Filed 11/4/13 P. v. Simmons CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039198
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. E9909752)

             v.

MARK STEVEN SIMMONS,

         Defendant and Appellant.



         Defendant Mark Steven Simmons appeals from an order extending his involuntary
commitment as a mentally disordered offender (MDO), arguing that insufficient evidence
supports the order. We will affirm.
                                 FACTUAL AND PROCEDURAL HISTORY1
         In early 1999, defendant, who was then 39 years old, boarded at a home where a
14-year-old girl, D., lived with her mother. One day, defendant entered D.’s bedroom
wearing only a bathrobe, held D.’s shoulders, and pressed himself against her back until
she felt his penis. Similar incidents occurred four or five times. On a separate occasion,


         1
          In his opening brief, defendant relies on the factual and procedural summary in
People v. Simmons (Jan. 31, 2008, H031491) [nonpub. opn.], a prior unpublished opinion
of this court regarding defendant. We take judicial notice of that decision and our prior
decision in People v. Simmons (Jun. 5, 2013, H037403) [nonpub. opn.]. (Evid.Code,
§ 452, subd. (d).) We base our factual and procedural summary on those decisions, as
well as the record in this case.
D. woke up and discovered that defendant was touching her legs, thighs, and the area
between her legs. D. pretended to be asleep, and defendant continued to touch her for
30 minutes or more. D. tried to push defendant away, and he eventually stopped touching
her.
       In March 1999, defendant pleaded no contest to two counts of lewd and lascivious
acts on a 14-year-old girl who was more than 10 years younger than him. (Pen. Code,
§ 288, subd. (c)(1).)2 He was placed on probation in May 1999, on condition that he
have no contact with D. Probation was revoked in November 1999 because defendant
violated that condition. Defendant admitted the probation violation in December 1999,
and he was committed to prison for a term of two years eight months.
       In November 2000, defendant was transferred from prison to Atascadero State
Hospital for treatment. He was discharged to the Conditional Release Program
(CONREP) in August 2001, but shortly thereafter he was re-hospitalized at Napa State
Hospital (NSH) because he expressed suicidal ideations and failed to follow the
CONREP rules.
       In August 2003, the Santa Clara County District Attorney filed a petition, pursuant
to the MDO Act (Pen. Code, § 2960 et seq.), to extend defendant’s involuntary
commitment beyond the expiration of his parole term. A jury found that defendant was
an MDO, and the trial court extended defendant’s commitment for a one-year period.
Between 2004 and 2011, the court periodically extended defendant’s MDO commitment.
       In April 2012, the Santa Clara County District Attorney filed a petition to extend
defendant’s MDO commitment for an additional year. A court trial on the petition
commenced on December 6, 2012.




       2
           Subsequent unspecified statutory references are to the Penal Code.
                                              2
       At the trial, Dr. Benjamin Philip Rose, a clinical staff psychologist at NSH,
testified as an expert in the diagnosis of mental disorders and risk assessment. At the
time of the trial, Dr. Rose had been treating defendant for approximately one year.
       Dr. Rose opined that defendant suffered from the severe mental disorder of
pedophilia. He explained that pedophilia is “an attraction to and behavior related to
sexual contact with children under the age of 14 that persists for at least six months.” In
diagnosing defendant with pedophilia, Dr. Rose relied on records that showed the
following: defendant placed his finger inside a four-year-old girl’s vagina, defendant
touched an eight-year-old girl between her legs, at the age of 16 defendant had sex with
his 10-year-old sister, and defendant masturbated to images of his 10-year-old sister.
Dr. Rose also opined that defendant suffered from narcissistic personality disorder, a
condition that “has to do with attitudes and beliefs of grandiosity and a lack of empathy
and a need for adoration.”
       Dr. Rose opined that defendant’s pedophilia was not in remission through
treatment. He explained that defendant failed to discuss his sexual misconduct with his
treatment team, defendant would not discuss the triggers to his pedophilic impulses,
defendant did not have a relapse prevention plan, defendant denied all sexual contact with
children under age 14 on several occasions, and defendant did not believe that he suffered
from pedophilia. As recently as the week before the trial, defendant told Dr. Rose that he
did not suffer from pedophilia and that he had not had sexual contact with any child
under the age of 14. Dr. Rose also explained that, although defendant had not
demonstrated any overtly pedophilic behaviors at NSH, some “comments that he’s
made . . . give evidence to pedophilic behaviors.” In particular, defendant told Dr. Rose
that “relationships between an adult and a pubescent child are acceptable in many
cultures.” Defendant argued that such a practice was appropriate.



                                             3
       Dr. Rose also opined that defendant had not voluntarily followed his treatment
plan. He explained that defendant’s treatment plan required him to address his past
instances of pedophilic behavior, and yet defendant had denied that he suffered from
pedophilia and refused to address his past pedophilic conduct. Dr. Rose’s opinion was
also based on a report that specified that defendant told a psychiatrist that he attended
sex-offender treatment only to satisfy the court and not because he believed he needed it.
Although defendant had recently been appropriately participating in treatment, during the
previous five months there had been a period of four to five weeks in which defendant
did not attend sex-offender treatment due to argumentative behavior.
       Dr. Rose finally opined that defendant posed a substantial danger of physical harm
to others because of his pedophilia. His opinion was based on several factors:
defendant’s lack of insight regarding his pedophilia, defendant’s lack of treatment to
specifically address his dangerous behavior toward children, defendant’s lack of planning
and skills to prevent himself from engaging in sexual conduct with children in the future,
2006 actuarial testing that showed defendant posed a danger due to his pedophilia,
defendant’s statement that he attended sex-offender treatment only to satisfy the court,
and defendant’s poor judgment. Dr. Rose personally observed the following instances in
which defendant exercised poor judgment: defendant told an NSH staff member that she
was his “type of girl,” defendant’s statement that he did not believe there was any
problem with patients having romantic relationships with NSH staff members, and
defendant’s presentation of justifications any time Dr. Rose informed him that romantic
relationships between patients and NSH staff members were prohibited. Dr. Rose was
also aware that defendant repeatedly called female NSH staff members “baby girl,” and
that defendant had written letters to staff members proposing sexual relationships.
Dr. Rose emphasized that when making a determination regarding the risk posed by a



                                              4
pedophile, “we are wanting to know whether or not they can make good judgments with
regard to sexuality.”
       Defendant testified that he did not suffer from pedophilia and was not sexually
attracted to children. He emphasized that there was no proof that he had pedophilia. He
did not believe that he needed sex-offender treatment. Defendant noted, however, that
“18 is not the magic bullet number of physically mature” for girls. He also testified that
“the business of being an adult at 18 is actually arbitrary.”
       Defendant admitted that he molested a four-year-old girl, but he explained that it
was an “occult ritual” in preparation for his role in the 1980s Iran hostage situation.
Defendant testified that he molested the eight-year-old girl during a “test” to determine
whether he could be a father. Defendant acknowledged that 14-year-old D.’s body was in
“transition phase from little girl to grown woman,” and he explained that he “was
actually trying to help her get over the hump.” He testified that “if [he] hadn’t intervened
in D.’s life, she would have killed herself.”
       Defendant described his wellness and recovery plan. Pursuant to that plan,
defendant intended to live in Los Angeles and attend Alcoholic Anonymous and Sex
Addicts Anonymous meetings. ~(RT 148-149)~
       Dr. Douglas Korpi testified for defendant as an expert in the diagnosis of mental
disorders and risk assessment. He evaluated defendant during an October 2012
interview, and he reviewed defendant’s state hospital records. He diagnosed defendant
with a “mild form” of pedophilia. He determined that defendant’s pedophilia was not in
remission, but he noted that the determination was made “in an abundance of caution.”
Dr. Korpi explained that defendant’s narcissistic personality disorder, which was not a
serious mental disorder, was “the primary diagnosis in this case.” He noted that
defendant’s molestations of the four-year-old girl and the eight-year-old girl were
“primarily” driven by defendant’s pedophilia, but that defendant’s narcissistic personality

                                                5
disorder could also have been a factor in the molestations. He explained that defendant’s
narcissistic personality disorder was a contributing factor in defendant’s molestation of
14-year-old D.
       Dr. Korpi opined that defendant did not pose a substantial danger of physical harm
to others based on his pedophilia diagnosis. In support of his opinion, Dr. Korpi cited the
results of actuarial tests he administered to defendant, which showed that defendant
posed a two to 10 percent chance of sexually reoffending in five years and a three to 16
percent chance of sexually reoffending in 10 years. He opined that defendant had a
“significant likelihood of doing stalking-like behavior” as a result of his narcissistic
personality disorder. He noted that defendant experienced delusions as part of his
narcissistic personality disorder, and that defendant’s delusions could cause him to
sexually reoffend with an underage girl.
       At the conclusion of the trial, the court found that the People had proved the
allegations in the MDO petition beyond a reasonable doubt. The court accordingly
ordered defendant’s involuntary commitment to be extended for one year.
       Defendant filed a timely notice of appeal. This appeal followed.
                                        DISCUSSION
       Defendant argues that we must reverse the commitment order due to insufficient
evidence. Defendant attacks the sufficiency of the evidence in two respects: 1) he
contends that there was insufficient evidence that his pedophilia was not in remission and
could not be kept in remission without treatment; and 2) he contends that there was
insufficient evidence that he represented a substantial danger of physical harm to others
as a result of his pedophilia. As explained below, defendant’s contentions are
unpersuasive.
       “In considering the sufficiency of the evidence to support MDO findings, an
appellate court must determine whether, on the whole record, a rational trier of fact could

                                              6
have found that defendant is an MDO beyond a reasonable doubt, considering all the
evidence in the light which is most favorable to the People, and drawing all inferences the
trier could reasonably have made to support the finding. [Citation.] ‘ “ ‘Although we
must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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. [Citation.] Thus, if
the [finding] is supported by substantial evidence, we must accord due deference to the
trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact
finder. . . .’ [Citation.]” ’ ” (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.)
         Section 2972 mandates a one-year extension of an MDO’s commitment if three
criteria are satisfied: “If the court or jury finds that the patient has a severe mental
disorder, that the patient’s severe mental disorder is not in remission or cannot be kept in
remission without treatment, and that by reason of his or her severe mental disorder, the
patient represents a substantial danger of physical harm to others, the court shall order the
patient recommitted to the facility in which the patient was confined at the time the
petition was filed . . . . The commitment shall be for a period of one year from the date of
termination of . . . a previous commitment . . . .” (§ 2972, subd. (c).) Thus, a
recommitment “requires proof beyond a reasonable doubt that (1) the patient has a severe
mental disorder; (2) the disorder ‘is not in remission or cannot be kept in remission
without treatment’; and (3) by reason of that disorder, the patient represents a substantial
danger of physical harm to others.” (People v. Burroughs (2005) 131 Cal.App.4th 1401,
1404.)
         Section 2962 defines “remission” as follows: “The term ‘remission’ means a
finding that the overt signs and symptoms of the severe mental disorder are controlled
either by psychotropic medication or psychosocial support.” (§ 2962, subd. (a)(3).)
Section 2962 also defines the phrase “cannot be kept in remission without treatment”: “A

                                               7
person ‘cannot be kept in remission without treatment” if during the year prior to the
question being before the . . . trial court, he or she has been in remission and he or she
has been physically violent, except in self-defense, or he or she has made a serious threat
of substantial physical harm upon the person of another so as to cause the target of the
threat to reasonably fear for his or her safety or the safety of his or her immediate family,
or he or she has intentionally caused property damage, or he or she has not voluntarily
followed the treatment plan. In determining if a person has voluntarily followed the
treatment plan, the standard shall be whether the person has acted as a reasonable person
would in following the treatment plan.” (Ibid.)
       Here, there was substantial evidence that defendant’s pedophilia was not in
remission. Dr. Rose and Dr. Korpi both opined that defendant’s pedophilia was not in
remission. Dr. Rose specifically opined that defendant’s treatment had not caused
defendant’s pedophilia to remit. In explaining the basis of his opinion, Dr. Rose noted
that defendant made comments that “give evidence to pedophilic behaviors.” ~(RT 65)~
In particular, defendant argued with Dr. Rose and told him that relationships between
adults and children are acceptable. Thus, there was substantial evidence that the signs
and symptoms of defendant’s pedophilia were not controlled by treatment. Indeed,
defendant’s own testimony suggested that his pedophilia was not in remission—he
specifically testified that “18 is not the magic bullet number” for the physical maturity of
girls. We therefore conclude that there was sufficient evidence that defendant’s
pedophilia was not in remission. (See § 2962, subd. (a)(3 [pedophilia is in remission if
“the overt signs and symptoms . . . are controlled either by psychotropic medication or
psychosocial support”].)
       Even if we were to agree with defendant’s claim that there was insufficient
evidence that his pedophilia was not in remission, we would nonetheless conclude that
there was substantial evidence that defendant’s pedophilia could not be kept in remission

                                              8
without treatment. (See People v. Beeson (2002) 99 Cal.App.4th 1393, 1400 [where
overt symptoms of a severe mental disorder are not present, the issue is whether the
MDO can be kept in remission without treatment].) Pedophilia cannot be kept in
remission without treatment “where the person has been in remission for the past year,
but also has . . . failed to voluntarily follow his treatment plan.” (Id. at p. 1399.)
Whether a person has voluntarily followed his treatment plan is determined using a
reasonable person standard. (Ibid.) Here, Dr. Rose opined that defendant had not
voluntarily followed his treatment plan. He explained that defendant’s treatment plan
required defendant to address his past instances of pedophilic behavior, but defendant
repeatedly told Dr. Rose that he did not suffer from pedophilia and that he had not had
sexual contact with children. Dr. Rose also noted that that there had recently been a four-
to-five-week period in which defendant failed to attend his sex-offender treatment. “A
reasonable person, whose mental disorder can be kept in remission with treatment, must,
at minimum, acknowledge if possible the seriousness of his mental illness and cooperate
in all the mandatory components of his treatment plan.” (Ibid.) Thus, Dr. Rose’s
testimony that defendant failed to acknowledge the existence of his pedophilia and failed
to follow all of the components of his treatment plan constituted substantial evidence that
defendant’s pedophilia could not be kept in remission without treatment.
       Finally, there was sufficient evidence that defendant presented a substantial danger
of physical harm to others. Dr. Rose opined that defendant posed a substantial danger of
physical harm to others because of his pedophilia. His opinion was based on many
factors, including defendant’s lack of planning and skills to prevent himself from
engaging in sexual conduct with children, defendant’s lack of insight regarding his
pedophilia, and defendant’s exercise of poor judgment in pursuing romantic and sexual
relationships with NSH staff members. Dr. Rose expressed concern regarding
defendant’s history of poor judgment, and he emphasized that the danger posed by a

                                               9
pedophile is determined by “whether or not he can make good judgments with regard to
sexuality.” Dr. Rose’s testimony constituted substantial evidence of defendant’s
dangerousness. (See Evid.Code, § 411 [the testimony of one witness may be sufficient to
prove any fact]; People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508 [same].)
Although Dr. Korpi disagreed with Dr. Rose’s opinion regarding the danger associated
with defendant’s pedophilia, the “credibility of the experts and their conclusions were
matters resolved against defendant” by the trier of fact, and “[w]e are not free to reweigh
or reinterpret the evidence.” (People v. Mercer (1999) 70 Cal.App.4th 463, 466-467.)
Accordingly, we conclude that there was sufficient evidence that defendant posed a
substantial danger of physical harm to others by reason of his pedophilia.
       For the forgoing reasons, we conclude that sufficient evidence supported the trial
court’s MDO findings. We therefore must affirm the order extending defendant’s
involuntary commitment.
                                       DISPOSITION
       The order extending defendant’s commitment is affirmed.


                                          ______________________________________
                                                     RUSHING, P.J.


WE CONCUR:


____________________________________
           PREMO, J.


____________________________________
           ELIA, J.




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