Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Ct. No. MH99951, Roger W. Krauel, Judge.
McDONALD, J.
Herman Smith appeals a judgment involuntarily committing him for an indeterminate term to the custody of the State of California Department of Mental Health (DMH) after a jury found him to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (Act) (Welf. & Inst. Code, § 6600 et seq.). On appeal, Smith contends: (1) the trial court erred by denying his motion to dismiss the petition after a mistrial was declared in the first trial; (2) the trial court erred by not instructing that an antisocial personality disorder is not a diagnosed mental disorder within the meaning of the Act; (3) the evidence is insufficient to support the jury's finding that he is an SVP; (4) his indeterminate commitment must be reversed and the matter remanded for further proceedings regarding a possible violation of his constitutional right to equal protection under the law in accordance with People v. McKee (2010) 47 Cal.4th 1172 (McKee); (5) his indeterminate commitment violates his constitutional rights to due process of law, against ex post facto laws, against cruel and unusual punishment, and against double jeopardy; and (6) Proposition 83, by which the voters amended the Act, violated the single-subject rule for ballot initiatives.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2006, the People filed a civil petition (Petition) seeking Smith's involuntary commitment as an SVP for two years under the Act. In September 2006, following the Legislature's amendment of section 6604, the People filed an amended petition (Petition) seeking his involuntary commitment as an SVP for an indeterminate term. The Petition alleged Smith was convicted in 1973 of forcible rape against an adult female and in 1993 of forcible rape, sodomy, and oral copulation against another adult female. It further alleged Smith had a diagnosed mental disorder that made him a danger to the health and safety of others because he was likely in the future to engage in sexually violent predatory criminal behavior.
During the first trial on the Petition in March 2008, the jury deadlocked and the court declared a mistrial. The court subsequently denied Smith's motion to dismiss the Petition.
In September 2009, a second jury trial was conducted. The parties stipulated that Smith had been convicted of a sexually violent offense as defined by the Act against one or more victims and received determinate sentences for the 1973 and 1993 offenses described above. The People presented the testimonies of two clinical psychologists, Drs. Shoba Sreenivasan and Richard Romanoff. Sreenivasan testified that she interviewed and evaluated Smith in 2006. In 2007 and 2009, she updated her evaluation of Smith after reviewing police reports, prison records, and medical records. She testified that Smith's 1973 and 1993 offenses involved force, violence and predatory behavior, and were evidence of sexual deviancy. Sreenivasan concluded Smith currently suffered from a sexual deviancy disorder, paraphilia not otherwise specified (n.o.s.) with sexual sadistic traits, and antisocial personality disorder (APD), and was predisposed to commit criminal sexual acts. Paraphilia refers to the general category of sexual deviancy disorders. APD reflects a long-term disregard for others' rights (e.g., rights to property and physical safety) and could refer to violating social norms and laws. She believed Smith was predisposed to commit criminal sexual acts because he has a sense of entitlement, and committing acts of taking and aggression against others sexually arouses him. Smith's expression of his APD has a strong, repetitive sexual component. Smith's offenses show he has a repeated linkage between sex and aggression. His APD and paraphilia disorders are chronic. Sreenivasan had read the reports of Smith's defense experts, but there was nothing in those reports that changed her opinion regarding Smith's disorders. Smith had not received any treatment for his paraphilia. Applying the Static-99 test, a standardized actuarial tool for risk-assessment, she concluded there was a substantial and well-founded risk that Smith would reoffend. Smith received a score of 7, which is considered a high risk of reoffense. In reaching her conclusion, she considered Smith's erectile dysfunction, prostate cancer, and age (i.e., 63 years old). Those factors were given less weight because Smith committed a rape at age 47, used his hands and engaged in oral copulation during his offenses, and had a sexual relationship with a man in 2005 while in prison.
Romanoff testified that he interviewed and evaluated Smith in 2006. Romanoff sought to interview him in 2007 and 2009, but Smith refused. Romanoff reviewed Smith's criminal history records and psychological evaluations through 2009. He diagnosed Smith's condition as paraphilia n.o.s., APD and alcohol abuse. The basic criteria for paraphilia are the presence of urges, impulses, fantasies, or behaviors of an inappropriate sexual nature that cause the person to behave or fantasize in some way that is inappropriate or dangerous or harmful to others and causes impairment in the person's social or occupational functioning. APD generally involves a tendency for a person to pursue his or her own needs or wants regardless of the rights or feelings of others who may be harmed by that pursuit. APD typically involves behaviors like impulsivity, increased aggression, failure to plan ahead, failure to take responsibility, and an incapacity for empathy. Smith's records showed a pattern of criminality involving increasingly aggravating and sexually violent behavior, beginning with a sexual battery against a 15-year-old girl in 1968 and continuing with multiple forcible rapes. Romanoff evaluated Smith as a 6 on the Static-99 risk-assessment test and concluded there is a serious and well-founded risk that Smith would reoffend. He believed Smith is predisposed to reoffend and commit sexually predatory acts if released. Smith's disorders predisposed him to committing sexual offenses and, with his poor motivation and ability to control his urges and impulses, there is an ongoing risk he would commit future criminal sexual offenses. His APD interacted with his paraphilia n.o.s., making him more likely to pursue his sexual deviancy and engage in aggressive sexual acts because he does not think about how those acts may affect his victims. Smith's erectile dysfunction, prostate cancer, and age did not change his risk of reoffense. Romanoff testified there was nothing in the reports of Smith's expert witnesses that changed his opinion Smith met the criteria for an SVP under the Act.
In his defense, Smith presented the testimony of three psychologists, Drs. Hy Malinek, Mary Adams, and Brian Abbott, each of whom interviewed and evaluated him. Malinek concluded Smith was not an SVP under the Act because he did not have a diagnosed mental disorder under the Act and was not likely to reoffend. He diagnosed Smith's condition as APD and abuse, but not paraphilia. Malinek did not believe APD alone qualified as a diagnosed mental disorder under the Act. He did not believe APD alone predisposed a person to commit sexual offenses. He thought only about two or three doctors out of 72 SVP panelists believed APD alone could qualify as a diagnosed mental disorder under the Act. He did not believe Smith was likely to commit sexual offenses in the future because his past offenses were the result of APD and not an independent sexual deviation (i.e., paraphilia). Also, Smith's age and prostate cancer weakened his sex drive and, as a result, reduced his risk of reoffense.
Adams and Abbott testified substantially as Malinek had. They concluded Smith did not have a diagnosed mental disorder under the Act and was not likely to reoffend. Adams diagnosed Smith's condition as APD, but did not believe he had paraphilia. Abbott testified that although Smith had suffered from APD in the past, he did not currently suffer from it. Furthermore, Abbott concluded Smith did not suffer from paraphilia. He believed Smith's past rape offenses were related to his APD and not paraphilia.
Dr. Amy Phenix, a clinical psychologist, testified for the defense that an APD diagnosis is not sufficient for civil commitment as an SVP under the Act. To be an SVP, she believed a person also had to be diagnosed with paraphilia or sexual abnormality, which would predispose the person to committing criminal sexual acts. Phenix did not evaluate Smith in this case. Smith also presented the testimonies of three staff members at the Coalinga state hospital who generally testified he was a well-behaved patient there.
The jury found true the allegation that Smith is an SVP under the Act. The trial court issued an order on the verdict, committing Smith to DMH for an indeterminate term pursuant to the Act. Smith timely filed a notice of appeal.
DISCUSSION
I
Motion to Dismiss
Smith contends the trial court erred by denying his motion to dismiss the petition after a mistrial was declared in the first trial.
A
During the first trial on the Petition in March 2008, the jury deadlocked with nine jurors voting against an SVP finding and three voting in favor of it. As a result, the court declared a mistrial. Smith filed a motion to dismiss the Petition, arguing the court had the implied power under Code of Civil Procedure section 187 to dismiss the Petition in the interest of justice. He argued: "Given the numerical split of the jury, given the exhaustive nature of the trial, and given [the People's] inability to be more detailed or more thorough at any future trial, the [P]etition should be dismissed in the interest of justice."
At the hearing on Smith's motion to dismiss, the People orally opposed the motion, arguing the court did not have any express authority under the Act to dismiss an SVP petition. The People requested that the court allow a second trial on the Petition, suggesting there is additional evidence they could present because Smith had been a patient at the state hospital "for some period of time" and updated SVP expert evaluations could be obtained. The court addressed the issue of what authority it had to dismiss the Petition, stating:
"I don't believe that criminal dismissal authority is applicable to SVP [petitions]. I'm strictly construing this case as not being a criminal case. It's civil with criminal aspects to it. But there is a motion to dismiss based upon the insufficiency of the evidence, so I believe that there's authority there."
Smith argued the court had the authority to dismiss the Petition in the interest of justice in a manner similar to its authority under Penal Code section 1385, which he conceded was not applicable in this case "because this is a special proceeding that is civil in nature." The court stated that in a civil case it would not dismiss if the evidence is sufficient for the jury to reach a verdict against the defendant. In this case, the court believed the legislative scheme envisioned that it would evaluate whether there is evidence on which a jury could find Smith is an SVP. In the circumstances of this case, the court concluded it could not find the evidence is insufficient to support a finding that Smith is an SVP. Smith argued he believed the court had the authority to dismiss the Petition provided it did not abuse its discretion. Regarding the applicable standard, the People argued that because case law had not addressed the issue the court could look to the standards in Penal Code section 1385 and other dismissal statutes. They argued a different jury could reasonably consider the evidence and reach a different verdict. Smith argued he theoretically could be retried in perpetuity if the juries continued to be hung. The court agreed that "that is certainly a valid concern...." The court stated:
"I don't find that the legislative scheme directs me to use the interest of justice standard in determining this motion. [¶] What I'm left with is the civil standard, which is sufficient evidence to support a verdict. I'm finding that there is... sufficient evidence to support a verdict in this case that could have gone against Mr. Smith. [¶]... [H]ad [the jury] reached a verdict against him, I would not have set aside that verdict for insufficiency of the evidence."
The trial court denied Smith's motion to dismiss the Petition, but nevertheless suggested a future motion to dismiss might be granted if there were multiple hung juries, stating:
"[A]t some point, although... I'm not inclined to give hypothetical answers to hypothetical questions, there would be a point where if there are several hung juries, there's not going to be a demonstration of sufficient evidence to get a conviction. [¶] One trial, I don't believe, produces that. This trial didn't. So I'm not addressing whether it could be retried more times, but I am denying the motion."
Accordingly, the court set the matter for retrial.
B
The Act provides for the involuntary civil commitment to DMH for an indeterminate term of persons determined by a court or jury, by proof beyond a reasonable doubt, to be SVP's. (§ 6604.) Section 6604 provides:
"The court or jury shall determine whether, beyond a reasonable doubt, the person is [an SVP]. If the court or jury is not satisfied beyond a reasonable doubt that the person is [an SVP], the court shall direct that the person be released at the conclusion of the term for which he or she was initially sentenced, or that the person be unconditionally released at the end of parole, whichever is applicable. If the court or jury determines that the person is [an SVP], the person shall be committed for an indeterminate term to the custody of [DMH] for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health...."
"A unanimous verdict shall be required in any jury trial" to determine whether a person is an SVP. (§ 6603, subd. (f).) A jury trial is statutorily required if either the person or the People demand one. (§ 6603, subd. (e).) "The court shall notify [DMH] of the outcome of the trial...." (§ 6603, subd. (g).) An SVP commitment proceeding is a special proceeding of a civil nature and is not considered a "civil action." (People v. Yartz (2005) 37 Cal.4th 529, 535-536.)
In People v. Turner (2000) 78 Cal.App.4th 1131, we concluded the trial court properly denied a motion to dismiss an SVP petition after a mistrial was declared in the first trial because the jury was deadlocked. (Id. at p. 1133.) We rejected the appellant's argument that section 6604 was ambiguous and should be construed as barring successive trials where the trier of fact could not make a finding beyond a reasonable doubt that a person is an SVP. (Turner, at p. 1140.) Furthermore, we stated:
"When the unanimity and finality requirements of section 6603 are read together with the burden set forth in section 6604, they provide, as the trial court correctly noted, that only if a jury makes a final unanimous finding, verdict, outcome or decision that the People failed to meet the required burden beyond a reasonable doubt, is the alleged SVP to be released. We therefore believe the only reasonable construction of section 6604 is that it requires the jury or court to make a 'finding, ' or render a verdict or decision, it is satisfied beyond a reasonable doubt the alleged person is either an SVP or there are doubts whether he is an SVP. To hold such section to bar retrial if no finding or verdict can be made either way... would thwart the purpose of the Act to protect the public from 'a small but extremely dangerous group of [SVP's] that have diagnosable mental disorders... identified while they are incarcerated.' [Citations.] By enacting the Act, the Legislature intended to confine and treat such identified individuals 'until such time that it can be determined that they no longer present a threat to society.' " (Turner, at p. 1142, italics added.)
We further stated: "Although the Act does not specifically provide for retrial if there is a hung or deadlocked jury, as the trial court properly found, such is implied when all sentences of section 6604 are considered with the Act's 'finality' requirement that the jury finding be unanimously determined beyond a reasonable doubt. As the People note, if there is not a final determination, true finding or verdict in a civil case under the appropriate burden of proof, the action may be tried again as the court may direct. (Code Civ. Proc., § 616.) We presume the Legislature was well aware of both this long-standing civil statutory provision permitting retrial where a jury deadlock results in a mistrial and the application of the unanimity requirement of the beyond a reasonable doubt standard for civil jury trial commitments when it enacted the Act." (People v. Turner, supra, 78 Cal.App.4th at pp. 1142-1143, fn. omitted.) Accordingly, we held: "Because we hold that section 6604 does not bar retrial if there is no unanimous jury 'finding' beyond a reasonable doubt, we conclude the trial court properly granted a mistrial and denied [appellant's] motion to dismiss." (Id. at p. 1143.)
C
Smith correctly asserts the Act does not expressly provide a trial court with authority to dismiss an SVP petition after a mistrial is declared in a first trial because of a deadlocked jury. Nevertheless, he argues the trial court in this case had implied authority to dismiss the Petition. To the extent he argues Penal Code section 1385 provided either express or implied authority for the trial court to dismiss the Petition, we agree with the trial court that Penal Code section 1385 does not apply because an SVP proceeding is not a criminal proceeding, but rather a special proceeding of a civil nature. (People v. Yartz, supra, 37 Cal.4th at p. 535; cf. Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1173 [Pen. Code, § 954 does not apply to SVP special proceedings].)
Penal Code section 1385, subdivision (a), provides: "The judge... may, either [on] his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed."
Smith primarily argues on appeal, as he did below, that Code of Civil Procedure section 187 provided the trial court with authority to dismiss the Petition. Case law appears to support the position that Code of Civil Procedure section 187 may be applied in SVP proceedings. (Cf. People v. Reynolds (2010) 181 Cal.App.4th 1402, 1408 [trial court had inherent authority under Code Civ. Proc., § 187 to dismiss an SVP defendant's petition for unconditional release]; People v. Evans (2005) 132 Cal.App.4th 950, 956-957 [trial court has authority under Code Civ. Proc., § 187 to dismiss an SVP petition for unreasonable prosecutorial delay]; Litmon v. Superior Court, supra, 123 Cal.App.4th at p. 1174.) Code of Civil Procedure section 187 provides:
Although Code of Civil Procedure section 616 applies only to civil actions and not special proceedings of a civil nature, that statute tends to support the trial court's discretionary authority to order a retrial, and, by inference, to grant or deny a motion to dismiss, after a mistrial, providing: "In all cases where the jury are discharged without having rendered a verdict... after the cause is submitted to them, except as provided in [Code of Civil Procedure] [s]ection 630, the action may be again tried immediately, or at a future time, as the court may direct." (Virtanen v. O'Connell (2006) 140 Cal.App.4th 688, 712 ["[Code Civ. Proc., § 616] permits the court to grant a retrial, when it has not ordered the entry of judgment under [Code Civ. Proc., § 630, subd. (f)]... [¶]... A plain reading of the statute shows that the trial court is granted the discretionary authority to act on motions for retrial under that provision. It is not required to grant a motion for retrial, just because it also did not order entry of judgment pursuant to [Code Civ. Proc., § 630, subd. (f)]."].) However, because the instant SVP case is a special proceeding of a civil nature and not a civil action, Virtanen's holding does not necessarily apply here. On the contrary, certain language in our opinion in People v.Turner, supra, 78 Cal.App.4th 1131, as quoted above (although possibly dicta), tends to support the conclusion that a trial court must grant a motion for retrial (and thus deny a motion to dismiss) if a jury deadlocks and cannot reach a unanimous verdict that the defendant is an SVP under the Act. (Id. at pp. 1142-1143.) Nevertheless, considering our assumption in this opinion that the trial court had discretionary authority regarding a motion to dismiss, we need not address whether that interpretation of Turner is correct.
"When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code." (Italics added.)
Assuming arguendo the trial court in this case had authority under Code of Civil Procedure section 187 to dismiss the Petition, that statute allowed the court to adopt "any suitable process or mode of proceeding" in determining whether to dismiss the Petition; the Act does not specifically address motions to dismiss. (Code Civ. Proc., § 187.) By applying the substantial evidence standard as applied in civil actions regarding motions for directed verdict after a mistrial (Code Civ. Proc., § 630, subd. (f)), the trial court did not abuse its discretion under Code of Civil Procedure section 187 in adopting a suitable process for deciding Smith's motion to dismiss the Petition because the Act did not specifically provide otherwise. Smith apparently concedes on appeal, and does not substantively argue otherwise, that there was substantial evidence admitted at the first trial that would have supported a finding by the jury in the first trial that he is an SVP under the Act.
Code of Civil Procedure section 630 subdivision (f), provides: "When the jury for any reason has been discharged without having rendered a verdict, the court on its own motion or upon motion of a party... may order judgment to be entered in favor of a party whenever a motion for directed verdict for that party should have been granted had a previous motion been made [i.e., insufficient evidence to support verdict in opposing party's favor]." (See, e.g., People v. Ceja (2003) 106 Cal.App.4th 1071, 1081, fn. 4.)
Furthermore, the trial court may have had inherent power to dismiss the Petition. (Litmon, supra, 123 Cal.App.4th at p. 1174; Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d 815, 825.) "Courts have inherent power, as well as power under section 187 of the Code of Civil Procedure, to adopt any suitable method of practice... not specified by statute...." (Tide Water Assoc. Oil Co., at p. 825.) "[C]ourts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them." (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) That inherent power applies in both ordinary actions and special proceedings if the procedures are not otherwise specified by statute or rules. (Ibid.; Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 812-813.) Assuming arguendo the trial court in this case had the inherent power to dismiss the Petition, we nevertheless would conclude it did not abuse its discretion by applying the substantial evidence standard in denying Smith's motion to dismiss the Petition.
Absent express statutory provisions in the Act or controlling case law on the subject, the trial court could rationally apply the substantial evidence standard in determining Smith's motion to dismiss the Petition. Smith does not carry his burden on appeal to show the trial court abused its discretion in applying that standard and does not substantively argue the evidence was insufficient during the first trial to have supported a finding by the jury in the first trial that he is an SVP under the Act. Furthermore, we are unpersuaded by his citation to, or the reasoning in, an inapposite law review article suggesting that courts consider certain factors in deciding whether to dismiss criminal cases. On the contrary, we conclude the trial court in this case could rationally apply the substantial evidence standard in determining Smith's motion to dismiss the Petition. Furthermore, the fact that the first trial resulted in a deadlocked jury, with nine jurors voting against—and three voting in favor of—an SVP finding, does not show either that the evidence is insufficient to support a finding that Smith is an SVP or that the court abused its discretion in denying his motion to dismiss the Petition. Finally, we note the trial court expressly discussed the hypothetical possibility that after multiple mistrials it may be established that there is insufficient evidence to prove Smith is an SVP and the Petition may then be dismissed. In so doing, we believe the court implicitly acknowledged it has the inherent power to dismiss the Petition in the interest of justice in those circumstances. However, we cannot conclude the court abused its discretion by deciding not to exercise that power in this case after merely one mistrial. We conclude the trial court did not err by denying Smith's motion to dismiss the Petition.
Code of Civil Procedure section 618, cited by Smith, does not apply to, and is not otherwise analogous to, SVP special proceedings. Rather, that statute applies to civil actions, and not special proceedings, and provides that a three-fourths vote of the jurors results in a complete verdict. (Code Civ. Proc., § 618.)
Smith warns that the trial court's approach could improperly result in de facto indefinite, involuntary commitment were he subjected to multiple trials resulting in deadlocked juries and mistrials if the People in the future are unable to present sufficient evidence to persuade a jury to unanimously find he is an SVP. However, because it is premature to address that situation after only one mistrial, we decline to address the merits of that concern.
II
Jury Instructions
Smith contends the trial court erred by not instructing the jury that an antisocial personality disorder (APD) is not a diagnosed mental disorder within the meaning of the Act.
A
"In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) There is no instructional error if the instructions, as a whole, "are unobjectionable, even though isolated passages from some of the instructions may be subject to criticism." (People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1074-1075.)
"A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024.) "The trial court is not required to give [a pinpoint instruction that explains or highlights a defense theory] on its own initiative, and if the instruction as given is adequate, the trial court is under no obligation to amplify or explain in the absence of a request that it do so." (People v. Mayfield (1997) 14 Cal.4th 668, 778.) A defendant's failure to request a clarifying or amplifying instruction at trial waives a claim on appeal that the instruction given was ambiguous or incomplete. (Id. at pp. 778-779; People v. Cole (2004) 33 Cal.4th 1158, 1211; People v. Hart (1999) 20 Cal.4th 546, 622; People v. Sanchez (2001) 94 Cal.App.4th 622, 635.)
B
The Act defines a "[s]exually violent predator" (SVP) as "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1), italics added.) The Act provides: " 'Diagnosed mental disorder' includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).)
C
In discussing jury instructions with counsel at the beginning of trial, the trial court stated that the instruction on the definition of an SVP should describe a diagnosed mental disorder in general terms so that any mental disorder would qualify provided it had the consequences set forth in the Act. Smith's counsel agreed with the court, stating: "When I went back and looked at the cases, I agree with the Court that any diagnosed mental disorder could be the basis for an SVP commitment. It could be caffeine withdrawal. [¶]... There has to be the diagnosis, plus the difficulty controlling behavior."
Without objection by Smith, the trial court instructed the jury with a modified version of CALCRIM No. 3454 on the elements required for a finding that Smith is an SVP, as follows:
"The [P]etition alleges that [Smith] is a sexually violent predator. To prove that this allegation is true, the [People] must prove[, ] beyond a reasonable doubt, that, one, [Smith] has been convicted of committing sexually violent offenses against one or more victims; [¶] [t]wo, [Smith] has a diagnosed mental disorder; [¶] and, three, as a result of that diagnosed mental disorder, [Smith] is a danger to the health and safety of others because it is likely that [Smith] will engage in sexually violent predatory criminal behavior. [¶]... [¶]
"Concerning the second element, the term 'diagnosed mental disorder' includes conditions either existing at birth or acquired after birth that affect a person's ability to control emotions and behavior and predispose that person to commit criminal sexual acts to an extent that makes that person a menace to the health and safety of others. A person has a diagnosed mental disorder if the mental disorder exists at the time the verdict is rendered by the jury.
"A diagnosed mental disorder, as defined above, may arise from a single mental disorder or two or more mental disorders. You may not conclude that [Smith] is a sexually violent predator unless you unanimously find that [Smith] has a diagnosed mental disorder. However, if there is evidence of more than one mental disorder, the jury need not unanimously agree on a specific disorder...."
The jury returned a unanimous verdict finding Smith is a sexually violent predator (SVP) under the Act.
D
Smith asserts the trial court erred in instructing on the definition of an SVP because it did not instruct the jury that APD alone cannot constitute a "diagnosed mental disorder" under the Act. However, we conclude the instructions given by the trial court correctly stated the law regarding the requirements for an SVP finding and the definition of a diagnosed mental disorder under the Act. The trial court's instructions substantially restated the definitions of an SVP and a diagnosed mental disorder set forth in section 6600, subdivisions (a)(1) and (c), quoted above. If Smith wanted an instruction to support his defense theory that he is not an SVP because he had only APD (and not paraphilia) and APD alone could not constitute a diagnosed mental disorder under the Act, it was his burden to request such a pinpoint, clarifying, or amplifying instruction. (People v. Lang, supra, 49 Cal.3d at p. 1024; People v. Mayfield, supra, 14 Cal.4th at p. 778.) Rather than requesting an instruction, Smith's counsel did not object to, and even agreed with, the trial court's version. The trial court did not have a duty to provide a pinpoint, clarifying, or amplifying instruction sua sponte or on its own initiative that APD alone does not constitute a diagnosed mental disorder. (Mayfield, at p. 778.) We conclude Smith has forfeited or waived the contention on appeal that the trial court's instructions were ambiguous or incomplete and that it erred by not giving a pinpoint, clarifying, or amplifying instruction that APD alone does not constitute a diagnosed mental disorder under the Act. (Lang, at p. 1024; Mayfield, at p. 778; People v. Cole, supra, 33 Cal.4th at p. 1211; People v. Hart, supra, 20 Cal.4th at p. 622; People v. Sanchez, supra, 94 Cal.App.4th at p. 635.)
To the extent Smith argues the trial court's instructions misstated the law on the definition of an SVP and a diagnosed mental disorder, he does not cite any case law holding, or otherwise persuade us, that the SVP instructions given by the trial court erroneously stated the law. On the contrary, the court's instructions correctly stated the law regarding the requirements for an SVP finding because they substantially restated the definitions of an SVP and a diagnosed mental disorder set forth in section 6600, subdivisions (a)(1) and (c), quoted above.
Assuming arguendo Smith did not forfeit or waive the trial court's purported instructional error, we nevertheless would conclude he has not carried his burden on appeal to show the trial court erred by not instructing sua sponte that APD alone cannot constitute a diagnosed mental disorder under the Act. As Smith concedes, case law supports the conclusion that APD can constitute a diagnosed mental disorder and satisfy the second element of the SVP definition. (Cf. People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 213 [trial court erred by ruling APD could not constitute a mental disease, defect, or disorder under Pen. Code, § 1026.5, subd. (b)(1)]; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1161.) Although Smith argues the reasoning in Kansas v. Crane (2002) 534 U.S. 407 (Crane) effectively overruled Hubbart and Blakely, Crane does not support the conclusion that APD cannot constitute a diagnosed mental disorder under the Act. Rather, Crane supports the requirements of the Act for an SVP finding, and thus the instructions given in this case, by affirming that a state has the right to civilly commit persons with serious mental disorders who have a serious lack of ability to control their behavior and pose a high risk of committing sexually violent offenses if released. (Crane, at pp. 412-413.) Neither the Act nor the instructions in this case provide that a person may be civilly committed as an SVP solely on a finding that the person has APD (or other diagnosed mental disorder). In addition to that finding on the second element of the SVP definition, section 6600 (as paraphrased in the court's instructions in this case) requires a finding on the third element of dangerousness, i.e., the diagnosed mental disorder "makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) Smith does not show the trial court erred in instructing the jury.
III
Sufficiency of the Evidence
Smith contends the evidence is insufficient to support the jury's finding that he is an SVP. He argues there is insufficient evidence that: (1) he currently has a diagnosed mental disorder that makes him dangerous and likely to engage in sexually violent criminal behavior, and (2) APD alone could constitute a diagnosed mental disorder for an SVP finding.
A
In reviewing the sufficiency of the evidence to support a person's civil commitment as an SVP pursuant to the Act, we apply the substantial evidence standard of review. (People v. Mercer (1999) 70 Cal.App.4th 463, 465-466.) "Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ' "isolated bits of evidence." ' " (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, italics added in Cuevas.) We "must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.) "We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor...." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) Furthermore, "[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones, at p. 314.) In particular, "[t]he credibility of the experts and their conclusions [are] matters [to be] resolved... by the jury" and "[w]e are not free to reweigh or reinterpret [that] evidence." (Mercer, at pp. 466-467.) "The testimony of one witness [e.g., an expert witness], if believed, may be sufficient to prove any fact. (Evid. Code, § 411.)" (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508.)
B
Smith asserts the evidence is insufficient that he currently has a diagnosed mental disorder that makes him dangerous and likely to engage in sexually violent criminal behavior. He primarily argues the People's expert witnesses relied on stale information and therefore could not express a valid opinion regarding his current condition. He notes Sreenivasan last interviewed him in 2006. Although she updated her evaluations in 2007 and 2009 based on a review of certain records, he argues those records provided only historical, and not current, diagnostic information. Likewise, Romanoff last interviewed him in 2006. Smith declined to meet with Romanoff in 2007 and 2009. Romanoff updated his evaluations based on a review of Smith's records. Smith asserts the opinions of Sreenivasan and Romanoff that he suffers from APD and paraphilia and is likely to reoffend were based only on historical information and therefore are insufficient to show he is currently an SVP.
Considering the evidence and all reasonable inferences favorably to support the verdict, we conclude there is substantial evidence to support the jury's finding that Smith is currently an SVP. Sreenivasan testified she interviewed and evaluated Smith in 2006 and updated her evaluation of him in 2007 and 2009 after reviewing police reports, prison records, and medical records. She testified that Smith's 1973 and 1993 offenses involved force, violence, and predatory behavior and indicated sexual deviancy. She concluded Smith currently suffered from paraphilia and APD, and was predisposed to commit criminal sexual acts. She believed Smith was predisposed to commit criminal sexual acts because he has a sense of entitlement, and committing acts of taking and aggression against others sexually arouses him. Smith's expression of his APD has a strong, repetitive sexual component. His offenses show he has a repeated linkage between sex and aggression. His APD and paraphilia disorders are chronic. Smith had not received any treatment for his paraphilia. The Static-99 test showed there was a substantial and well-founded risk Smith would reoffend. He had a score of 7, which is considered a high risk of reoffense. Sreenivasan considered Smith's erectile dysfunction, prostate cancer, and age (i.e., 63 years old). However, those factors were given less weight because Smith committed a rape at age 47, used his hands and engaged in oral copulation during his offenses, and had a sexual relationship with a man in 2005 while in prison.
Romanoff testified that he interviewed and evaluated Smith in 2006, but Smith refused his attempts to interview him in 2007 and 2009. Romanoff reviewed Smith's criminal history records and psychological evaluations through 2009. He diagnosed Smith's condition as paraphilia and APD. Smith's records showed a pattern of criminality involving increasingly aggravating and sexually violent behavior, beginning with a sexual battery against a 15-year-old girl in 1968 and continuing with multiple forcible rapes. Smith scored 6 on the Static-99 risk-assessment test, showing there is a serious and well-founded risk he would reoffend. Romanoff believed Smith is predisposed to reoffend and commit sexually predatory acts if released. Smith's disorders predisposed him to committing sexual offenses and, with his poor motivation and ability to control his urges and impulses, there is an ongoing risk he would commit future criminal sexual offenses. His APD interacted with his paraphilia, making him more likely to pursue his sexual deviancy and engage in aggressive sexual acts because he does not think about how those acts may affect his victims. Smith's erectile dysfunction, prostate cancer, and age did not change his risk of reoffense.
Based on the testimonies of Sreenivasan and Romanoff, we conclude there is substantial evidence to support findings by the jury that Smith suffers from the diagnosed mental disorders of APD and paraphilia, which make him a danger to the health and safety of others in that he is likely to engage in sexually violent criminal behavior. (§ 6600, subds. (a)(1), (c).) Their reviews of Smith's records (e.g., his criminal history, conduct in prison and in state hospitals, and medical records), along with their 2006 interviews with Smith, were presumably considered by the jurors as sufficient bases for their persuasive opinions regarding his current diagnosed mental disorders and likelihood of committing sexually violent criminal acts. We cannot conclude the information on which Sreenivasan and Romanoff relied was stale or otherwise insufficient, as a matter of law, to provide support for their opinions regarding Smith's current mental condition and current likelihood of reoffense. A recent interview of Smith was not required, as a matter of law, for them to reach opinions regarding his current condition. Because we defer to the jury's evaluation of the credibility of experts and do not reweigh the evidence, we cannot reinterpret the evidence and reach a conclusion contrary to the jury's findings. (People v. Jones, supra, 51 Cal.3d at p. 314; People v. Mercer, supra, 70 Cal.App.4th at pp. 466-467.) To the extent Smith cites or relies on evidence that would have supported a contrary result (e.g., testimonies of Malinek, Adams, and Abbott), he misconstrues and/or misapplies the substantial evidence standard of review.
In so concluding, we need not address the issue of whether Smith forfeited his insufficiency of the evidence argument by refusing to meet with Romanoff in 2007 and 2009. (Cf. People v. Sumahit (2005) 128 Cal.App.4th 347, 351 [concluding insufficiency argument was forfeited when person refused to be interviewed by the People's experts].)
C
Smith also argues the evidence is insufficient to support a finding that APD alone could constitute a diagnosed mental disorder under the Act. However, in so arguing, he misconstrues and/or misapplies the substantial evidence standard of review. Sreenivasan and Romanoff testified that they diagnosed Smith's condition currently as both APD and paraphilia. Construing the evidence and all reasonable inferences favorably to support the verdict, neither Sreenivasan nor Romanoff relied solely on an APD diagnosis in concluding Smith had a diagnosed mental disorder that made him dangerous and likely to commit sexually violent criminal acts. Smith does not persuade us the evidence is insufficient to support the jury's finding that he currently is an SVP.
IV
Constitutional Right to Equal Protection
Smith contends his indeterminate commitment must be reversed and the matter remanded for further proceedings because of a possible violation of his constitutional right to equal protection under the law in accordance with McKee, supra, 47 Cal.4th 1172. In McKee, the California Supreme Court held SVP's are similarly situated to other civilly-committed persons, including persons deemed mentally disordered offenders (MDO's) and persons found not guilty by reason of insanity (NGI's), but they bear a substantially greater burden in obtaining release from involuntary commitment. (McKee, supra, 47 Cal.4th at pp. 1202-1203, 1206-1207.) McKee concluded that absent a showing by the People of a compelling state interest in treating SVP's significantly less favorably than MDO's and NGI's, the Act may violate the equal protection clause of the United States Constitution. (Id. at pp. 1203, 1207.) McKee remanded the case to the trial court to determine whether the People could establish a compelling state interest justifying disparate treatment of SVP's and whether that treatment was necessary to further legitimate state interests. (Id. at pp. 1207-1210.)
Because the California Supreme Court's decision in McKee is binding on us (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we conclude Smith's indeterminate commitment under the Act potentially violates his constitutional right to equal protection. (McKee, supra, 47 Cal.4th at pp. 1207, 1210.) As in McKee, we conclude the record in this case is inadequate to determine whether the state has a compelling interest justifying its disparate treatment of SVP's, including Smith. (Id. at pp. 1207, 1210.) Accordingly, we remand this case to the trial court to conduct a hearing to determine whether the People can "demonstrate the constitutional justification for imposing on SVP's a greater burden than is imposed on MDO's and NGI's in order to obtain release from commitment." (Id. at pp. 1208-1209, fn. omitted.)
V
Other Constitutional Challenges
Smith contends his indeterminate commitment violates his constitutional rights to due process of law, against ex post facto laws, against cruel and unusual punishment, and against double jeopardy. As Smith concedes, McKee rejected due process and ex post facto challenges to the Act. (McKee, supra, 47 Cal.4th at pp. 1188-1195.) We are bound by that holding. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) McKee also concluded an indeterminate commitment under the Act is civil in nature and not punitive. (McKee, at pp. 1193-1195.) The double jeopardy clause "protects only against the imposition of multiple criminal punishments for the same offense." (Hudson v. U.S. (1997) 522 U.S. 93, 99.) A civil commitment procedure does not constitute a second prosecution for purposes of the double jeopardy clause. (Kansas v. Hendricks (1997) 521 U.S. 346, 369.) Smith's civil commitment under the Act does not violate the double jeopardy clause. (Ibid.; People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2 ["[I]t is well settled that double jeopardy and cruel and unusual punishment principles do not apply to civil commitment proceedings because they are not penal in nature."].) Applying similar reasoning, we conclude Smith's indeterminate civil commitment under the Act does not violate his constitutional right against cruel and unusual punishment. Because an indeterminate commitment under the Act is civil in nature and not punitive, Smith's indeterminate civil commitment does not constitute unconstitutional cruel and unusual punishment. (McKee, at pp. 1193-1195; Chambless, at p. 776, fn. 2.)
VI
Proposition 83
Smith contends Proposition 83, by which the voters amended the Act, violated the single-subject rule for ballot initiatives.
A
The initiative process in California is a power reserved to the people rather than one granted to them. (National Paint & Coatings Assn. v. State of California (1997) 58 Cal.App.4th 753, 760.) It occupies a "cherished and favored role... in our constitutional scheme." (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1158 (Jones).) However, the initiative power is subject to a constitutional limitation that provides: "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect." (Cal. Const., art. II, § 8, subd. (d).)
That single-subject rule prevents deceptive manipulation or abuse of the initiative process. (Jones, supra, 21 Cal.4th at pp. 1156-1158.) It promotes the related policies of protecting the electorate from confusing or misleading measures (ibid.) and preventing proponents of initiatives from engaging in "logrolling." (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 231-232.) An initiative does not violate the single-subject rule if " 'despite its varied collateral effects, all of its parts are "reasonably germane" to each other, ' and to the general purpose or object of the initiative." (Brosnahan v. Brown (1982) 32 Cal.3d 236, 245.) The single-subject rule does not require that each of the provisions of an initiative measure effectively interlock in a functional relationship. (Id. at pp. 248-249.) Rather, it is sufficient if the various provisions are reasonably related to a common theme or purpose. (Jones, supra, 21 Cal.4th at p. 1157; Raven v. Deukmejian (1990) 52 Cal.3d 336, 347-348.) If the provisions of an initiative possess a reasonable and common sense relationship among its various components to further the common underlying purpose, then "[w]hether or not these various provisions are wise or sensible, and will combine effectively to achieve their stated purpose, is not our concern in evaluating [a] single-subject challenge." (Legislature v. Eu (1991) 54 Cal.3d 492, 514.)
"Logrolling" is a method of exploiting the initiative process by taking disparate and unrelated provisions, none of which standing alone would have received a majority vote, and combining them into a single measure to obtain a majority vote. (McFadden v. Jordan (1948) 32 Cal.2d 330, 345-346.)
B
Smith asserts Proposition 83 is invalid because it violated the single-subject rule by modifying civil, criminal, and regulatory matters dealing with sex offenders. He argues: "Proposition 83 amended the penalties for sex offenses, the elements of certain sexual offenses, amended the eligibility of certain defendants for probation, amended the parole period for certain sex offenders, broadened the definition of a violent felony, amended the one-strike sex statutes, the fines for failure to register as a sex offender, added GPS monitoring for sex offenders, and substantially revised [the Act]." He argues that, by covering these disparate topics, all of Proposition 83's parts were not reasonably germane to each other and to the general objective of the initiative.
Proposition 83's stated intent was " 'to strengthen and improve the laws that punish and control sexual offenders.' " (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1282; Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 138.) Although Proposition 83 addressed civil, criminal, and regulatory statutes, all of its provisions were reasonably related to the common theme or purpose of punishing and controlling sexual offenders. (Jones, supra, 21 Cal.4th at p. 1157; Raven v. Deukmejian, supra, 52 Cal.3d at pp. 347-348.) The goal of protecting the public against the commission of sex offenses is implicit within Proposition 83's purpose of controlling sexual offenders. Proposition 83's multifaceted approach to punishing and controlling sex offenders and protecting the public against the commission of sex offenses possessed "a reasonable and common sense relationship among [its] various components in furtherance of a common purpose." (Brosnahan v. Brown, supra, 32 Cal.3d at p. 253.) Alternatively stated, all of Proposition 83'sparts were reasonably germane to each other and to the general purpose or object of the initiative. (Id. at p. 245.) The single-subject rule does not require that each of Proposition 83's provisions effectively interlock in a functional relationship. (Id. at pp. 248-249.)
The fact that Proposition 83 affected both Welfare and Institution Code and Penal Code provisions does not necessarily mean its parts were not reasonably germane to each other and violated the single-subject rule. (Cf. Manduley v. Superior Court (2002) 27 Cal.4th 537, 574-575 [upholding Proposition 21]; Brosnahan v. Brown, supra, 32 Cal.3d at pp. 242-248 [upholding Proposition 8].) Smith does not cite any case to support that assertion and we decline to adopt his proposed rule. Furthermore, we are unpersuaded by Smith's argument that Proposition 83 confused voters by combining civil commitment provisions with amendments to penal statutes and regulatory provisions. Rather, we presume the electorate understood the various provisions of Proposition 83, as set forth in the text of the initiative provided to them, and knew it would amend both civil commitment and penal statutes with the common theme or purpose of punishing and controlling sex offenders and protecting the public from the commission of sex offenses. (Cf. Brosnahan v. Brown, at p. 252.) We conclude Proposition 83 did not violate the single-subject rule of article II, section 8, subdivision (b), of the California Constitution.
DISPOSITION
The judgment is reversed as to Smith's equal protection claim. The case is remanded to the trial court with directions to reconsider Smith's equal protection claim in light of McKee, supra, 47 Cal.4th 1172, and the final resolution of the proceedings on remand in McKee. (Id. at pp. 1208-1210.) The trial court shall suspend further proceedings in this case pending finality of the proceedings on remand in McKee, including any proceeding in the Superior Court of San Diego County in which McKee may be consolidated with related matters. "Finality of the proceedings" in McKee shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court. In all other respects, the judgment is affirmed.
WE CONCUR: NARES, Acting P. J., AARON, J.