Thursday, November 2, 2006
Appeals Court Rules Sexual Predator Remains Threat, May Be Recommitted After Undergoing Castration
By a MetNews Staff Writer
The fact that a convicted sexual predator has voluntarily undergone chemical and surgical castration does not mean that he is no longer likely to reoffend, the Fifth District Court of Appeal held yesterday.
The court affirmed a judgment committing Edward Flores to an additional two- year term at Atascadero State Hospital under the Sexually Violent Predator Act. Fresno Superior Court Judge W. Kent Hamlin entered the judgment after a jury found that Flores continued to be a sexually violent predator within the meaning of the act.
“A person does not need to have an erection to molest a child,” Justice Rebecca A. Wiseman wrote for the Court of Appeal.
Flores, 46,  has a long history of sexual offenses, the record showed. He has numerous convictions and, according to expert testimony, reported sexual offenses against 15 to 18 victims.
In 1997 Flores was committed to the state hospital as a sexually violent predator for a two-year term. In 1999 the district attorney petitioned for a two-year extension, which Flores did not contest, and has continued to petition for extensions and the end of each term.
In 2002, before the trial on the most recent petition, Flores voluntarily underwent castration surgery. He had earlier undergone chemical castration.
During the trial on the most recent petition, three experts testified on behalf of the prosecution. Each gave a diagnosis of pedophilia, and concluded that Flores was a sexually violent predator and likely to reoffend within the meaning of the act.
The experts based their conclusions on Flores’ “life-long history of sexual offending,” his “sexual attraction to children” and “his compulsion to engage in this behavior despite the fact that he’s suffered numerous consequences for doing so.”
They relied on an actuarial instrument known as the Static 99, which one expert described as follows:
“The actuarial approach is based on an approach similar to, let’s say, what an insurance company would use. So an insurance company knows that if somebody has had three prior accidents, they’re more likely to get in another accident than somebody who has never been in an accident before.”
The expert continued:
“Similarly, somebody who’s been convicted of three prior sex offenses is much more likely to commit a sex offense in the future than someone who has never been convicted of a sex offense or has been convicted of one sex offense.”
One of these experts acknowledged the limits of this approach by agreeing that Static 99 is only “about as accurate as guessing a person’s weight” when “the only thing you know about that person is how tall they are[.]”
Each of the prosecution’s experts gave Flores a score of six or greater on the Static 99, which predicts a 52 percent likelihood of reoffending within 15 years.
But the Static 99 does not take into effect dynamic factors, such as the fact that Flores underwent castration, the witnesses explained. They testified that Flores’ risk of reoffending remained high nonetheless because  physical gratification was not Flores’ only motivation in committing sex offenses, and because castration “does not completely get rid of sexual functioning as much as people generally think or believe.”
Four experts testified on behalf of Flores—three opining that, after his castration surgery, he did not satisfy the criteria for commitment as a sexually violent predator. The fourth had no opinion on that issue.
After the jury found that Flores continued to be a sexually violent predator, he appealed, contending that, in light of his surgical castration, the evidence was not sufficient to show a serious and well-founded risk of re-offense. He focused on his experts’ opinions that the Static 99 is not meaningful when applied to a castrated offender and the prosecution’s concession that the Static 99 results did not take into account dynamic factors, such as castration.
Wiseman summarized Flores argument:
“Defendant argues, however, that the evidence presented by all the experts showed that ‘there is no proven method of combining the risk as measured by the [Static 99] with the decrease in reoffense rate occasioned by castration .…’ In saying this, he implies that the People’s experts behaved irrationally when they cited the Static 99 results while at the same time admitting that castration reduced defendant’s risk to an unquantifiable extent consequently their testimony on these matters could not be relied on by a reasonable finder of fact.”
But Wiseman disagreed, saying:
“The People’s experts did not need to know by precisely what percent castration reduced the risk before they could meaningfully say the reduction was not enough to make the Static 99 results meaningless. They offered an informed judgment of the relative weight of castration in relation to the Static 99 factors and other factors and concluded that castration did not tip the balance.
“They pointed out to the jury that the Static 99 was one consideration, castration another, defendant’s specific offense history another, and so on they never claimed to be able to combine all the factors in a single numerical projection of the chances of reoffense. There was nothing wrong in principle with that way of proceeding.”
The justice concluded:
“Apart from this dispute over the relationship between the Static 99 results and the effects of castration, there is no doubt that the evidence was sufficient to support the judgment. In addition to the Static 99 and the effects of castration, the People’s experts considered defendant’s lengthy offense history and several other factors, as just discussed. This was ‘evidence that is reasonable, credible, and of solid value,’ from which the jury could find a serious and well-founded risk of reoffense.”
Justices Thomas A. Harris and Dennis A. Cornell concurred in the opinion.
The case is People v. Flores, 06 S.O.S. 5782.
Copyright 2006, Metropolitan News Company