People v. Jackson CA1/4

Filed 6/21/16 P. v. Jackson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

A139183

v.

MELVIN LEE JACKSON, (Alameda County

Super. Ct. No. C139531)

Defendant and Appellant.

Melvin Lee Jackson appeals from the trial court order for recommitment to the

Department of State Hospitals1 pursuant to a jury verdict that he is a sexually violent

predator (SVP) within the meaning of the Sexually Violent Predators Act (Welf. & Inst.

Code,2 § 6600 et seq. (SVPA or the Act)). He contends reversal is required due to

numerous evidentiary and instructional errors that deprived him of his due process right

to a fair trial. He also maintains there was insufficient evidence that he is an SVP.

Further, he claims that the SPVA is unconstitutionally vague. Finally, he contends that

the amended SVPA, providing for an indeterminate term of commitment, violates the

equal protection and ex post facto clauses. We affirm the commitment order.

I. BACKGROUND

Appellant was first committed to the custody of the Department of Mental Health

(DMH) on October 16, 1998. We affirmed the order of commitment in an unpublished

1

As of July 2012, the Department of Mental Health became the Department of State

Hospitals. (See Stats. 2012, ch. 24, § 139, p. 1033–1034.)

2

All undesignated statutory references are to the Welfare and Institutions Code.

1

opinion. (People v. Jackson (Feb. 17, 2000, A084974) [Jackson I].) On September 20,

2000, the Alameda County District Attorney petitioned for recommitment pursuant to

section 6604. (People v. Jackson (Aug. 12, 2002, A096066) [Jackson II].) The court

ordered recommitment for an additional two years commencing October 16, 2000.

(Ibid.) This court affirmed the order of the recommitment in an unpublished opinion.

(Ibid.) In July 2002, the Alameda County District Attorney petitioned for recommitment.

Due to trial court delays the recommitment time was about to expire. Consequently, in

August 2004, the district attorney filed a third petition to recommit for the period

October 16, 2004 through October 15, 2006, and moved successfully to consolidate the

two recommitment trials. (People v. Jackson (Sept. 28, 2006, A111971) [Jackson III].)

A jury found appellant to be an SVP and the court ordered his commitment extended to

October 16, 2006. (Ibid.) We affirmed the order of recommitment in an unpublished

opinion. (Ibid.) In a petition filed on August 17, 2006, and amended on August 24,

2007, the Alameda County District Attorney once again petitioned for recommitment.

Due to various delays, continuances, and pretrial proceedings, the matter did not proceed

to trial until May of 2013. Following a three-week trial, the jury found appellant to be an

SVP and the trial court committed appellant to the Department of State Hospitals (DSH)

for an indeterminate term. The instant appeal followed.

II. EVIDENCE AT TRIAL

A. State Case

1. Experts

The prosecution presented expert witness testimony from two psychologists, who

both opined that appellant qualified as an SVP.

a. Dr. Jack Vognsen

Psychologist Jack Vognsen testified that appellant qualified as an SVP. Dr.

Vognsen based his opinion on several factors, including his interview of appellant,

institutional and court record review, results of various risk assessment instruments, as

well as the past evaluations by psychologists Dr. Amy Phoenix and Dr. David Stubbins.

2

As part of his testimony, Dr. Vognsen provided the details of appellant’s criminal

history, including five sexual offenses, three of which qualified as predicate offenses.

That testimony is as follows: On October 12, 1977, appellant entered the home of

Pamela A., threatened her with a knife, choked her, forced her to orally copulate him, and

ejaculated in her mouth. He tried to rape her, but could not achieve an erection. He was

arrested as he was leaving the house. He had been out on parole for only a month and a

half when the offense occurred. Appellant was convicted of burglary and oral copulation

for the offense against Pamela A. and was sentenced to prison.

Appellant was paroled for the offense against Pamela A. on October 15, 1981.

Less than a month later, on November 6 of the same year, appellant entered the home of

Lisa S., confronted her with a knife, tied her up, raped her and forced her to orally

copulate him, and then stole some money from her purse.

On December 9, 1981, appellant pushed his way into Jeannie G.’s home after she

responded to the doorbell, pulled her clothes off, punched her, and pointed something

sharp which he said was a knife into her back. After tying her hands behind her back and

blindfolding her, he forced her to orally copulate him and raped her. This offense was

dismissed as part of a plea bargain.

On January 14, 1982, appellant surprised victim Paula R. when she entered her

house, putting a hand over her face and trying to push her against the floor. After a

struggle, she broke free and ran out the front door. Appellant fled. A knife was later

found on Paula’s bed.

On February 11, 1982, appellant escaped from jail. On February 24, 1982, he

broke into Joanne F.’s home and hid in a closet, jumping out and surprising her when she

returned home. As she struggled, appellant punched her in the face and said, “ ‘Quit

screaming bitch or I’ll kill your baby.’ ”

After tying her hands and blindfolding her, he raped the victim and unsuccessfully

attempted to have anal intercourse with her. Before fleeing, he stole money from her.

Dr. Vognsen opined that the nature of appellant’s offenses indicates that appellant

was “actively seeking a non-consenting” sexual experience when committing his crimes.

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Dr. Vognsen contrasted appellant’s behavior with a “common rapist” who commits one

or two offenses but “seems to learn something from it, that it’s not all what he thought it

was going to be, and does not do it again.” Dr. Vognsen further explained that appellant

did not feel the “normal inhibitory responses,” such as “a woman’s tears [that] will

desexualize a man, will cause him to lose his erection,” and he also did not gain insight

from his prison incarceration for these offenses.

Dr. Vognsen also testified that appellant had several nonsexual offenses as a

youth, resulting in his commitment to the California Youth Authority on four occasions,

that he also had several rules violations while in prison and at the state hospital.

Dr. Vognsen diagnosed appellant with two mental disorders—paraphilia not

otherwise specified (NOS) and antisocial personality disorder. Dr. Vognsen explained

that although appellant had not acted out sexually in several years, he opined that

appellant’s disorders were current because they were lifelong disorders, and appellant had

been under heavy supervision in prison and at the state hospital, making it difficult for

him to reoffend. Dr. Vognsen said a paraphilia NOS diagnosis requires “indications” of

“fantasies, urges or behaviors towards nonconsenting others” over at least a six-month

period and, in appellant’s case, the evidence spanned four to five years.

Dr. Vognsen noted that appellant began the treatment program at Coalinga State

Hospital (CSH) in 2008, but dropped out and then returned in 2009. Although Dr.

Vognsen noted that the most recent evidence indicates that appellant had been doing well

in that program, he was concerned about the drop-out aspect and appellant’s initial lack

of compliance with program requirements. Dr. Vognsen explained that appellant was

halfway through the third phase of the five phase treatment plan, has done all the

“homework,” but refused any diagnostic testing about whether “he still has . . . fantasies

about rape.” Dr. Vognsen opined that this refusal suggested that appellant was “covering

up something.”

Dr. Vognsen opined that appellant was likely to reoffend in a sexually predatory

manner if released. He based his opinion on two actuarial instruments, the Static-99R

and the Static-2002 Revised (Static 2002R), and two clinical tools, the Sexual Violence

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Risk 20 and the Structured Risk Assessment Forensic Version, and several dynamic

factors. In Dr. Vognsen’s opinion, appellant had over a 50 percent chance of committing

a new sexual offense within 10 years if released. He further opined that appellant was

not a good candidate for outpatient treatment.

b. Dr. Dawn Starr

Psychologist Dawn Starr testified as a second expert for the People. In her

opinion, appellant qualified as an SVP. Dr. Starr diagnosed appellant with paraphilia

NOS and antisocial personality disorder. Like Dr. Vognsen, she opined that appellant

was likely to reoffend in a sexually violent predatory manner if released based on his

Static-99R and Static-2002R scores. Dr. Starr noted that to his credit, appellant had

begun participating in sex offender treatment. However, his attendance was inconsistent

and he had dropped out twice since enrolling in 2008. He had also refused to participate

in two assessment tests. Appellant told Dr. Starr that one of the tests involved showing

pictures of consensual and nonconsensual acts, and that if they showed slides oriented

toward his crimes, he was concerned that his response would be “predictable.” Dr. Starr

explained that she did not believe appellant would be a good candidate for outpatient

treatment because his attendance and participation even in the hospital was inconsistent;

he picked and chose what he wanted to participate in; his cooperation with supervision

out of custody in the past had been poor; he continued to lack insight into his behavior;

and he himself was concerned about being sexually aroused by deviant material. Dr.

Starr noted that she thought that appellant was “genuinely . . . trying to improve

himself . . . .” However, she added that “he still had this anger and rage that kind of

breaks through and he disproportionately reacts.”

2. Other Psychological Evidence

a. Dr. Tricia Busby

At the time of trial, psychologist Tricia Busby had worked for six years

at CSH as a behavioral specialist. She had a doctoral degree in forensic psychology and

was working toward a clinical psychologist license. At CSH, she conducted assessments

and facilitated group and individual treatment programs, supervised by two licensed staff

5

psychologists. She prepared “diagnostic clarifications,” which comprised the assessment

portion of the Sex Offender Treatment Program (SOTP).

Appellant had participated in some self-report assessments and in two assessment

tools administered by Dr. Busby. Dr. Busby further discussed her results on the

Multiphasic Sex Inventory Two. The 560 questions in that instrument told Busby that

appellant was “minimizing the planning strategies he used to set up his offense behavior

and minimizes the feelings of anticipation and excitement he had leading up to the

offense behavior.” Appellant scored 30 out of 50 as to “antisocial behaviors.”

During cross-examination, Dr. Busby agreed that she has observed appellant

mentoring others, being supportive to peers in group sessions, acting responsibly in his

unit employment position, acting appropriately with female staff, holding a “positive

view” of women, becoming more transparent about the factors leading to his crimes, and

possessing a well-integrated and positive self-concept that includes more tolerance for

differences in others.

b. Dr. Daisy Minter

Psychologist Daisy Minter worked at CSH, where she facilitated three different

treatment groups. In October 2011, along with social worker Adriel Reyes, Dr. Minter

began facilitating a group in which appellant was assigned. Dr. Minter explained that a

treatment group averages nine patients and meets twice weekly. Dr. Minter assigned

“work paper assignments” (behavior chains, autobiographies, decision matrix) to the

patients. She said that appellant delayed doing some of this work but completed it early

in 2012. Dr. Minter further testified that appellant’s initial attendance was inconsistent or

he would get upset and leave the meeting early. She detected a pattern of appellant not

wanting to redirect his comments during the meeting as instructed and, without cursing or

being visibly upset, appellant would walk out. Appellant frequently expressed his

frustration in the group sessions about the new program not having an actual plan and

manual for participants or any clear structure to it, saying, “It didn’t seem like it was

going anywhere.”

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3. Appellant’s Testimony

The prosecution called appellant as a witness in its case. He admitted to

committing two burglaries in 1971, after being released from California Youth Authority.

The prosecutor asked about a 1973 incident involving a woman named Elfie. Appellant

recalled burglarizing her home and confronting her on the way out the door, resulting in a

struggle on the staircase and her falling down the steps. He denied punching or beating

her, but he could not recall her testimony in this regard.

Appellant admitted to re-offending after his release on parole. His first predicate

crime occurred in 1977 after such a release. He testified that he was living with a

girlfriend when he sexually assaulted Pamela A. He entered Pamela’s house with the

intent to steal, thinking no one was home. When the victim came out of the bedroom and

surprised him, he panicked and grabbed her, telling her to stop screaming. He then

dragged her to the bedroom, tied her hands behind her back, blindfolded her, and forced

her to orally copulate him. Afterward, he was arrested at the scene, and was sentenced to

prison for the crime. Appellant tried to explain his “distorted thinking” at that time, when

he thought “like a criminal” and exercised complete control over his victim. He admitted

to being “turned on . . . to some degree” by the forced act of oral copulation. Appellant

said he received no treatment while incarcerated.

After appellant was paroled in October 1981, he committed a number of burglaries

for which he was not caught. In November 1981, he entered the home of Lisa S. with the

intent to steal. While inside, he heard someone come into the house. The person walked

by the bedroom, and appellant saw that she was female. He grabbed her, threatened her

with a knife he picked up from the kitchen, and moved her to the bedroom, where he tied

her hands behind her back and blindfolded her, and then raped her. Before fleeing, he

also took some money from her drawer.

On December 9, 1981, appellant rang the front doorbell of Jeannie G.’s residence

to see if someone was home before attempting to burglarize it. When the victim

answered, surprising him, he pushed his way in, intending to rob her. He forced the

victim into the kitchen, where he armed himself with a knife. He then took her to the

7

bedroom, where he tied her hands, blindfolded her, and gagged her. After looking around

her house and taking money, he returned to the bedroom and decided to sexually assault

her.3 He forced her to orally copulate him, raped her from behind, and then fled.

Appellant recalled committing additional burglaries in January 1982, but did not

recall the encounter with victim Paula. He did remember escaping from Santa Rita Jail

on February 11, 1982. He committed additional burglaries between then and February

24, 1982, when he assaulted Joanne F. Appellant went to Joanne’s residence, again

planning to burglarize. When he heard someone coming upstairs, he hid in a closet. The

victim opened the closet door, appellant grabbed her, pressed a knife against her, tied her

hands and blindfolded her, and raped her. While attempting to rape her, he accidentally

penetrated her anus and apologized.

Appellant was arrested on March 30, 1982 and sentenced to prison. He was

paroled on September 21, 1994. He violated parole for being out past his curfew, and

was put back in custody from November 1994 to April 1995. In July 1995, he was again

returned to custody for being out past his curfew. While in prison, he incurred 19 rules

violations. In 1996, he was transferred to Atascadero State Hospital (ASH), where he

had an altercation that resulted in him being sent back to prison. He returned to ASH in

1998, but did not participate in the sex offender treatment program because he did not

believe he had a mental disease. Appellant denied that he suffered from paraphilia, but

acknowledged that he suffered from antisocial personality disorder.

In April 2007, appellant was transferred to CSH. He began participating in the sex

offender treatment program there in June 2008, and believed he had reformed himself.

He had completed the work for phase two of the program, but had not completed two

assessment tests. According to appellant, this was not because he refused the testing, but

because the hospital had not scheduled the tests.

3

He could not recall if he threatened to kill her baby. He said, “I don’t believe I

did. I know–like I say, on one of these cases I did that. I don’t know if it was this one or

[another] one. I know I did in one of them.”

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4. The Victims

The prosecutor called a staff colleague as a reader to recite portions of both prior

court transcripts concerning three predicate convictions and one non-predicate offense, as

well as parts of two police reports. The prosecutor recited the original questions and the

reader replied with the testimony of Pamela A., Joanne F., and Lisa S. Also read was an

excerpt of a police report in the Joanne F. case and the Lisa S. matter. Specifying its

purpose to impeach, the prosecutor read the preliminary hearing testimony involving the

assault on Paula R.

B. Defense

1. Experts

a. Dr. Brian Abbott

Psychologist Brian Abbott testified for the defense. He assessed appellant in

2009, and then again in 2012, for a combined total of five hours. He concluded that

appellant suffered from antisocial personality disorder in the past, but did not suffer from

it currently. Dr. Abbott explained that he did not believe antisocial personality disorder

“in and of itself” could be a qualifying disorder for SVP commitment because such a

disorder predisposes the person to general criminality, not sexual violence.

In Dr. Abbott’s opinion, appellant did not suffer from paraphilia NOS, coercive

disorder in the past or currently. According to Dr. Abbott, there is a controversy in the

field about whether such a diagnosis exists at all, although he, himself, believed it did

exist. However, he added that, even if such a diagnosis exists, it cannot be established by

behavior alone because many repeat rapists rape out of anger towards women and a

desire for power as opposed to arousal by forced sex. Dr. Abbott testified that in order to

diagnose paraphilia NOS, coercive disorder, there must be some indication that the

individual has urges or fantasies related to forcible or nonconsenting sexual behavior.

This can come from self-report, evidence that the person while in the state hospital has

been viewing pornography or reading stories about forced sex, or perhaps evidence that

the person while in the state hospital has been exposing himself to female staff.

9

Dr. Abbott opined that appellant did not qualify for SVP commitment, because he did not

have a current diagnosed mental disorder.

Dr. Abbott explained that he normally ends his evaluation upon finding the

absence of a current diagnosed mental disorder. However, at the request of counsel, he

extended his evaluation to cover the risks of re-offending. Dr. Abbott opted to administer

only the Static-99R to appellant. He explained that while he had used the SVR-20 in the

past, he stopped using it because it was considered a “structural professional judgment

instrument,” and less accurate than other actuarial tools. Using the Static-99R, Dr.

Abbott concluded that appellant, who was nearly 60 years old at the time of testing, had a

low risk of re-offending. Dr. Abbott disagreed with the higher scores reported by

Dr. Vognsen and Dr. Starr. Dr. Abbott critiqued the methodologies employed by Dr.

Vognsen and Dr. Starr.

Dr. Abbott explained that paraphilia NOS is a category in the Diagnostic and

Statistical Manual of Mental Disorders (DSM) but is not itself a DSM diagnosis. He

further stated 95 percent of rapes occur for non-paraphilic reasons. Dr. Abbott opined

that appellant is not among the five percent who commit paraphilic rapes. For example, a

hospitalized paraphilic rapist would likely possess pornography reflecting forced sex;

appellant has never been found with any nor attempting to secure it. Dr. Abbott further

opined that were appellant paraphilic, he also would likely manifest his difficulty in

controlling his urges by exposing himself to female staff as a kind of “substitute” for an

actual rape.

Dr. Abbott testified that, in his opinion, appellant committed the predicate crimes

as a result of his antisocial personality disorder and he exploited opportunities that were

presented during commission of his burglaries. He further explained that a diagnosis of

antisocial personality disorder “better explain[s]” appellant’s criminal history than does a

claim of paraphilic disorder. In any event, Dr. Abbott concluded that appellant does not

currently suffer from antisocial personality disorder or paraphilia NOS.

Dr. Abbott concluded that appellant does not meet the SVP criteria, does not have

a currently diagnosed disorder, and does not pose a serious and well-founded risk of

10

reoffending by sexually violent behavior. His opinion took into account various factors,

including the actuarial score and appellant’s advancing age. Dr. Abbott concluded there

is no evidence of any current condition that causes appellant serious difficulty in

controlling impulses or behavior. Accordingly, he opined that appellant does not pose a

substantial danger within the meaning of the SVPA.

b. Dr. Mary Jane Adams

Psychologist Mary Jane Adams testified that she evaluated appellant in 2007,

2009, and again in November 2012, for a total of approximately six hours; she also

reviewed pertinent institutional documents. Like Dr. Abbott, she believed appellant’s

sexual assaults stemmed from antisocial personality disorder, from which he presently

did not suffer. Dr. Adams opined that paraphilic rapists make up only two to five percent

of all rapists. She did not believe that appellant is or was ever part of this small group of

offenders. She based this opinion, in part, on the lack of evidence that appellant’s sexual

assaults were planned, as opposed to opportunistic. Dr. Adams further opined that,

through much of his life, appellant fit the diagnosis of antisocial personality disorder, but

she explained that over the past five or six years, he’s “aged out,” of this diagnosis;

according to Dr. Adams, this is a “very common phenomenon.” Dr. Adams further

explained that the residual effect of this “burn out” of the disorder is that appellant

occasionally “gets irritated and mouths off,” but he has not been in a physical altercation

for a number of years. She found no current evidence that appellant suffered from

antisocial personality disorder. Indeed, she viewed appellant as beginning to develop a

level of empathy that previously did not exist.

Using the Static-99R, Dr. Adams concluded that appellant was unlikely to

reoffend because he had participated in five years of sex offender specific treatment, his

impulsivity and aggressive behavior had reduced greatly over the years due to his age, he

had developed empathy, and he had diabetes, which reduced his sex drive and ability to

perform.

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c. Dr. Robert Owen

Psychologist Robert Owen evaluated appellant on behalf of DSH 10 times

between 2002 and 2011, concluding each time that he had a diagnosed mental disorder, to

wit, paraphilia NOS, and was likely to reoffend. In 2012, however, Dr. Owen changed

his opinion because, over the years, paraphilia NOS had become a controversial

diagnosis, and he now believed that it should not be used as a diagnosis qualifying a

person for an SVP commitment. Dr. Owen did diagnose appellant, in the past and

currently, with antisocial personality disorder. However, he explained that appellant’s

criminality resulting from the disorder had waned over time. Dr. Owens further

explained that the disorder does not usually predispose people to commit sexually violent

acts. He did concede that antisocial personality disorder can be used as a qualifying

diagnosis for SVP commitment. Dr. Owen noted that the bulk of the person’s criminal

offenses would have to be sexual in nature so that a clear causative relationship could be

drawn between the personality disorder and the sexual offending; Dr. Owen opined that

appellant’s sexual offenses appeared to be more opportunistic. On cross-examination,

Dr. Owen acknowledged that his 2011 report on appellant stated, “Although paraphilia

has been a controversial diagnosis, in this case with such persistent deviance, multiple

victims and both urges and behaviors, he appears to be one of those few individuals who

qualifies for the diagnosis.” He also opined that appellant would not seek treatment on

his own if released.

d. Dr. Carolyn Murphy

Psychologist Carolyn Murphy was asked by DSH to conduct a “difference of

opinion” evaluation of appellant after the two initial experts failed to agree on whether he

qualified as an SVP. After evaluating numerous records and meeting with appellant, Dr.

Murphy determined that appellant did not currently suffer from a mental disorder that

would predispose him to commit violent sexual crimes. In her opinion, a repeat rapist

could be validly diagnosed as suffering from paraphilia, which could be based on

behavior alone. She had diagnosed it in the past when she found a circumstance

involving physically forceful sex in the absence of significant pattern of other criminal

12

conduct. Dr. Murphy concluded that appellant’s sexual assaults appeared to be part of his

criminal personality rather than the product of paraphilia.

Dr. Murphy opined that appellant was suffering from antisocial personality

disorder during commission of the predicate offenses. She recognized that an argument

could be made that appellant still suffers from antisocial personality disorder, but she

diagnosed him having only a general personality disorder that manifests “antisocial

traits.” Dr. Murphy explained that appellant’s “behavior has slowed down. It’s more

petty rules violations, being argumentative with staff. . . . [A]sserting himself,

inappropriately, but then stepping down. It doesn’t escalate.” She added that there are

“[still some] verbal outbursts [but] that pattern has slowly changed over time. You still

see some verbal outbursts . . . but not nearly the frequency or intensity.” Dr. Murphy

opined that some of this change could be attributed to a “less stressful, more therapeutic”

environment at CSH as opposed to ASH, which she said is “run a bit more like a prison.”

2. Social Workers

a. Adriel Reyes

Social worker Adriel Reyes had worked at CSH since 2008 and was a co-

facilitator in the Sex Offender Treatment Program, since renamed the “Better Lives”

model. He had been in charge of treatment groups for the past four years; one of his co-

facilitators was Dr. Minter. Reyes explained that participants work on autobiographies

and “behavior chains.” Reyes described the state of institutional confusion that followed

the replacement of the five phase treatment program.

Appellant had been in Reyes’ group for three years. He described appellant’s

“rocky start,” during which appellant was brash and loud, showing his unhappiness with

having his old group disbanded. However, he made a rather quick adjustment and was

receptive to his new group. While he and a couple other group members remain “pretty

blunt,” Reyes said appellant is able to “interact well” and he has developed good rapport

with others, to the extent of helping convince another patient to participate in treatment.

Reyes said the “group dynamic” changed after Dr. Minter became a co-facilitator;

he does not share her perspective about appellant monopolizing group participation.

13

Appellant initially was “challenging” when Dr. Minter took over. Though his attendance

has been “sporadic” over the last few months, Reyes said appellant has “come a long

ways” since 2011 and has “caught on a lot faster” with discussions and feedback. Reyes

added that appellant was “able to verbalize a lot more of his coping skills in that group.”

b. Sylvia Garcia

Social worker Sylvia Garcia had worked at CSH since 2009. She had worked with

appellant for three years, seeing him on a daily basis. In her work with appellant, Garcia

has counseled him in developing skill to make better choices and resolve problems.

Appellant interacts appropriately with other patients and most of the time appropriately

with staff as well, excepting the unit supervisor who is a “psych tech.” Garcia

specifically discussed a July 2012 incident in which appellant got upset and threw a

television remote controller against the wall, saying such behavior was atypical. Garcia

has counseled him about improving his relationship with the supervisor, including

avoiding her and walking away when he gets upset rather than engaging in an argument.

III. DISCUSSION

A. Appellant Received a Fair Trial

Appellant claims that various evidentiary and instructional errors violated his right

to due process, as did instances of prosecutorial and judicial misconduct.

1. Alleged Evidentiary Errors

Decisions concerning the admission of evidence at trial are within the province of

the trial judge. (People v. Jones (1998) 17 Cal.4th 279, 305.) “ ‘As a general matter, a

trial court is vested with broad discretion in ruling on the admissibility of evidence. The

court’s ruling will be upset only if there is a clear showing of an abuse of discretion, i.e.,

that the court exceeded the bounds of reason.’ [Citation.]” (People v. Dean (2009) 174

Cal.App.4th 186, 193.) Also, “ ‘[i]t is . . . well settled that the erroneous admission or

exclusion of evidence does not require reversal except where the error or errors caused a

miscarriage of justice. [Citation.] “A ‘miscarriage of justice’ should be declared only

when the court ‘after an examination of the entire cause, including the evidence,’ is of the

‘opinion’ that it is reasonably probable that a result more favorable to the appealing party

14

would have been reached in the absence of the error.” [Citations.]’ [Citations.]” (People

v. Fields (2009) 175 Cal.App.4th 1001, 1018.)

Keeping in mind the general standard of review, we consider each of appellant’s

claims of error.

a. Prior Convictions

Appellant claims the court erred when it admitted the “unnecessary and repetitive

proof” of his prior convictions despite his pre-trial concession that he had three

qualifying predicate offenses and was collaterally estopped from relitigating their

legality.

Preliminarily, the prosecution was entitled to refuse any concession or stipulation

by appellant because the challenged evidence remained probative to the issues before the

jury. (People v. Garceau (1993) 6 Cal.4th 140, 182, abrogated on another ground as

stated in People v. Yeoman (2003) 31 Cal.4th 93, 117 [prosecution cannot be compelled

to accept a stipulation which would “ ‘deprive the state’s case of its persuasiveness and

forcefulness’ ”]; People v. Hall (1980) 28 Cal.3d 143, 152 [“if the facts to which the

defendant has offered to stipulate retain some probative value, then evidence of such facts

may be introduced”], overruled on another ground in People v. Newman (1999) 21

Cal.4th 413, 415.)

The details of the offenses were relevant to prove appellant was convicted of a

sexually violent offense against two or more victims. The jury also had to find that

appellant had a diagnosed mental disorder and that the disorder made him a danger to the

health and safety of others. (See § 6600, subd. (a); CALJIC No. 4.19.) The description

of the predicate convictions provided the jury with some of the basis for diagnosing

appellant with paraphilia NOS and antisocial personality disorder. Moreover, the details

of the offenses were probative of appellant’s risk of recidivism. Both Dr. Vognsen and

Dr. Starr opined that defendant posed a fairly high risk of committing another SVP

offense based, in part, on the facts of the predicate convictions.

In People v. Hubbart (2001) 88 Cal.App.4th 1202, the court resolved a similar

case where it concluded that the trial court had not abused its discretion by admitting

15

detailed evidence of numerous sexual assaults the defendant had committed, over his

objection: “Details about defendant’s past sexually violent conduct were important to the

jury’s determination of these issues. The way that defendant targeted similar victims and

committed the crimes in a similar manner showed his predatory behavior and the risk he

posed if released. Although there was expert testimony on those issues, the details of the

crimes were helpful for the jury’s understanding of the experts’ opinions and diagnoses.

Although the details of the crimes were odious, it was necessary for the jury to learn not

just that defendant had committed numerous sex offenses, but the scope and nature of his

sexually predatory behavior.” (Id. at p. 1234.)

To the extent appellant suggests that allowing the victims’ testimony to be read

into the record was cumulative we are similarly not persuaded. Not only was this

evidence relevant to impeach appellant’s testimony, it represented a relatively minor

portion of the vast array of evidence that was introduced to establish that appellant met

the criteria for qualifying as an SVP.

Finally, appellant takes issue with the admission of evidence regarding the non-

predicate offense involving Paula R. Below, defense counsel objected to this evidence on

the ground that the evaluators had not reviewed Paula R.’s testimony in rendering their

opinions. As with the testimony of the other victims, the prosecutor offered Paula R.’s

testimony for impeachment purposes. This testimony was also relatively brief, and no

more prejudicial than the evidence pertaining to the predicate offenses. Also, there was

little risk of confusion. Thus, applying Evidence Code section 352, we find no abuse of

discretion in admitting this evidence.

Because we reject appellant’s claim of error, we reject his due process claim as

well.

b. Failure to Submit to Testing

Appellant contends the trial court erred in allowing evidence that he refused to

participate in “two diagnostic tests.” Though not identified by name to the jury, the two

tests were a polygraph test and a penile plethysmograph (PPG) test. They were described

as an assessment “that looks at disclosure of sexual behaviors that a person has done in

16

the past” (polygraph) and an assessment that “measure[s] sexual arousal and sexual

interests in a variety of both appropriate and inappropriate or deviant stimuli” (PPG). A

behavioral specialist from CSH testified that these assessments were important because

they provided an objective measure of the person’s current level of deviant sexual

interests and sexual preoccupation, and provided information from which the hospital

could develop a treatment plan for the individual and measure progress in treatment.

Dr. Starr testified that appellant told her that one of the two assessments he refused

involved showing pictures of consensual and nonconsensual acts, and that if they showed

slides oriented toward his crimes, he was concerned that his response would be

“predictable.” In Dr. Starr’s opinion, the statement demonstrated that appellant wanted to

pick and choose what treatment he wanted to participate in, which made it unlikely he

would follow through with voluntary treatment in the community. It also suggested that

appellant himself was concerned that he would still be aroused by sexually deviant

material.

Dr. Vognsen testified that appellant had refused to take “the diagnostic test that

would see whether he still has got fantasies about rape,” which he considered significant

because appellant claimed not to have such fantasies. “If he doesn’t have them,”

questioned Dr. Vognsen, “why not open yourself up to that diagnostic assessment so you

can demonstrate that? He said nah, I don’t want to do that. That seems to me that he’s

covering up something there.” When he took the stand, appellant professed that he did

not refuse to take either assessment test.

Appellant contends the court prejudicially erred in allowing mention that he

refused to take, albeit not by name, the polygraph and PPG. He adds that by “not naming

the ‘tests,’ it gave them a false aura of importance and significance.” We are not

persuaded.

Whether the results of a polygraph or PPG are admissible in an SVP case is

questionable. (People v. Fields, supra, 175 Cal.App.4th 1001, 1017 [noting Evid. Code

prohibits polygraph evidence in criminal proceedings, but “we have found no statutory or

judicially created bar to a party offering polygraph evidence in civil proceedings”];

17

People v. John W. (1986) 185 Cal.App.3d 801, disapproved on other grounds in People v.

Waidla (2000) 22 Cal.4th 690, 717 [trial court did not err in excluding expert opinion that

defendant was not sexually deviant based on PPG results where defendant failed to show

the test was a reliable means of diagnosing sexual deviancy].) Finding the admission of

the challenged evidence to be harmless, we decline to enter the controversy.

First, the evidence that appellant refused to take the diagnostic assessments was

not offered to establish that he was a liar or a sexual deviant. Rather, the experts testified

that the tests were useful in helping address appellant’s treatment needs and in measuring

his progress. This evidence, therefore, was relevant to the issue of whether appellant was

fully participating in treatment. It was also useful in helping the jury assess the weight to

be given to the experts’ opinions.

Second, even without the challenged evidence, there is no reasonable probability

that appellant would have received a more favorable result. (People v. Watson (1956) 46

Cal.2d 818, 836.) Dr. Starr testified that appellant’s diagnoses remained current because

they were chronic, lifelong disorders. She found that he remained dangerous and in need

of custodial treatment based on his scores on actuarial tests, his dropping out of sex

offender treatment twice, his failure to consistently attend treatment even when

participating, his lack of cooperation with authority, the unlikelihood of his seeking

treatment on a voluntary basis if released, his grievance thinking and anger problems, and

his lack of insight into his behavior. Similarly, Dr. Vognsen testified that appellant

remained dangerous because of his actuarial test scores, history of dropping out of sex

offender treatment, inconsistent participation when enrolled in treatment, admitted

continuing sex drive, poor cooperation with supervision, poor anger control, and lack of

mitigating factors such as health concerns. Accordingly, on this record, there is no

reasonable probability the jury would have found that appellant did not qualify as an SVP

absent the evidence that he refused to participate in the two diagnostic tests. We also

conclude that appellant’s right to due process was not violated.

2. Alleged Instructional Errors

Appellant raises several claims of instructional error.

18

“In reviewing any claim of instructional error, we must consider the jury instructions as a

whole, and not judge a single jury instruction in artificial isolation out of the context of

the charge and the entire trial record.” (People v. Dieguez (2001) 89 Cal.App.4th 266,

276.) There is no instructional error if the instructions, as a whole, “are unobjectionable,

even though isolated passages from some of the instructions may be subject to criticism.”

(People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1074-1075.)

“A party may not complain on appeal that an instruction correct in law and

responsive to the evidence was too general or incomplete unless the party has requested

appropriate clarifying or amplifying language.” (People v. Lang (1989) 49 Cal.3d 991,

1024.) “The trial court is not required to give [a pinpoint instruction that explains or

highlights a defense theory] on its own initiative, and if the instruction as given is

adequate, the trial court is under no obligation to amplify or explain in the absence of a

request that it do so.” (People v. Mayfield (1997) 14 Cal.4th 668, 778, overruled on other

grounds in People v. Scott (2015) 61 Cal.4th 363, 390.) A defendant’s failure to request a

clarifying or amplifying instruction at trial waives a claim on appeal that the instruction

given was ambiguous or incomplete. (Id. at pp. 778-779; People v. Cole (2004) 33

Cal.4th 1158, 1211; People v. Hart (1999) 20 Cal.4th 546, 622; People v. Sanchez (2001)

94 Cal.App.4th 622, 635.)

a. Use of “Admission” Instruction (CALJIC No. 2.71)

At trial, appellant admitted that he had acted criminally and anti-socially in the

past. The trial court instructed the jury with a modified version of CALJIC No. 2.71. As

given, the instruction read: “An admission is a statement made by the respondent which

does not by itself acknowledge his status as a sexually violent predator for which the

respondent is on trial, but which statement tends to prove his status when considered with

the rest of the evidence. [¶] You are the exclusive judges as to whether the respondent

made an admission, and if so, whether that statement is true in whole or in part.”

However, the trial court failed to include language that these admissions must be viewed

with caution.

19

Appellant contends that there was no substantial evidence to support giving this

instruction and, alternatively, even if such evidence existed, the omission of the

cautionary language constituted prejudicial error. We disagree. Appellant’s admission at

trial that he had previously “acted out criminally,” while suffering from anti-social

personality disorder, when viewed with the rest of the evidence, had a tendency to prove

his status as sexual predator. Moreover, appellant’s claim that the trial court was required

to instruct the jury sua sponte to view this evidence with caution is without merit. The

omitted, cautionary language pertains to oral admissions not made in court.4 Indeed, the

California Supreme Court has explained that “the primary purpose of the cautionary

instruction ‘is to assist the jury in determining if the statement was in fact made.’

[Citation.] ” (People v. Stankewitz (1990) 51 Cal.3d 72, 94.) Here, appellant made these

admissions in open court. Accordingly, there is no dispute that appellant, in fact, made

such statements. (People v. Stankewitz, supra, 51 Cal.3d at p. 94 (“[t]he testimony . . .

was uncontradicted; [appellant] adduced no evidence that the statement was not made,

was fabricated, or was inaccurately remembered or reported”].) Moreover, neither

psychologist relied on the appellant’s opinion of his prior criminality in forming their

opinion that he currently met the criteria for an SVP.

b. Failure to Sua Sponte Instruct Regarding Nature of Commitment

Appellant contends the trial court should have instructed the jury sua sponte that a

a determination that he qualified as an SVP would result in his indefinite commitment,

rather than the renewable, two-year commitment he would have received under a prior

version of the SVPA.5 Appellant argues that failing to instruct the jury on the

4

The bracketed language of CALJIC No. 2.71 is as follow: “[Evidence of an oral

admission of [a] [the] defendant not contained in an audio or video recording and not

made in court should be viewed with caution.]”

5

Prior to 2006, a person determined to be an SVP was committed to the custody of

the DMH for a period of two years; to keep an SVP in custody beyond the initial two-

year term, the People were required to file a new petition to extend the commitment and

again prove to a jury beyond a reasonable doubt that defendant is an SVP. (See Bourquez

v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281.) In 2006, the SVPA was

amended by statute and voters’ initiative (Proposition 83, known as Jessica’s Law) to

20

consequences of its true finding “may give them the mistaken impression that a civil

commitment is short term and allows for future actual judicial review.” This contention

is baseless.

“ ‘The trial court is obligated to instruct the jury on all general principles of law

relevant to the issues raised by the evidence, whether or not the defendant makes a formal

request.’ [Citations.]” (People v. Souza (2012) 54 Cal.4th 90, 115.) At appellant’s SVP

trial, the jury was asked to determine, based on the evidence presented by the parties,

whether defendant is an SVP and, if so, whether he was likely to reoffend if released into

the community. The trial court properly instructed the jury on the principles of law

governing its resolution of those issues. The duration of any commitment imposed

subsequent to the jury’s findings was irrelevant to the issues at trial. Accordingly, the

trial court was not required to instruct the jury sua sponte regarding the consequences of

an SVP finding. We similarly reject appellant’s due process claim.

c. Failure to Give a Sua Sponte Instruction Quantifying the Degree of Risk

Appellant argues reversal is required because the court did not adequately instruct

on “key elements” regarding the risk of reoffense that is necessary to commit a person as

an SVP. He claims the court should have given a sua sponte instruction that more

precisely defined the degree of risk. We reject this contention.

By statute, an SVP 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).) “Likely” has been judicially

construed to mean “ ‘the person presents a substantial danger, that is, a serious and well-

founded risk, that he or she will commit such crimes if free in the community.’ ” (People

v. Roberge (2003) 29 Cal.4th 979, 982, 986.) The risk of reoffense must be greater than a

provide that SVP’s be committed by the court to the DMH for an indefinite period of

time rather than the renewable two-year commitment provided for under existing law.

(Ibid.)

21

“mere possibility,” but need not be “better than even,” i.e., greater than 50 percent. (Id.

at pp. 985-988.) The jury was instructed as much.

Appellant argues that the instructions did not go far enough because they “fail[ed]

to explain the requisite minimum level of risk that the jury must unanimously agree

upon.” Specifically, he contends the jury should have been further instructed regarding

the meaning of “likely,” “danger,” “substantial danger,” and “substantial, serious, well-

founded” risk. He, however, did not request an additional instruction on this point and

has not, in his appellate briefs, suggested clarifying language. “Once the trial court

adequately instructs the jury on the law, it has no duty to give clarifying or amplifying

instructions absent a request.” (People v. Butler (2010) 187 Cal.App.4th 998, 1013.)

Accordingly, we reject appellant’s due process claim.

d. Failure to Specify the Types of Mental Illnesses Qualifying as

Mental Disorders Under the SVPA

Appellant contends the trial court erred by failing to instruct the jury on the types

of mental illnesses that qualify as “mental disorders” under the SVPA. We disagree.

CALJIC No. 4.19 advised the jury that an SVP must have “a diagnosed mental

disorder that makes him a danger to the health and safety of others . . . .” “Diagnosed

mental disorder” was defined as “a congenital or acquired condition affecting the

emotional or volitional capacity that predisposes the person to the commission of

criminal sexual acts in a degree constituting the person a menace to the health and safety

of others.” These definitions tracked the statutory language of the SVP Act. (See

§ 6600, subds. (a)(1), (c).)

Appellant argues that the instruction was inadequate because it failed to specify

whether antisocial personality disorder or paraphilia NOS “standing alone” were “legally

sufficient disorders.” He further contends that antisocial personality disorder “does not

suffice” and the jury should have been instructed on this point. We disagree.

In Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1158 (Hubbart), the

Supreme Court rejected an argument that the SVPA was unconstitutional because it did

not exclude from its purview “antisocial personality disorders or other conditions

22

characterized by an inability to control violent antisocial behavior.” Nothing in the

SVPA or the federal Constitution prohibits a jury from relying on a personality disorder

as a basis for an SVP determination. (Hubbart, at pp. 1158-1161.)

Moreover, the instruction as given was a correct statement of the law and appellant

did not request an additional instruction. As such, the court was not obligated to give a

clarifying instruction. (People v. Butler, supra, 187 Cal.App.4th at p. 1013.) We find no

merit to appellant’s due process claim based on this alleged error.

e. Failure to Give Unanimity Instruction as to Mental Disorder

Appellant contends that the trial court committed prejudicial error by failing to

instruct the jury, sua sponte, they were required to unanimously agree on the specific

mental disorder qualifying him as an SVP. Appellant bases his contention on the

unanimity rule applicable in criminal proceedings. The unanimity rule provides that

“[w]here the evidence shows that several criminal acts may have been committed and the

defendant is not charged separately with a violation of all those acts, the trial court is

required, sua sponte, to instruct the jurors that they must unanimously agree beyond a

reasonable doubt upon the particular act constituting the crime. [Citations.] The purpose

of this rule is to insure that all jurors agree beyond a reasonable doubt that one particular

act or acts constitute the crime charged. [Citations.]” (People v. Washington (1990) 220

Cal.App.3d 912, 915.)

The SVPA requires that a jury’s verdict be unanimous, but it does not require

unanimity as to each element necessary to support an SVP finding. (People v. Carlin

(2007) 150 Cal.App.4th 322, 347, People v. Fulcher (2006) 136 Cal.App.4th 41, 59.)

Moreover, “[a]n SVP proceeding is civil, and not criminal, and the unanimity

requirement for an SVP proceeding is established by statute. [Citation.] Under the

SVPA, the jury must determine whether the requirements for classification as an SVP

have been established ‘beyond a reasonable doubt’ and the jury’s verdict must be

unanimous. [Citations].” (People v. Carlin, supra, 150 Cal.App.4th at p. 347.)

Nevertheless, whereas the jury’s verdict must be unanimous, “[t]here is no statutory

requirement regarding unanimity for each subpart of the SVP determination.” (Id. at

23

p. 347 [rejecting claims that the trial court erred in failing to instruct the jurors that they

must unanimously agree on which prior convictions involved substantial sexual conduct

and on which acts constituted substantial sexual conduct]; see also People v. Fulcher,

supra, 136 Cal.App.4th at p. 59 [concluding that because “SVP proceedings are civil in

nature, even though some criminal procedural protections apply, the rule requiring a

unanimity instruction does not apply in SVP civil commitment proceedings.

[Citations]”].) Accordingly, because the trial court adequately instructed the jury on each

of the elements of appellant’s civil commitment, the court did not commit prejudicial

error by failing to give a unanimity instruction sua sponte on the “diagnosed mental

disorder” element. Accordingly, we similarly reject appellant’s due process claim.

3. Alleged Prosecutorial Misconduct

Appellant contends the prosecutor committed misconduct and violated his right to

due process by asking him “indecent and prurient” questions about his prior convictions

for the purpose of humiliating and embarrassing him in front of the jury. Appellant also

claims he was denied a fair trial by the prosecutor’s denigrating questions about Dr.

Abbott’s integrity.

a. Legal Principles

“A witness may not be examined on matters that are irrelevant to the issues in the

case. [Citations.]” (People v. Mayfield, supra, 14 Cal.4th 668, 755.) Moreover,

questions that go “beyond an attempt to elicit facts within [a witness’s] knowledge and

[are] instead designed to engage him in an argument” are improper. (People v. Johnson

(2003) 109 Cal.App.4th 1230, 1236.)

In considering the effect of the prosecutor’s conduct, we are mindful that

“[p]rosecutors . . . are held to an elevated standard of conduct. ‘It is the duty of every

member of the bar to “maintain the respect due to the courts.” (Bus. & Prof. Code,

§ 6068, subd. (b).) A prosecutor is held to a standard higher than that imposed on other

attorneys because of the unique function he or she performs in representing the interests,

and in exercising the sovereign power, of the state. [Citation.] As the United States

Supreme Court has explained, the prosecutor represents “a sovereignty whose obligation

24

to govern impartially is as compelling as its obligation to govern at all; and whose

interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice

shall be done.” [Citation.]’ ” (People v. Hill (1998) 17 Cal.4th 800, 819-820, overruled

on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

“ ‘When a prosecutor’s intemperate behavior is sufficiently egregious that it

infects the trial with such a degree of unfairness as to render the subsequent conviction a

denial of due process, the federal Constitution is violated.’ ” (People v. Jablonski (2006)

37 Cal.4th 774, 835 (Jablonski); see People v. Hill, supra, 17 Cal.4th at p. 819, [pattern

of prosecutorial misconduct so egregious as to infect trial with fundamental unfairness

and make conviction a denial of due process].) “ ‘Prosecutorial misconduct that falls

short of rendering the trial fundamentally unfair may still constitute misconduct under

state law if it involves the use of deceptive or reprehensible methods to persuade the trial

court or the jury.’ [Citation.]” (Jablonski, supra, at p. 835.) “Misconduct that does not

constitute a federal constitutional violation warrants reversal only if it is reasonably

probable the trial outcome was affected. (People v. Watson[, supra,] 46 Cal.2d [at p.]

836; see People v. Holt (1984) 37 Cal.3d 436, 458.)” (People v. Shazier (2014) 60

Cal.4th 109, 127 (Shazier).)

“As a prerequisite for advancing a claim of prosecutorial misconduct, the

defendant is required to have objected to the alleged misconduct and requested an

admonition ‘unless an objection would have been futile or an admonition ineffective.’

[Citation.]” (Jablonski, supra, 37 Cal.4th at p. 835.) “ ‘ “To prevail on a claim of

prosecutorial misconduct based on remarks to the jury,” ’ ” there must appear “ ‘ “a

reasonable likelihood the jury understood or applied the complained-of comments in an

improper or erroneous manner.” [Citation.] “Prosecutors have wide latitude to discuss

and draw inferences from the evidence at trial. [Citation.] Whether the inferences the

prosecutor draws are reasonable is for the jury to decide.” ’ [Citation.]” (Ibid.)

b. “Indecent and Prurient” Questions Regarding Offenses

Appellant contends the prosecutor committed prejudicial misconduct by asking

him “indecent and prurient” questions designed to humiliate and embarrass him. We are

25

not persuaded.

Although appellant cites numerous questions posed by the prosecutor that

allegedly constituted misconduct, as the People correctly observe, the defense did not

object to these questions and request an admonition to the jury. Because an objection and

admonition would have cured any harm, the claim of misconduct was forfeited on appeal.

(E.g., People v. Linton (2013) 56 Cal.4th 1146, 1205.)

In any case, even assuming the issue was preserved for appeal, we would find no

prejudicial misconduct as to these questions. The factual circumstances of appellant’s

crimes were crucial to the question of whether he was an SVP, both because they were

qualifying offenses for purposes of section 6600, and because they were part of

appellant’s pattern of committing sexual offenses, to wit: Each assault occurred in the

victim’s home. Appellant blindfolded each victim, threatened each with a knife, and also

made verbal threats. He tied the wrists of one victim and the hands of another, also

hitting and strangling her. The trial court could reasonably conclude that prosecutor’s

questions, while graphic and unpleasant, were properly designed to elicit defendant’s

recollection of the facts in question.

c. Denigration of Defense Expert Witness

Appellant further complains that the prosecutor denigrated Dr. Abbott’s integrity.

During cross-examination, Dr. Abbott testified that he had conducted about 185 SVP

evaluations, in which he completed full evaluations at the request of the defense. He

estimated that about 20 to 25 percent of the time he has declined to conduct evaluations

where, after reading the state’s report, he has agreed that the individual meets the criteria

to be deemed an SVP. Of the 185 SVP evaluations he has conducted, on five or six

occasions, or two to three percent of the time, Dr. Abbott has concurred with the state

experts. The following colloquy then ensued: “Q. And in those five or six times did you

then testify for the state? [¶] A. No. The information is privileged. The state does not

learn of my evaluations in those circumstances. [¶] Q. And so you think that the

evaluations are privileged? [¶] A. Yes. The difference between myself and a state

evaluator [is] it falls under attorney/client privilege. If I conclude that the individual

26

meets the criteria, the defense attorney does not turn my report over to the district

attorney.”

The prosecutor then asked Dr. Abbott whether he possessed a law degree, had ever

been to law school, or had obtained legal training by an objective party. Defense

counsel’s objection that the prosecutor was misstating the law and facts with this line of

questioning was overruled. In any event, the prosecutor ceased this line of questioning.

The next day, defense counsel complained to the court that the prosecutor had committed

misconduct in asking these questions because she sought to lead the jury to believe Dr.

Abbott was biased, when in fact, revealing information about a patient to the prosecutor

would have violated both the attorney-client privilege and the psychotherapist-patient

privilege. “In short,” said defense counsel, “I’m asking that she not do it with any of the

other expert witnesses and that the jury be admonished to disregard the question. That it

was an improper question.”

In response, the prosecutor asserted that SVP proceedings were subject to the rules

of civil discovery, and that if under the civil rules, a request for discovery was made for

any and all evaluations conducted by the defense, an evaluation by a defense expert in

favor of SVP commitment would have to be turned over to the prosecution. The court

denied the motion for an admonition, finding no prosecutorial misconduct, but instructed

the prosecutor not to ask similar questions of other defense experts.

We conclude that, even if the prosecution’s questions were improper, there is no

demonstrable prejudice to appellant. Dr. Abbott’s bias in favor of the defense was

already established prior to the questions about whether he had provided the state with

the five or six evaluations in which he agreed that the individual met the SVP criteria.

First, Dr. Abbott conducted 185 evaluations, all for the defense. Second, he explained

that he would not even take a case if, after reading the state’s evaluation, he believed the

individual meets the criteria of an SVP; he estimated that this occurs 20 to 25 percent of

the time. Third, of the 185 evaluations conducted for the defense, Dr. Abbott had only

agreed with the state evaluators two to three percent of the time. Any questions relating

to privilege and discovery vis-à-vis this small percentage of cases posed little risk of

27

inflaming the jury. On this record, there is no reasonable probability that appellant would

have received a more favorable outcome had the court admonished the jurors that the

questions regarding privilege and discovery should be disregarded. (People v. Watson,

supra, 46 Cal.2d at p. 836.) We similarly find no abridgement of appellant’s right to due

process. “[F]undamental fairness [is] the touchstone of due process.” (Gagnon v.

Scarpelli (1973) 411 U.S. 778, 790.) Any error here was minor, as it did not “ ‘so

infuse[] the trial with unfairness as to deny due process of law.’ ” (Estelle v. McGuire

(1991) 502 U.S. 62, 75.)

4. Alleged Judicial Misconduct or Bias

Appellant contends he was denied a fair trial because the trial court asked defense

experts “pointed, critical question,” while it “soft-pedaled with the state’s experts.” He

also complains that the court made “strange hearsay rulings” with respect to proffered

defense expert testimony. We disagree.

“A court commits misconduct if it persistently makes discourteous and

disparaging remarks so as to discredit the defense or create the impression it is allying

itself with the prosecution. [Citations.]” (People v. Santana (2000) 80 Cal.App.4th

1194, 1206-1207.) “The mere fact that a judge examines a witness at some length does

not establish misconduct . . . .” (People v. Pierce (1970) 11 Cal.App.3d 313, 321.) “[I]t

is not merely the right but the duty of the trial judge to see that the evidence is fully

developed before the trier of fact and to assure that ambiguities and conflicts in the

evidence are resolved insofar as possible.” (People v. Carlucci (1979) 23 Cal.3d 249,

255.) “A trial court has both the discretion and the duty to ask questions of witnesses,

provided this is done in an effort to elicit material facts or to clarify confusing or unclear

testimony.” (People v. Cook (2006) 39 Cal.4th 566, 597; see also Pen. Code, § 1044

[judge has duty to “control all proceedings during the trial . . . with a view to the

expeditious and effective ascertainment of the truth regarding the matters involved”];

Evid. Code, § 775 [court may call witnesses].)

A “ ‘[d]efendant’s failure to object at trial [about alleged judicial misconduct,]

particularly where . . . such action would have permitted the court to clarify any possible

28

misunderstanding resulting from the comments, bars his claim of error on appeal.’

[Citation.] ‘The purpose of the rule requiring timely objection is to give the trial court

the opportunity to cure any error, if possible, by an admonition to the jury.’ [Citation.]”

(People v. Sanders (1995) 11 Cal.4th 475, 531.)

First, appellant did not object to the conduct he now challenges. As such, this

contention is forfeited on appeal. (See People v. Sturm (2006) 37 Cal.4th 1218, 1237.)

In any event, even if we were to conclude appellant’s claims were properly before us,

those claims fail on the merits.

a. Challenged Conduct

(i) Questions Regarding Validity of Criminal History Data

The alleged misconduct arises in the context of the prosecutor’s cross-examination

of defense expert Dr. Abbott, who testified that he relied on a nonpublished study by

Dr. Jesus Padilla that was based on non-public hospital and criminal history records. The

prosecutor questioned Dr. Abbott about the validity of the criminal history in Dr.

Padilla’s study, indicating that it was questionable. The trial court then asked Dr. Abbott

about how Dr. Padilla gained access to the criminal data: “[THE COURT:] How did he

get access to [this information]? He’s a private practitioner? [¶] [THE WITNESS:] No.

He was working at Atascadero State Hospital. [¶] [THE COURT:] How did he gain

access to criminal history records? [¶] [THE WITNESS:] They have a computer at the

hospital and can access it.”

(ii) Leading Questions by Defense Counsel

As further evidence of the trial court’s bias, appellant points to the judge’s

interjection in the following colloquy between defense counsel and Dr. Abbott:

“[MS. GEORGE]: And directing your attention to page three under Roman Numeral IV,

Precommitment Assessment Process, item number D. [¶] What does this protocol say

regarding which test the evaluator is to use? [¶] . . .[¶] [THE WITNESS:] It does not

specify any particular test. [¶] [MS. GEORGE:] Actually, doesn’t it say the evaluator,

according to his or her professional judgment, shall apply tests or instruments along with

other static dynamic risk factors— [¶] [THE COURT:] Miss George, is this

29

impeachment of your own witness, or is this leading or what is this? [¶]

[MS. GEORGE:] It’s leading for the sake of brevity, but I’ll have Doctor Abbott testify

as to what it says. [¶] Doctor Abbott, could you tell us exactly what subsection D says

regarding tests?”

(iii) Hearsay Rulings

As Dr. Abbott proceeded to read from the report, the prosecutor objected on

hearsay grounds, which the court granted and noted that “[i]t will be a continuing

objection.”

Then, as defense counsel sought to clarify that Dr. Abbott had relied in part on the

deposition of Dr. Padilla in another case, the prosecutor again objected on hearsay

grounds: “[MS. LOUIS:] Your Honor, objection to hearsay. And can I have a standing

hearsay objection to this exhibit as well? [¶] [THE COURT:] That will be sustained if

you’re going to be reading parts of the document. [¶] [MS. GEORGE:] I’m not going to

read the document. I’m going to have Doctor Abbott testify to what the document says

since he’s been cross-examined about his reliance on the Padilla documents. [¶] [THE

COURT:] Okay. If you go into those portions that he was cross-examined on. [¶]

[MS. GEORGE:] Thank you. It actually goes to the entire — [¶] [THE COURT:] We’re

not reading the transcript into the record.”

Defense counsel then attempted to ask Dr. Abbott about the expressed purpose of

the Padilla study: “[MS. GEORGE]: And what was his purpose in conducting the study?

[¶] MS. LOUIS: Objection. Hearsay. [¶] THE COURT: Sustained. [¶] MS. GEORGE:

It’s the basis, your Honor, on his reliance on the documents. [¶] THE COURT: It’s

sustained.”

b. Analysis

“The question for us to decide is whether the judge ‘officiously and unnecessarily

usurp[ed] the duties of the prosecutor . . . and in so doing create[d] the impression that he

[was] allying himself with the prosecution[.]’ [Citation.]” (People v. Clark (1992) 3

Cal.4th 41, 143; see People v. Cummings (1993) 4 Cal.4th 1233, 1305.)

30

In his reply brief, appellant asserts that “the trial judge took off after Dr. Abbott

and disrupted the examination with its hostility to what was being said.”

However, whether a particular question or series of questions by a judge goes too

far is difficult to assess on a cold record because we cannot determine if the tone of any

particular question was other than neutral, and because the transcript does not indicate the

length of pauses by the attorneys in between the answer to one question and the asking of

another. (People v. Raviart (2001) 93 Cal.App.4th 258, 272 [trial court is “ ‘in a better

position than the reviewing court to know when the circumstances warrant or require the

interrogation of witnesses from the bench’ ”].)

And even if this trial judge asked too many questions, that does not mean he lost

his neutrality. Nothing about the content of the questions shows a lack of neutrality.

Although appellant complains about the court’s “strange” hearsay ruling, he neither

provides any legal authority or cogent analysis to support his claim. To meet his burden

on appeal, appellant must do more than point out an error and rest there. In any case, to

the extent the trial court refused to allow defense counsel to ask Dr. Abbott why Dr.

Padilla conducted his study, Dr. Abbott would have based his answer on Dr. Padilla’s

testimony in another case, which was clearly hearsay.

Finally, we observe that the trial court instructed the jury with CALJIC No. 17.30,

which provides: “ I have not intended by anything I have said or done, or by any

questions that I may have asked, or by any ruling I may have made, to intimate or suggest

what you should find to be the facts, or that I believe or disbelieve any witness. [¶] If

anything I have done or said has seemed to so indicate, you will disregard it and form

your own conclusion.” We presume the jury followed this instruction and would

consider the content of the answers to the trial court’s questions and not the fact that the

questions were asked by the trial court in assessing the evidence. (See People v. Cook

(2006) 39 Cal.4th 566, 515–516.) Accordingly, we reject the claim of judicial

misconduct. We similarly find no abridgement of appellant’s right to due process.

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B. Sufficiency of the Evidence

Appellant contends the evidence is insufficient to support the jury’s finding that he

is an SVP.

“ ‘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. Carlin (2007) 150 Cal.App.4th 322, 333.)

‘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. Mercer (1999) 70 Cal.App.4th 463,

466.)” (People v. McCloud (2013) 213 Cal.App.4th 1076, 1088 (McCloud).)

Here, the jury was instructed that, in order to prove that appellant is an SVP, the

People must prove, beyond a reasonable doubt, that he: (1) “has been convicted of a

sexually violent offense against two or more victims,” (2) “has a diagnosed mental

disorder,” and (3) “the disorder makes him . . . a danger to the health and safety of others

in that it is likely that he . . . will engage in sexually violent predatory criminal behavior

unless confined within a secure facility.” (See CALJIC No. 4.19.)

The jury was also instructed that the term “ ‘Diagnosed mental disorder’ includes

a congenital or acquired condition affecting the emotional or volitional capacity that

predisposes the person to the commission of criminal sexual acts in a degree constituting

the person a menace to the health and safety of others.” (CALJIC No. 4.19.)

Appellant contends that there is insufficient evidence to support a finding that he

has a “diagnosed mental disorder” because the diagnosis of paraphilia was “invalid” and

the diagnosis of a personality disorder is not a mental disorder sufficient to justify

commitment under the SVPA. We disagree.

1. Paraphilia

Appellant disputes the validity of paraphilia NOS as a sufficient “diagnosed

mental disorder” within the meaning of the SVPA. He further contends that even if this

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diagnosis was valid, there was insufficient evidence supporting its past or current

application in his case.

Appellant argues, at length, about “the demise of paraphilia NOS.” According to

appellant, a diagnosis of paraphilia NOS “does not suffice for commitment” because

“[n]umerous professions [have] concluded that it is invalid and diagnostically

unreliable.” In support of these contentions, he relies on articles that were not part of the

record below. Accordingly, these materials are not properly before this court. (People v.

Jacinto (2010) 49 Cal.4th 263, 272-273, fn. 5 [appellate court not forum to develop

additional factual record].)

In any event, the fact that not all psychological professionals agree about whether

paraphilia constitutes a mental condition that would justify involuntary civil commitment

does nothing to undermine the sufficiency of the evidence supporting the verdict. (See

Kansas v. Hendricks (1997) 521 U.S. 346, 360, fn. 3 (Hendricks); People v. Flores

(2006) 144 Cal.App.4th 625, 633.) Moreover, that such disagreements exist “do not tie

the State’s hands in setting the bounds of its civil commitment laws. In fact, it is

precisely where such disagreement exists that legislatures have been afforded the widest

latitude in drafting such statutes.” (Hendricks, supra, 521 U.S. at p. 360, fn. 3.)

Consistent with this leeway, the SVPA provides that “[t]he term diagnosed mental

disorder includes conditions . . . that affect a person’s ability to control emotions and

behavior and predispose that person to commit criminal sexual acts to an extent that

makes him or her a menace to the health and safety of others.” (McCloud, supra, 213

Cal.App. 4th at pp. 1088–1089. See § 6600, subd. (c).)

To the extent appellant challenges the sufficiency of the evidence supporting a

past and present diagnosis, the record belies this claim. Dr. Vognsen explained the basis

of his opinion to the jury as follows: “We have a sexual offense history of him having

been convicted of sexual offenses against three adult women over [a] period of about four

or five years. There [were] also others he was charged [with] offending against, but the

charge was plea bargained out. So we have three victims of very clearly nonconsenting

sexual activities and one that was charged but not convicted. And one where it seems to

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be he was in the process of wanting to commit a sexual assault on her but she got away

from him. So there’s no charge of any sexual assault against her but a charge of burglary

against her. [¶] So to my way of looking at it, five women who were attacked by him,

clearly for sexual purpose, and I think the fifth one also.”

Dr. Vognsen also considered the facts that appellant was in consensual

relationships during at least some of his offenses, but nevertheless pursued nonconsensual

sex, and that going to prison for his sexual assaults did not deter him from reoffending

shortly after being paroled, demonstrating that he was very strongly driven to commit the

offenses regardless of the consequences. He further testified that appellant’s paraphilia

was current because the disorder was lifelong, though the person could learn to control it

over time with therapy. Dr. Vognsen also discounted the fact that appellant had not raped

recently because he had been in prison or in a heavily supervised hospital environment

for the last several years with little opportunity to reoffend.

Dr. Starr also explained the reasons for her diagnosis of paraphilia. Appellant’s

crimes followed a similar pattern: he found a woman who was home alone, entered her

residence, blindfolded her, threatened her with a knife and verbally, and sexually

assaulted her. She testified that appellant’s explanation that he acted opportunistically in

raping his victims was highly unlikely given the sheer number of times he allegedly

happened to burglarize a woman who was home alone. Indeed, one of his victims offered

him money, and he replied that it was not money he was there for, again demonstrating

that the rape was not opportunistic, but the product of an urge that he planned and carried

out. He reoffended within a short time of being paroled from prison, demonstrating that

he could not control his deviant sexual impulses for nonconsenting sex notwithstanding

the consequences. He also reoffended shortly after escaping from custody, again

demonstrating that his urges overrode his interest in hiding from authorities. In Dr.

Starr’s opinion appellant’s paraphilia was current because paraphilias tend to be chronic

and lifelong, appellant had started but not completed treatment, and appellant had refused

to participate in an assessment based on fear he would react to deviant materials.

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Although appellant’s experts testified variously that appellant did not suffer from

paraphilia because the disorder could not be diagnosed based on behavior alone

(Dr. Abbott), because his sexual assaults appeared to be opportunistic or the product of

his antisocial personality (Drs. Adams and Murphy), or because paraphilia based on

attraction to nonconsenting sex is an invalid disorder (Dr. Owen), the jury was entitled to

credit the testimony of Drs. Vognsen and Starr, who testified otherwise. (People v.

Flores, supra, 144 Cal.App.4th at p. 633.) Accordingly, appellant’s claim of insufficient

evidence fails.

2. Antisocial Personality Disorder

Appellant next contends antisocial personality disorder standing alone is

insufficient to support a finding that he has a “diagnosed mental disorder” within the

meaning of the SVPA. (§ 6600, subd. (a)(1).) Under the SVPA, a “ ‘[d]iagnosed mental

disorder’ includes a congenital or acquired condition affecting the emotional or volitional

capacity that predisposes the person to the commission of criminal sexual acts in a degree

constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).)

In appellant’s view, this reference to a disorder that predisposes a person to “criminal

sexual acts” means the qualifying diagnosis must be some form of paraphilia. This does

not mean, however, that the diagnosed mental disorder must be a sexual disorder. For

example, in People v. Burris (2002) 102 Cal.App.4th 1096, 1108-1109, the court

concluded that antisocial personality disorder could qualify as a mental disorder within

the meaning of the SVPA. However, it is not clear whether Burris stands for the

proposition that antisocial personality disorder alone qualifies a defendant for SVP status

because there the defendant also was diagnosed with a paraphilia associated with rape.

We need not enter this debate because here, like in Burris, appellant was dually

diagnosed with paraphilia and antisocial personality.

In sum, it was sufficient for the People to show that appellant suffered from

paraphilia and that his antisocial personality caused him to lose control, become

dangerous to others, and become predisposed to act on his paraphilic interests. There was

substantial evidence supporting the finding that he qualified as an SVP.

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C. Constitutional Challenges to the SVPA

1. Vagueness

Appellant contends the SVPA is unconstitutionally vague because it fails to define

the “likely” to reoffend standard and fails to define the kind of mental disorder that may

serve as a basis for an SVP finding,

“Due process requires fair notice of what conduct is prohibited. A statute must be

definite enough to provide a standard of conduct for its citizens and guidance for the

police to avoid arbitrary and discriminatory enforcement. [Citations.] ‘Void for

vagueness simply means that criminal responsibility should not attach where one could

not reasonably understand that his contemplated conduct is proscribed.’ [Citation.]

[¶] . . . A statute is not vague if . . . any reasonable and practical construction can be given

to its language. Reasonable certainty is all that is required. [Citations.]” (People v.

Townsend (1998) 62 Cal.App.4th 1390, 1400-1401.) As our Supreme Court has

explained, “a law that is ‘void for vagueness’ not only fails to provide adequate notice to

those who must observe its strictures, but also ‘impermissibly delegates basic policy

matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis,

with the attendant dangers of arbitrary and discriminatory application.’ [Citation.]

[¶] . . . [A] claim that a law is unconstitutionally vague can succeed only where the

litigant demonstrates, not that it affects a substantial number of others, but that the law is

vague as to [him] or ‘impermissibly vague in all of its applications.’ [Citations.]”

(People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116.)

a. The “Likely” Risk of Reoffending

Appellant contends that the SVPA is unconstitutionally vague because it fails to

define the term “likely” in quantitative terms. We disagree. The meaning of “likely to

engage in acts of sexual violence” was clearly explained by our Supreme Court in People

v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 894 (Ghilotti).

36

In Ghilotti, the court “conclude[d] that the phrase ‘likely to engage in acts of

sexual violence’ (italics added), as used in section 6601, subdivision (d), connotes much

more than the mere possibility that the person will reoffend as a result of a predisposing

mental disorder that seriously impairs volitional control. On the other hand, the statute

does not require a precise determination that the chance of reoffense is better than even.

Instead, an evaluator applying this standard must conclude that the person is ‘likely ’ to

reoffend if, because of a current mental disorder which makes it difficult or impossible to

restrain violent sexual behavior, the person presents a substantial danger, that is, a

serious and well-founded risk, that he or she will commit such crimes if free in the

community.” (Id. at p. 922, italics added.) Contrary to appellant’s assertions, Ghilotti’s

clear definition of the phrase “likely to engage in acts of sexual violence” comports with

due process requirements.

The term “likely” has been approved in statutes which are substantially similar to

the SVPA, such as the Kansas law reviewed in Kansas v. Hendricks, supra, 521 U.S. 346.

As noted in Hubbart v. Superior Court, supra, 19 Cal.4th at p. 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.” (Ibid.) Because the

likelihood standard under the SVPA for predicting dangerousness is not materially

different from the statutory formula at issue in Hendricks, we reject appellant’s

vagueness challenge.

b. The Term “Mental Disorder”

Appellant next contends the SVPA is unconstitutionally vague because it fails to

define the kind of mental disorder that may serve as a basis for a finding that an offender

is likely to commit a sexually violent crime in the future. Defendant argues that as

formulated, the SVPA would allow any mental disorder, including “eating disorders,

stuttering, sleep terror disorder, separation anxiety, anxiety and phobic disorders

37

generally, kleptomania and pyromania” to serve as a basis for a finding that an offender is

an SVP.

We cannot conclude that the SVPA is unconstitutionally vague as appellant

contends. It defines a diagnosed mental disorder as “a congenital or acquired condition

affecting the emotional or volitional capacity that predisposes the person to the

commission of criminal sexual acts in a degree constituting the person a menace to the

health and safety of others.” (§ 6600, subd. (c).) This definition is reasonably certain.

Indeed, our Supreme Court in People v. Williams (2003) 31 Cal.4th 757 (Williams)

described the SVPA’s definition of a diagnosed mental disorder as “clear language.” (Id.

at p. 774.) We see no merit to appellant’s contention that the statute must spell out which

conditions might give rise to this predisposition in order to pass constitutional muster.

The statute spells out standards to allow the trier of fact to determine, with the aid of

expert testimony, whether a defendant meets the standards to qualify as a sexually violent

predator.

We are guided by our Supreme Court’s admonition that “in this nuanced area, the

Legislature is the primary arbiter of how the necessary mental-disorder component of its

civil commitment scheme shall be defined and described.” (Williams, supra, 31 Cal.4th

at p. 774.) As in Williams, “[n]o reason appears to interfere with that legislative

prerogative here.” (Ibid.)

2. Equal Protection Clause

a. SVPA Commitment Scheme

Appellant contends his involuntary SVP commitment violates his federal

constitutional right to equal protection because the SVPA treats him less favorably than

similarly situated individuals committed under other statutes, such as mentally disordered

offenders (MDO’s) and criminal defendants sentenced to life in prison.

The claim of differential treatment focuses on the fact that SVP’s are committed

for an indeterminate term, with the burden placed on them to show they should be

released after being committed, whereas MDO’s are subject to time-limited commitments

38

in which the burden is on the People to prove that a recommitment is justified beyond a

reasonable doubt.

The issues appellant raises have been decided against him by our Supreme Court

in People v. McKee (2010) 47 Cal.4th 1172 (McKee I ), by this court, and by various

other appellate courts (See People v. McKee (2012) 207 Cal.App.4th 1325, 1330-1331

(McKee II); People v. McDonald (2013) 214 Cal.App.4th 1367, 1376-1382; People v.

Landau (2013) 214 Cal.App.4th 1, 47-48; People v. McKnight (2012) 212 Cal.App.4th

860, 863-864.) Appellant acknowledges that the appellate decisions uniformly have

adopted and supported the conclusion reached in McKee II. He argues nonetheless that

this court should not accept the conclusions reached in McKee II because the court in

McKee II failed to properly conduct a de novo review, failed to properly apply the strict

scrutiny equal protection analysis, and the facts it relied upon did not justify the disparate

treatment of SVP’s. We disagree with appellant and concur with the court’s reasoning

and holding in McKee II. (People v. McKnight, supra, 212 Cal.App.4th at p. 864.)

Appellant also contends SVP’s are treated unfavorably as compared to criminals

sentenced to life in prison with the possibility of parole. Appellant’s claim fails because

he has not shown SVP’s are similarly situated to that class of criminals. (See McKee I,

supra, 47 Cal.4th at pp. 1202-1203.)

b. SVPA Release Provisions

Relying on McCloud, supra, 213 Cal.App.4th 1076, appellant argues that his case

must be remanded for an evidentiary hearing as to whether the differences between the

release provisions for SVP’s and MDO’s are justifiable.

Under section 6608, if an SVP files a petition for conditional release or

unconditional discharge without the recommendation or concurrence of the Director of

State Hospitals, the court “shall endeavor whenever possible to review the petition and

determine if it is based upon frivolous grounds and, if so, shall deny the petition without a

hearing.” (§ 6608, subd. (a).) In McCloud, supra, 213 Cal.App.4th 1076, the court held

that the defendant’s argument that this provision violates equal protection was not

“wholly without merit” because “[t]here may well be actual disparate treatment of

39

similarly situated persons—and if there is disparate treatment, the state may or may not

be justified in so distinguishing between persons.” (McCloud, at p. 1088.) Accordingly,

the court remanded the case to the trial court “so that both parties may fully brief and

argue [defendant’s] claim that section 6608, subdivision (a), violates the equal protection

clause.” (Ibid.)

The Attorney General argues that whatever the merit of the equal protection claim,

remand is not appropriate in this case because appellant’s appeal is from a decision made

under the SVPA’s initial commitment procedures (§§ 6601–6604), not from a

determination under the postcommitment release procedure set forth in section 6608. We

agree.

It is a “well-settled rule that courts should ‘avoid advisory opinions on abstract

propositions of law. [Citations.]’ ” (People v. Ybarra (1988) 206 Cal.App.3d 546, 549;

People v. Gonzales (1994) 29 Cal.App.4th 1684, 1700.) To prevent advisory opinions,

courts must wait until a case “ ‘has reached, but has not passed, the point that the facts

have sufficiently congealed to permit an intelligent and useful decision to be made.’ ”

(Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171.) Here,

the record does not reflect any action taken by defendant pursuant to section 6608. As

such, we find his equal protection challenge to section 6608 unripe.

3. Ex Post Facto Clause

Appellant acknowledges that McKee I, supra, 47 Cal.4th at pp. 1188-1195,

rejected the ex post facto challenge he presently asserts, and that this court is bound by

McKee I. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The

issues are raised, he states, solely to preserve his right to petition the California Supreme

Court to change its ruling and to preserve his right to seek relief in the federal court.

Therefore, no further discussion is necessary.

IV. DISPOSITION

The commitment order is affirmed.

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_________________________

REARDON, J.

We concur:

_________________________

RUVOLO, P. J.

_________________________

RIVERA, J.

41