Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. MH101971, Roger W. Krauel, Judge.
O'ROURKE, J.
A jury found Juan Padilla to be a sexually violent predator (SVP). He was recommitted to an indeterminate civil commitment term under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, §§ 6600-6604.)
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Padilla contends insufficient evidence supported the finding he is an SVP; specifically, the evidence did not "properly take into account his age and change in circumstances and the use of questionable actuarial tables resulted in an erroneous decision that he poses 'a substantial and well founded risk' of reoffending." He further contends that the use of "underground regulations" to make the initial determination that he is an SVP undermined the proceedings and therefore his commitment was illegal. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Padilla stipulated that he committed the following predicate crimes in 1978: kidnapping, assaulting, raping and forcible sodomy in concert, involving three female victims. (Pen. Code, §§ 207, 245, subd. (a), 262.2 and 286.) While imprisoned for those crimes, he and three inmates sexually assaulted a male inmate, who Padilla sodomized. In 1993, he was convicted of kidnapping for sexual purposes and two counts of forcible rape. (Pen. Code, §§ 207/208; 261, subd. (a)(2).)
Drs. Dana Putnam, and Harry Goldberg, both psychologists, diagnosed Padilla with Paraphilia NOS (not otherwise specified) Dr. Putnam testified that based on Padilla's score on Static-99, an actuarial risk tool, he had a high risk of reoffense.
Dr. Goldberg's report stated that based on Padilla's Static-99 score, Padilla had a 39 percent chance for sexual reoffense within five years after release, a 45 percent chance of reoffense within 10 years after release, and a 52 percent chance of reoffense after 15 years. On the Minnesota Sex Offender Screening Tool (MnSOST) and the Sex Offender Risk Appraisal Guide (SORAG) respectively, Padilla's scores showed he had a moderate and high chance of reoffense.
Both Drs. Putnam and Goldberg noted that Padilla's failure to seek sex offender specific treatment was an aggravating factor that increased his likelihood of committing sexual offense if released. Dr. Putnam testified, "I would say at the present time Mr. Padilla is not amenable to treatment because he does not believe he has a problem that needs treatment or he has not acknowledged it in a public way. He has not participated in treatment, and there's no indication that he would voluntarily participate in treatment if it was not required of him."
On direct examination, the prosecutor asked Dr. Putnam regarding factors that would mitigate Padilla's risk of reoffending. She replied, "I looked at his age, which there is research to suggest there is some reduction in... risk for reoffense with age over 50. [¶] And so I considered that and considered him to be at somewhat lower risk relating to age. I also looked at issues of health. Age is actually kind of a... proxy measure.... It's really why people who are older might be at lower risk, and health problems is [sic] one of the things that might relate to that. And Mr. Padilla doesn't really have significant health problems."
On cross-examination, defense counsel asked Dr. Putnam about a researcher who had shown that "the ranking of whether somebody is low, medium, or high risk doesn't change, but their rates of offending do change as they age, and that all groups go down. But the high-risk guys still reoffend at a higher rate than the lower-risk guys." Dr. Putnam agreed the researcher had made that finding.
Dr. Brian Abbott, an expert, testified that based on Padilla's Static-99 score, Padilla had a high risk of arrest or conviction for another sexual offense.
DISCUSSION
I.
Contrary to Padilla's contention, sufficient evidence showed he had a substantial risk of committing a sexual offense if released.
When a defendant challenges the sufficiency of the evidence to support a finding that he is an SVP, "this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be ' "of ponderable legal significance... reasonable in nature, credible and of solid value." ' " (People v. Mercer (1999) 70 Cal.App.4th 463.) "In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment." (People v. Poe (1999) 74 Cal.App.4th 826, 830.)
Evidence Code section 801 limits expert opinion testimony to an opinion that is "[b]ased on matter... perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates... " (Id., subd. (b).) A trial court has discretion " 'to weigh the probative value of inadmissible evidence relied upon by an expert witness... against the risk that the jury might improperly consider it as independent proof of the facts recited therein.' " (People v. Gardeley (1996) 14 Cal.4th 605, 618-619 (Gardeley).)
"Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] Of course, any material that forms the basis of an expert's opinion testimony must be reliable. [Citations.]... [¶] So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter... upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion." (Gardeley, supra, at pp. 618-619.)
The California Supreme Court addressed the standard for evaluating the likelihood of reoffense and stated that there is no need "to pinpoint the time at which future injury is likely to occur if the person is not confined. Nor is there any authority for [the] suggestion that a person is not dangerous and cannot be involuntarily confined on mental health grounds unless the state proves he would otherwise inflict harm immediately upon release." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1163.) It reiterated the "likely to reoffend" prong of California's SVPA requires only " 'a substantial danger, that is, a serious and well-founded risk' " — but not necessarily a greater than even chance — that the person's diagnosed mental disorder will lead to new criminal sexual violence unless the person is confined and treated. (People v. Roberge (2003) 29 Cal.4th 979, 988; People v. Ghilotti (2002) 27 Cal.4th 888, 922.)
Drs. Putnam and Goldberg both based their opinions on police and parole officers' reports, prison records, psychiatric and psychologists' reports and evaluations, and their own interviews with Padilla and professional evaluations. These are the types of materials on which mental health professionals and experts in SVP cases reasonably rely in forming their opinions. Dr. Putnam testified: "[W]e also know that people who are older, even with higher scores, do have somewhat lower recidivism rates. And I did look at that in relation to instruments that take that into account. I find that [Padilla's] at about a moderate-high risk. Basically it's a down a notch to the next level of risk, to moderate high risk, when you account for his age."
Based on the facts outlined above we conclude that the testimonies of Drs. Putnam, Goldberg, Abbott specifically addressed Padilla's likelihood of reoffense based on his age, and the jury had sufficient evidence to support its determination that Padilla is an SVP.
II.
Padilla contends the evaluations supporting the petition are invalid because the statutorily-required protocol was promulgated in violation of the APA, and therefore the trial court lacked jurisdiction to proceed with the SVP petition. He challenges the legality of his commitment because it derived from the Department's reliance on a mental health evaluation protocol, parts of which the Office of Administrative Law (OAL) has since determined constitute an "underground" regulation. Padilla contends that the illegality of the Department's protocol means that the petition to find him an SVP should be dismissed.
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."].)
As we explain below, we reject the contentions. Even if we presume that the OAL determination is correct and the Department's protocol does constitute an underground regulation, the Department's use of the protocol does not undermine the legitimacy of Padilla's commitment. We agree with other appellate courts that have likewise rejected this claim. (See People v. Medina (2009) 171 Cal.App.4th 805 (Medina); In re Glenn (2009) 178 Cal.App.4th 778 (Glenn); People v. Rotroff (2009) 178 Cal.App.4th 619 (Rotroff).)
1. Additional background
The process for committing an individual under the SVPA begins when prison officials screen an inmate's records to determine whether it is likely that he or she is an SVP. (§ 6601, subds. (a), (b).) If prison officials make such a determination, the inmate is referred to the Department for a full evaluation as to whether he or she meets the SVP criteria. (Id., subd. (b).) Two mental health professionals designated by the Department are to "evaluate the person in accordance with a standardized assessment protocol, developed and updated by the [Department], to determine whether the person is [an SVP]." (Id., subds. (c), (d).) "The standardized assessment protocol [to be used by the evaluators] shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (Id., subd. (c).)
Consistent with the obligations set forth in section 6601, subdivision (c), the Department published the "Clinical Evaluator Handbook Standardized Assessment Protocol (2007)" (Handbook), to assist evaluators who conduct SVP evaluations on prisoners and evaluations of SVPs who are subject to recommitment. In August 2008, the OAL determined that 10 sections of the Handbook constitute "regulations" that the Department should have adopted in conformance with the procedures set forth in the APA. According to the OAL, the portions of the Handbook that were not promulgated pursuant to the APA constitute illegal "underground regulations." (2008 OAL Determination No.19.)
2. Analysis
Padilla offers no authority to support his assertion that the use of an "underground regulation" during the pre-petition administrative proceedings renders the subsequent commitment proceedings void, and thus subject to per se reversal for lack of jurisdiction. In suggesting that the Department's use of the challenged protocol deprives the trial court of fundamental jurisdiction to order commitment following a jury trial, Padilla fails to acknowledge the limited role that the Handbook plays in the preliminary phase of the SVP proceedings.
The Department 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).) " '[T]he 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.' " (People v. Scott (2002) 100 Cal.App.4th 1060, 1063.)
"[O]nce the petition is filed a new round of proceedings is triggered." (People v. Superior Court (Preciado)(2001) 87 Cal.App.4th 1122, 1130.) Specifically, after a 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. The probable cause hearing under the SVPA is analogous to a preliminary hearing in a criminal case as both are designed to protect the accused from having to face trial on groundless or otherwise unsupported charges. (Medina, supra, 171 Cal.App.4th at pp. 818-819; Glenn, supra, 178 Cal.App.4th at pp. 813, fn. 10.)
In analogous 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 People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529-530 (Pompa-Ortiz).) "[I]rregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if [the] defendant can show that he [or she] was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. The right to relief without any showing of prejudice will be limited to pretrial challenges of irregularities. At that time, by application for extraordinary writ, the matter can be expeditiously returned to the magistrate for proceedings free of the charged defects." (Id. at p. 529.) "The presence of a jurisdictional defect which would entitle a defendant to a writ of prohibition prior to trial does not necessarily deprive a trial court of the legal power to try the case if prohibition is not sought." (Ibid.)
The Pompa-Ortiz rule applies to SVP proceedings. (People v. Hayes (2006) 137 Cal.App.4th 34, 51.) Furthermore, the rule applies equally 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.) This court has held that the failure to obtain the evaluations of two mental health professionals, as required under section 6601, subdivision (d), did not deprive the court of fundamental jurisdiction to act on an SVP petition. (Preciado, supra, 87 Cal.App.4th at pp. 1128-1130.) The defect "was not one going to the substantive validity of the complaint, but rather was merely in the nature of a plea in abatement, by which a defendant may argue that for collateral reasons a complaint should not proceed." (Id. at p. 1128.)
Likewise, a requirement that the Department utilize a protocol that has been adopted pursuant to the APA is collateral to the merits of Padilla's SVP petition. We reject Padilla's assertion that a defect in the Department's evaluative process deprived the trial court of fundamental jurisdiction to act on his petition. Rather, he must demonstrate that he was prejudiced by the Department's use of the Handbook. He has not attempted to make such a showing. He fails to explain how use of the evaluation protocol resulted in actual prejudice to him, either by depriving him of a fundamental right or a fair trial; therefore, we reject his challenge to the Department's use of an "underground regulation" in evaluating him under the SVPA.
Padilla speculates that "he has identified two issues that are likely to be the focus of any public hearings that will be held on the adoption of appropriate protocols for evaluating defendants as potential SVPs — their age and the use of actuarial tools such as the STATIC 99. As the evidence in this case shows, these are significant issues and it is uncertain how they will be resolved." We do not believe this type of conjecture is sufficient to demonstrate prejudice from the underground regulations. (Medina, supra, 171 Cal.App.4th 805 [rejecting similar contention]; People v. Butler (1998) 68 Cal.App.4th 421, 435 [insufficient showing of prejudice from trial court's failure to provide proper probable cause hearing in SVP proceeding].) This examination of the prejudice of any procedural error is also supported by the California Constitution, which commands that:
"No judgment shall be set aside, or new trial granted, in any cause,... for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; see also Pompa-Ortiz, supra, 27 Cal.3d at p. 522 [ referencing art. VI, § 13 at outset of its analysis].) Nothing in the record suggests that the prosecution experts' opinions were influenced by the DMH handbook. Consequently, there is no reason to assume, as Padilla does, that a change in the protocol would alter the experts' conclusions.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., IRION, J.