Filed 7/17/14 P. v. Harris CA3
                                           NOT TO BE PUBLISHED
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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C074768

                   Plaintiff and Respondent,                                     (Super. Ct. No. 96F00388)

         v.

LAURENCE EDWIN HARRIS,

                   Defendant and Appellant.




         Defendant Laurence Edwin Harris appeals the trial court’s judgment committing
him to a state hospital for an indeterminate term following a jury finding that he was a
sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act
(SVPA). (Welf. & Inst. Code,1 § 6600 et seq.) He contends there is insufficient
evidence: (1) he suffers from a mental disorder that would make it difficult to control his




1        Undesignated statutory references are to the Welfare and Institutions Code.

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criminally sexual behavior; and (2) he poses a substantial danger if released. We
conclude the jury’s findings are supported by substantial evidence and affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In April 2008, the People petitioned the trial court to commit defendant as an SVP.
Based on the evidence summarized below, at the conclusion of the trial, the jury found
defendant is an SVP, and the court committed the 70-year-old defendant to the custody of
the California Department of State Hospitals for appropriate treatment and confinement
for an indefinite term.
                                             A
                                  Prior Criminal History
       Defendant was convicted of sexual penetration with a foreign object of a person
incapable of resisting and sexual penetration with a foreign object by force based on
events occurring in 1995. Both victims were patients at the mental health facility where
defendant worked. Defendant partially undressed a catatonic patient, touched and sucked
one of her breasts, rubbed his finger across her clitoris, kissed her on the mouth, and
rubbed his penis with her hand. He befriended the other patient and, after she was
released, engaged in a sexual relationship with her. One day, he arrived at her home
uninvited, and forcibly touched her breast and vagina with his hands and mouth, despite
her protests.
       Defendant also had a 1972 conviction for first degree burglary with a great bodily
injury finding. Defendant had assaulted the female victim, a tenant at the apartment
complex where he worked; had beaten her; and had cut the muscles from her vagina to
her rectum. He had “fantasized rape” and had selected the victim because he believed her
unlikely to have a “protector.” When the encounter did not go as he had fantasized, he
stabbed her in the chest with an ice pick and, after she lost consciousness, “shoved his
hand into her vagina as a vicious and sexual expression of his anger.” Though defendant



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denied having sexual intercourse with the victim, he was found shortly after the attack
with blood on his penis.
       Defendant had previously been charged with attempted rape in 1965, but was not
convicted.2
                                             B
                                   Prosecution Evidence
       Dr. Larry Wornian, a psychologist, evaluated defendant and was of the opinion
that he suffers from paraphilia3 not otherwise specified, a lifelong condition that
predisposes defendant to commit sexually violent predatory acts. According to Wornian,
this sexual disorder would make it difficult for defendant to control his sexual urges and
paraphilic behavior. Wornian further testified, based on his assessment of defendant, that
he poses a serious and well-founded risk of committing future sexually violent predatory
offenses because of his mental disorder if released from a secure facility.
       On cross-examination, Wornian testified that he had initially scored defendant as a
“6” on the Static-99R index (a psychological assessment tool), but volunteered that he
ought to have scored him as a “5”; either of these scores would have categorized
defendant as a high-risk sex offender. After further questioning, Wornian conceded he
should have scored defendant a “2” because Wornian had incorrectly accounted for
defendant’s age. This score places defendant in the “low moderate” range for risk of



2      The victim asked that the case not be prosecuted as she was moving out of state.
3      The Diagnostic and Statistical Manual of Mental Disorders, defines paraphilia as:
“[r]ecurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally
involving (1) nonhuman objects, (2) the suffering or humiliation of oneself or one’s
partner, or (3) children or other nonconsenting persons that occur over a period of at least
6 months.” Furthermore, “the behaviors, sexual urges, or fantasies cause clinically
significant distress or impairment in social, occupational, or other important areas of
functioning.” (American Psychiatric Assn., Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 2000, text rev.) p. 566.)

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recidivism. Notwithstanding this changed score, Wornian maintained that defendant
posed a substantial and well-founded risk of reoffending. As Wornian explained, the
Static-99R result is but one factor to be considered, and, in light of other dynamic factors,
defendant still posed a substantial risk.
       Among these dynamic factors were intimacy deficits, general self-regulation,
sexual self-regulation, defendant’s history, and his cooperation with supervision. While
he noted that defendant had not engaged in sexual misbehavior while incarcerated and
confined, Wornian reasoned this was likely due to a lack of access to victims, thus it did
not impact Wornian’s assessment of defendant. Wornian also took issue with
defendant’s perception that he was not a sex offender, predator or stalker, and that
defendant did not think his trouble with women would be a problem anymore because of
his age. Wornian found defendant’s statements about his reduced sexual drive not
credible because defendant also refused to acknowledge his prior criminal admissions
and the sexual offenses, and because defendant was evasive in interviews. For Wornian,
defendant’s lack of self-perception and failure to engage in sex offender treatment while
confined demonstrated a lack of insight, which indicated defendant was likely to
reoffend. Wornian was also concerned with defendant’s apparent desire to leave
California upon his release so that he could go to Oregon, “where they are not as strict
with sex offenders.”
       Wornian additionally considered defendant’s cardiac health issues and his age, but
discounted these as “protective factors” in this case. While it may be possible that at his
advanced age defendant’s sex drive had diminished, Wornian noted that defendant failed
to avail himself of any group therapy relating to sexual offenses while at the state
hospital, only attended sessions dealing with anger management, failed to reform despite
prior state-mandated treatment, and lacked an adequate support network. And, though
defendant’s health issues would normally be a protective factor, they were not in this



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instance because defendant uses manipulation rather than a high level of exertion to
engage in his sexual misbehavior.
                                              C
                                     Defense Evidence
       Dr. Christopher Fisher, also a psychologist, testified defendant’s acts were of a
criminal nature and not related to a mental disorder; that defendant did not suffer from
paraphilia or any other diagnosed mental disorder because defendant could control his
criminal behavior; and, based on his assessment of defendant using the Static-99R, that
there was not a substantial well-founded risk defendant would reoffend. Fisher was of
the opinion that defendant was not paraphilic because he did not obtain sexual
gratification from the nonconsenting nature of his victims. Fisher also said defendant did
not pose a substantial risk of reoffense, based on defendant’s score of “2” of the Static-
99R assessment and the fact that defendant had not acted inappropriately toward any
female staff or other prisoners while at the state hospital. A psychiatric technician and
defendant’s treating psychologist from the state hospital both confirmed that defendant
had not behaved sexually inappropriately while confined. Unlike Wornian, Fisher did not
rely on “dynamic factors” because he considers them less reliable.
                                       DISCUSSION
       “A person may be civilly committed as a sexually violent predator under the
SVPA upon proof beyond a reasonable doubt that the person (a) has been convicted of
two predicate sex offenses as defined in the statute, and (b) ‘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.’ (§ 6600,
subd. (a)(1); see § 6604.)” (People v. Flores (2006) 144 Cal.App.4th 625, 632.)
Defendant does not dispute his qualifying prior convictions, but contends there is
insufficient evidence he suffers from a “diagnosed mental disorder,” as statutorily
defined, or that he is likely to engage in sexually violent criminal behavior.

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       “When a defendant challenges the sufficiency of the evidence to support a finding
that he is an SVP, ‘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.]’
[Citation.] ‘In reviewing the record to determine the sufficiency of the evidence this
court may not redetermine the credibility of the witnesses, nor reweigh any of the
evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of
the judgment.’ ” (People v. Sumahit (2005) 128 Cal.App.4th 347, 352.)
                                               I
                                Diagnosed Mental Disorder
       The crux of defendant’s claim is that the prosecution’s expert testified that
defendant’s paraphilia would make it difficult for him to control his behavior, but did not
specifically opine that defendant’s mental diagnosis would make controlling his criminal
sexual behavior seriously difficult. Despite the lack of expert testimony expressly
opining that defendant’s diagnosis will cause him serious difficulty controlling his
aberrant behavior, substantial evidence was presented that defendant suffers from a
statutorily-defined “diagnosed mental disorder.”
       A “[d]iagnosed mental disorder” is “a congenital or acquired condition affecting
the emotional or volitional capacity that predisposes the person to the commission of
criminal sexual acts in a degree constituting the person a menace to the health and safety
of others.” (§ 6600, subd. (c).) Thus, to find that a person suffers from a “diagnosed
mental disorder,” the jury must find that the mental disorder “causes serious difficulty in
controlling one’s criminal sexual behavior.” (People v. Williams (2003) 31 Cal.4th 757,
759-760, citing Kansas v. Crane (2002) 534 U.S. 407, 413 [151 L.Ed.2d 856, 862-863].)




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       The jury was instructed with standard jury instruction, CALCRIM No. 3454,4
which tracks the statutory language of section 6600. We assume the jury properly
followed this instruction (People v. Cook (2006) 39 Cal.4th 566, 610), and the California
Supreme Court has previously concluded that “[j]urors instructed in these terms must
necessarily understand that one is not eligible for commitment under the SVPA unless his
or her capacity or ability to control violent criminal sexual behavior is seriously and
dangerously impaired” (People v. Williams, supra, 31 Cal.4th at pp. 776-777). Thus, we
conclude the jury’s decision to commit defendant under the SVPA “necessarily
encompasses a determination of serious difficulty controlling [his] criminal sexual
violence.” (Id. at p. 777.)
       Moreover, this conclusion is supported by substantial evidence in the form of
expert opinion testimony that defendant is unable to control his behavior as a result of his
mental disorder. Wornian testified that defendant has demonstrated “aberrant sexual
interests and engagements that span better than 30 years,” acknowledged having rape
fantasies, and “acted on his aberrant sexual interests on more than one occasion.”


4       As given, the instruction reads, in pertinent part: “The petition alleges that
[defendant] is a sexually violent predator. To prove this allegation, the People must
prove beyond a reasonable doubt that: [¶] 1. He has been convicted of committing
sexually violent offenses against one or more victims; [¶] 2. He has a diagnosed mental
disorder; [¶] 3. As a result of that diagnosed mental disorder, he is a danger to the health
and safety of others because it is likely that he will engage in sexually violent predatory
criminal behavior; AND [¶] 4. It is necessary to keep him in custody in a secure facility
to ensure the health and safety of others. [¶] The term ‘diagnosed mental disorder’
includes conditions either existing at birth or acquired after birth that affect a person’s
ability to control emotions and behavior, and predispose that person to committing
criminal sexual acts to an extent that makes him or her a menace to the health and safety
of others. [¶] A person is likely to engage in sexually violent predatory criminal
behavior if there is a substantial danger -- that is, a serious and well-founded risk -- that
the person will engage in such conduct in the future . . . if released into the community.
[¶] The term ‘likely’ in this petition means much more than a possibility, but it does not
mean more likely than not. In other words, the likelihood that a person will engage in
such conduct does not have to be greater than 50 percent.”

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Wornian further noted that defendant had failed to conform despite previously being
incarcerated and subjected to state-mandated sex offender treatment, and reasoned away
any lapse in the misbehavior while defendant was confined. We conclude Wornian’s
opinion is reasonable based on the facts, is “ ‘ “of ponderable legal significance,” ’ ” and
is substantial evidence supporting the jury’s finding that defendant suffers from a
“diagnosed mental disorder.” (People v. Sumahit, supra, 128 Cal.App.4th at p. 352.)
                                              II
                                     Likely To Reoffend
       Defendant also contends there is insufficient evidence that he is likely to reoffend
because he only scored a “2” on the Static-99R assessment, he had no criminal offenses
in the 17-year period between his convictions, and he is 70 years old with health issues.
We conclude the prosecution expert’s opinion testimony that defendant poses a
substantial and well-founded risk of recidivism is substantial evidence to support the
verdict, despite the defense expert’s opinion testimony to the contrary.
       “The jury ‘must conclude that [a] person is “likely” to reoffend if, because of a
current mental disorder which makes it difficult or impossible to restrain violent sexual
behavior, the person presents a substantial danger, that is, a serious and well-founded
risk, that he or she will commit such crimes if free in the community.’ (People v.
Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922 . . . .) This standard requires ‘much
more than the mere possibility that the person will reoffend,’ but it does not call for ‘a
precise determination that the chance of reoffense is better than even.’ ” (People v.
Flores, supra, 144 Cal.App.4th at p. 632, italics omitted.)
       In reviewing a decision to commit a defendant under the SVPA, a conflict among
experts’ opinions does not render evidence supporting a judgment insufficient. (People v.
Flores, supra, 144 Cal.App.4th at pp. 632-633.) While Wornian conceded defendant
posed a low-moderate risk based on the Static-99R assessment, in his opinion defendant
was likely to engage in sexually violent predatory behavior as a result of his mental

                                              8
disorder if he were released based on Wornian’s review of various dynamic factors. In
finding that defendant satisfied the criteria for confinement, the jury necessarily rejected
Fisher’s contention that defendant’s age and health issues made him unlikely to reoffend,
and accepted Wornian’s opinion that defendant was likely to recidivate. The jury
determines the credibility and weight of such evidence, and we do not reevaluate it.
(People v. Flores, supra, 144 Cal.App.4th at p. 633, citing People v. Poe (1999)
74 Cal.App.4th 826, 831 & People v. Mercer (1999) 70 Cal.App.4th 463, 466-467.)
Wornian’s opinion is “ ‘ “reasonable in nature, credible and of solid value” ’ ” (Mercer,
at p. 466) from which the jury could conclude defendant posed a serious and well-
founded risk to reoffend.
                                      DISPOSITION
       The judgment is affirmed.



                                                        ROBIE                  , J.



We concur:



      RAYE                  , P. J.



      HOCH                  , J.




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