Filed 9/29/14 P. v. Karl CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



THE PEOPLE,                                                              B251310

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. ZM016235)
         v.

CHRISTOPHER KARL,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Candace J. Beason, Judge. Affirmed.
         Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
       In December 2001, after having been convicted of violating Penal Code
section 288, subd. (a) (lewd and lascivious act on child under 14), defendant and
appellant, Christopher Karl, was sentenced to state prison for a term of 10 years and
8 months. In June 2010, as his release date neared, the District Attorney filed a petition
to have Karl committed as a sexually violent predator (SVP) under Welfare and
Institutions Code section § 6600.1 On August 5, 2013, a jury found the petition’s
allegations true and ordered Karl committed to the Department of Mental Health.
       Karl now appeals his SVP commitment, claiming it must be reversed for lack of
sufficient evidence. The judgment is affirmed.
                                    BACKGROUND
       Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
       1. Facts surrounding Karl’s commitment offense.
       In May 2001, Karl was arrested on suspicion of having committed lewd acts on a
child. Karl was 22 years old at the time. Detective Timothy O’Quinn, of the Los
Angeles County Sheriff’s Department, spoke to Michael, the 11-year-old victim, and to
his mother. Michael and his mother were acquainted with Karl from church and from a
local food bank where they volunteered, and Karl had done maintenance work around
their Palmdale house. One day, Michael’s mother agreed to let Karl stay overnight after
working on the house. Karl was to sleep in the living room and he asked if Michael
could stay there with him. That night, Karl put his mouth on Michael’s neck and arms,
and made “a sucking-type motion,” “mov[ing] his tongue around while his lips were
engaged on” Michael’s skin.
       The following day, in Karl’s presence, Michael told his mother what had
happened. Karl, who is apparently almost seven feet tall and weighed about 280 pounds,
reacted to Michael’s revelation in a very frightening way by telling Michael’s mother “he


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

                                             2
knew a lot of people. . . . [H]e knew martial arts, and that people get hurt when he gets
mad.” Karl slept at their house the following night too. He repeated his conduct with
Michael, but this time he also placed his mouth on Michael’s lower stomach.
       When Karl was arrested, police found a letter he had written describing how he
had developed lustful feelings toward young children, especially boys. The letter referred
to specific boys between the ages of 8 and 17. Regarding a 10-year-old boy named Nick,
the letter said: “I have taken a liking to him in hopes of helping him avoid the life I had
lived. This boy loves me and I love him, however, for as much as I want to help him, and
not hurt him, I also want to have sex with him. I fear that if I continue this friendship,
this will eventually happen.” The letter also mentioned a 14-year-old named Jason who
“is a very helpful and caring and loving kid. I also take a lot of advice from him. I do
not want to hurt him either. [¶] However, when Jason or Nick are around, all I can think
about is making love to them. [¶] I have felt this way about several other younger boys,
and in many cases have had sex with them. Most unknowingly. I never want to hurt
them, but yet I am terrified about telling them my true feelings towards them for fear of
losing their friendship, so instead of telling them, I have had sex with them while we
were sleeping. [¶] I do not wish to continue this lifestyle with the boys I am now friends
with. I know that if I happen to get the chance to sleep with any of these current friends,
I will most likely do the same things to them.”
       Police also found a photograph album which included pictures of eight-year-old
Gene. A letter written to Gene contained an extremely explicit description of a sexual
encounter between them, but Gene told Detective O’Quinn nothing like that had ever
happened. However, Gene also said he did not recall Karl taking a picture of his bare
buttocks. O’Quinn testified: “It’s very hard to see on the screen, but it depicts [Gene’s]
bare buttocks. And Gene . . said that Mr. Karl must have taken these when he was
sleeping because he did not recall ever allowing or being awake when such photos were
taken.”




                                              3
       Karl told O’Quinn he had been struggling with his sexual attraction to young boys
and that he hoped to beat this attraction just like he had beaten his drug addiction. He
admitted having written all the letters, which he characterized as a way to cope with his
feelings. He denied that any of the described sexual activities had actually occurred. He
said the picture showing Gene’s bare buttocks had been taken while Gene was awake.
       In December 2001, Karl was convicted of having committed a lewd and lascivious
act on Michael.
       2. The testimony at Karl’s SVP trial.
              a. Prosecution witness Dr. Goldberg.
       Harry Goldberg, a forensic clinical psychologist, testified he evaluated Karl, who
was now 32 or 33 years old, on three occasions between May 2010 and September 2011.
In addition to interviewing Karl, Goldberg reviewed police reports, hospital records and a
probation report.
       Goldberg testified Karl’s child molesting conviction was a qualifying sexual
offense under the SVP Act because it involved a victim under the age of 14, and therefore
constituted an offense of force or violence even if it did not involve genital touching.
Goldberg believed Karl’s conduct with Michael had been predatory because of the age
difference between them, the sexual nature of the conduct, and the likelihood the conduct
was preliminary to the kinds of explicit sexual acts described in Karl’s letters. Goldberg
believed the letters and Karl’s comparison of his attraction to children to his drug
addiction indicated an inability to control his sexual urges. Goldberg testified that,
although Karl denied having been attracted to Michael and claimed they had merely been
play-wrestling, it was common for a sexually violent predator to minimize his conduct
during an evaluation.
       Although Karl said Gene had willingly exposed his bare buttocks for the
photograph, Goldberg noted Gene told police he believed the photograph had been taken
while he was sleeping. Karl told Goldberg he had been sexually attracted to Gene and
that the photograph was a masturbatory aid.


                                               4
       Goldberg diagnosed Karl with pedophilic disorder, antisocial personality disorder
and polysubstance abuse.2 Goldberg opined Karl’s antisocial personality disorder tended
to increase his likelihood of reoffending because it “make[s] it more difficult to conform
or follow rules or suppress urges,” and it exacerbates pedophilia “because . . . you do
have the qualities which would make the pedophilia worse, such as impulsivity, lack of
remorse, aggressiveness. So you’re not unaccustomed to breaking social norms,
engaging in illegal behavior. So this exacerbates this pedophilia.”
       Other evidence demonstrating Karl’s likelihood to reoffend included the
following: he was unable to control himself with Michael even after Michael’s mother
found out what had happened;3 he committed the offense against Michael while he was
on probation; he forged a document in prison and pretended to have suicidal thoughts and
auditory hallucinations in order to deceive the staff; he exhibited a lack of remorse for his
crime; he engaged in verbally and physically aggressive behavior at Coalinga State
Hospital (CSH).
       Goldberg opined Karl’s lack of empathy and his ability to rationalize his behavior
made it more likely he would reoffend if released. Despite Karl’s denial of any current
sexual fantasies about young boys, Goldberg concluded that if left without supervision
Karl would have difficulty avoiding predatory sexual behavior. Although Karl had
resumed treatment at CSH after initially quitting the program, the fact he resumed
treatment just prior to this trial was suspicious.4 Karl’s history of polysubstance abuse

2
       Karl told Goldberg he had used alcohol, cocaine, methamphetamines and
marijuana. Goldberg testified, “I originally gave him a diagnosis in the old DSM of poly-
substance abuse.”
3
         Goldberg said, “[E]ven though he knew that the mother knew what was going on
. . . he continued to do the same thing once again even though he knew the boy was not
open to what was happening.”
4
        Goldberg testified, “[B]elieve me, I do think it’s good he is involved in treatment.
I think – kudos to him. But three months of treatment, to me, doesn’t cut it, you know.
And, unfortunately, for somebody like Mr. Karl . . . sometimes getting involved in
treatment right before court is a little suspicious.”

                                              5
contributed to his likelihood of reoffending, particularly because he had used
amphetamine, a drug which tends to increase a person’s sex drive. Goldberg testified that
drug use, in addition to antisocial personality disorder, in addition to pedophilia is “a bad
combination, essentially. [¶] You have an urge towards children. You have a
personality that is irresponsible, impulsive, aggressive, commits crimes. You also have
somebody who has a history of using drugs, which are mind-altering substances. [¶]
What we know about when anybody is under the influence of substances, they are less
inhibited, especially when you’re talking about amphetamines. Amphetamines increase
one’s sexual drive. [¶] So this is a bad combination all around.”
       Goldberg discussed Karl’s scores on a battery of standard actuarial risk assessment
scales designed to gauge his chances of recidivism. These assessment scales included the
Static-99R, the Static-2002R, the Minnesota Sex Offender Screening Tool, Revised
(MnSOST-R), and the Sex Offender Risk Appraisal Guide (SORAG). Goldberg
explained these tests “take together those risk factors known to increase one’s likelihood
to reoffend in a sexually violent manner and combine them in a statistical way so that you
come out with a score.” Karl’s scores on these tests indicated there was a high risk he
would reoffend.
              b. Prosecution expert Dr. Sims.
       Dr. G. Preston Sims, a psychologist with the Department of State Hospitals,
interviewed and evaluated Karl at CSH in early 2013. Sims reviewed probation and
police reports, previous SVP evaluations, Karl’s letters, his treatment plans and hospital
progress notes. Like Goldberg, Sims concluded Karl’s criminal offense qualified him for
commitment under the SVP statute.
       Also like Goldberg, Sims diagnosed Karl with pedophilia, antisocial personality
disorder and polysubstance dependence. Discussing the photographs and letters found
when Karl was arrested, as well as a document containing the names and addresses of
various boys, Sims opined this demonstrated Karl had devised a plan to find and groom
young boys, which was an indication Karl was likely to reoffend.


                                              6
       Karl’s disciplinary problems at CSH included aggressive behavior that was both
verbal and physical. His frequent verbal threats and physical aggression toward hospital
staff demonstrated the difficulty Karl had controlling his impulses. And his inability to
control his impulses in a controlled environment spoke to what might occur if he were
released. The fact Karl had only just begun treatment again at CSH after dropping out for
a number of months indicated treatment would not ameliorate the danger of his
reoffending.5 “So to summarize . . . he hasn’t gone very far in treatment to date. He is
having a lot of difficulty controlling his impulses on the unit at Coalinga State Hospital.”
       Sims administered actuarial risk assessment scales, including the Static-99R, the
Static-2002R, the Structured Risk Assessment, Forensic Version (SRA-FV), and the Hare
Psychopathy Checklist. Like Goldberg, Sims found these tests put Karl in the high risk
category for reoffending. Sims opined Karl’s past behavior was the best indicator of his
likely future conduct, particularly in light of his not having yet completed any meaningful
treatment.
       Sims concluded “that his mental disorder prevents him from controlling his
sexually violent behavior,” and that he presents “a substantial danger; that is, a serious
and well-founded risk for committing a future predatory, violent, criminal, sexual act.”
              c. The defense expert: Dr. Schwartz.
       Mark Schwartz, a psychologist, testified that although Karl was a pedophile, he
did not have a history of committing any criminal sexual acts and therefore it could not
be shown he was predisposed to commit future sexual offenses. Schwartz found no
evidence Karl had acted on any of the fantasies expressed in his sexually explicit letters.


5
        “The point is that since Mr. Karl has been at Coalinga State Hospital, he’s
completed Phase I of, at that time, a five-phase program, five-step program. Phase I . . .
is not a treatment-oriented part of the program. It’s really the introduction of the
program, so they just talk about what the program is and give an outline of the program,
but you don’t actually participate in the program. That doesn’t happen till Phase II. [¶]
Mr. Karl entered Phase II at some point after October 2011 when he completed Phase I.
And he’s currently still in Phase II, which is the first of the actual treatment phases of the
program.”

                                              7
He characterized Karl’s conduct with Michael as nothing more than harmless play and
saw no evidence Karl had been sexually aroused by the experience. Schwartz
characterized Karl’s writings as “fantasies which he’s not acted on. So I’m aware of the
content of some of the letters and of his journal and they’re pretty explicit and not very
nice. However, to my knowledge, he’s never acted on those urges.”
       Schwartz agreed with the prosecution experts that the standard actuarial
assessments indicated Karl presented a high risk for reoffending. Nevertheless, Schwartz
did not believe that, if released, Karl would reoffend by acting out his pedophilic
fantasies.
                                      CONTENTION
       There was insufficient evidence to sustain Karl’s commitment as a sexually
violent predator.
                                       DISCUSSION
       Karl contends there was insufficient evidence to sustain the commitment order
because there had been no showing he lacked volitional control over his sexual conduct.
This claim is meritless.
       1. Legal principles.
       Section 6600, subdivision (a)(1), provides: “ ‘Sexually violent predator’ means 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.”
       “The requirements for classification as a ‘sexually violent predator’ (SVP) are set
forth in section 6600, subdivision (a) and related provisions. First, and critical here, is
that an SVP must suffer from ‘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.’ [Citation.] A ‘diagnosed mental disorder’ is defined
in its entirety as ‘includ[ing] a congenital or acquired condition affecting the emotional or
volitional capacity that predisposes the person to the commission of criminal sexual acts

                                               8
in a degree constituting the person a menace to the health and safety of others.’
[Citation.] The phrase, ‘danger to the health and safety of others,’ is accompanied by
language making clear that proof of a ‘recent overt act’ or crime ‘in custody’ is not
required. [Citation.]” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1144,
fn. omitted.)
       “[T]he Legislature could reasonably conclude that the evidentiary methods
contemplated by the Act are sufficiently reliable and accurate to accomplish its narrow
and important purpose – confining and treating mentally disordered individuals who have
demonstrated their inability to control specific sexually violent behavior through the
commission of similar prior crimes. As noted, the Act precludes commitment based
solely on evidence of such prior crimes. [Citation.]” (Hubbart v. Superior Court, supra,
19 Cal.4th at p. 1164.)
       “. . . California’s statute inherently embraces and conveys the need for a dangerous
mental condition characterized by impairment of behavioral control. As we have seen,
the SVPA accomplishes this purpose by defining a sexually violent predator to include
the requirement of a diagnosed mental disorder [citation] affecting the emotional or
volitional capacity [citation], which predisposes one to commit criminal sexual acts so as
to render the person a menace to the health and safety of others [citation], such that the
person is ‘likely [to] engage in sexually violent criminal behavior’ [citation]. [Citation.]
[¶] . . . California’s SVPA states no category of committable disorder which does not
expressly require a dangerous effect on emotional or volitional capacity. We are
persuaded that a jury instructed in the language of California’s statute must necessarily
understand the need for serious difficulty in controlling behavior.” (People v. Williams
(2003) 31 Cal.4th 757, 774, fn. omitted.)




                                              9
       2. Discussion.
       “ ‘In reviewing the evidence sufficient to support a commitment under [the
SVPA], “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.’ ” ’ [Citation.]” (People v. McCloud (2013) 213 Cal.App.4th 1076, 1088; accord,
People v. Carlin (2007) 150 Cal.App.4th 322, 333; People v. Sumahit (2005)
128 Cal.App.4th 347, 352.)
       Karl argues the undisputed evidence showed he was able to distinguish between
his sexual fantasies and actual conduct, and that he was therefore able to control himself.
He asserts “the facts of [the qualifying] offense [i.e., the conduct with Michael] – in
which appellant briefly kissed or made sucking-type motions on the victim’s neck, arms,
and stomach, but did not engage in genital contact and did not become sexually aroused –
were at best ambiguous, and arguably in fact reflected the exercise of self-control by
appellant. Likewise, the fact that appellant wrote letters to children suggesting that he
wished to engage in sexually explicit acts with them if anything indicated that appellant
was able to exercise self-control, because, as the People’s own experts conceded, there
was no evidence that he acted upon the fantasies expressed in those letters. Specifically,
it was undisputed that, other than the commitment offense, appellant did not engage in
any improper sexual acts whatsoever, either prior to or since that offense . . . .”
       We are not persuaded by Karl’s argument, which appears to be based upon
misreading a trial record that clearly provides sufficient evidence he was volitionally
impaired. Although the prosecution and defense expert witnesses were diametrically
opposed in their estimation of Karl’s ability to control his impulses, the testimony of
defense expert Dr. Schwartz was seriously undermined when he acknowledged not
having read all the available documentation in the case.


                                              10
       Dr. Goldberg concluded Karl’s pedophilia, because it was coupled with his
polysubstance abuse and antisocial personality disorder, presented a “lethal combination”
that increased the likelihood he would reoffend. Dr. Sims reached the same conclusion.
Goldberg opined that if left to his own devices, Karl would have difficulty refraining
from predatory sexual behavior, a conclusion supported by the evidence showing Karl
could not control his behavior with Michael even after having been caught by Michael’s
mother. Sims made the same point. Noting Karl’s aggressive behavior at CSH, Sims
testified the fact Karl could not even control himself in the restricted environment of a
hospital meant he would have trouble controlling himself once released. Both experts
commented on Karl’s limited engagement with the treatment program offered at CSH.6
       The administration of standard actuarial risk assessment tests by all three experts
showed Karl had a high risk for reoffending. The defense expert’s conclusion that Karl
was not likely to reoffend was based in large part of his finding the encounter with
Michael had not been sexual, and that Karl had never acted on the sexual urges expressed
in his letters. But Schwartz had not read Karl’s interview with Detective O’Quinn in
which Karl admitted he had been sexually aroused during the incident with Michael.7 In
addition, Schwartz was unaware Gene believed Karl had pulled his pants down while he
was sleeping in order to photograph his naked buttocks.


6
       “The availability of treatment is at the heart of the SVPA. [Citation.] ‘Through
passage of the SVPA, California is one of several states to hospitalize or otherwise
attempt to treat troubled sexual predators.’ [Citation.] Accordingly, one of the key
factors which must be weighed by the evaluators in determining whether a sexual
offender should be kept in medical confinement is ‘the person’s progress, if any, in any
mandatory SVPA treatment program he or she has already undergone; [and] the person’s
expressed intent, if any, to seek out and submit to any necessary treatment . . . .’
[Citation.] A patient’s refusal to cooperate in any phase of treatment may therefore
support a finding that he ‘is not prepared to control his untreated dangerousness by
voluntary means if released unconditionally to the community.’ [Citation.]” (People v.
Sumahit, supra, 128 Cal.App.4th at pp. 354-355.)
7
       O’Quinn testified that, although Karl initially said the incident with Michael had
not been sexual, Karl later “said this had crossed the line from fantasy to reality” or
“from subconscious to conscious,” and that Karl did indeed get sexually excited.
                                             11
       Hence, Karl’s reliance on the defense expert’s opinion is misplaced for two
reasons. First, the issue on appeal is whether there was substantial evidence to support
the verdict, and clearly there was, not whether conflicts in the evidence should have been
resolved in the prosecution’s favor. (See e.g., People v. Poulsom (2013) 213 Cal.App.4th
501, 526 [“Despite the abundance of evidence supporting the jury’s finding that Poulsom
suffered from volitional impairment, Poulsom points us to evidence he believes
highlights his volitional control. In doing so, however, Poulsom confuses our task in a
substantial evidence review. The test is not the presence or absence of a substantial
conflict in the evidence. Rather, it is simply whether there is substantial evidence in
favor of the jury’s finding.”].) Second, it appears the jury had ample reason to reject the
defense expert’s opinion given his failure to account for critical evidence indicating Karl
was likely to reoffend.
       Drawing all reasonable inferences in favor of the judgment, as we must, we
conclude the testimony put on by the People constituted substantial evidence that,
because of a diagnosed mental disorder affecting his volitional or emotional control, Karl
was likely to engage in sexually violent behavior if released.




                                             12
                                 DISPOSITION
     The judgment is affirmed.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          KLEIN, P. J.

We concur:




                  KITCHING, J.




                  ALDRICH, J.




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