People v. Rasmuson

• Decision Date: 21 December 2006
• Docket Number: No. B183616.,B183616.
• Citation: 145 Cal.App.4th 1487,52 Cal.Rptr.3d 598
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kenneth RASMUSON, Defendant and Appellant.

52 Cal.Rptr.3d 598

145 Cal.App.4th 1487

The PEOPLE, Plaintiff and Respondent, v. Kenneth RASMUSON, Defendant and Appellant.

No. B183616.

Court of Appeal, Second District, Division 2.

December 21, 2006.

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. & InstCode, § 6600 et. seq.),¹ 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.² 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,³ 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...