Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. CIV 407313
Lambden, J.
Defendant Leon Seymour appeals from a jury finding and judgment that extended his civil commitment to Atascadero State Hospital pursuant to Welfare and Institutions Code section 6600, et seq. For the reasons stated below, we affirm the judgment.
All statutory references herein are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
Between 1973 and 1982, defendant was convicted of three rapes and two assaults with intent to commit rape. In 1972, defendant picked up a female hitchhiker on Highway 101 in Mendocino County, drove her to a secluded location, threatened her with a gun, blindfolded her, handcuffed her hands, and raped her. In 1976, he gave a ride to his 19-year-old cousin, took her to a secluded spot, threatened her with violence, and raped her. In 1982, defendant forced a woman from her car and into his. He threatened her with a gun, drove her to a remote area, forced oral copulation, and raped her. He pled guilty, was convicted, and sentenced to prison in each case.
In May of 1973, defendant approached a woman in a parking lot, forced her into his car, and threatened her with a gun. He indicated his intent to rape her, but she began crying; he showed her that the gun was empty and gave her his name before letting her go. Within days of the 1982 rape, he approached a woman in a parking lot, threatened her with a knife, and forced her into her car. He then forced her to drive to several locations. He attempted to rape her but was unable to do so.
After serving his prison term, defendant was committed under section 6600 et seq., known as the Sexually Violent Predator Act (SVPA), as a sexually violent predator (SVP) to Atascadero State Hospital for a two-year period that expired in January 2004. In August 2005, after an extension of commitment hearing, defendant’s commitment was extended from January 31, 2004 to January 31, 2006.
We previously dismissed his appeal after this trial, finding the appeal moot, in a nonpublished opinion, People v. Seymour (Dec. 8, 2006, A111105).
On December 7, 2005, the San Mateo County District Attorney filed a petition to extend the commitment of defendant as an SVP under the SVPA. A jury found the petition to be true in October 2006. Defendant’s extension of commitment came under a new law that went into effect after the filing of the petition, but before his trial, and which is a subject of this appeal. Effective September 20, 2006, the SVPA was amended by Senate Bill No. 1128. (Stats. 2006, ch. 337, §§ 55-56, 62; hereafter Senate Bill 1128.) Senate Bill 1128, among other things, amended section 6604 to provide for indeterminate term commitments for persons found to be SVP’s. The People sought this extension for an indeterminate term and, on October 11, 2006, the court ordered defendant committed to the custody of the Department of Mental Health (DMH) for such a term. defendant filed a timely notice of appeal after trial.
DISCUSSION
I. Jurisdiction
Defendant contends the trial on the petition to extend his commitment and the trial court’s order doing so were in excess of the trial court’s jurisdiction. He argues that “[t]he changes made by [Senate Bill] 1128 removed the trial court’s jurisdiction to extend commitments and replaced it with nothing. No jurisdiction was conferred on the court to extend any commitment, much less to extend a commitment after expiration of the previous term.” This is incorrect.
In December 2005, when the petition was filed, section 6604 provided in pertinent part that a person found to be an SVP was to be committed for two years, and could not be kept in custody longer than two years unless a subsequent extended commitment was ordered pursuant to the filing of a petition for extended commitment. (Historical and Statutory Notes, 73D West's Ann. Welf. & Inst. Code (2008 supp.) foll. § 6604, p. 134.) Section 6604.1 provided that any subsequent extended commitment also was limited to a term of two years, commencing from the date of the termination of the previous commitment. (Historical and Statutory Notes, 73D West's Ann. Welf. & Inst. Code (2008 supp.) foll. § 6604.1, pp. 141-142.) On September 20, 2006, section 6604 of the SVPA was amended by Senate Bill 1128 to provide that “[i]f the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement . . . .” (Stats. 2006, ch. 337, § 55.) Section 6604.1, subdivision (a), was amended to provide that “the indeterminate term of commitment provided for in Section 6604 shall commence on the date on which the court issues the initial order of commitment pursuant to that section.” (Stats. 2006, ch. 337, § 56.)
Neither section 6604 nor section 6604.1, as amended, expressly provided for the filing or litigation of an extended commitment petition under the SVPA. (Stats. 2006, ch. 337, §§ 55, 56.) Based on this absence of an express statutory reference, defendant contends that the extended commitment petition filed against him was no longer authorized by law, whether intended or not, and, therefore, that the trial court exceeded its jurisdiction in conducting the trial and issuing a recommitment order. Defendant argues that Senate Bill 1128 “contains no ambiguity. While the court may view it as an oversight that [Senate Bill] 1128 fails to provide for those already committed, it is not for the court to correct. A court inserting additional language into a statute not only violates the cardinal rule of statutory construction that the courts must not add provisions to statutes, it also violates the codification of that rule contained in Code of Civil Procedure section 1858, which provides that a court must not ‘insert what has been omitted’ from a statute.”
Code of Civil Procedure section 1858 states: “In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.”
A very similar argument was recently considered by the Fifth Appellate District in People v. Carroll (2007) 158 Cal.App.4th 503 (Carroll). The defendant, Carroll, argued that by omitting any express provision for the filing of a petition or proceedings to extend a commitment, Senate Bill 1128 did not authorize the trial court to extend his existing commitment term, and that the trial court could recommit him to a two-year term only. (Carroll, at p. 508.) The People contended that Carroll was properly recommitted for an indeterminate term because Senate Bill 1128’s amendments applied to all SVP commitments imposed after the effective date of that legislation. (Carroll, at p. 508.)
The Fifth District noted that an extension hearing, rather than constituting a review proceeding, “requires, essentially, that SVP status be determined anew.” (Carroll, supra, 158 Cal.App.4th at p. 509.) Therefore, “it follows that the provisions of section 6604 and 6604.1, as amended by Senate Bill 1128, apply to all SVP commitment proceedings. This is so regardless of whether they expressly refer to extensions, and even though section 6604.1, subdivision (a) provides that the indeterminate term is to commence on the date the trial court issues the initial order of commitment pursuant to section 6604.” (Ibid.) The court explained:
“ ‘ “When questions as to the applicability or interpretation of statutes are presented to this court, numerous cases have recognized that the controlling issue is the intent of the Legislature.” [Citations.]’ [Citation.] ‘In order to determine this intent, we begin by examining the language of the statute. [Citations.] But “[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.” [Citations.] Thus, “[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” [Citation.] Finally, we do not construe statutes in isolation, but rather read every statute “with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.” [Citation.]’ [Citation.]
“The overall purposes of the SVPA are to protect the public from a select group of extremely dangerous offenders and to provide treatment for those people. [Citation.] Senate Bill 1128 was aimed at preventing future victimization. (See Historical and Statutory Notes, 36E West's Ann. Gov. Code (2007 supp.) foll. § 68152, p. 104.) Carroll's interpretation runs contrary to the obvious intent of Senate Bill 1128's amendments to sections 6604 and 6604.1, which was to enhance, not restrict, confinement of persons determined to be SVP's. [Citation.] By changing SVP terms from two years to an indeterminate period of time, the Legislature unequivocally conveyed an intent to continue the confinement of persons adjudicated to be SVP's. [Citation.] Even assuming Carroll's argument finds some support in the plain language of the statutes, it fails because it would result in absurd consequences the Legislature clearly did not intend, and statutory provisions may be added by implication when doing so is compelled by necessity and supported by solid evidence of the drafters' true intent. [Citations.] “Based on the foregoing principles and the indisputable intent of the Legislature to continue the confinement of SVP's for an indeterminate term, we conclude the trial court was authorized to extend Carroll's commitment period beyond the two-year recommitment period in effect at the time the petition to extend Carroll's commitment was filed.” (Carroll, supra, 158 Cal.App.4th at pp. 509-510.)
Similarly, in People v. Shields (2007) 155 Cal.App.4th 559, defendant Shields was found to be an SVP and committed to an indeterminate term on November 6, 2006. Shields argued that the trial court had no jurisdiction since the SVPA, as amended by Senate Bill 1128, no longer contained express statutory provisions authorizing recommitment of a person previously committed to a two year term of confinement as an SVP. (Shields, at p. 563.) The Fourth Appellate District found that Shields’s interpretation of the 2006 amendment was “contrary to the clear intent of the amendment to enhance—not restrict—confinement of persons determined to be SVP’s.” (Ibid.) The court continued:
“The Legislature’s act of changing SVP terms from two years to indeterminate terms . . . conveys an unequivocal intent to continue the confinement of persons adjudicated to be SVP’s. Shields does not attempt to argue that the Legislature intended to allow release of SVP’s committed to two-year terms based on the statutory amendment mandating indeterminate terms for SVP’s; as he apparently recognizes, any such argument would strain credulity.” (People v. Shields, supra, 155 Cal.App.4th at p. 563.)
The court rejected Shields’s argument that he could not be subject to an SVP petition based on the amended statute’s plain language, citing the “well established principles that the ‘ “ language of the statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend” ’ [citation] . . . ‘ “ when compelled by necessity and supported by firm evidence of the drafters’ true intent” ’ [citations].” (People v. Shields, supra, 155 Cal.App.4th at p. 564; see also Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1283-1288 [rejecting the argument that the court did not have jurisdiction to conduct an extension of commitment proceeding under the SVPA, as amended by Senate Bill 1128 and Proposition 83, finding an implied saving clause for such proceedings in the amended law]; Baker v. Superior Court (1984) 35 Cal.3d 663, 666-668 [concluding that the Legislature, in repealing the law regarding mentally disordered sex offenders, did not intend to preclude extensions of commitments of persons already in the program in light of the repealing statute’s language and legislative history, despite the absence of a savings clause].)
The appellate court found that the statements of intent contained in the state proposition passed by the electorate in November 2006 amending the SVPA, Proposition 83, “confirm the obvious intent of the Legislature in amending section 6604. The proposition expressly sets forth the intent to strengthen SVP confinement laws: ‘ “[E]xisting laws that provide for the commitment and control of sexually violent predators must be strengthened and improved. [¶] . . . [¶] It is the intent of the People of the State of California in enacting this measure to strengthen and improve the laws that punish and control sexual offenders.” ’ (Historical and Statutory Notes, 47A West’s Ann. Pen. Code (2007 supp.) foll. § 209, p. 430; see Prop. 83, §§ 2, subd. (h), 31.)” (People v. Shields, supra, 155 Cal.App.4th at p. 564.)
Defendant correctly points out that the repealing statute reviewed in Baker v. Superior Court, supra, 35 Cal.3d at page 667, expressly referred to those already committed, unlike Senate Bill 1128. However, this does not mean the Baker court’s analytical approach to discerning legislative intent is inapplicable here.
We agree with the Fourth and Fifth Appellate Districts that trial courts have jurisdiction to consider petitions to extend the commitments of SVP’s under Senate Bill 1128. The very purpose of Senate Bill 1128, as evidenced by its replacement of two-year commitment terms with indeterminate terms, demonstrates an intent to strengthen controls over SVP’s, not exempt them from proceedings to extend their commitment while they remained SVP’s. As the People point out, the Legislature declared in 1996, when it enacted the SVPA, that “[i]t is the intent of the Legislature that once identified, [SVP’s], if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, be confined and treated until such time that it can be determined that they no longer present a threat to society.” The Legislature also stated, “The continuing danger posed by these individuals and the continuing basis for their judicial commitment is a currently diagnosed mental disorder which predisposes them to engage in sexually violent criminal behavior. It is the intent of the Legislature that these individuals be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes.” (Stats. 1995, ch. 763, § 1.) Nothing in Senate Bill 1128 suggests the Legislature has changed this intent. To the contrary, the Legislature acted in accordance with this intent when it enacted Senate Bill 1128, which permits the indefinite confinement of those found to be SVP’s, subject to annual medical review and petition procedures, until it is determined that they no longer present a threat to society. The changes at issue were part of an omnibus bill known as the Sex Offender Punishment, Control, and Containment Act of 2006 (Stats. 2006, ch. 337, § 1), which made “major changes to the [SVP] program, increasing commitments from two years to indeterminate, tolling parole while a person is an SVP, and making completion of sex offender treatment programs a condition of release.” (Assembly Com. on Appropriations, Analysis of Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended June 22, 2006, pp. 1-2.) Other changes included increases to the penalties for numerous sex offenses, increases to the penalties for luring children to a meeting for sexual purposes, increases to the period of parole for violent sex offenses, and the creation of a state and local scheme for assessing the risk presented by convicted sex offenders. (Ibid.) According to author of Senate Bill 1128, the bill was designed as a “comprehensive, proactive approach to preventing the victimization of Californians by sex offenders.” (Sen. Rules Com., Analysis of Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended August 22, 2006, p. 7.)
The People referred to certain legislative history related to Senate Bill 1128, to which defendant has not objected. We take the People’s reference as a request for judicial notice, and grant this request as to the legislative materials referred to herein pursuant to Evidence Code section 452, subdivisions (c) and (h).
The statute’s purpose, based on its own terms and its legislative history, establishes the Legislature’s intent to control and treat SVP’s, including those already committed, under the amended SVPA. We reject defendant’s arguments that the statute unambiguously leaves out any regulation of SVP’s already committed, and that courts that find otherwise are inappropriately rewriting the statute. In short, defendant’s position would result in an absurdity that the Legislature plainly did not intend by its amendment of the SVPA, and is without merit.
Defendant notes in his reply brief that “[r]espondent mentions in passing that [defendant’s] prior commitment had expired before the passage of [Senate Bill] 1128, but does not address how that expiration impacts the trial court’s authority to extend a commitment after the passage of [Senate Bill] 1128. Defendant apparently thought this reference sufficient for him to argue that the trial court had no authority to extend his commitment after the expiration of his term. Although defendant refers to this circumstance in his opening brief, he does not actually argue the proposition or cite any authorities in support of it until his reply brief. This argument is waived for failure to raise it in a timely fashion, and we will not consider it further. (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 822.)
II. Retroactive Application of Senate Bill 1128
Defendant argues that Senate Bill 1128 was retroactively applied to the petition to extend his commitment, thereby violating his due process rights. He argues that the SVPA, as amended, could not be applied to his recommitment proceeding because Senate Bill 1128 was enacted after the People filed a petition to extend his commitment for another two years, after his current commitment was expired, after a probable cause hearing on the petition had been heard, and just two weeks before the jury trial on that petition began. We conclude Senate Bill 1128 was not applied retroactively in his case.
In Carroll, supra, 158 Cal.App.4th at page 513, the court rejected Carroll’s argument that extending his commitment for an indeterminate term was a retroactive application of Senate Bill 1128. The court held that what mattered was that the petition was amended, and the trial and commitment of Carroll occurred, after the indeterminate commitment provisions took effect. The court stated:
“Given the manner in which the SVPA was drafted, so that an extension hearing is a new and independent proceeding that essentially requires a new determination of SVP status [citation], application of Senate Bill 1128’s provisions to Carroll did not change the legal consequences of past events or conduct. This is because ‘the trial on any petition for commitment or recommitment must focus on the person’s current mental condition.’ [Citation.] ‘[T]he statute clearly requires the trier of fact to find that an SVP is dangerous at the time of commitment. The statutory criteria are expressed in the present tense, indicating that each must exist at the time the verdict is rendered. In addition, a person cannot be adjudged an SVP unless he “currently” suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior, and which “makes” him dangerous and “likely” to reoffend. [Citation.] [¶] By defining the qualifying mental disorder in this fashion, the statute makes clear that it is the present inability to control sexually violent behavior which gives rise to the likelihood that more crimes will occur, and which makes the SVP dangerous if not confined.’ [Citations.]
“In light of the foregoing, the significant point with respect to retroactivity is not the filing of the petition, but trial and adjudication under the SVPA. [Citation.] The conduct or event (for want of a better term) to which the SVPA attaches legal consequences is the person’s mental condition at the time of adjudication, not at the time the extension petition is filed.” (Carroll, supra, 158 Cal.App.4th at pp. 513-514, fn. omitted.)
Similarly, in Bourquez v. Superior Court, supra, 156 Cal.App.4th 1275, the petitioners argued that applying the indeterminate commitment provisions of Proposition 83 to their cases, which involved petitions that were pending at the time the Proposition was enacted, would be an impermissible retroactive application. (Bourquez, at p. 1288.) The appellate court, after determining that Proposition 83 was to be applied prospectively (Bourquez, at p. 1288), held that petitioners could be committed to indefinite terms because this was a prospective application of the law. (Id. at pp. 1288-1289.)
Garcetti v. Superior Court (1999) 76 Cal.App.4th 685, also provides support for the view that Senate Bill 1128 was not applied retroactively here. The case involved a petition for commitment that was filed before the effective date of the 1996 amendment to the SVPA that clarified that convictions obtained under the pre-1977 indeterminate sentencing law qualified as predicate offenses. Trial was held after the amendment went into effect. The appellate court found that the defendant was subject to the SVPA as amended, stating: “[w]e do not believe that the date the [SVP] petition is filed is the significant point with respect to retroactivity. That point is not reached until trial and adjudication under the Act.” (Garcetti, at p. 694.)
Defendant argues that the definition of a “sexually violent predator” pursuant to Senate Bill 1128 encompasses past, present and future conduct. Therefore, “to discuss it in terms of current mental status only is unduly narrow. Further, it is past conduct which forms the predicate offenses. It is the past conduct of a person which forms the basis for the diagnosis of mental disorder; and it is the past conduct of a person upon which the termination of future dangerousness ultimately rests.” His argument relies heavily on Tapia v. Superior Court (1991) 53 Cal.3d 282, 290, in which the California Supreme Court explained that a statute is substantive in its effect, and its operation is retroactive, if it imposes a new or additional liability and substantially affects existing rights and obligations. He also cites Elsner v. Uveges (2004) 34 Cal.4th 915, in which the court indicated that a law which changes the legal consequences of past conduct by imposing new or different liability for such conduct, and which substantially affects existing rights and obligations, cannot be applied to a trial of preenactment conduct absent an express legislative intent to permit such retroactive application. (Id. at pp. 926-927.)
A “sexually violent predator” was defined as “a person who has been convicted of a sexually violent offense against two 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.” (Stats. 2006, ch. 337, § 53.)
Defendant’s argument is contrary to the views expressed in the cases we discuss herein that the “conduct” addressed by an SVP commitment proceeding is the mental disorder of the defendant which exists at the time of adjudication, not at the time a petition or extension petition is filed. (Carroll, supra, 158 Cal.App.4th at pp. 513-514.) The trial court’s order that defendant be committed for an indeterminate term was the result of a jury’s determination after trial that he suffered from a present mental disorder that was subject to confinement under the SVPA. All of these events occurred after enactment of Senate Bill 1128; in other words, the court applied the indeterminate term called for under the amended statute to defendant’s postenactment “conduct,” i.e., his existing mental disorder. This constituted a prospective, rather than retroactive, application of Senate Bill 1128.
III. Due Process
Defendant argues the unconstitutionality of the SVPA, as amended by Senate Bill 1128, because it “imposed an indeterminate term of commitment at the same time it significantly reduced a committed person’s access to the courts. Most importantly, it removed the requirement that, on a regular basis, the state shoulder its burden and prove beyond a reasonable doubt that the committed person continues to meet the qualification for civil commitment. These changes have effectively eliminated the safeguards in the former law that allowed it to survive a due process challenge.”
The California Supreme Court has granted petition for review of a number of cases that address issues regarding the amended SVPA similar to those we address herein. The court granted review on July 9, 2008, of People v. McKee (2008) 160 Cal.App.4th 1517 (addressing issues regarding due process, equal protection and the ex post facto laws); on August 13, 2008, of People v. Johnson (2008) 162 Cal.App.4th 1263 (addressing issues regarding due process, ex post facto, double jeopardy, and equal protection laws), on August 20, 2008, of People v. Riffey (2008) 163 Cal.App.4th 474 (addressing issues regarding due process, ex post facto, double jeopardy, and equal protection laws); on October 1, 2008, of People v. Boyle (2008) 164 Cal.App.4th 1266 (addressing issues regarding ex post facto, double jeopardy, due process, and equal protection laws); and on October 16, 2008, of People v. Garcia (2008) 165 Cal.App.4th 1120 (addressing issues regarding due process, double jeopardy, ex post facto and equal protection laws, as well as cruel and unusual punishment).
A. The SVPA Procedures
Under the amended SVPA, when a court or jury determines that a person is an SVP, “the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health.” (§ 6604.) Thereafter, the person “shall have a current examination of his or her mental condition made at least once every year.” (§ 6605, subd. (a).) “The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community.” (Ibid.) The report shall be prepared by a professionally qualified person, and filed with the court that committed the person, and served on both parties. (Ibid.)The person may retain an expert to examine him or have one appointed upon request if the person is indigent. The expert shall have access to all records concerning the person. (Ibid.)
Defendant argues his due process rights are violated by the postcommitment procedures outlined in Senate Bill 1128. However, defendant’s due process concerns relate to procedures regarding annual reviews and petitions to be implemented in the future. These are prospective applications of the SVPA and, therefore, would be governed by the law as amended by Proposition 83. Therefore, we refer herein to the SVPA as it exists now, i.e., as amended by Proposition 83, which includes some relatively minor differences with the law as amended by Senate Bill 1128.
“If the Department of Mental Health determines either: (1) the person’s condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the director shall authorize the person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge.” (§ 6605, subd. (b).) Upon receipt of a petition for conditional or unconditional release, the court orders a show cause hearing. (Ibid.) “If the court at the show cause hearing determines that probable cause exists to believe that the committed person’s diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged, then the court shall set a hearing on the issue.” (§ 6605, subd. (c).) Both sides have the right to experts and a jury at the hearing, and the committed person is entitled to all of the constitutional protections afforded him at the initial commitment proceeding. (§ 6605, subd. (d).) “The burden of proof at the hearing shall be on the state to prove beyond a reasonable doubt that the committed person’s diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged.” (Ibid.)
Furthermore, although an SVP must obtain authorization from the DMH to file a petition for conditional or unconditional release under section 6605, an SVP may petition for either type of release without DMH concurrence under section 6608. The court may deny the petition without a hearing if it determines the petition is frivolous. (§ 6608, subd. (a).) Otherwise, the court must “hold a hearing to determine whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community. If the court at the hearing determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community, the court shall order the committed person placed with an appropriate forensic conditional release program operated by the state for one year. . . . At the end of one year, the court shall hold a hearing to determine if the person should be unconditionally released from commitment on the basis that, by reason of the diagnosed mental disorder, he or she is not a danger to the health and safety of others in that it is not likely that he or she will engage in sexually violent criminal behavior.” (§ 6608, subd. (d).) No hearing shall be held on a section 6608 petition until the person has been under commitment for at least one year (§ 6608, subd. (c)), and once a petition is denied, the person may not file a new petition until one year has elapsed from the date of the denial. (§ 6608, subd. (h).) Once a section 6608 petition has been denied, either as frivolous or after a hearing, the court shall deny any subsequent section 6608 petition “unless it contains facts upon which a court could find that the condition of the committed person has so changed that a hearing was warranted.” (§ 6608, subd. (a).) In any hearing under section 6608, the petitioner has the burden of proof by a preponderance of the evidence. (§ 6608, subd. (i).)
Finally, aside from the annual review, if the director of DMH determines at any time that “the person’s diagnosed mental disorder has so changed that he is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community, the director shall forward a report and recommendation for conditional release in accordance with Section 6608” to the court and parties, and the court shall set a hearing in accordance with procedures set forth in section 6608. (§ 6607.)
B. Analysis
We conclude from our review of United States Supreme Court case law that the procedures regarding an indeterminate term of commitment contained in the SVPA, as amended, comply with constitutional due process requirements. In order to make an initial civil commitment of a person to a mental institution, due process requires that the state prove by clear and convincing evidence that the person is mentally ill and that hospitalization is required for either the person’s welfare or for the protection of others. (Foucha v. Louisiana (1992) 504 U.S. 71, 75-76 (Foucha); Addington v. Texas (1979) 441 U.S. 418, 426-427 (Addington).) The Supreme Court has indicated that due process is flexible, and calls for such procedural protections as a particular situation demands. (Jones v. United States (1983) 463 U.S. 354, 367-368 (Jones).) Thus, when a criminal defendant is found to have committed a crime beyond a reasonable doubt, but found not guilty by reason of insanity, the state may commit the defendant without a separate proceeding to establish mental illness and dangerousness because the verdict adequately establishes the elements necessary to support commitment, even if the defendant has proven mental illness by only a preponderance of the evidence. (Foucha, at p. 76, citing Jones, at pp. 363.)
Due process permits a person, once civilly committed, to be held “ ‘until such time as he has regained his sanity or is no longer a danger to himself or society.’ ” (Foucha, supra, 504 U.S. at pp. 77-78; Jones, supra, 463 U.S. at pp. 368, 370.) Due process also requires “that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed.” (Foucha, at p. 79.)
Regarding whether an indefinite commitment is necessarily unconstitutional, the Supreme Court has expressed no constitutional concerns. (See Jones, supra, 463 U.S. at p. 368; see also Addington, supra, 441 U.S. at pp. 420, 425 [indefinite commitment].) Constitutional due process requirements do not prohibit involuntary indefinite commitments, provided that they are subject to adequate opportunities to determine the current status of the committed persons, ensuring that those who no longer qualify for commitment can obtain release. (Foucha, supra, 504 U.S. at p. 77; People v. Allen (2007) 42 Cal.4th 91, 103-104 [regarding mentally disordered offenders].) Thus, in Jones, supra, 463 U.S. 354, the United States Supreme Court held that due process permitted the confinement of Jones, who was civilly committed after being found not guilty by reason of insanity, to a mental institution until he regained his sanity or was no longer a danger to himself or the general public. (Id. at p. 370.) The court approved of a congressional legislative scheme whereby the length of the commitment was indefinite subject to periodic review for suitability of release, noting that it was impossible to predict when or if a mentally ill person will recover. (Id. at p. 368.)
Based on this case law, we conclude that defendant’s initial indefinite civil commitment under the amended SVPA does not violate his constitutional due process rights. The amended SVPA and the law that was at issue in Jones, supra, 463 U.S. 354, provide for indefinite civil commitment of persons who are found to be dangerous to others because of mental illness. (See id. at pp. 356-358, 368.) As in Jones, appropriate findings of dangerousness and mental illness were made to support defendant’s indefinite commitment under the amended SVPA.
We also reject defendant’s argument that release hearing procedures are unconstitutional because after a non-DMH authorized petition, the SVP must bear the burden of proving his or her right to release by a preponderance of the evidence. Defendant cites language in People v. Munoz (2005) 129 Cal.App.4th 421, 430 that is unpersuasive in light of the fact that the United States Supreme Court in Jones implicitly approved the use of this burden of proof in review hearings involving insanity acquittees. (Jones, supra, 463 U.S. at pp. 356-358.) While defendant characterizes the amended SVPA review procedures as “confusing,” we disagree; they are not particularly more confusing than those outlined in Jones, for example. (Jones, at pp. 356-358.)
Defendant also argues that the indeterminate term provision and changed burden of proof contained in the amended SVPA, as well as the lack of any stated purpose in the Act linking the indefinite commitment to the mental abnormality of an SVP, demonstrate its punitive nature, and materially distinguish it from the act evaluated in Kansas v. Hendricks (1997) 521 U.S. 346, 358 (Hendricks). Defendant further contends that the legislative history for Senate Bill 1128, which was part of a larger package of urgency legislation that encompassed other changes to the law regarding sex offenses and sex offenders, contains nothing to suggest that the bill “is for [anything] rather than punishment and control of sex offenders.” We do not agree. In Hendricks, the Kansas Act also imposed indefinite terms and required annual reviews. (Hendricks, at p. 363.) The United States Supreme Court concluded that an indefinite commitment, standing alone, did not establish that the statutes in dispute were punitive. The court found that “[f]ar from any punitive objective, the confinement’s duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. . . . [¶] Furthermore, commitment under the [Kansas] Act is only potentially indefinite. The maximum amount of time an individual can be incapacitated pursuant to a single judicial proceeding is one year. [Kan. Stat. Ann.,] § 59-29a08. If Kansas seeks to continue the detention beyond that year, a court must once again determine beyond a reasonable doubt that the detainee satisfies the same standards as required for the initial confinement. [Citation.] This requirement again demonstrates that Kansas does not intend an individual committed pursuant to the Act to remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.” (Hendricks, supra, 521 U.S. at pp. 363-364.)
The Supreme Court’s reference to Kansas Statute Annotated section 59-29a08 is particularly instructive, as the statute provides that a committed individual must have a current examination of his or her mental condition on a yearly basis. The report of this examination must be forwarded to the trial court that committed the individual, which must conduct an annual review of the committed individual's status. If the court determines “probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release, then the court shall set a hearing on the issue.” (Kan. Stat. Ann., § 59-29a08, subd. (c)(1).)
Similarly, as we have discussed, under section 6605, subdivision (a), of the amended SVPA, the Department is required to conduct an examination of the current mental condition of each committed individual at least once every year. The annual report must include consideration of “whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community.” (§ 6605, subd. (a).) The report, in the form of a declaration, is filed with the trial court that committed the individual. (Ibid.) If the Department determines that the person no longer meets the definition of an SVP, or conditional release is appropriate, the Department must authorize the committed individual to file a petition with the trial court (§ 6605, subd. (b)), and the court must then hold a probable cause hearing to determine if probable cause exists “to believe that the committed person’s diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged”; if the court so finds, it must set a hearing on the issue. (Id., subd. (c).)
Thus, under both the Kansas Act reviewed in Hendricks, supra, 521 U.S. 346, and the amended SVPA, a committed individual is evaluated on an annual basis, and a report of that evaluation is sent to the court for review. A hearing is held if there is reason to believe the committed individual should be released. The review procedures differ slightly. The Kansas Act requires the trial court to determine whether probable cause exists to release the committed individual, while under the amended SVPA the Department, if it determines the committed individual meets certain criteria, authorizes the person to file a petition for release which is then reviewed by the trial court for probable cause. We think this difference inconsequential to the question of whether the rejection of a “punitive” argument by the court in Hendricks applies to the amended SVPA, which we conclude is the case.
Second, defendant argues that, unlike the act in Hendricks, supra, 521 U.S. 346, which provided for a maximum detention of one year before the state had to establish beyond a reasonable doubt that detention should be continued, his access to the courts is reduced to a constitutionally impermissible degree under the amended SVPA. The gist of defendant’s argument is that after the initial commitment, the state no longer will be required to prove that a committed person is an SVP because, even under section 6605, subdivision (d), the state must prove beyond a reasonable doubt only that the person’s diagnosed mental disorder “remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged. ([§] 6605[, subd.] (d).) Thus, the focus is not on whether the state can prove an individual suffers from a current mental disorder, but whether an individual has changed so that he or she no longer suffers from a mental disorder.” Defendant contends that this procedure is exactly the standard that was warned about in People v. Munoz, supra, 129 Cal.App.4th at page 430. Defendant also expresses concern that section 6605, subdivision (c), “makes no provisions for someone whose diagnosed mental disorder hasn’t changed but who, by virtue of the age or ill health, is no longer at risk to re-offend,” and purportedly refers in confusing fashion to a person’s participation, or lack of participation in treatment programs. Defendant further contends that, since the only notice required to be given to a committed person is the right to petition for a conditional release, [u]nder the structure provided in [Senate Bill] 1128, a committed person may go for years, or even decades, before the state is required to shoulder the burden of proving, beyond a reasonable doubt, that the committed person currently still meets the qualifications of an SVP.”
Defendant’s arguments are unpersuasive. Again, it does not violate due process to assign the burden to the SVP to prove by a preponderance of the evidence that he is entitled to release. As we have already discussed, the Supreme Court in Jones, supra, 463 U.S. 354, upheld a similar statutory scheme (id. at pp. 365-366). Furthermore, under section 6605, subdivision (a), the DMH must report annually to the court as to whether or not the committed person currently meets the definition of a sexually violent predator. This should include consideration of such matters as whether the advancing age of, or participation in treatment programs by, an SVP have had an effect. Defendant provides no authority to establish that the notice procedures in the amended SVPA violate his due process rights. In short, defendant fails to establish any due process violation.
IV. Ex Post Facto and Double Jeopardy
Defendant also argues the changes made to the SVPA that we discuss in part III, ante, convert the statute from one concerned about commitment for treatment to one concerned about punishment, in violation of the ex post facto and double jeopardy laws. This is incorrect.
The ex post facto clause of the United States Constitution “prohibits only those laws which ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’ ” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1170-1171 (Hubbart), quoting Collins v. Youngblood (1990) 497 U.S. 37, 43.) The double jeopardy clause of the United States Constitution prohibits punishing any individual twice for the same offense. (Hendricks, supra, 521 U.S. at p. 369.) Prior to the SVPA’s amendment, the California Supreme Court rejected arguments that the SVPA implicated the ex post facto clauses of the state and federal Constitutions, finding that the statutory scheme was not punitive in nature. (Hubbart, at pp. 1170-1178.) A subsequent appellate court case (People v. Carlin (2007) 150 Cal.App.4th 322, 348), rejected a double jeopardy challenge to the SVPA based on Hubbart. We find nothing in the amendments of the SVPA contained in Senate Bill 1128 and Proposition 83 to alter the conclusion reached in Hubbart and Carlin.
As the Hubbart court pointed out, the legislative characterizations of a law play a critical role in determining whether or not a law inflicts punishment within the meaning of Collins v. Youngblood, supra, 497 U.S. at page 43. (Hubbart, supra, 19 Cal.4th at p. 1171.) The court noted, among other things, that the SVPA legislative scheme makes clear that persons eligible for commitment as SVP’s “are to be viewed ‘not as criminals, but as sick persons’ ” pursuant to section 6250. (Hubbart, at p. 1171.) Furthermore, “[c]onsistent with these remarks, the SVPA was placed in the Welfare and Institutions Code, surrounded on each side by other schemes concerned with the care and treatment of various mentally ill and disabled groups.” (Ibid.) The court also relied on the ex post facto analysis in Hendricks, supra, 521 U.S. at pages 361-368, which found the Kansas Act did not inflict punishment within the meaning of the ex post facto clause. (Hubbart, supra, 19 Cal.4th at pp. 1171-1175.) Also, as we have already noted, the Legislature stated in 1996 that its intent was that SVP’s “be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes” (Stats. 1995, ch. 763, § 1). Nothing in its amendments indicates an alteration of this intent. We conclude that defendant’s ex post facto and double jeopardy rights were not violated by the SVPA, as amended by Senate Bill 1128.
V. Equal Protection
Defendant next argues that the SVPA, as amended, violates his state and federal equal protection rights because it is materially different from other similar civil commitment schemes in California. Specifically, defendant contends that an SVP is similarly situated to persons committed as mentally disordered offenders (MDO) pursuant to Penal Code section 2962, et seq., the criminally insane (NGI) pursuant to Penal Code section 1026, et seq., and mentally ill persons who pose a threat to others pursuant to Welfare and Institutions Code section 5300 et seq. (the Lanterman-Petris-Short Act (LPS Act). This is incorrect.
“ ‘ “The concept of equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” ’ [Citation.] ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) “Similarly situated” for this purpose means similarly situated for purposes of the law challenged. (Ibid.) Individuals who are not similarly situated need not be treated equally. Therefore, the first step in equal protection analysis is to determine if the two identified groups are similarly situated for the purposes of the law that is being challenged. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199.) Our Supreme Court has already upheld the original SVPA against an equal protection challenge. (Hubbart, supra, 19 Cal.4th at pp. 1168-1170.)
Defendant argues that SVP’s are similarly situated to MDO’s, NGI’s, and persons subject to the LPS Act because “[e]ach commitment regiment has two common criteria. There must be a finding of a mental disorder coupled with a showing of dangerousness. . . . [¶] Until the passage of [Senate Bill] 1128, the SVPA stood on equal footing with these other involuntary civil commitment schemes. They all contained a common process. The commitment for each was for a discreet period of time, either one or two years. At the end of each commitment, the state bore the burden of re-proving its case in toto.” According to defendant, Senate Bill 1128 violated his equal protection rights because it “stripped from a committed person these crucial protections. It removed the safeguard of a finite term and the assurance of periodic judicial review, with the state shouldering the burden of re-proving its case.”
Defendant’s argument cannot be maintained in light of the relevant case law. Our Supreme Court recently indicated its view that persons subject to the SVPA were not necessarily similarly situated to persons subject to the LPS Act, which relates to civil commitments. The court reviewed the SVPA, as amended by Proposition 83, in In re Smith (2008) 42 Cal.4th 1251. The court determined that SVPA proceedings were not authorized regarding a person whose criminal conviction had been reversed, and who had not been retried and reconvicted. In the course of its analysis, the court observed that “the Legislature may make reasonable distinctions between its civil commitment statutes based on a showing that the persons are not similarly situated, meaning that those who are reasonably determined to represent a greater danger may be treated differently from the general population.” (Smith, at p. 1266.) In discussing whether or not persons subject to the SVPA are similarly situated to persons subject to the LPS Act, the court noted that “the Legislature could legitimately conclude in the context of the [SVPA] that any felonious criminal conduct would warrant a finding of greater danger and a separate classification. Individuals in prison with felony convictions have yet to demonstrate their capacity or willingness to keep their conduct within the bounds of the law and to break old criminal habits, and the Legislature could legitimately conclude that such felons who have prior sexually violent offenses represent a particular danger to society that justifies a separate system of civil commitment.” (Smith, at p. 1268.) We conclude from this distinction that persons subject to the amended SVPA are not similarly situated to those subject to the LPS act for the issues defendant has raised.
Our Supreme Court’s discussion of differences between the MDO Act and the SVPA before its amendment indicates that persons subject to these provisions are not similarly situated, even after the SVPA’s amendment. The fact that “[i]nvoluntary commitment under the MDO Act is directly related to the crime for which the defendant was incarcerated” distinguishes SVP’s from MDO’s. (People v. Buffington (1999) 74 Cal.App.4th 1149, 1162.) “Moreover, the MDO law targets persons with severe mental disorders that may be kept in remission with treatment (Pen. Code, § 2962, subd. (a)), whereas the SVPA targets persons with mental disorders that may never be successfully treated (Welf. & Inst. Code, § 6606, subd. (b)).” (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1222.)
As for those committed as a result of a finding of not guilty by reason of insanity, an NGI’s involuntary civil commitment is the direct consequence of a criminal act, and the commitment forms an alternative to the prison term that would have been imposed if the person had been found to have been sane at the time of the commission of the underlying crime. (See Pen. Code, § 1026.) The NGI’s mental illness must exist during prior conduct, while the amended SVPA applies only if the person poses a future risk of reoffending. (See Pen. Code, § 1026; Welf. & Inst. Code, § 6600, subd. (a)(1).) The differing definitions of those coming within the amended SVPA and the NGI commitment scheme pose different treatment requirements and may properly trigger different commitment terms and release procedures without offending equal protection of the laws.
Defendant argues that “[t]he United States Supreme Court has consistently held that, in the area of involuntary civil commitment, a state may not deny a right or protection to one group of committed persons that it confers on other groups of committed persons,” relying heavily on Baxstrom v. Herold (1966) 383 U.S. 107. Baxstrom is not applicable here. There, the Supreme Court found an equal protection violation when the state deprived a prisoner of a jury trial and finding of dangerousness when it sought to civilly commit him at the end of his prison term, in view of the fact these protections were available to other civilly committed persons. (Id. at p. 111.) However, the amended SVPA does not deprive persons subject to an initial commitment petition of a jury trial or a finding of present inability to control sexually violent behavior. (§ 6604.) Furthermore, an SVP committed to an indeterminate term has the opportunity for meaningful judicial review via annual petitions for release, provided they are not frivolous and are supported by sufficient factual allegations. (§§ 6605, 6608.)
We also disagree with defendant that we must find an equal protection violation here pursuant to In re Moye (1978) 22 Cal.3d 457, superseded by statute as stated in People v. Superior Court (Williams) 233 Cal.App.3d 477, 487-488. As we have already discussed, NGI’s and SVP’s are not similarly situated. Also, Moye is not applicable here because the amended SVPA provides for periodic departmental and judicial review of whether continuing commitment is appropriate, which were not a part of the procedures that the Supreme Court evaluated in Moye. (See In re Moye, supra, at p. 465.)
Defendant also cites People v. Hubbart, supra, 88 Cal.App.4th at pages 1217, 1219, People v. Buffington, supra, 74 Cal.App.4th at page 1156, and In re Calhoun (2004) 121 Cal.App.4th 1315, 1351-1352, for his contention that SVP’s are similarly situated to other involuntary commitment statutes. However, these cases made the determinations cited for purposes other than those debated here. Moreover, as defendant acknowledges, Hubbart found that SVP’s were not similarly situated to MDO’s or persons committed under the LPS Act for purposes of required treatment. (People v. Hubbart, supra, 88 Cal.App.4th at p. 1221.) Therefore, these cases are unpersuasive.
In short, defendant’s equal protection argument fails because it is based on the view that SVP’s are similarly situated to MDO’s, NGI’s, and persons subject to the LPS Act. We conclude that they are not.
In light of our holding, we have no need to discuss defendant’s “strict scrutiny” argument.
VI. Substantial Evidence
Defendant argues the evidence was insufficient to support the jury’s finding that he suffered from a current mental disorder and that he was likely to reoffend. He argues there was no evidence presented that he had the current condition that made him unable to control his behavior, and disagrees with the finding that he was likely to reoffend in light of his age.
In reviewing the sufficiency of the evidence to support a person's civil commitment as an SVP pursuant to the SVPA, we apply the substantial evidence standard of review. (People v. Mercer (1999) 70 Cal.App.4th 463, 465-466.) “Under this standard, the court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ‘ “isolated bits of evidence.” ’ [Citation.]” (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) We “must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) Furthermore, “[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.” (Id. at p. 314.)
A. Forfeiture
The People argue that defendant has forfeited his right to challenge the evidence as insufficient because of his refusal to be interviewed by two examining psychologists for the People, Drs. Gary Zinik and Jeremy Coles. We agree.
“The law has a strong interest in seeing to it that litigants do not manipulate the system, especially where to hold otherwise would permit them to ‘ “trifle with the courts.” ’ ” (People v. Sumahit (2005) 128 Cal.App.4th 347, 353.) “A sex offender cannot deny the state access to the workings of his mind and then claim a lack of proof that he has a ‘current’ psychological disorder.” (Ibid.) Thus, an SVP “cannot bar the state from examining his current mental condition and preserve a claim on appeal that there was insufficient evidence of his current dangerous propensities to support an SVP finding.” (Id. at p. 354, fn. 3.)
Zinik testified that he made an attempt to interview defendant in September 2005 at Atascadero State Hospital, “but he refused to be interviewed at that time.” Zinik further testified: “At that point he said that he did not want—he wanted the interview to be tape-recorded. And I think he wanted an attorney present. Let me just double-check. He said he had a right to have an attorney present, but he didn’t have an attorney at that point and that he wanted the interview tape-recorded, and I explained that I couldn’t do that because there are specific guidelines around when interviews can be tape-recorded and when they can’t that are prescribed by the [DMH]. And this particular type of interview for an extension evaluation was—I couldn’t tape-record it just under the request of the patient. If there had been a court order in place requiring the interview to be tape-recorded, I certainly would have done that, but there was none. So I was not able to tape-record it, and because of that, and because he couldn’t have his attorney present, he declined to be interviewed.”
Coles testified that he attempted to interview defendant as well, but was unable to do so because of defendant’s insistence that the interview be tape-recorded. Coles called defendant at the end of August 2005 to arrange for an interview. Coles testified that defendant said that “[h]e wanted the session tape-recorded, which I have no authorization to do without a court order, I told him.”
Defendant contends that he did not forfeit his claims on appeal about the insufficiency of the evidence because he did not refuse to be interviewed, but instead “agreed to interview and requested the interview be tape recorded. It was only after the evaluators refused this request that [defendant] declined the interview.” Defendant cites Code of Civil Procedure section 2032.530, which states, that “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.” (Code Civ. Proc., § 2032.530, subd. (a).) He argues that “[r]ecording the interview is not only statutorily authorized but it would have enhanced the reliability of the assessment process.” He contends that he “was within his rights to request the evaluator to tape record the examination. He should not be precluded for raising sufficiency of the evidence on appeal because the [DMH] and the evaluators either don’t know or don’t care about the civil discovery rules.”
Defendant’s argument is unpersuasive. While Code of Civil Procedure section 2032.530, subdivision (a) gives him the right to record a mental examination, its plain language does not indicate that he has the right to insist that DMH or its evaluators record the session at his request. Defendant fails to establish otherwise. Therefore, we conclude that his refusal to proceed with the interviews with Zinik and Coles unless they tape recorded them was just that, a refusal to participate, which results in forfeiture of his appellate claims pursuant to People v. Sumahit, supra, 128 Cal.App.4th at pages 353-354.
B. Substantial Evidence
Even if defendant had not forfeited his claims, there was substantial evidence to support the jury’s finding, regarding both the existence of a current mental disorder and of the likelihood that he would reoffend if released, the two aspects of the finding that defendant contests on appeal. Regarding the existence of a current mental disorder, Zinik testified that defendant suffered from a rare disorder, rape paraphilia, concluded that defendant had recurring fantasies and impulses involving rape or sexual assault, and opined that defendant’s history, including his 10-year span of offending and his reoffending quickly after his release from custody, indicated he “has an impairment of volitional control.” Zinik testified that defendant’s disorder is a chronic condition. Zinik testified that serial paraphiliac rapists are often well behaved in prison or in a state hospital and refrain from attacking female staff, but when released, they commit new rapes that they have planned. He further testified that, although defendant would not interview with him, there were some statements in his records that suggested he was continuing to have problems with rape thoughts and intrusive thoughts in 1997 and 1998, when he was first referred for evaluation as an SVP, and was talking to doctors. Furthermore, Zinik testified that, while there is a sex offender treatment program available at the hospital to which defendant was committed, he “has refused to participate in treatment since he’s been there, so he’s not had any sex offender treatment,” although he has participated in some other programs.
(See Stats. 2006, ch. 337, § 53.)
Similarly, Coles testified that defendant suffers from a diagnosed mental disorder, paraphilia not otherwise specified, which involves sex with nonconsenting subjects, which is characterized by recurrent tense urges of behavior toward nonconsenting adults. Coles explained that although there was nothing in defendant’s current record from the prior two years indicating recurring intensive sexual preoccupation with nonconsenting adults, defendant suffered from a chronic condition, that his disorders “are not things that disappear overnight and they are typically disorders that don’t go away without treatment,” and that Coles would not expect to see a patient acting out in a controlled environment. Coles also found it significant that defendant reoffended so soon after serving time in prison for a sex offense in the past.
Defendant contends there was an absence of evidence that he had any current mental disorder because there was no indication he had acted inappropriately for years. However, the fact that a defendant does not misbehave in a strictly controlled hospital environment does not prove he no longer suffers from a mental disorder that poses a danger to others. (People v. Sumahit, supra, 128 Cal.App.4th at p. 353.) Moreover, defendant’s refusal to participate in the sex offender treatment, which both Zinik and Coles considered important, could fairly be considered “potent evidence that he [was] not prepared to control his untreated dangerousness by voluntary means.” (Id. at p. 354.)
There was also substantial evidence of the likelihood that defendant would reoffend if released. Both Zinik and Coles concluded that defendant was in the “high risk” category for reoffending if released based on their use of an evaluation tool, the Static 99.
Each also testified about the effect of defendant’s age, which was 60 at the time of trial, on his evaluation. Zinik testified that research indicates a drop-off in sex offending at age 60. However, Zinik concluded that, because defendant was a “very dangerous, very violent sexual predator” who had “a lifelong history of sex offending,” suffered from rape paraphilia, and was healthy, his likelihood of offending was “still higher,” and that even at his age he was at least a moderate risk. He testified that although some day, defendant’s age or physical disability might drop him below the threshold of risk, “I don’t think that day has come yet. I still think he presents a serious danger and substantial risk to reoffend.”
Coles acknowledged the research showing declining recidivism in older offenders, particularly because of ill health, but also agreed that “research has yet to examine the extent to which reductions in sexual recidivism risk should be expected for older offenders who remained in good health.” He also agreed that a 2006 study concluded that “ ‘the effect of age at release on high risk subjects at age of release over 60 plus is still essentially unknown.’ ”
Defendant argues that “a jury could not reasonably have found that [defendant] posed a substantial and well founded danger of a re-offense if not kept in custody. [Defendant] is 60 years of age. He fits into the group of offenders that either never re-offends or has a less than 10% risk of re-offense. Neither of those categories constitute[s] a serious and well founded risk of reoffense.” However, both Zinik and Coles took into account his age in their evaluations of the likelihood that he would re-offend if released. Accordingly, defendant’s arguments about the insufficiency of the evidence lack merit.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.