Filed 11/16/22 P. v. Arnold CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE

,

P laintiff and Respondent

,

v.

STEPHEN ARNOLD

,

Defendant and Appellant

. B 31 1683

(Los Angeles County Super. Ct. No. ZM011449 )

APPEAL from a n 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.2 Appellant Stephen Arnold appeals an order of commitment the trial court entered pursuant to the Sexually Violent Predator
Act , Welfare and Institutions Code se ction 6600 et seq. ( SVPA or
Act ). 1 He contends there i s 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

A rnold 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 1 980
, 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. O n at least nine occasions

, he
was convicted and sente nced.

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.3

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 oral ly copulate him at knife point. Arnold also allegedly raped Cynthia
S. twice. He was book ed 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 hi s 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 i f 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 charg ing him with viol ation 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 to4

perform a sexual act. There is no record, however, of whether any charges were brought related t o this offense. In 2002, Arnold

was found to have committed a serious rule violation for indecent

expos ure. Arnold lift ed his penis over his underwear and stated

to a correctional officer, “This is what you want.”

C. The commencement of this action an d Arnold’s confinement at a state hospital
Shortly before Arnold finished serving his sentence

, the People commenced this action. O n March 22, 2007, the People
filed a p etition for commitment pursuant to the SVPA

. At the probable cause hearing o n 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 v erbally abusive to hospital staff, especially when he was intoxicated. He often called women at5

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 psychiat ric 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

B oth 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 pand emic. Both parties called two psychologists as expert witnesses:
the P eople called D r. Harry Goldberg and Dr. Laljit Sidhu ; Arnold called D r. Amy Phenix and Dr. Brian Ab bott. 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 p sychologists that
Arnold had alcohol abuse disorder.
Dr. Gold berg 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.6 F

. The order of commitment
On March 8, 2021 , the trial c ourt issued a propo sed
statement of decision in which it found the People’s petition true

and that Arnold was an SVP. 2 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, “judg ment.” 3

DISCUSSION

I. There i s S ubstantial E vidence S upporting the
C ommi tment O rder
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 th e record indicating whether an y objection s to the proposed statement of decision w ere filed.

3 The order of commitment was a final determination of Arnold’s rights under the S VPA , 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).)7 The P eople must prove three elements beyond a re ason 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

co ngenital 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)

, itali cs 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 ha s A S PD.
Arnold instead conten ds there is no substantial evidence supporting a finding that he ha s a “diagnosed mental disorder” within the meaning of the Act. He argues there is insufficient evidence showing a causal nexus between his A S PD 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. Sta ndard 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 t he entire8

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 sub stantial 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 [ c itation] , the conclusion by itself does not constitute
substantial eviden ce without an adequate factual foundation. ” ( People v. $47,050 (1993) 17 Cal.App.4th 1319, 13 2 5.)

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 social9

norms , (3) aggressiveness , (4) impulsivity, (5) manipulation of
others and dec eit fulness, and (6) lack of remorse.
To determine whether Arnold’s was likely to commit sexually violent crimes i f 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 S tatic

- 2002R, Dr. Goldberg placed Arnold in a group with a 19.2 percen t re cidivism

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 aggressio n 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.”10 Dr. Goldberg explained that there is a nexus between
Arnold’s A S PD and his predisposition to commit sexually violent
crimes in a predatory manner

. According to Dr. Gold berg

, A S PD
include s “characteristics, such as aggressi veness, lack of remorse, impulsivit y . . . that were as sociated with the . . . convicted charge.” Dr. Goldberg noted that Arnold has been arrested four times for sexually violent crimes, two of which resulted in

convi ctions. 4 According to Dr. Goldberg, t his set Arnold apart
from most sex offenders

, about 70 percent of whom are “one

- time
offenders.” O nly 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. Gol d berg found particularly troublesome the proximity
of the events involving Cynthia S. and Diane L. in July of 1991.
A rnold’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, t his 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 s ubstantial 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.”11

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
itse lf, is sufficient to support the trial court’s findings and order
of commitment.

II. Under the L aw of the C ase, A rnold is B arred from
A sserting H

is A rgument R egarding the T estimony of

a n Ind ependent E valuator

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 psychologis t .” (§ 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 replacemen t evaluations. (§ 6603, subd. (d)(1).) The People’s attorney may also request “updated evaluations” if necessary. ( Ibid. ) In 2013, D r. 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

co mmitment 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.
Arnol d 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 sexually12

violent predator by Dr. R o manoff .” ( Arnold v. Superior Court (Nov. 14, 2014), B254 887 [nonpub. opn.] ( Arnold I )

. )
Dr. Romanoff never evaluated Arnold. While the case was delayed, he stopped working for the DSH.
I n 2019, the People filed a motion for an updated
evaluation by Dr. Sidhu, but not f rom Dr. Grosso, who was no longer under contract with the D SH. That mot ion 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 pu rsuant 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 co urt 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 ).) Gene rally, 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. Howar d (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 fully13

briefed and the parties had an opportunity for oral argument. In

a substantive written opinion, w e rejected the same leg al 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 cou rt . . . consist of the legislati ve 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.14 DISPOSITION

The March 8, 20 21, order of co mmitment is affirm ed.

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.