Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. MH98981, John M. Thompson, Judge.
IRION, J.
Robert Emmett Blevins waived trial by jury and after a bench trial, the court found him to be a sexually violent predator (SVP) within the provisions of the newly amended Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). Based on that finding, Blevins was recommitted to the State Department of Mental Health (DMH) for an indeterminate term for treatment and confinement.
All further statutory references are to the Welfare and Institutions Code.
On appeal, Blevins contends his commitment violates the plain language of the SVPA and is unconstitutional because he was not under any "defined commitment" when the court granted the People's amended petition, found him to be an SVP and committed him to an indeterminate term. He further contends the trial court violated his due process rights when, over his objection, it allowed two expert witnesses to rely on statements made in 1981, by his former girlfriend, that were contained in a police report prepared in connection with the rape of a 10-year-old girl, in opining Blevins was a SVP. We reject both contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. SVP Background
In 1969, Blevins raped a 19-year-old female. He testified during his SVP trial that he "manipulated her into the bedroom, the walk-in closet," where a mattress was located. He twisted her arm behind her and said, "I don't want to hurt you." He then raped her. Afterwards, he told her not to tell anyone about the rape.
Blevins has provided varying accounts of the facts of this and other offenses over the years. During a 1996 initial SVP evaluation interview, for example, Blevins told Dr. Jeffrey Lille that in connection with this offense, "[I] went into the bedroom to help [the victim] close the door. [I] laid her down and undressed her. She didn't scream rape or nothing. When I pushed her on her stomach, she did nothing. When I put my penis in her vagina she did nothing. Then I drove her somewhere. She said, 'You are not a Christian.' " In another instance, Blevins told Dr. Harry Goldberg, during a 1996 evaluation interview, that because the victim drove him out of the house, he became mad and raped her. Blevins gave a different account of the rape to Dr. Starr when she interviewed him in 2006, which is similar to the account he testified to at his SVP trial in September 2007. Relevant here is the fact that Blevins pleaded guilty to rape in violation of Penal Code section 261.3, a felony, which the parties stipulated was a qualifying offense under the SVPA.
While out on his own recognizance with charges pending for rape, Blevins telephoned a minor who had placed an advertisement in a newspaper for baby-sitting, telling her he needed a baby-sitter for his children. After he picked her up, he testified he pulled a knife on her and threatened her, tied her up with twine and raped her in the back seat of his car. Blevins confessed he used the knife to intimidate and scare his victim into submission. He further testified he tied the girl up, unlike his earlier victim, because "I was afraid she might fight and scratch and stuff like that." After the attack, he told the girl not to tell anyone what had happened.
In his initial SVP screening interview with Dr. Lille in 1996, Blevins said the girl was almost 15 years old when he raped her, and claimed the girl "had been screwing a rock and roll drummer who was 22, 23, since she was 12 years old. Anybody could fuck her, [the drummer] didn't care." Although Blevins admitted he forced his victim to have sex with him by threatening her with a knife, he further reported the victim said, "Next time I baby-sit, have your wife come with me."
The next day, Blevins telephoned a 14-year-old girl after reading her baby-sitting advertisement in the newspaper. When he called her, he used an alias because he intended to rape her and he did not want her to identify him. After picking her up in his car, he showed her a knife and grabbed her arm. However, when she told him "leave go of me" and started to cry, he decided not to rape her. He was not charged for this crime.
For the rape of the 19-year-old woman, Blevins pleaded guilty under Penal Code section 261.3. (People v. Blevins (Super. Ct. San Diego County, 1970, No. CR17013).)
For the rape of the 13-year-old baby-sitter, Blevins was charged with kidnapping, rape and assault with a deadly weapon, and pleaded guilty to rape of an incapable person in violation of Penal Code section 261.1. (People v. Blevins (Super. Ct. San Diego County, 1970, No. CR18479).) He was sentenced to three years to life in prison for both crimes.
In mid-1973, Blevins was paroled. In early 1974, he was arrested for a parole violation and a new sexual offense. In that incident, he was drunk at a party when he decided to rob a 30-year-old woman whom he believed had a lot of money with her. He testified he followed her to her car, pointed a gun at her, and demanded her money. He further testified when he asked her if she was wearing a money belt, she unbuttoned her shirt and said, "No[, but] you want to fuck?" "I said, Yes. What I did was orally copulated her instead." Blevins was convicted of sexual perversion/oral copulation under Penal Code section 288a. (People v. Blevins (Super. Ct. Alameda County, 1974, No. 57035).) For that conviction and parole violation he was given a prison term of six months to 15 years. Blevins was paroled in late 1979.
Again, Blevins's story regarding the facts of this event has varied over time. For example, Dr. Starr noted in the official reports regarding this crime Blevins claimed he was taking the woman home, as opposed to following her outside to rob her. He also claimed to have raped her for revenge, and perhaps because the victim had said something to his girlfriend that interfered with their relationship.
In 1981, Blevins raped a 10-year-old girl in a park where he had been living, after his girlfriend, Ella G., "threw" him out of her house. He observed the girl a day earlier at the park fishing with friends. When she came back the following day, he decided to rape her because he was "extra super horny," and she was "the only thing available at the time. . . ." He lured her into a secluded area where he threatened her with a knife, pulled off her clothes, stuffed a rag into her mouth to keep her from screaming, fondled her breasts, replaced the rag in her mouth with his penis, inserted his penis into her vagina after lubricating himself with Vaseline and tried to sodomize her. After he finished, Blevins told her not to tell anyone or he would kill her.
Police interviewed Ella G. during the course of their investigation of the rape of the 10-year-old girl. She claimed to have seen Blevins on the morning of the attack, but denied having sex with him that morning as he had claimed to police. She also denied they used Vaseline when they had sex. Ella G. also told police Blevins had attacked her sexually, that he had beat her up and that he liked to engage in tortuous sexual behavior with her. Charges were never brought against Blevins based on these accusations.
For the rape of the 10-year-old girl, Blevins was convicted by a jury of committing forcible oral copulation (Pen. Code, § 288) with the use of a knife (Pen. Code, § 12022.3, subd. (b)), and forcible rape (Pen. Code, § 261, subd. (a)(2)) with the use of a knife (Pen. Code, § 12022.3, subd. (b)). (People v. Blevins (Super. Ct. San Diego County, 1982, No. CRN7211).) Blevins admitted a prior within the meaning of Penal Code section 667.6, subdivision (a). Following an appeal and remand, Blevins was sentenced to prison for 26 years.
B. SVP Commitment Proceedings
In November 1997, the People filed a petition under the SVPA seeking to commit Blevins to the DMH for a two-year period, the maximum allowed under former section 6604. The petition alleged Blevins was a SVP under section 6600, subdivision (a) because he had been convicted of a sexually violent offense against two or more victims for which he received a determinate sentence. The petition further alleged Blevins had a diagnosed mental disorder that made him a danger to the health and safety of others in that it was likely he would engage in sexually violent criminal behavior. On February 6, 1998, the court found Blevins qualified as a SVP and committed him to Atascadero State Hospital (ASH) until December 28, 1999.
Blevins's commitment was extended for a two-year period on November 5, 1999, after court proceedings conducted under the SVPA. His commitment was extended for additional two-year terms on November 16, 2001, and again on December 19, 2003.
On September 29, 2005, the People filed a petition to extend his commitment for an additional two years. The petition noted Blevins's maximum commitment date under the previous order was December 28, 2005. The petition included a letter dated July 20, 2005, from David K. Fennell, M.D., Medical Director of ASH, along with copies of recent SVP recommitment evaluations prepared by Dr. Dawn Starr and Dr. Robert Owen. The letter and evaluations recommended that a petition for extension of commitment be filed because Blevins "is a person who continues to meet all the legal and clinical criteria which led to the original civil commitment and therefore qualifies for extension of commitment" under section 6604.
The probable cause hearing was originally set for October 21, 2005, but was continued on that date on Blevins's motion. Blevins was not present at that hearing, as he previously had waived his presence. The hearing was again continued on his motion on October 28 and again on November 18, 2005. On both occasions, Blevins waived his presence at the hearings.
Although present at the courthouse, Blevins initially refused to appear for the probable cause hearing held on December 16, 2005. After he met with counsel, he appeared for the hearing. The court took judicial notice of the SVP recommitment evaluations, which the court noted it had read. The parties stipulated to three qualifying priors for purposes of the proceeding, and the People rested. Blevins called Dr. Owen to testify. Upon conclusion of the evidence, the court found probable cause existed under section 6602 to hold Blevins for trial under section 6603 and ordered him returned to custody without bail. By agreement of the parties, a status conference was set for February 3, 2006. Blevins waived his presence for that hearing.
At the status conference, trial was set on the petition for March 9, 2006. However, the trial was delayed because Blevins had pneumonia. As a result, updated evaluations of Blevins were ordered. At the hearing held on March 9, 2006, with Blevins present, the court set a status conference for April 26, 2006, based on a stipulation between the parties, and ordered Blevins to return. The court on April 26, 2006, continued the status conference to June 1, 2006, and ordered Blevins to appear. Blevins was not present at the April 26, 2006 hearing, nor was he present at the June 1, 2006 hearing when the court set the trial on the People's petition for September 27, 2006.
Dr. Starr met with Blevins in June 2006, and concluded he met the criteria of an SVP. Dr. Owen also attempted to meet with Blevins, but he refused. After reviewing Blevins's records, Dr. Owen also concluded Blevins met the criteria of an SVP.
At the September 27, 2006 hearing, the court granted Blevins's request to return to ASH pending trial, which the court set for January 24, 2007, on Blevins's motion. Blevins attended the October 24, 2006 hearing on his motion to dismiss the SVP petition. The court denied that motion and granted the People's request to file an amended petition under newly amended section 6604 to determine whether Blevins was an SVP and should be recommitted for an indeterminate term for treatment and confinement. The parties on January 24, 2007, stipulated to continue the trial until March 26, 2007.
On March 22, 2007, Blevins's counsel appeared ex parte before the court requesting that Blevins be excused from appearing at the scheduled March 26, 2007 trial. The court granted her request and ordered Blevins returned to ASH. On March 26, 2007, the parties stipulated to continue the trial to September 5, 2007. At the September 5, 2007 hearing, Blevins, who was present in the courtroom, waived his right to trial by jury, and the matter was continued until September 7, 2007.
Before trial commenced, Blevins renewed his motion to dismiss, which the court denied. Blevins also brought a motion to exclude the statements of Ella G. in the police report, arguing they constituted inadmissible hearsay that could not be used by the People's experts in determining whether Blevins was an SVP. The court also denied that motion, observing that it did not find Ella G.'s statements to be "patently untrustworthy."
The parties stipulated that Blevins had been convicted of three qualifying priors for purposes of the SVPA: (1) People v. Blevins (Super. Ct. San Diego County, supra, No. CR17013) (rape of 19-year-old woman in violation of Pen. Code, § 261.3); (2) People v. Blevins (Super. Ct. Alameda County, supra, No. 57035) (oral copulation by force of 30-year-old woman in violation of Pen. Code, § 288a); and People v. Blevins (Super. Ct. San Diego County, supra, No. CRN7211) (rape of 10-year-old girl in violation of Pen. Code, § 288.)
The parties' stipulation did not include People v. Blevins (Super. Ct. San Diego County, supra, No. CR18479), where Blevins pleaded guilty to rape of the baby-sitter under Penal Code section 261.1.
C. People's Evidence
Dr. Starr, a clinical psychologist, testified that Blevins satisfied the SVP criteria under the SVPA. Dr. Starr initially evaluated Blevins in July 2005, when he declined to be interviewed by her, and again in June 2006, when he agreed to speak with her. On both occasions, Dr. Starr concluded Blevins met the criteria of a SVP under the SVPA. She used the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) to diagnose Blevins with paraphilia not otherwise specified NOS, bipolar disorder and alcohol dependency. Dr. Starr described paraphilia as involving "recurrent typically deviant intese urges, fantasy or behaviors," which "can involve non-consenting individuals or children or specific kinds of deviant sexual interests, for example, sadism, masochism, voyeurism, exhibition, [or] pedophilia." Dr. Starr testified in each of the four instances when Blevins committed rape, "he's taken victims . . . and isolated them, used forced, engaged in non consensual sex, when he has available sex partners, when this has resulted in serious adverse consequences to himself. [¶] He tried to avail himself of help in the past, yet he continued to do this. [¶] . . . [¶] He knows there's serious consequences. He's under scrutiny. Every likelihood is he's going to be caught and found and have increasingly serious consequences. So this drive must be so hard for him to control that he cannot control it enough at the time to avoid new sexual offenses."
Dr. Starr believed Blevins was in the highest range of risk to reoffend in the future, based on his score of seven from the STATIC-99, an actuarial instrument. Dr. Starr further believed that 39 percent of persons with a score of six or more are likely to have a new sex offense conviction within five years; at 10 years, 45 percent of these people will reoffended; and at 15 years, 52 percent will have reoffended. Dr. Starr noted that although Blevins was 65 at the time of her testimony, he was "energetic, still sexually active and interested," as he admitted to Dr. Starr during their interview that he masturbated weekly and fantasized about sex, and because "there's every reason to believe that as important as sex has been to [Blevins], if he's in the community, sex will be a part of his life. That may involve consensual sex. But another important part of his life has been the non consensual sex. Given the fact he's not done anything to deal with that, when he talks to me, he still doesn't really understand why he did these things, I think that eventually it would be a matter of time before he committed another sexual offense" in a predatory manner.
Dr. Robert Owen also testified for the People. He evaluated Blevins twice for recommitment as a SVP, once in May 2005 and again in June 2006, and in both instances he concluded Blevins met the SVP criteria. Dr. Owen diagnosed Blevins as having mental disorders of paraphilia NOS, paraphilia sexually attracted to females, bipolar II disorder, polysubstance dependence and antisocial personality disorder.
With respect to his paraphilia diagnosis, Dr. Owen testified this is a condition where a person has "at least six months of fantasies, urges or behaviors, in this case regarding non-consenting persons." Dr. Owen opined Blevins is a paraphiliac because "he's become aroused and had erections in situations that most men would find abhorrent. He's offended over a several-year period. He's found something exciting about overcoming women, dominating them, terrorizing them with some kind of weapon, a knife or gun, and then having sex with them. There's something very deviant about this."
Dr. Owen also noted that Blevins engaged in rape despite having a partner available for consensual sex, and that he reoffended soon after his release from prison. In addition, Dr. Owen noted an escalation in violence with each successive offense by Blevins, culminating in the rape of the 10-year-old girl that included oral copulation and attempted sodomy. Dr. Owen opined these behaviors showed Blevins had "very little control over his anger or his sexuality," which was further shown by Blevins's statements to police that the 10-year-old made a "pass at him," and that when he got out of prison he would find her and "blow her head off with a shotgun." Dr. Owen stated such behavior also shows Blevins has a volitional and emotional impairment.
Dr. Owen testified Blevins has "consistently refused" treatment at ASH for paraphilia. Dr. Owen further testified that it is uncommon for men to rape at age 65, which was then Blevins's age. However, Dr. Owen believed Blevins was likely to commit new predatory offenses, based on his score of six on the STATIC-99, which put Blevins in the "high-risk" category to reoffend.
D. Defense Evidence
Blevins testified on his own behalf. When he raped his first two victims, he said it was "like letting an anger loose, a lot of anger that built up. [¶] . . . [¶] Afterwards the anger would be gone." Blevins said that in 1969 he was angry with "God and everybody else and [me]" when he raped his first two victims. Once in prison for those crimes, he wanted to get help because he considered himself a "sex offender."
With his first victim, Blevins said after he raped her she started to cry. Blevins testified, "[I] started feeling low, humiliated, scared that I knew she was going to tell." He drove around in his car after the rape, worried about how it would effect his wife who was almost nine months pregnant. He was not sure his victim was afraid or scared during the rape, although he believed she was in "total shock," which he testified is just how he felt when as a boy he had been raped by his mother. In addition to his mother raping him when he was 12 years old, Blevins testified he was molested by a stranger who followed him to school; by a man in a car in Texas; by a Boy Scout leader; and by his sister and her friend.
Dr. Starr's July 15, 2005 SVP report states that during an initial SVP interview in June 2006, Blevins told Dr. Goldberg he first began having sexual intercourse at age 17, and denied his mother and sister had sexually molested him as a boy.
While charges were pending for his first offense, he testified he raped the baby-sitter. He started thinking about rape when he looked through the newspaper and saw the baby-sitting advertisement. At the time, he thought, "I'm going to get found guilty for [the first rape], so I'm going to go ahead and go to prison and get it over with. I know if I do it again, they won't let me out. I don't have money for bail. [¶] . . . [¶] I figured this would enhance my chances of going to prison." Blevins testified he wanted to go to prison because "I felt responsible for the death of all three of my children -- I mean two of my children. A lot of other things from the past [were] starting to attack me too. Like this kid I chased around the house one time got run over by a car. My uncle putting a gun in his mouth and blowing his fucking brains out. And I don't know why, but at the time . . . I was sleeping in the bed with my mother. I felt if I hadn't done that, that wouldn't have happened. Before my sister molested me with her girlfriend, it pissed me off."
Blevins testified he "manipulated" the doctors in prison in order to be transferred to ASH for treatment, so that when he got out of prison he had a "foundation" to "work better in an outpatient clinic." Once there, he went to a "regular group" but refused to go to sex offender treatment because, among other things, he claimed he was too busy.
At the time he raped his third victim, Blevins was "drunk all the time." After he realized what he had done, which he said took about three or four months, Blevins started to get "scared" thinking about going back to prison.
After getting out of prison in or about 1979, Blevins came back to San Diego and lived with Ella G. He admitted he was arrested for battery after he and Ella G. got into a fistfight, because he was tired of being beaten by her. He was living in the park and panhandling after Ella G. made him leave her house, although he continued to see her and they would have sex "once in a while."
Blevins decided to rape the 10-year-old girl the second day he saw her at the park. He remembered very little about the rape because that morning he drank a pint of whiskey and two gallons of wine. Blevins knew if he got caught for the rape he would go to prison. Despite such knowledge, however, he admitted he raped her because he could not stop himself, and because he felt "so horny and she was the only one there." When his victim started to cry, he testified he stopped raping her because he felt bad "for both of us."
When asked what was the most exciting thing about his offenses, Blevins said "nothing . . . except for the actual act of intercourse. But it wasn't all that exciting. It was just like -- what was really weird, it was disappointing. I thought it would be more exciting than regular sex. It wasn't." When asked why he continued to rape, he responded, "I thought maybe it was the wrong [victim]. I don't know."
Blevins testified he has sexual desires for his ex-wife and his ex-girlfriends and that sometimes he fantasizes about married women, noting, "I get turned on by married women." He noted having sexual intercourse with married women was a "big taboo," and that there was a difference between something being "taboo and wrong": "It's like -- see, I replace this for rape. Just like people eat candy in place of cigarettes. People take -- go to a drug center where they can get free drugs instead of using heroin. . . . If you do something and get rid of it, you have to have something over here to replace it. This is my replacement. Doesn't mean I am going to have sex with a married woman like when I was on the trash route."
Blevins also testified he has sexual fantasies three or four times a month, although he claims he no longer masturbates because he is "so preoccupied with art work up there at Coalinga [State Hospital]." Blevins described his art work as his "occupational therapy," and said he intends to support himself someday by living off social security disability, veteran's disability and by making copies of his art and selling it. Blevins said he intends to live with cousins in Arkansas if he is released. He also testified his biggest risk factor for reoffending is alcohol; he is an alcoholic; and without alcohol he believes his risk of reoffending is about 7 percent "maximum, after 10 years," but if he begins to drink again his risk increases to about 17 percent, although he does not intend to "even go close to a bar or a liquor store" if he is released.
Asked if he believed what he had done was wrong, Blevins testified, "I know it's wrong. That's why I'm going to make damn sure I never do it again. [¶] . . . [¶] All I can say, if I'm given a chance to get out -- I'll even let them follow me 24 hours a day. They can put a collar on my ass like a dog and follow me. I'd rather die in the gutter on the streets a free man than to die in a hospital bed locked up."
Dr. Theodore Donaldson testified as an expert on Blevins's behalf. He stated, "there are no psychiatric diagnoses other than paraphilia that address the statutory definition of the required impairments" under the SVPA. He further stated Blevins did not suffer from paraphilia NOS because there is no "paraphilic rape diagnosis" in the DSM, and because in any event there was insufficient evidence Blevins suffered from fantasies and urges or was overly aggressive toward women, which he considered requirements for such a diagnosis.
Dr. Donaldson also opined that Blevins did not suffer from paraphilic coercive disorder because Blevins had no inhibitions regarding rape and felt no remorse for his victims or guilt after the offense. Dr. Donaldson agreed with Drs. Starr and Owen that Blevins had a bipolar disorder, but because he did not have paraphilia, Dr. Donaldson concluded Blevins could not be an SVP.
Instead, Dr. Donaldson believed that Blevins committed rape because he had the "urge for sex," whether or not consensual. He noted that Blevins's "repeated criminal behavior does not in and of itself identify a mental illness" for purposes of the SVPA.
In terms of assessing Blevins's risk of recidivism, Dr. Donaldson stated that while the STATIC-99 instrument is a "well researched, well developed instrument," it has "serious problems," including not taking age into account or changes in a person as he or she ages. He noted the average age with the STATIC-99 development samples was 34, and "everybody agrees, and all research agrees, that once [a person] get[s] to about 60, the risk [of recidivism] drops way down, way down, like two or three percent."
Dr. Donaldson also believed that whether Blevins would reoffend if released from custody of the DMH was not really a matter of expert opinion. However, he concluded Blevins's risk to reoffend was "probably under 5 percent," although he candidly noted that was a "guess" based on Blevins's age, among other factors.
E. Trial Court's Findings and Recommitment
After presentation of evidence, the trial court granted the People's amended petition and found that Blevins, "by reason of a diagnosed mental disorder, is a danger to the health and safety of others, and that [he] is likely to engage in acts of sexually violent criminal behavior upon his release from the Department of Corrections or other secured facility." The court committed him for an indeterminate term under amended section 6604 for appropriate treatment and confinement.
DISCUSSION
I
Background of SVPA
The SVPA, as originally enacted effective January 1, 1996 (Stats. 1995, ch. 763, § 3, p. 5922), provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who are found beyond a reasonable doubt to be an SVP. (See former § 6604; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1147 (Hubbart).) A person's commitment could not be extended beyond that two-year term unless a new petition was filed seeking a successive two-year commitment. (Former § 6604; People v. Shields (2007) 155 Cal.App.4th 559, 562 (Shields).) The SVP extension hearing was a "new and independent proceeding at which the [People] must prove the person [committed] meets the [SVP] criteria," including that he or she has a currently diagnosed mental disorder that renders the person dangerous. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1289 [68 Cal.Rptr.3d 142] (Bourquez), rehg. den. Feb. 27, 2008; see also § 6605, subds. (d) & (e); People v. Munoz (2005) 129 Cal.App.4th 421, 429.)
Former section 6604 provided in part: "[T]he person shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained from the court incident to the filing of a [new] petition for extended commitment under this article or unless the term of commitment changes pursuant to subdivision (c) of Section 6605."
On September 20, 2006, the Legislature enacted urgency legislation amending the SVPA, and on November 7, 2006 California voters approved Proposition 83 (also known as "Jessica's Law") effective November 8, 2006. (Shields, supra, 155 Cal.App.4th at pp. 562-563.) Among other changes, "former section 6604 was amended to eliminate the two-year [commitment] term provision and to provide for an indeterminate term of confinement . . . ." (Id. at p. 562.) Amended section 6604 provides in part: "If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement . . . ." (Amended § 6604, italics added.)
"The statements of intent contained in Proposition 83 confirm the obvious intent of the Legislature in amending section 6604. The Proposition expressly sets forth the intent to strengthen SVP confinement laws: ' ". . . [¶] . . . [¶] It is the intent of the People of the State of California in enacting this measure to strengthen and improve the laws that punish and control sexual offenders." ' (Historical and Statutory Notes, 47A West's Ann. Pen. Code (2007 supp.) foll. § 209, p. 430; Prop. 83, §§ 2, subd. (h), 31.) More specifically, Proposition 83 states that the change from a two-year term to an indeterminate term is designed to eliminate automatic SVP trials every two years when there is nothing to suggest a change in the person's SVP condition to warrant release: ' "The People find and declare each of the following: [¶] . . . [¶] (k) California is the only state, of the number of states that have enacted laws allowing involuntary civil commitments for persons identified as sexually violent predators, which does not provide for indeterminate commitments. California automatically allows for a jury trial every two years irrespective of whether there is any evidence to suggest or prove that the committed person is no longer a sexually violent predator. As such, this act allows California to protect the civil rights of those persons committed as a sexually violent predator while at the same time protect society and the system from unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person." ' (Historical and Statutory Notes, 47A West's Ann. Pen.Code, supra, foll. § 209, p. 430, italics added; Prop. 83, § 2, subd. (k).)" (Shields, supra, 155 Cal.App.4th at p. 564.)
Amended section 6404.1, subdivision (a) states the "indeterminate term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section." Previously, for extended two-year commitments under former section 6604, the term of commitment was "from the date of the termination of the previous commitment." (Former § 6604, subd. (a).)
II
Petitions to Recommit for an "Indeterminate Term"
Blevins argues the amended SVP statutes do not apply to him because, in amending section 6604, the Legislature "eliminated all references in the controlling statutes to persons previously committed for two years and to extension[s] of those commitments." Blevins thus argues under the plain meaning rule that the amended SVP applies only to a person "in custody pursuant to his or her determinate prison term, parole revocation term, or a hold placed pursuant to Section 6601.3 . . . ." (§ 6601, subd. (a)(2).) Because Blevins argues his maximum commitment under former section 6604 expired on December 28, 2005, he claims that he falls outside section 6601, subdivision (a)(2), and that the court lacked jurisdiction over him when it found him to be an SVP and committed him to the custody of DMH for an indeterminate term.
Blevins's argument is the same argument previously rejected by this court in Shields. Taken to its logical conclusion, Blevins's argument is that all SVP's committed for a two-year term under former section 6604 must be released when their commitments expire. This interpretation is contrary to the intent of the Legislature in amending section 6604, "which was to enhance, not restrict, confinement of persons determined to be SVP's" (People v. Carroll (2007) 158 Cal.App.4th 503, 510 (Carroll)), and of the will of the voters in passing Jessica's Law, which was to "strengthen and improve the laws that punish and control sexual offenders." (See Shields, supra, 155 Cal.App.4th at p. 564, quoting Historical and Statutory Notes, 47A West's Ann. Pen. Code (2007 supp.) foll. § 209, p. 430; Prop. 83, §§ 2, subd. (h), 31.) Such an interpretation also " ' "would result in absurd consequences the Legislature [clearly] did not intend." ' " (Carroll, supra, 158 Cal.App.4th at p. 510.) For the reasons we discussed in Shields, we conclude the trial court was authorized to extend Blevins's commitment as an SVP for an indeterminate term under amended section 6604.
Blevins claims Shields is distinguishable from his situation because his SVP trial was held after his maximum commitment expired on December 28, 2005. However, other than claiming amended section 6604 does not apply to him and all other SVP's like him who were previously committed to two-year terms under former section 6604, Blevins cites no legal authority in support of this claim.
Moreover, we reject Blevins's argument his commitment expired on December 28, 2005. Section 6602 provides that "[u]pon commencement of the probable cause hearing, the person shall remain in custody pending the completion" of that hearing, and if the court determines probable cause exists, it "shall order that the person remain in custody in a secure facility until a trial is completed and shall order that a trial be conducted to determine whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release . . . ." (§ 6602, subd. (a), italics added.) Under former section 6604, to extend Blevins's commitment for an additional two years the People were required to file a "new petition for commitment" under the SVPA, which, in fact, the People filed on September 29, 2005, before his two-year commitment expired under former section 6604. Blevins's probable cause hearing under section 6602 was held on December 16, 2005, also before the expiration of his commitment. Under section 6602, subdivision (a), Blevins was lawfully in custody while his SVP trial was pending.
The record also supports this conclusion, inasmuch as several of the continuances were based "on defendant's motion." At all times Blevins was represented by legal counsel, and we note he has not raised on appeal a claim of ineffective assistance of counsel.
III
Ex Post Facto
Blevins contends that the substitution of an indeterminate term, in place of a two-year term in sections 6604 and 6604.1, violates the ex post facto clause because the amended statutes are punitive. (See U.S. Const., art. I, § 9, cl. 3; Cal. Const., art. I, § 9.) We disagree.
This precise issue and other constitutional challenges to the SVPA are presently before our Supreme Court. (See People v. McKee (2008) 160 Cal.App.4th 1517 [73 Cal.Rptr.3d 661], review granted July 9, 2008, S162823 (McKee); People v. Johnson (2008) 162 Cal.App.4th 1263 [76 Cal.Rptr.3d 882], review granted August 13, 2008, S164388, (briefing delayed pending decision in McKee); People v. Riffey (2008) 163 Cal.App.4th 474 [77 Cal.Rptr.3d 526], review granted August 20, 2008, S164711, (briefing delayed).)
The ex post facto clause applies only to criminal proceedings. (See Kansas v. Hendricks (1997) 521 U.S. 346, 361 (Hendricks); People v. Castellanos (1999) 21 Cal.4th 785, 790-795; Hubbart, supra, 19 Cal.4th at pp. 1170-1171.) "The basic purpose of the clause is to ensure fair warning of the consequence of violating penal statutes, and to reduce the potential for vindictive legislation." (Hubbart, supra, 19 Cal.4th at p. 1171.) "The federal and state ex post facto clauses are interpreted identically." (Ibid.; People v. Helms (1997) 15 Cal.4th 608, 614.)
As Blevins acknowledges, the California Supreme Court has held that the SVPA is civil in nature and therefore has rejected an ex post challenge to former section 6604, where the term of commitment was limited to two years unless the commitment was extended by a new petition. (Hubbart, supra, 19 Cal.4th at pp. 1171-1174; former § 6604.) Blevins argues the amendments to the SVPA have become punitive, however, as evidenced by changes to: (1) sections 6604 and 6604.1, where an indeterminate term was substituted for the former law's two-year term; and (2) section 6608, where an SVP now has the burden of proof by a preponderance of the evidence that he or she is no longer an SVP if seeking release or discharge without authorization from the DMH.
In addressing the constitutionality of involuntary civil commitment schemes, our Supreme Court has observed that "nothing in Hendricks purports to limit for ex post facto purposes the precise length of time during which dangerously disordered persons may be confined, or the particular procedural circumstances under which they may be released. In rejecting Hendricks's claim [under Kansas law] that the scheme imposed punishment because confinement was 'potentially indefinite,' the court made clear that the critical factor is whether the duration of confinement is 'linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.' " (Hubbart, supra, 19 Cal.4th at p. 1176, quoting Hendricks, supra, 521 U.S. at p. 363.)
Although automatic recommitment hearings every two years were eliminated in amended section 6604, the amended SVPA retains the yearly periodic review of the person's suitability for discharge. (See, e.g., § 6605, subd. (a) ["A person found to be a sexually violent predator and committed to the custody of the [DMH] shall have a current examination of his or her mental condition made at least once every year"].) Further protections include the right to retain, or if indigent, to have the court appoint, a qualified expert to examine the SVP. (Ibid.) The SVPA also requires DMH to authorize the SVP to file a petition for release if the examination reveals he or she is no longer an SVP. (§ 6605, subd. (b).) If the DMH concludes the SVP no longer meets the commitment criteria and authorizes the person for conditional release, and the court finds probable cause, the People must prove beyond a reasonable doubt that the person remains mentally ill and dangerous. (§ 6605, subds. (b) & (d).)
If the DMH does not authorize a petition, the committed person may file a petition under section 6608, subdivision (a). Unless the court finds the petition is frivolous or includes no evidence of changed circumstances, it must set a hearing and the committed person must prove by a preponderance of the evidence that he is entitled to release. (§ 6608, subds. (a), (d) & (i).) The DMH also can recommend conditional release at any time, in which case a hearing will be set in accordance with section 6608. (§ 6607.) These procedures assure that the "duration of confinement is 'linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.' " (Hubbart, supra, 19 Cal.4th at p. 1176, quoting Hendricks, supra, 521 U.S. at p. 363.)
Moreover, in holding a defendant in an SVP proceeding has a due process right to testify over objection of counsel, the Supreme Court in People v. Allen (2008) 44 Cal.4th 843 concluded that the purpose of the amended SVPA was not to punish individuals found to be sexually violent predators. (See also People v. Boyle (2008) 164 Cal.App.4th 1266, 1280-1285.) We thus reject Blevins's ex post facto challenge to the amended SVPA.
IV
Retroactive Application of the Amended SVPA
Blevins contends that even if the changes to the SVPA are not punitive, the People's amended petition seeking to commit him to an indeterminate term constitutes a retroactive application of the law that was not intended by the Legislature. We reject this contention.
"In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party's liability for, an event, transaction, or conduct that was completed before the law's effective date. Citations. Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute's effective date. Citations. A law is not retroactive 'merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.' Citation." (People v. Grant (1999) 20 Cal.4th 150, 157, italics omitted.)
In determining whether someone is an SVP, the last event necessary is determination of the person's mental state at the time of the commitment. (See Hubbart, supra, 19 Cal.4th at p. 1162.) Although the trier of fact may consider evidence of a person's mental condition based on evaluations made before trial, the determination that a person is an SVP must be based on findings of a current diagnosed mental disorder that prevents a person from controlling sexually violent behavior, and future dangerousness, that is, a person "is likely to commit sexually violent predatory behavior upon release." (Cooley v. Superior Court (2002) 29 Cal.4th 228, 248; see also Bourquez, supra, 156 Cal.App.4th at pp. 1288-1289 [no retroactive application of the law because an extension hearing to recommit a person under the amended SVPA is a "new and independent proceeding" where the People must prove that the person "has a currently diagnosed mental disorder making him or her a danger"]; Carroll, supra, 158 Cal.App.4th at pp. 512-514.) Thus, the "significant point with respect to retroactivity is not the filing of the petition, but trial and adjudication under the SVPA." (Carroll, supra, 158 Cal.App.4th at p. 514.)
Here, the trial court adjudged Blevins an SVP in September 2007, after the SVPA was amended. The fact his probable cause hearing was held before the SVPA was amended in 2006 is of no consequence. We thus reject Blevins's contention the amendments to the SVPA were retroactively applied to his case.
V
Evidentiary Issues
Blevins next argues his due process rights were violated when the court, over his objection, allowed Drs. Starr and Owen to rely on unreliable hearsay statements made in 1981 by Ella G. that were contained in a police report prepared in connection with the investigation of the rape of the 10-year-old girl. Ella G. told police that Blevins "almost beat[] her to death"; that she and Blevins had not had sexual intercourse on the morning he raped the 10-year-old girl; that she asked Blevins when she visited him in the park that morning whether he was going to attack her sexually like he had done the week before; and that she and Blevins did not use Vaseline when having sexual intercourse.
Blevins does not dispute that the SVPA expressly allows the use of multiple-level-hearsay in an SVP commitment proceeding. (§ 6600, subd. (a)(3); People v. Otto (2001) 26 Cal.4th 200, 208 ["By permitting the use of presentence reports at the SVP proceeding to show the details of the crime, the Legislature necessarily endorsed the use of multiple-level-hearsay statements that do not otherwise fall within a hearsay exception"].) He instead argues these hearsay statements are unreliable because they involve uncharged offenses by a person not subject to the rigors of examination at trial.
Section 6600, subdivision (a)(3) provides in part: "The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the DMH." (Italics added.)
However, any error in admitting the objected-to portion of the police report was harmless beyond a reasonable doubt in light of the evidence of the four rapes, three of which the parties stipulated constituted "sexually violent offenses" within the meaning of subdivision (b) of section 6600. The record also shows the experts did not rely solely on Blevins's past offenses in determining that he was an SVP, but considered other circumstances relevant to Blevins's current SVP diagnosis, including that Blevins did not participate in sex offender treatment while in custody; that he reoffended soon after his release from prison; that there was an escalation in violence in each successive rape; and that Blevins possesses a volitional and emotional impairment. Dr. Starr's report also included information from an interview with Blevins in June 2006. Under these circumstances, any reliance by the experts on uncharged criminal conduct of Blevins in connection with Ella G. constitutes harmless error beyond a reasonable doubt.
We further note that Blevins's own testimony corroborated Ella G.'s statements to police that he beat her and was living in the park because she had forced him out of her house. In addition, we conclude Ella G.'s statements are not unreliable merely because they conflicted with Blevins's version of the rape involving the 10-year-old girl, particularly in light of Blevins's testimony he could not remember much about the rape because he had been drinking heavily. Blevins also could have called Ella G. to the witness stand during his rape trial and subjected her then to the rigors of examination, or if she is still available as a witness, he could have called her to testify at the SVP proceedings. In any event, Blevins is unable to show a reasonable probability that he would have obtained a more favorable result absent any alleged error. (See People v. Earp (1999) 20 Cal.4th 826, 878; People v. Watson (1956) 46 Cal.2d 818, 836.)
Finally, we reject Blevins's argument the trial court erred by allowing Drs. Starr and Owen to testify at trial that he was an SVP and likely to reoffend, on the ground such testimony usurps the function of the trier of fact. "In civil commitment cases, where the trier of fact is required by statute to determine whether a person is dangerous or likely to be dangerous, expert prediction may be the only evidence available." (People v. Ward (1999) 71 Cal.App.4th 368, 374 (Ward).) "When the standard of proof for commitment is beyond a reasonable doubt, the evidence is admissible," and the "trier of fact can then decide what weight to give it." (Ward, supra, 71 Cal.App.4th at p. 374; People v. Burnick (1975) 14 Cal.3d 306, 328; People v. Henderson (1980) 107 Cal.App.3d 475, 486.) The court therefore did not abuse its discretion when it admitted the expert testimony of Drs. Starr and Owen regarding the likelihood that Blevins was an SVP and likely to reoffend.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.