Filed 9/19/14 P. v. Joiner CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064432

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. MH101115)

CHARLES JOINER,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Leo

Valentine, Jr., Judge. Affirmed.

         Rebecca P. Jones, by appointment of the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C.

Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
                                     INTRODUCTION

       In this second appeal, Charles Joiner challenges an order─which the trial court

reinstated on remand after we issued both a majority opinion and a concurring and

dissenting opinion in his first appeal (People v. Joiner (Feb. 8, 2013, D056622) [nonpub.

opn.] (Joiner I))─involuntarily committing him for an indeterminate term to the custody

of the State of California Department of Mental Health (DMH), now the State of

California Department of State Hospitals (DSH), at the Coalinga State Hospital after a

second jury in late 2009 unanimously found he is a sexually violent predator (SVP)

within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code,1

§ 6600 et seq.).

       As discussed more fully, post, Joiner's first trial ended in a mistrial when the jury

became hopelessly deadlocked after voting eight to four in favor of finding Joiner was

not an SVP. Before the second trial commenced, the trial court denied Joiner's motion to

dismiss the SVPA civil petition on the ground the court believed it had no authority to

dismiss the petition for insufficiency of the evidence presented at the first trial. After the

second jury returned its unanimous verdict finding that Joiner was an SVP, the court

again denied Joiner's motion to dismiss the petition for the same reason and entered an

order committing him to the custody of the DMH for an indefinite term. In Joiner I,

Joiner challenged both the denial of his motion to dismiss the petition and the



1      All statutory references are to the Welfare and Institutions Code unless otherwise
specified.

                                              2
commitment order. This court issued a majority opinion reversing the commitment order

and remanding the matter with directions that the court rule on the merits of Joiner's

motion to dismiss based on a review of the evidence presented at the first trial.

       At the July 2013 remand hearing, which Joiner did not personally attend but at

which he was represented by his trial counsel, the court again denied his motion to

dismiss the petition and reinstated the order of involuntary commitment under the SVPA

based on the second jury's verdict, finding the prosecution had presented sufficient

evidence at the first trial to support a finding beyond a reasonable doubt by a reasonable

trier of fact that Joiner is an SVP.

       Contentions

       Joiner again appeals, contending the commitment order should be vacated and he

should be released immediately because (1) he had a constitutional due process right to

be personally present during the remand hearing on his motion to dismiss the petition,

and the court prejudicially erred by conducting that hearing in his absence without his

consent or personal waiver; and (2) there is insufficient evidence as a matter of law to

commit him under the SVPA because no substantial evidence was presented at the first

trial to support findings that (a) he is likely to commit a predatory act of sexual violence

if released, (b) he "lack[s] volitional control over sexually aggressive behavior," and (c)

he has "a current mental disorder tied to sexual misconduct." For reasons we shall

explain, we reject these contentions and affirm the SVPA commitment order.




                                              3
                   FACTUAL AND PROCEDURAL BACKGROUND

       A. Factual Background2

       1. The People's case

       a. Joiner's sexual assault history

       i. Frances B.

       On December 31, 1979, Joiner raped an acquaintance, Frances B. Joiner drove her

to a dark and secluded place, where he made sexual advances on her and she resisted. In

response, Joiner slapped Frances three times, threw her against his car, threw her to the

ground, and choked her. After threatening her, Joiner then raped Frances. After being

raped, Frances tried to escape from Joiner by jumping over a fence. In doing so she

severed a finger and Joiner was able to recapture her and take her back to his car.

       As a result of his assault on Frances, Joiner was charged with kidnapping, forcible

rape and forcible oral copulation. Joiner was allowed to plead guilty to kidnapping in

exchange for the prosecutor's agreement to dismiss the other charges.




2       As the SVPA commitment order that Joiner challenges in this second appeal is
based on the unanimous verdict of the second jury at the November 2009 retrial, the
following summary of the facts─most of which was set forth in this court's prior opinion
in Joiner I─is derived from the record of the evidence presented at that second trial. To
the extent the evidence presented at the first trial─which the trial court reviewed on
remand in ruling on the merits of Joiner's postmistrial motion to dismiss the petition─is
pertinent to the issues Joiner raises in this new appeal, that evidence will be addressed,
post, in the discussion section of this opinion. We take judicial notice of the record on
appeal filed in this court in Joiner I. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
                                             4
       ii. Jill H.

       Prior to December 12, 1980, Joiner raped another acquaintance, Jill H. On

December 12, 1980, Joiner went to Jill's home, knocked on her front door and told her

"[Y]ou are out telling people I raped you. We are going to make it happen." Joiner then

entered Jill's home, knocked her to the floor, raped her and attempted to force her to

orally copulate him. Jill resisted and Joiner raped her a second time. Joiner's assault was

interrupted when another man entered the home and stopped Joiner.

       Joiner pleaded guilty to felony assault on Jill.

       iii. Patricia D.

       On July 4, 1984, less than a year after being released on parole, Joiner attempted

to rape a neighbor, Patricia D., and force her to orally copulate him. Joiner went to

Patricia's house and made sexual advances toward her, which she rejected. In response,

Joiner grabbed Patricia by the wrists, dragged her to her bedroom, choked her and

threatened to kill her and burn her house down if she resisted. After removing Patricia's

panty hose and panties, he discovered she was menstruating. Patricia then informed

Joiner she had herpes. When Joiner tried to force her to orally copulate him, Patricia told

him she had oral herpes. Joiner then told her to call her doctor to confirm she had herpes.

Patricia was able to escape while Joiner listened on a second telephone line.

       As a result of the attack on Patricia, Joiner was convicted of assault with intent to

commit rape and assault with intent to commit oral copulation, and was sentenced to 11

years in prison. On March 18, 1997, following his release from prison for the assault on

Patricia, Joiner was convicted of second degree burglary and again sentenced to prison.

                                              5
       b. Expert testimony

       Two forensic psychologists─Shoba Sreenivasan, Ph.D. and Christopher Matosich,

Ph.D.─evaluated Joiner and opined that he met the statutory criteria for an SVP.3 Both

doctors opined that Joiner's convictions for kidnapping Frances B. and assaulting Patricia

D. with the intent to commit rape and with the intent to commit oral copulation qualified

as sexually violent offenses. Both doctors opined that Joiner suffered from a current

mental disorder, paraphilia not otherwise specified (paraphilia NOS), which is a sexual

deviancy disorder characterized by intense and recurrent fantasies, urges, or behaviors

involving sexual acts against nonconsenting partners. Both doctors found Joiner's

paraphilia showed traits of sexual sadism, which was evidenced by his brutality,

domination, containment, and choking of his victims. Both doctors also diagnosed Joiner

with a personality disorder not otherwise specified with antisocial and paranoid traits. In

addition, both doctors opined that Joiner was likely to reoffend by again engaging in

sexually violent predatory behavior as a result of his diagnosed mental disorders. They

based their respective opinions on actuarial assessments which showed a moderate-to-

high risk Joiner would reoffend, the dynamic between Joiner's personality disorder and

his paraphilia, his criminal history, including his poor performance on parole, and the

continuous nature of his criminality.



3       A sexually violent predator is defined as "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." (Welf. & Inst.
Code, § 6600, subd. (a)(l).)
                                             6
       2. The defense

       The defense rested without presenting any evidence.

       B. Procedural Background

       1. Petition

       In May 2007 the San Diego County District Attorney filed an amended petition

(petition) under the SVPA alleging that Joiner was a sexually violent predator and

seeking an order committing him to the custody of the DMH for involuntary treatment for

an indeterminate term.

       2. Mistrial and denial of Joiner's motion to dismiss the petition

       The allegations of the petition were first tried to a jury in early 2009. After three

days of deliberations the jury advised the court that it was hopelessly deadlocked and the

court declared a mistrial. The jury voted eight to four in Joiner's favor.

       In April 2009, following the mistrial, Joiner moved to dismiss the petition under

Penal Code section 1385 on the ground the prosecution had presented insufficient

evidence to prove beyond a reasonable doubt that he was an SVP. In support of his

motion, Joiner challenged the testimony of the People's two expert witnesses, Dr.

Matosich and Dr. Sreenivasan. The court denied the dismissal motion, stating it believed

it lacked the authority to grant the motion.

       3. Retrial, denial of Joiner's renewed motion to dismiss, and commitment order

       In November 2009 the allegations of the petition were tried to a second jury. The

jury returned a unanimous verdict finding to be true the allegation in the petition that

Joiner is an SVP.

                                               7
       At a follow-up hearing, defense counsel renewed Joiner's motion for dismissal of

the petition under Penal Code section 1385. The court again denied the motion, stating it

believed it lacked the authority to dismiss the petition. The court then entered an order

committing Joiner to the custody of the DMH for an indeterminate term for treatment and

confinement at the Coalinga State Hospital.

       4. Joiner's first appeal (Joiner I)

       In early January 2010 Joiner challenged the court's denial of his postmistrial

motion to dismiss, the second jury's unanimous verdict finding he is an SVP, and the

order committing him to the custody of the DMH for an indeterminate term, by filing a

timely notice of appeal. As pertinent here, Joiner claimed in Joiner I that there was

insufficient evidence as a matter of law to commit him under the SVPA and that the court

erred when it determined it had no authority to dismiss the petition after the first trial

ended in a deadlock with the jury split eight to four in favor of finding the petition

allegations to be not true.

       In a split decision, this court issued a majority opinion on rehearing reversing the

commitment order and remanding the matter with directions that the court "exercise its

discretion" and rule on the merits of Joiner's motion to dismiss the petition based on its

review of the evidence presented at the first trial. The majority opinion, with the

concurrence of Justice Benke, concluded that the trial court had inherent power to rule on

the merits of Joiner's motion to dismiss and terminate the proceedings under the SVPA

following the mistrial if the court determined there was insufficient evidence as a matter

of law to sustain the petition. The majority opinion stated that, in the event the trial court

                                               8
determined on remand that "there was sufficient evidence presented at the first trial and

that it properly denied Joiner's motion in the first instance, the trial court is directed to

enter judgment on the second [jury's] verdict."

       In her concurring and dissenting opinion, Justice Benke dissented from the

majority's disposition and stated she would have affirmed the commitment order because

(1) the inherent power to terminate SVPA proceedings that she and the majority

recognized "is not in any sense discretionary" because, once the trial court in such a

proceeding "has determined there is probable cause to believe an inmate is [an SVP], [it]

has no discretionary power to dismiss an SVPA petition"; (2) "we are as well-equipped

as the trial court to determine whether there was sufficient evidence of the statutory

elements" under the SVPA; and (3) "sufficient evidence [was] presented at the first trial

to show that Joiner is an SVP."

       5. Denial on remand of Joiner's motion to dismiss the petition

       The court conducted the remand hearing on July 24, 2013. Although the court's

minute order shows that Joiner was not personally present during the hearing "per

stipulation," he was represented by Shervin Samimi, the deputy alternate public defender

who had served as his trial counsel at both trials.

       After reviewing the evidence presented at the first trial in the light most favorable

to the prosecution (as the Joiner I majority opinion directed it to do) and hearing the

parties' arguments, the court denied Joiner's motion to dismiss the petition on the merits.

The court found that sufficient evidence had been presented at the first trial to support a

finding beyond a reasonable doubt by a reasonable trier of fact that Joiner was an SVP.

                                                9
The court then reinstated the order of involuntary commitment under the SVPA based on

the second jury's verdict.

                                      DISCUSSION

                I. JOINER'S ABSENCE FROM THE REMAND HEARING

       Joiner first contends the order committing him to the custody of the DSH for an

indeterminate term must be vacated and he should be released immediately because (1)

he had a constitutional due process right to be personally present during the July 24, 2013

remand hearing on his motion to dismiss the petition, and (2) the court prejudicially erred

by conducting that hearing in his absence without his consent or personal waiver. We

reject these contentions.

       Assuming without deciding that Joiner had a constitutional right to be personally

present at the remand hearing,4 we conclude the court did not err in conducting the

hearing in his absence because the record shows he waived his right to be present.


4       Joiner arguably had no right to be personally present at the limited remand
hearing. "'[A] defendant is not entitled to be personally present during proceedings that
bear no reasonable, substantial relation to his opportunity to defend the charges against
him, and the burden is on the defendant to demonstrate that his absence prejudiced his
case or denied him a fair and impartial trial.'" (People v. Rodriguez (2014) 58 Cal.4th
587, 625, quoting People v. Benavides (2005) 35 Cal.4th 69, 89.) Here, the first trial
ended in a mistrial. This court's majority opinion specifically instructed the trial court
that, in making its determination on remand regarding the merits of Joiner's motion to
dismiss the petition, it was required to base its decision "upon its review of the record in
the first trial" and to view that evidence "in the light most favorable to the People." Thus,
Joiner could not have altered the state of the evidence by personally appearing at the
remand hearing. Although Joiner asserts he was "the person most likely to recall the
most important facts in his favor," the testimony presented at the first trial was preserved
in the reporter's transcript, he was represented at the remand hearing by the attorney who
had represented him at that trial, and the standard of review we directed the court to use
required that it view the evidence in the light most favorable to the prosecution.
                                             10
Specifically, the court's July 24, 2013 minute order shows that Joiner was not personally

present during the hearing "per stipulation."

       Joiner, however, challenges the court's minute order by asserting that "the

reporter's transcript contains no such stipulation." Indeed, the reporter's transcript is

silent on this issue. It shows that when Joiner's counsel, Samimi, made his appearance,

he stated he was appearing "on behalf of Mr. Joiner, who is not present." Samimi, who

had represented Joiner at both trials, did not mention a stipulation. However, it is not

uncommon for minute orders to reflect matters that were discussed in court during an

unreported part of a proceeding and thus are not reflected in the reporter's transcript. We

note that Joiner does not claim Samimi provided ineffective assistance of counsel by

failing to object to Joiner's absence.

       Joiner cites People v. Samaniego (2009) 172 Cal.App.4th 1148 and People v.

Gonzalez (1990) 51 Cal.3d 1179 (superseded by statute on another ground as stated in In

re Steele (2004) 32 Cal.4th 682, 691) for the proposition that "California law consistently

holds the oral pronouncement of any order in court prevails over any contrary statements

in the minutes and abstract." (Italics added.) His reliance on Samaniego is unavailing

because, here, unlike in Samaniego, there is no "oral pronouncement of [an] order in

court" recorded in the reporter's transcript of the remand hearing that is "contrary" to the

statement in the court's signed minute order that Joiner "is not present per stipulation." In

Samaniego the trial court imposed direct victim restitution in a specified amount and

orally ordered that the restitution was payable jointly and severally among all three

defendants in that case. (Samaniego, supra, 172 Cal.App.4th at p. 1183.) However, the

                                              11
defendants' abstracts of judgment did not reflect that the restitution obligation was joint

and several. (Ibid.) Noting that "[t]he abstract of judgment is not the judgment of

conviction" (ibid.) and explaining that "[t]he court's oral pronouncement controls over the

abstract of judgment" (ibid.), the Court of Appeal remanded the matter to the trial court

with directions to correct the abstracts of judgment to reflect that the victim restitution

was imposed jointly and severally." (Id. at p. 1184.) Samaniego is distinguishable

because it involved an order that the trial court orally pronounced during sentencing but

was not reflected in the defendants' abstracts of judgment. Here, there was no oral

pronouncement of an order or any other pronouncement during the remand hearing that

was contrary to the statement in the court's minute order that Joiner was not present "per

stipulation."

       Joiner's reliance on Gonzalez, supra, 51 Cal.3d 1179, is also unavailing. Gonzalez

is distinguishable in that the trial court made oral rulings in court that conflicted with the

unsigned minute order. (Id. at pp. 1238-1239.) Here, again, there was no oral

pronouncement of any ruling or any other pronouncement during the remand hearing that

was contrary to the statement in the court's signed minute order indicating that Joiner was

not present "per stipulation."

       Even if we were to conclude that Joiner did not waive his assumed constitutional

right to be personally present during the remand hearing, and thus that the court erred in

conducting that hearing in his absence, we would nevertheless conclude that any such

error was harmless beyond a reasonable doubt under the standard of Chapman v.

California (1967) 386 U.S. 18, 24. (See People v. Fisher (2009) 172 Cal.App.4th 1006,

                                              12
1014 ["In civil commitment proceedings, we use the Chapman test to review federal

constitutional error."].) Joiner's presence at the remand hearing would not have affected

the court's ultimate decision to deny his motion to dismiss on the merits because Joiner

could not have presented new evidence, the testimony presented at the first trial was

preserved in the reporter's transcript that the court reviewed, Joiner was represented at

that hearing by the attorney who had represented him at the first trial and was familiar

with the evidence, and the standard of review we directed the court to use required that it

view the evidence presented at that trial in the light most favorable to the prosecution.

Furthermore, as we shall explain, post, the court properly found that sufficient evidence

had been presented at the first trial to support a finding beyond a reasonable doubt by a

reasonable trier of fact that Joiner is an SVP. Thus, no argument that Joiner personally

might have made at the remand hearing could have resulted in a more favorable outcome

for him.

                         II. SUFFICIENCY OF THE EVIDENCE

       Joiner also contends the commitment order should be vacated because there is

insufficient evidence as a matter of law to commit him under the SVPA. We reject this

contention.

       A. Substantial Evidence Standard of Review

       "[T]he Fifth Amendment [to the United States Constitution] precludes retrial if a

court determines the evidence at trial was insufficient to support a conviction as a matter

of law. [Citation.] Thus, an appellate ruling of legal insufficiency is functionally



                                             13
equivalent to an acquittal and precludes a retrial." (People v. Hatch (2000) 22 Cal.4th

260, 272.)

       "In reviewing the legal sufficiency of the evidence to support a person's civil

commitment as an SVP, we apply the substantial evidence standard of review." (People

v. Poulsom (2013) 213 Cal.App.4th 501, 518 (Poulsom).) Under this standard, we "must

review the whole record in the light most favorable to the judgment below to determine

whether it discloses substantial evidence─that is, evidence that is reasonable, credible,

and of solid value—such that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson

v. Virginia (1979) 443 U.S. 307, 319; Poulsom, supra, 213 Cal.App.4th at p. 518.)

       In Poulsom this court recently explained that "it is the exclusive province of the

trial judge or jury to determine the credibility of a witness and the truth or falsity of the

facts on which that determination depends." (Poulsom, supra, 213 Cal.App.4th at p.

518.) We also explained that "'[t]he credibility of the experts and their conclusions [are]

matters [to be] resolved . . . by the [trier of fact],' and '[w]e are not free to reweigh or

reinterpret [that] evidence.'" (Ibid., quoting People v. Mercer (1999) 70 Cal.App.4th 463,

466-467.) In sum, we do not reweigh the evidence, resolve conflicts in the evidence, or

reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206;

People v. Jones (1990) 51 Cal.3d 294, 314; Poulsom, supra, 213 Cal.App.4th at p. 518.)

       "[T]o prevail on a sufficiency of the evidence argument, the defendant must

present his case to us consistently with the substantial evidence standard of review. That

is, the defendant must set forth in his opening brief all of the material evidence on the

                                               14
disputed elements of the crime in the light most favorable to the People, and then must

persuade us that evidence cannot reasonably support the jury's verdict." (People v.

Sanghera (2006) 139 Cal.App.4th 1567, 1574, italics omitted.) "If the defendant fails to

present us with all the relevant evidence, or fails to present that evidence in the light most

favorable to the People, then he cannot carry his burden of showing the evidence was

insufficient because support for the [trier of fact's] verdict may lie in the evidence he

ignores." (Ibid.)

       Furthermore, the California Supreme Court has explained that, "when reviewing

the sufficiency of the evidence for purposes of deciding whether retrial is permissible, the

reviewing court must consider all of the evidence presented at trial, including evidence

that should not have been admitted. '[W]here the evidence offered by the State and

admitted by the trial court─whether erroneously or not─would have been sufficient to

sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial.'" (People

v. Story (2009) 45 Cal.4th 1282, 1296-1297, quoting Lockhart v. Nelson (1988) 488 U.S.

33, 34, second & third italics added.)

       B. Analysis

       1. Likelihood of reoffending

       Joiner first contends no substantial evidence was presented at the first trial to

support a finding that he is likely to commit a predatory act of sexual violence if released.

We reject this contention.

       To find a defendant is an SVP under the SVPA, the trier of fact "must find beyond

a reasonable doubt that the defendant is likely to commit sexually violent predatory

                                              15
criminal acts." (People v. Hurtado (2002) 28 Cal.4th 1179, 1186-1187.) The SVPA

defines a "predatory" act as "an act . . . directed toward a stranger, a person of casual

acquaintance with whom no substantial relationship exists, or an individual with whom a

relationship has been established or promoted for the primary purpose of victimization."

(§ 6600, subd. (e), italics added.)

       Here, the prosecution presented at the first trial substantial evidence from which a

reasonable trier of fact could find beyond a reasonable doubt that Joiner was likely to

engage in sexually violent predatory criminal behavior. Dr. Matosich, a licensed

psychologist who had conducted SVP evaluations in California for about 13 years,

opined that Joiner was likely to reoffend by engaging in sexually violent predatory

criminal behavior in the future as a result of his diagnosed mental disorders without

appropriate treatment in custody. Dr. Matosich explained that his opinion was based in

part on Joiner's Static-99 actuarial risk assessment score, which placed in the high risk

category for sexual recidivism. Dr. Matosich applied the proper meaning of the term

"predatory" as defined in section 6600, subdivision (e), and testified that Joiner's prior

victims were "individuals of casual acquaintance with whom no substantial relationship

existed." Dr. Matosich's foregoing testimony provided substantial evidence to support a

finding that Joiner was likely to engage in future sexually violent predatory crimes

without appropriate treatment in custody. (People v. Scott (2002) 100 Cal.App.4th 1060,

1063 ["[N]othing in the SVP Act expressly requires the testimony of two (or any

particular number of) expert witnesses at trial to find that an individual is a sexually

violent predator."].)

                                             16
       Although Dr. Matosich's expert testimony provided substantial evidence from

which a reasonable trier of fact could find beyond a reasonable doubt that Joiner was

likely to engage in sexually violent predatory criminal behavior, Dr.

Sreenivasan─another licensed psychologist who in the previous 13 years had performed

700 to 800 SVPA evaluations─also provided expert opinion testimony at the first trial

that, as a result of his diagnosed mental disorders, Joiner "was likely to engage in

sexually violent predatory behavior without appropriate treatment in custody."

       Joiner contends, however, that the expert opinion testimony of Dr. Matosich and

Dr. Sreenivasan that he is likely to engage in sexually violent predatory criminal behavior

in the future is "insufficient as a matter of law" because their testimony is "unsupported

by an adequate foundation." In his reply brief Joiner asserts that "even though Dr.

Sreenivasan testified she believed [he] was at risk for reoffending in a sexually predatory

manner, she did not explain the basis for that opinion." Stating that Dr. Matosich

"claimed to base his opinion on his belief that the complainants in [his (Joiner's)] prior

cases involved 'individuals of casual acquaintance with whom no substantial relationship

existed,'" Joiner asserts that "that was not true." Joiner further asserts that Dr. Matosich

"did not explain why the women were supposedly 'individuals of casual acquaintance' or

how he understood that term."

       In making these assertions to challenge the substantiality and sufficiency of Dr.

Matosich's and Dr. Sreenivasan's expert testimony, Joiner disregards one of the

fundamental principles governing the application of the substantial evidence standard of

review, which the Attorney General explains in the respondent's brief. As discussed,

                                             17
ante, the California Supreme Court has explained that "when reviewing the sufficiency of

the evidence for purposes of deciding whether retrial is permissible, the reviewing court

must consider all of the evidence presented at trial, including evidence that should not

have been admitted." (People v. Story, supra, 45 Cal.4th at p. 1296, second italics

added.) Here, the court admitted the foregoing testimony of Dr. Matosich and Dr.

Sreenivasan without any objections from the defense. We must, and do, consider this

evidence. (Ibid.) To the extent that testimony should have been supported by additional

evidentiary foundation, as Joiner now claims on appeal, the lack of such foundation goes

to the weight, not the admissibility or legal sufficiency, of the testimony. In reviewing

the legal sufficiency of the evidence to support a person's civil commitment as an SVP,

we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the

credibility of witnesses. (People v. Ochoa, 6 Cal.4th at p. 1206; People v. Jones, supra,

51 Cal.3d at p. 314; Poulsom, supra, 213 Cal.App.4th at p. 518.) As we recently

explained in Poulsom, "'[t]he credibility of the experts and their conclusions [are] matters

[to be] resolved . . . by the [trier of fact],' and '[w]e are not free to reweigh or reinterpret

[that] evidence.'" (Poulsom, supra, 213 Cal.App.4th at p. 518, quoting People v. Mercer,

supra, 70 Cal.App.4th at pp. 466–467.) Thus, this court, like the trial court in reviewing

the evidence presented at the first trial in ruling on Joiner's motion to dismiss at the

remand hearing, is not free to reweigh or reinterpret the expert witness testimony of Dr.

Matosich and Dr. Sreenivasan. (Poulsom, at p. 518.)




                                               18
       2. Volitional Impairment

       Joiner next contends no substantial evidence was presented at the first trial to

support a finding that he "lack[s] volitional control over sexually aggressive behavior."

We reject this contention.

       a. Applicable legal principles

       "In Kansas v. Crane (2002) 534 U.S. 407, [413], the United States Supreme Court

held that the safeguards of personal liberty embodied in the due process guaranty of the

federal Constitution prohibit the involuntary confinement of persons on the basis that

they are dangerously disordered without 'proof [that they have] serious difficulty in

controlling [their dangerous] behavior.'" (People v. Williams (2003) 31 Cal.4th 757, 759

(Williams), italics added.) However, "California's [SVPA] does not use that precise

language in defining who is eligible for involuntary civil commitment as a sexually

violent predator." (Williams, supra, 31 Cal.4th at p. 759.)

       In Williams, the California Supreme Court explained that, "[b]y its express terms,

the SVPA limits persons eligible for commitment to those few who have already been

convicted of violent sexual offenses against multiple victims (§ 6600, subd. (a)(1)), and

who have 'diagnosed mental disorder[s]' (ibid.) 'affecting the emotional or volitional

capacity' (id., subd. (c)) that 'predispose[] [them] to the commission of criminal sexual

acts in a degree constituting [them] menace[s] to the health and safety of others' (ibid.),

such that they are "likely [to] engage in sexually violent criminal behavior' (id., subd.

(a)(1))." (Williams, supra, 31 Cal.4th at p. 759, italics added.) The Williams court

concluded that "[t]his language inherently encompasses and conveys to a fact finder the

                                             19
requirement of a mental disorder that causes serious difficulty in controlling one's

criminal sexual behavior." (Ibid., italics added.)

       b. Analysis

       We conclude the prosecution presented at the first trial substantial evidence from

which a reasonable trier of fact could find beyond a reasonable doubt that Joiner has

"serious difficulty in controlling [his] criminal sexual behavior" (Williams, supra, 31

Cal.4th at p. 759) constituting the requisite volitional impairment under the SVPA as a

result of his diagnosed mental disorders. Dr. Matosich testified that, in determining

whether Joiner has a diagnosed mental disorder, he specifically looked at whether Joiner

has a condition that compromises his "capacity for emotional and volitional control" and

whether that disorder predisposes him to commit criminal sexual acts. Dr. Matosich

opined that Joiner suffers from paraphilia NOS and a personality disorder with antisocial

and paranoid traits, which are diagnosed mental disorders that meet that criteria. In

explaining Joiner's serious difficulty in controlling his behavior, Dr. Matosich opined that

Joiner has "a personality construct of the lack of remorse, callousness, lack of empathy,

irritability, aggression, as well as behavioral constructs of impulsivity, not learning from

past experience, repeatedly doing the similar behavior, going back into custody despite

the sanctions, doing the activity again and again." Dr. Matosich also testified that Joiner

had clear difficulty in "accommodating [his] behavior to remain in the community in a

safe and effective manner."

       Dr. Sreenivasan also gave expert testimony from which a reasonable trier of fact

could find beyond a reasonable doubt that Joiner has serious difficulty in controlling his

                                             20
criminal sexual behavior that constitutes the requisite volitional impairment under the

SVPA as a result of his diagnosed mental disorders. Like Dr. Matosich, Dr. Sreenivasan

opined that Joiner suffers from paraphilia NOS and a personality disorder with antisocial

and paranoid traits. Dr. Sreenivasan explained the foundation for her opinion that Joiner

had impaired volitional control as a result of these diagnosed mental disorders.

Specifically, she testified, "[M]y overall conclusion was because of this collective set of

disorders, sexual deviancy, that he has repeatedly not been deterred by sanction, coupled

with the chronicity of the personality disorder, angry and paranoid in nature, the two

things together represent a disorder, a derailing of him in terms of volitional control, in

terms of his impulsivity as well as his emotionality, the anger, the hostility and so forth."

For these reasons we reject Joiner's assertion that Dr. Sreenivasan "did not explain the

basis or foundation for [her] opinion" that his diagnosed mental disorders "derailed" his

volitional control.

       In claiming no substantial evidence was presented at the first trial to support a

finding that he lacks volitional control over sexually aggressive behavior, Joiner

improperly resorts to evidence outside the trial record. Specifically, with no citation to

the record of the first trial, Joiner quotes from a journal article─written by Dr. Michael

First, one of the editors of the American Psychiatric Association's Diagnostic and

Statistical Manual of Mental Disorders Text Revision (DSM-IV-TR)─for the proposition

that "having a diagnosis of paraphilia does not imply that the person also has difficulty

controlling his behavior." In doing so, Joiner essentially is asking this court not only to

consider evidence not presented at the first trial, but also to reweigh the evidence and

                                             21
reassess the credibility of the prosecution's experts. This we may not do. As already

discussed, we do not reweigh the evidence, resolve conflicts in the evidence, or

reevaluate the credibility of witnesses. (People v. Ochoa, supra, 6 Cal.4th at p. 1206;

People v. Jones, supra, 51 Cal.3d at p. 314; Poulsom, supra, 213 Cal.App.4th at p. 518.)

       3. Mental Disorders

       Last, Joiner contends no substantial evidence was presented at the first trial to

support a finding that he has "a current mental disorder tied to sexual misconduct."

Specifically, Joiner asserts the court erred in denying his motion to dismiss the SVPA

petition, and thus the commitment order should be vacated because (1) the diagnosis of

paraphilia NOS "has been continually criticized" since his first trial in this matter, and

thus his "alleged mental illness does not even exist"; and (2) his paraphilia NOS

diagnosis was based on his behavior "that was more than 20 years in the past," and thus

"the paraphilia label did not adequately prove a currently diagnosed mental illness under

the SVPA." Joiner's assertions are unavailing.

       As already discussed, both of the People's expert witnesses─Dr. Matosich and Dr.

Sreenivasan─testifed during the first trial to their opinions that Joiner currently suffers

from paraphilia NOS and a personality disorder with antisocial and paranoid traits. Both

doctors testified that Joiner's paraphilia is a sexual deviancy disorder which, combined

with his personality disorder, predisposes him to commit future sexually violent

predatory offenses.

       In asserting that his "alleged mental illness does not even exist" because the

diagnosis of paraphilia NOS "has been continually criticized" since his first trial, Joiner

                                              22
again improperly resorts to evidence outside the trial record. Specifically, with no

citation to the record of the first trial, Joiner selectively quotes passages from the DSM-

IV-TR and an article written by Allen Frances, M.D. In doing so, Joiner again disregards

well-established rules governing application of the substantial evidence standard of

review by asking this court not only to consider evidence not presented at the first trial,

but also to reweigh the evidence and reassess the credibility of the prosecution's experts.

This we may not do. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Jones,

supra, 51 Cal.3d at p. 314; Poulsom, supra, 213 Cal.App.4th at p. 518.)

       In asserting that his paraphilia NOS diagnosis "was based on behavior by [him]

that was more than 20 years in the past," Joiner suggests that Dr. Matosich and Dr.

Sreenivasan based their diagnoses solely on his prior history of committing sexually

violent acts. Citing an article by Dr. Frances, Joiner asserts that the fifth edition of the

American Psychiatric Association's Diagnostic and Statistical Manual of Mental

Disorders (DSM-5) "reject[s] . . . efforts to refer to rape as a mental disorder." Based on

his suggestive premise, Joiner then asserts that Dr. Matosich's and Dr. Sreenivasan's

"conclusions that [his] alleged coercive acts were driven by some kind of paraphilia

lacked an adequate medical foundation and should be rejected." The record of the first

trial belies this assertion because it shows that Dr. Matosich and Dr. Sreenivasan did not

(in Joiner's words) "refer to rape as a mental disorder." Dr. Matosich specifically

acknowledged that not all rapists have a sexual deviancy, and he explained why he

formed the opinion that Joiner does. Specifically, Dr. Matosich testified as follows:



                                              23
          "In addition to the long period of sexually aggressive behavior, the
          specific acts that unfolded during those behaviors are specific in
          diagnosing paraphilia. There is controversy over whether everybody
          that [sic] rapes has a sexual deviancy. I think most in the
          field . . . see some individuals that [sic] rape that do not have a
          sexual deviancy. We look closely at the behavior, and those with
          sexual deviancy, their behavior is remarkably different. We see the
          callousness, the cruelty, the time one is held hostage or locked under
          their control.

          "These are things that we look at in assessing not only paraphilia but
          the type of paraphilia, severity of paraphilia and risk of future
          behavior related to with or without treatment. So for Mr. Joiner, I
          saw several examples of callousness, cruelty, aggression above and
          beyond what a typical man needs to exert to control a woman. That
          there was sexual excitement, even ejaculation while the victim was in
          pain. These are things that, in my opinion, clearly support the
          presence of a severe sexual deviancy." (Italics added.)

       The record shows that Dr. Sreenivasan also considered Joiner's specific behaviors,

and that, like Dr. Matosich, she did not rely solely on evidence that he committed rapes.

The experts' opinions were substantial evidence that Joiner suffered from a current

mental disorder tied to sexual deviancy.

       For all of the foregoing reasons, we reject Joiner's contention that no substantial

evidence was presented at the first trial to support a finding that he has "a current mental

disorder tied to sexual misconduct." Based on the expert testimony of Dr. Matosich and

Dr. Sreenivasan at the first trial, we conclude the prosecution presented substantial

evidence from which a reasonable trier of fact could find beyond a reasonable doubt that

Joiner suffers from current mental disorders─paraphilia NOS and a personality disorder

with antisocial and paranoid traits─that make him danger to the health and safety of




                                             24
others in that he is likely to engage in sexually violent criminal behavior.5 (§ 6600,

subds. (a)(1), (c).) Accordingly, we affirm the commitment order.

                                      DISPOSITION

       The order of the trial court committing Joiner to the custody of the DSH under the

SVPA is affirmed.


                                                                                 NARES, J.

WE CONCUR:


BENKE, Acting P. J.


AARON, J.




5       In so concluding, we need not address the Attorney General's claim that Joiner
forfeited his insufficiency of the evidence argument by refusing to be interviewed by Dr.
Matosich and Dr. Sreenivasan. (Cf. People v. Sumahit (2005) 128 Cal.App.4th 347, 351
[concluding insufficiency argument was forfeited when person refused to be interviewed
by the People's experts].)
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