Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. MH99997 Frank A. Brown, Judge.
HUFFMAN, Acting P. J.
After a jury found Anthony Lee Whitlock to be a sexually violent predator (SVP), the trial court recommitted him to the custody of the State Department of Mental Health (DMH or Department) for an indeterminate term under the Sexually Violent Predator Act (SVPA or the Act). (Welf. & Inst. Code, § 6600 et seq.) Whitlock appeals, contending the trial court illegally recommitted him as an SVP based upon the Department's illegal use of underground regulations in the evaluation and screening process, the court prejudicially erred by permitting the prosecution to present irrelevant and highly prejudicial evidence concerning the effects of molestation on a child, which violated his due process rights to a fair trial, and the current version of California's SVPA is unconstitutional because it violates an SVP's equal protection, due process, ex post facto and double jeopardy rights. In a supplemental brief, Whitlock alternatively asserts his trial counsel provided ineffective assistance by failing to obtain a ruling on his underground regulation claim before trial and by failing to challenge the court's ruling by extraordinary writ proceedings.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
Although an SVPA proceeding is civil in nature, we follow the common practice of characterizing the parties to the action as the "prosecution" and "defense." (People v. Allen (2008) 44 Cal.4th 843, 860 (Allen); People v. Hurtado (2002) 28 Cal.4th 1179, 1192 (Hurtado).)
In opposing Whitlock's contentions, the People concede the trial court erred in the challenged evidentiary ruling, but claim the error was harmless and Whitlock forfeited his constitutional claim based on the error by failing to object below on that ground. The People assert Whitlock's other constitutional claims regarding the amended SVPA were for the most part recently addressed and rejected by our Supreme Court in People v. McKee (2010) 47 Cal.4th 1172 (McKee), and that as to the equal protection issue, which the court in McKee found potentially unconstitutional, Whitlock has no standing to raise because his claim goes to sections of the SVPA that he has not yet been subjected to concerning postcommitment procedures. (§§ 6605, 6608.)
As we explain, we conclude any evidentiary error was harmless and only Whitlock's equal protection claim has potential merit under McKee, supra, 47 Cal.4th 1172. Accordingly, we reverse the judgment (order of civil commitment) and remand with directions.
BACKGROUND
I
OVERVIEW OF THE SVPA
The SVPA, as originally enacted (Stats. 1995, ch. 763, § 3, p. 5922), provided for a two-year involuntary civil commitment of certain persons following the completion of their prison terms if they were found after a jury trial to be an SVP. (McKee, supra, 47 Cal.4th at p. 1185.) That commitment could not be extended beyond the two-year term unless a new petition was filed requesting a successive two-year commitment and a new jury found beyond a reasonable doubt that the person was currently an SVP. (Ibid.)
In 2006, the SVPA was amended, first by the Legislature (Stats. 2006, ch. 337, § 553, p. 2179) and then by the electorate with the passage of Proposition 83, to among other things, provide for an indeterminate term of commitment, "rather than for a two-year term as in the previous version of the Act. An SVP can [now] only be released conditionally or unconditionally if the DMH authorizes a petition for release and the state does not oppose it or fails to prove beyond a reasonable doubt that the individual still meets the definition of an SVP, or if the individual, petitioning the court on his own, is able to bear the burden of proving by a preponderance of the evidence that he is no longer an SVP." (McKee, supra, 47 Cal.4th at p. 1187.)
An SVPA commitment proceeding is a special proceeding of a civil nature " 'commenced by petition independently of a pending action' " (People v. Yartz (2005) 37 Cal.4th 529, 536) for the purpose of confining and treating persons identified as SVPs until they are no longer a threat to society. (Allen, supra, 44 Cal.4th at p. 857.) An SVP is defined as "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) A "diagnosed mental disorder" includes "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).)
The commencement of a proceeding under the SVPA occurs when the secretary of the Department of Corrections and Rehabilitation determines that an inmate appears to meet the SVP criteria and refers the inmate to the DMH for a more thorough assessment. (§ 6601, subd. (b).) The DMH "shall evaluate the person in accordance with a standardized assessment protocol, developed and updated by the [DMH]" and must involve an evaluation by two practicing psychiatrists or psychologists "to determine whether the person is [an SVP]." (§ 6601, subds. (c), (d).) If both professionals concur that "the person has a diagnosed mental disorder [such] that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, " the DMH shall request the filing of a commitment petition in the superior court in the county where the offender was convicted of the crime for which he or she is currently imprisoned. (§ 6601, subds. (d), (i).) If the county's designated counsel concurs with the recommendation, he or she files the petition for commitment accordingly. (§ 6601, subd. (i).)
Once filed, the superior court holds an adversarial hearing on the petition to determine whether there is "probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6602, subd. (a).) If the court finds probable cause within the meaning of the Act, it orders a trial to determine whether the person is an SVP and retains the person in a secure facility until the trial is completed. (§ 6602, subd. (a).) At trial, the fact finder "shall determine whether, beyond a reasonable doubt, the person is [an SVP]." (§ 6604.) "If the court or jury determines that the person is [an SVP], the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement in a secure facility designated by the [DMH]." (§ 6604; see generally People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.)
The alleged SVP is entitled to the assistance of counsel for both the probable cause hearing and the trial (§§ 6602, subd. (a), 6603, subd. (a)), as well as the right to have a jury at trial, "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).)
Because the Act was " 'designed to ensure that the committed person does not "remain confined any longer than he [or she] suffers from a mental abnormality rendering him [or her] unable to control his [or her] dangerousness" ' " (McKee, supra, 47 Cal.4th at p. 1186), the Act provides " 'two ways a defendant can obtain review of his or her current mental condition to determine if civil confinement is still necessary. [First, ] [s]ection 6608 permits a defendant to petition for conditional release to a community treatment program.... [Second, ] [s]ection 6605 [requires] an annual review of a defendant's mental status that may lead to unconditional release.' [Citation.]" (Ibid.)
In other words, once committed, the person found to be an SVP is entitled to an annual review to determine whether he or she is entitled to release or conditional release. (§ 6605, subd. (a).) If the DMH determines that the committed person is no longer an SVP or that the committed person can safely be released to a less restrictive treatment setting, it shall file a "section 6605" petition with the superior court to that effect which triggers a probable cause hearing and possible subsequent trial at which the committed person is "entitled to the benefit of all constitutional protections that were afforded him or her at the initial commitment proceeding, " including the state having to prove "beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged." (§ 6605, subds. (b), (c), (d).) If the fact finder determines that the state has not met its burden, the committed person must be released. (§ 6605, subd. (e).)
Alternatively, the SVP, with the assistance of counsel, may, within one year of the initial commitment and at yearly intervals thereafter, petition for release without the concurrence of the DMH. (§ 6608.) Unless the court deems the petition to be frivolous, or substantially identical to a previously denied petition (see ibid.), a trial is held with the court acting as finder of fact. (§ 6608, subd. (d).) At such trial, the committed person must demonstrate that he or she is no longer an SVP by a preponderance of the evidence. (§ 6608, subd. (i).) If the trial court rules in favor of the committed person, "the court shall order the committed person placed with an appropriate forensic conditional release program operated by the state for one year." (§ 6608, subd. (d).) At the end of the year, the court then will hold a hearing to determine whether the (former) SVP should be unconditionally released. (Ibid.)
II
FACTUAL AND PROCEDURAL HISTORY OF WHITLOCK'S CASE
In 1989 Whitlock pled guilty to committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)) and the trial court sentenced him to six years in prison. In 1994 he again pled guilty to committing another lewd and lascivious act upon a child under the age of 14 (§ 288, subd. (a)). This time the trial court sentenced him to eight years in prison.
Following the above procedures and a court trial in 2002, Whitlock was found to be an SVP within the meaning of the SVPA and was committed to the DMH for a two-year term. After additional court proceedings, his term was extended for a successive two-year term until September 17, 2006. In July 2006, the San Diego County District Attorney (DA) filed a petition seeking an additional two-year commitment. On October 26, 2006, the DA amended the petition seeking Whitlock's indefinite commitment under the amended SVPA that went into effect on September 20, 2006.
After a probable cause hearing held in January 2007, the trial court found, based upon expert testimony and documentary evidence presented at that hearing, that there was probable cause to believe Whitlock was "likely to engage in sexually violent predatory criminal behavior upon his release, " and set the matter for trial to determine whether he was "by reason of a diagnosed mental disorder, a danger to the health and safety of others in that [he would] likely engage in acts of sexual violence upon his release from [a secure facility.]" That trial ended on November 27, 2007, when the court declared a mistrial after the jury was unable to reach a verdict.
At the second trial which commenced March 2, 2009, the parties stipulated Whitlock had previously been convicted of and had served prison terms for committing the 1989 and 1994 qualifying sexually violent offenses under the SVPA. The 1989 conviction, involved Whitlock helping an acquaintance with her 10-year-old daughter's behavioral problems by going into the girl's bedroom, sitting next to her on the bed, and asking her to spread her legs and give him a hug. Whitlock eventually stroked the child's thighs, rubbed her vagina, kissed her neck, and then penetrated her vagina with his finger. The 1994 conviction concerned an offense Whitlock committed while he was on parole for the 1989 offense, which involved a neighbor's five-year-old child whom he invited into his apartment to watch a Superman video. Once inside his apartment, he had the little girl sit on his lap and he touched her vagina over her clothes.
Because Whitlock does not challenge the sufficiency of the evidence to support his recommitment, we merely summarize the evidence presented at his trial.
DMH psychologists Douglas Korpi and Mark Scherrer then testified for the prosecution and opined that Whitlock currently had a diagnosed mental disorder, pedophilia, which affected his emotional volition, and predisposed him to the commission of criminal sexual acts. Although both experts also diagnosed Whitlock with alcohol dependency and posttraumatic stress disorder (PTSD), they concluded it was his mental disorder of pedophilia that made him a danger to the health and safety of others in that he was likely, upon release from custody, to engage in future sexually violent predatory behavior.
In addition to discussing Whitlock's history of sexual offenses, which started in January 1986 when he was convicted of simple battery and placed on probation for molesting his 16-year-old niece, and included lewd and lascivious acts upon two girls and a boy under the age of 14 committed three months later, which resulted in a plea agreement to misdemeanor lewd conduct with the 11-year-old girl and an arrest in 1999, shortly after he was paroled for the 1994 conviction, for allegedly orally copulating a seven-year-old girl, 10 or 11 years earlier, the experts testified about using various actuarial instruments to measure Whitlock's risk of reoffense.
Depending on the instrument used, including the STATIC-99, Korpi's testing of Whitlock indicated his chance of reoffending could be as low as 11 percent and as high as 76 percent. Korpi opined these results were in the moderate to high range which constituted "a serious and well-founded risk." Although Korpi had reevaluated Whitlock for risk in 2009 under new numbers based on the STATIC-2002, he still believed Whitlock presented a moderate to high risk of reoffending. Scherrer, who had also evaluated Whitlock using the same actuarial instruments, scored him with an eight on both the STATIC-99 and STATIC-2002, which put Whitlock respectively in the high risk category or the moderate to high risk category for recidivism, and opined he was likely to reoffend because he represented a serious and well-founded risk of doing so.
Psychologist Mary Jane Adams, psychiatrist Allen Abrams, and two state hospital workers testified for the defense. Both mental health experts agreed Whitlock suffered from PTSD and alcohol dependency, but disagreed with the prosecution's experts' current diagnosis of pedophilia, finding Whitlock did not currently suffer from the type of mental disorder that would qualify him as an SVP. According to Adams, Whitlock's history of sexual offenses was "impulsive, rash, disorganized" and there was no evidence he "had an ongoing persistent fixation on children that would suggest that that's his primary sex object." Although Adams agreed Whitlock suffered from some volitional impairment due to his drinking, PTSD and depression, she did not believe he posed a serious well-founded risk of committing another predatory sex offense because of his age (he was about to turn 59), his long term sobriety (he had been sober since 2000), and his agreement to take medication to treat his depression which reduces his sex drive. Adams discussed the various actuarial instruments, including the STATIC-99, which she said overestimated the rate of reoffense, and suggested Whitlock had anywhere from a 13 percent to a 38 percent chance of reoffending. Abrams concurred with Adams that Whitlock was not a fixated pedophile, that the STATIC-99 was inaccurately high for determining risk of reoffending, and that there was no serious or well-founded risk that Whitlock would reoffend.
The state hospital staff members, one at Coalinga State Hospital and the other at Atascadero State Hospital who had each worked with Whitlock when he was housed at the respective facility, testified that they thought he was well mannered and believed he should be given a second chance and released.
After considering the above evidence in light of instructions and closing arguments, the jury returned a verdict finding Whitlock an SVP within the meaning of sections 6600 through 6604.
DISCUSSION
I
DMH'S USE OF THE "UNDERGROUND REGULATIONS"
During in limine motions before Whitlock's second trial, his counsel filed with the court Whitlock's pro per motion for dismissal of the recommitment petition on grounds Whitlock had been denied due process because he had been evaluated by DMH under protocol that had subsequently been invalidated by the Office of Administrative Law (OAL) as being an "underground regulation." Counsel asked the court to take the motion under advisement and to give a ruling before the case went to the jury.
At the end of trial and jury instruction discussions, the court noted it had just received the prosecution response to Whitlock's motion to dismiss for want of due process. With the parties' agreement, the court continued the matter until after the jury began deliberations so defense counsel could review the opposition. At that time, counsel asked for additional time to let Whitlock review the opposition so he could address the motion himself. When the court agreed, saying the motion might not be addressed if the jury returned a verdict in favor of Whitlock, Whitlock commented that regardless of the outcome, he wanted a ruling.
After the jury returned its verdict finding Whitlock was an SVP and the court discharged the jury, Whitlock vented his feelings of disdain about the proceedings and his life commitment. When the court asked him whether he wanted to argue his motion to dismiss that had been continued, Whitlock said, "No, sir." The court then denied the motion. Whitlock did not challenge this ruling by extraordinary writ or file a petition for writ of habeas corpus with this court.
On appeal, Whitlock contends the trial court erred in denying his motion to dismiss his recommitment petition because the protocol used by the DMH evaluators to assess whether he continued to be an SVP was an illegally adopted "regulation, " not a qualified standardized assessment protocol within the meaning of the SVPA, which rendered their evaluations void and in turn made his current commitment illegal. While acknowledging that several court decisions, i.e., People v. Taylor (2009) 174 Cal.App.4th 920 (Taylor) and People v. Medina (2009) 171 Cal.App.4th 805 (Medina), have recently addressed the issue of the illegality of so-called "underground regulations, " which did not comply with the Administrative Procedures Act (APA) and which were determined by the OAL in 2008 to be invalid with regard to SVP cases, Whitlock argues the analysis of those cases in rejecting jurisdictional and due process challenges were either inapplicable to his case because they concerned claims to the respective SVP's expired original commitment and not to their current commitment, or they were badly reasoned and should not be followed. In essence, Whitlock claims that absent legally conducted evaluations by the DMH as required by statute, the DA lacked the authority to file a petition seeking his recommitment under the SVPA, which deprived the court of the fundamental jurisdiction to proceed under the Act, requiring not only that the judgment be reversed, but also that he be unconditionally released because the petition was void ab initio, and the filing of a new petition would be time-barred.
Whitlock also initially relied upon People v. Glenn (2009) 178 Cal.App.4th 778. However, that case is no longer citable as it was granted review by our Supreme Court and transferred back to the Court of Appeal, Fourth Appellate District, Division Three, (May, 20, 2010, S178140), with directions to vacate its decision and to reconsider the cause in light of McKee, supra, 47 Cal.4th 1172.
As the People point out, state agencies must formally adopt regulations in compliance with the procedural requirements of the APA. Certain guidelines that have not been adopted pursuant to the APA are considered to be illegal "underground regulations, " (See Cal. Code Regs., tit. 1, § 250, subd. (a) ['' 'Underground regulation' means any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation as defined in Section 11342.600 of the Government Code, but has not been adopted as a regulation and filed with the Secretary of State pursuant to the APA and is not subject to an express statutory exemption from adoption pursuant to the APA."].)
In a footnote, Whitlock's appellate counsel advises that he was also appellate counsel for Medina, Glenn and Taylor's co-appellant, and that Whitlock's argument is basically the same as for those other appellants.
In his reply brief, Whitlock acknowledges that another court decision, In re Ronje (2009) 179 Cal.App.4th 509 (Ronje), has even more recently addressed the same issue that he is now raising, but claims Ronje should only be followed to the extent it found the same 2004 protocol that was used in his case for his 2006 evaluations to be an illegal underground regulation and it held that the remedy for such illegality was to dismiss the petition and to order new evaluations. Whitlock thus now claims the trial court erred in either failing to dismiss his petition because of the illegal evaluations, or by failing to order new evaluations consistent with the holding in Ronje. We reject Whitlock's various arguments that the DMH's reliance on an invalid protocol requires reversal of his commitment or remand for new evaluations under a revised assessment protocol in this case.
Although we take judicial notice of the fact that the January 2004 Clinical Evaluator Handbook and Standardized Assessment Protocol (2004 protocol) was in effect at the time Whitlock was evaluated in 2006 for the filing of his recommitment petition (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134), we decline to take judicial notice of its content even though unopposed, as it would improperly augment the record on appeal to add material which was not a part of the record in the trial court. (See People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17; overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Whitlock's appellate counsel was also appellate counsel for Ronje, supra, 179 Cal.App.4th 509.
As a preliminary matter, we note that Whitlock fails to fully appreciate the procedural status of his case at the time he brought his pro per motion to dismiss based on due process and implicit jurisdictional grounds due to the purported invalid evaluations completed by the DMH in 2006. Although he raised the issues in the trial court, they clearly were not brought before the probable cause hearing or the first trial. Further, Whitlock's counsel agreed that his motion raising the issues, which was filed on the day the second trial was to begin, need not be heard until jury deliberations. At that time, the matter was again continued at counsel's request until a verdict was returned, at which point, Whitlock himself declined to argue the motion. Thus, contrary to Whitlock's assertion, the pretrial remedies available to the defendant in Ronje, supra, 179 Cal.App.4th 509, 519, are not available or relevant to this posttrial challenge.
Regardless, even accepting Whitlock's argument that the protocol used to evaluate him in 2006 is a void underground regulation, we conclude reversal or remand on this basis is not required. As we discuss below, we agree, consistent with the reasoning and holdings in Ronje, supra, 179 Cal.App.4th 509, Taylor, supra, 174 Cal.App.4th 920, and Medina, supra, 171 Cal.App.4th 805, that the trial court had the fundamental jurisdiction or power to decide Whitlock's SVPA commitment petition, that the use of the invalid assessment protocol did not violate Whitlock's due process rights, and that he has failed to demonstrate that he was prejudiced by DMH's use of the invalid protocol.
The People do not dispute Whitlock's contention as to the ruling of the OAL regarding the 2007 protocol or that it might also apply to the 2004 protocol under which he was evaluated. We therefore proceed, without deciding, on the assumption that the OAL's conclusion the 2007 protocol is an underground regulation in violation of the APA is correct, and that the court in Ronje correctly determined the 2004 protocol was likewise an underground regulation in violation of the APA. (Ronje, supra, 179 Cal.App.4th at pp. 515-517.)
A. Jurisdiction and Prejudice
It is well established that the term "jurisdiction in the fundamental sense" means the "legal power to hear and determine a cause." (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 (Pompa-Ortiz).) "Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) When a court lacks fundamental jurisdiction, the judgment is void and vulnerable to attack at any time. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.)
Whitlock does not claim that the trial court lacked subject matter or personal jurisdiction over his SVP recommitment proceeding. Nor has he offered any authority to support his assertion that the DMH's use of the invalid protocol or "underground regulation" during the prepetition administrative proceedings under the SVPA somehow deprived the trial court of fundamental jurisdiction to hear or decide such recommitment proceeding. By suggesting that the use of the invalid protocol renders the proceedings void and subject to per se reversal for lack of jurisdiction, Whitlock fails to appreciate the limited role that the protocol plays in the preliminary phase of an SVP proceeding.
Although the DMH is statutorily required to use the protocol for the purpose of administrative actions that lead up to the filing of an SVP petition (§ 6601, subds. (c), (d)), " 'the 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.' [Citation.] 'After the petition is filed, rather than demonstrating the existence of the two evaluations, the People are required to show the more essential fact that the alleged SVP is a person likely to engage in sexually violent predatory criminal behavior. [Citation.]' " (People v. Scott (2002) 100 Cal.App.4th 1060, 1063.) Because the probable cause hearing under the Act is designed to protect the accused from having to face trial on groundless or otherwise unsupported allegations, it is analogous to a preliminary hearing in a criminal case. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 247; Medina, supra, 171 Cal.App.4th at pp. 818-819.)
As this court commented in People v. Superior Court (Preciado)(2001) 87 Cal.App.4th 1122, while holding the failure to obtain two mental health professional evaluations as required under the Act did not deprive the trial court of fundamental jurisdiction to act on an SVP petition, "once the petition is filed a new round of proceedings is triggered." (Id. at pp. 1128-1130.) Specifically, as noted in the background above, after an SVP petition is filed, the court holds a probable cause hearing at which the court's focus shifts away from assessing formal conformance with procedural requirements to evaluating the probative value of the evaluations on the substantive SVP criteria. Thus, we agree with the reasoning in Ronje, supra, 179 Cal.App.4th 509, that the use of evaluations based on an invalid assessment protocol, though erroneous, is not a defect going to the validity of the commitment petition, but rather a procedural defect, which does not deprive the court of fundamental jurisdiction over the SVPA petition. (Id. at p. 518.)
In similar circumstances in the context of a criminal prosecution, the California Supreme Court has concluded that defects in the preliminary hearing phase of a criminal proceeding do not automatically invalidate a subsequent conviction; rather, a defendant must show that he or she was prejudiced by the challenged defect. (See Pompa-Ortiz, supra, 27 Cal.3d at pp. 529-530.) This Pompa-Ortiz rule "applies to SVP proceedings" (People v. Hayes (2006) 137 Cal.App.4th 34, 51 (Hayes)) in addition to applying to the "denial of substantial rights as well as to technical irregularities, " including claims of the denial of counsel and ineffective assistance of counsel at a preliminary hearing. (Id. at pp. 50-51.) Therefore, the fact that the protocol used by the DMH to evaluate Whitlock may have been adopted in violation of the APA is a matter that is collateral to the merits of his SVP recommitment petition, which does not require its per se dismissal. Rather, any illegalities must be reviewed "under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the [probable cause hearing]." (Pompa-Ortiz, supra, 27 Cal.3d at p. 529, followed by Ronje, supra, 179 Cal.App.4th at p. 517.)
Only if Whitlock had challenged the invalid 2004 protocol before the probable cause hearing or first trial, would he have the " '[t]he right to relief without any showing of prejudice....' [Citation.] 'In other words, a defendant who feels he has suffered error at his [probable cause] hearing can seek to correct that error by filing a pretrial writ petition. If he does not, and elects to go to trial, the [alleged] error... can only lead to reversal of the conviction if the error created actual prejudice.' " (Ronje, supra, 179 Cal.App.4th at p. 517.)
In other words, Whitlock, who did not raise the issue of the invalid protocol for the two initial evaluations for the filing of his recommitment petition under the Act in the trial court until after he had already gone through a probable cause hearing and one jury trial, and with counsel had elected to go through a second jury trial before the court addressed the matter, must now demonstrate prejudice for reversal of the judgment. (Medina, supra, 171 Cal.App.4th at p. 819.) Because the purported error is one of state law, we apply the test of People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson), which states an error warrants reversal only if it is reasonably probable that the error altered the outcome of the proceedings. (People v. Epps (2001) 25 Cal.4th 19, 29.) Consequently, Whitlock must show he was deprived of a fair trial or otherwise suffered prejudice as a result of the assessment protocol used for his evaluations leading to the challenged recommitment. On this record, he has not done so.
We reject Whitlock's argument that because he filed a motion to dismiss the petition in the trial court before the second trial commenced he is not required to show actual prejudice. (Ronje, supra, 179 Cal.App.4th at p. 519; Medina, supra, 171 Cal.App.4th at p. 819; Hayes, supra, 137 Cal.App.4th at p. 50.)
Relying on Ronje, supra, 179 Cal.App.4th 509, Whitlock basically argues he has shown actual prejudice because he timely raised the issue of the illegal underground regulations before the second trial and the court erroneously refused to address the matter instead of ordering new evaluations with properly adopted DMH protocol, which was promulgated under emergency action by that time. He also asserts that actual prejudice is shown because had he been reevaluated using revised and more accurate actuarial instruments, it is reasonably probable he would have received a more favorable outcome. We disagree. Not only does Whitlock, as earlier noted, base these arguments on a misrepresentation of the record, he also bases them on new evidence, introduced for the first time on appeal, which we may not consider. His arguments thus present mere conjecture of what might have been, which is insufficient to show a reasonable probability that the result of the trial (rather than the result of any evaluation) would have been different in the absence of the use by DMH of the 2004 protocol. (Watson, supra, 46 Cal.2d at pp. 836-837.)
In connection with this argument and his related ineffective assistance of counsel claim, Whitlock has also sought judicial notice of the revised "STATIC-99R" evaluators' workbook, which he argues is relevant to the prejudice prong of both claims. However, as the People point out in their opposition, the amended document was not part of the record before the trial court. We, therefore, decline to take judicial notice of the document, and could not, in any event, accept the truth of the assertion for which Whitlock attempts to submit the document. (People v. Castillo (2010) 49 Cal.4th 145, 157 [noting the general rule that " 'an appellate court generally is not the forum in which to develop an additional factual record, ' " and holding the court is without authority to augment the record on appeal by accepting truth of assertions not reflected in the record].) In addition, Whitlock's references to the new version of the protocol was not mentioned in his motion below.
Here, Whitlock was represented by counsel at all proceedings, he presented his own witnesses at trial and cross-examined the People's witnesses from which the People made the required showing, through expert opinion based on a review of numerous factors and actuarial tools, that by reason of a diagnosed mental disorder, pedophilia, Whitlock presented a danger to the health and safety of others and was likely to engage in acts of predatory sexual violence upon his release. Whitlock does not contend the evidence was insufficient to establish that he continues to meet SVP commitment criteria.
On this record, Whitlock has not shown, and nothing suggests, that the procedural invalidity of the 2004 protocol affected the evidence or findings, or that a compliant protocol would change the testimony of the prosecution experts regarding his disorder and likely risk of reoffense. It is therefore not reasonably probable the ultimate result, i.e., recommitment to an indefinite term, would have changed had the DMH not used the 2004 protocol to evaluate Whitlock. (Medina, supra, 171 Cal.App.4th at p. 820 [rejecting contention that dismissal of petition based on use of invalid protocol or reevaluations would have lead to a different outcome where there was no indication commitment proceedings would have been abandoned].)
Because Whitlock fails to demonstrate actual prejudice, we reject his contention that the DMH's reliance in evaluating him under the SVPA on the 2004 protocol, an "underground regulation, " requires reversal of his recommitment or remand for a new evaluation under a revised assessment protocol.
B. Due Process
As to Whitlock's claim that the evaluations conducted using the invalid 2004 protocol to initiate his recommitment petition violated his due process rights because the DMH failed to follow the statutory requirements of the SVPA, such claim has been raised and rejected in Ronje, supra, 179 Cal.App.4th 509, 519-520. We agree with the reasoning in Ronje that the procedures of a probable cause hearing and a trial under the SVPA "provide adequate protection against erroneous deprivation from the invalid assessment protocol. [Citation.]" (Id. at p. 520.) No due process violation is shown.
C. Ineffective Assistance of Counsel
Alternatively, Whitlock argues that his counsel provided him ineffective assistance in failing to obtain a ruling on his invalid protocol issue before the second trial and by failing to file a petition for mandate challenging the court's eventual ruling with this court. Generally, in order to show that defense counsel has provided ineffective assistance at trial, the burden is on the defendant to show both " 'that [his] counsel's performance fell below an objective standard of reasonableness; and... that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, " 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' [Citation.]" ' [Citation.]" (People v. Holt (1997) 15 Cal.4th 619, 703.)
Thus even assuming Whitlock's trial counsel was somehow deficient in failing to obtain a ruling before the second trial and in failing to seek writ review of the eventual ruling, which we do not find, there is no prejudice shown on this record to establish a prima facie case of ineffective assistance of counsel. As we have already determined, there is absolutely no showing that the use of valid DMH protocols for the prepetition evaluations under the SVPA would have produced a different result or the use of the invalid protocols caused any actual prejudice to Whitlock. Accordingly, similar to the situation in Medina, supra, 171 Cal.App.4th at pages 819 through 820, Whitlock cannot prevail on a claim of ineffective assistance of counsel. "[I]t is 'completely impossible to predict whether [he] will be found to qualify as [an SVP] under the new protocol.' [Such an assertion] is simply insufficient to carry his burden of demonstrating the reasonably probability, rather than the mere possibility, of a different outcome. [Citation.]" (Id. at p. 820.) No ineffective assistance of counsel is shown.
II
CLAIMED EVIDENTIARY ERROR
Whitlock contends, and the People concede, that the trial court abused its discretion by permitting the prosecution to present, over objection, irrelevant evidence concerning the effects of molestation on a child during the cross-examination of defense expert Adams. The People, however, assert the error is harmless under state law and that Whitlock has forfeited his argument that the error violated his state and federal due process rights to a fair trial by failing to object on those constitutional grounds below. We agree that the admission of the evidence was erroneous and that its admission was harmless under state law. We further conclude its admission did not result in a due process violation. We explain.
On cross-examination of Adams, the court overruled defense counsel's relevance objection to the prosecutor's questioning of her on the lasting effects of being molested as a child. After Adams explained that children who had been molested often have trouble with impulse control, memory problems, difficulty focusing, problems of trust and forming close relationships, and personal neglect and spiritual problems, the prosecutor then asked if there was any research indicating that a child would be less traumatized by being digitally penetrated if he or she knew the molester had PTSD. The court had the prosecutor rephrase the question in response to defense counsel's immediate objection that the question was argumentative. When the prosecutor then asked Adams about whether the harm to a molest victim would be lessened by a victim knowing the molester suffered PTSD, Adams said "no, " again over counsel's objection.
When the prosecutor next asked a similar question regarding whether the victim knowing the molester suffered from alcohol dependence would lessen the harm to the victim, defense counsel objected that the issue was whether Whitlock met the criteria for an SVP in this case and not "retrying what the victim has gone through." The court overruled the implied relevance objection, saying it would allow the line of questioning as going only to the fourth element regarding health and safety. Adams then responded that there was no satisfactory answer to the question because generally "children are much more damaged by ongoing abuse and by abuse that's more intrusive." She explained that there was always a possibility of no lasting effects where the offense was a one time event as compared to on-going sexual offenses that really cause lasting harm.
During closing argument, the prosecutor raised the issue of the effects of Whitlock's molestation on the victims, noting it was ironic that Adams had testified that children who are abused could suffer from PTSD while Whitlock was arguing he should be excused from any harm he has done because he suffers from PTSD. The prosecutor asked the jury to consider the offenses Whitlock had committed and the fact that his victims had suffered through no fault of their own by his conduct.
Clearly, as the People concede on appeal, the court erred in finding the questions to Adams concerning the effect of molestation on a child and whether the harm would be lessened if the person committed the acts due to PTSD or alcohol dependency relevant to element 4 in CALCRIM No. 3454, which is whether "[i]t is necessary to keep [Whitlock] in custody in a secure facility to ensure the health and safety of others." The issue for that element is not whether a person who reoffends will be a danger to the health and safety of others, which is a requirement inherent in the SVPA in general, but rather whether the person is amenable to voluntary treatment upon release or is likely to reoffend without the confinement and involuntary treatment provided under the SVPA. (People v. Grassini (2003) 113 Cal.App.4th 765, 775-777.) Because only relevant evidence, i.e., evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action" (Evid. Code, § 210), is admissible (Evid. Code, § 350), the court abused its discretion in admitting, over defense counsel's objections, the subject questioning of Adams because it was irrelevant to any issue in this SVPA proceeding.
The question remains whether the court's error requires reversal on appeal. Whitlock argues the error is reversible because it was prejudicial and thus violated his constitutional due process rights to a fair trial. As already noted, the People assert that Whitlock has forfeited his constitutional claims by failing to object on those grounds below and that the evidentiary error was harmless under Watson, supra, 46 Cal.2d 818, 836. However, even though Whitlock did not make a specific state or federal constitutional due process objection to the now challenged line of questioning or to Adams's answers to them, as our Supreme Court held in People v. Partida (2005) 37 Cal.4th 428 (Partida), a defendant's failure to make such specific objection does not preclude the defendant from arguing on appeal the additional legal consequence of the asserted error in overruling his evidentiary objection "was so serious as to violate due process." (Id. at p. 438, and fn. 3.) We thus also consider whether the court's erroneous decision in overruling Whitlock's trial objections of irrelevancy to the portion of Adams's testimony regarding the effects of molestation on a child violated his due process rights to a fair trial. (Id. at pp. 438-439.)
In doing so, however, we are guided by the court's reminder in Partida that "the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.]" (Partida, supra, 37 Cal.4th at p. 439.) Further, "[a]bsent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.]" (Partida, supra, at p. 439.) Applying these standards here, we find no due process or state law prejudicial abuse of discretion.
Adams's lengthy direct testimony concentrated heavily on the facts that Whitlock had been abused as a child and had suffered from PTSD from both that abuse and from his years in combat in Vietnam, which in turn contributed to his severe alcohol dependency and depression. Adams disagreed with the two prosecution experts' diagnosis that Whitlock suffered from pedophilia, maintaining that his previous acts against children were impulsive and poorly planned attempts, basically while he had been drinking, to satisfy some type of relationship not particularly fixated on children as his sexual object and did not satisfy the definition of a mental disorder. Because he was addressing his alcohol problem and PTSD and depression with medication, and had no mental disorder that she could diagnose, Adams opined Whitlock did not represent a serious well founded risk for re-offending or satisfy elements 2 and 3 of CALCRIM No. 3454 that were required to find him an SVP for continued commitment under the SVPA. Another defense expert testified consistently with Adams that Whitlock did not satisfy these two required elements under the Act.
The second and third elements of CALCRIM No. 3454 as given the jury were, "2. He has a diagnosed mental disorder; [and] 3. As a result of that diagnosed mental disorder, he is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavior."
Although the court, as we have determined above, erroneously permitted the prosecutor to then cross-examine Adams about the general adverse effects that molestation can have on children, such questioning was relatively brief compared to her direct and redirect testimony. In addition, Adams qualified her remarks so that they also applied to Whitlock's own abuse as a child, and she minimized the effects of such testimony by emphasizing that molestations may not necessarily be traumatic events causing long lasting effects where they only involve fondling or happen only once, opining it was possible under the circumstances of Whitlock's history of offenses that his victims had suffered no lasting effects. The prosecutor's comments during closing argument on the erroneously admitted portion of Adams's testimony were likewise brief.
Because it is common knowledge that molestation can have adverse effects on children, and the court's ruling informed the jury that the erroneously admitted testimony was only relevant to the fourth element under CALCRIM No. 3454, that the jury rejected both defense experts' opinions Whitlock did not have a mental disorder that predisposed him to commit sex offenses against children to satisfy the second and third elements, we can find no reasonable probability that the jury would have reached a different verdict had Adams not discussed the general effects of molestation on children. (Watson, supra, 46 Cal.2d at p. 836.) Consequently, we cannot say that the admission of the irrelevant evidence was so prejudicial as to render Whitlock's trial fundamentally unfair. (Partida, supra, 37 Cal.4th at p. 439.) No prejudicial error or due process violation is shown.
III
CONSTITUTIONALITY OF THE SVPA AND POTENTIAL EQUAL PROTECTION VIOLATIONS
Because McKee was pending review in our Supreme Court when Whitlock filed this appeal, he only briefly argued to preserve for review the issues that the current SVPA violates constitutional due process, ex post facto and double jeopardy principles as well as also violating his equal protection rights. On January 28, 2010, the decision in McKee issued, rejecting arguments that the SVPA, as amended, violates the due process and ex post facto clauses of the United States Constitution. (McKee, supra, 47 Cal.4th at pp. 1193, 1195.) Although the court in McKee did not address the double jeopardy issue, inasmuch as it found the amended SVPA is civil in nature and not punitive (id. at pp. 1194-1195), any double jeopardy claim also necessarily fails. (See Kansas v. Hendricks (1997) 521 U.S. 346, 369; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1226.) Acknowledging this, and that we are bound to follow Supreme Court precedent, Whitlock nonetheless stands by his original arguments that the amended SVPA is unconstitutional. We reject his renewed due process, ex post facto and double jeopardy claims. (McKee, supra, 47 Cal.4th at pp. 1193, 1195; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
With respect to his equal protection challenge, Whitlock contends we are also required to follow McKee's holding that an indefinite commitment under the SVPA potentially violates an SVP's right to equal protection and to remand the matter to the trial court for reconsideration of this argument in light of McKee. We agree.
After discussing the law and standards applicable to an equal protection claim, the Supreme Court addressed McKee's challenge to the indefinite commitment and release procedures of the amended SVPA in comparison to other civil commitment schemes and concluded that SVP's are similarly situated to persons deemed mentally disordered offenders (MDO's) under the MDO Act (Pen. Code, § 2960 et al.) and those found not guilty by reason of insanity (NGI's) (Pen. Code, § 1026 et al.). (McKee, supra, 47 Cal.4th at pp. 1196-1203, 1207.) The court in McKee thus held that absent a showing by the People of a compelling state interest in treating SVP's significantly less favorably than MDO's and NGI's regarding the term of commitment and the burden of proof for release, the SVPA may violate the equal protection clause of the United States Constitution. (McKee, supra, at pp. 1203, 1207-1209.)
In remanding the case to the trial court to determine whether the state could establish a compelling interest justifying its disparate treatment of SVP's and whether such treatment was necessary to further legitimate state interests, the court in McKee explained that "the government [had] not yet shown that the special treatment of SVP's is validly based on the degree of danger reasonably perceived as to that group, nor whether it arises from any medical or scientific evidence. On remand, the government will have an opportunity to justify Proposition 83's indefinite commitment provisions, at least as applied to McKee, and demonstrate that they are based on a reasonable perception of the unique dangers that SVP's pose rather than a special stigma that SVP's may bear in the eyes of California's electorate." (McKee, supra, 47 Cal.4th at p. 1210.)
The court in McKee observed that even though fundamental distinctions between classes of persons subject to civil commitment are subject to strict scrutiny, the government may nonetheless make reasonable distinctions, "'depending on degrees of danger reasonably perceived as to special classes of persons.'" (McKee, supra, 47 Cal.4th at p. 1210, quoting Conservatorship of Hofferber (1980) 28 Cal.3d 161, 171-172.)
Because McKee is binding upon this court, we conclude that Whitlock's indefinite commitment under the SVPA potentially violates his right to equal protection. (McKee, supra, 47 Cal.4th at pp. 1207, 1210.) As in McKee, the record in this case is inadequate to determine whether the state has a compelling interest in justifying its disparate treatment of SVP's, including Whitlock. (Id.at p. 1210.) We therefore remand this case to the trial court to conduct 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." (Id. at pp. 1208-1209.)
Although the People argue that Whitlock's equal protection claim is not ripe for review and he has no standing to bring it because his challenge is essentially one going to the release provisions of the SVPA, which he has not yet attempted to utilize, the People also recognize that this case is in the same procedural posture as that in McKee where the equal protection issue was addressed.
Additionally, with regard to the hearing on remand, we note the People take the position that Whitlock should not be permitted to offer any affirmative evidence at that time because of the admonishment in McKee that "mere disagreement among experts will not suffice to overturn the Proposition 83 amendments." (McKee, supra, 47 Cal.4th at p. 1210.) We do not read such passage in McKee as setting forth any limitations on the evidence to be admitted by the trial court at a hearing on remand. Nor do the People provide any authority for doing so. Consequently, we determine that the admission of evidence at the hearing on remand appropriately rests in the first instance within the sound discretion of the trial court.
DISPOSITION
The judgment is reversed, and the case is remanded to the trial court for reconsideration of defendant's equal protection argument in light of McKee, supra, 47 Cal.4th 1172, and the final resolution of the proceedings on remand in McKee. (Id. at pp. 1208-1210.) In this regard, the trial court shall suspend further proceedings in this case pending finality of the proceedings on remand in McKee, including any proceeding in the Superior Court of San Diego County in which McKee may be consolidated with related matters, any subsequent appeal and any proceedings in the California Supreme Court.
WE CONCUR: NARES, J., O'ROURKE, J.