California Courts of Appeal Reports
PEOPLE v. RASMUSON, B183616 (Cal.App. 12-21-2006) THE
PEOPLE, Plaintiff and Respondent, v. KENNETH RASMUSON,
Defendant and Appellant. B183616 Court of Appeal of
California, Second District, Division Two December 21,
2006 Certified for Publication
APPEAL from an order of the Superior Court of Los Angeles
County, No. ZM001798, Gustavo Gomez, Judge. Reversed.
Jean F. Matulis, under appointment by the Court of Appeal,
for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief
Assistant Attorney General, Pamela C. Hamanaka, Senior
Assistant Attorney General, Chung L. Mar and Beverly K.
Falk, Deputy Attorneys General, for Plaintiff and
Respondent.
CHAVEZ, J.
Kenneth Rasmuson, incarcerated at Atascadero State
Hospital (Atascadero) as a sexually violent predator (SVP)
under the Sexually Violent Predator Act (SVPA) (Welf. &
Inst. Code, § 6600 et. seq.),[fn1] appeals from an
order denying his petition for conditional release made
pursuant to section 6608. The trial court denied the
petition, finding that appellant failed to meet his burden
of proving that it was unlikely he would engage in sexually
violent criminal behavior upon his release. Appellant
contends that (1) the order must be reversed because due
process requires that the government shoulder the burden of
justifying continued custodial confinement once inpatient
treatment has been completed, and (2) the trial court
abused its discretion in denying his petition.
We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In 1981, at age 19, appellant was convicted of forced oral
copulation, sodomy and a lewd act on an 11-year-old boy. He
was incarcerated until 1985, when he was released into a
conditional release program. In 1987, he reoffended,
committing heinous sex acts on a three-year-old boy, then
abandoning the child at an isolated location in the
mountains. Appellant admitted to molesting numerous
additional victims.
On December 14, 2004, at the age of 43, appellant filed a
request for conditional release from Atascadero pursuant to
section 6608. David K. Fennell, M.D., Acting Medical
Director of Atascadero, wrote the trial court a letter,
dated February 16, 2005, stating that, “It is my opinion,
to a degree of medical certainty, that Mr. Kenneth
Rasmuson’s condition has so changed that he would not be a
danger to others in that it is not likely that he will
engage in sexually violent criminal behavior if placed
under supervision and treatment in the community.” (Italics
in original.) The letter went on to say that, “[T]he
treatment staff and I do not believe that Mr. Rasmuson is
`cured’ of his pedophilia. The essence of the
recommendation is that because of the changes in his
condition, Mr. Rasmuson is suitable for a strictly
supervised outpatient program. The patient’s pedophilia is a
life-long condition which will require supervised
outpatient treatment indefinitely.”
The trial court conducted a plenary evidentiary hearing at
which the following evidence was adduced.
Appellant’s Witnesses
Mary Flavan, M.D.
Mary Flavan, M.D. is a staff psychiatrist at Atascadero and
was appellant’s treating psychiatrist for several years,
until a year and one-half prior to the section 6608
hearing. She described appellant as a “very serious
pedophile,” with a lifelong condition. When she took over
appellant’s treatment, he was conscientiously pursuing
relapse prevention. She found his efforts to be helping, at
least in the hospital.
Dr. Flavan informed appellant of the additional treatment
option of taking antiandrogen medication (Lupron), which
lowers testosterone and reduces most, if not all, of a
person’s sex drive, thereby significantly reducing the
recidivism rate of serious sex offenders. In Dr. Flavan’s
opinion, supported by numerous studies, 99 percent of
patients using antiandrogens do well because they interrupt
the obsessive quality of the sex drive, reduce fantasies,
and eliminate most dreams. Appellant agreed to take Lupron
to reduce his testosterone to a castration level.
According to Dr. Flavan, three and one-half weeks after
starting Lupron, appellant reported that he had “never been
more free in my life.” Several weeks later, he stated that,
“You know, I thought there would be this gaping hole in my
soul when I tried this medicine. I am now able to do
anything in life I want. I did not know what was wrong.”
Dr. Flavan and two evaluators agreed that there was a
dramatic change in appellant’s personality, as if a huge
load had been lifted from him.
Dr. Flavan opined that because of his “full personality,”
family support, determination to work with his caregivers,
and intellectual and hobby interests, appellant was a good
candidate for conditional release and would not be a danger
if monitored and continued taking antiandrogens, the
ingestion of which could be insured by use of a once-a-year
implant, among other means. Although appellant reoffended
when released in the 1980’s, Dr. Flavan noted that he was
not then honest about his drug use. Dale Arnold, Ph.D.
Dale Arnold, Ph.D. was a ward psychologist at Atascadero
from 1997 to 1999, during which time he co-facilitated a
social skills group in which appellant participated. In Dr.
Arnold’s opinion, although appellant would always be a
pedophile, if released into a conditional release program,
he would be unlikely to reoffend, even without using
antiandrogens.[fn2] Dr. Arnold based his opinion on
appellant’s recognition of the risk factors he had to
avoid, his completion of the four phases of treatment at
Atascadero, his reduced sexual intensity due to medication,
and high motivation not to reoffend.
Dr. Arnold rendered his opinion despite acknowledging that
appellant faced a lifelong risk of reoffending. Indeed, he
had received a score of seven on the Static-99 Risk
Assessment Instrument, which placed him in the high-risk
category for sexual reoffense. His age would not be likely
to diminish risk until he reached approximately 60 years
old. Appellant’s risk factors include: the fact that he
never had an intimate relationship with an adult and is a
male-object pedophile; that he had a problem with substance
abuse that may reoccur despite his dedication to
abstinence; and that he possessed dynamic risk factors,
including impulsivity, intimacy deficiency and the need to
act out in a sexual deviant manner when under stress, which
would likely increase upon release. Dr. Arnold acknowledged
there was little statistical data on the success rate of
the Atascadero treatment program.
Dr. Arnold explained that appellant’s reoffending within a
year after his previous release was not predictive of the
likelihood of his reoffending again (even though he was
then, like now, a “star patient,” whose sexual attraction
to children had been reduced from 90 percent to 10
percent), as the earlier treatment program was “covert
sensitization,” which was then viewed as a “fix” although it
did not cure anyone and was substantially different from
his current treatment. The release program then had less
intensive supervision than the current program. That
program also failed to address appellant’s use of cocaine,
did not use antiandrogen therapy, and program supervisors
failed to act when they suspected appellant was using
drugs. Beryl Davis, Ph.D.
Beryl Davis, Ph.D. is a psychologist on the Department of
Mental Health (DMH) expert panel determining who is a SVP.
She reviewed appellant’s records and interviewed him and
his parents.
Dr. Davis opined, without any doubt, that appellant was
suitable for conditional release, although he would never
be cured of his condition. She based her opinion on a
number of factors, including that appellant entered therapy
at Atascadero despite substantial peer pressure to do
otherwise; that appellant was able to express what he needed
to do to avoid reoffense; that he worked diligently on his
treatment including antiandrogen therapy; that since taking
antiandrogens his polygraph and penile plethysmograph (PPG)
tests showed that he no longer had sexual fantasies; that
appellant was an “ego-dystonic pedophile,” meaning that he
disliked that part of himself,[fn3] and finally that the
“cognitive behavioral therapy” given at Atascadero has
shown some improvement over prior forms of treatment in
reducing recidivism.
Dr. Davis had concluded three years earlier, in
contradiction to the Atascadero treatment team, that
appellant was not a SVP and could then be safely released
with appropriate voluntary treatment and antiandrogens. Her
opinion relied to a large extent upon the effectiveness of
antiandrogens, although appellant had only then been on the
medication for one month.
Jack Vognsen, Ph.D.
Jack Vognsen, Ph.D. was a psychologist hired by the DMH to
evaluate appellant. After spending almost three hours with
him, Dr. Vognsen found appellant to be forthright, honest,
and committed to not reoffending and to living a sober and
sex-offense-free life.
However, Dr. Vognsen also noted factors which increased
appellant’s risk upon conditional release. These included
that appellant was skilled at manipulating interviewers,
having done so in the past, and might try to do so in the
conditional release program (CONREP); he had little work
experience which would likely affect his ability to be
self-supporting upon release; he had molested a
six-year-old boy when appellant was 15 years old, with
early offending being a sign of “highly deviant sexuality”;
he had admitted to Dr. Vognsen committing offenses against
other victims, in addition to the one of which he was
convicted in April 1985, and being involved in at least 10
molestations since age 18; and, that activities at
Atascadero, suggesting that he felt good about himself, did
not indicate much about his ability to refrain from
reoffending if he again found himself in a difficult
situation, particularly since his early offenses occurred
while he was experiencing trauma. Dr. Vognsen was very
concerned that if appellant reoffended, he would do so more
egregiously than before.
Despite these risks, Dr. Vognsen opined that, with some
qualifications, appellant was suitable for conditional
release, and with tight control and close supervision his
risk of reoffending was low. Appellant had to have the
approval of his Atascadero team, whose reports consistently
indicated appellant’s heavy involvement in his program, and
be on a conditional release program that included group
treatment three times per week, individual treatment as
needed, ongoing polygraph and PPG testing and constant drug
testing. He concluded that appellant had reduced his
sexually deviant urges significantly by behavioral means,
and could succeed without antiandrogens. Though appellant
continued to experience sexually deviant thoughts, and
would always do so even in CONREP with therapy and
antiandrogens, Dr. Vognsen maintained that the issue was
whether he would act on those thoughts, not whether he
would have them.
Harry Goldberg, Ph.D.
Harry Goldberg, Ph.D., a clinical psychologist in private
practice working with sex offenders in CONREP and
conducting SVP mental health evaluations for the courts,
was hired by DMH to evaluate appellant. He reviewed
appellant’s records and interviewed him for three hours.
Dr. Goldberg characterized appellant as a high-risk sex
offender because of his history and scores on the Static-99
test, assessing static conditions, and the MNSOST-R test,
based in part on dynamic factors.[fn4] Appellant evidenced
numerous aggravating factors, including early onset of
sexual deviancy, lack of an intimate relationship with
another adult, serious intimacy deficit, lack of concern
for others, and precipitation of sexual misconduct by
stress situations and impulsivity. Appellant’s past failure
to cooperate was a prior aggravating factor, although it
was no longer the case.
On the positive side, Dr. Goldberg noted that appellant was
an exemplary patient. He had strong family support and had
become increasingly forthright, having admitted to
unadjudicated offenses and to past experimentation with
drugs. Dr. Goldberg found appellant comparable to another
person who had been successfully released into CONREP.
Dr. Goldberg opined that although appellant was a high risk
SVP based on his history, CONREP would nonetheless be a
good, safe and effective means of releasing him, though not
a guaranty against reoffending. It provided 24-hour per day
Global Position System (GPS) monitoring, random home
visits, searches, polygraphs, PPG’s, blood and urine
monitoring, travel restrictions, and intensive supervision.
It would not permit appellant to reside near locations
where children frequent, and would screen his
relationships. Appellant would be unable to associate with
other sex offenders, unlike in his first release program,
and his ability to view certain media and to drive would be
restricted and monitored. He would also be involved in
individual and group therapy, psychological assessments,
would be required to keep a daily journal, and would have a
curfew. He would have to remain on his medications. Dr.
Goldberg believed that CONREP would uncover any deception by
appellant before he reoffended. CONREP’s recidivism rate is
very low because it can return a person to the hospital at
the first hint of a problem. Furthermore, appellant’s
current treatment was focused on relapse prevention and
“cognitive behavioral treatment,” which is
“state-of-the-art” and a vast improvement over appellant’s
earlier treatment.
Dr. Goldberg testified that the vast majority of the
research indicates that antiandrogen treatment has a
positive effect in reducing recidivism, though a patient
can stop taking these medications. Appellant’s self-report
of improvement from antiandrogens was objectively verified
by the PPG and polygraph tests, which indicated that his
arousal to deviant stimuli had substantially diminished.
While Dr. Goldberg indicated he would be concerned if
appellant stopped taking antiandrogens, he found him
suitable for conditional release even without them. Dr.
Goldberg found Dr. Padilla’s study questioning the
effectiveness of antiandrogens to be flawed because it used
a very small, nonrandom sample.[fn5] It was only an
exploratory study that was never published and did not deal
with the problem of sexual arousal and antiandrogens.
Ultimately, Dr. Goldberg concluded that while appellant’s
current treatment is not a guaranty against reoffending,
CONREP makes the release safe. Michael Pritchard, Ph.D.
Michael Pritchard, Ph.D. is a clinical psychologist who
acted as a unit psychologist at Atascadero assigned to the
SVP program. He described Atascadero’s five-phase treatment
program: Phase I, “Treatment Readiness,” educates patients
as to how the hospital works, what the diagnoses are and
what relapse treatment is; Phase II, “Skills Acquisition,”
teaches patients principles of relapse prevention by going
through the histories of their offenses to effect behavioral
changes and empathy for their victims; Phase III, “Skills
Application,” continues for years and teaches participants
to identify their thinking errors and high-risk behaviors;
Phase IV, “Skills Transition,” aligns participants with
outpatient placement and makes them aware of all of the
terms of such placement; and Phase V, “Placement in the
Community,” places participants in a Conditional Release
Program. Only three individuals at Atascadero had reached
Phase V.
Dr. Pritchard worked with appellant at Atascadero for seven
years and observed that he had accomplished all that the
program required. He was aware of and identified all of his
high-risk behaviors and demonstrated the ability to cope
with his risks in life situations. He was able to recognize
his cognitive distortions and manage sexual arousal. He
demonstrated the ability to have empathy for others and
follow program rules. Appellant also worked on his tendency
to minimize his future potential risk of reoffending and of
substance abuse and his making himself look better than he
was. Appellant was given the highest level of access at the
hospital, being able to move relatively freely throughout
the hospital all day without having to check back in the
unit. Only six of 600 patients at Atascadero had been given
that privilege.
When appellant began taking Lupron, his testosterone level
was lowered. He looked better physically, was more active
and seemed less downtrodden. He reported improvement from
the medication, which was confirmed by PPG and polygraph
tests. In December 2004, appellant’s treatment team
concluded that he should be recommended for conditional
release. While acknowledging that pedophilia is chronic and
does not go away, Dr. Pritchard believed, without any
reservations, that appellant was not likely to commit a
sexually violent crime if released under the proposed
conditions, although he should have lifelong monitoring.
Dr. Pritchard did not believe that appellant’s failure in
his previous release, more than 15 years earlier, precluded
his current release. In the previous release, appellant was
at higher risk because he was using drugs and living with a
sex offender and at least one minor child. He was also
over-extended, working and going to school. Further, CONREP
is now better able to monitor him. It will subject him to a
monitoring system which can be programmed to set up danger
zones to alert appellant’s supervisor if he approaches an
off-limit area. He will have a curfew; his blood will be
monitored; he will be given Lupron, paid for by DMH; his
days will be regimented and completely planned; his
activities, telephone calls, housing, social interactions
and employment will be monitored; and he will be required
to maintain a detailed journal of all of his activities,
which will be compared each day to the GPS record of his
whereabouts. CONREP provides a “region coordinator”
assigned to appellant, who will virtually have a one-to-one
relationship with him. Appellant will remain in the CONREP
program until there is a consensus that he is no longer a
SVP, which could be indefinitely.
Amy Phenix, Ph.D.
Amy Phenix, Ph.D., an experienced licensed clinical
psychologist who wrote the clinical evaluation protocol for
SVP’s, worked for CONREP and evaluated appellant to assess
his suitability for conditional release. She interviewed
him for three hours and reviewed his file. It was Dr.
Phenix’s opinion that appellant was suitable for conditional
release, even if he discontinued taking antiandrogens,
because he had the skills to manage his sexual deviancy.
The optimum way to insure that high-risk offenders do not
reoffend is to provide strict supervision for a lengthy
period and continued reinforcement of treatment. Dr. Phenix
believed that CONREP was effective in providing such
services. She found the risk of appellant returning to
substance abuse to be low because of constant monitoring by
CONREP, random drug testing, and random home visits. CONREP
was much stricter now than in the 1980’s.
Dr. Phenix believed appellant was a different person from
when he committed his sex crimes. Although antiandrogens
are not effective for everyone, she believed appellant was
having reduced deviant sexual arousal and fantasies. His
self-report of the benefits of Lupron, although not to be
taken at face value, was likely to be true due to
corroboration by PPG’s and polygraphs. The treatment
appellant received upon his release in the 1980’s was
ineffective in reducing the risk of reoffending. Current
treatment includes cognitive behavioral treatment where the
patient works to manage and control his deviancy. There is
little data regarding the effectiveness of the therapy at
Atascadero, and there is a minority view that it is not
effective. Additional data on its effectiveness is still
required. William Vicary, M.D.
William Vicary, M.D. specializes in forensic psychiatry.
After meeting appellant, reviewing his history and
evaluating him for three reports, Dr. Vicary concluded that
appellant would not be a danger if placed in CONREP, which
he characterized as an almost “failsafe” program.[fn6]
Appellant had been a model patient and one of the few to
agree to treatment. The doctor believed that appellant’s
knowledge that if he “slip[s] up” he would be
rehospitalized was a strong incentive for him to succeed.
Additionally, the consensus of medical and scientific
literature is that antiandrogens can be clinically useful in
treating sex offenders, and appellant is one of the most
dramatic examples of that benefit. His testosterone was at
a minimal level, and PPG and polygraph testing documented
his self-report that he had no further deviant sexual
obsessions or arousal. After taking Lupron, there was a
striking change in appellant’s behavior. He was below 30 on
the PCL-R test which reflects a lower risk of future
violent or sex offenses.
Dr. Vicary reached his conclusion despite finding it
significant that appellant fooled supervisors during his
prior conditional release program, reoffended with multiple
child molestation victims while being supervised and
receiving individual and group sex offender therapy, and
can be extremely manipulative. Dr. Vicary noted that
appellant was also a role model patient before his past
release. He was also concerned that appellant minimized his
responsibility and made conflicting statements. Both of
appellant’s criminal convictions had aggressive and
sadistic elements, making it even more difficult to modify
his behavior, even with counseling. Pedophiles who molest
males are less likely to change over a long period of time.
In sexual behavior laboratory, appellant had a high arousal
to aggressive sexual behavior with children of both sexes.
He was maximally aroused to children from age 10 to 13 years
old. Appellant stated that he never achieved orgasm through
use of an adult fantasy without the intrusion of a child
fantasy. He also expressed sadness at the prospect of
letting go of his arousal to young boys. These facts, in
Dr. Vicary’s opinion, cumulatively show a greater
likelihood of reoffending even with CONREP monitoring. Also,
appellant’s substance abuse intensified his deviant sexual
fantasies and aggressive impulses, making it critical that
he stay away from substance abuse. Appellant was also a
greater risk statistically because he first sexually
offended when he was 15 years old and had numerous victims.
Respondent’s Witnesses
Jesus Padilla, Ph.D.
Jesus Padilla, Ph.D. is a senior psychologist specialist
at Atascadero. He performed annual SVP reports and
recommitment evaluations for the court. Dr. Padilla was a
member of the Atascadero design team and co-chair of its
Program Evaluation and Research Committee. His committee
performed a “fairly lengthy” literature review of
antiandrogen studies and conducted a study of their
effects. After finding a disparity in the literature and
methodological problems with the studies, the committee
compared the PPG responses of individuals using
antiandrogens with those who were not. It found no
differences between the two groups’ ability to achieve an
erection. All 37 individuals in the study were able to
achieve an erection, even with testosterone at the
castration level. The committee concluded that it was
premature to say that antiandrogens were either effective
or ineffective.
Dr. Padilla conceded that he did not know how the subjects
of his study compared to appellant in terms of weight, age,
medical condition, family background, or criminal history.
He was also unaware of whether they were also receiving sex
offender treatment, or how long they had been taking
antiandrogens. Dr. Padilla, who had no advanced degree in
medicine, biology or physiology, was the only professional
at Atascadero who questioned the benefit of antiandrogens.
Though in April 2004 Dr. Padilla prepared an annual review
report of appellant for the court, he had never treated
appellant, and it was not his role to recommend whether
appellant was ready for CONREP. Dr. Padilla found that
appellant was participating well in treatment Phase IV,
though it was difficult to assess whether his self-report
that Lupron suppressed his sexual urges and fantasies was
true because he was known to fabricate or make inaccurate
statements. Moreover, Dr. Padilla noted that once a person
is released into the community, antiandrogens can be
countered with testosterone or Viagra. Nevertheless, Dr.
Padilla explicitly acknowledged that he had no opinion
regarding appellant’s suitability for conditional release.
Kenneth Carabello
Kenneth Carabello, a licensed social worker, was executive
director of Liberty Healthcare, a private corporation that
contracts with the DMH to provide the conditional release
program for SVP’s. He read reports about appellant, met
appellant at meetings, and attended a February 2005 Phase V
staffing for appellant. Carabello had “concerns” regarding
appellant’s release, finding the case to be a “very close
call for me.” He had reservations about appellant’s past
failure in a conditional release program and a January 2005
minor incident with another inmate. He preferred to see a
period of six to twelve months of stability after the
incident before release, but conceded that he would not
object to a court ordered conditional release of appellant.
Closing Argument
In closing argument, the People emphasized that appellant
should not be conditionally released because his prior
offenses were aggressive, sadistic, and extremely serious;
he had a serious drug and alcohol problem; his age of 43
did not reduce the likelihood of recidivism; he reoffended
after his prior release at a time when he was also a “model
patient”; and the conditional release program he received on
his prior release was not significantly different from the
current release program.
The Trial Court’s Ruling
The trial court took the matter under submission, later
issuing a terse minute order stating, “Petitioner Kenneth
Rasmuson having failed to meet his burden of proof,
Petitioner’s petition for conditional release pursuant to
Welfare and Institutions Code section 6608 is denied.”
DISCUSSION
Appellant contends that the trial court abused its
discretion by denying his petition for conditional release
made pursuant to section 6608. He further contends that
subdivision (i) of that section denies him due process by
placing the burden on him to establish his entitlement to
conditional release by a preponderance of the evidence,
rather than placing the burden on the government to justify
continued confinement. We conclude that regardless who must
shoulder the burden, the trial court’s ruling must be
reversed.[fn7]
The SVPA
The SVPA, adding sections 6600 through 6608, became
effective on January 1, 1996. It was adopted based on the
Legislature’s findings “that a small but extremely
dangerous group of sexually violent predators that have
diagnosable mental disorders can be identified while they
are incarcerated. These persons are not safe to be at large
and if released represent a danger to the health and safety
of others in that they are likely to engage in acts of
sexual violence. . . . It is the intent of the Legislature
that once identified, these individuals, if found to be
likely to commit acts of sexually violent criminal behavior
beyond a reasonable doubt, be confined and treated until
such time that it can be determined that they no longer
present a threat to society.” (See Historical and Statutory
Notes, 73D West’s Ann. Welf. & Inst. Code (1998 ed.) foll.
§ 6600, pp. 249-250.)
The Senate Committee on Criminal Procedure’s analysis of
Senate Bill No. 1143 states that the SVPA’s purpose is to
“[commit SVP’s] to the custody of the State Department of
Mental Health for appropriate treatment and confinement in
a prison facility until his or her mental abnormality or
personality disorder has so changed that he or she is not
likely to commit an act of sexual violence.” (Sen. Com. on
Criminal Procedure, Analysis of Sen. Bill No. 1143
(1995-1996 Reg. Sess.) April 25, 1995, p. k, italics
added.)
According to the Assembly Committee on Public Safety, the
SVPA was needed because: “As a result of determinate
sentencing, sex offenders are now automatically released
from prison at the end of their terms. According to the
California Department of Corrections, there are
approximately 11,000 sex offenders currently in state
prison. The law compels the release of about 250 of these
inmates a month, or 3000 a year. Predatory child molesters,
forcible rapists, and repeat violent sex offenders are
among them. [–] Under current law, there is no legal
authority to detain and treat sexually violent offenders
who, because of a mental abnormality or personality
disorder, are likely to re-offend once released from
prison. Likewise, there is no current way to prevent their
release into society.” (Assem. Com. on Public Safety,
Analysis of Assem. Bill No. 888 (1995-1996 Reg. Sess.) as
amended April 17, 1995, p. 5.) It was to fill this gaping
hole in the law and to prevent SVP’s serving prison terms
from being released into society upon completion of their
term that the SVPA was adopted.
At the time of appellant’s conditional release hearing, the
SVPA provided:
A “SVP” is “a person who has been convicted of a sexually
violent offense against two 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).) A “sexually violent
offense” is one of the statutorily enumerated sex crimes
“committed by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or
another person. . . .” (§ 6600, subd (b).) A
“diagnosed 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).)
Sections 6600 through 6604 provided the procedure leading
to and including adjudicating whether a prisoner is a SVP.
The Department of Corrections first screens the prisoner.
If the screening indicates that the prisoner is likely to
be a SVP, the matter is referred to the DMH. (§
6601, subd. (b).) The DMH has two psychiatrists and/or
psychologists evaluate the prisoner. If both agree that the
prisoner is a SVP, the DMH refers the matter to the
county’s designated attorney for the filing of a petition
for commitment. (§ 6601, subds. (c) & (d).) If
counsel concurs in the DMH conclusion, a petition for
commitment is filed. (§ 6601, subds. (h) & (i).) A
trial court reviews the petition and conducts a probable
cause hearing to “determine whether . . . the individual
named . . . is likely to engage in sexually violent
predatory criminal behavior upon his or her release.”
(§ 6602, subd. (a).) If probable cause is found
(§ 6602, subd. (a)), a trial at which “[t]he court
or jury shall determine whether, beyond a reasonable doubt,
the person is a sexually violent predator,” is conducted.
(§ 6604.) If found at trial to be a SVP, the
prisoner must be committed to the custody of the DMH for
treatment and confinement for a period of two years.[fn8]
(§ 6604.)
This appeal involves a proceeding for conditional release
under section 6608 of the SVPA. Because the SVPA is
designed to ensure that a committed person does not remain
confined any longer than he or she qualifies as a SVP, it
provides means for that individual to obtain review of his
or her mental condition to determine if civil confinement
remains necessary. (People v. Cheek (2001) 25 Cal.4th 894,
898.) The committed SVP can petition the court for
conditional release but no hearing shall occur until after
one year of commitment. (§ 6608, subds. (a) & (c).)
Before acting on such a petition, the trial court must
first obtain the written recommendation of the director of
the treatment facility to which the person is committed.
(§ 6608, subd. (j).) It reviews the petition in
order to “determine if it is based upon frivolous grounds,”
and if it so finds, it denies the petition without a
hearing. (§ 6608, subd. (a).) If it does not so find,
section 6608, subdivision (d) provides that, “The court
shall hold a hearing to determine whether the person
committed would be 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 due to his or her
diagnosed mental disorder if under supervision and
treatment in the community. If the court . . . determines
that the committed person would not be a danger to others
due to his or her diagnosed mental disorder while under
supervision and treatment in the community, the court shall
order the committed person placed with an appropriate
forensic conditional release program operated by the state
for one year. . . . At the end of one year, the court shall
hold a hearing to determine if the person should be
unconditionally released from commitment on the basis that,
by reason of a diagnosed mental disorder, he or she is not
a danger to the health and safety of others in that it is
not likely that he or she will engage in sexually violent
criminal behavior.” (Italics added.) At the hearing, the
petitioner has the burden of proof by a preponderance of
the evidence. (§ 6608, subd. (i).)
The Standard of Review
Before considering the merits of appellant’s appeal, we
must first determine the appropriate standard of review. We
have found and been referred to no California appellate
decision answering this question with regard to a section
6608 petition. Appellant assumes without discussion that we
review the trial court’s ruling for abuse of discretion and
reverse only if there is a clear abuse of discretion and a
miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d
311, 331.) Respondent suggests that the appropriate
standard may be the substantial evidence standard by which
we review the trial court ruling “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.
[Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
We conclude that the substantial evidence standard is
appropriate here. It is used in reviewing any disputed
factual question, whether it arises at trial or otherwise,
and whether the trial court’s findings are express or
implied. (See SFPP v. Burlington Northern & Santa Fe Ry.
Co. (2004) 121 Cal.App.4th 452, 462; Winograd v. American
Broadcasting Co. (1998) 68 Cal.App.4th 624, 632; see also
People v. Singer (1990) 226 Cal.App.3d 23, 32.) A section
6608 petition for conditional release requires the trial
court to make a factual determination, ordinarily reviewed
for sufficiency of the evidence, of whether “it is likely
that [the person committed] will engage in sexually violent
criminal behavior due to his or her diagnosed mental
disorder if under supervision and treatment in the
community.” (§ 6608, subd. (d).) If it is determined
that reoffense is unlikely, section 6608, subdivision (d)
provides that “the court shall order the committed person
placed with an appropriate forensic conditional release
program operated by the state for one year.” (Italics
added.) The statute’s use of the term “shall” signifies
that the trial court has no discretion but must order
conditional release when the required factual showing is
made.[fn9] In addition, commitment under the SVPA is a
civil commitment procedure, which by recent amendments
commits a defendant indefinitely,[fn10] after he has
already paid his debt to society by serving out his prison
term. This circumstance warrants closer appellate review
than permitted by the abuse of discretion standard.
In support of appellant’s assertion that the abuse of
discretion standard is applicable, he cites no case dealing
with review of a section 6608 ruling. The cases he cites
are distinguishable. People v. Henderson (1986) 187
Cal.App.3d 1263, 1267-1268 applied the abuse of discretion
standard when a mentally disordered sex offender sought
outpatient status under Penal Code section 1603. Subdivision
(a) of that section states that a person “may” be placed on
outpatient status if certain conditions are met, including
that the person no longer presents a danger to others or to
himself. This permissive language gives the trial court
discretion to grant the petition if the conditions are met
and distinguishes Penal Code section 1603 from the mandatory
language of section 6608.
In People v. Michael W. (1995) 32 Cal.App.4th 1111 (Michael
W.), the Court of Appeal applied the abuse of discretion
standard of review to a trial court ruling on a petition
for a ground pass, made by a defendant committed when found
not guilty of robbery by reason of insanity. The Court of
Appeal found that a petition for a ground pass is a request
to alter the conditions of confinement under Penal Code
section 1026. (Michael W., at p. 1116.) Penal Code section
1026, in contrast to section 6608, provides that a
defendant “shall not be released . . . unless and until the
court . . . find[s] and determine[s] that the person’s
sanity has been restored.” (Pen. Code, § 1026, subd.
(b).) It does not mandate release upon a finding of
restored sanity, but mandates continued confinement absent
such a finding. Further, Penal Code section 1026, unlike
section 6608, expressly directs the trial court to use the
same procedures in determining whether to release a
defendant found guilty by reason of insanity as used in
probation revocation hearings, which traditionally utilize
the abuse of discretion standard of review. (Pen. Code,
§ 1026, subd. (c); Michael W., supra, at p. 1119.)
In People v. Sword (1994) 29 Cal.App.4th 614, 624-625, the
defendant sought outpatient status under Penal Code section
1600 et. seq. The Court of Appeal applied the abuse of
discretion review without analysis or discussion. As
previously stated, Penal Code section 1600 et. seq. is not
analogous to section 6800.
“Likely” to Reoffend
In Foucha v. Louisiana (1992) 504 U.S. 71, the United
States Supreme Court held that to commit a person to a
mental institution in a civil proceeding, the state must
prove by clear and convincing evidence that the person
suffers from a mental illness and hospitalization is
required for his own welfare and protection of others. (Id.
at pp. 75-76.) When the person has recovered his sanity or
is no longer dangerous, he must be released. (Id. at p.
77.) Section 6608, subdivision (a) of the SVPA satisfies,
in part, this constitutional mandate by allowing a SVP to
petition for conditional release upon a showing that he or
she is not likely to engage in sexually violent criminal
behavior if released under supervision and treatment.
(§ 6608, subd. (d).)
In a trilogy of cases, our Supreme Court has provided
guidance as to the meaning of “likely” to reoffend in
various sections of the SVPA. In People v. Ghilotti (2002)
27 Cal.4th 888 (Ghilotti), it considered the meaning of
“likely” in section 6601, subdivision (d), in the phrase,
“likely to engage in acts of sexual violence without
appropriate treatment and custody,” the issue upon which
evaluators are to opine as a precondition to the filing of
a petition to commit or recommit a SVP. The court reasoned
that the word “likely” has no consistent meaning but may be
used flexibly to cover a range of expectability from
possible to probable (id. at pp. 916-917), and therefore,
its precise meaning must be determined by consideration of
the context. (Id. at pp. 917-918.) The word “likely,” “when
used in this context, must be given a meaning consistent
with the statute’s clear overall purpose . . . to protect
the public from that limited group of persons who were
previously convicted and imprisoned for violent sex
offenses, and whose terms of incarceration have ended, and
whose current mental disorders so impair their ability to
control their violent sexual impulses that they do in fact
present a high risk of reoffense if they are not treated in
a confined setting.” (Id. at p. 921.) The danger to society
posed by sex offenders does not “evaporate with an expert’s
prediction that the sufferer’s risk of reoffense is no
greater than 50 percent. `Danger’ is merely `the state of
being exposed to harm.'” (Id. at p. 920.) The court
therefore concluded that “likely to engage in acts of sexual
violence . . . as used in section 6601, subdivision (d),
connotes much more than the mere possibility that the
person will reoffend . . . [but] does not require a precise
determination that the chance of reoffense is better than
even.” It means that “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.”
(Ghilotti, at p. 922.)
Six months after Ghilotti, in Cooley, supra, 29 Cal.4th
228, the California Supreme Court considered the meaning of
“likely” in the phrase “likely to engage in sexually
violent predatory criminal behavior upon . . . release,”
which is the required determination at the probable cause
hearing pursuant to section 6602. The court applied the
Ghilotti definition of “likely” stating, “We find no support
in the statutory scheme or the legislative history for the
notion that the Legislature intended a different definition
of `likely’ to apply at the probable cause determination.
`[A] word or phrase will be given the same meaning each
time it appears in a statute. . . .’ [Citations.]” (Cooley,
supra, at p. 255.)
In People v. Roberge (2003) 29 Cal.4th 979 (Roberge), the
California Supreme Court was again called upon to determine
the meaning of “likely” as used in section 6600,
subdivision (a), in the phrase, “likely [to] engage in
sexually violent criminal behavior,” which is the required
determination at the trial to determine if a person is to
be involuntarily committed as a SVP. (Id. at p. 985.) The
Supreme Court again applied the Ghilotti definition of
“likely.” (Id. at p. 986.)
Here, we are called upon to determine the meaning of
“likely,” in section 6608, subdivision (d) of the SVPA, in
the phrase, “likely that he or she will engage in sexually
violent criminal behavior due to his or her diagnosed
mental disorder if under supervision and treatment in the
community.” This is the issue that must be decided at a
SVP’s conditional release hearing. We see no reason why
“likely” in this context should be interpreted differently
than in section 6601, subdivision (d) (Ghilotti), section
6602 (Cooley), or section 6600, subdivision (a) (Roberge).
As the Supreme Court stated in Cooley, a word or phrase
will be given the same meaning each time it is used in a
statute. Had the Legislature intended a different standard
to apply to a petition for conditional release, it
certainly would have used different language.
Additionally, it would make no sense to allow a SVP to
obtain conditional release by a different standard of
evaluating the likelihood of reoffending than that used to
commit him. If a less stringent standard (one that makes it
easier to be released) is used for conditional release, the
SVP could be released under circumstances for which he
would still pose a substantial danger of reoffense and for
which he could be recommitted. If a more stringent standard
(one that makes it harder to be released) for conditional
release is used, once committed, an SVP would remain
committed though the risk of reoffending was insufficient
to have had him committed in the first place.
Sufficiency of the Evidence
In denying appellant’s petition for conditional release,
the trial court found that he “failed to meet his burden of
proof,” that is, to establish by a preponderance of the
evidence that he is not likely to reoffend. This finding is
unsupported by the evidence.
“In assessing the sufficiency of the evidence, we review
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. [Citations.]” (People v. Bolin,
supra, 18 Cal.4th at p. 331.) We resolve all conflicts in
the evidence and questions of credibility in favor of the
verdict, and indulge every reasonable inference the jury
could draw from the evidence. (People v. Autry (1995) 37
Cal.App.4th 351, 358.) The testimony of one witness, if
believed, may be sufficient to prove any fact. (Evid. Code,
§ 411.)
In support of his petition, appellant presented the
testimony of eight mental health professionals, including
three staff personnel from Atascadero where he was
incarcerated and received treatment, a psychologist on the
DMH expert panel that determines who is a SVP, two
psychologists hired by the DMH to evaluate appellant, a
forensic psychiatrist and one clinical psychologist who
worked for Los Angeles CONREP and who wrote the clinical
evaluation protocol for SVP’s. All of these witnesses
uniformly agreed that appellant would not be a significant
danger to the community if conditionally released and did
not present a “serious and well-founded risk” of
reoffending. Dr. Avery assessed the likelihood of
reoffending at 10 to 20 percent, and Dr. Vognsen
characterized his risk as “low.” Each of the experts
emphasized differing reasons for his or her conclusion
including, among others, that appellant (1) was taking
antiandrogens which virtually eliminated his sexual
arousal, dreams, and deviant sexual fantasies; (2) was one
of only a handful of patients who had completed all phases
of treatment at Atascadero despite significant peer
pressure not to participate; (3) was a model patient; (4)
worked hard on relapse prevention; (5) recognized his risk
factors for reoffending; and (6) would be placed in the
CONREP program which, because of its omnipresent
supervision and monitoring, was virtually “failsafe,” with
a low recidivism rate. Half of appellant’s experts
testified that his conditional release was appropriate even
if he was not taking antiandrogens.
Against this weighty and impressive evidence, the People
failed to present a scintilla of evidence that appellant
would likely reoffend. Dr. Padilla opined only that
antiandrogens were of questionable benefit in reducing a
SVP’s sex drive, and there were questions about Dr.
Padilla’s expertise to conduct such a study and of its
validity. In any event, taking antiandrogens was not the
exclusive factor relied upon by any of the experts and not
the lynchpin for the opinions of many of them, several
concluding that appellant was not likely to reoffend even
if he were not taking them. Dr. Padilla had little
familiarity with appellant, never treated him, met with him
for no more than 15 minutes, had no role in recommending
whether he was ready for conditional release and expressly
stated that he had no opinion on appellant’s suitability
for conditional release.
Carabello was a social worker and executive director of an
SVP conditional release program. While he viewed the issue
of the likelihood of appellant reoffending as a “very close
call,” and had reservations because of appellant’s past
unsuccessful release and appellant’s minor confrontation
with another inmate in January 2005, he stated that he
would not object if appellant was ordered released. He
preferred, however, a six- to twelve-month delay (more than
which has now passed) before the release. He did not opine
that appellant was likely to reoffend upon release.
While the trial court was not required to follow the
essentially unanimous and uncontradicted recommendations of
appellant’s eight expert witnesses (see People v. Sword,
supra, 29 Cal.App.4th at p. 629), it could not arbitrarily
disregard those recommendations. (Ibid.) But the trial
court made no findings of fact or gave any indication as to
why it chose not to accept the opinion of any of
appellant’s experts. It failed to indicate whether there
were inaccuracies in the information on which they relied
in reaching their conclusions. It is unlikely that the
trial court would find each of the eight experts incredible
or their opinions flawed by misinformation.
While the prosecution made much of the fact that appellant
was convicted of heinous sexual offenses and reoffended
within a short period of time after his last release as a
“model patient,” that occurred nearly two decades earlier,
before appellant began using antiandrogens and went through
the cognitive therapy treatment at Atascadero, which was
different and more effective than the treatment he received
before his earlier release. The present CONREP program
provides far greater control, supervision and monitoring
than did the prior release program. A person’s history
should not be determinative of whether he or she is a
danger to reoffend. “The requisite likelihood of reoffense
is . . . a separate determination which does not inevitably
flow from one’s history of violent sex offenses and a
predisposing mental disorder.” (Ghilotti, supra, 27 Cal.4th
at pp. 920-921, fn. omitted.) That history is static and
will never change. As substantial time has passed, its
reliability as a predictor of a defendant’s future behavior
becomes more equivocal. If such static factors predominated
in the assessment of whether a SVP should be given
conditional release, a serious offender would never be
released regardless of what events subsequent to his
offenses revealed, which is contrary to the intent of SVPA,
which allows conditional release even with some risk of
reoffending.
In conclusion, there was no evidence supporting the trial
court’s implicit finding that appellant had failed to meet
his burden of demonstrating that he was not likely to
reoffend. Given the reports of the experts, to deny his
petition was tantamount to concluding that no SVP who has
ever committed a prior serious sexual offense, regardless
of how long ago it occurred, can be conditionally released.
Such a conclusion would present serious constitutional
issues. (See Foucha v. Louisiana, supra, 504 U.S. at p.
77.)
DISPOSITION
The order appealed from is reversed, and appellant’s
petition for conditional release is granted.
We concur:
BOREN, P.J.
DOI TODD, J.
[fn1] All further statutory references are to the Welfare
and Institutions Code unless otherwise indicated.
[fn2] Dr. Arnold believed, however, that if appellant
stopped using antiandrogens, he would require the use of
other safeguards.
[fn3] This is in stark contrast to some pedophiles who
believe that sex with children is “fine.”
[fn4] Appellant’s treatment reduced his MNSOST-R test score
from a 72 percent to 57 percent chance of recidivism; a
high risk to a moderate risk category.
[fn5] Dr. Jesus Padilla is a senior psychologist specialist
at Atascadero who was involved in a literature review and
study of the effects of antiandrogen use on ability to
achieve erection. See page 13 post.
[fn6] Dr. Vicary concluded that appellant qualifies as a
SVP, with a risk of reoffending of 10 to 20 percent. If
appellant returned to substance abuse, he would be a far
greater risk. Several years earlier, Dr. Vicary had
expressed the view that appellant was no longer a SVP. He
explained that that was because the standard then was
whether it was more likely than not that he would reoffend.
The standard has since become more stringent, requiring
that there be a substantial danger that he would reoffend.
[fn7] Given this conclusion, we need not decide the
constitutionality of imposing the burden on appellant to
establish entitlement to conditional release.
[fn8] In September 2006, as emergency legislation, the
Legislature amended section 6604 to provide for an
indeterminate term of commitment, adding other provisions
to the SVPA to insure regular review of the SVP’s continued
status as such. (Stats. 2006, ch. 337, § 55.)
[fn9] Noting that neither section 6602 nor its legislative
history provides any guidance on the applicable standard of
review of a ruling at a section 6602 probable cause
hearing, the California Supreme Court determined in Cooley
v. Superior Court (2002) 29 Cal.4th 228 (Cooley) that that
context presents a mixed question of law and fact analogous
to that presented at a criminal preliminary hearing where
the legal determination of probable cause must be made from
factual findings. (Id. at p. 257.) The findings of fact, if
the trial court avails itself of its power to render such
findings, are reviewed for substantial evidence and, if
not, the review is independent, appropriate for questions
of law.
We do not find Cooley’s analysis applicable here. The trial
court is not called upon at a conditional release hearing
under section 6608 to make a legal determination of
probable cause. Rather, it must decide the disputed factual
question of whether the appellant is likely to reoffend if
released.
[fn10] See footnote 8, ante.