Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR5509.
MARCHIANO, P. J.
On January 11, 2007, after amendments to the Sexually Violent Predator Act (SVPA) that changed the term of commitment from two years to an indeterminate term became effective, a jury found true allegations pursuant to former Welfare and Institutions Code section 6604 that Merton George Yahn (defendant) is a sexually violent predator (SVP). The court ordered defendant committed to the custody of the Department of Mental Health (DMH) for two years under the prior law, and defendant filed a timely appeal.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Defendant contends that the court lacked jurisdiction to extend his commitment, and that he is entitled to immediate release because amendments to the SVPA that became effective before trial deleted references to petitions to extend commitments, and did not include an express savings clause. He also argues that, if the court did have jurisdiction to proceed under the amended SVPA, this court should nonetheless deny the People’s request that the commitment order be corrected to specify an indeterminate term, because the amended SVPA cannot be retroactively applied. Defendant also contends: (1) the court’s response to a jury request for further information violated the jury’s right to a read-back of testimony and coerced a verdict; and (2) no substantial evidence supports the finding that he had a current mental disorder that made it likely he would engage in sexually violent predatory behavior if released.
We hold that the court did have jurisdiction to proceed on a petition for an extended commitment, and that the version of the SVPA in effect at the time of trial applied, including the provision for an indeterminate term of commitment. We also conclude that the court responded appropriately to the jury’s request for more information, and that the judgment is supported by substantial evidence. We therefore correct the commitment order to specify that defendant is committed for an indefinite term, and in all other respects shall affirm the judgment.
Facts
In 1984 defendant was convicted of lewd acts upon a child under the age of 14. In 1990 he was again convicted of three counts of the same offense, and sentenced to prison. He was released on parole twice, once in 1999 and again in 2000, but was returned to custody for violating parole.
In 2002, the district attorney filed a petition seeking to have defendant committed as an SVP. On November 20, 2003, after a jury trial, the court committed defendant to the DMH for two years.
On October 3, 2005, the district attorney filed the instant petition pursuant to former section 6604, seeking another declaration that defendant is an SVP and a commitment order for another two years.
The evidence at trial was as follows:
In accordance with the standard of review we summarize the facts in the light most favorable to the judgment. We reserve a more detailed discussion of the evidence as relevant to our analysis of the sufficiency of the evidence to support the finding that defendant suffers from a current mental disorder.
Dr. Jeffrey Davis testified as an expert for the People. He testified that defendant was convicted of sexually violent offenses against two or more victims. In 1979 he molested his niece on three separate occasions. In 1990 he molested an unrelated female child in the presence of her brother and he molested two of his own children. He went to prison for the 1990 offense, and in 1999, shortly after being released on parole, he began dating a woman who had children, in violation of the parole condition that he not have contact with minors. Dr. Davis diagnosed defendant with pedophilia, attracted to both males and females. Dr. Davis testified that pedophilia is a chronic lifelong condition.
Dr. Davis explained the treatment program provided for SVP’s at Atascadero State Hospital: “The first phase is purely an educational phase where the individual sits in and is told . . . what the program is about, what kinds of things are done in the program and so forth. [¶] . . . [¶] The next phase begins the actual treatment, and it’s called skills acquisition. [¶] That’s where the person begins to realize the sorts of thinking errors or cognitive distortions . . . that contributed to [the] offense . . . .” Phase three is called skills application. Phase three entails creating interventions to help the person control the behavioral chain of events that leads to offending. Phase four prepares the person for return to the community, and “phase five is outpatient treatment and supervision under a program called ConRep, conditional release and programming,” which includes monitoring by a GPS system and regular reports to a supervisor. Although progress depends on each individual, in general it takes four to five years to complete the program.
Dr. Davis had not personally encountered anyone who had completed all five phases, but he believed that five or six people had graduated from the program. He noted that 80 percent of committed SVP’s chose not to participate at all, due to fear that information revealed during treatment would be used against the patient in court, and because some believed they stood a better chance of getting released through the legal process.
Dr. Davis testified that defendant attended phase one, and phase two for about two months, and then dropped out. Defendant told Dr. Davis he did not like the program because people bickered with each other, there was no proof the program would help him, and he did not believe he had a mental disorder related to sex offenses. He also stated he dropped out on legal advice. In Dr. Davis’s opinion, defendant was likely to engage in sexually violent criminal behavior if released. Defendant had received a score of four on the Static 99, which correlates to a 36 percent risk of reoffending within 15 years. Other factors that increased the risk include the degree of his sexual deviance, the fact that defendant dropped out of the sex offender treatment program, his intimacy deficits, his lack of sexual self-regulation, and poor cooperation with supervision, as reflected in his 1999 parole violation.
Dr. Jack Vognsen testified as the People’s second expert. He diagnosed defendant with paraphilia with sexual attraction to nonconsenting persons, pedophilia and exhibitionism. He also opined that defendant’s mental disorders made him likely to engage in sexually violent predatory behavior. As an example of defendant’s lack of insight into his sexual problems, Dr. Vognsen testified that defendant told Dr. Vognsen he chose not to participate in the sex offender treatment program because it was like treating a minor headache with radiation. Dr. Vognsen testified that about 20 percent of committed SVP’s participated in the treatment program, four to five have been released, and one or two of them had been returned to custody. Vognsen was not aware of any study that measured the success rate of the treatment program. An earlier version of the program in the 1980’s had shown no effect, but similar programs to the one now offered had been “shown to reduce recidivism by about a third in some populations.”
Defendant offered the testimony of Dr. Jules Burstein. Dr. Burstein concluded that defendant met the first criterion of the SVPA because he had two qualifying predicate convictions, but found no evidence that defendant currently suffered from pedophilia or paraphilia. Dr. Burstein testified that the tests he administered did not indicate that defendant had any “bona fide disorder of the sort that requires treatment.” With respect to the diagnosis of paraphilia, Dr. Burstein explained that he saw nothing defendant had “done in the sexual realm that would have any relationship to . . . very peculiar and obviously abnormal sexual practices.” With respect to pedophilia, Dr. Burstein relied upon defendant’s statement that he had not had sexual urges towards children in 15 years. Dr. Burstein reviewed the record of the period when defendant was in Coalinga and Atascadero State Hospitals and found no indication of an ongoing interest in children, such as possession of pornography or obscene letters. Dr. Burstein also cited the fact that defendant had not acted on such urges in the last 17 years, and noted that defendant’s heterosexual contact with adult women was inconsistent with pedophilia.
Several staff technicians testified to defendant’s positive behavior while in DMH facilities. Defendant’s sister testified that he had been devastated by the death of his mother in 1986, and was remorseful and apologized to his children for involving them in the events underlying the 1990 conviction. She had observed defendant try to avoid children while on parole.
The jury found the allegations of the petition to be true and the court ordered defendant committed to the DMH for two years. The DMH notified the court of a possible error in the commitment term. At a hearing on the issue, the prosecutor explained that he had not amended the petition to seek an indeterminate term because the parties had discussed the possible changes in the law when trial had been delayed for various reasons. He stated he had agreed that he would not amend the petition to seek an indeterminate term under the amended SVPA. The court cautioned that the Court of Appeal might find “some legal problems with that,” but agreed not to amend the commitment order to provide for an indeterminate term.
Analysis
I.
Jurisdiction and Applicable Commitment Term
Prior to the 2006 amendments to the SVPA, a person determined to be an SVP was committed to the custody of the DMH for a period of two years, and could not be kept in custody after the initial commitment expired unless a new petition to extend the commitment was filed. (Former § 6604; Stats. 1995, ch. 763, § 3, p. 5925.) Former section 6604.1 specified when the initial two-year term of commitment and subsequent terms of extended commitment began. (Stats. 1998, ch. 19, § 5.)
On September 20, 2006, the Governor signed the Sex Offender Punishment, Control, and Containment Act of 2006, Senate Bill No. 1128. (Stats. 2006, ch. 337.) Senate Bill No. 1128 went into effect immediately as urgent legislation. (Stats. 2006, ch. 337, § 62.) Among other things, it amended section 6604 to specify that a person found to be an SVP “shall be committed for an indeterminate term.” (Stats. 2006, ch. 337, § 55.) All references to an extended commitment in sections 6604 and 6604.1 were deleted. (Stats. 2006, ch. 337, §§ 55 & 56.) At the November 7, 2006 general election, the voters approved Proposition 83, an initiative measure, that, like Senate Bill No. 1128, changed the term of commitment to an indeterminate term. Proposition 83 also deleted most references to an extended commitment, but the version of section 6604.1 as amended by Proposition 83 did retain one reference to extended commitments.
Although Senate Bill No. 1128 amended section 6604.1 to delete all references to extended commitments, that language was superseded by Proposition 83, which amended section 6604.1 as follows: “(a) The indeterminate term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section. [¶] (b) The person shall be evaluated by two practicing psychologists or psychiatrists, or by one practicing psychologist and one practicing psychiatrist, designated by the State Department of Mental Health. The provisions of subdivisions (c) to (i), inclusive, of Section 6601 shall apply to evaluations performed for purposes of extended commitments. The rights, requirements, and procedures set forth in Section 6603 shall apply to all commitment proceedings.”
Defendant was initially committed as an SVP in 2003. The instant petition to extend his commitment was filed in 2005, but trial did not commence until after the amendments made to the SVPA in 2006 became effective. Defendant contends: (1) The court had no jurisdiction to proceed on the petition and he is entitled to immediate release because the 2006 amendments repealed provisions for petitions to extend a commitment under the former version of the SVPA; and (2) If the court had jurisdiction to proceed, the amendment to section 6604 providing for an indeterminate term did not apply, and he was only subject to the two-year term under the version of the SVPA in effect at the time the petition was filed.
1. Jurisdiction
Defendant contends that the deletion of any reference to petitions for an extended commitment in the SVPA, as amended by Senate Bill No. 1128 and Proposition 83, repealed these provisions. He argues that in the absence of an express savings clause specifying how the amended law was to apply to persons who had been committed as SVP’s for a two-year term, the court had no jurisdiction to proceed, and he is entitled to immediate release.
Defendant relies upon the common law principle “that when a pending action rests solely on a statutory basis, and when no rights have vested under the statute, ‘a repeal of such a statute without a saving clause will terminate all pending actions based thereon.’ ” (Governing Board v. Mann (1977) 18 Cal.3d 819, 829.) He argues that a savings clause cannot be implied because the predominant intent underlying the 2006 amendments was to reduce or eliminate SVP trials. In light of that purpose, he argues it is reasonable to conclude the Legislature and the voters intended to release potentially dangerous SVP’s committed under the prior law to save the cost of litigating their status as an SVP at the expiration of the two-year commitment term.
The same argument has been squarely rejected by the Third District Court of Appeal in Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, review denied February 27, 2008 (Bourquez); the Fourth District in People v. Shields (2007) 155 Cal.App.4th 559, 563-564, review denied December 19, 2007 (Shields); the Fifth District in People v. Carroll (2007) 158 Cal.App.4th 503, 508-510, review denied April 9, 2008 (Carroll); and the Sixth District in People v. Whaley (2008) 160 Cal.App.4th 779, 794-796, review denied June 18, 2008. In each of these cases, the court determined that, despite the absence of an express savings clause, a savings clause could be implied.
In Bourquez, the court determined that when enacting the 2006 amendments, the Legislature and voters unequivocally intended involuntary commitments under the SVPA to continue. The purpose of the change to an indeterminate term and other procedures for postcommitment release was not simply a cost-saving measure to eliminate or reduce the number of SVP trials, but rather was to “ ‘protect society and the system from unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person.’ ” (Bourquez, supra, 156 Cal.App.4th at p. 1287, italics added.) The overall purpose of all the penal and civil changes enacted by Senate Bill No. 1128 and Proposition 83 was “to strengthen punishment and control of sexual offenders.” (Ibid., italics added.) The court reasoned: “By providing for indeterminate terms of commitment, it cannot reasonably be concluded that the voters, by passing Proposition 83, or the Legislature in enacting [Senate Bill No. 1128], intended to release those previously committed as SVP’s. Indeed, such a conclusion would ‘ascribe to the Legislature [and voters] an intent that the very purpose of the amendment demonstrates could not have existed.’ [Citation.]” (Bourquez, at p. 1287; see also Shields, supra, 155 Cal.App.4th at p. 563 [“act of changing SVP terms from two years to indeterminate terms—thereby dispensing with the requirement that the People petition for commitment every two years—conveys an unequivocal intent to continue the confinement of persons adjudicated to be SVP’s”].) “ ‘To imply a saving clause in such a situation is simply to give effect to the obvious intent of the Legislature [and voters].’ [Citation.] [¶] . . . Having ascertained the intent of the Legislature and the voters was to continue and strengthen the provisions for commitment of those found to be SVP’s, we find an implied saving clause to permit proceedings to extend commitments. The superior court has jurisdiction to proceed on the petitions.” (Bourquez, at pp. 1287-1288.) We find this reasoning persuasive, and adopt it as our own.
3. The applicable commitment term
Defendant next argues that if the court did have jurisdiction to proceed, it properly committed him only for a two-year term because the amendments changed only an initial commitment to an indeterminate term, whereas his commitment is an extended commitment. In support of this contention, he notes that section 6604.1 specifies that “[t]he indeterminate term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment” (italics added). In reliance upon the word “initial,” defendant reasons that the indeterminate term does not apply to a person found to be an SVP pursuant to section 6604, who had previously been committed to a two-year term under the prior law. Yet, as amended, section 6604 does not draw a distinction between an initial commitment and an extended commitment of a person who had previously been committed as an SVP for a two-year term. It simply provides a person determined beyond a reasonable doubt by a court or jury to be a sexually violent predator “shall be committed for an indeterminate term.” We therefore find nothing in the plain language of this section to support defendant’s suggestion that the indeterminate term provided for in section 6604 does not apply to a person who is found by a jury to be an SVP pursuant to section 6604 after a two-year commitment term under the prior law expires.
Nor is it a due process violation to apply the version of the law that was in effect at the time of the trial and judgment, which provided only for an indeterminate term. Application of the 2006 amendments to the pending petition is not a retroactive application of the law. Those courts that have considered the question, both in the context of petitions for an initial commitment under the SVPA, and petitions for extending the commitment of a person whose two-year term under the prior version of the SVPA is about to expire, have concluded that the applicable law is the law in effect at the time of trial and judgment. Therefore, application of the amended SVPA to petitions to extend a commitment not brought to trial until after the new law went into effect is not an impermissible retroactive application of the law. (See Carroll, supra, 158 Cal.App.4th at pp. 512-515; Bourquez, supra, 156 Cal.App.4th 1275.)
In Bourquez, the court held that the law in effect at the time of trial and judgment controls, and that applying the amended SVPA “to pending petitions to extend commitment under the SVPA to make any future extended commitment for an indeterminate term is not a retroactive application.” (Bourquez, supra, 156 Cal.App.4th at p. 1289.) Application of a law is retroactive “ ‘only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date.’ ” (Id. at p. 1288, original italics.) Application of the 2006 amendments to a pending petition to extend a commitment is not retroactive because “[i]n determining whether someone is an SVP, . . . the person’s mental state will be determined . . . at the time of commitment. While past qualifying sex crimes are used as evidence in determining whether the person is an SVP, a person cannot be so adjudged ‘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.’ ” (Id. at p. 1289.) “The requirement that a commitment under the SVPA be based on a currently diagnosed mental disorder applies to proceedings to extend a commitment. Such proceedings are not a review hearing or a continuation of an earlier proceeding. [Citation.] Rather, an extension hearing is a new and independent proceeding at which the petitioner must prove the person meets the criteria of an SVP. [Citation.] The petitioner must prove the person is an SVP, not that the person is still one. [Citation.] . . . [¶] Because a proceeding to extend commitment under the SVPA focuses on the person’s current mental state, applying the indeterminate term of commitment . . . does not attach new legal consequences to conduct that was completed before the effective date of the law.” (Ibid.; see also Carroll, supra, 158 Cal.App.4th at p. 514 [“[t]he 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 . . . petition is filed”].) We find the reasoning of these cases to be persuasive and adopt it as our own.
For the foregoing reasons the court erred in committing defendant for a two-year term because, at the time of trial and judgment, section 6604 specified that a person found to be an SVP “shall be committed for an indeterminate term.” The only remaining issue is whether this court may correct the error. Defendant argues the error is waived or invited because the prosecutor agreed not to seek an indeterminate term when it appeared that continuance of trial might subject him to the new law, and asked the court not to correct the order when the DMH questioned it. We find that the erroneous commitment order is analogous to an unauthorized sentence, and therefore may be corrected by this court despite the prosecutor’s agreement not to seek an indeterminate term, and cooperation with the defense request that the trial court not correct the term after the DMH questioned it. (See People v. Scott (1994) 9 Cal.4th 331, 354 (Scott) [“the ‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal”].) Even when counsel concedes at trial that an unauthorized sentence is proper, the error may be corrected on appeal because “the imposition of a sentence for which there is no statutory authority is jurisdictional error.” (People v. Davis (1981) 29 Cal.3d 814, 827, fn. 5.) “[L]egal error resulting in an unauthorized sentence commonly occurs where the court violates mandatory provisions governing the length of confinement.” (Scott, at p. 354.) Moreover, even in the absence of a People’s appeal, such errors may be corrected by the Court of Appeal sua sponte, or when raised by the People in response to the defendant’s appeal. (People v. Purata (1996) 42 Cal.App.4th 489, 498.) Here, the commitment order specifying a two-year term is the equivalent of an unauthorized sentence because, as of the time of trial and entry of the commitment order, the SVPA provided only for commitment to an indeterminate term, and there was no longer any statutory authority for commitment to a two-year term. Thus, whether or not the prosecutor consented or agreed not to seek it, the court only had statutory authority to commit defendant for an indeterminate term.
Defendant suggests in his reply brief that correction of the commitment order would violate his due process right to a fair trial, because he consented to the continuance only with the understanding he would not be subject to the new law. Yet, he does not identify how the failure to amend the petition to seek an indeterminate term, or the unauthorized agreement that he would not be subject to it, deprived him of adequate notice and opportunity to defend at the trial. The “allegations against which [the defendant] needed to be prepared to defend—most importantly, that he continued to have a current diagnosable mental disorder, by reason of which he was likely to engage in sexually violent criminal behavior in the future—” would have been “unaffected by the amendment.” (Carroll, supra, 158 Cal.App.4th at p. 512 [court rejects contention that late amendment to SVP petition seeking an indeterminate term deprived defendant of adequate notice and opportunity to defend because amendment did not affect substantive allegations, strategy or presentation of defense].) Nor does he even assert that, had he known the prosecutor’s agreement not to seek an indeterminate term would be unenforceable, his trial strategy would have been different. Moreover, for the reasons we have stated, ante, he had no due process right not to have the law in effect at the time of trial and judgment apply to him, since the application of the amendments did not increase his liability for, or the consequences of, any act completed before the change in the law became effective.
We note that, according to the prosecutor, trial was continued due to the absence of available courtrooms, unavailability of experts and illness of defense counsel. Trial could have been continued even without defendant’s consent for any of the reasons the prosecutor cited.
We therefore shall direct the superior court to prepare a corrected commitment order providing, in accordance with section 6604, that defendant is committed for an indeterminate term to the custody of the State Department of Mental Health.
II.
Response to Jury Inquiry
During deliberations the jury sent a note to the judge making the following inquiry: “We would like the definition of the phase program [and] the success rate of the phase program. How long was Mr. Yahn in Atascadero.” The court discussed the note with defense counsel and the prosecutor. They agreed to reopen the evidence to submit a stipulation as to the dates defendant was at Atascadero. The court summarized the remainder of their agreement as follows: “[T]he attorneys weren’t sure whether the jury was asking for a description of the phase program, which I’m told was given as part of Dr. Davis’[s] testimony, or whether they want to know what any witness said about . . . any part of the phase program. . . . [¶] So the agreement basically was that I would inquire what specifically they’re asking for and have them give me a further note about that. [¶] With regard to the success rate . . . of the phase program, apparently there was some [testimony] about how many people have been released from the program and how many of those have returned to the program, but there’s no evidence as to the total number of people in the program. [¶] So there would be no way of judging so-called success rate because the denominator is missing from the evidence and nobody knows what the denominator is, at least there wasn’t any evidence about that.”
A different judge presided over these proceedings because the trial judge was unavailable.
After the jury was brought in the court responded to their inquiry as follows:
“THE COURT: I’ve discussed your note with the attorneys, and I’ve got some answers and some further questions of the jury.
“First of all, I’m going to start with the last question first, the last question is how long was [defendant] in Atascadero.
“My understanding is that the attorneys have agreed that we will for a very limited purpose reopen the case to present what’s referred to as a stipulation of the attorneys.
“Is that so, counsel?
“[DEFENSE COUNSEL]: Correct.
“[DISTRICT ATTORNEY]: Yes, Your Honor, so stipulated.
“THE COURT: It’s ordered then that the case—the trial is reopened for the limited purpose of providing a stipulation.
“Who would like to provide a stipulation?
“[DISTRICT ATTORNEY]: I would be happy.
“The stipulation was that Mr. Yahn was admitted to Atascadero State Hospital December 5th, 2003, and was transferred from there to Coalinga State Hospital on September 15th, 2005.
“THE COURT: That stipulation accepted?
“[DEFENSE COUNSEL]: So stipulated, Your Honor.
“THE COURT: Whenever the lawyers agree to certain facts it’s what we call a stipulation, those facts are deemed to be conclusively proven and part of the evidence. So you now have that additional evidence.
“It’s also been stipulated that there won’t be any further instruction because this additional evidence would not change any of the instructions that Judge Mann gave to you.
“So to the extent of the facts recited in the stipulation those are now conclusively proven and part of the evidence. That should answer the last question.
“The first question is that you would like the definition of the phase program.
“My understanding from what I’ve been told is that there was testimony concerning the description of the phase program offered during the testimony of Dr. Jeffrey Davis and that there was some mention of the phase program or at least part or parts of the phase program by other witnesses.
“So the issue there is normally we don’t answer questions like that directly because as you’ve just heard it requires us to reopen the case and present additional evidence, which is generally not done. Usually when the evidence closes it’s done and over with.
“So in order for me to give you—literally give you the definition of the phase program I would have to supply you with additional evidence. Again, we normally don’t do that and we’re not going to be doing that with regard to that.
“However, you do have the right as you’ve been told to have portions of the testimony reread.
“So if you’re still desirous of information about the phase program then I would need further definition from you as to whether you want testimony reread, and if so whether you want testimony that describes the phase program or all evidence about the phase program that was offered.
“So after your break then, if you would, if you still want that information, have a further note prepared and get that out to the Court through the bailiff and we’ll take care of it in that fashion.
“The third and last part of the note deals with the success rate of the phase program. Again, the first caveat is we don’t supply additional evidence after the trial is over with; but moreover, I’m told by the attorneys that in terms of a success rate, which is usually a ratio or a percentage or something like that, there was simply no evidence about that.
“So it’s impossible to answer that question in any fashion, including having testimony reread.
“Also, that precise language of that question would tend to call for a subjective evaluation, the word success means many things to many different people. I’m told by the attorneys that there really wasn’t any testimony about a, quote, success rate, close quote.
“So for that reason I’m really not able to answer that one.
“Okay. So if you still desire information about the definition of the phase program, if you’ll give us a further note clarifying what you’re looking for, what kind of testimony you’re looking for, then we would be happy to supply that.”
The jury did not request any read-back or ask any further questions. It rendered its verdict later that day.
Defendant contends that the court’s response violated Penal Code section 1138 by refusing to read back testimony crucial to the defense, and coerced a verdict by implying that the information the jury sought was not important. He asserts that it was obvious that the jury was asking for a read-back of Dr. Davis’s testimony describing the phase program, and that by asking the jury for clarification of whether and what testimony it wanted read, the court implied that the information was unimportant, and that the jury should reach a verdict without it.
With respect to the request for the “success rate” of the phase program, defendant asserts the court was hypertechnical in telling the jury it could not answer that question without reopening the evidence. He suggests the only reasonable interpretation of the note was that “the jury wanted an estimate about the success rate of the phase program, not an exact percentage, using the correct denominator,” and that the jury could have derived this information from a read-back of testimony concerning the number of people who completed the program and were returned to custody.
Defense counsel actively participated in discussions about how to respond, reached an agreement with opposing counsel and the court, and then did not raise any objection when the court responded. “When a trial court decides to respond to a jury’s note, counsel’s silence waives any objection under [Penal Code] section 1138. [Citation.] ‘The failure of defendant’s counsel to object or move for a mistrial upon the court frankly informing him of the court’s action might also be construed to be a tacit approval. Approval of the court’s action, even though it might have been a technical violation of section 1138 of the Penal Code, cures any possible error.’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 729.)
Defendant acknowledges that counsel may have waived the error, but argues that by doing so he rendered ineffective assistance of counsel. Since we find the court’s interpretation of the note and response was appropriate, counsel did not render ineffective assistance by failing to object.
In any event, the contention would fail on the merits. The court was not hypertechnical in its interpretation of the jury inquiry. The reasonableness of its interpretation is supported by the fact that defense counsel and the prosecutor also were confused about exactly what information the jury sought, whether it could be answered by stipulation or a read-back of testimony, and if it were the latter, precisely what testimony would be responsive. The court did not imply that the information the jury sought was irrelevant. Rather, it carefully laid out for the jury the possible interpretations of their inquiry, and responded accordingly. With respect to the request for a definition of the program, the court correctly informed the jury that there was no such evidence, but noted that there was testimony describing the phases, and that several witnesses had referred to the phase program. It offered to have the testimony describing the phases of the program reread or, if the jury felt it would be helpful, the court also offered to identify any testimony that referred to the phase program at all and have that reread. Nor was it coercive, or a rebuke of the jury, to ask it to refine its request if, after hearing the court’s response it was “still desirous of information about the phase program.” Since the initial inquiry was unclear, it was entirely reasonable to ask the jury first to confirm that it wanted testimony reread, and to clarify the scope of the read-back it desired. Without further refinement, everyone’s time could have been wasted by a read-back of testimony that was unnecessary, nonresponsive or overbroad.
With respect to the request for the success rate of the program, the court reasonably interpreted the request, and correctly informed the jury that there was no evidence of a success rate. In fact, according to Dr. Vognsen, there was no study that measured the success rate of the current treatment program for SVP’s.
We conclude that the court’s response did not violate Penal Code section 1138, nor did it coerce a verdict.
III
Sufficiency of Evidence
Defendant finally contends that the judgment is not supported by any evidence that he suffered from a current diagnosed mental disorder that made it likely that he would engage in sexually violent behavior if released. (§ 6600, subd. (a)(1).) In reviewing the sufficiency of the evidence “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.) “In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment.” (People v. Poe (1999) 74 Cal.App.4th 826, 830; see also People v. Sumahit (2005) 128 Cal.App.4th 347, 352.)
Two experts testified that defendant met the statutory criteria of an SVP. Dr. Davis diagnosed defendant with pedophilia, attracted to both males and females. Dr. Davis explained that the diagnosis of pedophilia requires intense urges, thought, or behaviors related to sexual contact with children that lasts for six months or longer and that the disorder is chronic and lifelong. He observed that the span of 10 years between the offenses in 1979 and 1990 indicated that defendant’s attraction to children lasted for well over six months. Dr. Davis also did not credit defendant’s denial of any current attraction to children because “[o]ne of the things I look for is persistence, in other words a pattern of an offense, apprehension for the offense, sanction for the offense, release into the community, and in spite of that history sufficient urges to reoffend; and in this case we have that pattern. [¶] We also have a pattern where the second offense cluster is not a single isolated incident with one victim, it’s a repeated series of behaviors with multiple victims in a way that would present significant risk of getting caught; but that didn’t deter the behavior.” Dr. Vognsen diagnosed defendant with paraphilia with sexual attraction to nonconsenting persons, pedophilia and exhibitionism. Both doctors also opined that his mental disorder made him likely to engage in sexually violent predatory behavior if released, and explained the basis for their opinions.
Defendant argues that the expert opinions of Dr. Davis and Dr. Vognsen do not constitute substantial evidence to support the verdict for a variety of reasons. First, defendant objects that these two experts testified about details of the predicate offenses and included these details in their reports. He argues that details of the predicate offenses were irrelevant in light of defendant’s stipulation at the beginning of trial that he was convicted of two sexually violent offenses, and were more prejudicial than probative. This argument is not directed to the sufficiency of the evidence to support the verdict, but rather to its admissibility at trial, yet the record citations defendant provides do not include any objection to this evidence. In any event, even if an objection had been interposed, it would have been overruled. The details surrounding the nature and circumstances of the predicate offenses were relevant and admissible as part of the factual basis for their current diagnosis of pedophilia and to support their opinion on the issue of the likelihood that defendant would engage in sexually violent conduct if released. As Dr. Davis explained, the circumstances of these offenses and the timing supported his diagnosis of a current mental disorder because the time span between the first offenses in 1979 and the more recent offense in 1990 illustrated that defendant’s attraction to children was sustained over a very long period of time, and pedophilia is a chronic and lifelong mental disorder. Dr. Davis also relied upon the pattern and details of the predicate offenses, including that the more recent offense involved repeated behavior with multiple victims in circumstances presenting a high risk of being caught, to support his opinion that the attraction to children persisted to the present, despite defendant’s denial of any current attraction to children. He explained that the fact defendant reoffended in 1990 despite having been caught and punished once before, and under circumstances presenting a high risk of being caught, showed the strength of the urges defendant experienced and his inability to control them. The 10-year span between the first and second offenses also demonstrated that defendant’s pedophilia was chronic. Dr. Davis also relied upon these factors in assessing the likelihood that defendant would again engage in sexually violent behavior if released. In sum, the details to which the experts testified were not particularly inflammatory, and any risk of prejudice was outweighed by the probative value of this evidence on the key issue of diagnosis of a current mental disorder and likelihood of reoffending. (Evid. Code, § 352.)
Defendant next contends that Dr. Davis’s and Dr. Vognsen’s diagnoses of current mental illness placed too much weight on his past criminal conduct, and failed to take into account the effect of passage of time on the questions whether defendant still suffered from pedophilia, and whether it was likely he would engage in sexually violent behavior if released. Specifically, he asserts the opinions of the two experts were based almost entirely upon predicate offenses that took place when he was 17 or 18 years old, and again when he was 28 or 29, yet he was 46 years old at the time of trial, and had not reoffended. He argues neither expert took into account the effect of age, or the passage of time without offending since his last conviction. He also criticizes Dr. Davis’s reliance upon his failure to participate in the phase program as a factor in assessing the likelihood he would engage in sexually violent behavior because only a few people had completed the program since 1996, and in defendant’s view, participation in the program did not present any meaningful opportunity for release. Defendant argues that dropping out of the phase program merely reflects defendant’s rational conclusion that participation was futile, not a lack of insight into his problems. He asserts that only his own expert, Dr. Burstein, gave sufficient weight to the fact that his offenses were committed when he was young, and to the fact that while in custody he did not possess pornography, obscene letters, or other indicia of an ongoing sexual interest in children.
Dr. Vognsen did point out that although the last predicate offense was committed 17 years prior to trial, defendant, as recently as 1999, violated parole by “establish[ing] a relationship with a woman who has young children, which is exactly what had happened immediately before the events of 1990.” Dr. Vognsen was referring to a report by defendant’s girlfriend in 1999 that he was in her home while children were present and showed an interest in her son, and a second incident involving possession of material “designed to stimulate sexual arousal.” Dr. Davis also recognized that recidivism declines with age and that “at a certain point after age 60 in particular there’s a well-documented decrease in reoffense and therefore in risk.” Defendant, however, was not over 60 at the time of trial; he was 46.
Instead of demonstrating the absence of substantial evidence, all of the foregoing arguments go to the relative weight and credibility of Dr. Davis’s and Dr. Vognsen’s opinions, or urge different inferences should have been drawn from the facts they relied upon in diagnosing him and assessing the likelihood that he would reoffend. Also, contrary to the substantial evidence standard, defendant’s argument asks this court to credit Dr. Burstein’s conflicting testimony and opinion, despite the fact that the jury’s verdict demonstrates it did not credit Dr. Burstein’s opinion. This, of course, we cannot do. (People v. Poe, supra, 74 Cal.App.4th at p. 830.)
We conclude that the testimony of Dr. Davis and Dr. Vognsen constitutes substantial evidence that defendant had a current diagnosed mental disorder that made him a danger to others and likely that he would engage in sexually violent behavior if released, and the other statutory criteria defining an SVP.
Conclusion
The superior court is directed to prepare a corrected commitment order providing, in accordance with section 6604, that defendant is committed for an indeterminate term to the custody of the State Department of Mental Health. In all other respects, the judgment is affirmed.
We concur: SWAGER, J., MARGULIES, J.