinions on this ultimate question, the jury was properly instructed the
meaning and importance of the opinions were matters for them to decide. (See
CALCRIM No. 332; Pen. Code, § 1127b.) The jury heard and saw their testimony and
the facts upon which it was based. We conclude substantial evidence supported the
jury’s verdict.
C. Speculation
Defendant’s second argument is the jury could not credit the expert testimony that
defendant’s likelihood of committing a sexually violent crime was higher than the
percentages suggested by the Static-99R instrument because it was based on speculation
and unproven facts. He asserts the expert’s opinion that defendant’s actual likelihood of
recidivism is higher is based on facts that cannot be before the court–because undetected
offenses, by definition, are unknown.
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“The Static-99 test is an actuarial instrument that allows an evaluator to place
sexual offenders in different risk categories based on historical (static) factors such as
age, marital status, the number of prior offenses, the relationship of the offender to the
victims and the gender of the victims. After identifying the particular characteristics of
the offender, the Static-99 test assigns a numeric score to them. The total score of the test
is a percentage chance of the defendant’s likelihood of being convicted for a future sexual
offense.” (People v. Therrian (2003) 113 Cal.App.4th 609, 612, italics added.) In
Therrian, we upheld the use of the Static-99R test as part of a sexual violent predator
evaluation and concluded the experts were properly allowed to testify about adjustments
they made to the raw percentages provided by the test in making their assessment as to
whether a defendant was likely to reoffend. (Id. at pp. 614, 616.)
As noted by the experts, the Static-99R provides an estimate of the chances
defendant will be arrested or convicted of an offense. By definition, it does not estimate
the chances a defendant will commit such an offense. The expert witnesses opined
studies demonstrate many sexual offenses are unreported, and thus, they believe in their
expert opinion the actual percentage is higher. Without objection, the experts testified to
this sad reality and the other dynamic factors they included in their evaluation which
raised the risk defendant would reoffend to an even higher level. To combat this expert
testimony, defendant’s own experts gave their opinion of the lack of probative and
predictive value of the Static-99R instrument.
Because defendant did not challenge the admissibility of this evidence, or object to
its use, he is left with the argument the prosecution’s expert evidence was not entitled to
any weight at all. The jury was properly instructed and was entitled to find the
prosecution’s experts more persuasive, and it did so. We find no error here.
D. Due Process
Defendant’s final argument is that his right to due process is violated if the
recidivism rates he attributes to the Static-99R instrument (9.2 percent and 13.9 percent)
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are sufficient to commit him as a sexually violent predator. The answer to this argument
is the evidence did not establish what defendant argues. The raw projections of the
Static-99R instrument are estimates of whether similarly situated persons with the same
score will be charged with or convicted of a subsequent sexual offense, not steadfast
estimates of whether a particular defendant will actually commit one. Ultimately, the
experts presented their opinions, starting with that recidivism rate and adding their
analysis of other facts, and came to the reasoned conclusion that defendant is likely to
engage in sexually violent predatory behavior without appropriate treatment in custody.
Thus, defendant’s argument misstates the evidence presented at trial supporting his
commitment under the SVPA. The jury’s determination based on the expert testimony
presented did not violate defendant’s right to due process because the statute is narrowly
tailored to achieve the compelling governmental purpose of confining and treating
sexually violent predators. (Ghilotti, supra, 27 Cal.4th at p. 973.)
DISPOSITION
The judgment is affirmed.
,
HULL, Acting P. J.
We concur:
,
DUARTE, J.
,
KRAUSE, J.
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