Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. ZM006278, Clifford L. Klein, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Paul M. Roadarmel Jr., Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
John Peterson appeals from the judgment entered extending his involuntary commitment to Patton State Hospital (Patton) as a mentally disordered sex offender (MDSO) under former Welfare and Institutions Code section 6316.2. He contends the judgment must be reversed because the evidence was insufficient to find he remained an MDSO. We conclude substantial evidence supports the judgment and affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
Peterson was adjudged an MDSO pursuant to the now-repealed MDSO laws which, despite having been repealed effective 1982, remain applicable to Peterson. (Stats. 1981, ch. 928, §§ 2, 3, pp. 3485-3486 [MDSO law continues until the commitments are terminated].)
FACUAL AND PROCEDURAL BACKGROUND
John Peterson was born on January 22, 1955. In March 1981, he grabbed and fondled a young girl and was charged with committing a lewd act upon a child under the age of 14 years. Peterson was convicted of the offense and ordered committed to Patton in August 1981, after the court found he met the statutory criteria as an MDSO. (Former §§ 6300, 6302, subds. (a) & (c), 6316, subd. (a)(1).)
In September 1983, Peterson was released for outpatient treatment under the Conditional Release Program (CONREP). In 1997, he was arrested for the sale and transportation of a controlled substance, and his outpatient status was revoked. Following Peterson’s conviction on the narcotics offense, he was sentenced to a three-year state prison term to be served at Patton beginning in October 1997.
Peterson’s maximum term of confinement was not shown in the record. An MDSO can be confined for only a limited period, measured by the maximum term of confinement for the underlying offense (here seven years in 1981 for violating Pen. Code, § 288, subd. (a)), unless the People can establish grounds for an extended commitment. (In re Moye (1978) 22 Cal.3d 457, 464-465; People v. Saffell (1979) 25 Cal.3d 223.)
In January 2000, Peterson was again released on outpatient status, this time until August 2001 when he was ordered recommitted to Patton for violating CONREP rules and failing to disclose those violations.
On March 17, 2007, the Los Angeles County District Attorney filed a petition to extend Peterson’s involuntary commitment at Patton (former § 6316.2), which was set to expire on June 20, 2007. At the November 2007 court trial under review the prosecution presented the testimony of Dr. Kory Knapke, a court-appointed forensic psychiatrist who evaluated Peterson, and of Dr. Waheed Saeed, one of Peterson’s treating psychiatrists at Patton. These witnesses also submitted written reports which are part of the appellate record. Dr. Kaushal Sharma, a forensic psychiatrist, testified for the defense. Peterson elected not to testify.
The petition erroneously indicated Peterson’s maximum date as January 20, 2007, rather than June 20, 2007. The court later corrected this error before ordering Peterson’s involuntary commitment extended by two years, or until June 20, 2009.
It is presumed, although not apparent in the record, both the People and Peterson waived trial by jury. (§ 6316.2, subd. (d).)
1. Summary of Trial Testimony
a. Dr. Kory Knapke’s testimony
After three interviews and a medical records review, Dr. Knapke diagnosed Peterson as suffering from a schizoaffective disorder – depressed type; pedophilia – sexually affected nonexclusive type; and polysubstance abuse. Knapke’s pedophilia diagnosis was based primarily on circumstances surrounding Peterson’s 1981 lewd act offense, his conduct as an outpatient under CONREP, and his behavior as an inpatient at Patton. Knapke was convinced Peterson posed a substantial risk of harm to others, particularly to children and other vulnerable victims, if he were released, given his tendency to rationalize his deviant sexual interests, his refusal to participate in sexual offender treatment, and his plan to forgo his medication upon leaving Patton.
Dr. Knapke interviewed Peterson in March 2005 and in May and October 2007.
As for Peterson’s 1981 offense, Dr. Knapke noted Peterson committed the lewd act in response to “command hallucinations” just days after his discharge from a community hospital. Patton had been focusing on the victim, an 11-year-old girl, for weeks prior to the assault. Years later when Peterson was a CONREP outpatient, he went to parks and schools, contrary to CONREP’s rules. Knapke specifically referred to the incidents triggering Peterson’s 2001 revocation of his outpatient status. Peterson failed to inform his CONREP therapist of having been found by police loitering at a park, and of having been around children at his job site without supervision. In Knapke’s opinion Peterson was “a fixated predatory pedophile.” After committing a lewd act in 1981, Peterson persisted in having inappropriate contact with children as recently as 2001. Knapke believed Peterson’s behavior meant there was high probability he would reoffend; Peterson would continue to associate with children if he were released.
Dr. Knapke also described an incident in which Peterson exhibited violent behavior as an inpatient in Patton’s sex offender unit. Peterson began experiencing auditory hallucinations and displaying paranoid delusional thinking involving a female psychiatric technician in 2003. Peterson was ultimately transferred to another unit when he threatened to rape and to kill the technician. Since that time Peterson had resisted returning to the sex offender unit and receiving specialized treatment as a sex offender. Peterson claimed to Knapke he no longer needed such treatment.
Although Dr. Knapke acknowledged Peterson was currently taking his medication and his mental illness was in remission, Peterson had exhibited signs of mental illness as recently as late 2006; he was observed mumbling to himself in response to internal stimuli, most likely auditory hallucinations. Knapke did not believe Peterson would remain in remission if he were released. In May 2007, Peterson told Knapke of his plan to stop taking his medication if he were discharged from Patton. Knapke opined without medication Peterson would quickly decompensate and become psychotic, which is “directly linked to his criminal behavior.” According to Knapke, Peterson represented a substantial danger of bodily harm to others and was predisposed to committing sexual offenses in light of his history of sexual activity with vulnerable victims – impregnating a mentally ill patient at one point and committing a lewd act on a child victim; his previously expressed “rape fantasies”; and his 2003 threats of harm to the female psychiatric technician at Patton.
b. Dr. Waheed Saeed’s testimony
Dr. Saeed was Peterson’s treating psychiatrist at Patton from March 2004 to January 23, 2007. Before testifying on Wednesday, November 7, 2007, Saeed interviewed Peterson on Monday, November 5, 2007, reviewed Peterson’s medical records, and spoke with the physician who succeeded Saeed as Peterson’s treating psychiatrist at Patton.
Before Dr. Saeed testified, Dr. Mubashir Farooqi, Peterson’s current treating psychiatrist at Patton testified Peterson had been diagnosed as suffering from schizoaffective disorder – depressed type, polysubstance abuse and pedophilia. However, after Farooqi demonstrated during his testimony his unfamiliarity with Peterson’s medical history as well as his unwillingness to discuss it in advance with the prosecution, Farooqi was replaced with Dr. Saeed.
Dr. Saeed concurred in Dr. Knapke’s diagnosis of Peterson as suffering from schizoaffective disorder with symptoms of auditory hallucinations, paranoia, delusions, anger, impulsivity and depression; (DSM IV) pedophilia, involving sexual thoughts over a six-month period, and polysubstance abuse, stemming from repeated use of methamphetamine, heroin, marijuana and alcohol. Saeed added Peterson had an extensive history of mental illness dating back to his early 20’s. Peterson’s mental illness included suicidal ideations and one attempted suicide, and he was hospitalized twice for his mental illness in the late 1970’s. Saeed also gave some details of Peterson’s lewd act commitment offense. The 11-year-old girl was a stranger to Peterson whom he had observed walking to school. Peterson stopped the girl en route to school, picked her up in his arms before removing her blouse and fondling her crotch and chest areas. The girl fought Peterson, and he released her. Saeed explained that pedophilia, like other types of mental illness is not curable. The disease is manageable through medications and treatment programs which keep it under control.
Dr. Saeed opined because of Peterson’s mental illness, he is likely to reoffend if he were released into the community. Saeed based his opinion on the circumstances of Peterson’s 1981 lewd act offense, his behavior as an inpatient at Patton and his conduct as an outpatient under CONREP. Saeed also relied on comments Peterson made to him while under his care and during the November 5, 2007, interview.
According to Saeed, Peterson, “at best” was in partial remission because his attitude and conduct still reflected the anger, impulsivity and sexual fantasies that characterize his mental illness. Saeed gave several examples: In August 2007, Peterson yelled and cursed at another patient, rather than informing Patton staff the patient was cursing at him. In May 2006, a Patton staff member was assaulted by another patient. Peterson told a different female staff member she could sustain a similar injury. Peterson thought his remark was funny. During that same month, Peterson grabbed a slightly-built male patient and threw him to the ground. Peterson claimed to have been “stressed out” and to have believed the patient was praying too often; and claimed the patient intentionally fell after Peterson pushed him. When Peterson was an inpatient in the sex offenders unit, he told Saeed about having sexual fantasies concerning “small-sized women.” Saeed testified the female psychiatric technician Peterson threatened in 2003 was petite in stature. Peterson not only threatened to kill her and her family, but also fantasized about “forcefully jamming the food tray down [her] throat.” In April 2006, Peterson had to be physically restrained twice after he became aggressive and began punching the walls at Patton. Saeed testified Peterson’s recent history of assaults on adults relates to the likelihood he will commit future sexual assaults on children, because both types of assaults are acts of violence and impulsivity, unrelated to sexual gratification.
Dr. Saeed also testified about statements Peterson made during his November 5, 2007, interview. Peterson said the safety of the female psychiatric technician would be at risk if he were now returned to the sex offender unit; Peterson was not certain he could restrain himself from harming her. Peterson also explained the circumstances leading to the revocation of his outpatient status in 2001. In the first incident, Peterson was sitting in his car outside a park. A mother contacted police because she thought Peterson was staring inappropriately at the children. Peterson told Saeed that at the time he did not believe he would get caught, having done this repeatedly in the past. Peterson did not disclose the incident to his CONREP therapist. The second incident occurred when, as part of a painting crew, Peterson was in a room alone with his supervisor’s children. His supervisor contacted CONREP.
In November 2006, Peterson told Dr. Saeed of having sexual fantasies involving children and young girls. Saeed also noted in January 2005 Peterson stated his belief to psychologist, Dr. Steven Jenkins, that sometimes children “set up adults to molest them”; and “some children want sex” and therefore dress in a sexually provocative manner.
Dr. Saeed testified in the November 5, 2007, interview, Peterson said he was agreeable to taking medication. Saeed was aware Peterson had recently insisted to the contrary in an interview with Dr. Knapke.
c. Dr. Kaushal Sharma
Dr. Sharma conducted two interviews with Peterson in 2007 and reviewed his medical records at least twice during that time. Sharma testified while Peterson was still suffering from schizoaffective disorder, his MDSO commitment should not be extended because he was willingly on medication and currently in remission. In Sharma’s opinion, Peterson was not predisposed to committing sex offenses “to the degree that there’s a substantial danger of bodily harm to others.”
Sharma based his opinion on Peterson’s behavior and comments since his 1981 commitment offense. For the past 14 years, Peterson had not committed any more sex offenses and was in the community during that period. Sharma considered the reasons for the revocation of Peterson’s outpatient status in 1997 and 2001 as not indicating any sexual psychopathology or predisposition by Peterson to commit sex offenses. The 1997 revocation was for committing a narcotics offense. The 2001 incident at the park posed a “concern” to Sharma, but was “not that serious.” Sharma did not believe Peterson’s decision to eat lunch at the park was sexually motivated, rather it reflected his poor judgment. Sharma also noted Peterson could not be faulted for his supervisor’s decision to bring children to the job site.
Dr. Sharma opined Peterson no longer had pedophilia, although Peterson did suffer from the disease in 1981. Sharma was aware Peterson had threatened to kill a female psychiatric technician in 2003, but he did not know about his fantasy to shove a tray down her throat. However, that fantasy is not symptomatic of pedophilia; and it did not change Sharma’s opinion Peterson should not have his commitment extended as an MDSO.
On cross-examination, Dr. Sharma testified he had neither spoken to Drs. Knapke and Saeed about Peterson nor read all of their reports. Sharma opined there are “core” pedophiliacs who are never curable, and those afflicted by schizoaffective disorder who engage in “situational pedophile acts.” Sharma testified Peterson’s schizoaffective disorder contributed to his pedophiliac desires in 1981, and may contribute to those desires in the future. Sharma also considered the lack of impulse control contributes to the commission of a violent sexual offense against a child or adult. Sharma acknowledged Peterson’s violent sexual fantasies as reported by Drs. Knapke and Saeed would raise a concern about Peterson no longer qualifying as an MDSO.
2. Trial Court’s Findings and Judgment
The trial court concluded beyond a reasonable doubt Peterson met the conditions justifying an extension of his involuntary MDSO commitment and sustained the petition. The court found Peterson was suffering from a severe mental disorder that was not in remission, and Peterson was predisposed to commit a sexual offense to such a degree that he presented a substantial danger of physical harm to others.
To support its findings, the trial court relied on the opinions of Drs. Knapke and Saeed as well as their testimony describing Peterson’s recent violent behavior and sexual fantasies, and his equivocation about requiring medication and specialized treatment. The court characterized Dr. Sharma’s testimony as “quali[fied]” when “he was presented with certain facts.” The court ordered Peterson’s commitment be extended for two years, but expressly did not oppose having Peterson granted outpatient status under CONREP.
DISCUSSION
1. Applicable MDSO Law
Under the now-repealed MDSO laws, it was possible for a defendant convicted of any offense for which registration as a sexual offender was required by Penal Code section 290 or of any felony or misdemeanor committed primarily for purposes of sexual arousal or gratification to be certified as an MDSO. (Former § 6302, subds. (a) & (c).) For a defendant to qualify as an MDSO, the required proof was beyond a reasonable doubt that by reason of “mental disease, defect or disorder,” the defendant is “predisposed to the commission of sexual offenses to such a degree that he presents a substantial danger of bodily harm to others.” (Former § 6316.2, subd. (a)(2).)
If the court determined the defendant was an MDSO and could benefit by treatment in a state hospital or other treatment facility, the court could order the defendant committed to the Department of Mental Health for treatment in such a facility for a period equal to the maximum term of imprisonment for the underlying criminal offense(s). (Former §§ 6316, subd. (a); 6316.1, subd. (b).)
The district attorney could petition to extend a defendant’s MDSO commitment beyond the defendant’s original maximum term of imprisonment (former § 6316.2, subd. (a)). The defendant would be afforded a right to counsel, to jury trial and to discovery, and other rights guaranteed under the federal and state Constitutions for criminal proceedings. (Former § 6316.2, subds. (c) & (e).) After trial, if the jury or court found the defendant still qualified as an MDSO, the defendant could be recommitted for a period of two years from the date of termination of the previous commitment (former § 6316.2, subd. (f)).
2. Substantial Evidence Supports the Finding Peterson is an MDSO
Peterson contends the testimony of the prosecution’s expert witnesses was insufficient evidence of either present predisposition or dangerousness as a matter of law because the evidence upon which Drs. Knapke and Saeed relied does not support their opinions. Citing People v. Gibson (1988) 204 Cal.App.3d 1425, 1432-1439 (Gibson), Peterson argues dangerousness must be based on something other than evidence of his previously diagnosed mental illness and circumstances of his commitment offense. Peterson maintains the evidence he has not committed any sexual offenses since 1981, and his mental illness is now in complete or partial remission and controlled by medication conclusively shows Peterson was no longer an MDSO as opined by Dr. Sharma.
In Gibson, a former version of the mentally disordered offender (MDO) statute was held to be unconstitutional because it created a presumption of dangerousness based solely on unremitted mental illness. (Gibson, supra, 204 Cal.App.3d at pp. 1432-1439.) Here, by contrast, the trial court’s finding Peterson was still an MDSO was based on expert opinions that features of Peterson’s existing mental illness, schizoaffective disorder and pedophilia, predispose him to commit sexual offenses, creating a substantial risk he will cause physical harm to others. Specifically, the trial court pointed to the testimony of the prosecution experts as to Peterson’s recent threatening behavior and violent sexual fantasies involving children and other vulnerable victims, his statements attributing sexual desires to children, and his ambivalence about needing medication and sexual offender treatment as justification for extending Peterson’s involuntary commitment. This expert testimony was substantial evidence of Peterson satisfying the MDSO criteria. (See People v. Compelleebee (1979) 99 Cal.App.3d 296, 301-303 [MDSO proceedings are reviewed on appeal under the general rule of sufficiency of the evidence].) Indeed, Peterson’s conduct by any standard demonstrates his present predisposition and dangerousness. Although the defense expert presented a conflicting opinion, this court cannot supplant the trial court’s determination as to which witnesses were more credible. (People v. Maury (2003) 30 Cal.4th 342, 403.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.