Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV105695
SIMS, Acting P.J.In July 2000, minor Dave H., then age 15, admitted committing a lewd and lascivious act with his eight-year-old niece, T. (Pen. Code, § 288, subd. (a).) He was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF; formerly the California Youth Authority), until his 21st birthday (February 2, 2006).
In October 2005, a petition for extended commitment was filed alleging that, due to a mental deficiency, disorder or abnormality that causes serious difficulty controlling dangerous behavior, the minor would be dangerous to the public if discharged from DJF. (Welf. & Inst. Code, § 1800 et seq., Extended Detention Act (EDA); undesignated statutory references are to the Welfare and Institutions Code.)
Section 1800 provides in relevant part: “(a) Whenever the Division of Juvenile Facilities determines that the discharge of a person from the control of the division at the time required by Section 1766, 1769, 1770, 1770.1, or 1771, as applicable, would be physically dangerous to the public because of the person’s mental or physical deficiency, disorder, or abnormality that causes the person to have serious difficulty controlling his or her dangerous behavior, the division, through its Chief Deputy Secretary for Juvenile Justice, shall request the prosecuting attorney to petition the committing court for an order directing that the person remain subject to the control of the division beyond that time.”
In February 2006, a jury found the petition to be true. The minor was committed to DJF for two years.
On appeal, the minor contends (1) the EDA violates federal and state equal protection because it has fewer procedural safeguards, and can result in harsher treatment than civil commitment schemes for adult offenders, (2) the EDA is a penal statute that implicates substantive due process standards, (3) the trial court erroneously allowed the prosecutor to introduce highly prejudicial evidence of his prior sex crimes, (4) the court erroneously allowed the prosecutor to inform the jury about the consequences of its verdict, (5) the foregoing evidentiary rulings caused cumulative prejudice, and (6) the evidence was insufficient to support the jury’s true finding. We shall affirm the judgment.
FACTS
As more fully recounted post, the minor began molesting his half-sister, D., when he was five years old and she was one and a half years old. He was in Colorado for treatment from age six to age nine. Following treatment, he resumed molesting D. and also began molesting his half-sister, J. The minor was in Washington for treatment for a year, and thereafter he lived with his brother in Sacramento, where he sodomized the brother’s daughter, T., beginning when she was eight years old.
The minor was committed to DJF in July 2000. In November 2000, he was received in a sex offender treatment program.
The treatment program has 10 stages. In stages I through III, which focus on disclosure, wards “work[] on their background, . . . their offending history, their sexual history.” In stages IV through VI, wards learn their “assault cycle” and start to “recognize what they have to do to break their cycle and what the high risks are and such.” In stages VII through X, wards work on relapse prevention.
At the core of the treatment program, and critical for treatment, is that the wards be truthful about their past behavior. It is also essential that wards commit themselves to change. A ward who “really work[s] hard” in the treatment program can complete it in about two to two and a half years.
At the time of trial, the minor was still in the treatment program. He had yet to complete work on his assault cycle, and he was still “in the initial stages of treatment.”
In November 2002 and September 2003, the minor acknowledged that he had been making very little effort and thus making very little progress. Until October 2003, he had been telling his treatment program counselor that he had not sodomized T. He had been dishonest about it because he “didn’t want to be seen as someone who could do that behavior.” In March 2004, the minor admitted that he had been lying and not trying in treatment. He also admitted that he was still attracted to young children. In August 2004, he claimed to have no control over his thoughts and feelings. In July 2005, he admitted that he had been “just working on looking good and trying to look good on the surface,” rather than “actually dealing with his issues in treatment.” In August 2005, he admitted that while in the treatment program, he had had “over a thousand” sexual fantasies involving children.
Dr. Marcia Asgarian, the minor’s psychologist in the treatment program, diagnosed him as suffering from pedophilia. She testified that there was a “[s]adistic quality in his personality,” which means he “gains pleasure from hurting others.” He admitted to her that “when he gets angry, the two things that he really does to manage the anger is he wants to revictimize T[.] by sodomizing her again or hurting someone else.”
Dr. Asgarian testified that in a February 2005 group counseling session, the minor stated, “‘I fantasize about my victim. It made me feel good. Someone made me feel like a somebody. Hurting someone made me feel like a somebody. Pleasure and power is addictive. I was over everyone. I’m going to have that nasty attraction to the past.’” The minor also expressed a “fear of molesting his own children.”
At a March 2005 group session, the minor acknowledged that he “had some deviant fantasies last October and that he was replaying the sodomy of T[.] with an erection without masturbating.” Dr. Asgarian found it “very alarming” that, after five years in the treatment program plus prior treatment in the community, the minor would “still allow himself to have deviant fantasies and not to use any appropriate interventions to control them.” She explained that by continuing to have deviant fantasies and maintaining an erection with them, the minor was “already re-offending in [his] own head” and “very close to re-offending again in actuality.”
Dr. Steven Herskovic, a psychologist with DJF, evaluated the minor to see if he met the criteria for commitment under the EDA. Based upon the minor’s “continued fantasy life and masturbation to fantasies about his victims who are prepubescent children,” Dr. Herskovic diagnosed the minor as suffering from pedophilia. He also determined the minor has “some antisocial[,] narcissistic and histrionic qualities.” Dr. Herskovic noted that the minor did not appear to be particularly motivated to benefit from treatment or to make the changes necessary so that he would not reoffend.
Dr. Herskovic explained: “Antisocial has to do with problems with authority. The narcissism has to do with some pathological self-centeredness and entitlement issues. The histrionic has to do with a flare [sic] for the dramatic.”
Based in part upon the minor’s score on the Sexual Violence Risk-20, a guide to interviewing sex offenders and assessing their risk of reoffense, Dr. Herskovic formed the opinion that the minor was at high risk for reoffense. When asked what specific items of the minor’s history he had relied on in determining that the minor would be dangerous if released, Dr. Herskovic explained: “[S]pecifically the history of offending at a very young age and continuing to offend despite repeated treatment intervention efforts and then the continuing pattern during incarceration of his fantasy life as self-reported by him to his treaters and to the Youth Authority board, I believe. And all of those -- all of that suggested to me that -- that he continues to be a -- be a pedophile.”
When asked whether the minor could control the danger caused by his pedophilia, Dr. Herskovic stated, “I believe he would have serious difficulties in controlling his pedophilia due to his lack of demonstrated interventions with his continued fantasy life.”
Defense
Dr. Baljit Atwal, a clinical forensic psychologist, testified on the minor’s behalf. She had previously been employed at DJF, had helped to develop its sexual offender treatment program, and was in private practice at the time of trial.
Dr. Atwal interviewed the minor, administered various tests, and reviewed several reports and prior psychological evaluations. She testified that, when the minor discussed his offenses against his stepsisters, he became visibly upset and expressed empathy and concern for his victims. She believed his expression of emotion was genuine, and she viewed it as a positive sign. Another positive sign was that the minor recognized the thoughts and actions (“grooming” behavior) that led to his offenses against T. The fact the minor accurately described the crimes to her and did not minimize them also suggested to Dr. Atwal that he had made some progress in treatment.
The minor talked to Dr. Atwal about what he had learned in the treatment program. He discussed “his red flags, how he picked his victims, how he set his victims up, what he would do differently so that he wouldn’t commit another act like this, so that he could avoid sexually abusing somebody in the future.” The measures he described appeared to be appropriate relapse prevention strategies.
Dr. Atwal opined that the minor had “maximized what he’s going to get out of” the sexual offender treatment program, that further treatment in the program would not benefit him, and that he instead “needs to learn how to function in general society with some supervision.”
Dr. Atwal diagnosed the minor as suffering from pedophilia, sexually attracted to prepubescent girls. She did not diagnose a personality disorder as she did not feel she had enough evidence to make such a diagnosis. She believed he was “at moderate to high risk for committing a sexual offense with a young girl who was living with him.”
DISCUSSION
I
The minor contends the EDA denies him federal and state equal protection (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7) because it does not provide wards the same procedural safeguards that protect adults subjected to civil commitment proceedings under the Sexually Violent Predators Act (SVPA) and the Mentally Disordered Offender (MDO) law.
The minor filed a motion in limine to find the EDA unconstitutional on its face and as applied to him. The trial court heard argument on, and denied, the motion.
After the minor filed his opening brief, our Supreme Court decided In re Lemanuel C. (2007) 41 Cal.4th 33, which rejected a similar argument. Lemanuel C. explained: “In the Court of Appeal, defendant contended section 1800 violates equal protection because ‘it has fewer procedural safeguards than those required to civilly commit an adult SVP or MDO.’ The Court of Appeal ‘agree[d] that the adult statutes generally have more procedural safeguards and require more serious predicate offenses for commitment’ but properly concluded that there was ‘no equal protection violation here because persons committed under section 1800 are not similarly situated to SVP[’s] and MDO[’s] in key respects.’” (Id. at p. 47, fn. 12.)
In his reply brief, the minor claims Lemanuel C. was wrongly decided, but he acknowledges that this court is bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In any event, the minor’s claims of disparate treatment lack merit. He claims the EDA “extended commitment proceeding does not require treatment or hospitalization while at” DJF. We disagree.
Section 1700 states: “The purpose of this chapter [including sections 1800 and 1801] is to protect society from the consequences of criminal activity and to that purpose . . . offender training and treatment shall be substituted for retributive punishment and shall be directed toward the correction and rehabilitation of young persons who have committed public offenses.” (Italics added.) Consequently, treatment is still required for those persons committed pursuant to section 1800. (In re Gary W. (1971) 5 Cal.3d 296, 303; In re Brian J. (2007) 150 Cal.App.4th 97, 133-135.)
The minor claims the EDA is harsher than its adult analogs, because it allows DJF to “transfer an extended committee to prison.” To the extent he refers to placement in a general prison population, he appears to be incorrect.
Section 1802 allows the transfer of “any person over 21 years of age to the Director of Corrections for placement in the appropriate institution.” An “appropriate institution” necessarily would be a facility in which a section 1800 committee would receive special “training and treatment” for his or her mental disorder. (§ 1700.) Nothing in this record suggests that such treatment is made available to a general prison population. (Cf. People v. Feagley (1975) 14 Cal.3d 338, 375-376 [housing nontreatable mentally disordered sex offender among general prison population violates cruel and unusual punishment clauses of both the California and federal Constitutions].) We thus reject the minor’s claim that civil commitment under the EDA “results in harsher treatment than a civil commitment under the SVPA and the MDO.”
The minor claims he is treated unequally because the SVPA requires “at least two” predicate convictions before civil commitment proceedings can commence, whereas he has only a single sustained petition for an offense that fits within the SVPA. (Citing § 6600, subd. (b).) However, effective November 8, 2006, the SVPA requires only one predicate conviction. (§ 6600, subd. (a), as amended by Proposition 83, § 24.) Similarly, the MDO law requires only one qualifying conviction. (Pen. Code, § 2962, subd. (b).)
Having rejected the minor’s claim that persons subject to the EDA and its adult analogs are situated similarly but treated differently, we need not consider his argument that the EDA scheme must be subjected to strict judicial scrutiny.
II
The minor contends EDA proceedings are “punitive in nature,” and he may not be punished “without a finding that [he] has committed a crime other than the one for which he has already served the required time.” We are not persuaded.
To show that EDA “is punitive,” the minor reprises his claims that it “has fewer procedural safeguards,” “can result in harsher treatment,” and “does not require appropriate treatment upon re-commitment.” In part I, ante, we have rejected these arguments.
Proceedings under the EDA have long been recognized as “‘special proceedings of a civil nature.’” (In re Gary W., supra, 5 Cal.3d at p. 309, quoting People v. Succop (1966) 65 Cal.2d 483, 486; see In re Brian J., supra, 150 Cal.App.4th at p. 135.) The minor offers no persuasive reason to reach a different result in this case. Because the EDA proceeding is not punitive, the fact the minor has not committed a new crime is not fatal to the extended commitment.
III
The minor contends the trial court’s rulings allowing the prosecutor to introduce evidence of the details of his prior sexual activities with children violated his due process right to a fair trial. We do not agree.
Background
Prior to trial, the minor filed a motion to exclude and/or limit evidence of prior uncharged misconduct. One of the asserted grounds for exclusion was that the evidence was more prejudicial than probative. (Evid. Code, § 352.) The trial court heard arguments and concluded the evidence was more probative than prejudicial. Regarding details of the minor’s sodomy of T., the court explained, “in the Court’s view, the expert would not be able to explain how he arrived at . . . a mental disorder diagnosis unless he could and did reference to the actual conduct . . . that occurred.” Regarding details of the minor’s sexual acts with his two half-sisters, D. and J., the court ruled, “all of this information is absolutely relevant to the issue the jury has to decide and to the manner in which the experts have formed their opinions.”
The trial court further noted that the minor’s lifetime sexual conduct likely was relevant to the determination whether he poses a risk of re-offending; the evidence the defense was seeking to exclude was “the only evidence that’s relevant in this kind of a proceeding.”
After the jury was empanelled, the court heard further arguments on the minor’s claim that evidence of prior misconduct should be excluded pursuant to Evidence Code section 352. The court ruled, “the jury has to decide whether or not [the minor] poses a physical danger to the public. And in order to do so, they must have all the details of his past conduct and they must have all the details concerning what it is that supposedly or allegedly poses a danger. Without that knowledge, they simply cannot make an informed decision . . . . [¶] And in this case, the commitment offense is forcible sodomy and whatever the facts are regarding that particular offense is whatever it is, and the jury is not only entitled to know, the Court’s view is it is imperative for them to be able to reach any kind of an informed decision on the fundamental question of whether or not [the minor] poses a physical danger based on his mental disorder. And certainly the actual conduct is relevant to the expert’s own evaluation of him, and accordingly, on that basis, as well, it would be required that it be heard by the jury. [¶] So in this case, clearly, the probative value outweighs any potential undue prejudice that might be present.”
The jury received evidence that, at approximately age five, the minor began molesting D., who was then one and a half years old. His mother caught him while trying to have D. orally copulate him. As a result, he underwent treatment in Colorado from age six to age nine. Following completion of treatment, he resumed molesting D. and also molested J. As Dr. Herskovic explained, “the progression was initially he fondled, touched inappropriately, the young children. He progressed to forcing oral copulation and eventually to sodomizing and having intercourse with his victims.” Following these acts, the minor was in treatment in Washington for one year. Following that treatment, he lived with his brother in Sacramento and sodomized the brother’s daughter, T.
Dr. Herskovic testified that the minor initially related seven acts of sodomy, six acts of intercourse and 15 acts of forced oral copulation, all involving D. On a later occasion, the minor told Dr. Herskovic that he had engaged in “two times of intercourse and sodomy” with D. and five acts of sodomy with J.
Dr. Asgarian testified that the minor initially related 16 molestations of D. when he was five years old. On a later date, he claimed to have molested her eight times when he was age five. The minor told Dr. Asgarian that he began sodomizing D. when she was eight years old and began sodomizing J. when she was seven years old. He began molesting T. when she was eight years old.
Dr. Herskovic testified, over Evidence Code section 352 objection, that the minor had described his sodomy of T. as follows: “‘I forcibly sodomized her, licked my penis with saliva, and I rammed my penis hard. She screamed and cried and tried to push me off her.’”
Dr. Asgarian testified that the minor had described his sodomy of T. as follows: “He began touching her, which led to masturbating her and progressed to sodomizing her, and he admitted to having lots of verbal -- verbal and physical threats towards her and that he rammed it in hard, that she was crying and told him to stop.”
Analysis
The minor contends the trial court violated his “due process right to a fair trial” by admitting evidence that was made inadmissible by Evidence Code section 352. We disagree.
At trial, the minor did not suggest the court should engage in any sort of due process analysis that was different from the Evidence Code section 352 analysis. Thus, he may not argue on appeal that due process required exclusion of the evidence for reasons other than those articulated in his Evidence Code section 352 argument. (People v. Partida (2005) 37 Cal.4th 428, 435.)
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).)
The minor argues that the possibility that Drs. Herskovic and Asgarian relied on “intimate details” of his prior sexual acts in considering whether he was dangerous to the public “does not necessarily mean the jury was required to learn the intimate details.” In his view, “[t]he jury only needed to learn that [he] had repeatedly molested his siblings and that he later molested [his] niece, and that these repeated molestations led the metal [sic] health experts to conclude that without further additional [sic] treatment [he] is dangerous to the public.”
The minor’s argument disregards our standard of review. He cannot prevail merely by showing that the trial court could have balanced probative value and prejudice by limiting the evidence as he suggests. Rather, he must show that furnishing the intimate details to the jury was “arbitrary, capricious or patently absurd.” (Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) He has not done so.
The trial court carefully considered the issue and concluded that, in order to decide whether the minor “poses a physical danger to the public,” the jury “must have all the details of his past conduct and they must have all the details concerning what it is that supposedly or allegedly poses a danger.” Indeed, the “details” the minor finds most objectionable, depicting his brutal sodomizing of T., are the ones that speak most compellingly of the danger he poses to society. In particular, the details supported Dr. Asgarian’s opinion that the minor has a “[s]adistic quality in his personality.” Although the details may have tended to evoke an emotional bias against the minor, they also had a significant effect upon the issues of the case and thus were not unduly “prejudicial” within the meaning of Evidence Code section 352. (People v. Crew (2003) 31 Cal.4th 822, 842.) The trial court’s conclusion that probative value outweighed prejudice was not arbitrary, capricious or patently absurd. (Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
IV
The minor contends the trial court’s rulings allowing the prosecutor to inform the jury about the consequences of its verdict violated his due process right to a fair trial. We are not convinced.
Background
During the hearing on motions in limine, the minor “object[ed] and ask[ed] the Court to exclude witnesses or any testimony relating to any treatment in the community versus treatment in the California Youth Authority.” The court ruled: “There can be evidence that he’s not at risk for re-offending because there’s a support system and there’s . . . facilities and family members or whatever that’s going to be in the community, and therefore, he’s not going to be at risk for re-offending because he’s going to have this system to assist him. Similarly, it seems to me that the People should be able to say there’s been no provisions made for his release.” The court stated that the minor could “raise this argument further” during trial.
Parole Agent Kirkbride testified that once a ward completes the sexual offender treatment program, release on parole is considered. If the staff recommends parole, a plan is developed. The plan usually includes placement in a “transitional sex offender group home.”
The prosecutor asked Kirkbride what would happen if the minor’s commitment is not extended in the present proceeding. Following a series of objections and the laying of an adequate foundation, Kirkbride testified that the minor had no actual confinement time or jurisdictional time remaining; if his commitment were not extended, he would be released without parole or other supervision.
The prosecutor later asked Dr. Herskovic whether, if the minor were released into the community, “there’s no mandated continued treatment for somebody in his situation; correct?” Dr. Herskovic responded, “Without parole time there would be no mandated treatment.” He confirmed that “we’d be talking about a situation that would be purely voluntary up to [the minor] to choose whether he wanted to go to treatment” and with whom he would live.
During opening summation, the prosecutor asserted: “The other thing that’s somewhat frightening about [defense expert] Dr. Atwal is she didn’t even -- I don’t know whether she was -- it was an attempt to mislead you or she didn’t understand the nature of these proceedings or what the situation was, but the truth of the matter is, . . . in her report she talks about how important it is to have a very tight structure on [the minor]. Well, there is no option of paroling [the minor] and having all these controls and -- and making sure we check up on him and we know where he lives. That isn’t a possibility. Okay? No chance that can happen. One of two things happens: Either we extend the detention or he walks out into the public.”
Later in summation, the prosecutor commented upon Dr. Atwal’s positive view of the minor’s relapse prevention strategy, which included talking “with his counselor if he had one or probation officer.” The prosecutor told the jury that, “if you don’t extend this probation [sic], there isn’t going to be a counselor.” The trial court overruled the minor’s objection on the ground of “improper argument.”
The prosecutor continued: “This is my favorite one. Speak with a parole [sic officer. What parole officer? How’s he going to speak to his parole officer? Did she say, ‘Do you realize there won’t be a parole officer to talk to?’ No, she didn’t ask him that. Why? Either she didn’t know the nature of the proceedings or she didn’t care or she just wasn’t inquisitive enough.”
The prosecutor appears to be referring to Dr. Atwal’s testimony that the minor planned to speak to a probation officer. This may explain why Dr. Atwal failed to inquire about the evident lack of a parole officer. Why the minor would have a probation officer went unexplored.
In closing summation, the prosecutor argued that if the minor moved into a neighborhood in which a prepubescent female lives, she would be at high risk. The prosecutor noted Dr. Atwal’s opinion that the minor should be released into a structured controlled environment, but he argued that such an environment was “not available.” He argued that, when she was asked whether the minor should be released into the community, her answer was “[t]he same as every other doctor. High risk. He’s a high risk under the situation you’re in to re-offend against prepubescent [sic] girls. That’s the only testimony.”
The prosecutor concluded his argument as follows: “You know the expert testimony you got in this case on every one of these issues, all three of these issues, is consistent. With the issue that faces you in terms of releasing him where he can’t be placed on parole or extending his detention, every one of those answers by the doctors is that he is a pedophile, that he has trouble controlling his behavior, and that he is a danger to the community at a high risk of reoffending if released under these conditions. There is no contrary evidence.”
Analysis
The minor argues he “had a due process right to a fair trial which included the right to preclude the jury from hearing inadmissible and highly inflammatory evidence,” and he “was denied this right through the trial court’s rulings which allowed the prosecutor to introduce highly prejudicial evidence about the consequences of the verdict.” Because the minor did not object to the evidence on federal constitutional grounds, he is limited to arguing “that the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process.” (People v. Partida, supra, 37 Cal.4th 428, 435.)
The minor’s claim of prejudice is based on People v. Collins (1992) 10 Cal.App.4th 690 (Collins) and People v. Kipp (1986) 187 Cal.App.3d 748 (Kipp). “Kipp held it is error to advise the jury in an NGI [not guilty by reason of insanity plea] extension proceeding that their verdict will decide whether the petitioner should be released or continue to be confined for involuntary treatment. Such an instruction is likely to distort the verdict because the jury could fear his release and be more inclined to rule against the NGI committee regardless of the evidence.” (Collins, supra, at p. 695, citing Kipp, supra, at p. 751.)
Citing Kipp and People v. Moore (1985) 166 Cal.App.3d 540, Collins concluded, “a jury may be instructed about the consequences of a verdict regarding mental illness when it is designed to alleviate fear and prejudice toward the mentally ill. It is error, however, to instruct on the consequences of such a verdict when it would encourage the jury to ignore the evidence and decide the case based on their fear. [¶] We hold it was error to instruct the jury of the consequences of MDO finding. As stated in Kipp: ‘There can be no purpose to advising a jury of the consequences of its decision under the present circumstances, except to improperly deflect its attention from the issue of the defendant’s current mental condition to the possible effect of a decision to find [in his favor], i.e., to “stack the deck” against the defendant. . . . The instruction . . . blatantly suggests the jury should weigh the potential effect of a sanity finding on the same scale used to make the determination itself. . . .’ [Citation.]” (Collins, supra, 10 Cal.App.4th at pp. 695-696.)
In this case, the jury was not instructed impermissibly regarding the consequences of its verdict. Nevertheless, the minor claims he endured the sort of prejudice condemned by Collins, because the jury received evidence and heard argument regarding the conditions of his release if his commitment were not extended.
In order to warrant exclusion under Evidence Code section 352, such prejudice must substantially outweigh the evidence’s probative value. Section 1801.5 provides in relevant part that “[t]he court shall submit to the jury . . . the question: Is the person physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality which causes the person to have serious difficulty controlling his or her dangerous behavior?” Evidence that, if released into the community, the minor would not be subject to parole or other formal supervision was highly relevant to the danger he posed to the public. Moreover, lack of formal parole supervision was relevant to rebut defense expert Atwal’s opinion that the minor could be released “with some supervision.” The trial court’s ruling that probative value outweighed prejudice is neither arbitrary, nor capricious, nor patently absurd. (Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
V
The minor contends the cumulative prejudice of the errors discussed in parts III and IV, ante, require reversal of the judgment. Because we have rejected both claims of error, we also reject the claim of cumulative prejudice.
VI
The minor contends the evidence was insufficient to support findings that (1) his mental illness or abnormality causes him serious difficulty controlling his behavior, and (2) his inability to control his behavior results in a serious and well-founded risk that he would reoffend if not committed.
The first finding was supported by Dr. Herskovic’s testimony that the minor “would have serious difficulties in controlling his pedophilia due to his lack of demonstrated interventions with his continued fantasy life.” Dr. Herskovic’s opinion was supported by the minor’s admissions that he continued to masturbate with his victim in mind, continued to have sexual fantasies about children, and continued to fantasize specifically about his victims. The opinion was further supported by the minor’s August 2004 admission that he had no control over his thoughts and feelings. The fact the evidence could also support a contrary finding, i.e., that the minor had volitional control and chose to reject treatment and continue his fantasy life, does not require reversal of the judgment. (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
In his opening brief, the minor acknowledged that the issue whether the second finding was constitutionally required was then pending before our Supreme Court in Lemanuel C. That issue has now been resolved adversely to him; the finding is not constitutionally required. (Lemanuel C., supra, 41 Cal.4th at pp. 40-49.) Any insufficiency of evidence with respect to that finding is moot.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., ROBIE, J.