People v. Hoffman

Filed 3/16/21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B306360 (Super. Ct. No. 2011035385) Plaintiff and Respondent, (Ventura County)

v.

EARL HOFFMAN,

Defendant and Appellant.

Old age! As John Steinbeck would say, “bastard Time” is always ticking. (Steinbeck, Sweet Thursday (1954) Penguin Books, p. 19.) And for some people, as it ticks, the person may mature, learn, and grow, and perhaps grow out of sexual deviancy. But there are others who may not mature, learn, and grow, and grow out of sexual deviancy. Here, for example, appellant is a 74-year-old self-admitted child molester, who, in a moment of candor, said that he could not guarantee that he would not molest another child upon release. Appellant was found to be a sexually violent predator (SVP) after trial by the court. (Welf. & Inst. Code, § 6600 et seq.) His sole contention on appeal is that the evidence was, and is, insufficient as a matter of law because, currently, he is just too

old to pose “a serious and well-founded risk” of sexually reoffending upon release. (E.g., People v. Roberge (2003) 29 Cal.4th 979, 986.) The trial court, sitting as the trier of fact, determined to the contrary. As we explain, traditional appellate rules dictate that we affirm. To reverse, we would have to impermissibly substitute our judgment for that of the trial court. Appellant has an extensive history of sexual deviancy, including numerous convictions for sexual offenses against children. But he has not reoffended for 30 years. Why not? He has been imprisoned and/or deprived of his freedom by civil commitment for 30 years. There is no need to elongate this opinion and recount the factual history leading to appellant’s 19 separate arrests, most of them involving sexual aggression against children. We recite one example of such aggression. In 1988, appellant accosted a 16-year-old female riding a moped. He told her he was a scout for models. Although he was an adult and the victim was a complete stranger, he sexually penetrated her vagina with his finger. Five psychologists offered opinions concerning his qualifying as an SVP. They were unanimous in the opinion that appellant met the SVP commitment criteria. However, two of the psychologists opined that appellant was just too old to support the opinion that he posed “a serious and well-founded risk” of sexually reoffending upon release. One psychologist said that appellant’s age was the “paramount issue,” and as a person ages, he loses his sexual aggressiveness. The other psychologist said that if appellant were younger, he would be an SVP but “age” is “huge.” Thus, both of these psychologists opined that appellant should not be committed as an SVP.