Filed 11/16/22 P. v. Arnold CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE
THE PEOPLE, B311683
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM011449)
v.
STEPHEN ARNOLD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Andrea C. Thompson, Judge. Affirmed.
Lori E. Kantor for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Stephen Arnold appeals an order of commitment
the trial court entered pursuant to the Sexually Violent Predator
Act, Welfare and Institutions Code section 6600 et seq. (SVPA or
1
Act). He contends there is insufficient evidence to support the
order. He also argues the trial court erroneously permitted an
expert psychologist to testify for the People. We reject both
arguments and affirm the order.
BACKGROUND
Arnold was a troubled juvenile. He began drinking alcohol
and smoking marijuana in his early teens. He dropped out of
school in tenth grade. According to his mother, Arnold was a
“very disturbed child” who went “crazy” when he became
intoxicated. He was arrested on two occasions as a minor for
petit larceny.
In his early twenties, Arnold began regularly using crack
cocaine and PCP. From 1980, when he was 20, to 1991 when he
was 31, Arnold was repeatedly arrested for many different
crimes, including larceny, theft, fraud, robbery, possession of
stolen property, possession of narcotics, assault, and criminal
possession of a firearm or knife. On at least nine occasions, he
was convicted and sentenced.
A. Arnold’s arrests and convictions for sexually violent
crimes
On four occasions Arnold was arrested for committing
sexually violent crimes. In June 1984, Arnold was arrested for
1
Unless otherwise stated, all further statutory
references are to the Welfare and Institutions Code.
2
rape in concert with force or violence. The victim, however,
declined to assist the prosecution, and the case was not pursued.
In August 1984, Arnold was arrested and charged with
forcible rape and sodomy. He pled guilty to “sexual misconduct,”
a misdemeanor under New York law.
On July 5, 1991, Arnold was arrested for sexually
assaulting Cynthia S. He allegedly forced Cynthia S. to orally
copulate him at knife point. Arnold also allegedly raped Cynthia
S. twice. He was booked and released the same day. Later, when
Cynthia S. did not appear at trial, the prosecution dropped the
charges against Arnold.
On July 12, 1991, while the Cynthia S. case was pending,
Arnold committed the crimes that led to his long-term
incarceration. Armed with a pellet rifle, Arnold forced his way
into a residence, subdued two men, and demanded money from
Diane L. and the men.
During this incident, Arnold ordered Diane L. to orally
copulate him. She complied after Arnold threatened to shoot her
and the men if she did not do as he demanded. Arnold then
ordered Diane L. to take off her pants and underwear and have
intercourse with him. While Arnold was raping Diane L., the
police arrived. Arnold fled but was apprehended that day.
In March 1992, Arnold was convicted of forced rape, forced
oral copulation, and first-degree robbery. He was sentenced to
twenty-six years in prison.
B. Arnold’s behavior in prison
While Arnold was in prison, correctional officers wrote two-
dozen reports charging him with violation of prison rules. Many
of Arnold’s violations related to possession of alcohol. In 1998, he
was accused of trying to physically force another inmate to
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perform a sexual act. There is no record, however, of whether
any charges were brought related to this offense. In 2002, Arnold
was found to have committed a serious rule violation for indecent
exposure. Arnold lifted his penis over his underwear and stated
to a correctional officer, “This is what you want.”
C. The commencement of this action and Arnold’s
confinement at a state hospital
Shortly before Arnold finished serving his sentence, the
People commenced this action. On March 22, 2007, the People
filed a petition for commitment pursuant to the SVPA. At the
probable cause hearing on April 24, 2007, the court denied
Arnold’s motion to dismiss, and ordered that he be confined in a
secured facility pending trial. Arnold was then transferred to the
Coalinga State Hospital (the hospital).
D. Arnold’s conduct at the hospital
For a variety of reasons not relevant here, the case was not
brought to trial until January 2020. While Arnold was in the
hospital waiting for trial, the authorities wrote 176 infraction
reports for a wide range of offenses, including possession of
alcohol, possession of pornography, and aggressive and
threatening conduct.
Arnold was frequently intoxicated at the hospital. On one
occasion, when his psychiatrist told him he appeared intoxicated,
Arnold responded, “I don’t fucking care what you think.”
Arnold also showed no remorse for his sexually violent
crimes. He denied committing any sexual offenses, claiming he
was simply in the “wrong place at the wrong time.”
Arnold was frequently verbally abusive to hospital staff,
especially when he was intoxicated. He often called women at
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the hospital sexualized names. On one occasion, referring to a
staff member, Arnold stated, “If that bitch says one more word,
I’m going to rape her.”
In September 2017, while psychiatric technician Froila
Fernandez was treating another patient, Arnold walked by and
dropped a letter on her lap. In the letter, Arnold solicited
Fernandez to buy a throw-away phone so they could speak freely.
He also praised her physical attributes and stated she had a “well
shape[d] butt.”
E. The trial
Both parties waived their right to a jury trial. The bench
trial lasted from January to December, 2020, taking nearly a
year to complete due to delays associated with the COVID-19
pandemic.
Both parties called two psychologists as expert witnesses:
the People called Dr. Harry Goldberg and Dr. Laljit Sidhu;
Arnold called Dr. Amy Phenix and Dr. Brian Abbott. Doctors
Goldberg, Sidhu, and Phenix diagnosed Arnold with anti-social
personality disorder (ASPD) and alcohol abuse disorder. Dr.
Abbott did not diagnose Arnold with ASPD because he could not
substantiate one criterion, namely conduct disorder before age
15. Dr. Abbott agreed with the other expert psychologists that
Arnold had alcohol abuse disorder.
Dr. Goldberg opined that Arnold was a sexually violent
predator (SVP) within the meaning of the statute. Doctors Sidhu,
Phenix, and Abbott opined that Arnold did not meet the criteria
for an SVP. Because we must review the evidence in a light most
favorable to the People, we shall discuss Dr. Goldberg’s testimony
in detail below.
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F. The order of commitment
On March 8, 2021, the trial court issued a proposed
statement of decision in which it found the People’s petition true
2
and that Arnold was an SVP. The court also entered an order of
commitment. The court ordered Arnold committed to the custody
of the California Department of State Hospitals (DSH) for
appropriate treatment and confinement for an indeterminate
time.
On March 22, 2021, Arnold filed a notice of appeal from the
March 8, 2021, “judgment.”3
DISCUSSION
I. There is Substantial Evidence Supporting the
Commitment Order
Under the SVPA, a sexually violent predator is defined as
“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.” (§ 6600, subd. (a)(1).)
2
The proposed statement of decision stated that if the
parties did not file objections within 15 days, “this Statement of
Decision shall become the final judgment.” There is nothing in
the record indicating whether any objections to the proposed
statement of decision were filed.
3
The order of commitment was a final determination
of Arnold’s rights under the SVPA, equivalent to a final judgment
(People v. Whaley (2008) 160 Cal.App.4th 779, 782), from which
an appeal may be taken. (Code Civ. Proc., § 904.1, subd. (a)(1).)
6
The People must prove three elements beyond a reason a
reasonable doubt to prevail: “(1) the person has suffered a
conviction of at least one qualifying ‘sexually violent offense,’ (2)
the person has ‘a diagnosed mental disorder that makes the
person a danger to the health and safety of others,’ and (3) the
mental disorder makes it likely the person will engage in future
predatory acts of sexually violent criminal behavior if released
from custody.” (People v. Yates (2018) 25 Cal.App.5th 474, 477.)
The term “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),
italics added.)
Arnold does not dispute there is substantial evidence
showing he committed qualifying sexually violent offenses. He
also does not dispute there is substantial evidence supporting the
trial court’s finding he has ASPD.
Arnold instead contends there is no substantial evidence
supporting a finding that he has a “diagnosed mental disorder”
within the meaning of the Act. He argues there is insufficient
evidence showing a causal nexus between his ASPD and his
predisposition to commit sexual crimes. In other words, Arnold
argues there is insufficient evidence that his “ASPD predisposed
him to the commission of criminal sexual acts.”
A. Standard of review
We review the sufficiency of the evidence in SVPA cases
under the same substantial evidence test used in criminal
appeals. (People v. Orey (2021) 63 Cal.App.5th 529, 560 (Orey).)
“In assessing the sufficiency of the evidence, we review the entire
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record in the light most favorable to the judgment to determine
whether it discloses evidence that is reasonable, credible, and of
solid value such that a reasonable trier of fact could find the
defendant [is a sexually violent predator] beyond a reasonable
doubt.” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “Reversal
for insufficiency of the evidence is warranted only if it appears
that ‘ “upon no hypothesis whatever is there sufficient
substantial evidence to support [the judgment].” ’ ” (Orey, supra,
63 Cal.App.5th at p. 561.)
We cannot reweigh the facts or the credibility of the
witnesses. (People v. Snow (2003) 30 Cal.4th 43, 67.) “The
testimony of just one witness is enough to support the judgment
“so long as that testimony is not inherently incredible.” (In re
Daniel G. (2004) 120 Cal.App.4th 824, 830; accord People v.
Bowers (2006) 145 Cal.App.4th 870, 879 [“A single psychiatric
opinion that an individual is dangerous because of a mental
disorder constitutes substantial evidence”].)
In an SVP trial, the People must present expert testimony
by a psychologist or psychiatrist to establish the elements for
commitment. (See People v. Yates, supra, 25 Cal.App.5th at p.
478; People v. Ward (1999) 71 Cal.App.4th 368, 374 (Ward); Evid.
Code, §§ 800, 801.) “Although an expert’s opinion on an ultimate
issue of fact is admissible, and may constitute substantial
evidence [citation], the conclusion by itself does not constitute
substantial evidence without an adequate factual foundation.”
(People v. $47,050 (1993) 17 Cal.App.4th 1319, 1325.)
B. Dr. Goldberg’s testimony is sufficient to uphold the
commitment order
Dr. Goldberg found that Arnold met all the criteria for
ASPD: (1) conduct disorder before age 15, (2) violation of social
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norms, (3) aggressiveness, (4) impulsivity, (5) manipulation of
others and deceitfulness, and (6) lack of remorse.
To determine whether Arnold’s was likely to commit
sexually violent crimes if released, Dr. Goldberg pursued a
“structured actuarial approach.” He applied two actuarial
instruments: the Static-99 and Static-2002R. Under the Static-
99, Dr. Goldberg placed Arnold in a group with a 5-year
recidivism rate of 30.7 percent, and a 10-year recidivism rate of
42.8 percent. Arnold’s “relative risk” under this assessment is
97.2 percent, which means that he has a higher risk of recidivism
than 97.2 percent of sex offenders. Under the Static-2002R, Dr.
Goldberg placed Arnold in a group with a 19.2 percent recidivism
rate in 5 years.
Dr. Goldberg also concluded idiosyncratic factors indicated
that Arnold was more likely to commit sexually violent crimes
than other individuals with similar scores on the Static-99 and
Static-2002R. Unlike most men of his age, Arnold’s aggression,
impulsivity, and sexual desire were not diminishing. Arnold’s
behavior at the hospital generated an extraordinary 176 reports
of misconduct, demonstrating unabated aggression and a lack of
impulse control. Further, Arnold stated that his sex drive had
gone up, and he reported he continued to masturbate 2 times a
week.
Dr. Goldberg testified, “I think this combination of his
sexual preoccupation, impulsivity, aggressivity and history of
sexual aggression is a really bad combination for him.” He also
stated that Arnold was a psychopath with no empathy for others,
further increasing the risk he would reoffend. Dr. Goldberg
concluded: “I just can’t see this man controlling himself once he
is released.”
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Dr. Goldberg explained that there is a nexus between
Arnold’s ASPD and his predisposition to commit sexually violent
crimes in a predatory manner. According to Dr. Goldberg, ASPD
includes “characteristics, such as aggressiveness, lack of remorse,
impulsivity . . . that were associated with the . . . convicted
charge.”
Dr. Goldberg noted that Arnold has been arrested four
times for sexually violent crimes, two of which resulted in
convictions.4 According to Dr. Goldberg, this set Arnold apart
from most sex offenders, about 70 percent of whom are “one-time
offenders.” Only seven percent of rapists and eight percent of
child molesters have three or more arrests for sexual offenses.
Dr. Goldberg opined that Arnold’s multiple arrests and
convictions indicate “he has difficulty controlling his urges
toward sex, whether . . . the alleged victim is agreeing to it or
not.”
Dr. Goldberg found particularly troublesome the proximity
of the events involving Cynthia S. and Diane L. in July of 1991.
Arnold’s arrest for raping Cynthia S. on July 5 did not deter him
from raping Diane L. just a week later on July 12. In Dr.
Goldberg’s view, this indicates “problems in the volitional
capacity, which is one of the definitions of a mental disorder
under the sexually violent predator statute.”
Dr. Goldberg’s testimony is substantial evidence that
Arnold is a sexually violent predator within the meaning of the
Act. Moreover, Dr. Goldberg provided a sufficient foundation for
4
The Static-99 and Static-2002R consider arrests for
sexual offenses, as well as convictions, as part of the “actuarial
process.”
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his opinions. Although a reasonable trier of fact could have found
the testimony of the other expert psychologists more convincing,
we do not reweigh the evidence. Dr. Goldberg’s testimony, by
itself, is sufficient to support the trial court’s findings and order
of commitment.
II. Under the Law of the Case, Arnold is Barred from
Asserting His Argument Regarding the Testimony of
an Independent Evaluator
The SVPA provides that before a person is committed, the
person “shall be evaluated by two practicing psychiatrists or
psychologists, or one practicing psychiatrist and one practicing
psychologist.” (§ 6601, subd. (d).) “If one or more of the original
evaluators is no longer available to testify for the [People] in
court proceedings,” the People’s attorney may request the DSH to
perform replacement evaluations. (§ 6603, subd. (d)(1).) The
People’s attorney may also request “updated evaluations” if
necessary. (Ibid.)
In 2013, Dr. George Joseph Grosso and Dr. Laljit Sidhu
were appointed as replacement evaluators for Arnold. They both
determined that he did not meet the requirements for
commitment under the Act.
The People then filed a motion pursuant to Code of Civil
Procedure section 2032.020 (section 2032.020) to permit a third
psychologist, Dr. Richard Ramanoff, to conduct an examination.
The trial court granted the motion.
Arnold challenged this order by filing a petition for writ of
mandate. In an unpublished opinion, this division affirmed the
order, stating: “Consistent with People v. Landau (2013) 214
Cal.App.4th 1, 24–27 (Landau), we hold the respondent court had
discretion to order a mental evaluation of an alleged sexually
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violent predator by Dr. Romanoff.” (Arnold v. Superior Court
(Nov. 14, 2014), B254887 [nonpub. opn.] (Arnold I).)
Dr. Romanoff never evaluated Arnold. While the case was
delayed, he stopped working for the DSH.
In 2019, the People filed a motion for an updated
evaluation by Dr. Sidhu, but not from Dr. Grosso, who was no
longer under contract with the DSH. That motion was granted.
The People subsequently retained Dr. Goldberg. Although
the record is unclear on this point, the parties agree that Dr.
Goldberg was not one of the original or replacement evaluators;
he was instead retained as an independent expert pursuant to
section 2032.020. At trial, the court denied Arnold’s motion to
exclude Dr. Goldberg’s testimony.
Arnold contends that the SVPA does not permit the People
to retain an expert “to prepare an independent evaluation of an
alleged SVP and testify to their opinion.” He further contends
that Landau and Arnold I were “incorrect” in holding to the
contrary. This argument is barred by the law of the case.
“Under the doctrine of the law of the case, a principle or
rule that a reviewing court states in an opinion and that is
necessary to the reviewing court’s decision must be applied
throughout all later proceedings in the same case, both in the
trial court and on a later appeal.” (People v. Jurado (2006) 38
Cal.4th 72, 94 (Jurado).) Generally, the doctrine applies to the
Court of Appeal’s denial of a petition for writ of mandate when
the matter is fully briefed, there is an opportunity for oral
argument, and the cause is decided by a written opinion. (See
Kowis v. Howard (1992) 3 Cal.4th 888, 894.)
Arnold does not dispute these requirements are satisfied.
Arnold I was decided on the merits after the matter was fully
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briefed and the parties had an opportunity for oral argument. In
a substantive written opinion, we rejected the same legal
argument that Arnold makes in this appeal regarding the
retention of an independent expert.
Arnold argues that we should nonetheless revisit the issue
in the interests of justice. The law of the case doctrine does not
apply “when the rule stated in the prior decision was a ‘ “manifest
misapplication” of the law resulting in “substantial injustice.” ’ ”
(Jurado, supra, 38 Cal.4th at p. 95.) We reject this argument.
Although good faith arguments can be made that Landau and
Arnold I were decided incorrectly, there was no manifest
misapplication of the law.
Arnold also argues that this court should reconsider the
issue based on new facts. He contends “[t]he facts not previously
considered by the court . . . consist of the legislative history of
section 6603, subdivision (d)(1).” It is true we may reconsider a
legal issue when presented with new facts that could change the
result. (Krumdick v. White (1895) 107 Cal. 37, 40; accord In re
Estate of Baird (1924) 193 Cal. 225, 234–236 [prior appellate
decision on sufficiency of the evidence is not law of the case when
evidence on retrial materially changed].) But the legislative
history of the Act does not amount to “new facts” in this case.
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DISPOSITION
The March 8, 2021, order of commitment is affirmed.
NOT TO BE PUBLISHED
*
TAMZARIAN, J.
We concur:
BAKER, Acting P. J.
KIM, J.
*
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6, of the
California Constitution.
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