Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. CF98910195-7, Hilary A. Chittick, Judge.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Ruben Seja was convicted of committing lewd and lascivious acts upon a child. He was then found to qualify as a sexually violent predator (SVP) and was committed to the custody of the Department of Mental Health (DMH) for an indeterminate term. On appeal, he contends (1) his right to due process was violated because he was not brought to trial until almost four years after the probable cause determination; (2) insufficient evidence supported the jury’s finding that he was an SVP; (3) the amended SVP statute violates his equal protection rights; (4) his indeterminate commitment violates due process, the ex post facto clause, and the prohibition against cruel and unusual punishment. We will reverse the indeterminate term commitment and remand for a hearing pursuant to People v. McKee (2010) 47 Cal.4th 1172 (McKee) to determine whether the commitment violates equal protection. We will affirm in all other respects.
PROCEDURAL SUMMARY
On July 29, 1998, defendant was convicted by guilty plea of two counts of lewd and lascivious acts upon a child (Pen. Code, § 288, subd. (a)), and was sentenced to a total of eight years in state prison
On July 12, 2005, prior to defendant’s release on parole, the Fresno County District Attorney filed a petition alleging that defendant met the criteria for commitment as an SVP under the provisions of Welfare and Institutions Code section 6600 et seq., the Sexually Violent Predator Act (SVPA). The district attorney sought a two-year commitment, in accordance with the then-current provisions of the SVPA.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
On September 13, 2005, a probable cause hearing commenced, and two days later the court found probable cause to believe defendant met the criteria for commitment as an SVP. The court ordered defendant held in the custody of the DMH pending trial on the petition.
On February 2, 2009, three years and five months later, and after numerous continuances, trial on the petition commenced. On February 13, 2009, a jury found the allegations of the petition true and the trial court ordered defendant committed to the DMH for an indeterminate term in accordance with the newer provisions of the SVPA.
On July 22, 2009, defendant filed a motion for a new trial on the ground that the verdict was contrary to the law and the evidence, and on the ground of juror misconduct. On August 24, 2009, the trial court denied the motion as untimely.
On March 19, 2010, we granted defendant’s request to file a belated notice of appeal. On March 26, 2010, the superior court complied with our order and filed defendant’s notice of appeal.
FACTS
At the time of trial, defendant was 58 years old and in custody at Coalinga State Hospital.
Dr. Vognsen, a psychologist, had been on the SVP assessment panel of the DMH since 1997, one year after the program began. He had conducted about 500 initial evaluations and about 200 update evaluations. He had testified about 300 or 400 times, for both the prosecution and defense.
Vognsen first evaluated defendant in 2005. Before interviewing him, Vognsen reviewed defendant’s criminal records, FBI records, prison records, mental health evaluations, jail bookings, court records, police records, and a summary of the case from the Board of Prison Terms.
In March 2008, Vognsen conducted an update interview of defendant to determine whether anything had changed that might affect his diagnosis, such as a change in physical status or involvement in counseling.
Mental Disorder
In 2005, Vognsen diagnosed defendant with a mental disorder: paraphilia not otherwise stated (NOS) with an attraction to sex with nonconsenting female victims. Vognsen explained that “[p]araphilia” is “odd sexual behavior in general. Any oddity, any peculiarity of a sexual object, sexual activity with that object could lead to a diagnosis of paraphilia. The love of the different ….” Paraphilias are listed in the Diagnostic and Statistical Manual (DSM-IV), which defines mental disorders. A critical component of paraphilia NOS with nonconsenting female victims is that the person is sexually aroused by the physical combativeness of the nonconsenting female—her screaming, crying, spitting, and struggling. In Vognsen’s opinion, defendant continued to suffer from paraphilia NOS at the time of trial.
Vognsen relied on defendant’s sexual crimes, which he described at trial. First, when defendant was 21 years old, he and two other men engaged in a planned attack in which they repeatedly raped a 15-year-old girl. Defendant knew the girl casually. The girl was babysitting when defendant and the other men came to the door and lured her outside by telling her that her boyfriend was there. After she followed the men around the corner, they put a sharp object against her throat. Defendant raped her, then held her down while the other two men took their turns raping her. When they were done, defendant took the girl to a vineyard and raped and sodomized her.
Second, when defendant was 26 years old, he and another man were standing outside a restaurant when defendant’s (separated) wife and her friend came by in a car. They conversed and the women invited the men to come along. They drove around, drank beer and wine, and eventually dropped the friend off at her house. Then, instead of taking the wife to her house, the two men took her to a park where defendant and the wife started hugging and kissing. Defendant had partially unclothed the wife when the other man approached and defendant told him, “Go ahead on.” Defendant stepped aside and held down the wife while the other man raped her. The wife, who was pregnant, asked them not to do it because they were going to hurt her baby. She cried, screamed, and vomited. As she struggled, defendant hit her to keep her compliant. Although defendant did not complete the sexual act himself, in Vognsen’s opinion he was a full participant in the rape.
When they were done, defendant told the wife they were going to get her friend, a fact that Vognsen found peculiar, sadistic, and brutal, particularly because the men were not deterred from further crime by a vomiting victim. They went to the friend’s house and entered through the window. She was asleep in bed next to her baby. She woke up with defendant on top of her and both men fondling her. Defendant raped her with the baby still next to her. When the baby started crying, defendant took the baby out of the room and the other man raped the friend.
When Vognsen asked defendant about these events, he said, “[Y]es, it happened a long time ago, I try not to think about those things.”
On cross-examination, defense counsel suggested that defendant’s behavior in these last two incidents showed he had control over himself. Vognsen responded: “See, I don’t think that’s evidence of control that he steps aside and let[]s his accomplice rape his wife when he’s holding her down forcing her to submit. I think that’s a sexual act also. So I don’t think that shows control, it shows the opposite to me.” When defense counsel suggested that defendant’s leaving the room with the baby was evidence of his control, Vognsen responded that the evidence did not establish that defendant interrupted the rape before he took the baby out.
Third, when defendant was 44 years old, he and his (other) wife were arguing about a sexual affair defendant was having with another woman. Defendant began hitting her, throwing her to the ground, pulling her hair, and slamming her against the wall. He dragged her to the bedroom, stimulated himself to get an erection, and raped her. Defendant claimed it was consensual sex. He ultimately pled guilty to corporal injury on a spouse.
When Vognsen asked defendant about this event, he said it was not rape. He admitted he and his wife had argued and struggled because he was angry with her for having an affair with another woman, but he maintained that the sex was consensual. According to Vognsen, the relationship between the three people was not clear, but the wife was injured, and the physical struggle led Vognsen to conclude defendant had been aroused by the physical combat. Vognsen clarified that this type of arousal arises from a psychological disorder, not excess sexuality, which explains why defendant did not have an erection. Committing the rape was more a mental than a physical desire.
Fourth, in 1998, when defendant was 47 years old, he committed offenses against a seven-year-old girl. They lived in the same apartment complex, where defendant was the handyman. They developed a relationship and the girl sometimes helped defendant do chores. On several occasions, defendant put her hand on his penis, over his clothing, and had her rub him. This happened over the course of several days until the girl told her mother.
When Vognsen asked defendant about these events, he admitted them, but gave no details. In the 2008 update interview, he said, “I didn’t do anything to her, she did it to me.” Vognsen told him, “Wait a second, it was you who took her hand…. [S]he was the victim ….” It was as if defendant had begun thinking of himself as the victim. At that point, defendant started crying and said, “Yeah, that’s the one I feel really bad about.” Vognsen believed defendant’s emotion was genuine, but it was his own humiliation, not sympathy for the girl.
On cross-examination, Vognsen explained that the paraphilia NOS diagnosis was a current diagnosis, but it did not require evidence of current sexual behavior to support it. He said, “[T]he behavior that comes out of that diagnos[i]s comes out under special circumstances typically, so—and these circumstances don’t always exist in prison and at the hospital. If you attack sexually a female staff person, you’re in trouble. They carry sometimes guns and sticks, and staff come flying and it’s not a wise thing to do. You don’t get a victim that you can subjugate, which seems to be the intent of sex with a non-consenting other, that you subjugate somebody, not that you get subjugated as a consequence. So that leads to a different kind of behavior in prison and at the state hospital.”
In addition to the paraphilia diagnosis, Vognsen also cautiously diagnosed defendant with pedophilia because his last three offenses were against the seven-year-old girl, but this interest had not been exhibited earlier, so Vognsen did not feel confident with the diagnosis.
Vognsen also diagnosed defendant with alcohol and heroin dependence. These findings were based on defendant’s admission that he began using alcohol and heroin at age 13. He said his heroin usage quickly increased to a habit costing $300 to $400 per day, and he committed robberies and burglaries to support the habit. He said he stopped in 1998, but there was evidence that he was involved in inmate-manufactured alcohol in 2004. Defendant said he made the alcohol and sold it to other inmates in prison. There was also evidence he had been drinking in the hospital in 2006. He said he was going to enroll in Alcoholics Anonymous, but he had not done so by March 2008.
In addition, Vognsen diagnosed defendant with depressive disorder and major depressive disorder. Defendant reported that he had experienced auditory and visual hallucinations. He said he was currently on antipsychotic medication and his symptoms had subsided. Vognsen believed defendant was depressed at the time of the 2005 interview, but not at the time of the 2008 interview.
Lastly, Vognsen diagnosed defendant with antisocial personality disorder, a predisposition to breaking the law. Vognsen described it this way: “To not have the respect for the rights of others, to take what you want, when you want it, from whoever has it.” Defendant exhibited evidence of this disorder since before the age of 15. According to Vognsen, defendant “very easily qualifie[d]” for the antisocial personality disorder diagnosis due to his many different types of offenses, including murder, racketeering, car theft, and gang-related crimes. He told Vognsen he had been a killer for hire who “would do anybody” for $2,500 to $3,000 as part of a gang. Defendant had been constantly offending since he was 16 years old, at which time he was placed in California Youth Authority. In adulthood, he had no long periods of out-of-custody time without criminal activity. But, in the hospital where he was in custody at the time of trial, he was regarded as a well-behaved patient who was respectful and polite, which is not uncommon with antisocial disordered people who find themselves confined. Defendant was being a good patient, except that he was not involved in any therapy offered at the hospital.
Vognsen summarized that he came to the opinion that defendant suffered from a diagnosed mental disorder, paraphilia with an attraction to nonconsenting sex. The deviant sexual urges created by that disorder were fueled by his substance abuse, antisocial personality disorder, and depression.
Likelihood of Reoffending
Vognsen explained that to qualify as an SVP, an offender must pose a serious and well-founded risk of reoffending. In Vognsen’s opinion, this risk need not be 51 percent or higher, but rather just a good chance or around 30 percent. Vognsen determined that defendant posed a serious and well-founded risk of committing a new sexually violent predatory act after his release.
Vognsen’s procedure in assessing defendant’s risk began with actuarial risk prediction instruments that take into account various factors and make statistical assessments of ongoing risk. In 2005, Vognsen used two instruments, and in 2008, he used two more. Vognsen believed in using multiple instruments because they did not always give the same prediction. In this case, however, all four instruments identified defendant’s risk of reoffending as high.
The first two instruments Vognsen used were the Rapid Risk Assessment of Sexual Offender Recidivism (RRASOR) and the Static-99. The RRASOR was a simple instrument that considered four factors—prior sex offenses, age, male victim, and unrelated victim. This instrument calculated defendant’s risk as high.
The Static-99, which was considered the gold standard, became available in 1999, and had been updated in July 2008 with data from 6, 000 to 7, 000 offenders (about three times the original number). It had been cross-validated with studies of groups of people from all over the world, and it was a moderately accurate predictor of sexual reoffending. The Static-99 considered ten factors, all of which were static, historical elements that could not be improved over time—not cohabiting for more than two years, prior sex offenses, prior nonsexual violence, type of most recent offense, number of sentencing dates, noncontact sexual offenses, age, male victim, and unrelated victim. This instrument identified defendant’s risk as high and that risk had not changed at the time of trial.
Before the Static-99 was updated, defendant scored a seven, which meant he was estimated to have a 52 percent chance of being convicted of a new sexual offense within the 15 years after his release. After the Static-99 was updated, defendant was estimated to have between a 17.4 and 32.7 percent chance of being charged or convicted of a new sexual offense over the five years after his release, and his risk over 10 years was between 23 and 42.8 percent. Vognsen believed defendant’s risk was on the high end of these ranges because he had consistently refused to involve himself in any type of therapy offered at the hospital, whether for sex offenses or other behavior. Vognsen explained that some offenders refuse to participate in sex offender therapy because they have to make admissions and submit to a penile plethysmograph to determine their sexual response to various stimuli. But defendant also refused to participate in programs not involving these aspects, such as making a relapse prevention plan. Defendant told Vognsen he did not need therapy because he was not a sex offender or a predator. Further, he did not want to participate because “they only use it in court against you.” Vognsen found this to be a peculiar statement because defendant’s sex offenses were already known.
The newer Static-2002 gave lower risk estimates for defendant (8.4 to 20.5 percent over five years and up to 28.2 percent over 10 years), but Vognsen believed the Static-2002 was not well-tested and not as reliable as the Static-99.
The third instrument Vognsen used was the Minnesota Sex Offender Risk Assessment Tool (MnSOST-R), which considered static factors—prior sex offenses, time span of sex offenses, sex offenses during parole/probation, sex offenses in public places, sex offenses with force or threat, several sex acts in one incident, sex offenses against different age groups, sex offenses against children between 13 and 15 years old, sex offenses against strangers, antisocial behavior in adolescence, substantial drug/alcohol use during the 12 months preceding the instant offense, and employment history. It also considered changeable factors—discipline while incarcerated, chemical dependency treatment while incarcerated, sex offender treatment while incarcerated, and age at time of release. The MnSOST-R estimated that defendant was in the very high risk range.
The fourth instrument applied by Vognsen was the Sexual Offender Recidivism Appraisal Guide (SORAG), which predicted not only the risk of a sexual offense, but also that of a nonsexual violent offense. The test considered the following factors—growing up with both parents, elementary school maladjustment, history of alcohol problems, cohabitation for six months, nonviolent offenses, violent offenses, sex offense convictions, sex offenses only against girls under 14 years, failure on prior conditional release, age at instant offense, personality disorders, unresponsive penile plethysmograph, and psychopathy. The SORAG estimated that defendant was in the high risk group.
Vognsen explained an offender’s age is a critical factor because increasing age reduces the risk of reoffending. Typically, reoffending decreases after the age of 50. Rapists in particular begin to slow down around the age of 35 or 40. Thus, Vognsen would assess an offender to determine whether he was typical and his offending would drop off after age 50, or whether there was something atypical about that offender. Vognsen cited a study demonstrating that common sex offenders with only one or two sentencing dates tended to drop off after age 50, whereas high risk sex offenders with three or more sentencing dates posed a high risk until the age of 60. In other words, the study showed a sharp distinction between sex offenders with few sentencings and those with many. Defendant fell into the second group and thus his estimated risk would not decrease until he was 60 years old.
Vognsen would also consider an offender’s physical health because it affects sexual desire and the ability to physically commit violent crime. Vognsen determined that defendant did not suffer from any serious health problems that would keep him from committing the types of offense he had committed before.
Vognsen would also evaluate an offender’s plans for his future and how he would deal with release. Defendant told Vognsen that he planned to live with his sister, then move to Alaska to find work, or take a job at the Oregon state prison. Defendant did not think he would participate in sex offender treatment unless he was required to do so because he did not consider himself a sex offender. Vognsen considered this an unfavorable factor.
In Vognsen’s 2008 evaluation, he reviewed defendant’s hospital records and found that defendant had been a well-behaved patient. This factor was favorable, but the hospital was a very benign, low-stress environment with both freedom and supervision. Moreover, defendant had not subjected himself to the stress of sex offender treatment, which would have made his good behavior a much more favorable factor.
On cross-examination, Vognsen stated he was not aware that defendant was currently taking nitroglycerin for heart problems. Vognsen thought the heart problems might make defendant cautious about his physical activity.
Defense Evidence
Dr. Viglione had been performing evaluations for the SVP assessment panel since 2002. In his May 2005 interview of defendant in prison, defendant was cooperative, but flippant and not very serious. He presented himself as a tough guy. He had a lot of energy and could partake in physical activity. He was rebellious and showed little remorse for his crimes or sympathy for his victims. Viglione applied the Static-99 test and gave defendant a score in the six-to-eight range. Viglione determined that defendant fit the criteria of an SVP.
Viglione performed an update interview in February 2008 at Coalinga State Hospital. This time, defendant was more cooperative and serious. He took more accountability for his crimes and expressed an interest in trying to improve his life. He said it was important for him to put his criminal history behind him, change his life, and take more responsibility. He seemed to show remorse for his crimes and concern for his victims. Viglione believed defendant’s attitude had matured. Viglione also thought that after two and one-half years, defendant’s age had made him considerably less of a risk. He had back problems and felt that he was getting old. His energy level was lower and he said he did not have much sexual interest. Defendant planned to stay away from drugs and alcohol, but he was not particularly interested in sexual offender treatment. The hospital’s therapist told Viglione that defendant had been cooperative, helpful, polite, and reasonable. He had presented no problems and required no disciplinary action. Viglione believed defendant had controlled himself during his time at the hospital, although he noted that the hospital was a controlled environment and defendant knew he was being watched. In sum, Viglione did not think there was a serious and well-founded risk that defendant would reoffend if released. For this reason, Viglione determined in 2008 that defendant no longer fit the criteria of an SVP.
On cross-examination, Viglione stated he had diagnosed defendant with paraphilia NOS, a rare mental disorder, in both 2005 and 2008. Viglione believed that if defendant were to use alcohol and quit taking his medications, his risk of reoffending would increase.
Dr. Schwartz had joined the SVP assessment panel in 1996. In 2005, Schwartz interviewed defendant in prison, and in 2008, he interviewed him at Coalinga State Hospital. For his January 2009 addendum, he did not request any additional records and did not interview defendant. During both interviews, defendant was cooperative and did not seem to be faking his answers. In the second interview, Schwartz noticed no notable changes based on defendant’s age. Defendant did, however, suffer from some physical ailments, such as cirrhosis, hypertension, and back injuries. Schwartz thought defendant’s vitality and energy did not seem different from that of most other men. Schwartz diagnosed defendant with antisocial personality disorder and multiple substance abuse, but not paraphilia. He viewed defendant’s behavior as more violent than paraphilic. Schwartz did not diagnose defendant with a mental disorder that qualified him as an SVP.
Defendant’s Static-99 score was seven. He fell into the high risk category of the Static-99 and the moderate risk category of the Static-2002.
On cross-examination, Schwartz noted that defendant reportedly had been found under the influence at Coalinga State Hospital in 2006. In another incident the same year, he was involved in a physical altercation with another patient.
Dr. Coles had been a member of the SVP panel since 2002. His first interview of defendant was in prison. He analyzed defendant with the Static-99 and concluded defendant met the criteria of an SVP. In 2008, Coles interviewed defendant in Coalinga State Hospital and found that he still met the criteria of an SVP. In January 2009, however, Coles interviewed defendant a third time and changed his opinion. It was a close case, given defendant’s age and health. Coles found him to pose a moderately high risk for reoffending. Defendant had aged and newly released statistics lowered defendant’s risk. Thus, although Coles still diagnosed defendant with paraphilia NOS, nonconsenting sex with children and adults with sadistic features, Coles no longer believed defendant posed a serious, well-founded risk of committing a sexually violent offense. Thus, he no longer met the SVP criteria.
Dr. Anderson, hired by the defense to examine defendant, was not on the SVP assessment panel. He diagnosed defendant with schizo-affective disorder, but not any mental disorder that would predispose him to commit sexual offenses. Anderson did not conclude that defendant was a paraphilic type of rapist; his rapes were criminal, based on decisions he made. Anderson’s opinion was that defendant had no internal sexual disorder strongly predisposing him to sexual offenses. His risk of reoffending was only about two percent, which was not a serious and well-founded risk.
Arthur Campos, a psychiatric technician at Coalinga State Hospital testified that defendant was very cordial and caused no trouble during his stay at the hospital. Campos had not seen defendant lose his temper, act violently, or engage in sexual behavior.
Barbara Anderson, a psychiatric technician at Coalinga State Hospital, worked on defendant’s unit for about one year in 2005. She never saw defendant engaging in arguments, fights, or any type of violent or sexual behavior. He got along well with hospital staff.
Armando Portanova, a psychiatric technician at Coalinga State Hospital during 2006 and part of 2007, never observed defendant lose his temper. Defendant tended to keep to himself. His peers treated him with respect and he held a position of ward government. He was appropriate and cordial toward staff.
On cross-examination, Portanova admitted he had not heard about defendant’s physical altercation. He said he was not always on duty and he did not know everything that happened at the hospital. In addition, he did not know what happened after he was transferred in 2007.
Aimee McGinnis, a psychiatric technician at Coalinga State Hospital, worked on defendant’s unit for about one year. She had never observed defendant displaying any behavior that was out of control or sexual. Defendant was a role model for other patients and he got along with the staff. He was pleasant and appropriate.
Defendant testified that after he was imprisoned for the rape and sodomy of the 15-year-old girl, he joined a gang in prison. He made and sold alcohol while he was in prison. He explained that he had not participated in sex offender treatment because he would be required to sign a contract providing that anything he said in treatment could be used against him in court. He intended to register as a sex offender when he got out and then live with his sister and attend church. Eventually, he would go to Oregon for a fresh start away from the gang. He explained the incidents in the hospital as intervening in a fight and participating in a peaceful strike.
Defendant explained that he knew himself well, and he knew that he would not commit sex offenses in the future. He said: “I ain’t got no things about—no demon thoughts about committing any crime, not just that kind of crime or—I’m talking about everything in general.” He had thought about his victims, even though he did not like to. When he was a cold-blooded person, it did not bother him, but since he had gotten older, he started thinking about his crimes and they bothered him a great deal. He believed he was a different person because he was getting old and he was tired of serving time. He thought it was time for him to take care of himself and quit getting into trouble. He had arthritis and problems with his heart, back, nerves, and liver. Since his heart attack, he was afraid of athletic activity. He was also taking antipsychotic medication.
On cross-examination, defendant explained that he did not think he needed sex offender treatment because he did not believe he was a sex offender. He explained that he did not plan the rape and sodomy of the 15-year-old girl. He and his friends had been drinking. Defendant took her because he wanted her. It had nothing to do with any gang affiliation. The rape of his wife and her friend also started with drinking. Again, there was no planning involved; his impulses kicked in and it just happened. The decision to go to the friend’s house was again the result of impulses that took over. He explained that the incidents with the seven-year-old girl did not sexually excite him. He just did it out of stupidity and impulses that overcame him. He knew all the offenses were wrong when he was doing them. All of these things he did because of impulses, not gang affiliation.
Yolanda Seja, defendant’s sister, testified that all of the siblings in her family suffered from alcohol problems. Yolanda had not seen defendant much because he had been in prison most of her life. She had just started speaking with him several months before trial. He used to be mean, hateful, and violent, even to his family, but now she could tell that his voice had changed. Now they spoke about God and going to church. Defendant said he wanted to change. He talked about moving out of California to make a fresh start. Yolanda believed defendant was a changed person.
DISCUSSION
I. Excessive Pretrial Delay
Defendant contends the excessive delay of three years and five months in bringing him to trial violated his due process rights. He recognizes that the SVPA does not provide a specific time frame within which trial on the petition must be held, but he asserts that due process requires trial within a meaningful time. We conclude defendant’s due process rights were not violated.
A. Background
On September 13, 2005, the probable cause hearing began, and on September 15, 2005, the court found probable cause to believe that defendant met the criteria for commitment as an SVP. A discussion was held about waiving time for trial, and defendant waived time until December 8, 2005, plus 30 court days. The parties agreed to set trial confirmation for December 1, 2005, and trial for December 8, 2005. Defendant was placed in the custody of the DMH.
On December 1, 2005, the court granted defendant’s request for a continuance.
Defendant was not present for most of these hearings. Our reference to defendant’s actions at these hearings includes defense counsel’s actions on defendant’s behalf.
On December 8, 2005, defendant entered a general time waiver for trial and the court granted defendant’s request for a continuance. By declaration, defendant requested that his trial date be postponed until early 2006 so examinations and reports could be completed.
On December 15, 2005, and January 19, 2006, defendant entered general time waivers.
On February 23, 2006, defendant entered a general time waiver, and the court granted his request for a continuance to investigate an expert witness.
On April 21, 2006, defendant entered a general time waiver.
On July 6, 2006, the court granted defendant’s request for continuance, leaving the July 17, 2006 trial date set.
On July 13, 2006, the court found good cause to continue the trial.
On September 7, 2006, on October 5, 2006, and on November 30, 2006, defendant entered general time waivers.
On February 22, 2007, defendant entered a general time waiver, and the court granted his request for a continuance to hire another doctor.
On May 3, 2007, defendant entered a general time waiver, and the court granted defendant’s request for a continuance.
On October 18, 2007, the court granted defendant’s request for a continuance to allow him to be re-evaluated; defendant entered a general time waiver.
On December 6, 2007, the court granted defendant’s request for a continuance to get updated reports.
On January 24, 2008, the court granted defendant’s request for a continuance to get the status on his doctor’s reports.
On February 8, 2008, and June 5, 2008, defendant entered general time waivers.
On January 22, 2009, a trial confirmation hearing was set.
On February 2, 2009, the case was assigned to a department and judge, and jury trial began.
B. Analysis
Involuntary commitment to a mental institution is subject to the due process protections of the Fourteenth Amendment. “[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.]” (Addington v. Texas (1979) 441 U.S. 418, 425; see also Vitek v. Jones (1980) 445 U.S. 480, 493-494 [convicted felon is entitled to due process protection before being found to have a mental disease and transferred to a mental hospital].) The California Supreme Court recognizes, “[a]n SVPA commitment unquestionably involves a deprivation of liberty, and a lasting stigma.” (People v. Hurtado (2002) 28 Cal.4th 1179, 1194; People v. Litmon (2008) 162 Cal.App.4th 383, 400 (Litmon).)
The SVPA does not contain a requirement for when trial must be held. Once probable cause is found, the SVPA requires that “the person remain in custody in a secure facility until a trial is completed ….” (§ 6602.) The person is “entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports.” (§ 6603, subd. (a).) But cases have recognized “‘the “fundamental requirement of due process”—“the opportunity to be heard ‘at a meaningful time and in a meaningful manner’”’” applies in this context. (Litmon, supra, 162 Cal.App.4th at p. 396.) Thus, the trial court must “ensure the matter proceeds to trial within a reasonable time.” (Orozco v. Superior Court (2004) 117 Cal.App.4th 170, 179 (Orozco).)
“The ultimate responsibility for bringing a person to trial on an SVP petition at a ‘meaningful time’ rests with the government.” (Litmon, supra, 162 Cal.App.4th at p. 406.) But courts have also recognized that a delayed trial does not violate the defendant’s due process rights where the defendant or his counsel is responsible for the delay. (See Barker v. Wingo (1972) 407 U.S. 514, 529 (Wingo) [speedy trial claim in criminal case; “if delay is attributable to the defendant, then his waiver may be given effect”]; Orozco, supra, 117 Cal.App.4th at p. 179 [“the delay herein did not deprive the trial court of jurisdiction to proceed on either petition”].)
In Wingo, the Supreme Court identified four factors to balance in a speedy trial analysis—“Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Wingo, supra, 407 U.S. at p. 530, fn. omitted.) The court explained: “[T]he defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.” (Id. at p. 528; see also Orozco, supra, 117 Cal.App.4th at p. 179.) “The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. [The Supreme Court] emphasize[d] that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” (Wingo, supra, at pp. 531-532; see also Orozco, supra, at p. 179 [in determining if delay violated due process right, we must consider whether “record reflects the delay in bringing the matter to trial was attributable to [the defendant’s] counsel and/or to [the defendant] himself”].)
Here, the record reflects that defendant and/or his counsel contributed in large part to the delay by requesting nine continuances throughout the course of the proceedings. The record also reveals that defendant or counsel did not object to the delays, but made repeated general time waivers. Under these circumstances, although the delay was indeed long, we conclude that defendant’s failure to assert his right makes it difficult for him to prove he was denied the right to due process. Furthermore, there is no evidence defendant was prejudiced by the delay. Indeed, the passage of time favored him by improving his prognosis in the opinion of some of the experts. For these reasons, we cannot say the delay violated defendant’s due process rights.
In the alternative, defendant asserts that defense counsel provided ineffective assistance by failing to object to the unreasonable delay in bringing the case to trial and by failing to move to dismiss the petition on the same ground. Claims of ineffective assistance of counsel are more appropriately litigated in a habeas corpus proceeding. Where, as here, the record does not show why counsel failed to act in the way defendant claims he should have, we must reject an ineffective counsel claim based only on the record on appeal. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) A verified petition for habeas corpus allows a defendant to allege facts outside the appellate record to show that counsel’s failure to object was not justified by a tactical choice or other legitimate reason, and thus might constitute ineffectiveness. (See People v. Michaels (2002) 28 Cal.4th 486, 526; People v. Anderson (2001) 25 Cal.4th 543, 569.)
Contrary to defendant’s claim, the record on appeal does not show that defense counsel necessarily acted without a tactical reason. For defendant to prevail on direct appeal, he has to show “no satisfactory explanation” for counsel’s conduct (People v. Anderson, supra, 25 Cal.4th at p. 569), or “no rational tactical purpose for [counsel’s] act or omission” (People v. Fosselman, (1983) 33 Cal.3d 572, 581). Defendant has not made such a showing.
II. Sufficiency of the Evidence
Defendant contends insufficient evidence supported the finding that he was an SVP. He points out that three of the four DMH-retained experts who evaluated him determined he did not meet the SVP criteria. He maintains that the testimony of Vognsen did not constitute substantial evidence. We disagree.
A. Law
A person may be committed as an SVP only if the district attorney proves the following elements beyond a reasonable doubt: (1) the person was convicted of a sexually violent offense against one or more victims (two or more victims under the former version of the SVPA); (2) the person suffers from a diagnosed mental disorder affecting his volitional or emotional capacity; and (3) the disorder makes the person a danger to the health and safety of others in that it is likely that he will engage in future acts of sexually violent behavior. (§ 6600, subd. (a); Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143-1148.)
When a defendant challenges the sufficiency of the evidence to support an SVP commitment, we apply the same test we apply in criminal cases. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) Thus, we review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the finding. (Ibid.) “[T]his court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment.” (People v. Poe (1999) 74 Cal.App.4th 826, 830.) In particular, we may not reassess the credibility of experts or reweigh the relative strength of their conclusions. (Id. at p. 831.) Mere disagreement among experts does not establish a lack of substantial evidence to support the judgment rendered. (See id. at pp. 830–831.) Although we review the whole record, “[t]he uncorroborated testimony of a single witness is sufficient to sustain a [finding], unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296; People v. Panah (2005) 35 Cal.4th 395, 489.) 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.)
B. Analysis
Defendant disagrees with Vognsen’s diagnosis and his interpretation of defendant’s criminal acts. Specifically, defendant argues there was no evidence he was sexually aroused by the physical combativeness of his victims. As Vognsen explained, however, evidence that some of defendant’s sexual crimes occurred after physical resistance by his victims supported such an inference, and we are not in the position to reweigh the evidence. We note that Vognsen’s diagnosis of paraphilia NOS was supported by his analysis of the details of defendant’s sexual crimes. And, as the People point out, two of the defense witnesses, Viglione and Coles, also members of the DMH’s SVP assessment panel, similarly diagnosed defendant with paraphilia NOS. The fact that other experts disagreed did not demonstrate a lack of substantial evidence to support the diagnosis. Evidence of the diagnosed mental disorder element was supported by ample evidence.
Defendant argues that even if the diagnosis was correct, there was no evidence remotely suggesting he lacked volitional control. He asserts that “all of [his] offenses appeared purely situational and more opportunistic than compulsive.” He points to his good record and absence to sexual infractions while in the custody of the DMH at Coalinga State Hospital. He further notes that both Viglione and Coles reversed their prior opinions and later concluded that defendant’s risk of reoffending was significantly diminished, based in part on new statistics showing the influence of age.
The record demonstrates that Vognsen did in fact consider defendant’s age, but concluded defendant was an atypical, high-risk offender whose risk would not begin to ebb until age 60. Vognsen’s conclusion was based on a study that considered not only age, but also recidivism, to assess decreasing risk. As for defendant’s professed “utter absence of recurrent, impulse-driven, sexual acting-out” and opportunistic rather than compulsive bent, these claims were refuted by defendant’s own testimony that he knew what he was doing was wrong, but he was overcome by his impulses. Defendant asserts that his allowing a friend to rape his wife in one incident and his removing the crying baby from the presence of a rape in another demonstrated that he could control himself. Vognsen, however, testified that these acts were part of the crimes and actually showed the opposite of control. Finally, defendant’s argument that his good behavior in the state hospital established his self-control was disputed at trial. As Vognsen explained, the hospital was a benign and controlled environment, offering both the luxury of freedom and the assurance of supervision. Defendant lived a low-stress life there, choosing not to subject himself to the rigors of therapy. His good behavior was favorable, but not enough to show he had mastered his urges to the point that he posed a low risk of reoffending after he was released. Furthermore, the hospital setting did not allow for the desired sexual conduct with a subjugated, nonconsenting female. If defendant engaged in such conduct, he would become the subjugated one. As defense witness Viglione noted, defendant knew he was being watched in the hospital. In addition, we observe that defense witness Schwartz, although he did not diagnose defendant with a qualifying mental disorder, believed defendant posed a risk of reoffending. We conclude there was substantial evidence to support the finding that defendant was likely to reoffend upon his release.
Based on our review of the record, we conclude substantial evidence supported the conclusion that defendant met the criteria of an SVP.
III. Equal Protection
Defendant contends the current version of the SVPA violates his equal protection rights under the state and federal constitutions because the SVPA treats SVP’s differently from those committed as mentally disordered offenders (MDO’s) and persons found not guilty by reason of insanity (NGI’s). The People agree that the case must be remanded to the trial court to allow the prosecution to show that differential treatment of SVP’s is justified.
In McKee, supra, 47 Cal.4th 1172, the majority held that that case be remanded to the trial court for a determination of whether such differential treatment and indeterminate commitments under the SVPA violate the right to equal protection. In so holding, the majority stated:
“[T]he People will have an opportunity to make the appropriate showing on remand. In must be shown that, notwithstanding the similarities between SVP’s and MDO’s, the former as a class bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society. This can be shown in a variety of ways. For example, it may be demonstrated that the inherent nature of the SVP’s mental disorder makes recidivism as a class significantly more likely. Or it may be that SVP’s pose a greater risk to a particularly vulnerable class of victims, such as children. Of course, this latter justification would not apply to SVP’s who have no history of victimizing children. But in the present case, McKee’s previous victims were children. Or the People may produce some other justification.” (McKee, supra, 47 Cal.4th at p. 1208, fn. omitted.)
In accordance with the holding in McKee, the People agree that the case must be remanded to the trial court to allow the prosecution to show that differential treatment of SVP’s is justified. Because McKee is binding upon this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we conclude that the issue of whether differential treatment of SVP’s violates the right of equal protection must be considered on remand at a hearing consistent with McKee to determine whether the government can “demonstrate the constitutional justification for imposing on SVP’s a greater burden than is imposed on MDO’s and NGI’s in order to obtain release from commitment.” (McKee, supra, 47 Cal.4th at pp. 1208-1209, fn omitted.). We recognize that the final resolution of the issue shall be determined in the course of the final proceedings in McKee.
On remand, following a lengthy hearing to examine the issue presented to it by the Supreme Court in McKee, the trial court concluded that the SVPA does not violate equal protection. We await the finality of McKee.
IV. Due Process, Ex Post Facto, and Cruel and Unusual Punishment
As defendant acknowledges, his due process and ex post facto challenges to the amended version of the SVPA were rejected in McKee, supra, 47 Cal.4th at pages 1188 through 1195, and we are bound by that holding (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455). McKee also reaffirmed that an SVP commitment is civil rather than punitive in nature, which necessarily leads us to conclude that the SVPA does not violate the prohibition against cruel and unusual punishment. (McKee, supra, at pp. 1193-1195; Kansas v. Hendricks (1997) 521 U.S. 346, 369; Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1179; People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2.)
DISPOSITION
The order for commitment finding defendant to be an SVP within the meaning of section 6600 et seq. and committing him to the custody of the DMH is affirmed, except as to the commitment for an indeterminate term, which is reversed. The matter is remanded to the trial court for reconsideration of whether an indefinite commitment violates equal protection. The trial court, however, shall suspend further proceedings pending finality of the proceedings on remand in McKee. (McKee, supra, 47 Cal.4th at pp. 1208-1210.) “Finality of the proceedings” in McKee shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.
WE CONCUR: Dawson, Acting P.J., Poochigian, J.