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Filed 10/19/21 P. v. Hoffman 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NOT TO BE PUBLISHED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 

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA HOFFMAN,

Defendant and Appellant.

C088654 

(Super. Ct. No. 08F0006128)

A jury found defendant Joshua Hoffman met the criteria as a sexually violent 

predator (SVP) under the Sexually Violent Predators Act1(Act). The trial court then 

committed defendant to the Department of State Hospitals for an indeterminate term. 

Defendant appeals the judgment, asserting insufficient evidence supports the SVP 

determination. We find no merit in his contention and affirm.

1

 Welfare and Institutions Code section 6600 et. seq Undesignated statutory 

references are to the Welfare and Institutions Code.
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FACTUAL AND PROCEDURAL BACKGROUND

In 2008, defendant pled guilty to three counts of lewd and lascivious acts on three 

minors, T. J., M. N., and W. B., each of whom was under the age of 14 years. In 2015, 

the district attorney filed a petition seeking defendant’s civil commitment under the Act. 

The court held a jury trial on the petition. The evidence at trial consisted of testimony 

from four victims, two of whom included the victims in the originally charged counts, the 

then-deputy district attorney who had prosecuted defendant’s original case, one 

prosecution expert, and two defense experts. 

I

Prosecution Evidence

During the majority of the charged crimes, defendant was a teacher at an 

elementary school and was approximately 25 or 26 years old. M. N., T. J., and M. W. all 

testified they were in defendant’s class. They all testified to similar incidents in which 

defendant would touch students “in a caressing way, definitely close to areas that 

shouldn’t even come close to a teacher coming near.” On more than one occasion, 

defendant would invite a student to sit on his lap and would then rub the area around her

inner thigh with his hand. In other instances, defendant would place his arm around a 

student’s shoulder and then rub his hand around the student’s collar bone and chest 

underneath the shirt. 

The prosecution also called K. H., who encountered defendant in 2006, when he 

was her youth pastor. She recounted an incident in which she was at defendant’s 

apartment for Bible study and he touched her breasts and vagina. K. H. reported the 

incident and gave a statement to the police shortly thereafter. 

Dr. Gangaw Zaw, a consulting psychologist for the Department of State Hospitals, 

testified for the prosecution. Dr. Zaw first evaluated defendant in prison in 2015 for 

about one hour. She met with him again to update the evaluation in 2016 for about two 

hours. She also attempted to meet with him in 2017, but defendant declined the 
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interview. To prepare for the interviews, Dr. Zaw reviewed defendant’s conviction 

records, including his record of arrest and prosecution sheet, probation report, abstract of 

judgment, SVP screening report, and his prison records. 

During one of his interviews with Dr. Zaw, defendant discussed an incident that 

occurred with the third victim for the charged counts, W. B., when defendant was 19 

years old. Defendant explained he was renting a room in a house while attending college. 

W. B., who was 11 years old, was related to his landlord, and visited the house. In one 

incident, defendant recalled rubbing W. B.’s shoulders and touching her “upper chest 

region.” In another, defendant gave W. B. a piggyback ride and said he “wanted to push 

the limit,” so he rubbed her legs up to her thighs. Finally, in a third incident, he put his 

arm around W. B., moved his hand “above her chest,” and “felt excitement that his hand 

was close to her chest.” W. B. reported the incidents to her father, who confronted 

defendant and called the police. Defendant was arrested, although he was never 

convicted as a result of the incidents. 

Defendant admitted his actions toward T. J., M. N., and W. B., and told Dr. Zaw 

“[h]e felt touching the children w[as] arousing to him . . . [and] because he was not 

actually touching their genitalia or penetrating them, that he thought it was okay.” He 

explained his encounter with W. B. did not give him any concerns about pursuing a 

career in teaching because, among other things, he would set constraints on himself, like 

not being alone with children and not allowing them to sit on his lap. Defendant stated he 

had viewed child pornography involving a four-year-old child, but that he had only 

viewed it “accidentally.” 

Dr. Zaw diagnosed defendant with pedophilic disorder. Defendant initially told 

Dr. Zaw he did not think he needed any sex offender treatment, but in his second 

interview he said he “wanted to understand where his arousal for children stemmed 

from.” Dr. Zaw noted defendant had not pursued an available opportunity to receive sex 

offender treatment while awaiting trial. 
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Dr. Zaw testified defendant was “likely to engage in sexually violent predatory 

criminal behavior as a result of his . . . diagnosed mental disorder without appropriate 

treatment in custody.” In particular, Dr. Zaw cited the fact that, despite his encounter 

with the police for his actions with W. B., defendant did not seek treatment and instead 

went on to become an elementary school teacher and reoffend. 

Dr. Zaw used the Static-99R, a 10-item risk assessment tool, to assess defendant’s 

risk of reoffending. Defendant scored a two on the test, placing him at “average risk” of 

reoffending. In statistical terms, an offender receiving a score of two had a recidivism 

estimate of 5.6 percent within five years. Dr. Zaw explained the test was a “moderate 

predictor” of recidivism, but that it was limited because it would only be scored based on 

“detected offenses” and did not include any “undetected offenses.” The test also only 

considered “static factors,” which are “historical factors that can’t change,” and did not 

include “factors about the individual that can change over time,” called “dynamic risk 

factors.” Thus, while the test was a “useful tool,” it would not provide “the whole 

picture.” 

Dr. Zaw concluded parole constraints would be inadequate to ensure the safety of 

the public if defendant were released. 

II

Defense Evidence

Defendant retained Dr. Rachyll Dempsey, a forensic psychologist, to testify on his 

behalf. Dr. Dempsey met with defendant for about five hours, during which she 

conducted an interview and administered several tests on defendant. She reviewed 

defendant’s arrest records, as well as the other expert reports that had been written in the 

case. 

Dr. Dempsey agreed with Dr. Zaw’s scoring of defendant’s Static-99R and her 

diagnosis of defendant. Dr. Dempsey also agreed that the Static-99R by itself was not 

representative of defendant’s risk of reoffending “because research shows that basing 
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someone’s entire life on a static score that’s never going to change is not actually [a] 

good representation of their risk.” Thus, she also administered other “dynamic risk 

tools,” including the “Stable” and “LS/CMI.” Both tests showed defendant to be at a 

“low to moderate risk” of reoffending at “around 6 percent.” Dr. Dempsey suggested any 

treatment defendant would receive after release could reduce the risk. 

Dr. Dempsey testified defendant would be “amenable to sex offender treatment” 

and that any such treatment would likely be successful. She concluded it was “highly 

unlikely” defendant would reoffend if he were released. 

Dr. Caprice Haverty, a psychologist retained by defendant, worked with Dr. Alex 

Schmidt, a colleague, to assess defendant. Dr. Haverty reviewed police reports for 

defendant’s case and the other expert reports in the case. Dr. Haverty and Dr. Schmidt 

also scored defendant on the Static-99R; they scored defendant as a three, but Dr. 

Haverty observed his score would have gone down to a two since then, given his age, 

placing him in the “low end of moderate” risk category. Dr. Haverty and Dr. Schmidt 

also used the “Acute” test, the “Stable-2007,” and the “LS/CMI” to assess defendant’s 

dynamic risk factors. Defendant scored in the “low range” on the “Acute” test and the 

“LS/CMI,” and in the moderate range on the “Stable-2007” test. 

Dr. Haverty agreed with Dr. Zaw and Dr. Dempsey that defendant had pedophilia 

as a diagnosable mental disorder. She asserted, however, that SVP’s typically would also 

have some other clinical syndrome, such as bipolar disorder or psychopathy. She stated 

defendant was not at substantial risk to reoffend and had only a 6 percent chance of 

reoffending. In particular, she said defendant did not have antisocial personality disorder, 

sociopathy, a history of drug or alcohol abuse, or a history of “being unable to be 

responsible for himself, educate himself, work consistently at a job,” all which suggested 

he would not qualify as an SVP. 

Dr. Haverty testified defendant would be amenable to sex offender treatment and 

would benefit from such treatment. She also opined that it was not necessary to keep 
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defendant in custody to protect the community because he would be closely monitored on 

parole. 

The jury ultimately found true the allegation that defendant is an SVP and the trial 

court committed defendant to the custody of the Department of State Hospitals for an 

indeterminate term. 

DISCUSSION

Defendant contends there is insufficient evidence he is likely to engage in sexually 

violent criminal behavior if released with supervision and treatment. In particular, 

defendant argues, all of the experts at trial testified his “static risk assessment placed him 

in the moderate risk category,” which “equated with about a 5.6 percent [chance] of 

reoffending if released without supervision and sex offender treatment.” Because 5.6 

percent is such a low statistical probability, “[n]o reasonable juror, fairly assessing the 

evidence, could have rationally concluded beyond a reasonable doubt that there was a 

substantial danger . . . [defendant] would reoffend if released.” We disagree.

To establish a defendant is an SVP, the prosecution must prove beyond a 

reasonable doubt that the defendant has been convicted of at least two separate sexually 

violent offenses, has a diagnosable mental disorder that made him a danger to the health 

or safety of others, and the disorder makes it likely he will engage in sexually violent 

predatory conduct if released without treatment. (§§ 6600, subds. (a), (e), 6604; 

People v. Roberge (2003) 29 Cal.4th 979, 985.) In Roberge, our Supreme Court

concluded the requirement that the convicted sex offender is likely to engage in sexually 

violent predatory conduct if released “is met when ‘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.’ ” (Roberge, at p. 982, quoting from People v. Superior Court 

(Ghilotti) (2002) 27 Cal.4th 888, 922.) This does not require a finding that it is more 

likely than not the person will reoffend. (Ghilotti, at p. 916.) Whether a person poses a 

“danger to the health and safety of others” (§ 6600, subd. (a)) “does not, by common 
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understanding, evaporate with an expert’s prediction that the sufferer’s risk of reoffense 

is no greater than 50 percent” (Ghilotti, at p. 920). However, a finding of such danger 

requires “much more than the mere possibility that the person will reoffend.” (Id. at 

p. 922.)

Under the SVPA, we review challenges to the sufficiency of the evidence using

the substantial evidence standard that applies in criminal cases. (People v. Mercer (1999) 

70 Cal.App.4th 463, 466.) “ ‘In reviewing the evidence sufficient to support a 

commitment under [the SVPA], “courts apply the same test as for reviewing the 

sufficiency of the evidence to support a criminal conviction.” ’ [Citation.] ‘Thus, 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.’ ” ’ ” (People v. McCloud (2013) 213 Cal.App.4th 

1076, 1088.) “ ‘In reviewing the record to determine the sufficiency of the evidence this 

court may not redetermine the credibility of 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.)

Here, all three experts used the Static-99R test as a starting point for their 

evaluations and agreed defendant should receive a score of two. However, they then 

proceeded to consider other factors, beyond those captured in the test, to evaluate 

defendant. Dr. Zaw testified the test alone was only a “moderate predictor” of 

recidivism, and that it would not capture “factors about the individual that can change 

over time.” Thus, she also considered whether defendant had taken steps to participate in 

sex offender treatment and the interaction between his career aspirations and pedophilia 

to determine whether he had a risk of reoffending. Both Dr. Dempsey and Dr. Haverty 

agreed the static score was not dispositive and should be considered in conjunction with 

dynamic variables: Dr. Dempsey described such “dynamic factors” as “[i]ncredibly 
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important” and Dr. Haverty similarly explained, “depending where the dynamic variables 

are, that’s going to impact your read of the static variables.” Defendant’s assertion that 

he had only a moderate risk of reoffending, based on his static risk assessment, is 

therefore incorrect because the testimony at trial established the static assessment was 

only the beginning of the analysis, rather than its conclusion.

Moreover, Dr. Zaw’s analysis of defendant’s dynamic risk factors supported the 

conclusion defendant presented a substantial danger of reoffending. Among other things, 

Dr. Zaw considered it significant that, despite defendant’s early encounter with law 

enforcement as a result of his actions toward W. B., defendant continued to pursue a 

career as an elementary school teacher. As she explained, “[w]hen someone has been 

questioned for their sexual behavior by the police, that should tell the person . . . . he 

either needs help or there’s something that can get him into trouble.” Despite the incident 

with W. B., however, defendant “went on to become a teacher instead of getting help.” 

And, he ended up teaching students who were the same age as W. B. Dr. Zaw also 

explained that defendant’s apparent hypersexuality required more, rather than fewer, 

restraints to ensure the safety of the public, and the restraints placed on defendant out of 

custody would be inadequate. Defendant had told Dr. Zaw he previously imposed selfrestraints on himself to teach in elementary school, including not being alone with 

children and not allowing children to sit on his lap. Based on the victim testimony, 

however, defendant had disregarded those restraints. Finally, Dr. Zaw was concerned 

defendant had not sought out sex offender treatment, despite his professed interest in such 

treatment. Dr. Zaw thus concluded defendant was “likely to re-offend in a sexually 

predatory manner.” 

To the extent Dr. Dempsey and Dr. Haverty testified defendant was not likely to 

reoffend, even considering his dynamic risk factors, the jury was free to weigh the 

conflicting expert testimony and decide whose testimony to credit. (People v. Poe (1999) 

74 Cal.App.4th 826, 831 [“It is not the role of this court to redetermine the credibility of 
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experts or to reweigh the relative strength of their conclusions”]; People v. Kerley (2018) 

23 Cal.App.5th 513, 530 [“The testimony of a single witness, if believed by the fact 

finder, is sufficient to prove any fact”].) The jury’s finding indicates it accepted 

Dr. Zaw’s testimony, and her testimony provided a reasonable and supported factual 

basis justifying her ultimate conclusions. As such, the evidence was sufficient to support 

the jury’s finding.

DISPOSITION

The judgment is affirmed.

/s/ 

Robie, J.

We concur:

/s/ 

Blease, Acting P. J.

/s/ 

Duarte, J.