People v. C.M. CA2/6 ( 2020 )

Filed 12/16/20 P. v. C.M. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 977(b). This opinion has not
been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B304628
(Super. Ct. No. 19PT-01117)
Plaintiff and Respondent, (San Luis Obispo County)
v.
C.M.,
Defendant and Appellant.
C.M. suffers from pedophilic disorder, a severe
mental disorder, and appeals an order recommitting him to the
Department of Mental Health for treatment as a mentally
disordered offender. (MDO; Pen. Code, § 2962 et seq.))1
Appellant contends the evidence is insufficient, as a matter of
law, to support the finding that he poses a substantial danger to
others by reason of his mental disorder. We affirm.
1 All further statutory references are to the Penal Code.
Procedural History
Appellant was convicted of sexually molesting his
prepubescent 12-year-old daughter in 2015 and sentenced to
state prison. (§ 288, subd. (a)). In 2018, the trial court found
that appellant was an MDO and committed him to the State
Department of State Hospitals for treatment. (§ 2962 et seq.)
We affirmed the judgment in (People v. C.M. (May 20, 2019,
B291469) [nonpub. opn.]).
In 2018, the Board of Parole Hearings (BPH) extended
appellant’s treatment. Appellant filed a petition challenging the
BPH determination and the trial court found that appellant met
all the criteria for an MDO recommitment. We affirmed the
judgment in (People v. C. M. (Dec, 17, 2019, B296041) [nonpub.
opn.]).
In 2019, the BPH again committed appellant for treatment.
Appellant filed a petition on December 10, 2019, challenging the
BPH determination and waived jury trial. (§ 2966, subd. (c).)
The trial court found that appellant met all the MDO criteria2
and was a substantial danger to others based on the following
evidence.
2 To obtain an MDO recommitment, the prosecution must
prove, beyond a reasonable doubt, that (1) the defendant
continues to have a severe mental disorder; (2) the severe mental
disorder is not in remission or cannot be kept in remission
without treatment; and (3) because of his severe mental disorder,
the defendant continues to represent a substantial danger of
physical harm to others. (§ 2972, subd. (c).) “A defendant’s
condition a year earlier is relevant but not dispositive of these
questions.” (People v. Cobb (2010) 48 Cal.4th 243, 252.)
2
Doctor Kavita Chowdhary, a forensic psychologist, testified
that appellant suffered from pedophilic disorder, manifested by
recurrent sexual behaviors with his 12-year-old-daughter and his
10-year-old stepbrother. Appellant was not in remission because
pedophilic disorder is a persistent illness that cannot be treated
with medication and does not spontaneously remit. Dr.
Chowdhary said that appellant has to “participate in treatment
and develop some sort of relapse prevention strategy . . . . [¶]
[¶] . . . [B]asically develop a plan as to how not to re-offend.”
Appellant, however, was in denial and did not go to group
therapy or cognitive behavioral intervention group sessions.
Appellant was working on an individualized treatment plan
known as a “‘success plan.’” Dr. Chowdhary said it involved
“rapport building” and appellant did not understand his risk
factors and had not developed a relapse prevention plan. Doctor
Cindy Mitchell and two mental health providers reported there
was a lot of work to be done.
Dr. Chowdhary opined that appellant was a substantial
danger to others because he lacked insight, did not do well on
supervised release, and twice violated parole. Appellant was
hostile to treatment providers and dismissive of treatment which
raised concerns that he would not seek treatment if released in
the community. Appellant’s discharge plan was to live with his
mother who was in denial and was present in the house when the
offenses were committed.3 Appellant sexually molested his 10-
3 In the last appeal (B296041), we described the
commitment offense: Appellant, age 58, sexually molested his 12-
year-old daughter over a period of six months by penetrating the
victim’s vagina, mouth, and anus with his penis and fingers. The
3
year-old stepbrother in 1990, had unlawful sex with a 15-year-old
girl in 1996, and had sexual intercourse with his 12-year-old
daughter in 2014 (the commitment offense). There were large
time gaps between the offenses and it showed an ongoing pattern
of relapse. Appellant’s victims were both male and female, which
raised the risk level.
Though appellant was not caught with child pornography
at ASH or break patient rules, Dr. Chowdhray opined that
appellant would not be able to control his sexual impulses if
released in the community. The hospital was a controlled setting
in which appellant was housed in an all-adult-male facility and
had no access to children.
Dr. Mitchell, the Sex Offender Services Coordinator at
ASH, said that appellant was a “denier” and “denies all of his
offenses.” Appellant prepared a list of coping strategies but did
not know how to reduce the risk of reoffending. Appellant told
Dr. Mitchell he had not learned anything in treatment and it is
“‘me versus you guys. You guys are all out to get me.’”
Doctor Joseph Moreno, a forensic psychologist, stated that
appellant attended 90 percent of his treatment sessions but
without motivation. “For me, the issue is not that he needs
treatment; he does. The issue is not whether he would benefit
from treatment; he would. This would definitely lower his
likelihood of recidivism.” The doctor opined that appellant was
not a substantial risk of harm to others because he exhibited good
impulse control during the five years he was in prison and at
ASH.
molestations occurred nightly or every other night the victim
stayed with appellant.
4
Crediting the testimony of Drs. Chowdhary and Mitchell,
the trial court found that appellant posed a substantial danger to
others because he had not completed his success plan and had no
coping skills or relapse plan to control his sexual impulses. “[A]t
the hospital there may be younger males and . . . more feminine
males, but there is nobody at the state hospital that is anything
close to a 10-year-old boy or a 12-year-old girl.” Appellant’s
pedophilic behavior stretched out in time, far longer than the five
years he spent in prison and at ASH, and it evidenced a pattern
of recurring deviant sexual behavior.
Substantial Danger
On review, it is not our function to reweigh the
evidence or redetermine witness credibility. (People v. Poe (1999)
74 Cal.App.4th 826, 830.) The single opinion of a mental health
expert that appellant is currently dangerous due to a severe
mental disorder is enough to support the MDO commitment.
(People v. Bowers (2006) 145 Cal.App.4th 870, 879.) Citing People
v. Gibson (1988) 204 Cal.App.3d 1425, appellant argues that
dangerousness must be independently established and “is not
universally and necessarily coexistent with unremitted mental
illness.” (Id. at p. 1439.) Appellant argues that he was a model
patient, had no behavioral issues (so said ASH psychiatric
technician Chris Bjarnson), and attended over 90 percent of his
treatment groups. “The fact that [appellant] has not misbehaved
in a strictly controlled hospital environment does not prove he no
longer suffers from a mental disorder that poses a danger to
others. [Appellant] has an abnormal attraction to . . . children.
Because he currently lacks access to children, his lack of outward
signs of sexual deviance is not dispositive of whether he is likely
to reoffend if released into society at large. Such an assessment
5
must include consideration of his past behavior, his attitude
toward treatment and other risk factors applicable to the facts of
his case. [Citation.]” (People v. Sumahit (2005) 128 Cal.App.4th
347, 353 (Sumahit); see also People v. Williams (2015) 242
Cal.App.4th 861, 875 (Williams).)
Appellant agues there is no evidence of current
dangerousness and the testimony about the 1990 molestation of
his stepbrother and the 1997 and 2000 parole violations is
irrelevant. To a trained mental health professional, the past
offenses and failed attempts at community supervision show a
pattern of sexually deviant behavior and present dangerousness.
(See, e g., People v. Ward (1999) 71 Cal.App.4th 368, 374 [expert
testimony alone may be sufficient evidence of future
dangerousness].) “Given certain facts, predictions of future
dangerousness may be rationally projected and the drawing of
such an inference is properly within the expertise of a qualified
mental health expert. . . . [Citation.]” (People v. Mapp (1983) 150
Cal.App.3d 346, 352.)
The evidence shows that the pedophilic disorder is
not in remission and the only viable treatment is for appellant to
develop a relapse-prevention plan and coping skills. That is
important because the pedophilic sexual violence was spaced out
in time and showed a pattern of relapses, consistent with
appellant’s lack of insight and inability to control his sexual
impulses. Appellant denied the offenses even occurred and was
hostile to and dismissive of treatment.
Substantial evidence supports the finding that
appellant, by reason of an ongoing pedophilic disorder, posed a
substantial risk of danger to others. “The issue is not whether
[appellant] could put on a facade of friendliness and cooperation
6
in the hospital setting in order to achieve his goal of
unsupervised release, but whether he would have serious
difficulty in controlling dangerous behavior once he had attained
that goal . . . .” (Williams, supra, 242 Cal.App.4th at p. 875.) The
risk of danger to others, not appellant’s welfare, is what was at
issue. (See § 2972, subds. (c) & (e).) “Penal Code section 2962,
subdivision [(g)] states that ‘“substantial danger of physical
harm” does not require proof of a recent overt act’ [of violence].”
(In re Qawi (2004) 32 Cal.4th 1, 24.)
Having considered the totality of the evidence
presented, we conclude a rational trier of fact could have found
beyond a reasonable doubt that appellant represents a
substantial danger of physical harm to others. (§ 2972, subd. (e);
People v. Clark (2000) 82 Cal.App.4th 1072, 1082; Sumahit,
supra, 128 Cal.App.4th at p. 353.)
The judgment (MDO recommitment order) is
affirmed.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
7
Timothy S. Covello, Judge
Superior Court County of San Luis Obispo
______________________________
Gerald J. Miller, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Srn.
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, J. Michael Lehmann, Deputy Attorney
General, for Plaintiff and Respondent.