Filed 9/24/15 P. v. Simmons CA6

(Reposted to correct docket transposition error on Web site)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

 v.

MARK STEVEN SIMMONS,

Defendant and Appellant.

 H041329

 (Santa Clara County

 Super. Ct. No. E9909752)

Defendant Mark Steven Simmons appeals from an order extending his involuntary 

commitment as a mentally disordered offender (MDO). On appeal, defendant contends 

that there was insufficient evidence to support the order. As set forth below, we will 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND1

The Underlying Conviction and Sentence 

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 

 

1

 Defendant’s opening brief 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 opn.], a prior unpublished opinion 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 

decisions in People v. Simmons (Aug. 25, 2004, H026672) [nonpub. opn.], People v. 

Simmons (Apr. 26, 2006, H028499) [nonpub. opn.], and People v. Simmons

(Nov. 4, 2013, H039198) [nonpub. opn.]. (Evid. Code, § 452, subd. (d).) We base our 

factual and procedural history on those decisions, as well as the record in this case. 
2

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, 

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. 

Defendant’s History of MDO Commitments 

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 (§ 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 2013, 

the court periodically extended defendant’s MDO commitment. 

 

2

 Subsequent unspecified statutory references are to the Penal Code. 
3

The Current MDO Commitment 

In April 2014, 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 July 29, 2014. There were two witnesses at the trial, Dr. William 

Cirimele and defendant.

Dr. Cirimele, a staff psychologist at NSH, testified as an expert in the “diagnosis 

and treatment of mental disorders and risk assessment.” Dr. Cirimele testified that he had 

been treating defendant at NSH for over a year, since March of 2013. 

Dr. Cirimele opined that defendant suffered from pedophilic disorder. He 

explained: “[Defendant], throughout his life, has had multiple instances of sexually 

deviant behavior with prepubescent children over a course of time longer than six 

months, which meets the diagnostic criteria for pedophilic disorder.” Dr. Cirimele 

described several occasions on which defendant engaged in “sexually deviant behavior” 

with minors: defendant sexually molested a four-year-old child because he believed he 

had to perform an “evil act” in order to “prepare for a possible mission to free the 

hostages in Iran,” defendant “sexually assaulted” an eight-year-old child because “he 

wanted to test himself” and “see if he could be a good daddy,” and at age 15 or 16 

defendant had sexual intercourse with his 10-year-old sister. Dr. Cirimele testified that 

defendant also suffered from narcissistic personality disorder. He explained that 

defendant’s narcissistic personality disorder “exacerbates the pedophilic disorder due to . 

. . interpersonal exploitation, lack of empathy, entitlement.” 

Dr. Cirimele opined that defendant’s pedophilic disorder was not in remission. He 

explained that pedophilic disorder cannot be in remission because “individuals with 

pedophilic disorder can learn how to control their behavior, but the core attraction to 

children does not change.” When asked if defendant had “received enough sex offender 

treatment that he could control his behavior if left to his own devices unconditionally 
4

released in the community,” Dr. Cirimele responded, “No.” He testified that defendant 

had made “no progress” in his sex offender treatment over the last year. He explained 

that defendant denied having a mental illness and did not “recognize any symptoms or 

red flags that could cause him to molest a child in the future.” Defendant told NSH staff 

members that “because other cultures treat 13-year-old girls as adults,” his underlying 

conviction was “just a matter of definition because of where it occurred.” Dr. Cirimele 

explained: “[Defendant] believes that since different cultures have different laws about 

the age of consent, that it is therefore arbitrary and he does not have to follow the laws 

because they’re arbitrary government laws and he does not answer to the government, he 

answers to God.” Dr. Cirimele testified that defendant “believes that he was morally in 

the right” when he molested 14-year-old D.

Dr. Cirimele also opined that defendant has “serious difficulty controlling his 

dangerous behavior.” Dr. Cirimele explained that “historically, when [defendant] has a 

thought of assaulting a child, . . . he will.” Dr. Cirimele expressed concern that defendant 

“says that he absolutely has control of his behaviors,” yet defendant made the choice to 

molest children. 

Dr. Cirimele finally opined that defendant posed a substantial danger of physical 

harm to others due to his pedophilic disorder. He explained that defendant’s score on the 

HCR-20, a tool for violence risk assessment, showed that defendant posed a danger of 

violence. The HCR-20 assesses 20 risk factors for violence, and Dr. Cirimele testified 

that “[a]ll 20” of those risk factors applied to defendant. Dr. Cirimele also explained that 

“lack of insight” is a significant factor in determining dangerousness, and he described 

many circumstances demonstrating defendant’s lack of insight regarding his pedophilic 

disorder. Defendant “is adamant that he was helping” 14-year-old D. when he molested 

her. Defendant believes he was “help[ing] the country in being able to do a possible 

mission in Iran” when he molested the four-year-old girl. In the year before the MDO 
5

trial, defendant made several statements that were “particularly troubling” and 

demonstrated a lack of insight into his pedophilic disorder: defendant said he was “more 

sure than ever that he does not have a pedophilic disorder,” defendant told Dr. Cirimele 

that “there was nothing sexual about the molestation of the four-year-old,” defendant 

“said that if he was a different type of psychopath, he would have just taken [the fouryear-old molestation victim] to the cemetery and cut her heart out,” and defendant stated 

that “he doesn’t believe he needs sex offender treatment.” Defendant additionally stated 

that “the only reason why he goes to sex offender treatment is so that the judge can’t say 

that he’s not doing his treatment.” Dr. Cirimele explained that defendant does not 

understand “how harmful his pedophilic behavior is to the victims,” and he also 

explained that defendant “believes that he is being harmed by the . . .legal system.” 

Dr. Cirimele testified that defendant’s belief that “he’s the victim” is a “significant risk 

factor” demonstrating that defendant is unable to obey laws. Dr. Cirimele “fear[ed]” that 

defendant would molest a child if he were unconditionally released from NSH. 

Defendant testified that he did not believe that he suffered from pedophilic 

disorder. He testified that he did not need the sex offender treatment provided at NSH. 

Defendant admitted that he molested 14-year-old D. He described D. as a blondhaired girl who “looked like a high school cheerleader.” He explained that his conduct 

toward D. was an “inoculation” that prevented D. “from killing herself” and engaging in 

drunk driving. He continued to molest D. even though “there were times that [he] knew 

that [D.] didn’t like the . . . touching.” 

Defendant admitted that he inserted his finger into a four-year-old girl’s vagina. 

He described the girl as “a pretty little blond” who “looked like a little doll.” He 

explained that he molested the girl as part of a satanic “ritual” designed to “rescue 

hostages in Iran.” 
6

Defendant admitted that he “touched” an eight-year-old girl “between her legs.” 

When asked to describe the girl, defendant responded: “Eight-year-old, medium blond 

hair. Blond hair is my type. I like girls, blue-eyed blonds, green-eyed blonds, I know 

that.” Defendant explained that he molested the eight-year-old girl as an “experiment.” 

Defendant testified that he was not dangerous and would not molest children if he 

were released from NSH. He testified that, if he were released from NSH, he would find 

an angel investor, buy a Tesla, and become an Uber driver. 

At the conclusion of the trial, the court ordered defendant’s MDO commitment to 

be extended for one year, until November 2, 2015. The court explained: “I am satisfied 

beyond a reasonable doubt that [defendant] does qualify for MDO commitment, and 

therefore, will order that his commitment be continued for an additional year.” 

DISCUSSION

Defendant contends that we must reverse the current commitment order due to 

insufficient evidence. He first asserts that there was insufficient evidence that his 

pedophilic disorder was not remission. He next asserts that there was insufficient 

evidence that he currently represented a substantial danger of physical harm to others. As 

explained below, defendant’s arguments are unpersuasive. 

Legal Principles and the Standard of Review 

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).) A recommitment 
7

thus “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.) 

“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).) 

“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 

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.) 

Sufficient Evidence Supported the Commitment Order 

There was sufficient evidence that defendant’s pedophilic disorder was not in 

remission. The evidence showed that the overt signs and symptoms of defendant’s 

pedophilic disorder were not controlled through treatment. Defendant’s testimony 

demonstrated that he was currently sexually attracted to prepubescent girls. When asked 

to describe the eight-year-old that he molested, defendant responded: “Eight-year-old, 

medium blond hair. Blond hair is my type. I like girls, blue-eyed blonds, green-eyed 

blonds, I know that.” Defendant also testified that the four-year-old girl he molested was 
8

“a pretty little blond” who “looked like a little doll.” The foregoing testimony, 

considered together, showed that defendant was currently experiencing a sexual attraction 

toward blond-haired prepubescent girls. Dr. Cirimele’s testimony established that 

defendant was unable to control that attraction through treatment. Dr. Cirimele testified 

that defendant’s pedophilic disorder was not in remission, and he explained that 

defendant had not “received enough sex offender treatment [to] control his behavior.” 

Dr. Cirimele further testified that defendant had made “no progress” in his sex offender 

treatment in the past year and was unable to “recognize any symptoms or red flags that 

could cause him to molest a child in the future.” The evidence thus showed that the overt 

signs and symptoms of defendant’s pedophilic disorder were not controlled through 

treatment, and there was sufficient evidence that defendant’s pedophilic disorder was not 

in remission. 

There was sufficient evidence that defendant currently represented a substantial 

danger of physical harm to others due to his pedophilic disorder. Dr. Cirimele opined 

that defendant posed a substantial danger of physical harm to others due to his pedophilic 

disorder, and he cited many facts that supported that opinion. Dr. Cirimele explained that 

defendant’s score on the HCR-20 showed that defendant posed a danger of violence. 

Dr. Cirimele also explained that lack of insight is a significant factor in determining 

dangerousness, and he identified many circumstances that showed defendant’s lack of 

insight into his pedophilic disorder. In particular, Dr. Cirimele described the following 

facts that demonstrated defendant’s lack of insight: defendant denied suffering from 

pedophilic disorder; during the year before the MDO trial, defendant said that “he doesn’t 

believe he needs sex offender treatment”; during the year before the MDO trial, 

defendant stated that “there was nothing sexual about the molestation of the four-yearold”; during the year before the MDO trial, defendant “said that if he was a different type 

of psychopath, he would have just taken [the four-year-old molestation victim] to the 
9

cemetery and cut her heart out”; defendant did not understand the harm caused by his 

pedophilic behavior; defendant insisted that he was “help[ing] the country in being able 

to do a possible mission in Iran” when he molested the four-year-old girl; defendant 

currently believed that he did not have to follow the laws regarding the “age of consent”; 

and defendant currently believed that he was a victim of the legal system. Dr. Cirimele 

finally explained that defendant’s belief that “he’s the victim” was a “significant risk 

factor” demonstrating that defendant was unable to obey laws. The foregoing evidence 

sufficiently established that defendant currently represented a substantial danger of 

physical harm to others due to his pedophilic disorder. 

Defendant contends that we must reverse the commitment order because there was 

insufficient evidence that he had “serious difficulty controlling his pedophilic behavior.”

In support of his argument, defendant cites In re Anthony C. (2006) 138 Cal.App.4th 

1493 (Anthony C.). Anthony C. noted that substantive due process requires “that there be 

proof of serious difficulty in controlling dangerous behavior” in order to civilly commit a 

person. (Id. at pp. 1504-1505.) In Anthony C., an expert witness testified that a minor 

posed a moderate risk to the community if released from civil commitment, and the Court 

of Appeal concluded that such testimony did “not constitute substantial evidence that [the 

minor] has serious difficulty controlling his behavior.” (Id. at p. 1507.) Defendant’s case 

is distinguishable from Anthony C. because the evidence established that defendant had 

serious difficulty controlling his behavior. Dr. Cirimele opined that defendant had 

“serious difficulty controlling his dangerous behavior.” Extensive evidence supported 

Dr. Cirimele’s opinion: defendant expressed his belief that he did not have to follow 

laws regarding the “age of consent”; defendant did not recognize any signs or symptoms 

that could cause him to molest a child in the future; defendant had made “no progress” in 

his sex offender treatment in the year preceding the MDO trial; historically, when 

defendant has thought of molesting a child, he acts on the intention; and defendant’s 
10

belief that “he’s the victim” was a “significant risk factor” demonstrating that defendant 

was unable to obey laws. Thus, unlike Anthony C., substantial evidence established that 

defendant had serious difficulty controlling his dangerous behavior. Defendant’s reliance 

on Anthony C. is unavailing. 

In sum, there was sufficient evidence to support the MDO commitment order. We 

therefore must affirm the order. 

DISPOSITION

The order extending defendant’s commitment is affirmed. 
11

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

ELIA, J.

___________________________________

WALSH, J.*

People v. Simmons

H041329

 

*

 Judge of the Santa Clara County Superior Court assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.