Opinion
B289594
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. ELI TONY DELRAY, Defendant and Appellant.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Jason Tran and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. ZM001979) APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Affirmed. Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Jason Tran and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Eli Tony Delray appeals from a judgment of commitment declaring him a sexually violent predator (SVP) pursuant to Welfare and Institutions Code section 6600 et seq., known as the Sexually Violent Predator Act (SVPA). Defendant contends that the judgment must be reversed because the petition, which was initially filed in 1996, was untimely. Defendant further asserts that the judgment is not supported by substantial evidence. Finally, defendant argues that one of his alleged predicate offenses did not qualify as a sexually violent offense under the SVPA in effect at the time the prosecution filed the initial petition. We affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. PROCEDURAL BACKGROUND
A. SVPA
"The SVPA took effect on January 1, 1996. (Stats. 1995, ch. 763, § 3.) It provides for the involuntary civil commitment of certain offenders, following the completion of their prison terms, who are found to be SVPs because they have previously been convicted of sexually violent crimes and currently suffer diagnosed mental disorders which make them dangerous in that they are likely to engage in sexually violent criminal behavior. (§ 6600 et seq.)
"One's initial or extended commitment under the SVPA depends upon his or her status as an SVP. An SVP is 'a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.' (§ 6600, subd. (a)(1).) '"Diagnosed mental disorder" includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.' (Id., subd. (c).)" (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902-903.)
On November 7, 2006, the voters enacted Proposition 83, commonly referred to as Jessica's Law, which amended the SVPA such that an SVP is defined in part as "a person who has been convicted of a sexually violent offense against one or more victims." (People v. Carlin (2007) 150 Cal.App.4th 322, 328, fn. 2; § 6600, subd. (a)(1).)
"A commitment petition may be filed in the superior court only after a prisoner is first screened by the Department of Corrections and Rehabilitation, and then by two [Department of State Hospitals]-appointed independent evaluators who agree the individual is an SVP. [Citation.] Once validly filed, the petition must thereafter be dismissed unless, after a hearing, the court finds '"there is 'probable cause' to believe that the person named in the petition is likely to engage in sexually violent predatory criminal behavior upon release. . . . However, if the court finds [such] probable cause . . . , the court orders a trial to determine whether the person is an SVP . . . ."' [Citations.]
"In an SVP trial, the People must prove beyond reasonable doubt, among other things, that because of a diagnosed mental disorder affecting the person's volitional or emotional control, '"it is likely he or she will engage in sexually violent behavior" if released.' [Citations.] 'Likely,' in this context, does not mean more likely than not; instead, the standard of likelihood is met 'when "the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community."' [Citations.]" (People v. Shazier (2014) 60 Cal.4th 109, 126; § 6601.) B. Prosecution Files Petition
On April 15, 1996, the former Board of Prison Terms (Board) and the Department of Corrections and Rehabilitation referred defendant to the former Department of Mental Health for SVP evaluation. At that time, defendant was on parole from a November 19, 1993, conviction for indecent exposure under Penal Code section 314, subdivision (1), with prior convictions for lewd and lascivious conduct with a child under the age of 14 years pursuant to Penal Code section 288. Defendant was in custody on a parole revocation and was eligible for release on May 21, 1996.
The Board of Prison Terms is now referred to as the Board of Parole Hearings. (Pen. Code, § 5075, subd. (a).) The Department of Mental Health is now the Department of State Hospitals. (See People v. Gonzales (2013) 56 Cal.4th 353, 360.)
On May 6, 1996, two psychologists from the Department of Mental Health evaluated defendant and issued summaries dated May 17, 1996, and May 20, 1996, opining that defendant met the criteria for designation as an SVP.
On May 21, 1996, defendant's parole release date, the Board held a hearing pursuant to California Code of Regulations, title 15, section 2600.1 (Regulation 2600.1), and determined there was probable cause to believe that defendant met the criteria for being designated an SVP and could be held in custody for an additional 45 days, until July 5, 1996.
The version of Regulation 2600.1 that was in effect when defendant was first placed on hold provided in pertinent part: "(a) The purpose of this section is to provide a mechanism for screening parolees in revoked status and inmates under the Sexually Violent Predator Program (. . . section 6600 and following, chapter 763, statutes of 1995) where exceptional circumstances preclude an earlier evaluation and judicial determination of probable cause (. . . section 6602) prior to return to custody or release on parole. [¶] . . . [¶] (c) Board . . . probable cause hearings shall be conducted by one commissioner or one deputy commissioner. If the board finds probable cause that an inmate or parolee in revoked status is a sexually violent predator as defined in . . . section 6600, the parolee shall be held up to a maximum of 45 days in a facility under the jurisdiction of the Department of Mental Health pending a superior court probable cause hearing pursuant to . . . section 6602. Probable cause to place a 45 day hold exists when the inmate or parolee in revoked status is found to meet all the following criteria: [¶] (1) Some evidence the person committed a sexually violence offense by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person which resulted in a conviction and sentence for one or more felony violations . . . . [¶] (2) Some evidence the person has a diagnosed mental disorder that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others. [¶] (3) Some evidence that the acts in subdivision (1) of this section were directed toward a stranger or individual with whom a relationship has been established or promoted for the primary purpose of victimization." (Cal. Reg. Notice Register 96, No. 23.)
On May 29, 1996, the Department of Mental Health requested that the Los Angeles County District Attorney's Office (District Attorney) file a civil commitment petition.
On June 18, 1996, the District Attorney filed a petition to commit defendant as an SVP. The District Attorney alleged that defendant had been convicted: (1) on August 21, 1974, of two counts of rape and one count of gross sexual imposition (the 1975 Ohio conviction); and (2) on February 24, 1987, of one count of lewd and lascivious acts upon a child under 14 years of age, in violation of Penal Code section 288 (the 1987 California conviction). On August 6, 1999, the District Attorney amended the petition to allege that defendant had sustained the 1975 Ohio conviction in Ohio, on March 20, 1975; and that he had sustained the 1987 California conviction on January 29, 1987, and had been convicted of three counts of lewd acts upon a child under the age of 14 years. C. Defendant Moves to Dismiss Petition
On April 28, 2000, defendant moved to dismiss the petition, arguing that the prosecution lacked authority to place the 45-day hold and had improperly held him past his parole release date. The District Attorney opposed the motion and the trial court denied it.
On May 6, 2008, defendant again moved to dismiss the petition, arguing that he had been improperly held beyond his parole date. The trial court again denied the motion. Defendant, however, does not expressly challenge this ruling, contending instead that the trial court erred in denying the motion he filed in 2000.
On May 25, 2000, the trial court found probable cause to believe that defendant met the criteria for designation as an SVP. D. SVPA Trial
On October 11, 2006, the District Attorney and defendant's counsel stipulated that the case would be tried under the SVPA as it existed before the passage of Senate Bill No. 1128 on September 20, 2006. (See Stats. 2000, ch. 643, § 1 [former § 6600]; Stats. 2000, ch. 420, § 3 [former § 6604].)
On January 18, 2018, the court trial commenced. On February 15, 2018, the court issued its decision finding defendant to be an SVP and committing him to the custody of the Department of State Hospitals pursuant to section 6604.
On April 9, 2018, defendant timely filed his notice of appeal.
III. DISCUSSION
A. Timeliness of Petition
Defendant contends that the trial court erred in denying his motion to dismiss the petition on the grounds that it was untimely under the SVPA. "We review questions of statutory interpretation de novo." (Christensen v. Lightbourne (2019) 7 Cal.5th 761, 771-772.)
As an initial matter, it is not clear that the dismissal of a petition is the appropriate remedy for the untimely filing of an SVPA petition. (Compare People v. Superior Court (Small) (2008) 159 Cal.App.4th 301, 310 [petition filed more than 45 days beyond defendant's scheduled release date "must be dismissed unless a legal or factual mistake is shown"] with Garcetti v. Superior Court (1998) 68 Cal.App.4th 1105, 1118 [even though the petition was not filed until after defendant should have been released from custody, the trial court had jurisdiction to consider the petition and proceed to trial].)
Even assuming, however, that a dismissal is the appropriate remedy for an untimely filed petition, defendant's argument fails. According to defendant, the petition here was untimely because the Board did not have "probable cause" or "good cause" to hold him for 45 days beyond his parole release date. Defendant cites In re Lucas (2012) 53 Cal.4th 839 in support of his argument. In that case, our Supreme Court concluded that section 6601, subdivision (a)(2) and section 6601.3, when read together, required that "to be timely, a petition must be filed while the inmate is in lawful custody. The lawful custody period extends up to the release date. However, an inmate may be held for up to 45 days beyond the release date upon a showing of good cause." (Id. at p. 844.) In re Lucas, however, is inapposite because in 1996, when the District Attorney filed the initial petition, section 6601 did not include subdivision (a)(2) and neither "probable cause" nor "good cause" appeared in section 6601.3. (See Stats. 1996, ch. 4, §§ 1, 2; see also In re Lucas, supra, 55 Cal.4th at p. 851 ["We emphasize that our construction of the term 'good cause' is specific to this statutory framework"].)
Instead, in 1996, the plain language of section 6601.3, subdivision (a) provided that the Board "may" order a person referred for SVP evaluation to "remain in custody for no more than 45 days for full evaluation pursuant to subdivisions (c) to (h), inclusive, of [s]ection 6601 . . . ." (Stats. 1996, ch. 4, § 2, italics added.) Defendant contends that the petition was nonetheless untimely because "the SVP evaluations" were already completed prior to defendant's scheduled parole release date. We disagree. By defendant's scheduled parole release date, the psychological evaluations had been completed but the Department of Mental Health had not yet requested that the District Attorney file an SVPA petition. (See Stats. 1996, ch. 4, § 1 [former § 6601, subd. (h)].) Thus, defendant's "full evaluation" under section 6601.3, subdivision (a) was still pending and the petition was not untimely filed. (See also People v. Hydrick (2016) 1 Cal.App.5th 837, 840-841 [citing 2008 version of section 6601.3, court affirmed imposition of 45-day hold in part because "full evaluation" included district attorney's decision to file petition, which was not completed when hold was imposed].)
The Department of Mental Health sent the request that an SVPA petition be filed on May 29, 1996.
Defendant also argues that the Regulation 2600.1 hearing violated the SVPA because it was held on the date of his expected release from parole. Defendant cites no authority for this contention and we therefore disregard it as forfeited. (People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 38.) B. Substantial Evidence of Likelihood to Commit Predatory Acts
Defendant next contends there is no substantial evidence to support a conclusion that he is likely to commit predatory acts. In order for a defendant to be committed under the SVPA, a "judge or jury trying the case must determine not only whether the defendant is likely to 'engage in sexually violent criminal behavior' (§ 6600, subd. (a)), but also whether that behavior is likely to be directed 'toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.' (§ 6600, subd. (e).)" (People v. Hurtado (2002) 28 Cal.4th 1179, 1182.)
1. Trial Evidence
a. S.T. incident
On July 29, 1982, S.T., who was four years old, was playing with her older sister in the backyard when the older sister saw a man masturbating nearby. The man came toward the two girls, grabbed S.T. by the hair, and pulled her away from the backyard towards an alley. Her older sister held on to S.T. and both girls screamed. The girls' mother came out with a shotgun, which caused the man to let go of S.T. and flee. At the SVPA trial, S.T.'s mother identified defendant's face as "very familiar" to the man who grabbed S.T. Defendant was arrested but not prosecuted for this conduct.
During an interview with one of the prosecution experts, Dr. Hy Malinek, defendant denied trying to kidnap S.T., asserting that it was not feasible to drag her away because a large fence surrounded the backyard where she was playing. Defendant also admitted that S.T.'s mother chased him with a shotgun.
b. 1993 Indecent Exposure Conviction
On July 10, 1993, Jonathan Klein lived in a Los Angeles apartment on the second floor. Between 11:00 p.m. and 1:00 a.m., Klein saw a man in an adjacent parking lot, who was looking into windows, smoking from a glass pipe, and masturbating. The man noticed Klein and waved at him and his roommate as if indicating they should come down. Klein called the police. Defendant was arrested and convicted of indecent exposure. In discussing this incident with Malinek, defendant claimed that he was not exposing himself on purpose but was instead urinating because the gas station bathroom that he had intended to use was flooded.
c. 1975 Ohio conviction
The prosecution admitted into evidence the police reports for the 1975 Ohio conviction, which reflected that defendant had raped a six-year old girl, C.W., and a seven-year old girl, D.D. Defendant was in a romantic relationship with and lived with C.W.'s mother. On the day she was raped, D.D. was at defendant's house because C.W.'s mother had agreed to babysit her for D.D.'s mother. Following the rapes, both victims and defendant were diagnosed with gonorrhea.
Defendant told Malinek that he did not rape the girls. He claimed that he came home one day and saw the girls being molested by another man. As the girls were going to bed, they expressed concern that they could become pregnant. Therefore, defendant masturbated into his hand to demonstrate that the girls could not become pregnant from being touched. When asked how the girls contracted gonorrhea, defendant claimed that everyone had gonorrhea and it could be contracted from "open surfaces" in the house.
d. 1987 California conviction
The prosecution also admitted into evidence the police reports for the 1987 California conviction, which was based on defendant's rape of a three-year old girl, J.R. J.R. was the daughter of defendant's girlfriend of three years. Defendant signed a statement admitting to having touched J.R. in the vaginal area four or five times in the past nine months. He described her as "promiscuous" and stated that he tried to stop "her from this activity, mostly succeeding but not always so strong." He also claimed that he had trouble "keeping up with her."
In an interview with Malinek, defendant denied molesting J.R. He claimed that he had only touched her to see if she was wet while toilet training her.
e. Dr. Hy Malinek
Malinek was a clinical and forensic psychologist. He had conducted almost 1,000 SVP evaluations and testified more than 300 times in SVPA cases. Over the past 20 years, Malinek had prepared ten SVPA evaluations of defendant and had reviewed a "massive" collection of documents including records from the Department of Mental Health, records pertaining to the 1975 Ohio conviction, records pertaining to the 1987 California conviction, records pertaining to the 1993 indecent exposure conviction, prison records, criminal history reports, probation reports, summaries of prosecution interviews of witnesses, and police reports of other arrests and convictions. Malinek also interviewed professionals who had provided psychological or social services to defendant while he was in custody.
Malinek interviewed defendant three times, in 2012, 2014, and 2017. Defendant declined all other interviews. As we described above, during the interviews, Malinek asked defendant about the 1975 Ohio conviction, the 1987 California conviction, the S.T. incident, and the 1993 indecent exposure conviction.
Malinek also asked defendant about a 1981 arrest for attempted sexual intercourse with a minor. Defendant stated the victim lied about her age (that she was 19 rather than 17 as alleged).
As to a 1983 arrest for oral copulation with a child under 14 years of age, defendant stated that he was sitting on the roof enjoying a soda as children played nearby. One girl remained behind after all the other children left, and when defendant told the girl to go down, the girl's mother believed that defendant had molested her, which defendant denied.
Malinek also asked defendant about a 1995 parole violation for stalking. Defendant admitted that he had obtained the accusing party's telephone number from a receipt at a print shop where he worked and also admitted wanting to date her, but claimed that it was someone other than he who called and stalked her.
Using the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5), Malinek diagnosed defendant with other specified paraphilic disorder, stimulant use disorder, and antisocial personality disorder. Malinek explained paraphilia is "a sexual deviation. It's another name for a host of conditions which involve a significant disturbance in sexual arousal mechanisms." Defendant's diagnosis was based on his pattern of aberrant sexual behavior beginning in the 1970s, his numerous crimes, and his interest in very young children.
Malinek opined that defendant was likely to recidivate and further opined that he was likely to commit crimes of a predatory nature, that is, crimes against strangers, casual acquaintances, or persons with whom a relationship was established for purposes of victimization. Malinek explained that his opinion was based, in part, on the fact that defendant's prior victims were typically children whom he had known for short periods of time. Malinek stated, "he did not have any significant relationship with the victims that he did molest. It was children that he was with for a very short period of time. Months, maybe. Or maybe strangers. It clearly fits the predatory pattern." Further, Malinek contrasted defendant's conduct with that of "an incest offender who molests children within his own family or immediate environment."
Malinek concluded defendant met all the criteria for designation as an SVP.
f. Dr. Douglas Korpi
Dr. Douglas Korpi had been a clinical psychologist since 1979 and had conducted over 1,500 SVP evaluations over the past 20 years. Korpi was assigned to evaluate defendant in 2017 and interviewed him on August 13, 2017. In preparation for his evaluation, Korpi reviewed documents provided by the Department of State Hospitals, including police records. Based on his interview of defendant and review of records, Korpi diagnosed defendant with pedophilic disorder and antisocial personality disorder. Further, Korpi opined that without proper treatment, defendant was likely to engage in sexually violent predatory criminal conduct. Korpi's opinion was based, in part, on the fact that two of his prior victims, D.D. and C.W., were casual acquaintances whom defendant had known for only a few months and the victims of defendant's indecent exposure were strangers. In addition, the victims of the crimes for which defendant had been arrested and violated on parole were strangers.
Dr. Korpi did not explain the basis for his knowledge that defendant had known C.W. and D.D. for just a few months.
g. Defense Case
Dr. Christopher Fisher had been a clinical forensic psychologist since 2010. Prior to testifying, Fisher reviewed defendant's law enforcement and court records and medical records from his time at state hospitals. Fisher interviewed defendant twice, in 2012 and 2015. Fisher diagnosed defendant with pedophilic disorder and antisocial personality disorder.
Fisher conceded that defendant's conduct in the 1970s and 1980s could fairly be considered "predatory" but opined that defendant was not necessarily predisposed to commit sexually predatory offenses if released because, among other things, his conduct became more passive in the 1990s, he had matured with age, and his current mental disorders were not "characterized by volitional or emotional impairment and do not make him likely to engage in acts of predatory sexual violence."
Specifically, Fisher testified, "In the [70s] and [80s], his offenses were, if not necessarily predatory by a statutory definition, I think predatory is a fair word from a lay perspective in the sense of taking advantage of vulnerable victims, of seeking out sexual contact with the victims."
2. Analysis
"'In reviewing the evidence sufficient to support a commitment under [the SVPA], "courts apply the same test as for reviewing the sufficiency of the evidence to support a criminal conviction."' [Citation.] 'Thus, this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be "'of ponderable legal significance . . . reasonable in nature, credible and of solid value.'"'" (People v. McCloud (2013) 213 Cal.App.4th 1076, 1088; People v. Carlin, supra, 150 Cal.App.4th at p. 333.) "'Although it is true that the testimony of a single witness, including the testimony of an expert, may be sufficient to constitute substantial evidence [citation], when an expert bases his or her conclusion on factors that are "speculative, remote or conjectural," or on "assumptions . . . not supported by the record," the expert's opinion "cannot rise to the dignity of substantial evidence" and a judgment based solely on that opinion "must be reversed for lack of substantial evidence."'" (People v. Wright (2016) 4 Cal.App.5th 537, 545.)
Here, both Malinek and Korpi opined that if released, defendant was likely to commit predatory acts. Their opinion was based on their diagnoses of defendant's mental disorders, their review of records of defendant's prior convictions and arrests, hospital records, and interviews of defendant. Further, both experts opined that defendant's criminal history, which Malinek described as being perpetrated against "children that he was with for a very short period of time" and Korpi described as involving "casual acquaintances" or "strangers" made it likely that defendant would commit predatory acts in the future. Indeed, the police reports admitted into evidence demonstrated that D.D. was a casual acquaintance who was at defendant's house because defendant's girlfriend was babysitting her. Further, the testimony at trial demonstrated that S.T. and Jonathan Klein were strangers to defendant. Even defendant's expert, Dr. Fisher, described defendant's prior conduct as predatory. Substantial evidence supports a finding that defendant was likely to engage in sexually violent criminal behavior directed in a predatory manner. (See People v. Torres (2001) 25 Cal.4th 680, 684 [rejecting a requirement that the trier of fact must find the predicate offenses were "predatory" for defendant to be found an SVP].) C. Qualifying Sexually Violent Offense
J.R. was not a casual acquaintance because defendant had been in a romantic relationship with her mother for three years. Korpi testified that this fact did not undermine his opinion that defendant was likely to commit predatory crimes.
At trial, defendant stipulated to having sustained the 1975 Ohio conviction, which included two counts of rape. Although rape is a "sexually violent offense" within the meaning of section 6600, subdivisions (a)(2) and (b), defendant contends that the 1975 Ohio conviction did not include any "sexually violent offenses" under section 6600 of the SVPA because on June 18, 1996, when the initial petition was filed, only California convictions that resulted in a determinate sentence so qualified. We reject defendant's argument because we determine whether the 1975 Ohio conviction included counts of "sexually violent offenses" under the law applicable at the time of trial, not at the time of the filing of the petition. (People v. Carroll (2007) 158 Cal.App.4th 503, 514 ["the significant point with respect to retroactivity is not the filing of the petition, but trial and adjudication under the SVPA]"; Garcetti v. Superior Court (1999) 76 Cal.App.4th 685, 694.) Here, the parties stipulated that the version of the SVPA that was in effect prior to the enactment of Senate Bill No. 1128 applied at trial. That version of section 6600 defined a "sexually violent offense" as including "[a] prior conviction in another jurisdiction for an offense that includes all of the elements of an offense described in subdivision (b)." (Stats. 2000, ch. 643, § 1.) Rape was one such offense. (Ibid. [former § 6600, subd. (b), citing Pen. Code, § 261, subd. (a)(2)].) Thus, the 1975 Ohio conviction included counts for sexually violent offenses.
In June 1996, section 6600, subdivision (a) stated in relevant part: " 'Sexually violent predator' means a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence 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. 1995, ch. 763, § 3.) There was no provision indicating that out-of-state convictions or indeterminate sentences would qualify as a sexually violent offense for purposes of the SVPA.
On September 13, 1996, the SVPA was amended to include "a conviction in another state for an offense that includes all the elements" of a sexually violent offense as a qualifying predicate offense. (Stats. 1996, ch. 462, § 4, eff. Sept. 13, 1996.)
As noted, the District Attorney filed an amended petition in 1999.
Defendant alternatively argues that even if the 1975 Ohio conviction included convictions for sexually violent offenses under the SVPA, because the District Attorney alleged in the amended petition that defendant received "a determinate sentence" (italics added) for the 1975 Ohio conviction, it was required to prove that he had been sentenced to a determinate term. Defendant cites no law in support of his contention. Nor does he contend that the petition was not sufficiently detailed to give him notice of the predicate sexually violent offense. (See People v. Randazzo (1957) 48 Cal.2d 484, 489-490 ["[s]urplusage . . . does not vitiate the information and may be rejected if enough remains to charge the offense"].) At trial, the court needed to find "beyond a reasonable doubt, the person is a sexually violent predator." (Stats. 2000, ch. 420, § 3 [former § 6604 defining burden of proof at SVPA trial].) There is no evidence that the trial court failed to apply the correct burden of proof. (See McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1110 ["We . . . presume the [trial] court knew and properly applied the law absent evidence to the contrary"].) There was substantial evidence that defendant had been convicted of a sexually violent offense against two or more victims, and had a diagnosed mental disorder that rendered him a danger to the health and safety of others in that it is likely that he would engage in sexually violent criminal behavior. (Stats. 2000, ch. 643, § 1.)
Based on the record, it appears defendant received a sentence of 16 to 55 years for the 1975 Ohio conviction. The Attorney General does not dispute that such a sentence was indeterminate.
Defendant contends in his reply brief that there was no probable cause to support the imposition of the 45-day hold on May 21, 1996, because the 1975 Ohio conviction was not for "'sexually violent criminal behavior'" as defined in the SVPA on that date. Defendant did not raise this argument below or in his opening brief. Therefore, we will not consider it on appeal. (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 901, fn. 5 ["'As a matter of policy,' we generally will not consider on review any issue which could have been, but was not, raised in the courts below"]; People v. Tully (2012) 54 Cal.4th 952, 1075 ["It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party"].) Further, we deny defendant's request to file a supplemental brief, which he raised in a footnote in his reply brief.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J. We concur:
RUBIN, P. J.
MOOR, J.