Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FC49326
SEPULVEDA, J.
Following a court trial, defendant was adjudged a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA, Welf. & Inst. Code, § 6600 et seq.), and the court committed him for an indeterminate term to the California Department of Mental Health (Department). He argues that the judgment should be reversed because he was evaluated under an invalid protocol, the judgment is not supported by substantial evidence, and the SVPA is unconstitutional in several respects. We conclude that in accordance with the California Supreme Court’s opinion in People v. McKee (2010) 47 Cal.4th 1172 (McKee), defendant has established a potential equal protection violation, and we remand to the trial court to consider defendant’s claim. In all other respects, the judgment is affirmed.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
I.
Factual and Procedural Background
Defendant pleaded no contest on June 23, 1999, to three counts of committing a lewd act upon a child. (Pen. Code, § 288, subd. (a).) He was sentenced to 10 years in prison, and this court affirmed the judgment in a nonpublished opinion. (People v. Oliver (Mar. 23, 2000, A088739).)
On February 20, 2008, shortly before defendant’s scheduled release date, the Solano County District Attorney’s Office filed a petition to commit defendant as an SVP. Defendant waived his right to a jury trial on the petition, and a court trial was held in July 2009. The prosecution presented evidence that defendant was convicted of battery on his girlfriend in 1983 (when he was 14), and that he was convicted of raping his 13-year-old cousin in 1990. He was convicted in 1993 of inflicting injury on a child (his six-week-old daughter), after he “tossed” the infant on a bed when she would not stop crying.
As for the underlying sex crime convictions in this matter, defendant started a relationship in October 1997 (when he was 29) with a woman who had an 11-year-old niece (M.), a nine-year-old daughter (V.), and an eight-year-old daughter (F.). By May of 1998, defendant had committed sex offenses against all three girls. Defendant provided 11-year-old M. with alcohol and showed her pornography in order to “groom” her for offending against her. He raped M., told her to shut up when she told him to stop and that it was hurting her, and he threatened to kill her if she told anyone. Defendant then continued a sexual relationship with M. that lasted for between three and four months.
There is some conflict in the record on the exact ages of V. and F.; however, it is clear that they were about a year apart in age and were both between the ages of eight and 10.
As for V., Defendant rubbed petroleum jelly on her vagina and digitally penetrated her twice, and he threatened V. so that she would not report the abuse. As for F., defendant rubbed her vagina, and told her that if she reported the abuse, he would kill her family. Defendant attributed his behavior to his methamphetamine use.
Defendant testified at trial, and he denied some of the underlying facts of his sexual offenses, which were presented through the testimony of the doctors who evaluated him. Defendant denied that he showed M. pornography or provided her with alcohol, that M. told him that intercourse with him hurt, or that he threatened to kill M. He acknowledged that he was under the influence of methamphetamine when he first had sex with M.
The prosecution also presented the testimony of Will Damon, Ph.D., and Dale Arnold, Ph.D., who were appointed to evaluate defendant before his release from prison. The doctors interviewed defendant, and they reviewed documents related to his criminal history. Both Drs. Damon and Arnold concluded that defendant suffered from a diagnosed mental disorder that predisposed him to commit sexually violent predatory offenses. Dr. Damon diagnosed defendant with pedophilia (a subcategory of paraphilia), amphetamine and cocaine dependence, alcohol abuse, and antisocial personality disorder with narcissistic features. Dr. Damon testified that defendant’s digital penetration of his youngest victims was behavior that “showcased their prepubescence.” He considered it significant that in his interview with defendant, defendant referred to 11-year-old M. “as a little girl and as a kid, ” a sign that M. “was visibly a child.” Dr. Damon testified that pedophiles frequently identify emotionally with children, and he considered it significant that defendant “wasn’t only having sex with M[.], but he also was in love with her, and said that they were in a relationship together.” Dr. Damon acknowledged that an element of a pedophilia diagnosis is that sexual behavior continues for a period of six months, and that here defendant stopped offending against M. after only three or four months. However, Dr. Damon explained that defendant ceased his behavior only because he was arrested for a parole violation, not because he decided he was no longer “turned on by children.” Dr. Damon testified: “Given M[.]’s report that the offending occurred almost nightly for three to four months, I considered that to be a statement to Mr. Oliver’s-the intensity of his arousal, the durability of his arousal, and also in conjunction with his statements that he was in love with M[.], that they were in a relationship, and that she was all he was thinking about. It also made me confident that the offending behavior would have continued, had Mr. Oliver not been arrested in September of 1998.”
Dr. Damon defined paraphilia as involving “recurrent, intense, sexually arousing fantasies, urges or behaviors involving either inanimate objects, the suffering or humiliation of one’s self or one’s partner or children or other nonconsenting partner.” Although a paraphilia diagnosis usually involves behavior that extends over a period of six months, it is a chronic condition that does not change over the course of time. Pedophilia was defined at trial as a type of paraphilia where an adult is focused specifically on children “who do not appear to have developed secondary sexual characteristics.”
Dr. Arnold diagnosed defendant with paraphilia not otherwise specified (NOS) with pedophilic and coercive features, methamphetamine and alcohol dependence, and antisocial personality disorder. Dr. Arnold considered it significant that defendant engaged in sexual activity with 11-year-old M. an average of about three times a week over a period of four months, an indication that he was “specifically sexually aroused to minors.” He also pointed to the fact that defendant sexually offended against two girls (V. and F.) who “were both clearly prepubescent” as being relevant to his diagnosis of paraphilia. Dr. Arnold testified that defendant “technically” met the definition of a pedophile, because all of his victims were under the age of 14. However, because his cousin was almost 14 when she was victimized by defendant and had “some hint” of pubescent features, and because M. was described by her mother as looking as old as 17, it was not entirely clear to Dr. Arnold that defendant was “most aroused to” prepubescent features. Dr. Arnold explained that although a diagnosis of paraphilia generally involves a six-month period of sexual behavior, “if a person falls short of a time criterion, ... you can take into consideration why that time criterion might have fallen short. If they’re incapacitated due to incarceration or something like that.” Here, it was not significant to Dr. Arnold’s paraphilia diagnosis that the behavior stopped before six months, because defendant “didn’t stop sexually abusing M[.] on his own, he stopped because he was incarcerated.”
Defendant presented the testimony of three doctors. Deborah Inman, Ph.D., was appointed to evaluate defendant in 2008. She concluded after a February 2008 evaluation that defendant met the SVP criteria, but she concluded after a subsequent evaluation in March 2009 that he did not meet the criteria. She ruled out a pedophilia diagnosis for defendant, because of the victims’ apparent maturity level and the fact that there was no six-month period of recurrent behavior involving prepubescent children. Although Dr. Inman revised her conclusion about whether defendant met the SVP criteria, she continued to consider defendant “a dangerous, violent person.”
John Hupka, Ph.D., evaluated defendant in December 2007 and concluded that defendant did not have a diagnosable mental disorder that predisposed him to sexually violent offenses. Although Dr. Hupka diagnosed defendant with an antisocial personality disorder, he did not diagnose defendant with paraphilia. He testified, “I just don’t think that the [paraphilia] diagnosis is supported. He doesn’t evidence the intense, recurrent sexually-arousing fantasies, urges, or behaviors that would be consistent with that diagnosis.” Dr. Hupka attributed defendant’s sex offenses instead to his antisocial personality disorder and substance abuse. Both Drs. Inman and Hupka explained that although defendant did not meet the definition of an SVP, they could not rule out the possibility that defendant was a risk for future sex offenses.
Although Brian Abbott, Ph.D., did not personally evaluate defendant, he reviewed various records relevant to defendant’s case, as well as the evaluations by the doctors who testified on behalf of the prosecution. He opined that although defendant appeared to suffer from an antisocial personality disorder, there was insufficient evidence to substantiate the conclusion that defendant was predisposed to engage in sexually violent predatory acts, or that he suffered from pedophilia or paraphilia.
The trial court sustained the petition and found that defendant was an SVP. The court committed defendant to the Department for an indeterminate term. This timely appeal followed.
II.
Discussion
1. Evaluations of Defendant Pursuant to Department Protocol.
In a supplemental opening brief to this court, defendant argues, as he did below in a motion to dismiss that the trial court denied, that the trial court lacked jurisdiction to commit defendant as an SVP because his original commitment was based on evaluations under a protocol that failed to comply with the California Administrative Procedure Act (APA), Government Code section 11340 et sequitur. We disagree.
Following the denial of his motion to dismiss, defendant sought pretrial relief, which this court denied on February 11, 2009. (Oliver v. Superior Court (A123944).) On July 14, 2010, this court granted defendant’s request to take judicial notice of the records in the prior writ proceeding. Respondent subsequently filed a request for judicial notice of the Department’s standardized assessment protocol that was used in this case, and this court issued an order stating that the request would be considered with the merits of the appeal. We hereby grant respondent’s unopposed request.
The APA “requires every administrative agency guideline that qualifies as a ‘regulation, ’ as defined by the APA, to be adopted according to specific procedures. (Gov. Code, § 11340.5, subds. (a), (b).) The Office of Administrative Law (OAL) is charged with, among other functions, enforcing this requirement. (Gov. Code, §§ 11340.2, 11340.5, subd. (b).)” (People v. Medina (2009) 171 Cal.App.4th 805, 813, (Medina).)
In August 2008, the OAL found that provisions of the Department assessment protocol used to evaluate potential SVPs are invalid or “ ‘underground’ ” regulations adopted without APA compliance. (Medina, supra, 171 Cal.App.4th at pp. 813-814.) The OAL found only that the protocol did not comply with California administrative law governing how state agencies adopt regulations; it did not evaluate the clinical value or substantive merit of the protocol. (2008 OAL Determination No. 19 (Aug. 15, 2008) at p. 1.) Following the OAL determination, the Department adopted regulations to support its assessment protocol. (Cal. Code Regs., tit. 9, § 4000 et seq.) However, the use of non-APA-compliant protocol in the SVP screening process prior to 2009 has generated claims, like the one made here, that SVP judgments are invalid.
Division One of this District Court of Appeal has rejected such a claim. (Medina, supra, 171 Cal.App.4th at pp. 813-820.) We concur. We will assume, as did the Medina court, that the OAL was correct in finding that the assessment protocol was an invalid underground regulation. (Medina at p. 815, fn. 4; see also In re Ronje (2009) 179 Cal.App.4th 509, 516-517 [finding protocol invalid].) But we also find, as did the Medina court, that defendant was not prejudiced by the use of an invalid regulation in the screening process. (Medina at pp. 819-820.) Whatever procedural irregularity occurred in the Department’s use of a clinical screening process that found defendant to be a possible SVP was harmless given the trial court’s later legal determination, upon substantial evidence (post, § II.B.), that defendant is an SVP.
The purpose of the clinical assessment “is not to identify [SVPs] but, rather, to screen out those who are not [SVPs]. ‘The Legislature has imposed procedural safeguards to prevent meritless petitions from reaching trial. “[T]he requirement for evaluations is not one affecting disposition on 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.] The legal determination that a particular person is an SVP is made during the subsequent judicial proceedings, rather than during the screening process.” (Medina, supra, 171 Cal.App.4th at p. 814.) Once a petition is filed, the People cannot rely on the evaluations but must show “the more essential fact” that the defendant is an SVP. (People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1130.)
Defendant essentially concedes that he cannot show prejudice, arguing that requiring him to do so “imposes an impossible burden on” him. He claims that “[t]here is simply no way to know how appellant would have been evaluated had he been evaluated under a properly promulgated protocol.” A similar argument was made, and rejected, in Medina, supra, 171 Cal.App.4th at page 820. (Cf. In re Ronje, supra, 179 Cal.App.4th at pp. 517-518 [defendant not required to show prejudice when seeking pretrial relief].) We likewise conclude that defendant fails to carry his burden of demonstrating prejudice.
2. Substantial Evidence Supports Trial Court’s Findings.
Defendant contends that there was insufficient evidence to support the trial court’s finding that he suffered from a qualifying diagnosed mental disorder. In trial on the petition to commit defendant as an SVP, the prosecution had the burden of proving that (1) defendant had been convicted of two separate sexually violent offenses for which he received a determinate term, (2) he had a diagnosed mental disorder which rendered him a danger to the health and safety of others, and (3) his disorder made it likely he would commit predatory sexual offenses if released. (§§ 6600, subd. (a)(1), 6601, subd. (a)(1); People v. Roberge (2003) 29 Cal.4th 979, 985; People v. Hurtado (2002) 28 Cal.4th 1179, 1182.) Defendant does not dispute on appeal the first and third elements: he acknowledges that he suffered two distinct sexually violent offenses, and he does not directly challenge the finding that a diagnosed mental disorder made him “likely” to engage in future predatory acts of sexual violence. He challenges the second element, arguing that there was insufficient evidence that he suffered from a “diagnosed mental disorder” (§ 6600, subd. (a)(1)), which includes “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).)
We review the entire record in the light most favorable to the judgment and determine if it is supported by substantial evidence. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) We do not reevaluate the credibility of the witnesses, nor do we reweigh the strengths of their expert opinion; we must draw all reasonable inferences, and resolve all conflicts in the evidence, in favor of the judgment. (People v. Sumahit (2005) 128 Cal.App.4th 347, 352.) While the evidence must be “ ‘ “reasonable in nature, credible and of solid value” ’ ” (Mercer, supra, at p. 466), we reverse only if no rational trier of fact could have found the essential elements beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269-270.)
Applying this standard of review in the present case, it is clear that the trial court’s determination that defendant qualified as an SVP was supported by substantial evidence. Both prosecution experts concluded that defendant suffered from substance abuse and antisocial personality disorder; one diagnosed defendant with pedophilia, and the other diagnosed him with paraphilia NOS. In sustaining the petition, the trial court stated: “I was impress[ed] by Doctor Arnold. I have to be candid I thought the bases that he expressed for his opinion, the matters that he considered were reasonable.” The court acknowledged that defendant’s experts disagreed with the conclusions of the prosecution’s experts, but concluded: “I just find that... Doctors Arnold and Damon’s opinions are more reasonable on the facts or on the record that they reviewed and considered and on what I heard.” The court stressed that although it was unclear whether a diagnosis of antisocial personality disorder could be a qualifying mental disorder for purposes of the SVPA, “we don’t have that here. We have a lot of other evidence.”
Although defendant acknowledges the deferential standard of review, and also acknowledges that an SVP commitment may be premised on a properly established diagnosis of paraphilia NOS (e.g., People v. Burris (2002) 102 Cal.App.4th 1096, 1110), his lengthy argument essentially amounts to asking this court to reweigh the evidence and reevaluate the credibility of witnesses, something we cannot do on appeal. (People v. Sumahit, supra, 128 Cal.App.4th at p. 352.) Defendant challenges Dr. Damon’s pedophilia diagnosis, emphasizing evidence that two of defendant’s victims (his cousin and 11-year-old M.) did not appear to be prepubescent. Defendant also attacks Dr. Arnold’s paraphilia diagnosis, claiming that there was insufficient evidence that defendant experienced sexually arousing fantasies, urges, or behaviors over a period of six months (an element of a paraphilia diagnosis), and insufficient evidence that his sexual misconduct was attributable to a mental disorder (as opposed to a “generally criminal attitude”). These issues were addressed at length during the court trial during direct and cross-examination, with the trial court clearly giving more weight to the prosecution’s experts than defendant’s experts.
A rational trier of fact could have found the essential elements of an SVP determination beyond a reasonable doubt, and we conclude that substantial evidence supports the trial court’s determination. (People v. Rowland, supra, 4 Cal.4th at pp. 269-270.)
3. Constitutional Challenges to SVPA.
Defendant next contends that the indeterminate term of commitment authorized by the SVPA violates the equal protection clause, the due process clause, and the ex post facto clause of the United States Constitution, and that it constitutes double jeopardy and cruel and unusual punishment. Although defendant failed to object on these grounds below, we decline respondent’s invitation to treat the issues as forfeited. (People v. Vera (1997) 15 Cal.4th 269, 276 [defendant not precluded from raising deprivation of “certain fundamental, constitutional rights” for first time on appeal]; People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5 [addressing double jeopardy claim raised for first time on appeal]; People v. Mattson (1990) 50 Cal.3d 826, 854 [addressing issues to forestall later claim of ineffective assistance of counsel, where new theories raised only issues of law].)
The California Supreme Court in McKee, supra, 47 Cal.4th at pages 1193-1195, rejected defendant’s due process and ex post facto challenges to the SVPA, and we are bound by that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The McKee court also reaffirmed that an SVPA proceeding is a civil matter, not punitive in nature. (McKee at pp. 1194-1195.) A civil commitment procedure does not constitute a second prosecution for purposes of the double jeopardy clause. (Kansas v. Hendricks (1997) 521 U.S. 346, 369.) As defendant’s commitment is civil in nature, it does not run afoul of the double jeopardy clause. (Ibid.) Moreover, although the SVPA results in a loss of freedom, defendant is not a prisoner, and defendant’s cruel and unusual punishment claim likewise fails. (People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2.)
Defendant acknowledges that all of the arguments addressed in the preceding paragraph fail under McKee, supra, 47 Cal.4th 1172. He presents them solely to preserve them for federal review.
As for defendant’s equal protection challenge, the McKee court held that the state “has not yet carried its burden of demonstrating why SVP’s, but not any other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment, ” and remanded the case to the trial court to determine whether the People can demonstrate constitutional justification for indefinite commitments imposed on SVPs under the SVPA. (McKee, supra, 47 Cal.4th at p. 1184.)
The Supreme Court has issued dispositional orders in those cases pending review in light of McKee. (E.g., People v. Schuler, review granted and transferred to Court of Appeal, Sixth Appellate District on Sept. 1, 2010, S183062.) The Court has directed that “in order to avoid an unnecessary multiplicity of proceedings, ” the courts are to suspend further proceedings pending finality of the proceedings in McKee, supra, 47 Cal.4th 1172. Rather than stay the proceedings in this court, as respondent urges, we shall remand the matter and direct the trial court to suspend proceedings pending the finality of McKee.
III.
Disposition
Respondent’s request for judicial notice is granted. The judgment is reversed and the case is remanded to the trial court for reconsideration of defendant’s equal protection claim in light of McKee, supra, 47 Cal.4th 1172. The trial court also is directed to suspend further proceedings pending finality of the proceedings in McKee, including any proceeding in the Superior Court of San Diego County in which McKee may be consolidated with related matters. “Finality of the proceedings” shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court. In all other respects, the judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.