People v. Hernandez CA2/1 ( 2022 )

Filed 4/22/22 P. v. Hernandez CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B314675
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM026698)
v.
RICARDO VELEZ HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Diego H. Edber, 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.
____________________________
Ricardo Hernandez appeals from an order committing him
to a state hospital after the trial court found he was a sexually
violent predator (SVP) under the Sexually Violent Predator Act
(Welf. & Inst. Code,1 § 6600 et seq.; SVPA or the Act). The SVPA
“allows the state to petition superior courts for the involuntary
civil commitment of certain convicted sex offenders whose
diagnosed mental disorders make them a significant danger to
others and likely to reoffend after release from prison.” (Walker
v. Superior Court (2021) 12 Cal.5th 177, 184, fn. omitted
(Walker).) An SVP shall be committed to the custody of the State
Department of State Hospitals for an indeterminate term.
(§ 6604.)
Following a court trial, the trial court found that
Hernandez was an SVP. On appeal, Hernandez argues no
substantial evidence supported the finding that he posed a
current risk of offending. We assume arguendo that Hernandez
preserved this challenge even though he did not allow the
prosecution’s experts to interview him. On its merits,
Hernandez’s challenge fails because substantial evidence
supported the trial court’s ruling. All three experts, including the
defense expert, agreed that Hernandez falls into a group of
sexual offenders at high risk of recidivism. Although defense
witnesses testified that Hernandez reformed his behavior, the
trial court could have credited conflicting evidence from
prosecution experts that Hernandez still poses a risk of likely
committing sexually predatory offenses. We affirm.
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
2
SVPA STATUTORY FRAMEWORK
The purpose of the SVPA is to protect the public from SVPs
and to provide the offenders with treatment for their mental
disorders. (Walker, supra, 12 Cal.5th at p. 184.) “The SVPA
authorizes the indefinite involuntary civil commitment of persons
found to be SVP’s after they conclude their prison terms.”
(People v. Jackson (2022) 75 Cal.App.5th 1, 7 (Jackson); § 6604.)
The People may file a petition to request commitment only if two
independent evaluators concur that the person meets the SVP
criteria. (People v. Washington (2021) 72 Cal.App.5th 453, 462.)
“In order to commit someone under the Act, the state must
establish four conditions: (1) the person has previously been
convicted of at least one qualifying ‘sexually violent offense’ listed
in section 6600, subdivision (b) (§ 6600, subd. (a)(1)); (2) the
person has ‘a diagnosed mental disorder that makes the person a
danger to the health and safety of others’ ([citation]); (3) the
mental disorder makes it likely the person will engage in future
acts of sexually violent criminal behavior if released from custody
([citation]); and (4) those acts will be predatory in nature
([citation]).” (Walker, supra, 12 Cal.5th at p. 190.) At the trial on
an SVPA commitment petition, the People must prove these
criteria beyond a reasonable doubt. (Ibid.)
The likely standard “ ‘ “ ‘does not mean more likely than
not; instead, the standard of likelihood is met “when ‘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.]” (Jackson, supra, 75 Cal.App.5th at
p. 8.) “[E]xpert testimony is critical” because “the primary issue
is not, as in a criminal trial, whether the individual committed
certain acts, but rather involves a prediction about the
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individual’s future behavior.” (People v. McKee (2010) 47 Cal.4th
1172, 1192 (McKee).)
A sexually violent predator is defined 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. (§ 6600, subd. (a)(1).) A trier of fact cannot find a
person a sexually violent predator “based on prior offenses absent
relevant evidence of a currently 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.” (Id., subd. (a)(3).) However, the statute “does
not require proof of a recent overt act while the offender is in
custody.” (Id., subd. (d).)
The SVPA also contains “ ‘provisions for the evaluations to
be updated or replaced after the commitment petition is filed in
order “to obtain up-to-date evaluations, in light of the fact that
commitment under the SVPA is based on a ‘current’ mental
disorder.” ’ [Citation.]” (In re Butler (2020) 55 Cal.App.5th 614,
628.) Specifically, “[a]fter commitment, an SVP is evaluated
every year to consider ‘whether the committed person currently
meets the definition of a sexually violent predator and whether
conditional release to a less restrictive alternative, pursuant to
Section 6608, or an unconditional discharge, pursuant to
Section 6605, is in the best interest of the person and conditions
can be imposed that would adequately protect the community.’
(§ 6604.9.) Under certain circumstances, an SVP may petition
4
the court for either conditional release (§ 6608) or unconditional
discharge (§ 6605).”2 (Butler, at pp. 628–629.)
PROCEDURAL BACKGROUND
On May 28, 2015, the district attorney filed a petition
seeking to commit Hernandez under the SVPA. The petition
alleged that the Department of Corrections screened Hernandez
and determined that he is likely to be a sexually violent predator.
Subsequently two psychiatrists or psychologists evaluated
Hernandez and determined he had a mental disorder and was
likely to engage in acts of predatory sexual violence without
appropriate treatment and custody.
On May 29, 2015, the trial court ordered a probable cause
hearing to determine if probable cause exists to believe
Hernandez was a sexually violent predator. On March 3, 2016,
the trial court found probable cause that Hernandez was an SVP.
2 The Supreme Court has described those circumstances as
follows: “In short, under Proposition 83, an individual SVP’s
commitment term is indeterminate, rather than for a two-year
term as in the previous version of the Act. An SVP can only be
released conditionally or unconditionally if the [Department of
Mental Health] authorizes a petition for release and the state
does not oppose it or fails to prove beyond a reasonable doubt
that the individual still meets the definition of an SVP, or if the
individual, petitioning the court on his own, is able to bear the
burden of proving by a preponderance of the evidence that he is
no longer an SVP. In other words, the method of petitioning the
court for release and proving fitness to be released, which under
the former Act had been the way an SVP could cut short his two-
year commitment, now becomes the only means of being released
from an indefinite commitment . . . .” (McKee, supra, 47 Cal.4th
at pp. 1187–1188.)
5
Hernandez waived a jury trial. The court trial commenced
July 8, 2021. The parties stipulated to the admissibility of
Dr. Harry Goldberg’s report. Dr. Goldberg concluded, and it is
undisputed that, Hernandez’s 1992 conviction for lewd act with a
child under age 14 constitutes a qualifying offense under the
SVPA. The victim described the offense as follows: “The victim
stated [Hernandez] came into her room and got in bed with her.
He leaned over on the victim and kissed her in the mouth
(pointing to her lips) and that the victim pushed away from
[Hernandez], but he grabbed her arm and scratched her.
[Hernandez] pulled the victim’s panties down around her feet and
began touching her butt. The victim stated that [Hernandez]
rubbed on the outside of her vagina with his fingers. The victim
stated that it hurt, so she screamed.” Dr. Goldberg’s report
indicated the age was unknown; the parties appear to agree that
the victim was five years old.
When Dr. Goldberg interviewed Hernandez, Hernandez
did not recall anything and said that he had “blacked out.”
According to Dr. Goldberg, Hernandez’s other offenses
demonstrated a pattern of behavior even though they were not
qualifying offenses under section 6600, subdivision (b).
Specifically, in 1992 Hernandez was convicted of burglary after
he entered a 14-year-old girl’s bedroom. The 14 year old stated
that Hernandez “was coming after her, thinking she was his
girlfriend.”
In 2000, Hernandez was convicted of attempted rape. In
his report, Goldberg described the circumstances as follows:
Hernandez entered the bedroom of a 25-year-old woman.
Hernandez grabbed her and forced her onto her back. “After
straddling the victim’s body, [Hernandez] removed her
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underwear and forced the victim’s legs apart. He began to
penetrate her vagina with his erect penis. The victim continued
to struggle and [Hernandez] rolled the victim onto her stomach;
then attempted to insert his penis into her anus, using his hands
to press against her buttocks.” Hernandez also asked the victim
to orally copulate him.
Hernandez told Dr. Goldberg that he was on parole at the
time of the attempted rape. According to Hernandez, he was
“ ‘strung out on drugs.’ ” Hernandez did not recall the incident
and said he “pled no contest because he would not hurt anyone in
this manner.”
Hernandez reported to Dr. Goldberg that at age six, a
family friend sexually abused him. At age six or seven, he began
drinking alcohol. At age nine, Hernandez began stealing and
smoking marijuana. At age 11, Hernandez started using cocaine.
At age 13, Hernandez joined a gang. At age 12 or 13, Hernandez
stole a car with friends. At age 16 or 17, Hernandez started
using weapons. At age 22, Hernandez began using heroin.
Hernandez acknowledged using heroin while he was incarcerated
but indicated he had stopped in 2010.
Hernandez told Dr. Goldberg that “using drugs or alcohol
does not necessarily increase his sexual thoughts or feelings.”
Hernandez denied being sexually attracted to children.
Hernandez admitted having sexual relations with prostitutes.
Hernandez did not believe he was capable of committing
sexual misconduct.
Hernandez scored in the high range on a test Dr. Goldberg
administered to diagnose antisocial characteristics. Hernandez
also scored in the moderate or moderate-high range on actuarial
risk assessments to test a sexual offender’s likelihood of
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committing another sexual offense. Specifically, these tests
“reveal the probability that a sexual offender will be detected for
a new sexual crime. . . . [T]he probability that an offender will
commit a new sexual offense is somewhat higher than the
probability that he will be detected, arrested, prosecuted, and
convicted of committing a new sexual crime.” Dr. Goldberg
reported that Hernandez never attended a sex offender treatment
program.
Dr. Goldberg concluded that a “combination of
Mr. Hernandez’[s] substance-related disorders and Antisocial
Personality Disorder predispose him to commit criminal sexual
acts.”
Following a court trial, the court found Hernandez a
sexually violent predator and issued an order of commitment.
Hernandez timely appealed.
FACTUAL BACKGROUND
At the time of the SVP trial, Hernandez, born in
August 1971, was 49 years old. Hernandez had been
incarcerated from 2000 until 2015 for the attempted rape and
burglary. Since 2015, he resided at Coalinga State Hospital
(Coalinga). Other than possessing unauthorized property,
Hernandez was compliant with the rules of the Department of
Corrections and Coalinga for 16 years.
According to Dr. Goldberg, while at Coalinga, Hernandez
completed the first module of a sexual offender’s treatment
program (SOTP) but did not complete the remaining three
modules. Prosecution witness Tricia Busby testified about the
SOTP. Module one consisted of an introduction to treatment.
Module two involved a participant reviewing his or her personal
history and the factors leading to criminal conduct. Module two
8
also involved learning self-regulation and problem solving skills.
As part of module three, a treatment review panel would
interview the participant about risk factors and the insights the
participant had developed through participating in the prior
modules. In module three, participants would practice their new
problem solving skills learned during module two. Prior to
entering module four, a review panel would assess the
participant.
Modules two and three constitutes the main parts of the
treatment. Module four permits the conditional release of the
participant to test the participant’s ability to live in the
community without recidivism.
According to Busby, the SOTP program offered treatment
for antisocial personality disorder. SOTP was successful in
reducing recidivism rates for those who complete it. The men
convicted of rape group, another class offered at Coalinga, is not
as in-depth or intensive as the SOTP program.
1. Prosecution expert testimony
A. Dr. Harry Goldberg
Dr. Goldberg, whose report is described above, testified at
trial. Dr. Goldberg is a clinical and forensic psychologist, who
since 1995 had evaluated persons to determine if they are
SVPs, and conducted over 1,000 such evaluations. In 2015,
Dr. Goldberg interviewed Hernandez for about two hours in
advance of the probable cause hearing. Hernandez refused
Dr. Goldberg’s requests in 2020 and 2021 for additional
interviews.
At trial, Dr. Goldberg diagnosed Hernandez with antisocial
personality disorder, alcohol use disorder, cannabis use disorder,
9
opioid disorder and stimulant use (cocaine) disorder.
Dr. Goldberg testified that all of Hernandez’s substance use
disorders were in sustained remission in a controlled
environment (prison and Coalinga). According to Dr. Goldberg,
persons with antisocial personality disorder exhibit the following
traits: impulsivity, aggressiveness, failure to conform to social
norms, irresponsibility, and deceitfulness. Dr. Goldberg also
testified that antisocial personality was a lifelong condition but
may diminish as a person reaches the fourth decade of life.
Goldberg described Hernandez’s qualifying offense (lewd
act with a child) and the other convictions of a sexual nature
(entering a 14-year-old’s room and attempted rape of a
25-year-old woman). Hernandez admitted to Goldberg that
Hernandez was not in control of himself during the 1992 lewd act
with a child. At the time Hernandez committed this crime, he
was on probation and his failure to reform his behavior, according
to Goldberg, showed that “the threat of incarceration did not
prevent him from acting upon his urges to have sexual contact
with this victim.” Dr. Goldberg recounted that Hernandez
attempted to rape his last victim shortly after he had been
released from prison. Hernandez admitted to Goldberg that
almost immediately after his release, he started using controlled
substances. Dr. Goldberg believed Hernandez’s crimes
demonstrated a pattern of sexual impulsivity. Goldberg
described Hernandez as “sexually impulsive, sexually aggressive”
after intoxication.
Dr. Goldberg administered two tests to assess Hernandez’s
likelihood of recidivism, and both assessments indicated that
Hernandez had an above-average risk of recidivism in
comparison to other sexual offenders. Based on one test,
10
Goldberg concluded that Hernandez was in a group with a 17.3
percent chance for sexual reoffense over a period of five years and
a 27.3 percent chance over a 10-year-period. Another test placed
Hernandez in a group with 19.1 chance for sexual re-offense
within a five-year-period. On the structured risk assessment
forensic guide, Hernandez scored in the high risk group. That
latter test measures “psychological vulnerabilities . . . .”
Dr. Goldberg considered protective factors against
recidivism and concluded that the only factor diminishing
Hernandez’s risk of recidivism was Hernandez’s age. In contrast,
Hernandez committed crimes while on parole and he did not
complete the SOTP program. Additionally, Hernandez had no
medical issues preventing him from committing a similar offense.
Dr. Goldberg acknowledged that Hernandez took other
classes, including a class for men convicted of rape and one on
behavioral change, and participated in substance abuse groups.
According to Dr. Goldberg, the groups in which Hernandez
participated were not targeted to reducing sexual recidivism.
Dr. Goldberg testified that without participating in the SOTP
program, Hernandez was unable to show he changed the
“dynamics” that led to his prior criminal activity. Dr. Goldberg
testified: “I think he is being manipulative in this regard. He’s
taking the classes, the didactic classes but not doing the real
work. It’s like sitting in an AA meeting and not participating.
You know, it’s not doing the real work that has been shown to
reduce recidivism.”
Dr. Goldberg opined that Hernandez posed a likely risk of
predatory conduct “based on the fact that all prior sexual offenses
were predatory. These were strangers or people he barely knew.”
Goldberg also testified that every time Hernandez was released
11
into the community he returned to using controlled substances.
For example, when on parole, Hernandez sold food stamps for
drugs and met with his parole officer while stoned.
Dr. Goldberg testified the fact that Hernandez has
committed several sexual offenses sets him apart from other
sexual offenders. A published article indicated that “[o]nly seven
to eight percent of child molesters and rapists were detected and
rearrested for sexual crimes . . . .” Dr. Goldberg testified that
Hernandez reported he did not remember his crimes but
Goldberg was suspicious of Hernandez’s inability to recall.
Dr. Goldberg opined that Hernandez satisfied the criteria
for a sexually violent predator and if Hernandez were released
into the community, he would be likely to engage in sexually
violent predatory criminal behavior. Goldberg testified that
Hernandez never acknowledged his sexual offenses, but instead
“said he’s not capable of” committing those offenses.
Dr. Goldberg answered affirmatively when asked if
Hernandez has a current diagnosis of antisocial personality
disorder. Dr. Goldberg did not know if antisocial personality
disorder is ever completely cured. Dr. Goldberg also testified that
Hernandez had current addictions because remission could not be
evaluated in a controlled environment, as an inmate may not
have access to addictive substances. Dr. Goldberg also testified
that he reviewed Hernandez’s psychiatric evaluation, prepared by
a nurse practitioner and dated March 29, 2021. The psychiatric
evaluator seconded Dr. Goldberg’s antisocial personality disorder
diagnoses. Dr. Goldberg additionally testified that the same
evaluator concluded that Hernandez’s antisocial personality
disorder was current.
12
Although Dr. Goldberg acknowledged that Hernandez
improved since he was at Coalinga, Hernandez’s improvement
did not change Dr. Goldberg’s overall opinion concerning the
likelihood Hernandez would reoffend.
B. Dr. Bruce Yanofsky
Clinical psychologist Dr. Bruce Yanofsky testified as a
prosecution expert as well. Since 2003, Dr. Yanofsky conducted
SVP evaluations. Yanofsky evaluated Hernandez in July 2020.
As part of that evaluation, Dr. Yanofsky requested to interview
Hernandez. Hernandez refused. Hernandez refused a second
request for an interview in May 2021.
Yanofsky diagnosed Hernandez with unspecified paraphilic
disorder (defined as sexual deviancy), and antisocial personality
disorder. Dr. Yanofsky also diagnosed Hernandez with the same
substance use disorders identified by Dr. Goldberg. Dr. Yanofsky
based the paraphilic disorder, which Dr. Yanofsky described as a
provisional diagnosis, on Hernandez’s sexual criminal history
including acts with a child under five (underlying the 1992 lewd
act on a child conviction) and an attempted rape of an adult
woman (underlying the attempted rape conviction). “The objects
and the desires and what is apparently expressed in his
behaviors is deviant, but it’s hard for me at least at this point in
time in the absence of an interview and other diagnostic tools to
specifically understand is this attraction to force? Is it attraction
to non-consent? Could it be attraction to minors?” Dr. Yanofsky
felt “quite confident that there is a paraphilic diagnosis” but was
“not exactly sure of the specific nature of it.”
Dr. Yanofsky based his conclusion that Hernandez suffered
from antisocial personality disorder on Hernandez’s behavior
problems, gang membership, criminal conduct, failure to learn
13
from incarceration, and lack of empathy towards his victims.
Dr. Yanofsky noted that Hernandez continued to use alcohol even
though Hernandez knew he had engaged in criminal conduct
when intoxicated or highly intoxicated. Dr. Yanofsky opined that
the unspecified paraphilic disorder and the antisocial personality
disorder “led” to Hernandez’s sexual offenses.
Like Dr. Goldberg, Dr. Yanofsky testified that “it is vastly
easier to maintain sobriety when the substance is not readily
available as opposed to when people are free in the community.”
Dr. Yanofsky also testified that a person’s behavior in an
institutional setting may not be indicative of that person’s
behavior in the community. Although he acknowledged
Hernandez had not committed a crime since 2000, Dr. Yanofsky
also noted Hernandez was not living in the community since 2000
because Hernandez either was incarcerated or a patient at
Coalinga.
According to Dr. Yanofsky, Hernandez’s sexual recidivism
set him apart from other offenders who commit sex crimes
because most offenders do not repeat sexual offenses. Based on
actuarial tests, Dr. Yanofsky scored Hernandez in a group of
persons who have a 14.5 to 20.5 percent chance of reoffending
within five years. Within 10 years, the likelihood rose to between
22.5 and 32.6 percent. Dr. Yanofsky opined that Hernandez
“currently poses a serious and well founded risk of engaging in
predatory sexually violent behavior if he were to be released in
the community.” Dr. Yanofsky concluded that Hernandez had no
protective factors reducing that risk.
Dr. Yanofsky also discussed Hernandez’s refusal to
participate in the SOTP program despite monthly opportunities
to do so. SOTP was the program most likely to change
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Dr. Yanofsky’s evaluation from positive to negative. Hernandez’s
participation in various other classes did not alter Dr. Yanofsky’s
opinion. “By virtue of just sitting in Coalinga and not getting in
trouble, [Hernandez] does not address all the different aspects
and complexities associated with . . . releasing a repeat sex
offender back into the community.”
2. Defense expert testimony
Dr. Craig King, a psychologist, testified for Hernandez.
Dr. King spoke to Hernandez for about two hours before
completing his assessment.
Dr. King diagnosed Hernandez with antisocial personality
disorder as well as the same four substance use disorders
identified by Drs. Goldberg and Yanofsky. Dr. King testified that
“the antisocial traits and behaviors have certainly gone into some
degree of remission.” According to Dr. King, Hernandez’s
antisocial personality disorder was not “salient” as it previously
had been. According to Dr. King, Hernandez received treatment
and has “grown up in his thinking and his behavior, and he
hasn’t acted out in an antisocial manner in years.” Dr. King
acknowledged there was no way to diagnose the antisocial
personality disorder “as in remission according to [the] DSM.”3
But, Dr. King concluded that “there’s a lack of data upon which to
conclude that his antisocial personality disorder currently
impairs his emotional volitional capacity and then predisposes
him to engage in sexual violence.” “While he might have some
predisposition to commit sexual offenses, he falls below the
3The Diagnostic and Statistical Manual of Mental
Disorders (DSM) is a book classifying mental disorders and is
commonly used by mental health professionals.
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likelihood for a serious and well founded risk for engaging in
sexual violent predatory criminal behavior.”
Dr. King did not diagnose paraphilia because Hernandez
did not exhibit “a pattern of sexual offending that . . . would
suggest he has proclivity or sexual preference for forcing sex on
others.” The lack of pattern between offending against a
five year old (underlying the 1992 conviction for lewd act on a
child) and then an adult woman (underlying the 2000 attempted
rape conviction) “indicates that it’s not a paraphilic disorder.”
Dr. King further opined that Hernandez’s substance abuse
disorders were in remission because Hernandez had not used
alcohol or controlled substances since 2008. Dr. King found it
irrelevant that a person was in custody or on the street because
persons in custody have access to drugs and alcohol. Dr. King,
however, acknowledged that the DSM-V manual [the fifth edition
of the DSM] allowed a clinician to consider whether a patient’s
remission occurred only in a controlled environment.
Dr. King stated Hernandez’s failure to complete the SOTP
program “does not work towards his benefit,” but emphasized
that Hernandez participated in other therapeutic groups.
Specifically, Hernandez participated in a group called “men
convicted of rape.” Based on reviewing reports, considering
Hernandez’s entire history, and speaking to the staff at Coalinga,
Dr. King believed Hernandez had benefitted from treatment.
Dr. King acknowledged that Hernandez was in the above
average risk category of offenders on actuarial tests. Hernandez
“falls into [a category] of offenders who are in the above average
risk range.” Dr. King acknowledged that Hernandez believes he
does not have a problem of committing sex offenses. Hernandez
said “he doesn’t have much recollection for what he did based on
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his drug and alcohol use.” Hernandez indicated that he would
not participate in a sex offender treatment if he were released
unless it were required. Dr. King agreed that most individuals
who commit a sex offense do not commit a second sex offense.
Dr. King acknowledged that Hernandez has consistently
relapsed, but did not specify whether he was referring to alcohol,
controlled substances, or sex offenses.
Dr. King also testified that Hernandez had engaged in
prostitution and in trading drugs for sex. Dr. King also
acknowledged that Hernandez “has remained untreated for
sexual offending” and that was a “vulnerability.” Dr. King
conceded that Hernandez was “rationalizing or minimizing” when
he expressed his ongoing belief that his sexual offending was the
result of drugs and alcohol.
3. Defense witnesses who knew Hernandez
Autumn Bayliss, a supervising rehabilitation therapist at
Coalinga State Hospital, testified that Hernandez participated in
several groups at Coalinga including one exploring spirituality.
The exploring spirituality group was not part of the SOTP.
Hernandez also took a class entitled “becoming a better you” and
one for learning vocational leather skills. Bayliss described
Hernandez as pleasant, respectful, attentive, and compliant. She
did not discuss Hernandez’s sex offense history with him because
she “preferred to leave that to the sex offender treatment
providers.”
Behavior specialist Brenda Brooks testified she taught
substance abuse classes at Coalinga, and Hernandez took several
classes targeted for substance abusers. According to Brooks,
Hernandez was a good student and respectful. The substance
abuse program was not part of the SOTP. Brooks did not discuss
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Hernandez’s sexual offenses with him. According to Brooks,
although alcohol and drugs were available in the hospital,
Hernandez did not use them.
In 2015, behavior specialist Scott Everly met Hernandez in
a group called “self discovery leading to empathy.” Hernandez
completed the group. The group was an adjunct to the SOTP.
The goal of the self discovery group was for participants to gain
an understanding of how other people feel. Hernandez also
participated in a group exploring boundaries and enrolled in a
group for men convicted of rape. Everly did not recall Hernandez
telling him about his sexual offending or that he was sorry for the
trauma he inflicted on his victims. According to Everly, the
SOTP is more intensive than the other groups.
Chariti Messer worked as a behavior specialist at Coalinga.
Hernandez enrolled in a boundaries group facilitated by Messer.
Some of the people in the boundaries group were participating in
the SOTP. Hernandez took the class twice in order to ensure he
learned all of the concepts in that class. Messer never observed
Hernandez under the influence of alcohol. Messer stated that the
boundaries group is not intended to be a substitute for the SOTP.
Behavior specialist Eliseo Garcia testified on behalf of
Hernandez as well. Hernandez participated in Garcia’s “values
in action” group. Individuals who participate in SOTP also
typically take the “values in action” group. Hernandez also
participated in substance abuse and men convicted of rape groups
facilitated by Garcia. The goal of the substance abuse group was
to prevent future relapses into substance abuse. The SOTP
program “is a lot more specific and relates more to hurting
others.” The SOTP program offers different classes that are more
intensive.
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When Hernandez discussed his sexual offenses with
Garcia, he told Garcia he did not remember them. Garcia
testified that Hernandez’s treatment plan stated:
“ ‘Mr. Hernandez still holds adamantly to the belief that had
he not been extremely intoxicated and in a blackout state, he
would not have committed his crimes.’ ”
Orlando Cruz, an art therapist at Coalinga, testified
Hernandez participated in a group led by Cruz entitled
“[b]ecoming a better you, healing the broken spirit” and designed
for people who had suffered childhood trauma.
4. Hernandez’s testimony
Hernandez testified on his behalf. Hernandez recalled
driving while drunk. He did not remember if that was his first
contact with law enforcement because he had regularly used
drugs and alcohol. Hernandez started sipping alcohol sometime
between age six and age eight. In his early teens, Hernandez
started to attend parties, drink, and meet gang members. At
age nine or 10, he started smoking marijuana. Hernandez
experimented with PCP, acid, and other pills.
Hernandez did not recall in 1990 being convicted of petty
theft. He recalled in 1992 being convicted of second degree
burglary and being placed on probation. Hernandez pleaded
guilty because he “didn’t know what took place . . . so [he]
couldn’t defend [himself], and [he] couldn’t deny it.”
In 1992, Hernandez was arrested for lewd act on a child.
Hernandez remembered “drinking and partying” with the
victim’s father. He did not recall anything else. On that day,
Hernandez had been drinking, smoking marijuana, and using
cocaine. The victim’s father invited Hernandez because he knew
Hernandez had drugs. Hernandez recalled “getting high all the
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way until [he] lost consciousness.” Hernandez regained
consciousness the next morning when the victim’s father said he
would take Hernandez home. Hernandez did not recall going into
the five-year old’s bed and touching her. Hernandez testified, “I
feel bad for creating a victim, you know, for her. I was not in my
right mind. It really makes me feel bad.”
Hernandez was incarcerated from 1992 through 1994.
When he was released on parole, he absconded from parole. He
did not want his parole officer to see the “track marks” from his
intravenous use of heroin. Hernandez went to Mexico where he
entered a substance abuse program and, according to him,
remained sober for almost two years. Yet, in addition to
testifying he was sober for almost two years, Hernandez also
testified that from 1993 to 2008, he used heroin whenever he
“could get [his] hands on it.”
Hernandez had been released from prison for four days
before he was arrested for attempted rape and burglary. At that
time his “preoccupation was just getting high and staying high.”
Hernandez testified that he did not recall the attempted rape.
Hernandez testified that in 1999, he decided to change. He
earned a GED and he worked for 12 years while incarcerated. He
learned to drive trucks and learned about computers. He became
a certified mechanic. While incarcerated he taught English as a
second language. He also tutored inmates to assist them in
obtaining a GED. Additionally, Hernandez worked in the kitchen
washing dishes.
Hernandez used alcohol until 2008. In 2002, he knew he
needed to change so he took a class to help understand why he
became an addict. He took other classes to help him understand
and improve himself. He completed an anger management
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group. He completed a group on how to live a healthy life and
another on how to develop positive relationships. He also
enrolled in a group entitled “men convicted of rape.” At Coalinga,
he worked as a janitor.
Hernandez testified that at Coalinga, he was learning “why
I committed the crimes I did . . . .” He testified he felt remorse
and regret. He testified he never intended to cause anyone harm.
He reiterated that he did not recall the crimes. Hernandez
testified, “I wasn’t in my right mind when I committed those
crimes . . . .”
In June 2016, Hernandez completed the first SOTP module.
His treatment team recommended he continue with module two.
He did not continue based on the advice of his lawyer.
Hernandez did not think he had a preoccupation with children or
women and for that reason did not fit into the SOTP program.
Also, Hernandez thought the SOTP did not apply to him because
he “wasn’t aware of what [he] was doing” when he committed his
crimes. Hernandez acknowledged his treatment team “always
recommend[ed]” he participate in SOTP. Hernandez testified he
“chose another course [or] plan [of] action . . . .”
DISCUSSION
Hernandez’s sole argument on appeal is that the evidence
was insufficient to support a finding that he “currently met the
criteria for commitment as an SVP.” (Boldface & capitalization
omitted.) According to Hernandez, “the evidence adduced at trial
failed to establish beyond a reasonable doubt that appellant
currently suffered from a severe mental disorder that predisposed
him to commit sexually violent offenses, or that, as a result of
such disorder, appellant was dangerous or likely to engage in
sexually violent criminal behavior, as required for commitment
21
as an SVP.” Hernandez claims that the People’s experts
improperly relied only on his past offenses and past psychological
history and ignored his rehabilitation.
As defendant emphasizes, the SVPA permits civil
commitment based on a finding of current mental condition.
(People v. Hubbart (2001) 88 Cal.App.4th 1202, 1219.) Our high
court explained: “In the case of the SVP Act . . . , although the
trigger for eligibility is a certain type of past criminal conduct,
the commitment cannot be effectuated without a determination of
a current mental disorder and future dangerousness. (McKee,
supra, 47 Cal.4th at p. 1195, fn. 7.)
“In reviewing the sufficiency of the evidence to support a
person’s civil commitment as an SVP, we apply the substantial
evidence standard of review. [Citation.] ‘Under this standard,
the court “must review the whole record in the light most
favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find [Hernandez] guilty beyond a reasonable doubt.”
[Citations.] The focus of the substantial evidence test is on the
whole record of evidence presented to the trier of fact, rather than
on “ ‘isolated bits of evidence.’ ” ’ [Citation.] [¶] We ‘must
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.’ [Citation.]
‘We must therefore view the evidence in the light most favorable
to the prevailing party, giving it the benefit of every reasonable
inference and resolving all conflicts in its favor . . . .’ [Citation.]”
(People v. Poulsom (2013) 213 Cal.App.4th 501, 518 (Poulsom).)
“Further, ‘[a]lthough we must ensure the evidence is
reasonable, credible, and of solid value, nonetheless it is the
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exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts on
which that determination depends. [Citation.] Thus, if the
verdict is supported by substantial evidence, we must accord due
deference to the trier of fact and not substitute our evaluation of
a witness’s credibility for that of the fact finder.’ [Citation.]”
(Poulsom, supra, 213 Cal.App.4th at p. 518.)
A. Hernandez Forfeited His Argument
Hernandez refused to allow the People’s experts to
interview him before his SVP trial. This failure would be
sufficient ground to defeat his substantial evidence challenge. As
the Third District explained in People v. Sumahit (2005)
128 Cal.App.4th 347, 353–354 (Sumahit): “The law has a strong
interest in seeing to it that litigants do not manipulate the
system, especially where to hold otherwise would permit them to
‘ “trifle with the courts.” ’ [Citation.] Here, defendant fully
cooperated with his own psychologist, while denying the People’s
doctors the opportunity to interview him . . . . 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.”
As in Sumahit, Hernandez refused to be interviewed by the
prosecution’s experts but submitted to being interviewed by his
own expert. Specifically, Hernandez refused Dr. Goldberg’s 2021
request for an interview and refused both of Dr. Yanofsky’s
interview requests but agreed to be interviewed by his expert,
Dr. King. His refusals preclude him from arguing that the
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People’s experts failed to present proof of a current psychological
disorder.
B. Substantial Evidence Supported the Commitment
Order
Assuming Hernandez has not forfeited his substantial
evidence challenge, there was substantial evidence at trial that
Hernandez currently suffers from a severe mental disorder
predisposing him to commit sexually violent offenses. When
asked if the antisocial personality diagnosis was current,
Dr. Goldberg answered affirmatively. Dr. Yanofsky testified
Hernandez suffered both from antisocial personality disorder and
an unspecific paraphilic disorder. Dr. Yanofsky acknowledged
that Hernandez had not committed any criminal conduct since
2000, but that this fact did not alter Yanofsky’s diagnosis because
Hernandez had been incarcerated or institutionalized since 2000.
Dr. Yanofsky opined Hernandez “currently poses a serious and
well founded risk of engaging in predatory sexually violent
behavior if he were to be released in the community.” (Italics
omitted.) Although Dr. King testified that Hernandez did not
suffer from a paraphilic disorder and Hernandez’s antisocial
personality disorder was in “some degree of remission,” the trial
court did not have to credit Dr. King’s testimony. This is all the
more apparent given all three experts, including Dr. King, agreed
that actuarial risks assessment tests showed that Hernandez had
an above average likelihood of recidivism in comparison to other
sexual offenders.
The experts considered Hernandez’s rehabilitation efforts,
including his failure to participate in the SOTP, the one program
designed to prevent sexual offense recidivism. Module four of the
SOTP would have allowed Hernandez an opportunity to
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demonstrate his rehabilitation with a temporary release into the
community. Staff at Coalinga repeatedly encouraged Hernandez
to continue with the SOTP, but he never did. Although
Hernandez chose to enroll in other groups and although he was
respectful of his teachers and learned to control his substance
abuse in a controlled environment, Dr. Goldberg opined:
Hernandez was “being manipulative in this regard. He’s taking
the classes, the didactic classes but not doing the real work. It’s
like sitting in an AA meeting and not participating. You know,
it’s not doing the real work that has been shown to reduce
recidivism.”
The undisputed evidence that Hernandez completed only
the first module of the SOTP supported the conclusion that he
posed a current risk of sexual offense. As the Attorney General
points out, it is “reasonable to consider” Hernandez’s refusal to
participate in SOTP which provides for a period of supervised
release in the community “as a sign” that he “is not prepared to
control his untreated dangerousness by voluntary means if
released unconditionally to the community.” (People v. Superior
Court (Ghilotti) (2002) 27 Cal.4th 888, 929.) Hernandez’s
antisocial personality disorder and repeated refusal to complete
sexual offender treatment would be sufficient to support the trial
court’s order even apart from the other evidence before the trial
court. (Sumahit, supra, 128 Cal.App.4th at p. 354 [“[O]ne of the
key factors which must be weighed by the evaluators in
determining whether a sexual offender should be kept in medical
confinement is ‘the person’s progress, if any, in any mandatory
SVPA treatment program he or she has already undergone;
[and] the person’s expressed intent, if any, to seek out and submit
to any necessary treatment . . . .’ [Citation.]”].)
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Additionally, the uncontroverted evidence showed that
despite taking numerous classes and refraining from using
alcohol and controlled substances over a substantial time period
while incarcerated or housed at Coalinga, Hernandez had
developed no insight into the processes motivating his criminal
sexual conduct. Dr. Goldberg was suspicious of Hernandez’s
reports that he did not remember his crimes. Dr. Goldberg
emphasized that Hernandez never acknowledged his crimes, but
instead said he was not “capable of” committing those crimes.
Dr. Yanofsky’s testified that avoiding offenses at Coalinga does
not translate into refraining from committing sexually violent
offenses if released into the community. Even Dr. King
acknowledged that Hernandez “believes he does not have a
problem with committing sexual offenses.” Hernandez told
Dr. Goldberg that “using drugs or alcohol does not necessarily
increase his sexual thoughts or feelings,” suggesting that he
harbored those feelings irrespective of his drug and alcohol use.
Finally, Hernandez inaccurately argues that there was
“uncontroverted evidence regarding appellant’s recent exemplary
behavior and rehabilitation, which demonstrated that appellant
had controlled his mental illness and was unlikely to sexually
reoffend.” Hernandez cites evidence that he improved his
behavior4 but no evidence that he was rehabilitated. The
4 For example, Dr. Goldberg testified “[t]o some extent”
Hernandez indicated “empathy and compassion for the victims.”
Dr. Goldberg also testified that “[f]or the most part,” Hernandez
“conformed to social norms since he’s been in the hospital” which
is “a very controlled environment.” Similarly, Dr. Yanofsky
testified that within Coalinga Hernandez exhibited “volitional
control” but the question was whether he could “maintain [such
control] in the community.” Dr. Yanofsky acknowledged that
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evidence, as described above, shows he was not. Hernandez
did not participate in the sexual offender treatment offered to
him, failed to develop insight into his offenses, and according to
his own expert was “rationalizing or minimizing” when he
expressed his ongoing belief that his sexual offending was the
result of drugs and alcohol.
DISPOSITION
The order of commitment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
Hernandez never committed a sexually violent offense while at
Coalinga. Dr. Yanofsky also acknowledged that Hernandez was
never caught with child pornography while at Coalinga.
Dr. Yanofsky further acknowledged that Hernandez was
employed as a janitor while at Coalinga. As Hernandez points
out, he and other lay witnesses testified as to his coursework,
behavioral improvements, and respect for staff at Coalinga.
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