People v. Poe

• Decision Date: 30 August 1999
• Docket Number: No. A083416,A083416
• Citation: 88 Cal.Rptr.2d 437,74 Cal.App.4th 826
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 7237, 1999 Daily Journal D.A.R. 9207 The PEOPLE, Plaintiff and Respondent, v. Iran Roger POE, Defendant and Appellant.

Page 437

88 Cal.Rptr.2d 437

74 Cal.App.4th 826, 99 Cal. Daily Op. Serv. 7237,

1999 Daily Journal D.A.R. 9207

The PEOPLE, Plaintiff and Respondent, v. Iran Roger POE, Defendant and Appellant.

No. A083416.

Court of Appeal, First District, Division 1, California.

Aug. 30, 1999.

Matthew H. Wilson, San Francisco, First District Appellate Project, Attorneys for Appellant.

Bill Lockyer, Attorney General, David Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Superivising Deputy Attorney General, Gregg E. Zywicke, Deputy Attorney General, Attorneys for Respondent.

STEIN, Acting P.J.

The court declared Iran Roger Poe a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6600, after a court trial, and committed appellant to the Department of Mental Health for two years.

His primary contention on appeal is that there was insufficient evidence to support the court's finding that it was "likely" he would engage in sexually violent criminal conduct if released. (Welf. & Inst.Code, § 6600.) Appellant also raises a series of constitutional challenges to the Sexually Violent Predator Act (SVP Act) that have since been resolved against him, in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584. Finally, he contends that he is entitled to precommitment custody credits for the time in custody after his expected release date from prison, until the date upon which he was committed as a SVP.

We shall conclude that appellant's contentions are without merit, and affirm the court's order.

ANALYSIS

I. Sufficiency of the Evidence

At trial the People bore the burden of proving beyond a reasonable doubt that: (1) appellant had been convicted of at least two separate sexually violent offenses; (2) that he has a "diagnosed mental disorder," and (3) that his mental disorder made it likely that he will engage in sexually violent behavior if released. (Welf. & Inst.Code, § 6600; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584.)

Appellant does not challenge the sufficiency of the evidence that he had at least two convictions for qualifying sexual offenses. Nor does he challenge the sufficiency of the evidence that he had a diagnosed mental disorder. ¹ Instead, he contends At trial two experts, Dr. Malinek and Dr. Franks explained in detail the bases of their separate opinions, following a clinical evaluation of appellant, and a review of his criminal record, and mental health history, and actuarial data, that he was likely to reoffend. They also used a recently developed scale to assess the risk of sexual recidivism. The scale is called Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR). Dr. Malinek and Dr. Franks calculated a score of four on the RRASOR scale applied to appellant, which, prior to adjustment for other clinical factors, meant that the risk that he would engage in sexually violent behavior over the next 10 years was 48.6 percent.

that the finding that he is "likely to engage in sexually violent behavior" is not supported by substantial evidence. In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. (People v. Mercer (1999) 70 Cal.App.4th 463, 466, 82 Cal.Rptr.2d 723.)

Appellant's own expert, Dr. Podboy, did not conduct a clinical evaluation of appellant. In his opinion appellant should have received a score of three on the RRASOR scale, indicating a 24.8 percent chance of recidivism within five years, and a 36.9 percent chance within 10 years. He also criticized some of the categorizations underlying the RRASOR scale. Dr. Podboy testified that appellant was less likely to reoffend because he was now in his forties, and more likely to slow down, and be less angry.

The trial court resolved the conflict by crediting the testimony of Drs. Malinek and Franks. Their testimony is substantial evidence supporting the conclusion that appellant was likely to engage in sexually violent behavior. It is not the role of this court to redetermine the credibility of experts or to reweigh the relative strength of their conclusions. (People v. Mercer, supra, 70 Cal.App.4th at pp. 466-467, 82 Cal.Rptr.2d 723.)

Appellant nevertheless argues, that the court's finding that he was likely to reoffend is not supported by the opinions of Drs. Malinek and Franks, because both experts reported that, using the RRASOR scale, the risk that he would engage in such behavior over the next 10 years was 48.6 percent. Appellant argues that, as a matter of law, any percentage under 50 percent is not "likely." It is unnecessary to engage in a debate about what minimum percent risk using this scale would support the conclusion that it is likely that person will reoffend, because all the experts who testified, including Dr. Podboy, agreed that the numerical results of this scale should not be used in isolation when assessing the likelihood of reoffending. Dr. Franks explained that the RRASOR evaluation "doesn't consider a wealth of other information which has been shown to correlate with reoffense." For example, it does not consider whether the offender has any insight into his past behavior, or whether he had any empathy for his victims, his coping mechanisms, his work skills, or his drug addiction. The experts agreed that the proper application of the RRASOR was an "adjusted actuarial approach," in which the RRASOR actuarial data, is used as a base, that is adjusted by assessing and weighing appropriate clinical factors. Using this approach, both Dr. Malinek and Dr. Franks concluded that the risk of appellant reoffending was higher than 50 percent.

Appellant also argues that Dr. Malinek and Dr. Franks based their opinion that he was likely to engage in sexually violent behavior primarily upon his prior qualifying sex offenses, and argues that the opinion

must be based upon more than evidence of his prior qualifying convictions, otherwise the finding that he is "likely" to reoffend is a foregone conclusion. The record establishes that the experts did not rely solely, or even primarily, upon the fact that appellant had two convictions for qualifying sexual offenses in reaching their conclusion that he was likely to engage in sexually violent behavior. Both experts testified that the best predictor of future behavior was the length of the history of sexual offenses, and the number of sexual offenses. They also identified a multitude of other factors, and applied them to their evaluation of appellant. For example, the longer the period over which sexual offenses are committed, and the younger the offender at the onset of this behavior, the more likely it is that the person will reoffend. Other factors increasing the likelihood of reoffending include, lack of cooperation with supervision or parole, choosing strangers, as opposed to family members, as victims, and the absence of marital ties. Applying these factors to their clinical evaluation of appellant, both experts noted that appellant was very young, only 15 when he committed his first sexual offense, and his pattern of aggressive conduct continued over many years, ² including engaging in threatening conduct towards female prison staff. They also observed that he did not adjust well, even to the structured environment of prison, where he had spent approximately 18, of the last 22 years, continued to engage in substance abuse in prison, ³ and received several disciplinary write-ups. His performance on parole was poor, and several of his parole violations were alcohol related. Appellant's victims were all strangers to him, and appellant continued to express a great deal of anger. Appellant also was not married. All of these foregoing factors were strong indicators that appellant was likely to reoffend.

II. Constitutional Challenge to Sexually Violent Predator Act

Appellant next raises a series of challenges to the Sexually Violent Predator Act. Specifically, he contends that the Sexually Violent Predator Act violates state and federal due process rights by (1) authorizing involuntary commitments for inmates who are not mentally ill; (2) allowing for commitment without any proof of present dangerousness, and based only upon a preponderance of the evidence. He also contends that the Sexually Violent Predator Act violates constitutional protection against ex post facto laws.

Each of these arguments was considered, and rejected, by our Supreme Court, in Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584, which was filed after appellant filed his opening brief. The court, in Hubbart, also rejected appellant's related equal protection argument that the SVP Act imposes disparate treatment when compared to persons involuntarily committed as a mentally disordered offender (MDO) (Pen.Code, § 2960 et seq.) by requiring a finding that the person " 'is likely' " to commit violent sex crimes, whereas the MDO commitment requires a present threat of harm. (Id. at pp. 1168-1170, 81 Cal.Rptr.2d 492, 969 P.2d 584.) ⁴ No purpose would be served by reiterating or reconsidering the court's reasoning here, because we are bound to follow our Appellant also contends that the SVP Act violates state and federal equal protection clauses, by imposing disparate treatment when compared to an MDO commitment by (1) not excluding personality and adjustment orders; (2) not requiring a recent objective basis for finding the person is likely to reoffend; and (3) not offering treatment during the inmate's prison term. The Supreme Court did not decide these equal protection arguments in Hubbart, because they were not timely raised. (Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 1170, fn. 31, 81 Cal.Rptr.2d 492, 969...