California Cases March 23, 2021: People v. Sutton

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court , rule 8.1115(a) , prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published , except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 97WF1979)

OPINION

Appeal from a postjudgment order of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Joy Utomi and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

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In January 1998, Sutton pleaded guilty to committing a lewd act on a child under 14 years old (Pen. Code, § 288, subd. (a); all further statutory references are to the Penal Code unless stated otherwise), and was given five years' probation. After Sutton committed multiple parole violations, the trial court sentenced him to three years in prison. In February 2004, Sutton was determined to be a mentally disorder offender (MDO). He was committed to the Department of Mental Health and admitted to Coalinga State Hospital for supervised mental health treatment.

On June 4, 2019, the district attorney petitioned to extend Sutton's commitment for one year (§ 2970). Sutton waived his right to a jury trial. Following a court trial, the trial court granted the petition, finding beyond a reasonable doubt Sutton suffers from a severe mental disorder that is not in remission, and as a result he presents a substantial danger of physical harm to others. It denied Sutton outpatient treatment and ordered him to remain hospitalized.

Sutton contends we must reverse the trial court's order because: (1) the evidence is insufficient to support the trial court's finding he presents a substantial risk of physical harm to others; (2) the trial court failed to follow the applicable "reasonable cause" standard when it determined he was not suitable for outpatient treatment; and (3) the evidence is insufficient to support the trial court's determination there was no reasonable cause to believe outpatient treatment would be safe and effective. As discussed below, we conclude substantial evidence supported the trial court's determinations, and Sutton has not shown the trial court applied the wrong legal standard in denying outpatient treatment. Accordingly, we affirm.

At trial, Dr. Robert Wagner, a psychologist, testified he works at Coalinga State Hospital, but is not part of Sutton's treatment team. For the past eight years,

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Wagner prepared yearly evaluations on extending Sutton's commitment. As part of the evaluation process, Wagner reviews Sutton's criminal and medical treatment history, consults hospital staff, and conducts a face-to-face interview with Sutton.

Wagner testified Sutton was convicted of committing a lewd act on a child under age 14. Sutton had been living with the victim's family and baby-sitting for them. The victim's father discovered Sutton inserting a finger into the sleeping five-year old victim's vagina. Sutton also disclosed several prior uncharged incidents of "sexual play" with other children. Although Sutton did not provide any dates or names, Wagner testified Sutton had been sent to Camarillo State Hospital when he was 15 years old due to an incident with a five-year old child.

Sutton, currently 67 years old, is intellectually disabled and has a 67 IQ score. According to Wagner, Sutton's mental disability hinders his abstract thinking, lowers his ability to insightfully self-reflect, and makes adherence to rules more difficult.

Sutton has pedophilic disorder, meaning he is sexually attracted to prepubescent children. Although this illness cannot be cured and never goes into remission, it can be controlled through therapy, support groups, and medication. Sutton, however, was not following his treatment plan when Wagner prepared his most recent evaluation. Sutton also suffers from major depressive disorder, which is currently in remission. This disorder often manifests as despondency, poor concentration, and difficulty following through on tasks.

Except for a verbal threat to stab another patient five years ago, Sutton has not been violent or threatened violence during his hospitalization. Sutton, however, has committed numerous minor rules violations, such as possessing a credit card and receiving packages for other patients. Sutton also used racial epithets with Black patients and staff.

Wagner testified that one of the goals of the state hospital system is to prepare patients for outpatient treatment, either through supervised conditional release

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into the community (CONREP) or unconditional release. In Wagner's opinion, Sutton poses a substantial risk of physical harm to others due to his mental illness. Sutton scored minus one on the Static-99R test, which takes into account Sutton's current age and criminal history but not uncharged conduct. The score indicates that Sutton is similar to a group of other male offenders who have a 1.9 percent chance of reoffending within five years. Although Sutton has vowed never to reoffend, Wagner believed Sutton's regular violations of hospital rules makes him "very difficult to trust." Finally, Wagner testified he was concerned Sutton would not continue his treatment if he was unsupervised while in the community because he was not attending group therapy sessions regularly.

Although Sutton is not suitable for unsupervised release, Wagner opined that Sutton is an excellent candidate for CONREP because Sutton could be "managed in the community under supervision," and he is willing to take medication and follow a treatment plan.

Following Wagner's testimony, Sutton asked the trial court to consider the possibility of CONREP. In response, the district attorney called Dr. Stacey Berardino, the chief forensic psychologist and community program director for Orange County's CONREP program. Berardino testified the CONREP program currently provides outpatient treatment and supervision for 50 clients and "follow[s] 280 Orange County commitments in the state hospitals," including Sutton. The program conducts visits with MDO's every six months to report on their mental health and progress toward discharge. Berardino testified the typical process for CONREP release starts when the state hospital treatment team recommends a patient to the superior court for the county CONREP program. Upon receiving the recommendation, the court will order an evaluation of the patient's risk to the community and readiness for outpatient treatment. In this case, Sutton's treatment team previously recommended Sutton for CONREP, but has not recommended Sutton for release within the last three years.

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Berardino testified she has known Sutton since 2005 and has visited him over a dozen times, most recently in November 2019. Berardino opined that Sutton cannot be safely and effectively treated in the community for several reasons. First, Sutton has not been fully compliant with his treatment program at the hospital. "If someone is not compliant in a 24-hour restricted facility, the chances of them being compliant with [CONREP] who does not have access to them 24 hours a day and who must rely on their self-report and their compliance independently to keep them symptom free and to keep them from reoffending is very, very slim."

Second, Sutton's ongoing rules violation indicates "he is more motivated for release rather than the treatment and supervision aspects." For CONREP to work, Sutton has to be willing to work with the CONREP staff and comply with their recommendations. However, "[w]hat is happening in the hospital is when they give him direction about behavioral changes that need to happen like not using certain racial epithets, he refuses and says, 'This is how I am, I'm not going to change.'" "When they recommend him to go to a managing mental illness group, which is very important, he just simply does not go to any of them." "When they give him counsel on issues like bartering, he'll tell them, 'I didn't do it,' and somebody will observe him doing it, and he will flat out lie."

Finally, Sutton's view of his crime "causes great concern." "Even in my most recent discussions with Mr. Sutton, he still maintains that the crime occurred because of it being someone else's fault," mainly, the victim's father. It is also "very, very concerning" that Sutton "admits and believes that . . . had his victim been awake she would have enjoyed it."

As for Wagner's opinion that Sutton would be an excellent candidate for CONREP, Berardino testified it is not uncommon for hospital staff to wrongly believe a patient is ready for CONREP because the patient performs well in the hospital setting. Indeed, in 2016, the hospital recommended Sutton for CONREP over Berardino's

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objection, only to rescind that recommendation when Sutton made delusional and violent statements shortly thereafter. Berardino emphasized that completion of available sex offender treatment is a core requirement for CONREP release in Orange County.

Dr. Brenda Elliott, a Coalinga psychologist, testified on Sutton's behalf. Elliott stated Sutton regularly attends and participates in a sex offender treatment program she runs at the hospital. During the treatment sessions, Sutton does not minimize his offense and takes responsibility for his crime. Sutton, however, is only halfway through the program.

Social worker Eugene Yamamoto testified he assists Elliott with the sexual offender treatment program. Yamamoto testified it is against hospital policy to unconditionally release patients who have not completed a sexual offender treatment program. Yamamoto opined that Sutton is suitable for CONREP, but acknowledged he is not part of Sutton's current treatment team, which makes the formal recommendation for CONREP. According to Yamamoto, "[Sutton] is low risk for sexual reoffending with minor children."

Sutton testified in support of his release. Asked whether he felt badly about his crime, he stated: "Yes. It opened my eyes and everything going to county jail. I spent a year-and-a-half in the county jail. I could have gotten killed three or four different times." Later, he testified he accepted full responsible for his crime and would apologize to the victim if given the chance.

Sutton acknowledged he has been diagnosed with pedophilia and major depressive disorder. He further testified he recently has been diagnosed with schizophrenia, but has not been treated for the disorder. Asked what he has learned about managing his mental illness, Sutton failed to provide any specifics and stated he was "trying to remember," explaining his "memory is going." Sutton later testified he would continue going to sex offender treatment and therapy if released unsupervised. He further stated he is willing and able to comply with the treatment requirements of CONREP.

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On cross-examination, Sutton stated he has never been dangerous to children in the past. Asked whether he was dangerous to the children he was babysitting, Sutton answered: "No." On redirect, Sutton clarified that he meant he was never dangerous to the children in a "physical abuse" manner. He admitted he was a danger to the children in a "sexual way."

As noted, the trial court granted the petition to extend Sutton's commitment under section 2970 and denied Sutton's request for admission to CONREP. Sutton challenges both rulings.

A. Extension of MDO Commitment

"Section 2970 permits a district attorney, on the recommendation of medical professionals, to petition to recommit an offender as an MDO for an additional one-year term. An offender will be recommitted if 'the court or jury finds [1] that the patient has a severe mental disorder, [2] that the patient's severe mental disorder is not in remission or cannot be kept in remission without treatment, and [3] that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others.' (§ 2972, subd. (c).)" ( People v . Foster (2019) 7 Cal.5th 1202, 1208.) Sutton does not dispute he has a severe mental disorder that is not in remission (pedophilia), but argues no substantial evidence supported the trial court's finding that he represented a substantial danger of physical harm to others. We disagree.

We must draw all reasonable references, and resolve all conflicts in favor of the judgment. ( People v . Baker (2012) 204 Cal.App.4th 1234, 1244.) Thus, "[i]n considering the sufficiency of the evidence to support MDO findings, an appellate court must determine whether, on the whole record, a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all the evidence in the

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light which is most favorable to the people, and drawing all inferences the trier could reasonably have made to support the finding." ( People v . Clark (2000) 82 Cal.App.4th 1072, 1082.)

Here, Wagner opined Sutton posed a substantial risk of physical harm to children. Wagner based his opinion on Sutton's limited insight into his crime and mental illness, his parole violations, his verbal outburst and threats, and his Static-99R score. Wagner also testified that the Static-99R score does not take into account uncharged offenses, and Sutton has disclosed several uncharged "sexual play" incidents. Wagner's opinion constituted substantial evidence to support the trial court's determination that Sutton posed a substantial risk of physical harm to others. (Cf. People v . Bowers (2006) 145 Cal.App.4th 870, 879 ["A single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant's commitment under section 1026.5 [for insanity]"]; People v . Zapisek (2007) 147 Cal.App.4th 1151, 1165 [same].)

In addition, Sutton's own trial testimony supported the extension of the MDO commitment. When asked whether he felt remorse about his crime, Sutton did not mention the harm to the victim, but rather the risk of harm he faced in county jail. Sutton also initially claimed he presented no danger to children before his attorney reminded him that had molested the five-year old victim. He could not recall any specifics about managing his mental illness, and blamed memory loss. He also claimed to have been diagnosed with schizophrenia, which is not being treated. The trial testimony raises significant doubt that Sutton would be able to control his pedophilia and not harm children if released. In sum, substantial evidence supported the trial court's determination Sutton posed a substantial risk of physical harm to others.

Sutton's reliance on People v . Johnson (2020) 55 Cal.App.5th 96 ( Johnson ) is misplaced. There, the appellate court found substantial evidence did not support the trial court's conclusion that the patient, who was diagnosed with schizophrenia that was

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partially in remission, represented a substantial risk of harm to others. In reaching its conclusion, the court noted that "during appellant's approximately 11 years in the community under CONREP supervision, between 2003 and 2014, there was no evidence of a single violent—or even aggressive—incident," and "the evidence shows that when he did stop taking his medication for two months, although his symptoms of schizophrenia increased, he did not engage in any violent behavior whatsoever." ( Id . at p. 109.) Johnson is distinguishable. Sutton suffers from pedophilia, which will never be in remission, and has never been released into the community. There is no evidence he can control his pedophilic urges if released. In sum, the trial court properly granted the petition to extend Sutton's MDO commitment.

B. Denial of CONREP

Sutton contends the trial court erred in denying him CONREP because it applied the wrong legal standard and insufficient evidence supported the court's determination CONREP could not safely and effectively control and monitor Sutton. We disagree.

Section 2972, subdivision (d), provides: "A person shall be released on outpatient status if the committing court finds that there is reasonable cause to believe that the committed person can be safely and effectively treated on an outpatient basis." The patient bears the burden of proof to show outpatient treatment would be safe and effective. ( People v . Gregerson (2011) 202 Cal.App.4th 306, 316.) "'Reasonable cause' is akin to the 'probable cause' standard . . . . Thus, to obtain outpatient treatment, the patient must raise a strong suspicion in a person of ordinary prudence that outpatient treatment would be safe and effective." ( Id . at p. 319.) "If the [trial] court denies outpatient treatment, its order will be affirmed if substantial evidence shows there was no such reasonable cause." ( Id . at p. 320.)

Noting the trial court was silent on the applicable legal standard when it denied CONREP, Sutton claims the court failed to apply the "reasonable cause" standard.

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On appeal, however, we presume the trial court followed the applicable law and its judgement is correct. ( Cahill v . San Diego Gas & Electric Co . (2011) 194 Cal.App.4th 939, 956.) The court's failure to articulate the applicable legal standard is insufficient to meet Sutton's burden to show error. ( In re Merrick V . (2004) 122 Cal.App.4th 235, 254.)

We also reject Sutton's contention the evidence was insufficient to support denial of CONREP. Sutton's treatment team has not recommended Sutton for CONREP within the last three years, and Berardino has opined Sutton is not suitable for CONREP. Berardino's opinion is based on Sutton's lack of insight and failure to fully comply with his treatment in a therapeutic closed environment. As Berardino notes: "If someone is not compliant in a 24-hour restricted facility, the chances of them being compliant with [CONREP] who does not have access to them 24 hours a day and who must rely on their self-report and their compliance independently to keep them symptom free and to keep them from reoffending is very, very slim." Sutton's belief that the five-year old victim would have enjoyed the sexual molestation if she had been awake shows his lack of insight and supports the trial court's concern Sutton could be effectively prevented from reoffending. In addition, Sutton's trial testimony shows he is not suitable for CONREP. As noted above, Sutton did not believe he posed a danger to children until reminded, his memory loss prevented him from recalling what he learned in his treatment programs, and he suffered from untreated schizophrenia. On this record, substantial evidence supported the trial court's denial of CONREP.

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The postjudgment order is affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.