Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. ZM005990, Susan M. Spencer, Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Donald Hale appeals a two-year commitment under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)
In September 2006, the Governor signed into law Senate Bill No. 1128 (2005-2006 Reg. Sess.) (SB 1128), which amended the SVPA to increase the length of a commitment term from two years to an indeterminate term. The bill was enacted as an urgency measure, effective immediately. (Stats. 2006, ch. 337, § 55, effective Sept. 20, 2006.)
Hale contends the trial court erroneously excluded evidence of, or expert reliance on, a memorandum written by Jesus Padilla, Ph.D., of the Department of Mental Health in October of 2006 summarizing the results of a study of sex offenders released from Atascadero State Hospital. Hale also contends his commitment was illegal because the proceedings were commenced based on an evaluation protocol that subsequently was invalidated as an “underground regulation” by the Office of Administrative Law.
We reject these contentions and affirm the order of commitment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Overview.
The commitment petition alleged Hale was convicted in 1990 and 1998 of committing a lewd and lascivious act with a child in violation of Penal Code section 288, subdivision (a); Hale has been diagnosed with a mental disorder, poses a danger to the health and safety of others and is predatory; and, two practicing psychiatrists or psychologists had evaluated Hale and determined he has a diagnosed mental disorder such that he is likely to engage in acts of sexual violence without appropriate treatment and custody.
The parties stipulated Hale had suffered two qualifying prior convictions.
2. Prosecution’s evidence.
a. Testimony of Christopher Matosich, Ph.D.
Christopher Matosich, Ph.D., evaluated Hale and found he suffers from paraphilia, specifically pedophilia, and a personality disorder not otherwise specified. He also is an alcohol abuser. Matosich based his opinion on reports of four separate incidents and Hale’s admission of sexual involvement with children.
A police report concerning the first incident indicated that in 1979, Hale victimized a 12-year-old girl who babysat for Hale’s girlfriend. The babysitter stated Hale pinned her to the floor, pulled up her shirt and sucked on her breasts. The victim also stated that, six months earlier, Hale kissed, touched and molested her. Because the babysitter was 11 years old when Hale initiated inappropriate conduct with her, Mastosich considered her a child. In response to questions regarding this incident, Hale stated “he was tickling her” and “nothing happened.”
In the second incident, Hale admitted fondling the seven-year-old daughter of a woman he dated in 1999 over a period of three months. Hale placed his hand on the child’s vaginal area over her clothing twice a week, eventually increasing the frequency to 7 to 10 times a week. Hale placed his penis against the child’s vagina, making skin to skin contact, and had the child stroke his penis on at least two occasions. Hale admitted this behavior and said he sold his car to pay for therapy for the victim.
The third incident took place in 1998. It involved sexual abuse of Hale’s three-year-old daughter, including digital penetration. The police reports indicated Hale admitted molesting the child, said he would not do it again and said he wanted to kill himself. Hale’s wife reported that, a year and a half earlier, she found Hale and their daughter in the shower together and Hale had an erection. Hale admitted to the police that he touched the child’s vagina but denied penetration. In an interview conducted by Matosich, Hale denied sexual abuse of his daughter. Matosich found this incident significant because it shared similarities with the previous two incidents, including Hale’s use of a gradual approach.
The fourth incident occurred in 1998 and involved an adult woman named Elizabeth who was with a friend named Jennifer who knew Hale. Hale offered Elizabeth and Jennifer, both of whom are partially deaf, a ride home. However, Hale stopped at his own home and drank to the point the women did not feel comfortable having him drive them further. During the night, Elizabeth awakened to find Hale on top of her with his hands on her breasts and vaginal area, aggressively stating he wanted sex. When Hale momentarily ceased the attack, Elizabeth left the house and walked to a police station where she reported the incident. Although this incident involved an adult, Matosich found it consistent with a diagnosis of pedophilia because Elizabeth was partially deaf and had mental disabilities and thus could have appeared vulnerable like a child.
Regarding the diagnosis of personality disorder not otherwise specified, Matosich noted Hale had an extensive criminal history that included crimes involving narcotics, four drunk driving convictions, arrests for attempted murder and crimes of theft, and a conviction for assault and battery. Also, Hale had numerous jobs over a short period of time and he referred to his girlfriends in derogatory terms. In statements to investigators and probation officers, Hale admitted a history of alcohol abuse and use of heroin, LSD and methamphetamine. He also admitted losing a job because of alcohol abuse. Hale scored right below the threshold for psychotherapy.
Matosich found the combination of Hale’s paraphilia, substance abuse and personality disorder combined to result in an increased risk of reoffending. Matosich believed Hale’s pedophilia was severe and persistent. Despite having been apprehended and convicted, Hale continued to engage in deviant behavior.
Matosich used the Static 99, 99R and 2002 assessments to estimate the likelihood Hale would reoffend without treatment. The Static 99 assessment has been in use since 2001 and is accepted among mental health evaluators as a moderate predictor of risk factors of recidivism. The Static 99R assessment is similar to the Static 99 except it has a greater focus on age as a risk factor. Matosich found Hale scored a six on the Static 99 assessment and a five on the Static 99R. These scores indicate Hale was in the “moderate high-risk category” of reoffending.
The most significant dynamic factors present in Hale’s situation include intimacy deficits, lack of cooperation with supervision, impulsivity, lack of self-regulation, a personality disorder and sexual deviancy. Hale also failed on probation and parole and refused to cooperate and accept treatment except for a two-month period in which he marginally participated in phase I treatment. Matosich did not consider Hale’s age or poor health mitigating factors.
Matosich concluded there was a substantial, serious and well-founded risk Hale will commit sexually violent predatory crimes in the future. Matosich estimated Hale’s reoffense rate within five years to be 24.2 percent based on the Static 2002 assessment and 23.1 percent based on the Static 99 assessment. The reoffense rate within 10 years was 32.1 percent under both assessments.
On cross-examination, Matosich admitted an article by Karl Hanson, Ph.D., the designer of the Static 99 assessment, indicates the majority of sex offenders, 73 percent, do not reoffend within 15 years of release. Matosich conceded Dr. Hanson has determined the rate of reoffending decreases over time and the risk of reoffense in the United States is decreasing. Further, Dr. Hanson based the Static 99 assessment on studies conducted primarily in Canada and Europe and the rate of sexual offense in Canada is higher than it is in the United States.
Matosich also acknowledged that a Department of Justice study conducted in 2003 reported that, after three years, only about 5.3 percent of a sample of 9, 700 sex offenders suffered a new conviction for a sex offense. Matosich further admitted other authors had reduced the base rate for recidivism among sex offenders. Matosich also agreed literature presented at the 2008 conference of the Association for the Treatment of Sex Offenders (ATSA) indicates the Static 99 and Static 2002 assessments fail to give appropriate consideration to age in predicting future risk of reoffending. Also, Dr. Hanson reported a new set of norms in January of 2009 based on data that showed the Static assessments had been over predicting recidivism.
Finally, Matosich agreed the receiver operating characteristic (ROC) of a study indicates its accuracy, with one being perfectly reliable and 0.5 indicating a coin flip, and that the ROC for the Static 99 assessment is 0.67.
b. Testimony of Harry Goldberg, Ph.D.
Harry Goldberg, Ph.D., evaluated Hale in 2002 and updated the evaluation in 2004, 2006, 2008 and 2009. Goldberg concluded Hale met the criteria for pedophilia, alcohol dependence and polysubstance abuse. Goldberg initially found Hale did not have an antisocial personality disorder but later diagnosed him as having a personality disorder not otherwise specified.
The two main factors underlying the pedophilia diagnosis were the three-month period in 1989 during which Hale engaged in sexual acts with a seven-year-old girl, and the sexual abuse of his three-year-old daughter in 1998. Goldberg also relied on an incident in 1979 regarding a 12-year-old babysitter and a later incident involving the sexual assault of a mentally disabled adult woman. The incident involving the adult was consistent with a diagnosis of pedophilia because pedophiles sometimes are attracted to mentally or emotionally disabled adults as substitutes for children. Goldberg found these incidents constituted a pattern of sexual attraction to children.
Goldberg concluded Hale met the criteria for personality disorder not otherwise specified because he exhibited numerous traits which conform to the diagnosis, including multiple arrests for sexual offenses and other crimes, impulsivity, crimes that are violent in nature, verbal tirades in the hospital, irresponsibility as demonstrated by not meeting his financial obligations, and lack of remorse.
Goldberg testified various tools assess the likelihood a pedophile will reoffend including the Static 99, the Static 2002 and the MNSOST-R. These actuarial instruments assign a high, moderate or low risk of reoffending. Goldberg initially gave Hale a score of five on the Static 99 assessment, but he should have received a six. With the newer Static 99R assessment, which includes advanced age as a mitigating factor, Hale received a score of five. These results put Hale in the moderate high risk category of reoffending. Hale received a similar result under the Static 2002 assessment and fell within the high risk category under the MNSOST-R assessment. Hale’s score on the Static 2002 indicated a five-year recidivism rate of 25 percent and a 10-year rate of 35.5 percent.
In addition, Goldberg considered dynamic factors including intimacy deficits, hostility toward women, lack of concern for others and deviant sexual interests. Possible mitigating factors included Hale’s age and his minimal involvement with sex offender treatment. Goldberg concluded Hale presented a serious and well-founded risk of committing a sexually predatory violent offense if he were released.
Defense counsel cross-examined Goldberg on the Hanson article, the Department of Justice study and the ROC of the Static 99 assessment, which Goldberg indicated was 0.71.
c. Hale’s testimony.
Regarding the incident in 1979, Hale testified he believed the babysitter was 14 years of age and he became attracted to her because she was around all the time. They were “being playful like tickling each other and stuff like that” when Hale’s girlfriend walked in and “pretty much freaked out over what she thought she saw.” As a result of this incident, Hale was charged with a violation of Penal Code section 288. Rather than face this charge, Hale left California for 2½ years. The case eventually was resolved with a plea of guilty to a misdemeanor violation of Penal Code section 647, subdivision (a) (lewd or dissolute conduct in a public place).
With respect to the second incident, Hale explained that in June or July of 1989 he began living with a girlfriend who had three children including the seven-year-old victim. In October of 1989, Hale began fondling the child’s vagina over her clothing. Hale claimed he did this because he was in a relationship with an insecure and controlling woman. Hale admitted he rubbed his penis against the child’s vagina for the purpose of self gratification two or three times a week for three months, but denied he penetrated the child. As a result of this conduct, Hale pleaded guilty to a violation of Penal Code section 288, subdivision (a), was sentenced to three years in prison and was released in October of 1991.
With respect to the third incident, Hale explained he met Linda three months after his release from prison and they married within a month. Their daughter was born in 1995. After Hale and Linda separated, Hale saw the child at his home once or twice a week. In November of 1997, Hale was arrested for molesting the child. In an interview with a police detective, Hale stated he would stop fondling the child and that he knew what he had done was wrong. In a later police interview, Hale said he rubbed the child’s vagina under her clothing with his hand. Hale pleaded no contest to a violation of Penal Code section 288, subdivision (a) and was sentenced to state prison for six years. As a result of this plea, a charge of misdemeanor sexual battery (Pen. Code, § 243) of a woman named Elizabeth was dismissed, as was a charge of failing to register as a sex offender. Hale denied he molested his daughter and claimed he falsely admitted he did because, at the time, he was drinking heavily and living in his car and wanted to return to prison rather than continuing to live that way.
Regarding the incident in 1998, Hale testified he met Elizabeth through a mutual friend, Jennifer. Both women were deaf. He saw them at a bar and drank with them. They went to Hale’s apartment and, after everyone went to sleep, Elizabeth ran out and returned with Sheriff’s deputies. Hale claimed he did not remember what happened because he was drunk.
Since completing the prison term for abusing his daughter, Hale has been housed at Atascadero and Coalinga State Hospitals. He has been diagnosed as suffering from Piriformis Syndrome, a condition of the sciatic nerve that causes severe pain. He has been prescribed various medications including methadone, Soma, melatonin and Benadryl. Hale indicated his conflicts with hospital staff relate to not getting medications as scheduled.
3. Defense evidence.
a. Mary Jane Adams, Ph.D.
Mary Jane Adams, Ph.D., evaluated Hale in February and June of 2006. Adams diagnosed Hale with alcohol and polysubstance dependence. Adams did not conclude Hale was a pedophile because there was no evidence he had ongoing fantasies or that he had collected child pornography and he had not arranged his life in such a way as to ensure he had contact with children. Also, his behavior was sporadic and often occurred while he was using alcohol. Adams noted Hale’s incidents of molestation occurred in his home and the incident involving Elizabeth was not significant because she was an adult and Hale had been drinking at the time of the incident. Adams also believed the incident involving the 12-year-old babysitter was not significant because it was unlikely she had the characteristics of a prepubescent child and the babysitter told the police the conduct occurred after Hale drank beer.
Adams did not find sufficient information to support a diagnosis of personality disorder not otherwise specified because there was no evidence Hale had a conduct disorder prior to age 15 years, which is required for the diagnosis, and there was no evidence Hale acted in an antisocial fashion when sober. Additionally, Hale has not lived a parasitic lifestyle, he has tried to be employed, and he took care of his dying mother. Although Hale has gotten into trouble at the hospital for lashing out verbally, he has not engaged in manipulative or antisocial behavior. Further, Hale’s trouble at the hospital relates to receiving medication, which includes morphine and methadone. Hale suffers withdrawal symptoms when he is taken off the medication which exacerbates his pain.
With respect to the likelihood Hale would reoffend, Adams found Hale scored a four on the Static 99R assessment but opined he did not present a well defined risk of reoffending because of his age, deteriorating health and chronic pain. Adams also did not believe Hale would have access to children and his history did not indicate he was someone who sought out children to molest.
b. Mary Jane Alumbaugh, Ph.D.
Mary Jane Alumbaugh, Ph.D., evaluated Hale in July of 2009. Alumbaugh concluded Hale suffered from alcohol dependency in institutional remission, cannabis dependence, opioid abuse, amphetamine abuse and personality disorder not otherwise specified. Alumbaugh did not find Hale suffered any type of sexual pathology and did not diagnose him as a pedophile. Alumbaugh opined that 50 percent of the people who molest children are not pedophiles because they do not have a deep and enduring sexual attraction to children that pervades their lives. Hale’s incidents of child molestation both involved easily accessible victims.
Alumbaugh noted Hale was described as pleasant when he first was institutionalized in 2003. His behavior changed in 2004 when he hurt his shoulder and back. He then became increasingly angry, rude and disrespectful. When Hale encountered staff who deprived him of medication because they thought he improperly was seeking drugs, his problems escalated.
Alumbaugh found Hale scored a four on the Static 99R assessment which reflects a recidivism rate between 7.7 and 19.1 and percent. Hale also scored moderate to high on the MNSOST-R, which was “fairly consistent” with the result obtained on the Static 99R. In Alumbaugh’s opinion, Hale did not meet the criteria for a sexually violent predator because he did not suffer from pedophilia, his offenses were not predatory, recidivism rates are lower for individuals his age, and his mobility was reduced due to his physical condition.
CONTENTIONS
Hale contends the trial court erroneously excluded evidence of, or expert reliance on, a memorandum written by Jesus Padilla, Ph.D., of the Department of Mental Health in October of 2006 summarizing the results of a study of sex offenders released from Atascadero State Hospital who did not participate in sex offender specific treatment. Hale also contends his commitment as a sexually violent predator was illegal because the proceedings were commenced based on an evaluation protocol that subsequently was invalidated as an “underground regulation” by the Office of Administrative Law.
DISCUSSION
1. The trial court committed no evidentiary error.
a. Background.
Prior to trial, the prosecutor filed a motion to preclude reference to, or expert reliance on, an October 10, 2006 memorandum written by Jesus Padilla, Ph.D., of the Department of Mental Health (the Padilla memorandum). The People attached to the motion as exhibits a copy of the Padilla memorandum as well as a copy of a declaration Padilla submitted in an unrelated Napa Valley case.
In the memorandum, Padilla states it was written in response to an order to provide a defense attorney recidivism information “for all individuals released from the Atascadero State Hospital without having completed a sex offender specific treatment.” Padillia indicated there were 118 such individuals, not including three who died after their release. “Review of all data showed that information for 25 of the 119 [sic] [was] not reliable....” “Given the time constraints of the request, I am able to reliably report on 93 individuals from our sample. The follow-up period is just over 6 years and time at risk is calculated at 4.71 years.”
Padilla reported 4 of these 93 individuals committed violent sexual offenses. One had been charged with such an offense but the outcome of the proceedings was unknown; another had been convicted of indecent exposure on numerous occasions. Twenty-six individuals were charged with various offenses or parole violations that did not qualify as sexually violent offenses.
Padilla contrasted these individuals with five individuals released from Atascadero State Hospital who had completed sex offender specific treatment. None of these individuals had reoffended but one had violated the terms of his release by allowing himself to be in the presence of children.
Padilla’s accompanying declaration states he is employed as a psychologist at Atascadero State Hospital. He has “conducted original research on sexually violent predators, with an emphasis on research into the effectiveness of orchiectomies and the use of anti-androgens in treating sex offenders.” “I have also been conducting research into the recidivism rates for sex offenders released from Atascadero State Hospital. The raw data for this research came primarily from internal” sources and most of the information is confidential. Padilla asserted his belief he could be criminally prosecuted for revealing some of the information. Further, “[a]lthough the research is completed, I have not yet written the report analyzing the data.” Padilla anticipated the report would be completed within two months and indicated he had no objection to providing the written report when it was completed but, for privacy reasons, he could not provide the raw data.
In the motion, the People argued the information in the memorandum was unreliable, unverified and incomplete and therefore could not be relied upon by an expert. The motion asserted the memorandum “was generated under protest for a single case for a single-purpose. It was not published in a scientific journal. It is not a peer-reviewed article. There is absolutely no basis upon which an expert may reasonably rely upon the information contained in the memo to form an opinion.”
At the hearing on the motion, Hale’s counsel argued information regarding 93 of the individuals in the study was reliable and Hale was entitled to cross-examine the People’s experts using the four percent reoffense rate found by Padilla. Counsel concluded any flaws in the study went to the weight to be accorded the evidence.
In response to a question from the trial court, the prosecutor indicated the People’s experts had not relied on the study. However, one of Hale’s witnesses, Dr. Alumbaugh, did wish to rely on it.
The trial court concluded Padilla’s declaration indicated the information in the study was unreliable and, although experts can consider the opinions of other experts and hearsay, the information has to be reliable. The trial court indicated “raw data means nothing unless it’s analyzed.”
Hale’s counsel protested “raw data is fact. Regardless of how [Padilla] analyzes it, he can’t change the fact that” only 4 percent of the 93 individuals reoffended.
The prosecutor responded the memorandum did not address factors such as age, health, Static 99 assessment scores or whether the individuals had been released because they were infirm or because commitment petitions were found untrue.
The trial court granted the motion precluding reference to or reliance on the information in the Padilla memorandum, “[s]ubject to additional proof that it is reliable or [has been] relied upon by the experts testifying....”
b. Hale’s contention.
Hale contends the trial court erroneously precluded reference to the information contained in the Padilla memorandum. Hale argues the limitations and the flaws in the study were created by the Department of Mental Health which halted the research because it did not like the results Padilla obtained.
Hale claims the trial court’s ruling failed to appreciate that an expert may disagree with or discount information while still considering the information in forming his or her opinion. Also, although the prosecution experts did not rely on the information in the Padilla memorandum, experts can be cross examined with material they did not consider in reaching their opinion or with which they disagree. (See People v. Bell (1989) 49 Cal.3d 502, 532.) Evidence Code section 801 permits counsel to present evidence to an expert at trial, ask the expert to review the evidence and question the expert about it. Also, the jury is entitled to consider an expert’s failure to accept information that contradicts his or her opinion or the expert’s failure to keep up with developments in the field.
Hale further contends the trial court erroneously believed there was something wrong with “raw data” such that it could not form the basis of an expert opinion. Hale notes Padilla had completed the research and all that was left was to analyze the data and write a report. Thus, another expert could have analyzed the raw data to reach his or her own conclusions. In any event, Padilla only referred to some of the data he gathered as unreliable and specifically stated he reliably could report on 93 people for whom accurate information was available.
Hale argues that, as a result of the trial court’s ruling, he was unable to show that persons alleged by the Department of Mental Health to be sexually violent predators in fact reoffend at a much lower rate than that cited by the prosecution experts. Hale claims that, had this information been presented to the jury, it is reasonably certain the jury would have found the commitment petition not true. Hale concludes the judgment must be reversed and the matter remanded for a new trial at which the Padilla memorandum would be available for use on cross-examination of the prosecution experts or by the defense experts in forming an opinion.
c. Relevant authority.
“Expert testimony may... be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618; Evid. Code, § 801, subd. (b).) “Of course, any material that forms the basis of an expert’s opinion testimony must be reliable. [Citation.]” (People v. Gardeley, at p. 618.) “So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony. [Citations.]” (Ibid.) In commitment cases, expert opinion testimony properly may be admitted on the likelihood the person is a sexually violent predator and likely to reoffend. (People v. Ward (1999) 71 Cal.App.4th 368, 374.)
Evidence Code section 801, subdivision (b) provides that an expert may testify in the form of an opinion “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
Decisions concerning the admissibility of expert evidence are left to the trial court’s discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1222; People v. Davenport (1995) 11 Cal.4th 1171, 1207.) A trial court’s determination in this regard will not be disturbed on appeal absent a showing the trial court abused its discretion in a manner that resulted in a miscarriage of justice. (People v. Catlin (2001) 26 Cal.4th 81, 131.)
d. No abuse of the trial court’s discretion appears.
The trial court’s finding the Padilla Study was unreliable is supported by Padilla’s declaration, which indicated recidivism information for 25 of the 118 individuals studied was not available. The fact that information relating to approximately 20 percent of the sample was not available effectively skewed the results obtained from the remaining portion of the sample. Hale suggests this aspect of unreliability could have been overcome by permitting the People to argue all of the 25 unaccounted for individuals had reoffended and, therefore, the true recidivism rate could be as high as 25 percent. Hale claims even this recidivism rate is lower than the rate suggested by the Static 99 assessment. However, this is incorrect in that the prosecution experts testified Hale’s risk of reoffending within five years was approximately 25 percent.
Even putting this point aside, Hale’s claim fails because the cohort of Padilla’s study was not relevant to the issue presented at Hale’s trial, namely, the risk he would commit a sexually violent predatory offense if released. Hale repeatedly asserts Padilla’s study sought to track sexually violent predators who had been released from Atascadero State Hospital to determine whether they reoffended in a sexually violent manner. However, neither Padilla’s memorandum nor his declaration indicates Padilla was tracking sexually violent predators. Rather, Padilla states the study involved sex offenders released from Atascadero State Hospital. Not everyone housed at Atascadero State Hospital is a sexually violent predator. Indeed, Hale was housed at Atascadero State Hospital during the pendency of these proceedings and before he was committed as a sexually violent predator. (See Welf. & Inst. Code, § 6602.5, subd. (a).) Thus, although Padilla’s study likely included sexually violent predators, it also included individuals who had not yet been committed as sexually violent predators.
Welfare and Institutions Code section 6602.5, subdivision (a) provides: “No person may be placed in a state hospital pursuant to the provisions of this article until there has been a determination pursuant to Section 6601.3 or 6602 that there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior.”
Padilla’s declaration makes this clear. It indicates Padilla had “conducted original research on sexually violent predators” as well as “research into the recidivism rates for sex offenders released from Atascadero State Hospital.” (Italics added) Thus, the research summarized in the Padilla memorandum did not focus on sexually violent predators but on sex offenders released from Atascadero State Hospital.
Further, because the study addressed only individuals who had been released, it must be assumed the majority of sex offenders included in the study necessarily were at a low risk of reoffending, such as aged or infirm individuals previously committed as sexually violent predators, as well as individuals who had been found not to be sexually violent predators.
Moreover, given that Padilla’s memorandum contrasted the results obtained on the 93 individuals who did not participate in sex offender specific treatment with five individuals who did participate, it appears the purpose of the study was to determine the effectiveness of treatment, not to predict recidivism rates. For this additional reason, the trial court properly could conclude the information in the Padilla memorandum did not reliably reflect a recidivism rate that was relevant to Hale’s case.
In any event, assuming error in the trial court’s refusal to permit Hale to cross-examine the prosecution experts with the information in the Padilla memorandum, the error was harmless. The jury also would have heard the study was incomplete and Padilla had not yet written a report analyzing the data. Further, Hale’s counsel had other similar information available to use in cross-examination of the prosecution witnesses. Matosich admitted on cross-examination he was familiar with an article by Karl Hanson, Ph.D., the designer of the Static 99 assessment, which indicated the majority of sex offenders do not reoffend over time. Matosich also admitted Dr. Hanson had found the rate of reoffending decreases over time and the recidivism rate in the United States is decreasing. Defense counsel also cross-examined Matosich with respect to a Department of Justice study that found 5.3 percent rate of recidivism.
Matosich further conceded the Static 99 assessment was based on studies conducted primarily in Canada and Europe, the rate of sexual offense in Canada is higher than it is in the United States, and the receiver operating characteristic for the Static 99 assessment is 0.67. Matosich also agreed literature presented at the 2008 ATSA conference indicated the Static 99 and Static 2002 assessments failed to give appropriate consideration to age in predicting future risk of reoffending, and Dr. Hanson reported a new set of norms in January of 2009 based on data that showed the Static assessments had been overpredicting recidivism.
Defense counsel cross-examined Goldberg along similar lines. The information contained in the Padilla memorandum would have been cumulative to this extensive cross-examination of the prosecution experts.
We conclude that allowing Hale to cross-examine the prosecution experts with the information contained in the Padilla memorandum or permitting Alumbaugh to state her reliance on it as supportive of her conclusion would not have altered the outcome of the trial. Thus, exclusion of the evidence, even if erroneous, was not prejudicial to Hale.
2. Hale’s contentions based on the evaluation protocol fail.
a. Background.
“[P]rior to the filing of any commitment petition, the SVPA requires the Department [of Mental Health] to screen a person identified by prison authorities as an SVP ‘in accordance with a standardized assessment protocol, developed and updated by’ the Department. ([Welf. & Inst. Code, ] § 6601, subd. (c).) Only if two mental health professionals, applying the assessment protocol, agree that the person fulfills the criteria for an SVP does the Department request the filing of a petition. (§ 6601, subds. (d)-(h); see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 906.) The purpose of this evaluation is not to identify SVP’s but, rather, to screen out those who are not SVP’s. ‘The Legislature has imposed procedural safeguards to prevent meritless petitions from reaching trial. “[T]he requirement for evaluations is not one affecting disposition of the merits; rather, it is a collateral procedural condition plainly designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.” ’ (People v. Scott (2002) 100 Cal.App.4th 1060, 1063.) The legal determination that a particular person is an SVP is made during the subsequent judicial proceedings, rather than during the screening process. (Ibid.)” (People v. Medina (2009) 171 Cal.App.4th 805, 814.)
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
“Early in 2008, [in an unrelated SVP matter, ] a petition was filed with the [State of California’s Office of Administrative Law (OAL)] challenging as underground regulations various provisions of the assessment protocol, which [had] been issued under the title ‘Clinical Evaluator Handbook and Standardized Assessment Protocol (2007), ’ used by the Department to conduct section 6601 evaluations.” (People v. Medina, supra, 171 Cal.App.4th at p. 814.) On August 15, 2008, the OAL concluded certain provisions in the handbook were invalid as underground regulations. (Ibid.) “The term ‘underground regulation’ refers to statutorily mandated protocols that have not been formally adopted.” (People v. Taylor (2009) 174 Cal.App.4th 920, 937; People v. Medina, supra, 171 Cal.App.4th at pp. 814-818; Patterson Flying Service v. Department of Pesticide Regulation (2008) 161 Cal.App.4th 411, 429.)
The People do not argue the OAL’s determination was incorrect. Although we are not bound by the OAL’s conclusion the mental health evaluation protocol was an underground regulation, our review is generally deferential. (See Grier v. Kizer (1990) 219 Cal.App.3d 422, 428, disapproved on other grounds as stated in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 577.) Given the People’s failure to challenge the OAL’s position, we will assume the protocol is an underground regulation.
b. Hale’s contentions.
Hale contends the failure to use a properly promulgated evaluation protocol deprived the trial court of fundamental jurisdiction to hear the commitment trial. Thus, the judgment must be reversed and his immediate release ordered. Even if the failure to comply with the statutory requirements was not jurisdictional, the judgment should be reversed and the matter remanded for new evaluations conducted pursuant to a valid protocol. (In re Ronje (2009) 179 Cal.App.4th 509, 517.)
To the extent Hale’s trial counsel failed to preserve these issues, Hale contends he received prejudicial ineffective assistance of counsel, claiming there is a reasonable probability that, had he been evaluated pursuant to a properly promulgated protocol, he would have achieved a more favorable outcome. Hale, who was 53 years of age at the time of his commitment, argues his current risk of reoffending is much lower now than it was in 2002 when he first was evaluated. He claims the recent acknowledgment of the reduced risk of recidivism for older offenders, as well as the testimony of his two experts who opined he was not at risk of reoffending, render it highly probable he would not have been held to answer under a properly promulgated protocol.
c. Hale forfeited these claims and, even if that defect is overlooked, Hale’s arguments are meritless.
The OAL made the determination the evaluation protocol was invalid more than a year before the 2009 commitment trial in this case. Thus, Hale could have raised the “underground regulation” objection in the trial court but failed to do so. He therefore has forfeited the objection. (People v. Medina, supra, 171 Cal.App.4th at pp. 817-818; People v. Taylor, supra, 174 Cal.App.4th at pp. 937-938.)
Assuming defense counsel rendered ineffective assistance in failing to raise the issue for the sake of discussion, Hale is unable to demonstrate prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 697 [80 L.Ed.2d 674] [“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”].)
Clearly, use of the invalid protocol did not deprive the trial court of fundamental jurisdiction. As noted in Medina, the trial court had personal and subject matter jurisdiction over the commitment proceeding. Medina stated: “As to personal jurisdiction, there is no evidence to suggest, and [the offender] does not contend, that he lacked minimum contacts with the State of California [citation] or that he was not served with the documents necessary to initiate the proceedings. [Citations.] As to subject matter jurisdiction, the superior court was undoubtedly the appropriate court to hear the commitment petition [citations], and there is no claim of untimeliness. [Citation.]” (People v. Medina, supra, 171 Cal.App.4th at p. 816.)
Moreover, the requirement of two written psychological evaluations “ ‘is not one affecting disposition of the merits; rather, it is a collateral procedural condition plainly designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.’ [Citation.]” (People v. Scott, supra, 100 Cal.App.4th at p. 1063.) “Although the [Department] is required to send the two psychological evaluations to the county’s designated counsel, and the designated counsel is given discretion to file a petition if he agrees with the [Department’s] recommendation [citation], the statute does not by its terms require that the evaluations be alleged or appended to a petition.” (People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1128.)
Indeed, Hale concedes his jurisdictional claim, or variations on it, repeatedly has been rejected. (See People v. Taylor, supra, 174 Cal.App.4th 920; People v. Medina, supra, 171 Cal.App.4th 805; see also In re Ronje, supra, 179 Cal.App.4th 509.) He argues these cases were wrongly decided and failed to give proper weight to the rulings of the California Supreme Court in People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 909, which held a petition for commitment may not be filed unless two evaluators have found the person currently meets the criteria for commitment, and People v. Allen (2007) 42 Cal.4th 91.
However, neither Ghilotti nor Allen demonstrates these cases were wrongly decided on the issue of fundamental jurisdiction. In Ghilotti, the issue was whether the filing of the petition supported by two evaluators is an important stage of the commitment procedure. Ghilotti concluded it was but did not characterize that stage as fundamental and did not discuss the consequences of failing to comply with a specific aspect of that procedure. In Allen, a petition to declare an individual a mentally disordered offender was not filed until after a prior commitment had expired. No similar lack of jurisdiction occurred here as all the required steps to declare Hale a sexually violent predator were undertaken in timely manner. (See People v. Whaley (2008) 160 Cal.App.4th 779, 804.)
Thus, the trial court had fundamental jurisdiction to determine the merits of the commitment petition filed against Hale.
Hale contends that if we disagree with his assertion regarding fundamental jurisdiction, he nonetheless is entitled to new evaluations pursuant to In re Ronje, supra, 179 Cal.App.4th 509. In Ronje, the defendant filed a petition for writ of habeas corpus seeking dismissal of a pending commitment petition on the ground his evaluations were conducted under an invalid assessment protocol. (Id. at p. 513.) Ronje held that, because the issue was raised by writ before the matter was tried, the appropriate remedy was to dismiss the petition. (Id. at p. 517.)
Here, unlike in Ronje, the commitment trial already has occurred. Therefore, Hale must show prejudice as a result of the use of an unapproved protocol in the screening process. As Medina observed, “the probable cause hearing in a SVP proceeding is analogous to a preliminary hearing in a criminal case. Under the rule of People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, which has been regularly applied in SVPA appeals (e.g., People v. Butler (1998) 68 Cal.App.4th 421, 435), irregularities in a preliminary hearing require reversal only if a defendant can demonstrate that he or she was deprived of a fair trial or otherwise suffered prejudice. [Citation.]” (People v. Medina, supra, 171 Cal.App.4th at pp. 818-819.)
Although the evaluations are used to determine whether to file a commitment petition, they ultimately do not affect the merits of whether an individual is a sexually violent predator as the court or jury must make this determination beyond a reasonable doubt. (§ 6604.)
Hale argues he has demonstrated prejudice because it is likely new evaluations would find he did not present a sufficiently high risk of recidivism to warrant the filing of a petition seeking to have him declared a sexually violent predator. He claims the recent acknowledgment of the reduced risk of recidivism for older offenders, as well as the testimony of the defense experts rendered it highly probable he would not have been held to answer under a properly promulgated protocol.
This speculative assertion is insufficient to support a finding of prejudice. Hale has not shown use of the underground protocol tainted the evaluations or the outcome in this case. The 2008 OAL determination did not suggest the assessment protocol was flawed or unreliable as an instrument for assessing whether a person might be a sexually violent predator. Moreover, any errors in relying on the underground regulations have been superseded by the evidence presented at the 2009 commitment trial. (People v. Taylor, supra, 174 Cal.App.4th at p. 938.) We therefore conclude any alleged error by the evaluators in relying on the protocol in the handbook was harmless.
In sum, Hale’s claims of error related to the use of an unapproved evaluation protocol in the determination to file a commitment petition uniformly fail.
DISPOSITION
The order of commitment is affirmed.
We concur: KITCHING, J., , ALDRICH, J.
On October 11, 2006, the parties and the Los Angeles County Superior Court stipulated Hale’s pending commitment proceeding would be treated as seeking a two-year commitment rather than an indeterminate commitment. People v. Castillo (2010) 49 Cal.4th 145 upheld this stipulation in commitment proceedings commenced before the enactment of SB 1128.