Filed 10/24/16

                 CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION ONE


THE PEOPLE,                               B269705

        Plaintiff and Respondent,         (Los Angeles County
                                          Super. Ct. No. ZM011387)
        v.

JOHN WRIGHT,

        Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark C. Kim, Judge. Reversed.
      Gerald L. Miller, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and John Yang, Deputy Attorney General, for
Plaintiff and Respondent.
                      ——————————
      In January 2016, the trial court, pursuant to the Sexually
Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.1),
found John Wright (Wright) to be a sexually violent predator
(SVP) and committed him to a state hospital for an indefinite
term.
       On appeal, Wright advances a number of different
arguments, including that the commitment order was not
supported by substantial evidence. In particular, Wright argues
that the diagnosis of hebephilia by the People‘s expert was
fundamentally flawed due, inter alia, to a lack of information
about the physical characteristics and/or sexual development of
the victims. We agree with Wright. With regard to the
diagnosed mental disorder offered by the People, ― ‗there is
simply too great an analytical gap between the data and the
opinion proffered.‘ ‖ (Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 771 (Sargon).)
Accordingly, we reverse the judgment.
                         BACKGROUND
I.     Wright’s prior convictions
       In 1996, Wright sustained a conviction for committing a
lewd act upon a 14-year-old female in 1995, a conviction which
resulted in a six-month jail term and probation. At the time of
the offense, Wright was 26 years old. The victim reported being
forcibly abducted and pulled into a car by Wright, who took her to
an apartment and fondled and kissed her before she could escape.
Initially, the People charged Wright with kidnapping, as well as




      1 Allfurther statutory references are to the Welfare and
Institutions Code unless otherwise indicated.




                                2
committing a lewd act, but subsequently dropped the kidnapping
charge as a part of a plea agreement.
       In 2001, at age 30, Wright suffered convictions for
committing lewd acts on two underage females, a 14 year old and
a 15 year old in 1999. Wright met the 14-year-old victim on a
bus, telling her that he was 18 years old and a college student.
Although a sexual relationship eventually developed between
Wright and the 15-year-old victim, the victim reported to the
police that Wright was ―overly aggressive‖ with her, that she was
afraid she would be sexually assaulted or raped. With regard to
the 14-year-old victim, Wright entered into a sexual relationship
with the girl over a period of weeks that eventually led to
intercourse.
       In 2005, at the age of 36, Wright suffered another sex
offense conviction, this time for oral copulation with a female
under the age of 18. Wright approached the victim at a gas
station, and quickly cultivated a social and then a sexual
relationship with the victim. Eventually, the victim‘s father
confronted Wright because the victim had loaned Wright money,
and had learned that Wright was not his stated age and that he
had a history of sexual offenses.
II.    The trial
       Following the 2005 conviction, the People filed a petition to
commit Wright to Coalinga State Hospital for an indefinite term
under the SVPA. Two probable cause hearings were held—one in
June 2007, the other in February 2012—in which the respective
courts found that there was probable cause to proceed to trial
under the SVPA and hold Wright in a secured facility pending
trial.




                                 3
       On May 27, 2015, Wright waived his right to a jury trial.
On January 11-12, 2016, the trial court conducted a bench trial.
Only two witnesses testified, both experts, both psychologists: for
the People, Dr. Michael Musacco (Dr. Musacco); and for Wright,
Dr. Amy Phoenix (Dr. Phoenix).
       A.    DR. MUSACCO’S TESTIMONY
       Based, inter alia, on his interviews and evaluations of
Wright (February 2007, May 2011, and November/December
2015), Dr. Musacco diagnosed Wright with ―paraphilia not
otherwise specified, hebephilia.‖ Dr. Musacco explained,
―Hebephilia is designated as a sexual arousal pattern, deviant
pattern, that involves sexual interest in pubescent-age children.
It would not be pre-pubescent, not post-pubescent. It‘s in that in-
between area from pre-pubescent to post-pubescent.‖
       In making his diagnosis, Dr. Musacco made a number of
concessions. First, hebephilia is a ―rare‖ diagnosis. Second, it is
a somewhat controversial diagnosis. So controversial, in fact,
that it was deliberately excluded from the fifth and newest
edition of the Diagnostic and Statistical Manual of Mental
Disorders (published in 2013) (DSM-5), a manual published by
the American Psychiatric Association to ―identify criteria for the
classification of mental disorders.‖ (People v. Johnson (2015) 235
Cal.App.4th 80, 83.)2


      2 Although   neither party addressed this issue below, other
states that, like California, follow some form of the ―general
acceptance‖ test of Frye v. United States (1923) 293 F. 1013, 1014
(see People v. Kelly (1976 17 Cal.3d 24, 30–31; People v. Leahy
(1994) 8 Cal.4th 587, 604; Sargon, supra, 55 Cal.4th at p. 772)
have found that the exclusion of hebephilia from the DSM-5
means that a diagnosis of hebephilia is ―not generally accepted in



                                 4
the relevant scientific community under the Frye standard.‖
(State of New York v. Ralph P. (N.Y.Sup.Ct., Aug. 9, 2016) ___
N.Y.S.3d ___, 2016 WL 4224189.) Other Frye jurisdictions have
held that, as a result of hebephilia‘s exclusion from the DSM-5, a
Frye hearing must be held to determine if the diagnosis is
generally accepted within the relevant scientific community. (See
People v. New (Ill. 2014) 21 N.E.3d 406, 417.) Courts in other
Frye jurisdictions, however, have held that even though
hebephilia was not listed in the DSM-5 or the prior edition, a
trial court may still conclude based on the facts of the case and
expert testimony, that a hebephilia diagnosis satisfies the mental
abnormality requirement for purposes of a SVP determination.
(Commonwealth v. Hollingshead (Pa.Super. 2015) 111 A.3d 186,
189.)
       The controversy over hebephilia as a diagnosis upon which
to base an involuntary commitment is not new. Even before
hebephilia was expressly considered and then excluded from the
DSM-5, courts refused to commit individuals as sexually violent
persons upon the basis of a hebephilia diagnosis. For example, in
U.S. Neuhauser (E.D.N.C. Jan. 20, 2012, No 5:07-HC-2101-BO)
2012 WL 174363, the district court found as follows: ―Given that
even the government‘s experts concede that characterization of
hebephilia is a hotly contested issue in the mental health
community, the Court finds that it would be inappropriate to
predicate civil commitment on a diagnosis that a large number of
clinical psychologists believe is not a diagnosis at all, at least for
forensic purposes. Therefore, the Court finds that the government
has failed to meet its burden to show that Mr. Neuhauser
currently suffers from a serious mental illness, abnormality, or
disorder.‖ (Id. at *2.)
       Under current California law, a SVP‘s mental disorder
need not be listed in the DSM for purposes of commitment,
because ―[t]he SVPA does not refer to the DSM, much less require
an SVP‘s mental disorder be listed in it.‖ (People v. Johnson,
supra, 235 Cal.App.4th at p. 91.)




                                  5
       Third, the diagnosis is dependent on knowing more than
the victim‘s age—because children mature physically and develop
sexually at different ages, it is important to a know a victim‘s
appearance for that is what is driving the defendant‘s behavior.
In other words, based purely on age, a 15-year-old victim could
easily but inaccurately be characterized as postpubescent;
similarly a 14-year-old victim who has matured more rapidly
than his or her peers could, for purposes of diagnosis, be properly
categorized as postpubescent. On a related note, Dr. Musacco
admitted that girls begin maturing and finish maturing before
boys.
       Fourth, and perhaps most critically, Dr. Musacco conceded
that he did not know anything about Wright‘s victims other than
their ages at the times of the offenses. As a result, Dr. Musacco
had to ―hypothesiz[e] that [Wright‘s] behavior‖ with regard to the
first three victims was driven by their presumed ―lack of full
sexual development.‖
       Because of this lack of information, Dr. Musacco stated
plainly that it is ―debatable‖ whether the hebephilia diagnosis
applies to Wright. As Dr. Musacco explained, ―I don‘t . . . know
that his behaviors were driven by the sexual development of the
victims. I don‘t know what they looked like. I don‘t know where
they were at [in terms of their sexual development]. I know
several were 14. One was 15. One was 17. The 17-year-old, I
already said doesn‘t apply. The 14- and 15-year-old, . . . I can‘t be
certain that‘s what is driving his behavior. . . . [T]his is not as
clear-cut as many of the cases that I have testified on.‖ Because
he did not have descriptions of the victims‘ ―body types‖ or any
information about the victims‘ ―development of any sexual
characteristics,‖ Dr. Musacco had to make ―assumptions that




                                  6
their physical development [wa]s such that [it] meets with the
definition of hebephilia.‖ Dr. Musacco acknowledged that certain
risks accompanied his assumptions: ―[I]f the 15-year-old wasn‘t
pubescent, if the 14-year-olds weren‘t pubescent, the diagnosis
would be inaccurate.‖ As Dr. Musacco explained, ―if I knew their
body type I could be firm in my opinion or I would retract my
opinion.‖
      Finally, Dr. Musacco conceded that Wright‘s behavior since
being admitted to Coalinga State Hospital has been ―very good,‖
exhibiting both sexual and general ―self-regulation,‖ ―no sexual
acting out whatsoever.‖
      As a result of these concessions, Dr. Musacco repeatedly
characterized his diagnosis as a ―close call‖ or a ―close case.‖ On
a scale of 1-10, with one being a weak case and 10 being a strong
case, Dr. Musacco rated Wright‘s case as a ―six.‖
      After the People rested, Wright moved, pursuant to Penal
Code section 1118, to dismiss the petition on the grounds that the
People had failed to meet their burden of proof with regard to the
existence of a diagnosed mental disorder. The court denied the
motion, ruling that the People‘s evidence was ―barely‖ sufficient
to survive Wright‘s motion to dismiss.
      B.     DR. PHOENIX’S TESTIMONY
      Like Dr. Musacco, Dr. Phoenix evaluated Wright on several
occasions (October/November 2008, December 2010, and October
2015). However, unlike Dr. Musacco, Dr. Phoenix concluded that
Wright was not a SVP and ―did not have a diagnosed mental
disorder, according to the law.‖ Dr. Phoenix did not offer a




                                 7
psychological diagnosis because she did not think ―there is
sufficient evidence to support a sexual abnormality of any type.‖3
       While Dr. Phoenix was familiar with Dr. Musacco‘s
diagnosis, and with the concept of hebephilia, she was troubled
by the lack of evidence demonstrating that Wright was aroused to
females in the middle of pubescence (generally, girls aged 11
through 13 and sometimes 14), which is the stage generally
associated with hebephilia. Dr. Phoenix believed it was
impossible to determine whether Wright‘s victims were at that
stage, because the only data consisted of their respective ages,
and there was no information regarding their ―sexual
characteristics‖ or ―sexual maturity.‖ Of particular significance
to Dr. Phoenix was the fact that Wright did not commit any
offenses against females between the ages of 11 and 13: ―there is
no indication he was ever looking for a 10- or 11- or 12- or 13-
year-old female who is going to look more immature. And I think
we all know there are some 14- 15- 16-year-olds that are quite
developed and look older than they are.‖
       In order to make a diagnosis of hebephilia, Dr. Phoenix
believed that she would have to make a ―broad assumption‖ that
the victims of the 1995 and 1999 offenses were in the middle of
their pubescence, when there was no such confirming


      3 Unlike  Dr. Musacco, Dr. Phoenix did not believe that
Wright kept repeating his criminal behavior because it had a
deviant objective. Instead, she thought that it was ―far more
likely‖ that Wright‘s conduct was driven by immaturity and
egocentrism, by ―wanting to be a player, wanting to look like I
can get all these girls and have sex and disregard the
laws . . . . And not having any kind of moral compass at that
time.‖




                                8
information: ―I think in this case there is just insufficient
information to make that kind of assumption.‖
       Dr. Phoenix declined to make any generalizations or
assumptions about Wright‘s alleged preference for pubescent
females for reasons other than the lack of information about the
victims. While pertinent information on the victims was absent,
there was information about Wright himself which pointed away
from a hebephilia diagnosis. For example, Wright had a
significant history of relationships with and sexual arousal by
adult females, including living with an adult woman for nine
years.
       C.    THE TRIAL COURT’S FINDING
       On January 15, 2016, the trial court found Wright to be a
SVP and committed him to Coalinga State Hospital for an
indefinite term. Although the trial court acknowledged that
hebephilia was a ―rare‖ diagnosis, it found that such a diagnosis
was warranted in this case for the following reasons: Wright‘s
―similar conduct‖ with respect to all four victims; the fact that
two of Wright‘s victims were at the time of the offenses between
the ages of 11 and 14 (i.e., the ages that ―fit‖ the ―definition of
hebephilia‖); and Wright‘s ―consistent pattern‖ of targeting young
females as soon as being released from jail. The trial court
acknowledged but did not address the significance of the lack of
evidence regarding the victims‘ physical/sexual development.
                           DISCUSSION
I.     The People’s burden and the standard of review
       ―Section 6604, which describes the determination to be
made at trial, requires that a court or jury find ‗beyond a
reasonable doubt, the person is a sexually violent predator.‘ . . . A
sexually violent predator is defined in section 6600,




                                  9
subdivision (a)(1), as ‗a person who has been convicted of a
sexually violent offense against two 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.‘ ‖ (Cooley v.
Superior Court (2002) 29 Cal.4th 228, 246, italics omitted.)
       ―In reviewing the evidence sufficient to support a
commitment under section 6600, ‗courts apply the same test as
for reviewing the sufficiency of the evidence to support a criminal
conviction.‘ [Citation.] ‗Thus, this court must review the entire
record in the light most favorable to the judgment to determine
whether substantial evidence supports the determination below.
[Citation.] To be substantial, the evidence must be ― ‗of
ponderable legal significance . . . reasonable in nature, credible
and of solid value.‘ ‖ ‘ ‖ (People v. Carlin ((2007) 150 Cal.App.4th
322, 333.)
II.    Expert opinions and substantial evidence
       ―Although it is true that the testimony of a single witness,
including the testimony of an expert, may be sufficient to
constitute substantial evidence [citation], when an expert bases
his or her conclusion on factors that are ‗speculative, remote or
conjectural,‘ or on ‗assumptions . . . not supported by the record,‘
the expert‘s opinion ‗cannot rise to the dignity of substantial
evidence‘ and a judgment based solely on that opinion ‗must be
reversed for lack of substantial evidence.‘ ‖ (Wise v. DLA Piper
LLP (US) (2013) 220 Cal.App.4th 1180, 1191–1192 (Wise).)
       California has long recognized that an expert‘s opinion
cannot rest on his or her qualifications alone: ―even when the
witness qualifies as an expert, he or she does not possess a carte
blanche to express any opinion within the area of expertise.




                                 10
[Citation.] For example, an expert‘s opinion based on
assumptions of fact without evidentiary support [citation], or on
speculative or conjectural factors [citation], has no evidentiary
value [citation] and may be excluded from evidence.‖ (Jennings
v. Palomar Pomerado Health Systems, Inc. (2003) 114
Cal.App.4th 1108, 1117.) California courts have been
particularly chary of expert testimony based on assumptions that
are not supported by the evidentiary record: ―an expert‘s opinion
that something could be true if certain assumed facts are true,
without any foundation for concluding those assumed facts exist
in the case before the jury, does not provide assistance to the jury
because the jury is charged with determining what occurred in
the case before it, not hypothetical possibilities.‖ (Ibid., italics
omitted.)
       Our Supreme Court recently re-affirmed that ― ‗[a]n expert
opinion has no value if its basis is unsound. [Citations.] Matter
that provides a reasonable basis for one opinion does not
necessarily provide a reasonable basis for another opinion.
Evidence Code section 801, subdivision (b), states that a court
must determine whether the matter that the expert relies on is of
a type that an expert reasonably can rely on ―in forming an
opinion upon the subject to which his testimony relates.‖ . . . We
construe this to mean that the matter relied on must provide a
reasonable basis for the particular opinion offered, and that an
expert opinion based on speculation or conjecture is
inadmissible.‘ ‖ (Sargon, supra, 55 Cal.4th at p. 770, italics
omitted.) In other words, assumptions which are not grounded in
fact cannot serve as the basis for an expert‘s opinion: ― ‗[T]he
expert‘s opinion may not be based ―on assumptions of fact




                                 11
without evidentiary support [citation], or on speculative or
conjectural factors . . . .‘ ‖ (Ibid.)
       In short, speculation is not evidence and cannot support a
conviction or, as here, an involuntary commitment. (People v.
Waidla (2000) 22 Cal.4th 690, 735; People v. Marshall (1997) 15
Cal.4th 1, 35.) A reasonable inference may not be based solely
upon suspicion, imagination, speculation, supposition, surmise,
conjecture, or guess work. (People v. Raley (1992) 2 Cal.4th 870,
891.) ― ‗ ―A finding of fact must be an inference drawn from
evidence rather than . . . a mere speculation as to probabilities
without evidence.‖ ‘ ‖ (Ibid.)
III. The judgment was not supported by substantial
evidence of a diagnosed mental disorder
       Here, the evidence supporting the trial court‘s conclusion
that Wright suffered from a diagnosed mental disorder—
Dr. Musacco‘s opinion—was not of ponderable legal
significance or of solid value. Dr. Musacco‘s opinion that Wright
suffers from hebephilia was based, in principal part, on assumed
and hypothesized facts about the 14-year-old and 15-year-old
victims‘ physical and sexual development, and those assumed
and hypothesized facts were not supported by the record. In
other words, because Dr. Musacco‘s diagnosis was based on pure
speculation and conjecture about the victims‘ physical and sexual
development, it did not possess any evidentiary value.
       In its ruling, the trial court wrestled with a number of
difficult issues, but it did not address the evidentiary hole at the
core of Dr. Musacco‘s diagnosis—the lack of any information
about the victims‘ physical and sexual development. ―When a
trial court has accepted an expert‘s ultimate conclusion without
critical consideration of his reasoning, and it appears the




                                 12
conclusion was based upon improper or unwarranted matters,
then the judgment must be reversed for lack of substantial
evidence.‖ (Pacific Gas & Electric Co. v. Zuckerman (1987) 189
Cal.App.3d 1113, 1136.)
       In sum, because Dr. Musacco‘s opinion did not rise to the
― ‗dignity of substantial evidence,‘ ‖ the judgment committing
Wright to an indeterminate term as a SVP ― ‗must be reversed for
lack of substantial evidence.‘ ‖ (Wise, supra, 220 Cal.App.4th at
p. 1192.)
                           DISPOSITION
       The judgment is reversed.
       CERTIFIED FOR PUBLICATION.


                                    JOHNSON, J.


We concur:


             ROTHSCHILD, P. J.


             CHANEY, J




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