People v. Meyers, C058368 (Cal. App. 8/10/2009)

• Decision Date: 10 August 2009
• Docket Number: C058368.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. TERRY JAY MEYERS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. TERRY JAY MEYERS, Defendant and Appellant.

C058368.

Court of Appeals of California, Third Appellate District, Shasta.

August 10, 2009.

Not to be Published

Appeal from the Super. Ct. No. 87F5638.

SCOTLAND, P. J.

Defendant Terry Meyers appeals from an order involuntarily recommitting him to an indeterminate term in the custody of the Department of Mental Health (the Department) as a sexually violent predator (SVP) pursuant to the amended Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et. seq.; further section references are to the Welfare and Institutions Code unless otherwise specified.) He contends that the order must be reversed because (1) a prosecution expert's testimony shifted the burden of proof on a critical element and must be discounted, which means the order is not supported by substantial evidence; (2) his recommitment was based upon the Department's illegal use of underground regulations in the evaluation and screening process; and (3) the amended SVPA violates various constitutional rights and provisions, including due process, the ex post facto clause, equal protection, and the First Amendment. We shall affirm the judgment.

FACTS

The prosecution presented the testimony of two experts, Dr. Nancy Rueschenberg, a licensed clinical psychologist, and Dr. Jeffrey Davis, a licensed psychologist, who both concluded that defendant met the criteria for commitment as an SVP.

Dr. Rueschenberg interviewed and evaluated defendant in January 2007. In October 2007, she prepared an updated evaluation based upon a review of defendant's records because he refused to meet with her. She opined that defendant met the first criterion for commitment as an SVP because he had been convicted of committing a sexually violent offense against one or more victims. He was convicted of forcible rape of a stranger in Oregon in 1973, forcible rape of a stranger or casual acquaintance in Shasta County in 1982, and attempted rape of a casual acquaintance while he was on parole in 1987.

Dr. Rueschenberg diagnosed defendant as suffering from paraphilia (a sexual disorder) not otherwise specified (NOS) with nonconsenting female adults; alcohol dependence in remission in a controlled environment; and a personality disorder NOS, with antisocial and narcissistic features. She opined that he had demonstrated a lack of volitional control over his behavior, as evidenced by the fact he had been sanctioned repeatedly for inappropriate sexual behavior and yet had continued to reoffend. He had not expressed much remorse for his victims; "mostly he blamed them or felt they'd asked for it, or they had lied." Dr. Rueschenberg explained that paraphilia tends to be chronic and long term. A person can learn to control paraphilia with extensive treatment, "but the very core of it never goes away."

Based on various factors, Dr. Rueschenberg concluded there was a serious and well-founded risk defendant would reoffend. The Static-99, an actuarial instrument used to assess the risk of reoffense, indicated that defendant was in the medium-high risk category. She also considered several static and dynamic factors not accounted for by the Static-99, factors which were consistent with placing defendant in the medium-high risk range. Defendant had a sex drive preoccupation, as evidenced by his self-reported 150 to 200 partners and his three convictions. Defendant had "a sense of sort of entitlement that he could take what he wanted." He lacked any "protective factors" mitigating the chance of a person sexually reoffending. Although defendant was 57, he was in good health overall. Unless a person is over the age of 60 and in poor health, an adjustment in the risk of reoffending is not warranted.

Dr. Rueschenberg stated that the Department's treatment program for SVPs consist of five stages, the first four of which are in-patient. Defendant had been in phase two of treatment for a time, but was no longer involved in treatment at the time of trial. Dr. Rueschenberg opined that defendant was unlikely to continue treatment on his own in the community, given his failure to take advantage of treatment options in a strictly controlled environment.

The prosecution's other expert, Dr. Davis, evaluated defendant in August 2005 and prepared two updated evaluations about one year apart. In completing these evaluations, he met with defendant three times and reviewed his records. Dr. Davis opined that defendant met the first criterion for commitment as an SVP based upon his criminal history. He diagnosed defendant as suffering from a paraphilia NOS with nonconsenting persons, alcohol abuse, and antisocial personality disorder. Dr. Davis opined that defendant lacked volitional control and was predisposed to the commission of criminal sexual acts. He explained that paraphilias are "chronic durable disorders" which do not "just . . . go away." The goal is to manage the disorder rather than to cure it.

Dr. Davis agreed with Dr. Rueschenberg that there was a serious and well-founded risk that defendant would reoffend in a sexually violent predatory manner. He based his opinion on defendant's Static-99 score, which placed defendant in the medium-high level of risk of reoffense. Dr. Davis considered other factors to determine if an adjustment to the actuarial estimate was warranted, but concluded an adjustment was not appropriate based on defendant's failure to complete the Department's treatment program. Although a decreased risk of reoffense might be expected at age 57, defendant was an energetic man who still had ample anger toward women, which prevented his age from being a significant protective or mitigating factor. Dr. Davis doubted that defendant would begin outpatient treatment on his own in the community because he adamantly denied having a disorder and terminated treatment while in the custody of the Department.

Two psychologists, Dr. Jeremy Coles and Dr. Michele Reed, testified on behalf of defendant. Both agreed that defendant had been convicted of a sexually violent offense against one or more victims and suffered from paraphilia NOS with nonconsenting persons and an antisocial personality disorder. They had opined previously that defendant met the criteria for an SVP, with Dr. Cole reaching this conclusion in 2005 and Dr. Reed doing so in January 2007. However, they no longer believed that defendant posed a serious and substantial risk of reoffense. Their opinions were based primarily on defendant's age because he was "closing in on fifty-eight." Dr. Coles pointed to the fact that "age research is new and is suggesting that individuals that have sexual disorders and commit sex crimes reoffend at lower rates the older they get. Specifically, people that are committing sexual assaults of adults." Dr. Reed added that there were a number of problems with the Department's treatment program, which is based on a "relapse prevention model" and had not proved to be "particularly effective in helping to reduce recidivism."

Female employees who had contact with defendant while he was at Coalinga State Hospital testified for the defense as character witnesses, describing defendant as compliant with hospital rules, remorseful for his past behavior, and respectful toward the female staff.

Defendant testified and denied he suffered from paraphilia NOS. If he were released into the community, his release plan would be to avoid "lower companionship," which he described as "a bag whore or a crank whore . . .; a woman who sells her body for a little bit of crank."

DISCUSSION

I

An SVP is "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).) "An SVP extension hearing is a new and independent proceeding at which, with limited exceptions, the petitioner must prove the defendant meets the criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous." (People v. Munoz (2005) 129 Cal.App.4th 421, 429 (hereafter Munoz).)

Relying on Munoz, defendant contends the evidence is insufficient to support the jury's finding that his disorder currently caused him to be dangerous and likely to engage in sexually violent criminal behavior if released. He points out that when his attorney questioned Dr. Rueschenberg about what evidence she had to support her current clinical diagnosis of defendant, she replied: "It's more that I have a lack of evidence to conclude that he no longer suffers from the disorder. The fact that he hasn't acted out in a strictly controlled environment is not evidence that he no longer suffers from that disorder." According to defendant, "R[ue]schenberg's testimony lessened the prosecution's burden [of proof] by suggesting to the jury that substantial evidence of a current mental disorder could simply be presumed from a past diagnosis and commitment. Since the evidence in this case was equally divided on the issue, R[ue]schenberg's `diagnosis' amounted to, as Munoz held, a presumption which impermissibly shifted the burden of proof and violated [defendant's] rights to due process."

Defendant's argument is not supported by the record, when viewed in context, and Munoz is distinguishable.

In Munoz, two doctors testified that David Munoz suffered from paraphilia; that because of this disorder he had difficulty controlling his deviant behavior; and that if he were released he would likely engage in future violent, predatory behavior. (Munoz, supra, 129 Cal.App.4th at p. 425.) Munoz presented two doctors who testified he did not suffer from a disorder such as paraphilia or pedophilia which would predispose him to commit sexual offenses. (Id. at pp. 425-426.) The trial court permitted the prosecution...