Filed 8/11/ 22 P. v. Bortswi ck CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115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 SEVEN

THE PEOPLE,

Plaintiff and Respondent

,

v.

RONALD BORTSWICK

,

Defendant and Appellant

. B3 14786

(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 Ac t (SVPA; Welf

. & Inst

. Code , § 6600 et seq

. ) and was committed to a California state hospital. 1 I n September 20 2 0
, Bortswick filed a
motion for unconditional discharge pursuant to section 660 5

. 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 sex ually
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 Offenses 2

The first t wo qualifying offenses took place i n 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 s tatutory 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 ch ild. 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

count ing 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 u nzipped 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 h er 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] butt ocks” with his penis. Bortswick stated the
incident “was just written off as a curiosity stage for me.” Following th ose two convictions

, Bortswick was remanded to a Michigan state hospital as a sexual psychopath

. While he
was on a home visit a pproximate ly 18 months after commitment

, Bortswick eloped and never re turned 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 help ing to deliver

newspapers. All of the children agreed, bu t 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 awa y 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 exam ination revealed torn areas of Doris’ private parts
, and the presence of semen. ” Bortswick was sent to Atascadero State Hospital fo r a 90

- day observation as a mentally disordered se x offender. After being found unamenable to treatment

, he was sentenced to state prison for a period of one year to life. B ortswick 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 co nvictions 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 act s “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 abu sing 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 pornograph y while he
watched them

. Bortswick regul arly had intercourse and oral copulation with 11

- year

- old Janice, and also sodomized her . H e 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

, t he Los Angeles County District Attorney filed a petition to commit Bortswick as a n 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

. 202 0 Motion for Unconditional Discharge and Show Cause Hearing
O n April 1 6 , 202 0
, the Department of State Hospitals (Department) filed its annual report assessing Bortswick’s civil
commitment as a n 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 pers onality
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 eva luation

— 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 Hospi tal

, 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. Wit hrow’s recommendation, Bortswick filed a motion for unconditional discharge and a7

request to set a show cause hearing

. At the November 9, 2020 show cause hearing, Dr. Martin testified

, and the trial court found probabl e cause that Bortswick’s diagnosed mental disorder had changed , that he no longer po sed 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. 4 The 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 differ ed from
initial commitment evaluations in that they focused on whether “the person’s situation or condition [ha s ] changed such that they no longer meet the criteria” for commitment. Dr. Longwell
described t he factors she typically consider ed when preparing an annual report

, including treatment progress, a ny significant change s impacting the motivation or ability to commit sex offenses in the manner committed in the past and a well

4 The parties waived their right s 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 a n 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 qual ifying 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 chil dren.” H e “did not show any guilt or remorse ” for his past crime s , 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 con tinued to suffer from antisocial personality
disorder. Bortswick also repeatedly acknowledged he had a problem but failed to seek treatment. She noted Bortswick generally ha d been well behaved while in custody but that did not necessarily mean he would not reoffend if expos ed to children and presented with an opportunity to molest a child. She explained that antisocial personality disorder “makes it mo re 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 above

average range in t he Static

- 99R assessment and into the well

above

- 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

supp orted 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 issue s , but these factors did not apply favorably to Bortswick

. Bortswick
ha d not completed a comprehensive sex offender treatment

program , and he ha d not suffer ed from any deterioration of10

health that would minimize the risk of recidivism

. Dr. Longwell expla ined that age was also a protect ive 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 the ir 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 availa ble for elderly offenders. In any event, Dr. Longwell did not see any evidence that Bortswick’s physical
or sexual health had deter iorated since he was committed in 2017 and did not conclude there were factors that would mitigate Bortswick’s risk of recid ivism.

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 f our 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 D r. Martin
also spoke with staff at Coalinga State Hospital including11

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 su ch that an individual no longer met the criteria for commitment. In 2018 and 2019 Dr. Martin concluded Bortswick continued to meet the
criter ia for commitment because she “could not verify significant substantial change or difference that would have overr idden his current commitment.”
In 2020 and 2021 Dr. Martin changed her opinion. Consistent with her previous reports, s he found Bortswick had qualifying offenses , and her “diagnoses remain [ed] ” that he suffer ed from pedophilic disorder and antisocial pe rsonality
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 pa rticipation

. ” 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 adequatel y 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 risk12

scores

. Dr. Martin also relied on information that d uring the several years leading up to her 2020 and 2021 reports
, Bortswick did not show “behavior indicators of impulsivity or hypersexuality

. ” S he noted th ere 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 mater ial. She described his behavior with hospital staff as “affable and kind of cooperative .” Given his participation in a treatment program and
his behavior al indicators, and b ased on “ evidence by a large body of research on elderly offenders

, ” Dr. Martin o pined 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 t ake 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

. ”
R egard ing 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 p repubescent
children. T he 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 l ibido or reduce his life” remained true for her most recent report. When questioned by the court, Dr. Martin agreed that from 2018 to13

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 Static

99R and SRA

- FV actuarial tools. Dr. Martin r ated Bortswick above average

- risk on the Static

- 99R assessment. For the SRA

FV, which looks at dynamic r isk 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 overestimate d 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 release d 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 d o not have a n existing substantial relationship.14

molested Angel be cause she acted provocatively. 8 Dr. Martin testified that it appeared Bortswick ha d made progress demonstrating insight into his offenses since making those

statements. Regarding a post

- release plan, Dr. Martin testified that Bortswick informed her tha t he believed he could have relationships with his two biological daughters and that he could

live with either of them if needed. 9 According to Bortswick, no children were living in either home.

F. The Trial Court’s Finding s and Order Following the be nch trial, t he 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 e ngaged 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 an d 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 . T he 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 obser ved that since his
commitment in 2017 “the only thing that has changed is that
Mr. Bortswick is almost four years older ” and e ven “ Dr. Martin acknowledged that other than being a year older, there was not any evidence that Mr. Bortswick’s physical conditio n 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

co nsider 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

m anner 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 a n 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.4 th at pp. 345

- 346.) Once committed

, a n 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 perso n 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 pro tected 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 u nconditional 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 cr iminal behavior if discharged. ” (§ 6605, subd. (a)(3).) “ [A] person is17

‘ 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 suc h 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 i nferences, 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 , outs ide the context of the S VP A] .)18 B. The Trial Court Did Not Err in Denying Bortswick’s Motion for Unconditional Discharge

Bortswick co ntends the trial court erred by inverting the burden of proof at trial and requir ing him to prove he no longer
met the criteria for commitment as a n 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 statement s , the trial court
did not invert the burden of proof at trial. The court repe atedly
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 t he 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 to19

2018 in concluding that [Bortswick] presently has a mental disorder that qualified him as [an] SVP.” Befor e 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 t he trial court ’s denial of his motion f

or uncondi tional 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 ap propriate, section 6605 instructs the trial court to focus on whether “t he 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) [ ita lics 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 prope rly 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 circumstanc es

. Bortswick relies on People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1075 ( L a Blanc )

, which stated “[t]he ‘sheer passage of time’ since an SVP’s diagnosis and commitment may be a relevant consideration” i n seeking release. L a Blanc is procedurally and factually inapposite. In L a Blanc, a trial court , without holding an evidentiary hearing

, denied a s 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 r elease is frivolous, because various
studies have concluded that recidivism rates decrease significantly among older male sex offenders. ” ( Id. at p. 1076.)
In contrast to L a Blanc, here, the trial court held a full evidentiary hearing before determining that Bortswick continued to meet the criteria for commitment. The court did not reject21

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 L a Blanc, who in addition to his advanced age suffered from serious medica l conditions and a decreased libido,
there was no evidence that Bortswick ha d 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,

t he evidence at trial revealed that despite being four years older,
Bortswick ’s health ha d 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 engag ed in any serious rule violations; and he has been cooperative with hospital staff. There is evidence in the record to support th ose contentions, except for Bortswick’s position that he has participated in a sex offender treatment program since he was com mitted 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, vi ew 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 currently22

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 othe rs , and it was likely that he would engage in sexually violent criminal behavior because of his diagnosed mental disorders. ( Evid. Code, § 411 [“t he 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

trea tment 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
Bortswic k 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, th e 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 th e Chief Justice pursuant to article VI, section 6 of the California Constitution.