P. v. Stewart

Filed 11/29/05 P. v. Stewart CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. JEFFREY STEWART, Defendant and Appellant.

2d Crim. No. B182176 (Super. Ct. No. F366796) (San Luis Obispo County)

Jeffrey Stewart appeals an order determining him to be a mentally disordered offender (MDO), and committing him to the Department of Mental Health for treatment. (Pen. Code, § 2962 et seq.)^[1] We affirm.

FACTS AND PROCEDURAL HISTORY

In 1996, the Los Angeles Superior Court convicted Stewart of the continuous sexual abuse of a child. (§ 288.5.) Stewart, a friend of the ten-year-old victim's family, molested the victim several times over the course of seven months. When arrested, Stewart stated to police officers: "When I see a woman like [the victim,] I lose control." The court sentenced Stewart to six years' imprisonment.

On December 13, 2004, the Board of Prison Terms determined that Stewart was an MDO pursuant to the criteria of section 2962. As a condition of parole, it required him to accept treatment from the Department of Mental Health. Stewart filed a petition pursuant to section 2966, subdivision (b), to contest the decision of the Board of Prison Terms. A court trial followed.

The trial court received written psychological evaluations regarding Stewart from four psychologists. Doctors Michael Selby, Robert Sargent, and Barbara Stark opined that Stewart suffers from pedophilia as well as psychotic disorder N.O.S., and that he is an MDO pursuant to each criterion of section 2962.

In particular, Doctor Selby opined that Stewart received 90 days of psychiatric treatment within the past year for pedophilia. (§ 2962, subd. (c).) Selby stated that Stewart received general mental health services at the Department of Corrections regarding "relapse prevention." He reasoned: "The relapse prevention model used in non-sex offender treatments is virtually identical to those labeled Sex Offender Treatment."

In contrast, Doctor John Hupka opined that Stewart suffers only from the severe mental disorder of pedophilia. Hupka stated that Stewart did not receive treatment for pedophilia within the year prior to the Board of Prison Terms hearing, and that he does not present a substantial danger of physical harm to others by reason of his severe mental disorder.

At trial, Doctor Selby testified that he interviewed Stewart and reviewed his prison and hospital records. He elaborated upon his written evaluation and stated that Stewart had not received any mental health treatment "specifically designed for sex offenders," but did receive relapse prevention treatment designed to teach him skills "to deal with high risk situations."

Doctor Deidre D'Orazio, staff psychologist at Atascadero State Hospital, had treated Stewart for approximately five months. She opined that he suffers from pedophilia and schizoaffective disorder. Stewart's symptoms include mood lability, impulsive behavior, impaired thinking, auditory hallucinations, and severe paranoia. D'Orazio stated that Stewart had received treatment for schizoaffective disorder, but not pedophilia. She opined that Stewart suffers from "severe psychiatric impairment" and that his psychosis demands treatment prior to treatment for pedophilia. D'Orazio explained that treatment for pedophilia requires "minimum requirements and standards of being able to control one's behavior [and] thought processes."

Doctor Barbara Stark testified that she interviewed Stewart and reviewed his prison and hospital records. She opined that he suffers from a psychotic disorder and pedophilia. Stark believed that Stewart was "too psychotic" to commence a sex offender treatment program. She stated that the psychosis makes "it impossible for him to comprehend, to have any contact with reality, and to be able to participate in [a] sex offender's treatment program."

The trial court determined that Stewart met the requirements of section 2962, subdivision (d)(1), beyond a reasonable doubt. In ruling, the trial judge stated that "[T]he evidence was very compelling . . . that before Mr. Stewart can receive effective sex offender treatment and therapeutic treatment, he needs to have [his] psychosis and his psychotic disorder stabilized." The court committed him to the Department of Mental Health for treatment.

Stewart appeals and contends that insufficient evidence exists that he received 90 days of treatment for pedophilia prior to his parole release date.

DISCUSSION

I.

Stewart argues that the evidence is insufficient to establish that he had been "in treatment for the severe mental disorder for 90 days or more within the year prior to [his] parole or release." (§ 2962, subd. (c).) He points to the written psychological evaluations reporting that he received treatment for different psychotic disorders, but not pedophilia. (People v. Garcia (2005) 127 Cal.App.4th 558, 567 ["The mental disorder for which extended involuntary treatment is sought must be the same mental disorder for which defendant was treated as a condition of his parole"]; People v. Sheek (2004) 122 Cal.App.4th 1606, 1610-1611 [evidence insufficient to show defendant received 90 days of treatment for pedophilia].) Stewart adds that the treatment for his pedophilia must be more than incidental to satisfy section 2962, subdivision (c). (People v. Sheek, supra, 122 Cal.App.4th 1606, 1611.)

In reviewing the sufficiency of evidence to support an order made in MDO proceedings, we review the entire record to determine if reasonable and credible evidence supports the decision of the trier of fact. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082; People v. Miller (1994) 25 Cal.App.4th 913, 919-920.) We view the evidence and draw all reasonable inferences therefrom in favor of the order. (Ibid.) We do not reweigh the evidence nor do we substitute our decision for that of the trier of fact. (People v. Clark, supra, 82 Cal.App.4th 1072, 1082-1083.) The trier of fact is not bound by a particular expert's opinion or the reasons given in support of the opinion. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923.)

Sufficient evidence and all reasonable inferences therefrom support the trial court's finding that Stewart received 90 days of treatment for pedophilia "within the year prior to [his] parole or release." (§ 2962, subd. (c).) The trial court specifically found that Stewart's psychosis required treatment and stabilization before he could receive treatment for pedophilia. Doctor D'Orazio testified that Stewart suffers from "severe psychiatric impairment," characterized by symptoms of impaired thinking, auditory hallucinations, and severe paranoia. D'Orazio also explained that treatment for pedophilia requires "minimum requirements and standards of being able to control one's behavior [and] thought processes." Treatment of Stewart's unstable psychosis is a necessary step prior to sex offender therapy. It is a reasonable inference from the evidence that therapy intended to teach the patient skills "to deal with high risk [sexual] situations," is ineffective and useless to a floridly psychotic patient.

People v. Garcia, supra, 127 Cal.App.4th 558, and People v. Sheek, supra, 122 Cal.App.4th 1606, are not helpful to Stewart. Garcia concluded that the prosecutor may not seek an extended MDO commitment based upon "an entirely new mental disorder . . . for which defendant had never received treatment." (People v. Garcia, supra, 127 Cal.App.4th 558, 567.) Sheek held that the defendant must receive more than incidental treatment for a severe mental disorder within section 2962. (People v. Sheek, supra, 122 Cal.App.4th 1606, 1611 [medication for depression incidentally affecting libido is insufficient treatment for pedophilia within § 2962, subd. (c)].) Here Stewart has received extensive treatment for psychosis with the goal of stabilizing his severe mental disorder so that he can receive effective treatment for pedophilia.

In People v. Starr (2003) 106 Cal.App.4th 1202, 1205-1207, we concluded that pedophilia is a severe mental disorder within the MDO law. We reasoned that the Legislature used a broad definition of "severe mental disorder," and that it expressly included child molestation as an underlying offense for purposes of the MDO law. (§ 2962, subd. (e)(2)(I-J).) Doctors Selby, Sargent, Stark, and D'Orazio opined that Stewart was a pedophile and that he satisfied each requirement of section 2962. Their expert opinions constitute substantial evidence that Stewart suffers from pedophilia and fulfills the MDO criteria.

The commitment order is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Charles S. Crandall, Judge

Superior Court County of San Luis Obispo

______________________________

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Sharlene A. Honnaka, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code.