People v. McCloud, A132798

CourtCalifornia Court of Appeals
Writing for the CourtLambden
Citation213 Cal.App.4th 1076,153 Cal.Rptr.3d 10
PartiesThe PEOPLE, Plaintiff and Respondent, v. Byron MCCLOUD, Defendant and Appellant.
Docket NumberA132798
Decision Date22 May 2013

?213 Cal.App.4th 1076
153 Cal.Rptr.3d 10

The PEOPLE, Plaintiff and Respondent,
Byron MCCLOUD, Defendant and Appellant.


Court of Appeal, First District, Division 2, California.

Filed January 17, 2013
Review Denied May 22, 2013

Affirmed; remanded.

See 3 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) Punishment, § 175 et seq.

Solano County Superior Court, Hon. Donna Stashyn (Solano County Super. Ct. No. VC31353)

Julia J. Spikes, Sebastopol, Under Appointment by the Court of Appeal for Defendant and Appellant
Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Moona Nandi, Deputy Attorney General for Plaintiff and Respondent
Lambden, J.

[213 Cal.App.4th 1078]

Byron McCloud appeals from the order of the trial court, following a jury trial, committing him to the custody of the Department of Mental Health (DMH), pursuant to provisions of the Sexually Violent Predator Act (SVPA),

[213 Cal.App.4th 1079]

Welfare and Institutions Code sections 6600 et seq. 1 McCloud contends that two provisions of the SVPA violate his due process and equal protection rights under the United States Constitution: (1) that commitments are for an indeterminate term, rather than for a fixed term, with the burden placed on the committee, if the DMH opposes release, to show that he or she is no longer a sexually violent predator (SVP) and (2) that when a committee petitions for release and the trial court determines that the petition is frivolous, the trial court may dismiss the petition without a hearing. Additionally, McCloud maintains that the jury's determination that he is an SVP was not supported by sufficient evidence.

We conclude that McCloud's due process claims are foreclosed by People v. McKee (2010) 47 Cal.4th 1172, 104 Cal.Rptr.3d 427, 223 P.3d 566 ( McKee I ). We concur with the finding of the court in People v. McKee (2012) 207 Cal.App.4th 1325, 144 Cal.Rptr.3d 308 ( McKee II ) (review den. Oct. 10, 2012, S204503), that the SVPA's provisions for indeterminate commitments and burden of proof do not violate a committee's right to equal protection. We conclude that substantial evidence supported the jury's determination that McCloud is an SVP. Accordingly, we affirm the order of the trial court committing McCloud to the custody of the DMH.

However, McCloud's remaining issue on appeal, that the SVPA's provision allowing dismissal of a frivolous petition for release without a hearing violates his right to equal protection, is not meritless on its face. We remand to the trial court for further proceedings regarding that issue.

Addressing the second criterion, Owen diagnosed appellant with paraphilia not otherwise specified (paraphilia NOS) and antisocial personality disorder (APD). He also diagnosed heroin dependence and cocaine dependence, in remission while in custody.

Dr. Owen commented, without disagreement, about a published paper concerning paraphilia NOS that suggested the diagnosis “would require considerable evidence documenting the rapes, reflected paraphilic urges and fantasies linking the coercion to arousal.” Owen believed, however, that in most cases a clinician would “have to analyze [an individual's] behavior looking for patterns of conduct that might reflect underlying sexually deviant urges or fantasies.” Owen believed that the fact that McCloud had committed six crimes indicated that he derived pleasure from forcing his victims to engage in sexual acts. In his 1991 offense, McCloud had the victim take off her clothes, drink whiskey, and parade through the house, patting her on the buttocks and talking to her about rape. McCloud told Owen that he enjoyed humiliating this victim. Owen thought it significant that McCloud talked to the victim about raping her before acting, believing that this reflected underlying urges. Owen believed that the fact that McCloud committed his sixth offense so soon after his release from prison showed “that he's probably thought about continuing with the same conduct and, in fact, did. So I think

[213 Cal.App.4th 1081]

we can infer the presence of urges.” In short, said Owen, “[t]he pattern of conduct is so similar in all of these cases that I think we can't conclude anything but the fact that he is aroused through coercive sexual acts with nonconsenting stranger victims.”

Owen acknowledged that McCloud had not committed any offenses from 1992 to the present, but believed this was not meaningful because he was in custody the entire time. According to Owen, paraphilia tends to be a longstanding, chronic condition. The condition can wax and wane with stress, opportunity to offend, and confinement, but does not generally dissipate on its own without treatment, and McCloud had not engaged in any therapy that would alter his interest in rape, even though treatment was available to him where he was currently housed. In Owen's opinion, McCloud currently suffered from paraphilia, even if he was not exhibiting symptoms or having fantasies or urges at the moment.

For the third criterion, Owen opined that without custody and treatment, McCloud would be likely to reoffend. McCloud's APD amplified his paraphilia because his callous, impulsive nature made him more aggressive and thus predisposed him to sexually reoffend. Owen said that outpatient treatment would not be appropriate for McCloud because the pathology was too serious and deep, because McCloud had never sought outpatient sex offender treatment, and because McCloud did not believe he needed sex offender treatment. The risk assessment instruments that Owen used put McCloud in the group at high risk for reoffense.

Psychologist Garrett Essres testified as a second expert for the People. He diagnosed McCloud as currently suffering from paraphilia NOS, alcohol abuse, and APD. According to Essres, the majority of rapists are not paraphiliacs. Paraphilic rapists engage in sexually assaultive behavior because they are excited by the victim's distress, hurt, and resistance. The fact that McCloud was able to get and maintain an erection six times under these circumstances suggested he suffered from paraphilia. In addition, at least twice in his lifetime, McCloud had requested therapy, indicating that he felt he had a problem he needed help with. Other factors supporting his diagnosis included: (1) the fact that McCloud committed the first five rapes in a short period of time, indicating an intense focus on this type of behavior; (2) the fact that McCloud had a girlfriend but chose forced sex over consensual sex; and (3) the fact that McCloud returned to sexually assaultive behavior a short time after being released from a long prison sentence, this time with an elderly victim, whom most people would not see as a candidate for arousal by a man his age.

[213 Cal.App.4th 1082]

According to Essres, paraphilia tends to be a chronic, lifelong condition. McCloud was not currently exhibiting paraphilic behaviors because he was in a confined environment, but in Essres's opinion, he nevertheless currently suffered from paraphilia.

Essres testified that McCloud's disorders affected his emotional and volitional capacity and predisposed him to commit sexually violent acts. He based this opinion on McCloud's having committed such acts in the past, and being severely sanctioned, yet repeating the behavior soon after release, indicating that he had difficulty controlling his behavior. McCloud's APD helped predispose him to act on his paraphilia. In Essres's opinion, McCloud was likely to engage in sexually violent criminal predatory behavior if released into the community.

Essres used a variety of actuarial tools to assess McCloud's risk of reoffense. Each of the risk assessment tools put appellant in the high risk category. Essres acknowledged that the Static–99, and its recent revision, the Static–2002R—both assessment tools for risk of re-offense—are only moderately accurate predictors of future risk.

McCloud presented testimony from three experts, a staff member from the hospital at which he was confined, and one of the authors of the DSM.

Dr. Brian Abbott, a clinical psychologist and licensed clinical social worker, did not diagnose McCloud with paraphilia, but did find that he had APD. Abbott believed that McCloud's offending behavior was more consistent with his APD than with paraphilia NOS. He stated that to prove that someone is committing rape of a paraphilic nature, a psychologist would have to prove that there are fantasies or urges, related to engaging in nonconsenting sex, that are behind the behavior. In his opinion, the diagnosis of paraphilia could not be made based solely on behaviors, without evidence of urges or fantasies. Abbott also testified that there was no evidence of a “current” paraphilic condition or APD, as required by the statute, as McCloud had engaged in no conduct consistent with these diagnoses since at least 2000. Abbott stated that all of McCloud's criminal conduct, including the rapes, could be attributed to his APD, which the doctor considered to be in full remission. Abbott testified that neither APD nor substance abuse qualifies as a mental disorder making McCloud more likely to commit a sexually violent offense. Dr. Abbott also stated that there is no support for the assertion that paraphilia NOS tends to be chronic and lifelong.

Dr. Allen Frances, a psychiatrist and one of the authors of the DSM, testified that the diagnosis of coercive paraphilia was rejected four times

[213 Cal.App.4th 1083]

because: (1) there had been little research into such a diagnosis; (2) there was no clinical need for the diagnosis; and (3) it might be used to excuse criminal behavior. He stated that the diagnosis of paraphilia NOS, for rape, would only apply to the rapist “who can't get sexually excited except as being part of rape. It has to be that specific.” He...

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