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November 29, 2010


The opinion of the court was delivered by: Simons, J.

P. v. Lowe CA1/5


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Lawrence Michael Lowe (appellant) appeals an order committing him to the Department of Mental Health (DMH) as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)*fn1 He raises numerous claims of error.


In 1990, appellant was convicted of committing lewd and lascivious acts against his three-year-old daughter, E.. (Pen. Code, § 288, subd. (a).) The conduct involved his fondling and orally copulating E.'s vagina. In 1992, appellant pled guilty to 14 counts of committing lewd and lascivious acts against nine-year-old fraternal twins, Jessica and Justin, whom he babysat. The conduct involved taking sexually explicit photographs of Jessica, fondling and orally copulating Jessica and fondling Justin.

In 1998, while in prison, appellant was disciplined for misusing equipment at his job assignment. The misconduct involved using computer class equipment to combine photographs of the heads of young minors with photographs of the bodies of adult naked models.

Psychologist Mark Scherrer evaluated appellant and diagnosed him with pedophilia, which Scherrer defined as sexually deviant fantasies, urges or behaviors for at least six months directed at children under the age of 13. Scherrer stated that pedophilia is a chronic, life-long disorder. He opined that appellant's inability to explain his pedophilia suggests a "volitional impairment." Scherrer also opined that appellant is dangerous to others because he is likely to engage in sexually violent predatory behavior if released into the community. Scherrer explained he utilized the Static-99 test to assess appellant's risk of sexually reoffending. Appellant scored a 5 on the test, which placed him in the medium-high range of 10.2 to 23.1 percent risk of sexual reoffense within five years, and an 11.8 to 32.1 percent risk of sexual reoffense within 10 years. Scherrer noted that appellant had not completed a sex offender treatment program. Scherrer also employed the Static-2002 test, which indicated that appellant is in a moderate risk category for sexual reoffense. However, Scherrer did not attach as much significance to the Static-2002 results as to the Static-99 results because of the newness of the Static-2002 test. Noting that appellant had sexually reoffended while on probation for a sex offense, Scherrer opined that appellant could not presently be safely treated in the community.

Scherrer opined that most parolees are unable to pay for the kind of costly intensive sex offender therapy required. Scherrer stated that the Sharper Future program, which appellant had contacted, was a good community-based sex offense treatment program, but Scherrer was concerned that the $1,000 or $1,500 monthly cost of the program would be financially prohibitive for appellant. Scherrer also stated that the letter appellant received from Sharper Future, indicating that the cost of the program would be $40 per week, would only provide one individual session and one group session per week, which would be inadequate treatment for appellant.

Psychologist Robert Owen evaluated appellant and diagnosed him as currently suffering from pedophilia, particularly directed at girls. Owen also opined that appellant was currently unable to control his pedophilia. Based on appellant's history, Static-99 test score of 5, and Static-2002 score, Owen opined there is a significant and substantial risk of appellant's sexual reoffending if released into the community. Finally, he opined that appellant meets the criteria of an SVP.

Owen opined that because appellant had not taken advantage of any community treatment programs before, it was unlikely he would be motivated to voluntarily do so now. Owen said that the outpatient Sharper Future program is a good program, but the severity of appellant's pedophilia would require a much more comprehensive program than a $40 once weekly group therapy program.

Appellant admitted that he is a pedophile and needs to "get into treatment."

Psychologist Jay Adams testified as a defense expert on forensic psychology and risk assessment as it relates to SVP cases. In evaluating appellant, Adams opined that there was not enough evidence to clearly diagnose him with pedophilia. She did not think appellant suffers from a currently diagnosed mental disorder that predisposes him to the commission of future criminal acts. She stated it was significant that appellant did not start sexually offending until he was 33 years old. Adams also noted that appellant does not suffer from antisocial personality disorder or psychopathy. Adams gave appellant a score of 4 on the Static-99 test, placing him in the medium high category, but said the Static-99 test results are one of many factors regarding a defendant's risk of reoffense. Adams opined that appellant does not pose a serious and well-founded risk of reoffense. In reaching this opinion Adams found it significant that appellant is 54 years old. Adams also opined that appellant can be safely and effectively treated in the community based on his age, his interest in treatment and his intensive supervision on parole.

Psychologist Mary Jane Alumbaugh also testified as a defense expert on forensic psychology and SVP evaluations. Alumbaugh diagnosed appellant as currently suffering from pedophilia, but found he does not suffer from an antisocial personality disorder. Alumbaugh testified that appellant currently suffers from a "volitional impairment that's causing him to act out due to his pedophilia." She gave appellant a score of 4 on the Static-99 test, placing him in the medium-high range. However, she opined that appellant was not likely to commit an SVP offense if released to the community. This opinion was based on appellant's age, intense parole supervision, and her belief that he could be helped by therapy. She also opined that appellant could be safely treated in the community.

Anthony Garcia, previously incarcerated, testified he met appellant while they were both in prison and worked together in the prison chapel. Garcia described appellant as a "very good inmate," who was always helping others. Garcia said he would be willing to give appellant $120 or $125 a month if appellant were released.

Reverend Michael Bell met appellant while Bell was working as a prison chaplain. Bell said appellant participated in and became an instructor of an anger management program, was a mentor for the Quest program, and attended all of the Friday night programs led by Bell.

San Mateo County parole agent Kimberly Flores testified in rebuttal that a defendant with a record like appellant's would receive a three-year parole after which he would be released into society with no supervision. Flores explained that paroled sex offenders are mandated to attend a monthly group therapy meeting, and are provided one in-house group treatment session per month. She said 98 percent of high risk sex offenders receive only one group therapy session per month. Outside therapy is available only if the parolee is willing to pay for it.


I. Statutory Overview

"The SVPA provides for the involuntary civil commitment of a specified subset of criminal offenders, following completion of their prison terms, who are deemed SVP's. (§ 6600 et seq.) Section 6600, subdivision (a)(1) defines an SVP 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.' " (People v. Calderon (2004) 124 Cal.App.4th 80, 87 (Calderon).) A " 'diagnosed mental disorder' includes 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).)

The screening is conducted in accord with an assessment protocol developed by the DMH. (People v. Hurtado (2002) 28 Cal.4th 1179, 1183.) If the screening leads to a determination that the person is likely to be an SVP, he or she is referred to the DMH for an evaluation by two psychiatrists or psychologists. (§ 6601, subds. (b), (c), & (d).) If both evaluators agree the person "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody" (§ 6601, subd. (d)), the Department must forward a request for a commitment petition to the county where the offender was convicted. (§ 6601, subds. (d) & (i).) If the county's legal counsel agrees with the recommendation, he or she files a commitment petition in the superior court. (§ 6601, subd. (i).)

The trial court then holds a hearing on the petition to determine whether there is probable cause to believe that if the person is released from custody, he or she "is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6602, subd. (a).) If the court finds probable cause, it orders a trial to determine whether the person is an SVP. (§ 6602, subd. (a).) The person is entitled to a jury trial, the assistance of counsel, the right to retain experts, and access to relevant medical and psychological records and reports. (§ 6603, subd. (a).) Commitment requires a unanimous verdict and proof beyond a reasonable doubt. (§§ 6603, subd. (f), 6604.) If ...

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