The opinion
Filed 12/20/24 P. v. Snow CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, A168931
v.
EUGENE SNOW, (Alameda County
Defendant and Appellant. Super. Ct. No. 147618)
The trial court found defendant Eugene Snow qualified as a sexually
violent predator (SVP) and ordered him committed to a state hospital for an
indeterminate term pursuant to the Sexually Violent Predator Act. (SVPA;
Welf. & Inst. Code, § 6600 et seq.)1 Snow challenges the sufficiency of the
evidence underlying a requirement for his commitment—i.e., that he was
likely to commit a future predatory act. He further contends that the terms
“likely” and “predatory” as used in the SVPA are unconstitutionally vague
and that SVPA’s indeterminate sentencing violates the due process, ex post
facto, and double jeopardy clauses of the federal and state Constitutions. We
affirm.
Further undesignated statutory references are to the Welfare and
1
Institutions Code.
1
BACKGROUND
In 2008, the People filed a petition to commit Snow for an
indeterminate term as an SVP pursuant to the SVPA, and the trial court
found there to be probable cause that Snow met the criteria for commitment.
Over the next 14 years, the matter was continued multiple times for a variety
of reasons, including substitution of counsel, additional expert evaluations,
motion practice, and developing case law. Snow waived his right to a jury
trial, and a court trial was ultimately held in 2022, after which the court
found Snow met the SVP criteria and committed him to an indeterminate
term at the California Department of State Hospitals (DSH).
I. The Prosecution’s Case
A. Evidence of Snow’s Predatory Acts in the Commission of Prior
Offenses
At the April 2022 SVP court trial, the People presented testimonial and
documentary2 evidence of Snow’s commission of two predicate offenses and
two additional sexual offenses against children to prove Snow “has been
convicted of a sexually violent offense against one or more victims,” and to
show “[t]he details underlying the commission of [those] offense[s] . . . ,
including a predatory relationship with the victim[s]” as required by section
6600.3 (§ 6600, subd. (a)(1).)
2 Section 6600, subdivision (a)(3), permits the existence of any prior
convictions to be shown with documentary evidence.
3 “ ‘Sexually violent offense’ means the following acts when committed
by force, violence, duress, menace, fear of immediate and unlawful bodily
injury on the victim or another person, or threatening to retaliate in the
future against the victim or any other person, . . . and result in a conviction
. . . , as defined in subdivision (a): a felony violation of Section 261, 262,
264.1, 269, 286, 287, 288, 288.5, or 289 of, or former Section 288a of, the
Penal Code, or any felony violation of Section 207, 209, or 220 of the Penal
Code, committed with the intent to commit a violation of Section 261, 262,
2
The first offense occurred on April 23, 1983, when Snow was 17 years
old and the victim, J.M., was 5 years old. J.M.’s mother, K., testified that
Snow’s mother, P., “invited [K. and her family] over.” J.M. and Snow had met
merely “[t]wice, if that many [times],” prior to the visit. J.M. and Snow
“didn’t play together”; they had “met more in passing.”
Around 9:00 p.m., K. sent J.M. to get help from Snow with putting on
his pajamas. But J.M. returned still dressed and said that Snow had “ ‘tried
to put his penis in my bottom.’ ” The adults called the police. J.M. told police
that Snow “had been tickling him” and said if J.M. would not “play a game,
he’s going to tickle.” Snow said, “This won’t hurt you” and told J.M. to put his
pants down. Snow then “Put his wee-wee in my booty.”4 A juvenile petition
was sustained for a felony violation of Penal Code section 288, subdivision (a),
for willfully committing a “lewd or lascivious act, . . . , upon or with the body,
or any part or member thereof, of a child who is under the age of 14 years,
with the intent of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of that person or the child.”
The second offense—and first qualifying predicate offense—occurred
two years later, in April 1985, when Snow was 19 years old. About one
month prior, having completed juvenile custody and spent time in foster care,
264.1, 286, 287, 288, or 289 of, or former Section 288a of, the Penal Code.”
(§ 6600, subd. (b); see id., subd. (a)(2) [expanding definition of “sexually
violent offense” to convictions of offenses described in subdivision (b), as well
as those with the same elements in other jurisdictions or under predecessor
statutes].)
4 At the SVP trial, the responding officer testified and read portions of
his police report into the record as a past recollection recorded. (See Evid.
Code, § 1237.) J.M. testified that he did not recognize Snow nor recall “much”
from his interaction with the police, but he attested that he “wouldn’t have
lied” to the police.
3
Snow moved in with his sister C. and her family, including C.’s three-year-old
son, J.J.
C. testified that Snow did not “have much interaction[]” with J.J.
during the first month he lived with the family. But on April 27, 1985, when
C. was hospitalized in connection with the birth of her daughter A.S., C.’s
husband caught Snow alone with J.J.
At the SVP trial, J.J. testified that he remembered being in Snow’s
room, naked, laying down underneath a sleeping bag or blanket with Snow
behind him. J.J. recalled: Snow “was rubbing up against me and stroking
his penis between my thighs and trying to push his penis into my rectum as
he went along.” “At first he was behind me and then he was kind of lying
down on top of me, trying to force himself into me. [¶] [H]e had one arm
wrapped around me kind of holding me in place.” J.J. couldn’t breathe,
explaining, “because he’s heavy. He’s a big guy. I was just a little kid.” J.J.
was scared but did not yell because Snow, “told me I would get in trouble.”
J.J.’s father came in “yelling and cussing,” and then “the police were there
and they wanted to talk to me, and I was just really scared. I thought I was
in big trouble. I believed him when he told me that I would get in trouble. I
thought that I had done something wrong.” Consequently, Snow pled guilty
to a lewd act on a child under the age of 14 under Penal Code section 288,
subdivision (a). Snow also had to register as a sex offender under Penal Code
section 290.
The third offense for which evidence was presented took place three
and a half years later in October 1988 against his sister C.’s three-and-a-half-
year-old daughter, A.S. By this time, C. and her children had moved into a
new home with P. (C.’s and Snow’s mother). C. testified that A.S. had never
had a relationship with Snow. Indeed, A.S. had been newly born and was
4
still in the hospital when Snow committed the offense against J.J.; C. had cut
off contact with Snow after that incident.
A.S. testified that she vaguely remembered having been in the
bathroom with P., taking a bath; but Snow was also there, standing “by the
bathtub.” This was the only time she remembered meeting Snow. A.S.
further recalled feeling a burning sensation in her “private area” and her
grandmother “screaming” before “rush[ing] [A.S.] to the hospital.”
As described in the police report, A.S. told the responding officer at the
hospital that same day that “ ‘[w]hile she was playing [outside her home],
[Snow] came and played with her. [Snow] reached under her pants and
panties. She state[d], quote, “He put his fingernail in my kitcat,” end of
quote.’ ”5 For the offense against A.S., Snow pled guilty to attempted lewd
act on a child under the age of 14. (§§ 288, subd. (a), 664.)
Snow committed the fourth offense, which qualifies as a second
predicate offense, about a decade later, between August 1998 and January
1999.6 Snow, then 32 years old, invited a woman and her 8- and 12-year-old
daughters to live with him. He did this despite knowing he was not supposed
to be around children under the age of 12 because he was a registered sex
offender. Eight-year-old S. reported to the police that, on one occasion, Snow
“pushed her down onto the bed and pulled open her legs” and, using a
pocketknife, made a hole in her pants larger. Snow then “stuck his finger in
the hole and rubbed her vaginal area over her underwear.” For the offense
5 Again, the responding officer read portions of his police report into the
record. (See Evid. Code, § 1237.)
6 The facts surrounding this conviction entered the record through
documentary evidence, including the police report and affidavits attached to
the warrant.
5
against S., Snow pled guilty to a lewd act on a child under the age of 14 under
Penal Code section 288, subdivision (a).
B. Snow’s Unsuccessful Participation in Treatment
In support of their SVP allegations, the People called the lead
psychologist on Snow’s treatment team at Coalinga State Hospital,
Dr. Rachel Hochstetler, to testify about Snow’s refusal to participate in the
Sex Offender Treatment Program (SOTP).
Dr. Hochstetler explained that Snow had completed one of SOTP’s four
modules but dropped out of SOTP’s second module because of a dispute about
printing “his life story.” Snow declined to reenroll in SOTP despite regular
encouragement to do so and also declined to enroll in other treatment groups
that would benefit him, such as anger management.
Dr. Hochstetler further testified that Snow denied committing any
crimes, claiming his victims lied. Although Snow was no longer enrolled in
SOTP, Dr. Hochstetler explained that such a denial of responsibility “would
be a failure in [SOTP]” because discussing prior offenses is critical to SOTP’s
goal “to prevent future offenses.” She postulated that Snow could prepare for
a successful release into the community by participating in SOTP and
developing a relapse prevention plan.
C. Expert Testimony
The People called two expert forensic psychologists, Dr. Craig King and
Dr. Mark Patterson, both independent evaluators contracted by DSH to
evaluate Snow and opine on his likelihood for committing future predatory
acts. Each was offered as an expert in forensic psychology and sexually
violent predator evaluations pursuant to section 6600.
Dr. King testified as to his two SVP evaluations of Snow conducted in
June 2020 and July 2021. Each time, Dr. King determined that Snow met all
6
three criteria for classification as an SVP—i.e., Snow was (1) convicted of a
sexually violent offense and (2) diagnosed with a mental disorder that (3)
makes him likely to engage in sexually violent criminal behavior. (§ 6600,
subd. (a)(1).)
Dr. King assessed Snow’s risk for recidivism by using the “Static-99R,”
an actuarial measure of one’s risk for sexual reoffense, as well as certain
“dynamic risk factors” correlated with sexual reoffense. Dr. King found Snow
scored in the 89th percentile of the Static-99R and therefore was “about 2.7
times more likely to commit another sex offense than the typical or average
sex offender.” Beyond this elevated “baseline” risk assessment, Dr. King also
found Snow “has a number of dynamic risk factors that make him vulnerable
to sexual re-offense,” including a history of victimizing prepubescent male
and female victims, insufficient deterrence from repeated incarceration,
denial of wrongdoing, lack of empathy, and dropping out of SOTP. Based on
those factors, Dr. King opined Snow presented an above-average risk for
reoffense as a result of his mental health disorder.
Relatedly, based on Snow’s relationship with his prior victims which he
characterized as predatory, Dr. King concluded that Snow’s “future potential
crimes . . . would be predatory.” Specifically, he opined: Snow “did not have
a substantial relationship with [J.M.]” because Snow “only knew [J.M.] for a
few months”; Snow had “no established relationship” with J.J. because Snow
had “very limited contact with him” in the month they lived in the same
residence; Snow “met [A.S.] shortly before he started sexually abusing her”
and therefore “there was no substantial relationship there”; and there was “a
very short duration” after S. moved in with Snow “before he started actually
abusing her, so that would indicate that he . . . moved them in for the
purposes of victimization . . . .”
7
Having reviewed the independent evaluation of Snow by
Dr. Sreenivasan—an expert later called by the defense (whose testimony is
discussed below)—Dr. King disputed the basis for her opinion that Snow was
not likely to reoffend. Specifically, he disagreed that recidivism risk can be
determined, in part, by reference to an individual’s time in custody. Dr. King
stated he knows of no evidence that “length of stay equals less risk,” nor that
recidivism risk is minimized by an individual’s stated desire not to reoffend,
because “the problem is controlling the impulse to act.” On cross-
examination, Dr. King acknowledged that Snow’s current period of
incarceration—23 years—was an order of magnitude greater than any of his
previous sentences but expressed doubt that, if released, the possibility of a
future lengthy sentence for any new offense would have any additional
deterrent effect on Snow due to “his difficulty with cause and effect, his
difficulty with weighing pros and cons, consequential thinking due to his
cognitive limitations and deficits.”
Dr. King had also reviewed an evaluation of Snow by another
psychologist expected to be called to testify in Snow’s defense, Dr. Charles
Flinton. Dr. Flinton found that Snow presented an above-average risk for
being charged with another nonconsensual sexual offense but concluded
Snow was not likely to engage in sexually predatory criminal behavior
because his past “victims were young children with whom he had significant,
substantial relationships.” Dr. King disagreed with Dr. Flinton’s
characterization of Snow’s relationships with his victims as “significant” and
“substantial,” stating, “there’s really no explanation for that opinion” other
than its ostensible premise that Snow was biologically related to J.J. and A.S.
and had briefly lived with J.J. and S. before committing offenses against
them.
8
The People’s other expert, Dr. Mark Patterson, found Snow would be
likely to offend in a predatory manner based on his history of sexual offenses.
Dr. Patterson conducted a risk assessment using “three different actuarial
tools,” including the Static-99R, as well as “another instrument that’s
designed to provide information on relevant dynamic risk factors that are
complimentary to the static risk factors that are identified by the actuarial
tools.” Like Dr. King, Dr. Patterson found Snow’s Static-99R score was 2.7
times higher than the typical sex offender. Dr. Patterson further found
Snow’s dynamic risk factors were “substantially above average,” due, in part,
to Snow’s sexual interest in children of both genders, general sexual
preoccupation, and lack of remorse. Moreover, in Dr. Patterson’s view, Snow
displayed a pattern of predatory offenses because there was no “strong
evidence of a familial bond beyond the blood relationship” with J.J. and A.S.
and Snow had not lived with S. “for very long at the time the sexual offending
happened.”
Dr. Patterson also found Snow’s inchoate discharge plan to “self-
isolate” to be unrealistic and self-contradictory because the jobs he envisioned
taking, such as working in a grocery store, require social interaction and
because Snow wanted to have children. Dr. Patterson testified he was not
aware of any studies showing that “more mitigation accrues” the longer that
a potential SVP is incarcerated.
II. The Defense Case
The defense first offered the testimony of Dr. Sreenivasan, an
independent evaluator contracted by DSH as an expert in the evaluation of
sexually violent predators. Dr. Sreenivasan had evaluated Snow in 2005,
2008, 2012, and 2020. Although she had found Snow met the SVPA’s criteria
in each of her first three evaluations, after her 2020 evaluation,
9
Dr. Sreenivasan no longer believed Snow met the third criterion (i.e., his
likelihood to engage in sexually violent criminal behavior).
Dr. Sreenivasan explained that “pedophilic disorder is not a condition
that goes in remission,” and, under her actuarial scoring, Snow continued to
present an above-average risk of re-offense. Nonetheless, she pointed to
“meta-analytic factors that didn’t support [recidivism] risk,” such as Snow’s
age and time in custody. Dr. Sreenivasan therefore concluded Snow no
longer presented sufficient recidivism risk to qualify as an SVP.
However, despite this opinion that Snow was unlikely to reoffend,
Dr. Sreenivasan further testified that, “based on the nature of the [past]
victims,” if Snow were to reoffend, his future crimes would likely be
predatory. In particular, Dr. Sreenivasan pointed to Snow’s “casual
acquaintance with [J.M.],” and opined that Snow “established or promoted
[his]·relationship [with S.] in part for the primary purpose of sexual
victimization.” Regarding Snow’s offenses against his nephew and niece, J.J.
and A.S., Dr. Sreenivasan surmised the relationships were “probably more
than casual acquaintances,” but, “the age of the victim[s], his lack of
involvement in their life, and the fact that he sexualized them would lead me
to kind of—would lead me to say that these were opportunities that render
the victim[s], even though they’re related, probably in the realm of someone
who is promoting the relationship[s] for sexual victimization.”
Snow testified in his own defense. He asserted that he originally
refused to enroll in SOTP because he was concerned that other patients
would betray his confidence, and, in 2019, he dropped out of SOTP because of
10
unhelpful staff and a dispute about printing materials.7 Snow stated he
would be willing to retry SOTP “[i]f a staff member is willing to help [him]”
but continued to deny he committed any of the crimes for which he was
convicted, other than his juvenile offense involving J.M.
III. The Trial Court’s SVP Finding
The next day, the trial court announced a tentative verdict finding
Snow met the criteria for commitment as an SVP. The court prefaced its
verdict by stating it was “convinced that the more credible evidence came
from the People’s doctors.” The court emphasized Dr. Hochstetler’s testimony
that Snow’s efforts to get treatment were “lacking” and Dr. King’s undisputed
testimony that “pedophilic disorder is to be considered a lifelong affliction”
that must be managed. The court declined to “go through [the dynamic risk
factors] in detail” but mentioned “the most salient risk factor” was Snow’s
“preference for pre-pubescent children,” which “Mr. Snow has not addressed
or made any progress on.”
Citing both prosecution experts’ disagreement with Dr. Sreenivasan’s
opinion, the trial court also stated that “no research” supports the theory that
an SVP’s recidivism risk is mitigated by merely the passage of time and a
stated desire to avoid children. Relatedly, the court found Dr. King’s
testimony that admitting guilt “is important for insight and learning to
manage [one’s] risk” to be “convincing testimony in part,” especially because
it did not believe Snow’s claim that “he would seek out treatment on [his]
release.”
7 The defense also called Lawrence Lowe, an inmate at Coalinga State
Hospital, to testify. Lowe attested to frequent turnover of his SOTP group’s
facilitator, as well as the cost of printing materials at the state hospital.
11
In September 2023, the trial court entered judgment and committed
Snow to an indeterminate term with DSH. Snow appealed.
DISCUSSION
Snow advances three challenges to the trial court’s judgment and his
resulting commitment. First, he asserts there was insufficient evidence that
he was likely to commit future predatory sexual conduct, namely because the
People’s expert testimony at the SVP trial exceeded what is permissible.
Second, Snow claims the terms “likely” and “predatory,” as used in the SVPA,
are unconstitutionally vague in violation of due process. Third, he asserts the
SVPA’s indeterminate term sentencing violates the due process, ex post facto,
and double jeopardy clauses. Snow’s contentions are without merit.
I. Substantial Evidence Supports the Trial Court’s Findings
that Snow is an SVP
The SVPA defines a “sexually violent predator” 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).) Thus, to be found
to be an SVP, “the trier of fact must find, beyond a reasonable doubt, that the
defendant is likely to commit sexually violent predatory behavior upon
release.” (People v. Hurtado (2002) 28 Cal.4th 1179, 1181–1182.) The
statutory term “predatory” is defined as an act “directed toward a stranger, a
person of casual acquaintance with whom no substantial relationship exists,
or an individual with whom a relationship has been established or promoted
for the primary purpose of victimization.” (§ 6600, subd. (e).)
“ ‘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.” ’ ” (People v. McCloud (2013) 213
12
Cal.App.4th 1076, 1088.) We “ ‘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.’ ” ’ ” (Ibid.) We “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. Poe (1999) 74 Cal.App.4th 826, 830 [affirming evidence supported
finding that SVP defendant was likely to engage in sexually violent
behavior].)
Snow contends that insufficient evidence supported the court’s finding
that he is an SVP because: (1) the testifying experts impermissibly opined on
the law because “predatory” is not a “psychological term[] and there is no
scientific instrument used to determine whether an act is predatory”;8 and (2)
the expert opinions regarding Snow’s likely future predatory behavior were
unsupported. We disagree and address each argument in turn.
First, the scope and nature of the admitted expert testimony was
proper. The SVPA specifically and repeatedly provides for the appointment
and use of experts by both the state and committed persons. (See, e.g.,
§§ 6601, subds. (d)–(g), 6603, subds. (a), (d), 6604.1, subd. (b), 6604.9,
subd. (a), 6605, subd. (a)(3).) In determining an SVP defendant’s likelihood of
committing future predatory acts, this “expert testimony is critical” because
the inquiry “involves a prediction about the individual’s future behavior.”
(People v. McKee (2010) 47 Cal.4th 1172, 1192 (McKee) [construing section
8 Snow does not challenge any expert’s qualification nor the bases for
their opinions, so we do not discuss them further. (See Needham v. Superior
Court (2024) 16 Cal.5th 333, 368 (Needham).)
13
6608(a) to be “read in conjunction with section 6605, subdivision (a), to
mandate appointment of an expert for an indigent SVP who petitions the
court for release”], superseded by statute on another ground as stated in
People v. McCloud (2021) 63 Cal.App.5th 1, 14–15.) Expert testimony on the
issue of predation is admissible, therefore, because “[t]hat inquiry is a subject
beyond common experience, and a [fact finder] would be aided by expert
testimony on the matter.” (Needham, supra, 16 Cal.5th at p. 359 [People’s
expert may testify regarding offender’s SVP qualification, but offender cannot
be compelled to be interviewed by People’s expert before commitment].) Such
expert testimony “is not objectionable because it embraces the ultimate issue
to be decided by the trier of fact.” (Evid. Code, § 805.)
Snow’s authorities do not say otherwise; they are unrelated to SVPA
commitments and merely stand for the uncontroversial principle that an
expert may not offer a legal conclusion. (See People v. Baker (2012) 204
Cal.App.4th 1234, 1245 [it was beyond the scope of expert testimony to opine
“[w]hether the arson posed a substantial danger of physical harm to others”];
People v. Jo (2017) 15 Cal.App.5th 1128, 1176 [permitting an expert to testify
as to a statutory defense because “the existence of such a law was
sufficiently beyond common knowledge that the opinion of an expert would
assist the trier of fact”]; King v. State (2015) 242 Cal.App.4th 265, 292 [no
error in excluding expert opinion that stop and frisk conformed to law
enforcement policy].)
Second, rather than impermissibly providing their “own take on the
legal meaning of the term,” each expert explicitly relied on the statutory
definition of “predatory” in forming their opinions. A predatory act
encompasses acts against a “casual acquaintance with whom no substantial
relationship exists.” (§ 6600, subd. (e).) In concluding Snow’s future conduct
14
was likely to be predatory, all explained their review and consideration of
Snow’s past acts, his failure to participate in SOTP, and his stated future
plans formed the basis for their predictions. (See § 6600, subd. (a)(3);
Needham, supra, 16 Cal.5th at p. 371 (conc. & dis. opn. of Groban, J.) [SVPA
evaluators must consider criminal and psychosexual history among other
factors in making SVP evaluations].)
For example, Dr. King recited section 6600’s definition of “predatory”
and explained that biological relation does not automatically create a
substantial relationship: “a definition of substantial means that they had
meaningful interactions and a significant amount of time together. There’s a
real relationship there. And also, you know, whether that relationship was
promoted for the purpose of victimization.” Dr. King explained the absence of
a “substantial relationship” with each of the victims meant that Snow’s
future conduct was likely to be predatory as well: “his history of offending
informs me about what his future second offending could look like if he were
to offend. If he did not have a substantial relationship or he formed a
relationship for the purpose of victimization or if the victim was a stranger,
it’s likely that he would follow that same pattern in the future.”9
9 For example, J.M. had “only met Mr. Snow at most two times prior to
the victimization.” J.J. had lived with Snow for about a month prior to the
assault, and “[e]ven though it’s a nephew, [J.J.] has very limited contact with
[Snow]. And so there’s really, again, no substantial relationship. So that
would fall under predatory as well.” Snow met A.S. “shortly before he started
sexually abusing her. So it was a very small amount of time that he knew
her. So once again, there was no substantial relationship there.” Snow
invited S.’s family to move in with him, but “[t]here’s a very short duration of
time before he started actually abusing [S.], so that would indicate that he
either moved them in for the purposes of victimization, and he certainly
didn’t have a substantial relationship [to] the victim.”
15
Dr. Patterson similarly relied on section 6600’s definition of “predatory”
in forming his conclusions that Snow’s prior conduct was predatory in nature.
As he explained, “Certainly the non-related victims -- unrelated victims --
were predatory offenses in my opinion. With his niece and nephew, while
they were reportedly blood relatives, my understanding is that he had very
little contact with his niece and nephew prior to the time that he committed
sexual offenses against them. So barring that blood relation, so to speak, on
paper, his actual relationship with them were more casual in my view than it
was familial. [¶] . . . [¶] Qualitatively, I didn’t see evidence that there was a
substantial familial bond, for example, which is what we would look for as a
potential barrier to offending against a family member. I didn’t see strong
evidence of a familial bond beyond the blood relationship.” Dr. Patterson
opinioned that the predatory nature of each of the prior assaults suggested
Snow was likely to engage in predatory behavior in the future, “I think that
goes with the idea of past behavior being the best predictor of future
behavior, in general, including criminal behavior.”
Dr. Sreenivasian similarly defined “predatory” consistent with section
6600, subdivision (e), explaining that “It’s a stranger, casual acquaintance or
someone with whom the person promotes a relationship for the purpose of
gratification.” She further opined that Snow’s future crimes—if committed—
would be predatory: “Well, it’s really based on the nature of the victims.
There’s a -- related to him, and he was in proximity to them or they were
unrelated, and basically a casual acquaintance like [J.M.]. [¶] And with [S.]
he promoted the relationship for sexual victimization in that he said that he
took her out to eat, I believe, and rode bikes with her, and also just inviting a
woman with two children, eight and 12, young children, into his home to live
with him given his history with -- you know, I’m inferring, that that would
16
represent an attempt to create an environment where he could access
victims. So all of that would really fall within the purview of predatory.”
We need not belabor the point. The documentary evidence and
testimony relied on by the experts was statutorily permissible and provided
sufficient basis to opine whether Snow was likely to commit further sexual
predatory crimes. While Snow may disagree with the expert conclusions that
Snow lacked “substantial” relationships with his victims, or that Snow’s
development of his relationships with J.M. and S. suggest he groomed them
for purposes of victimization, there was ample support for those opinions and
the conclusions drawn from them.10
Correspondingly, this expert testimony, when considered with the other
evidence introduced, supports the trial court’s determination that Snow
qualified as an SVP. Indeed, in ruling, the court reiterated the undisputed
expert testimony that Snow’s pedophilic disorder is a lifelong affliction;
highlighted “the most salient risk factor” was Snow’s “preference for pre-
pubescent children”; and found persuasive the expert opinions that Snow’s
refusal to participate in treatment or admit his guilt militated against his
ability to reintegrate with society. Viewing the record in the light most
favorable to the judgment, there was substantial evidence that Snow was
likely to commit a predatory offense if not committed and, thus, he met the
criteria for an SVP.
10 We also observe that Snow provides no citations to the record in
support of his suggestion that the experts “assume[d]” that “all crimes
against children, other than by immediate family, are predatory.” We
accordingly disregard this point. (Cal. Rules of Court, rule 8.204(a)(1)(C);
Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247
Cal.App.4th 117, 150.)
17
II. The SVPA Is Not Unconstitutionally Vague
Snow contends the SVPA’s use of “likely” and “predatory” are
unconstitutionally vague in violation of the due process clause. This
argument lacks merit.
To start, we address the People’s assertion that Snow forfeited his
constitutional argument on appeal by failing to raise it before the trial court.
“Ordinarily, a criminal defendant who does not challenge an assertedly
erroneous ruling of the trial court in that court has forfeited his or her right
to raise the claim on appeal.” (In re Sheena K. (2007) 40 Cal.4th 875, 880.)
But courts may exercise discretion to consider the merits of an otherwise
forfeited challenge that “present[s] a pure question of law” or where
“defendant did not have a meaningful opportunity to object at trial.” (Id. at
p. 887 & fn. 7.) This court has done so in the context of SVP commitments.
(See, e.g., People v. Curlee (2015) 237 Cal.App.4th 709, 713–716 [rejecting a
claim of forfeiture in determining an SVP defendant had been deprived of his
constitutional right to equal protection when the district attorney called him
as a witness at his own commitment trial]; People v. Cannon (2022) 85
Cal.App.5th 786, 794–795 [declining to apply forfeiture doctrine to equal
protection challenge to SVPA], review granted on standard of review issue
Feb. 15, 2023, S277995].) Because an SVP commitment “affects the
committee’s liberty interests [citation], . . . we deem it an appropriate exercise
of our discretion to consider [committee’s] contention for the first time on
appeal.” (Curlee, at pp. 715–716.) We therefore consider the merits of Snow’s
due process challenge.
“ ‘ “[T]he underpinning of a vagueness challenge is the due process
concept of ‘fair warning.’ ” ’ ” (People v. Fuentes (2023) 87 Cal.App.5th 1286,
1294.) A statute is so vague as to violate due process if it “ ‘forbids or
18
requires the doing of an act in terms so vague’ that people of ‘common
intelligence must necessarily guess at its meaning and differ as to its
application.’ ” (People v. Hall (2017) 2 Cal.5th 494, 500 [probation conditions
not unconstitutionally vague in failing to specify a violation required
knowledge of contraband’s presence and its restricted nature].) “ ‘The
prohibition of vagueness in criminal statutes “is a well-recognized
requirement, consonant alike with ordinary notions of fair play and the
settled rules of law,” and a statute that flouts it “violates the first essential of
due process.” ’ ” (People v. White (2016) 3 Cal.App.5th 433, 453 [holding
SVPA terminology “sexually violent criminal behavior” is not vague on its
face].)
The principle of fair warning is satisfied, however, by merely “ ‘ “a
reasonable degree of certainty.” ’ ” (Larson v. City and County of San
Francisco (2011) 192 Cal.App.4th 1263, 1288–1289 [antiharassment
provisions of city rent control ordinance not unconstitutionally vague].)
There is a “strong presumption that legislative enactments ‘must be upheld
unless their unconstitutionality clearly, positively, and unmistakably
appears. [Citations.] A statute . . . cannot be held void for uncertainty if any
reasonable and practical construction can be given to its language.’ ” (Walker
v. Superior Court (1988) 47 Cal.3d 112, 143 [prosecution for involuntary
manslaughter based on criminal negligence not unconstitutionally vague].)
Instead, a litigant must demonstrate the challenged statute is
“ ‘ “impermissibly vague in all of its applications.” ’ ” (Pacific Gas & Electric
Co. v. Public Utilities Com. (2015) 237 Cal.App.4th 812, 863, fn. 28 [holding
vagueness issue was not properly before the court because it was not
mentioned in the application for rehearing].)
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When statutory terms are undefined, we give the words their usual and
ordinary meaning. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) But
we do not read terms in isolation; rather, “ ‘[t]he particular context is all
important’ ” in evaluating challenges based on claims of vagueness. (People
ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116 [ruling provisions of an
interlocutory injunction not impermissibly vague considering the context]; see
Wendz v. California Department of Education (2023) 93 Cal.App.5th 607, 627
[viewing language in the context of the entire subdivision to define
“composition” as used in Migrant Education Program].) Consequently, courts
generally do “ ‘not doubt the constitutionality of laws that call for the
application of a qualitative standard such as “substantial risk” to real-world
conduct.’ ” (People v. McInnis (2021) 63 Cal.App.5th 853, 862 [crime of
aggravated kidnapping and sentencing enhancement for aggravated
kidnapping not void for vagueness in violation of due process].)
1. The Statutory Term “Likely” Is Not Vague
As mentioned above, to be committed as an SVP a person must have “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), italics added.)
We first observe that our Supreme Court has already addressed the
meaning of the term “likely” as used in SVP commitment trials and probable
cause hearings. (People v. Roberge (2003) 29 Cal.4th 979, 982 (Roberge)
[defining “likely” under § 6600, subd. (a)]; People v. Superior Court (Ghilotti)
(2002) 27 Cal.4th 888, 922 [defining “likely” under § 6601, subd. (d)].) In
these contexts, “likely” means “ ‘the person presents a substantial danger,
that is, a serious and well-founded risk, that he or she will commit [sexually
violent] crimes if free in the community.’ ” (Roberge, at p. 982; see id. at
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p. 988.) This standard “ ‘connotes much more than the mere possibility that
the person will reoffend,’ ” but it “ ‘does not require a precise determination
that the chance of reoffense is better than even.’ ” (Id. at p. 986.)
Snow claims the Supreme Court’s articulation of the “likely” standard
is constitutionally suspect. He argues the court “failed to address the bottom
threshold, i.e. the less than 50 percent” and “it is not enough” for courts to
conclude a standard cannot be demonstrable with mathematical precision. In
support of his position, Snow points to a study reporting that jurors held
varied opinions regarding which level of probability correlates with “likely.”
Snow therefore contends it is incumbent on the judiciary to “again speak to
the subject.” We are unpersuaded.
Again, in the context of the SVPA, the term “likely” means “ ‘the person
presents a substantial danger, that is, a serious and well-founded risk, that
he or she will commit [sexually violent] crimes if free in the community.’ ”
(Roberge, supra, 29 Cal.4th at p. 982.) “The word ‘substantial’ is not vague,
overbroad, or ambiguous. [Citations.] It requires no further definition, is
readily understandable, and has no technical meaning peculiar to the law.”
(People v. Boyce (2014) 59 Cal.4th 672, 711 [holding the words “so
substantial” adequately convey the degree of certainty required for a death
verdict]; see, e.g., People v. Silver (1991) 230 Cal.App.3d 389, 393–395
[controlling substances “ ‘substantially similar’ ” to other controlled
substances not vague]; People v. McInnis, supra, 63 Cal.App.5th at pp. 862–
864 [statutory language applying to conduct that “substantially increased the
risk of harm” is reasonably certain even though is necessarily depends on
particular facts and context].) Indeed, “ ‘The law is replete with instances in
which a person must, at his peril, govern his conduct by such
nonmathematical standards as “reasonable,” “prudent,” “necessary and
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proper,” “substantial,” and the like.’ ” (People v. Morgan (2007) 42 Cal.4th
593, 606 [holding that “the phrase ‘substantial distance’ meets the
constitutional requirement of reasonable certainty”].)
The same logic applies here. In the context of the SVPA, and as the
Supreme Court has already explained, “substantial danger” means there is a
“serious and well-founded risk” the defendant will commit a future sexual
predatory crime. (Roberge, supra, 29 Cal.4th at p. 982.) This formation
affords a person of ordinary intelligence with fair notice of the threshold level
of risk sufficient to commit an SVP. (People v. Hall, supra, 2 Cal.5th at
p. 500.) Accordingly, we do not find “likely” as used in the SVPA to be
unconstitutionally vague.
2. The Statutory Term “Predatory” Is Not Vague
As discussed, the SVPA defines “predatory” as “an act . . . directed
toward a stranger, a person of casual acquaintance with whom no substantial
relationship exists, or an individual with whom a relationship has been
established or promoted for the primary purpose of victimization.” (§ 6660,
subd. (e).) Snow contends this definition is unconstitutionally vague because
“the use of additional undefined and ambiguous words . . . obscure rather
than clarify [which] offenses are predatory.” In particular, he takes issue
with the undefined terms of “casual,” “acquaintance,” and “substantial
relationship,” arguing it is unclear whether the SVPA excludes interfamilial
sex offenses. We disagree.
We doubt a person of common intelligence lacks understanding of the
terms “casual” and “acquaintance.” In fact, the Legislature saw fit to amend
the SVPA’s original definition of “predatory” by “add[ing] to that definition an
act directed at a person of casual acquaintance with whom no substantial
relationship exists” to, at least in part, “clarif[y]” the law’s operation. (Sen.
22
Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill
No. 3130 (1995–1996 Reg. Sess.), as amended July 15, 1996, p. 3; see Stats.
1996, ch. 462 , § 4, eff. Sept. 13, 1996.) Those “terms have common meanings
that require no further definition and fall far short of unconstitutional
vagueness.” (People v. White, supra, 3 Cal.App.5th at p. 455 [holding the
terms “predatory, sexual, and violent” are not vague]; see also id. at p. 453,
fn. 7 [listing cases rejecting various constitutional challenges to the SVPA,
including on vagueness grounds].)
Reading the entirety of subdivision (e) of section 6600 further
elucidates this statutory language, where the phrase “a person of casual
acquaintance with whom no substantial relationship exists” is contrasted
with “a stranger” and “an individual with whom a relationship has been
established.” (§ 6600, subd. (e); Wendz v. California Department of
Education, supra, 93 Cal.App.5th at p. 627.) Thus, a “casual acquaintance” is
someone known to the SVP defendant, but with whom the defendant has not
developed a substantial or established relationship.
As discussed above, the word “substantial” is not vague. (People v.
Boyce, supra, 59 Cal.4th at p. 711.) Instead, it sharpens the meaning of the
word it modifies. (See People v. Morgan, supra, 42 Cal.4th at pp. 606–607.)
We therefore reject Snow’s contention that “substantial relationship” is vague
and consequently find the term “predatory” as used in the SVPA is not vague
and therefore does not violate due process.
III. The SVPA’s Indeterminate Commitment Is Not Unconstitutional
Finally, we dispense with Snow’s contention that the SVPA’s
indeterminate commitment provision violates “the due process, ex post facto
and double jeopardy clauses,” which he raises to “preserve . . . for potential
future federal review.” Snow provides no legal authority for this claim; he
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merely asserts that “[t]he SVPA, taken as a whole, now amounts to unlawful
secondary punishment after [Snow] has served his prison terms and paid his
price for his misdeeds.” Because he fails to “develop this point in any
meaningful way” or “cite[] to legal authority” we may disregard it. (Doe v.
McLaughlin (2022) 83 Cal.App.5th 640, 654.)
Moreover, as Snow acknowledges, our Supreme Court has rejected
substantively identical facial challenges to the SVPA. (McKee, supra,
47 Cal.4th at pp. 1188–1211.) McKee considered and rejected claims that the
state initiative authorizing indefinite SVP commitments violates the federal
constitutional right to due process, the federal constitutional prohibition
against ex post facto laws, and the federal constitutional right to equal
protection under the law. (Ibid.) We see no reason to question the Supreme
Court’s holding and consider the issue settled.11
DISPOSITION
The judgment is affirmed.
11 We also observe that statutes substantially similar to the SVPA have
been upheld by the United States Supreme Court. (E.g., Kansas v. Hendricks
(1997) 521 U.S. 346 [upholding Kansas Sexually Violent Predator Act
allowing commitment of people with a “ ‘mental abnormality’ ” who are likely
to engage in “predatory acts of sexual violence”]; see also Hubbart v. Superior
Court (1999) 19 Cal.4th 1138, 1163 [“The Kansas scheme applied to sex
offenders who suffer from a mental disorder which impairs their ability to
control sexually violent conduct and which ‘ “makes the person likely” ’ to
engage in sexually violent crimes. [Citation.] The high court approved this
statutory formula even though dangerousness was expressed in terms of a
qualifying mental disorder giving rise to a likelihood of future criminal
conduct”].)
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_________________________
DESAUTELS, J.
We concur:
_________________________
RICHMAN, ACTING P.J.
_________________________
MILLER, J.
People v. Snow (A168931)
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