Filed 8/11/22 P. v. Bortswick CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v. 

RONALD BORTSWICK,

Defendant and Appellant.

B314786

(Los Angeles County

Super. Ct. No. ZM016912)

 

APPEAL from an order of the Superior Court of 

Los Angeles County, James R. Dabney, Judge. Affirmed.

Gerald J. Miller, by appointment, for Defendant and 

Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, and Paul M. Roadarmel, Jr. and 

Steven D. Mathews, Supervising Deputies Attorney General, for 

Plaintiff and Respondent.

___________________
2

In June 2017, Ronald Bortswick admitted the allegations of 

a petition filed by the People to commit him as a sexually violent 

predator (SVP) under the Sexually Violent Predator Act (SVPA;

Welf. & Inst. Code, § 6600 et seq.) and was committed to a 

California state hospital.1In September 2020, Bortswick filed a 

motion for unconditional discharge pursuant to section 6605. 

Following a bench trial, the court found that Bortswick continued 

to meet the criteria for commitment and denied his motion. 

On appeal, Bortswick argues the court improperly placed 

the burden of proof on him at trial. He also asserts the court, 

when considering whether he would likely engage in sexually 

violent criminal acts if released, erroneously assessed Bortswick’s

propensity to reoffend on his historic predatory behavior instead 

of his current state of mind. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Five Qualifying Offenses2

The first two qualifying offenses took place in close 

succession in September 1961 when Bortswick was 17 years old. 

Bortswick was convicted in Wayne County, Michigan of gross 

indecency, accosting a child for an immoral purpose and indecent 

1 Undesignated statutory references are to the Welfare and 

Institutions Code.

2 Descriptions of the offenses are taken from the 2010 

petition for commitment, the 2010 reports prepared by Dr. Jack 

Vognsen and Dr. Robert M. Owen, the 2020 annual report 

prepared by Dr. Rebecca Martin and the trial testimony of Dr. 

Kathleen Longwell. 
3

liberties with a child. The victims were a nine-year-old female, 

Wanda, and her four-year-old brother, Eric, both strangers to 

Bortswick. 

Wanda was playing outside with her siblings when 

Bortswick drove up and asked if she wanted to earn money 

counting homes on the block. Wanda agreed and got into the car. 

Bortswick drove into an alley and parked. He told Wanda to get 

into the back seat and to take off her clothes. Bortswick 

threatened if she did not comply, he would throw her clothes out 

the window. Bortswick unzipped his pants, pulled out his penis, 

placed Wanda’s hands on his penis and told her to play with it. 

Bortswick told her to sit on his lap, and he placed his penis 

between her legs. He pushed her head down and made her kiss 

his penis. He told her to lie down, and he got on top of her. 

Bortswick rubbed his penis against her until he ejaculated. 

Bortswick admitted to police that he made Wanda touch and kiss 

his penis, and that he put his penis between her legs.

In a separate incident in September 1961, Bortswick

fondled Eric’s penis and forced Eric to touch his penis.3

Bortswick explained to one evaluator that he tried to have anal 

sex with Eric but not to the point of penetration; instead, he 

“rubbed [Eric’s] buttocks” with his penis. Bortswick stated the 

incident “was just written off as a curiosity stage for me.” 

Following those two convictions, Bortswick was remanded 

to a Michigan state hospital as a sexual psychopath. While he 

was on a home visit approximately 18 months after commitment, 

Bortswick eloped and never returned to the hospital. 

3

The record does not indicate how Bortswick came to be 

alone with Eric.
4

Bortswick’s third qualifying offense occurred in May 1966 

when he was convicted in Los Angeles County of committing lewd 

or lascivious acts (Pen. Code, § 288). The victim, eight-year-old 

Doris, was a stranger to Bortswick. Doris, her brother and a 

friend were walking home from school. Bortswick approached the 

children on foot and offered to pay them for helping to deliver 

newspapers. All of the children agreed, but Bortswick told the 

other two children they were too young, and they should go back 

to school. Bortswick escorted Doris to his car and drove her to his 

apartment. Doris was scared and asked when she could go back 

to school. Bortswick told her he would take her back after they 

got the newspapers. Once in the apartment Bortswick ordered 

Doris to take off her clothes. When she refused, he threatened to 

tear off her clothes. Doris removed her clothes. Bortswick 

ordered her to get on his bed and sexually assaulted her by 

forcing her to have intercourse. After he was done, Bortswick 

told Doris she could get dressed. Bortswick told Doris if she told 

anyone about what happened she would get in trouble. 

Bortswick walked with Doris some distance away from his 

apartment and left her alone on the sidewalk. Doris eventually 

walked to a friend’s home. According to Dr. Vognsen’s report, “a 

medical examination revealed torn areas of Doris’ private parts,

and the presence of semen.”

Bortswick was sent to Atascadero State Hospital for a 90-

day observation as a mentally disordered sex offender. After 

being found unamenable to treatment, he was sentenced to state 

prison for a period of one year to life. Bortswick was paroled in 

October 1971 and was discharged from parole two years later at 

the age of 30.
5

Bortswick’s fourth and fifth qualifying offenses occurred in 

Los Angeles County in May 1990 when he was 46 years old. The 

qualifying offenses included convictions of seven counts of

committing lewd or lascivious acts with a child under 14 years 

old (Pen. Code, § 288, subd. (a)), and one count of committing 

lewd or lascivious acts “by use of force, violence, duress, menace, 

or fear of immediate and unlawful bodily injury on the victim or 

another person” (id., § 288, subd. (b)). The two victims were 

Bortswick’s daughter, Angel, and his niece, Janice. Bortswick 

started sexually abusing Angel when she was nine years old, 

began regularly having intercourse with her before she was 12

years old and sexually abused her until she was 13 years old.

Bortswick made Angel and Janice look at pornography while he 

watched them. Bortswick regularly had intercourse and oral 

copulation with 11-year-old Janice, and also sodomized her. He 

forced Angel to watch and photograph him and Janice engaging 

in sexual acts. At one point, Janice became pregnant by 

Bortswick and was taken by Bortswick’s ex-wife to have an 

abortion. Bortswick also paid Angel and Janice to engage in 

sexual acts with him and to have sex with other men. Bortswick 

threatened the girls that he would tell their mothers if they did 

not continue to have sex with him. Bortswick was sentenced to 

26 years in prison.

B. 2010 Petition for Commitment

On December 14, 2010, the Los Angeles County District 

Attorney filed a petition to commit Bortswick as an SVP under

section 6000 et seq. The petition alleged that Bortswick suffered

convictions in four cases involving various sex crimes over a 30-

year period. Two psychologists, Dr. Owen and Dr. Vognsen,
6

evaluated Bortswick. They concluded Bortswick suffered from a 

mental disorder and, unless he received treatment and remained 

in custody, Bortswick was likely to engage in sexually violent 

predatory acts in the future. 

On June 8, 2017, Bortswick admitted the allegations in the 

petition and was committed to a state hospital for an 

indeterminate term. His commitment was continued on June 7, 

2018, and June 6, 2019. 

C. 2020 Motion for Unconditional Discharge and Show

Cause Hearing

On April 16, 2020, the Department of State Hospitals 

(Department) filed its annual report assessing Bortswick’s civil 

commitment as an SVP pursuant to section 6604.9. The report 

and declaration, prepared by Dr. Rebecca Martin, a consulting 

psychologist at Coalinga State Hospital, concluded Bortswick 

suffered from pedophilic disorder and antisocial personality 

disorder but that he was unlikely to engage in sexually violent 

predatory acts if released. Dr. Martin explained Bortswick’s 

age—76 years old at the time of the 2020 evaluation—negatively 

correlated with recidivism and factors such as “impulsivity, 

resistance to rules and overt acts of anger or aggression.” 

Dr. Martin recommended Bortswick’s unconditional release. 

Dr. Robert Withrow, the medical director at Coalinga State 

Hospital, agreed with Dr. Martin’s evaluation and 

recommendation. 

On April 22, 2020, the Department requested judicial 

review of Bortswick’s commitment. On September 10, 2020, 

relying on Dr. Martin’s and Dr. Withrow’s recommendation,

Bortswick filed a motion for unconditional discharge and a 
7

request to set a show cause hearing. At the November 9, 2020 

show cause hearing, Dr. Martin testified, and the trial court 

found probable cause that Bortswick’s diagnosed mental disorder 

had changed, that he no longer posed a danger to the health and 

safety of others and that he was not likely to engage in sexually 

violent criminal behavior if released. 

D. The People’s Expert Witness Testimony: Dr. Longwell

Bortswick’s bench trial commenced on June 9, 2021.4The 

People offered the testimony of Dr. Longwell.5 Dr. Longwell 

works as a psychologist with the Department and conducts SVP

evaluations. She has worked with the Department since 

February 1996 and has evaluated over 3,000 individuals, at least 

three-quarters of whom were sex offenders. She has prepared 

annual reports for approximately 50 individuals and has 

recommended unconditional release in one case due to an 

offender’s medical condition.

Dr. Longwell explained that annual reports differed from 

initial commitment evaluations in that they focused on whether 

“the person’s situation or condition [has] changed such that they 

no longer meet the criteria” for commitment. Dr. Longwell 

described the factors she typically considered when preparing an 

annual report, including treatment progress, any significant 

changes impacting the motivation or ability to commit sex 

offenses in the manner committed in the past and a well4

The parties waived their rights to a jury trial. 

(§ 6605, subd. (a)(3).) 

5

The People retained Dr. Longwell after the show cause 

hearing. 
8

documented treatment plan, if released. 

Dr. Longwell evaluated Bortswick in March 2021. 

Dr. Longwell opined that Bortswick “still met the criteria [for an 

SVP] and it wasn’t safe at this time [to release him], that he still 

presented a serious and substantial risk of sex offense, and that 

he had not made adequate progress in treatment.” Dr. Longwell 

believed Bortswick would reoffend if released and that future 

offenses would be predatory in nature. In reaching her opinion, 

Dr. Longwell reviewed approximately 2,000 pages of the 

Department’s documents, including Bortswick’s treatment 

records and past evaluations. Bortswick declined to be 

interviewed by Dr. Longwell. 

Dr. Longwell testified about Bortswick’s qualifying offenses

and observed the offenses involved “manipulation and threats” to 

lure children to engage in sexual activity. She diagnosed 

Bortswick with non-exclusive pedophilic disorder and antisocial 

personality disorder using the criteria set forth in the Diagnostic 

and Statistical Manual of Mental Disorders, Fifth Edition.

6

Dr. Longwell had “no reason to believe that [Bortswick’s]

pedophilic disorder has been extinguished” simply “because he’s 

been locked up for so long and hasn’t had access to children.” He 

“did not show any guilt or remorse” for his past crimes, which 

indicated to Dr. Longwell that Bortswick would likely reoffend if 

6 Dr. Longwell defined pedophilic disorder as requiring 

evidence of “a period of time of six months or greater of sexual 

urges, fantasies, or behaviors towards prepubescent children, 

which is generally defined as age 13 or younger” and antisocial 

personality disorder as “a condition where the person has 

persistently violated the rights and welfare of others, commonly 

but not always as evidenced by extensive criminal history.” 
9

released. Bortswick last participated in a sexual offender 

treatment program in 2015, and Dr. Longwell testified that 

refusing and complaining about treatment indicated to her that 

Bortswick continued to suffer from antisocial personality 

disorder. Bortswick also repeatedly acknowledged he had a 

problem but failed to seek treatment. She noted Bortswick 

generally had been well behaved while in custody but that did not 

necessarily mean he would not reoffend if exposed to children and 

presented with an opportunity to molest a child. She explained 

that antisocial personality disorder “makes it more difficult for 

you to have what we call prosocial traits that might mitigate . . . 

or prohibit from acting on pedophilic urges.” 

Dr. Longwell performed a standard risk assessment using 

actuarial tools including the Static-99R, the Static-2002R and the 

structured risk assessment-forensic version (SRA-FV), which 

assess the averages for recidivism. Bortswick fell into the aboveaverage range in the Static-99R assessment and into the wellabove-average range in the Static-2002R assessment. For the 

SRA-FV, Dr. Longwell placed Bortswick in the high treatment 

needs risk category. She described Bortswick’s case as 

“exceptional” in that he has “an extremely extensive history of 

sexual offending and repeat sex offending,” which she explained 

supported her conclusion that Bortswick would likely reoffend if 

released.

Dr. Longwell testified that certain protective factors may 

mitigate a high risk of recidivism, such as the completion of a 

comprehensive sex offender treatment program or health issues, 

but these factors did not apply favorably to Bortswick. Bortswick 

had not completed a comprehensive sex offender treatment 

program, and he had not suffered from any deterioration of 
10

health that would minimize the risk of recidivism. Dr. Longwell 

explained that age was also a protective factor, but the 

significance of age was not the number in isolation; rather, it was 

important to consider whether a committed person’s age

impacted their health, vitality, sexual motivation and sexual 

ability. Although some of the existing data suggested a negative 

correlation between advanced age and the likelihood of 

recidivism, Dr. Longwell considered the data “weak” due to the 

small sample size available for elderly offenders. In any event, 

Dr. Longwell did not see any evidence that Bortswick’s physical 

or sexual health had deteriorated since he was committed in 2017 

and did not conclude there were factors that would mitigate 

Bortswick’s risk of recidivism. 

E. Bortswick’s Expert Witness Testimony: Dr. Martin

Bortswick offered the testimony of Dr. Martin. Dr. Martin 

became certified as a California licensed psychologist in 2016. 

She began working at Coalinga State Hospital in 2013

facilitating sex offender treatment groups and conducting 

treatment assessments. At the time of the trial Dr. Martin had 

completed annual reports for approximately 64 different patients

and recommended conditional release or unconditional discharge 

for four of them. 

Dr. Martin prepared an annual report for Bortswick each 

year from 2018 to 2021. In preparing those reports, Dr. Martin 

reviewed, among other documents, psychology progress notes, 

rehabilitation therapy notes, treatment plans, case histories, risk 

assessments, prior annual evaluations and evaluations from 

Bortswick’s initial commitment. For her 2021 report Dr. Martin 

also spoke with staff at Coalinga State Hospital including 
11

Bortswick’s psychologist and rehabilitation therapist. Bortswick 

declined to submit to a full interview. 

Dr. Martin explained the purpose of an annual review was

to determine whether circumstances had changed such that an

individual no longer met the criteria for commitment. In 2018 

and 2019 Dr. Martin concluded Bortswick continued to meet the 

criteria for commitment because she “could not verify significant 

substantial change or difference that would have overridden his 

current commitment.” 

In 2020 and 2021 Dr. Martin changed her opinion. 

Consistent with her previous reports, she found Bortswick had 

qualifying offenses, and her “diagnoses remain[ed]” that he 

suffered from pedophilic disorder and antisocial personality 

disorder given these disorders were “lifelong” constructs. 

Dr. Martin concluded, however, that Bortswick no longer met the 

commitment criteria because he was unlikely to reoffend if 

released. One of the factors that caused Dr. Martin to change her 

opinion was that Bortswick had “participated in a fair amount of 

treatment” from July 2012 to February 2015 including group 

classes and a sex offender treatment program “with good progress 

and good participation.” Dr. Martin acknowledged that 

Bortswick completed this treatment before her 2018 annual 

report, in which she concluded Bortswick’s participation in 

further treatment prior to release was an important step to 

ensure the community was adequately protected. Dr. Martin also 

acknowledged that in her 2019 report she recommended further 

treatment for Bortswick. At trial Dr. Martin testified that while 

she “definitely would have preferred” Bortswick to continue 

treatment, she did not believe it was “mandatory” for him to do so 

before being unconditionally released given his age and risk 
12

scores. 

Dr. Martin also relied on information that during the 

several years leading up to her 2020 and 2021 reports, Bortswick 

did not show “behavior indicators of impulsivity or 

hypersexuality.” She noted there were no serious incident 

reports documenting any major rule violations while Bortswick 

had been in custody, including no evidence Bortswick had been 

caught with pedophilic or pornographic material. She described 

his behavior with hospital staff as “affable and kind of 

cooperative.” Given his participation in a treatment program and

his behavioral indicators, and based on “evidence by a large body 

of research on elderly offenders,” Dr. Martin opined that it was “a 

difficult case to say that [Bortswick’s] likely to engage in future 

predatory sexual behavior.”

Dr. Martin stated, “we just don’t see a lot of sexual 

recidivism for offenders in their 70s.” She explained that 

physiological and social emotional changes take place with age, 

including decreases in aggression, physical violence, impulsivity 

and risk taking. Beginning from the fifth decade of life there are 

“pretty consistent decreases in levels of testosterone,” a “very 

important [hormone] when it comes to sexual arousal and desire.” 

Regarding Bortswick’s sexual health in particular, however, 

Dr. Martin was unaware of any information suggesting a 

decrease in his libido or in his mental arousal to prepubescent 

children. The only major health condition Dr. Martin identified

in Bortswick’s records was high cholesterol. She agreed the

statement from her 2018 and 2019 reports that Bortswick “has no 

significant medical conditions that would reduce his libido or 

reduce his life” remained true for her most recent report. When 

questioned by the court, Dr. Martin agreed that from 2018 to
13

2020 the only change in Bortswick, which caused her to change 

her opinion about whether he should be released, was the fact 

that Bortswick had aged two years. 

Dr. Martin performed a risk assessment using the Static99R and SRA-FV actuarial tools. Dr. Martin rated Bortswick 

above average-risk on the Static-99R assessment. For the SRAFV, which looks at dynamic risk factors including long-term 

vulnerabilities in a person’s personality, Dr. Martin placed 

Bortswick in the above-average need range. She stated the risk 

of recidivism for someone over 70 years old is 3 percent and 

continues to decrease over time. Dr. Martin explained that 

actuarial tools overestimated recidivism risks for elderly 

offenders due to the underrepresentation in the sample group 

and that age should be considered separately and in addition to 

the risk assessment. 

Dr. Martin testified that if released she did not believe 

Bortswick would reoffend in a predatory manner and any future 

victim would likely be familial.

7

She explained that his history of 

sexual offenses became increasingly “asexual” in that “[h]e chose 

easier target victims, lower risk victims, victims to whom he had 

easier access.” 

Dr. Martin acknowledged that Bortswick previously 

claimed he would not have molested again except for the 

“convenience” of his daughter, Angel; Bortswick also stated he 

7

According to Dr. Martin, an offense is predatory in nature if 

the offender and the victim do not have an existing substantial 

relationship. 
14

molested Angel because she acted provocatively.8 Dr. Martin 

testified that it appeared Bortswick had made progress 

demonstrating insight into his offenses since making those 

statements. 

Regarding a post-release plan, Dr. Martin testified that 

Bortswick informed her that he believed he could have 

relationships with his two biological daughters and that he could 

live with either of them if needed.9According to Bortswick, no 

children were living in either home. 

F. The Trial Court’s Findings and Order

Following the bench trial, the court issued a memorandum 

of decision denying Bortswick’s motion for unconditional 

discharge. The court noted the existence of qualifying offenses 

and Bortswick’s diagnosed mental disorder were not in dispute. 

8

Dr. Martin’s 2019 annual report summarized a 2002 

interview with Bortswick in which he admitted to being a 

pedophile and the evaluator noted Bortswick “believes that he 

would not have been engaged with little girls except for the 

convenience of his daughter.” Dr. Martin also summarized a 

2013 interview with Bortswick in which he discussed his sexual 

abuse of Angel and Janice. He minimized his behavior by 

claiming the girls were pubescent and placed blame on the girls 

because they acted provocatively and suggested exchanging sex 

for money. Bortswick acknowledged they may have been 

psychologically harmed by his actions but stated Angel may have 

enjoyed herself as well because she experienced orgasms with 

him. 

9 Dr. Martin did not identify the names of the two daughters 

Bortswick referenced. The record does not contain any additional 

information about Bortswick’s post-release plan.
15

The expert witnesses, however, offered differing conclusions 

about whether Bortswick posed a danger to the health and safety 

of others and was likely to engage in sexually violent behavior if 

unconditionally released. The court observed that since his 

commitment in 2017 “the only thing that has changed is that 

Mr. Bortswick is almost four years older” and even “Dr. Martin 

acknowledged that other than being a year older, there was not 

any evidence that Mr. Bortswick’s physical condition had 

deteriorated between the 2019 review and the 2020 review.” 

Bortswick had not participated in any organized activities since 

his commitment in 2017, and there appeared to be “no detailed 

post release plan in place.” Although it was appropriate to 

consider Bortswick’s age in making the updated assessment, the 

court concluded “merely aging from seventy-four to seventy-eight, 

without more is not sufficient to raise a reasonable doubt that 

Mr. Bortswick is still likely to reoffend in a sexually violent 

manner if unconditionally released.” 

Bortswick timely appealed. 

DISCUSSION

A. Relevant Law and Standard of Review

The SVPA “authorizes the involuntary civil commitment of 

a person who has completed a prison term but is found to be a 

sexually violent predator . . . . [Citations.] The SVPA’s purposes 

are ‘“to protect the public from dangerous felony offenders with 

mental disorders and to provide mental health treatment for 

their disorders.”’” (State Dept. of State Hospitals v. Superior 

Court (2015) 61 Cal.4th 339, 344.)
16

To establish an individual is an SVP, the People must 

prove beyond a reasonable doubt (1) the individual has been 

convicted of a qualifying sexually violent offense against one or 

more victims; (2) the individual suffers from a diagnosed mental 

disorder that makes him or her a danger to the health and safety 

of others in that (3) it is likely he or she will engage in sexually 

violent criminal behavior. (§§ 6600, subd. (a)(1) [defining 

elements of an SVP], 6604 [imposing beyond a reasonable doubt 

standard]; see generally People v. Roa (2017) 11 Cal.App.5th 428, 

443; State Dept. of State Hospitals v. Superior Court, supra, 61 

Cal.4th at pp. 345-346.)

Once committed, an SVP is evaluated annually to consider 

“whether the committed person currently meets the definition of 

a sexually violent predator and whether conditional release to a 

less restrictive alternative, pursuant to Section 6608, or an 

unconditional discharge, pursuant to Section 6605, is in the best 

interest of the person and conditions can be imposed that would 

adequately protect the community.” (§ 6604.9, subd. (b).) If the 

Department determines that a person no longer meets the

definition of an SVP, or conditional release is in the best interest 

of the person and the community can be adequately protected if 

the person is so released, the person may petition the court for 

either conditional release (§ 6608) or unconditional discharge 

(§ 6605). (§ 6604.9, subds. (d)-(f).)

“The burden of proof at the hearing [for unconditional 

discharge] shall be on the state to prove beyond a reasonable 

doubt that the committed person’s diagnosed mental disorder 

remains such that he or she is a danger to the health and safety 

of others and is likely to engage in sexually violent criminal 

behavior if discharged.” (§ 6605, subd. (a)(3).) “[A] person is 
17

‘likely [to] engage in sexually violent criminal behavior’ if at trial 

the person is found to present a substantial danger, that is, a 

serious and well-founded risk, of committing such crimes if 

released from custody.” (People v. Roberge (2003) 29 Cal.4th 979, 

988.) Evidence of a committed person’s amenability to voluntary 

treatment “is relevant to the ultimate determination whether the 

person is likely to engage in sexually violent predatory crimes if 

released from custody.” (Id. at p. 988, fn. 2.)

“‘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; accord, People v. Reynolds (2010) 181 Cal.App.4th 

1402, 1407 [substantial evidence standard of review applies to 

review of motions for unconditional discharge].) “‘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 (Sumahit); accord, 

People v. Westerfield (2019) 6 Cal.5th 632, 713 [discussing the 

substantial evidence standard of review generally, outside the 

context of the SVPA].)
18

B. The Trial Court Did Not Err in Denying Bortswick’s 

Motion for Unconditional Discharge

Bortswick contends the trial court erred by inverting the 

burden of proof at trial and requiring him to prove he no longer 

met the criteria for commitment as an SVP when the burden 

should have been on the People to prove the criteria were met 

beyond a reasonable doubt. Bortswick also contends the court 

erred by basing its decision on his past criminal sexual behavior 

rather than his current mental state. Neither contention is 

persuasive.

1. The trial court applied the correct burden of 

proof

Bortswick argues the People’s expert, Dr. Longwell, 

incorrectly characterized the burden of proof during her 

testimony. For example, Dr. Longwell stated, “I think that once 

somebody is committed, then I think the burden of proof falls on 

that individual to show why they should . . . be unconditionally 

release[d].” She further explained that “the burden is on the 

evaluator to come up with a reason why they no longer meet the 

criteria if they’re not doing treatment, if they don’t have some 

severe, you know, physical impairment that affects them.”

Irrespective of Dr. Longwell’s statements, the trial court 

did not invert the burden of proof at trial. The court repeatedly 

stated at trial that the People bore the burden of proof. Before 

the expert witnesses testified the court explained that “the 

burden of proof to sustain the petition remains on the People” 

and “the burden remains the same that each of the allegations 

have to be proven beyond a reasonable doubt.” The court also 

made clear the People “can’t rely on the finding from 2017 to 
19

2018 in concluding that [Bortswick] presently has a mental 

disorder that qualified him as [an] SVP.” Before closing 

arguments, the court asked to hear from the People “since they 

have the burden of proof.” Additionally, the court’s memorandum 

of decision correctly cited section 6605, subdivision (a)(3), for the 

burden of proof and explained “the question for the court to 

decide is whether the People have proven beyond a reasonable 

doubt that Mr. Bortswick’s mental disorder has not changed to 

the extent that he is no longer a danger to the health and safety 

of others and unlikely to engage in sexually predatory behavior if 

released.” The record establishes that the court understood, and 

properly applied, the burden of proof at trial.

2. Substantial evidence of Bortswick’s current 

circumstances supports the trial court’s denial 

of his motion for unconditional discharge

Bortswick contends the trial court improperly relied on his

past conduct in denying his motion for unconditional discharge 

because the court used his commitment as an SVP and prior 

evaluations as a “base line” to determine whether circumstances 

had changed to support unconditional discharge. Bortswick also 

cites the prosecutor’s closing argument that “[t]he past is a best 

predictors [sic] of the future” in support of his contention that the 

court’s decision was based on past conduct.

Bortswick’s contention is belied by the SVPA’s statutory 

language and by his own expert witness’s testimony. In 

determining whether unconditional discharge is appropriate, 

section 6605 instructs the trial court to focus on whether “the 

committed person’s diagnosed mental disorder remains such that 

he or she is a danger to the health and safety of others” at the

evidentiary hearing. (§ 6605, subd. (a)(2), (3) [italics added].) 
20

Consistent with the statute, Bortswick’s own expert explained, 

“[T]he purpose of [the annual review] is to determine whether or 

not things have changed such that the individual no longer meets 

the criteria [for commitment].” The court properly focused on the 

question of how Bortswick’s circumstances have changed during 

his commitment.

Bortswick further argues the trial court failed to 

sufficiently consider his advanced age, which he interprets as a 

failure to consider his current circumstances. Bortswick relies on 

People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1075 (LaBlanc), 

which stated “[t]he ‘sheer passage of time’ since an SVP’s 

diagnosis and commitment may be a relevant consideration” in

seeking release. LaBlanc is procedurally and factually 

inapposite. In LaBlanc, a trial court, without holding an 

evidentiary hearing, denied as frivolous a committed person’s

petition for unconditional discharge. (Id. at p. 1062.) The court 

of appeal reversed the order because the defendant demonstrated 

changed circumstances in his petition: he was 70 years old, had 

lost interest in sex after receiving radiation therapy for prostate 

cancer, had heart disease, had been provisionally diagnosed with 

multiple sclerosis, had difficulty getting an erection and had one 

testicle removed. (Id. at p. 1064.) The court of appeal explained 

that “advanced age and onset of serious medical conditions of an 

SVP are potentially relevant factors in determining whether a 

petition for unconditional release is frivolous, because various 

studies have concluded that recidivism rates decrease 

significantly among older male sex offenders.” (Id. at p. 1076.)

In contrast to LaBlanc, here, the trial court held a full 

evidentiary hearing before determining that Bortswick continued 

to meet the criteria for commitment. The court did not reject 
21

Bortswick’s age out-of-hand or suggest age was irrelevant. 

Instead, it considered Bortswick’s age but determined that age 

alone was insufficient to conclude Bortswick was not a danger to 

the health and safety of the community and would not likely 

engage in sexually violent criminal behavior if released. Unlike 

the defendant in LaBlanc, who in addition to his advanced age 

suffered from serious medical conditions and a decreased libido, 

there was no evidence that Bortswick had suffered any medical 

conditions that affected his sex drive or his ability to carry out 

sexual offenses in the manner of his qualifying offenses. Instead, 

the evidence at trial revealed that despite being four years older, 

Bortswick’s health had not deteriorated since he was committed 

in 2017.

Lastly Bortswick asserts that the evidence of his current 

circumstances supports his unconditional discharge because since 

being committed in 2017, he has participated in sex offender and 

other treatment; he has not displayed any signs of impulsivity or 

hypersexuality; he has not engaged in any serious rule violations; 

and he has been cooperative with hospital staff. There is 

evidence in the record to support those contentions, except for 

Bortswick’s position that he has participated in a sex offender 

treatment program since he was committed in 2017; the last time 

he participated in treatment was 2015. Nevertheless, 

Bortswick’s insistence that we reverse the trial court’s order is 

incorrect because on appeal we review the record for substantial 

evidence supporting the court’s order, view the evidence in the 

light most favorable to upholding the order and refrain from 

reweighing the credibility of witnesses. 

The existence of a qualifying offense was not in dispute. 

Both expert witnesses testified that Bortswick was currently 
22

suffering from pedophilic disorder and antisocial personality 

disorder. The testimony of the People’s expert, Dr. Longwell,

provided substantial evidence from which the trial court could 

conclude that Bortswick was a current danger to the health and 

safety of others, and it was likely that he would engage in 

sexually violent criminal behavior because of his diagnosed 

mental disorders. (Evid. Code, § 411 [“the direct evidence of one 

witness who is entitled to full credit is sufficient for proof of any 

fact”].) In reaching her opinion, Dr. Longwell relied on 

Bortswick’s failure to complete a comprehensive sexual offender 

treatment program and to engage in any sexual offender 

treatment since his commitment in 2017; Bortswick’s repeated 

acknowledgments that he had a problem but failed to seek 

treatment; and Bortswick’s avoidance of treatment because he

felt he was being mistreated. (See Sumahit, supra, 128 

Cal.App.4th at pp. 354-355 [“A patient’s refusal to cooperate in 

any phase of treatment may therefore support a finding that he 

‘is not prepared to control his untreated dangerousness by 

voluntary means if released unconditionally to the community’”].) 

Dr. Longwell also relied on the lack of evidence that 

Bortswick felt any guilt or remorse for his actions and the scores 

generated by risk assessment tools that indicated Bortswick had 

an above-average likelihood of recidivism. While Dr. Longwell 

considered Bortswick’s age as a protective factor, she determined 

age was not a mitigating factor in this case because there was no 

evidence that Bortswick’s health had deteriorated in any way to 

impact his libido or his ability to commit sexual offenses in the 

manner he committed the qualifying offenses. On this record, the 

trial court did not err in denying Bortswick’s motion for 

unconditional discharge.
23

DISPOSITION

The order is affirmed. 

WISE, J.

We concur:

PERLUSS, P. J.

SEGAL, J.



Judge of the Alameda County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.