Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VC48734
Kline, P.J.
Mark A. Smith appeals from an order recommitting him to the custody of the Department of Mental Health (Department) for an indeterminate term upon the determination that he remained a sexually violent predator. He makes numerous arguments: that the trial court erred in permitting defense counsel to withdraw his in pro per motion for substitution of counsel at a time when appellant was not in court to ratify the withdrawal; that the court erred in refusing to instruct the jury on evidence admitted for a limited purpose and in refusing to impose appropriate control over the prosecution’s expert testimony; that the prosecutor committed prejudicial misconduct in his cross-examination of appellant; that there was insufficient evidence that appellant is a sexually violent predator or poses a danger of reoffending in a predatory manner; that the statutory term “predatory” is void for vagueness; that appellant’s commitment is unlawful for lack of jurisdiction because the evaluations upon which it is based were conducted pursuant to an unlawful “underground regulation”; and that the Sexually Violent Predator Act (SVPA) violates appellant’s constitutional rights to equal protection and due process and the federal constitutional prohibition against ex post facto legislation.
We will reject all but one of appellant’s claims. We will remand the case to the trial court for consideration of appellant’s equal protection challenge in light of People v. McKee (2010) 47 Cal.4th 1172 (McKee), with directions to suspend proceedings pending finality of McKee. In all other respects, we will affirm the judgment.
STATEMENT OF THE CASE
On March 18, 2005, the Solano County District Attorney filed a petition under Welfare and Institutions Code section 6600 et seq. to extend appellant’s commitment as a sexually violent predator (SVP) until May 13, 2007. With this petition pending and a jury trial scheduled for January 8, 2007, the district attorney, on October 13, 2006, filed another petition to extend appellant’s commitment for the two-year period beginning May 13, 2007. The court subsequently granted the prosecutor’s motion to consolidate the petitions and amend to request commitment for an indeterminate term pursuant to a change in section 6600.
All further statutory references will be to the Welfare and Institutions Code unless otherwise specified.
On January 8, 2009, appellant filed a motion to dismiss the petition on the basis that the evaluations supporting the petition were performed under illegally adopted regulations. The motion was denied on February 11, 2009. After a trial, on July 14, 2009, the jury found appellant qualified as an SVP. The court’s order committing him to the custody of the Department for an indeterminate term was filed the following day.
Appellant filed a timely notice of appeal on August 24, 2009.
STATEMENT OF FACTS
Psychologist Christopher North, testifying as an expert for the prosecution, stated his opinion that appellant, 52 years old, met the criteria for an SVP. He explained that to meet the criteria, a person has to have been convicted of raping or molesting at least one victim; has to have a diagnosed mental disorder that makes him likely to commit sex crimes in the future; and has to present a serious risk of committing a new sexually violent predatory crime if not treated in a secure setting.
North interviewed appellant on December 2, 2008, and reviewed pertinent records, including the records of conviction and police or probation reports concerning appellant’s 1981 conviction for oral copulation of his nephew Harold and his 1989 conviction for lewd and lascivious acts upon his nephew Gerald. In 1976, when appellant was 19 years old, he invited his seven-year-old step-nephew, Harold, into his bedroom to listen to records. Harold emerged from the room looking “pale and sick, ” and told his mother that appellant had “played with his penis” and orally copulated him. Harold’s father walked into the bedroom, saw appellant’s pants down and his penis exposed and then called the authorities. Harold said that appellant had molested him once before and he had told his mother, but she did not believe him. Appellant was convicted of oral copulation of a minor, which North testified qualifies as a sexually violent offense because of the sexual activity and victim’s age. He admitted to North that he had molested Harold twice.
In 1989, appellant was convicted of another sexually violent offense, molesting then eight-year-old Gerald. This offense, North testified, also qualified as a sexually violent offense. Two 17-year-old boys saw Gerald’s older brother Michael “humping” Gerald with appellant watching. They told the parents, who called the police. Appellant said that the boys’ mother had asked him to watch them, but the mother told the police she had told appellant to leave because she did not want him with the boys. Gerald told the police that appellant had also molested him, with the two engaging in fondling and mutual oral copulation, and appellant ejaculating. Michael also said appellant had orally copulated him and appellant was charged with this offense, but the charge was dropped when appellant pled guilty to molesting Gerald. Appellant was sentenced to 11 years in prison.
In 1979, while on probation for molesting Harold, appellant was questioned about molesting six-year-old Marty, the son of his step-brother and step-brother’s girlfriend, whom he had been babysitting. Marty had spent the night in appellant’s bed with him every other Friday night for about six months, and Marty told his mother he and appellant had engaged in mutual oral copulation on two different occasions. Appellant’s probation was revoked and he was sent to Atascadero State Hospital for treatment as a mentally disordered sex offender. Appellant admitted to North that he had molested Marty twice.
In 1989, while being questioned about molesting Gerald, appellant admitted having sodomized a boy named David in the early 1980’s. North asked appellant about this and appellant denied it; when North showed him the police report documenting his admission, appellant said he did not recall it. In 1995, appellant was taken into custody on a parole violation when he was found sleeping in the same bed with his seven- and 10-year-old nephews.
North diagnosed appellant with pedophilia, which he defined as involving “recurrent, intense, sexually-arousing fantasies, urges or behaviors involving sexual activity with prepubescent children, ” generally children under age 13, by a person at least 16 years old and at least five years older than the children. The fantasies, urges or behaviors must persist for a minimum of six months and the individual must act on the urges or suffer significant distress or impaired functioning as a result of them. Appellant’s offenses spanned 13 years and were all committed against children under the required age when appellant was over age 16 and at least five years older than the children. On cross-examination, North testified that a child molester, as opposed to a pedophile, would engage in sexual activity with a child but not necessarily on an ongoing basis; the distinction is that a pedophile has a “repeated pattern or history of sexual activity with children.”
North opined that appellant’s pedophilia affected his ability to control his emotions and behavior and predisposed him to commit criminal sexual acts to an extent that made him a menace to the health and safety of others. He explained that appellant did not take the problem seriously and was not cooperative with probation and parole. On probation, after molesting Harold, appellant resisted going to sex offender treatment and, when he did go, was so unmotivated that the psychologist concluded there was no point in treating his pedophilia and instead focused on the drinking problem from which appellant also suffered. Appellant molested Marty while on probation and was sent to Atascadero State Hospital for treatment, but grew increasingly less cooperative over 20 months, until he was sent back to court as not amenable to treatment. After serving his prison sentence for the conviction based on his molestation of Gerald, appellant violated his parole by sleeping in a bed with his nephews. North believed appellant had difficulty controlling his behavior as evidenced by the fact that incarceration did not deter him from committing further offenses. North also felt appellant’s pedophilia impaired his empathy, noting appellant had told another doctor that his offenses did not have negative effects on the victims and, when asked if the boys enjoyed the sexual activity, said “ ‘[t]hey didn’t look at me like they disliked it.’ ” A treatment program for pedophilia was available at Coalinga State Hospital, where appellant was residing, but appellant had not chosen to participate in it, despite having admitted in 1989 that he needed help for his sexual problems.
North also diagnosed appellant with alcohol dependence. Appellant started drinking in his teens and was drinking heavily by about age 21. He had four convictions for driving under the influence, was drinking heavily around the time he molested Harold, and was reluctant to participate in the alcohol treatment that was ordered as part of his probation. After his parole in 1994, he was returned to prison at least twice for problems with drinking. Appellant had told three doctors that he had thoughts of and impulses to have sex with boys after he drank alcohol, including one he told he only had these thoughts when he drank, but in fact some of appellant’s offenses were committed at times he was not drinking, including his molestation of Marty. North testified that alcohol use is a risk factor for appellant, lessening his self-control and increasing the likelihood of him molesting a child.
The fact appellant had not been convicted of a sex offense since 1989 did not affect North’s opinion that appellant currently suffers from pedophilia. North testified it is generally accepted in the mental health field that pedophilia is a disorder that does not heal itself over time and cannot be cured, but can be managed. Nor did the fact that appellant had not be caught “acting out sexually” while at the state hospital change North’s opinion that he currently suffered from pedophilia, because appellant was strongly motivated not to appear interested in children so that he would be released and he did not have contact with children. In his experience, having performed some 600 to 800 sexually violent predator evaluations, North stated that it was “pretty rare” for such an individual to act out sexually while in a confined environment. North testified that appellant’s problems arose when he was out in the community and, since he had only been in the community for about three years since his 1989 conviction, his opportunity to molest had been “fairly limited.” North acknowledged that he did not know what degree of access appellant had to his nephews during this period.
North opined that as a result of his pedophilia, appellant presented a substantial, serious and well-founded risk of engaging in sexually violent predatory criminal behavior without appropriate treatment and custody. This opinion was based on actuarial tools, tests and risk factors used by psychologists to determine this likelihood. Appellant scored six on the Static-99, putting him in the “high risk” category and indicating a 13 to 28 percent probability of him reoffending within five years, and a 17 to 37 percent probability of reoffending within 10 years. His score on the Static-2002 was seven, in the moderate to high risk category, and his score on the Minnesota Sex Offender Screening Tool Revised was five, in the moderate risk category. These instruments assessed fixed factors based on appellant’s history and North testified they were considered “moderate predictors.” North also considered five dynamic factors research had identified as important in assessing recidivism: significant social influences, intimacy deficits, sexual self-regulation, general self-regulation, and cooperation with supervision. North testified that appellant appeared to be largely a loner, associated primarily with family members, and did not appear to have had close friendships, to be attracted to women or to have had committed relationships with adults; there was little information bearing on appellant’s sexual self-regulation because he had not been participating in treatment; and his general self-control seemed “pretty good” in a custodial setting, but not very good in the community.
North testified that the definition of “predatory” used by Department evaluators asks whether the subject targets strangers or casual acquaintances or establishes relationships with children for the purpose of victimization. North believed appellant was likely to promote a relationship with a child through babysitting, which North considered predatory, as he had done in the offenses against his nephews. North noted that appellant had engaged in “grooming” behavior—ingratiating himself to a child or parents to set up a situation in which to molest the child—with Marty, acting as a “big brother, ” and that almost all of appellant’s victims were developmentally disabled or hyperactive, making them vulnerable and particularly prone to predation. North estimated a 30 to 40 percent probability that appellant would be arrested for a new sex offense within 10 years of release, stating this was a conservative estimate because it focused on actual arrest and many sex offenses are not detected or reported. He acknowledged this estimate was based on his own clinical judgment rather than a “scientific-approved tool” or empirical evidence.
North did not consider appellant an incest offender, viewing incest as limited to immediate family within a household. He was not an “extrafamilial molester” either, but somewhere in between the two. Incest offenders have a lower recidivism rate than extrafamilial offenders.
Clinical psychologist George Grosso also testified for the prosecution as an expert in the area of SVP evaluations and opined that appellant met the criteria for an SVP. Grosso interviewed appellant on December 3, 2008, after reviewing his records. He diagnosed appellant with pedophilia nonexclusive, sexually attracted to males, and with personality disorder, not otherwise specified, with borderline antisocial traits. The pedophilia diagnosis was not affected by the fact that appellant had not sustained a sex offense conviction since 1989, because it is a life-long condition and because there had been external limitations on appellant’s ability to offend, such as his incarceration and hospitalization. Grosso testified that pedophilia is usually chronic, with treatment designed to manage the condition. He believed that appellant’s history indicated his pedophilia currently affected his ability to control his emotions and behavior to an extent that he was a menace to others’ health and safety.
Grosso opined that appellant required inpatient treatment and there was a substantial, serious and well-founded risk appellant would reoffend if released. He scored appellant at five on the Static-99, in the moderate high risk category with a 10.2 to 23.1 percent risk of reoffending within five years, and an 11.8 to 32.1 percent risk within 10 years. Appellant also scored five on the Static-2002, placing him in the moderate risk category with a 6.2 to 17.3 percent risk of reoffense within five years, and a 7.1 to 24.5 percent risk within 10 years. Grosso viewed appellant as fitting in the middle of the range, “probably leaning toward the high risk end, ” because of his failure to engage in treatment, his score on the Hare Psychopathy Checklist Revised, which was below the threshold for psychopathy, but was elevated in areas indicating remorselessness and lack of concern for others’ welfare, and deficits in all of the five dynamic factors bearing on recidivism. Although appellant’s sexual self-regulation while in custody had been satisfactory, the fact that appellant’s pedophilia involved attraction to males was significant because research showed that individuals attracted to prepubescent boys tend to have a chronic condition and to recidivate under stress and at approximately twice the rate of those who offend against prepubescent girls.
Grosso testified that appellant’s offenses were predatory in that he established or promoted relationships with his victims for the purpose of victimization. Noting that it was atypical for a teenager to spend the “inordinate” time with children that appellant did, that at least two of his victims were particularly vulnerable due to developmental delays, and that in one case appellant returned to the home despite the mother saying she did not want him babysitting her child, Grosso concluded that although appellant had a familial relationship with his victims, his “behavior was designed and perpetuated for victimization.” Grosso also noted that appellant did not have certain “protective” factors that research showed could reduce an individual’s likelihood of reoffending: He had not been successful in the community for more than 10 years without offending, he was not of sufficiently advanced age to reduce his likelihood of offending, and he did not have health issues that seriously impeded his functioning.
Grosso believed that alcohol played a significant part in appellant’s life and a role in his sexual reoffending, but did not diagnose alcohol abuse or dependence because appellant had not had contact with alcohol in a number of years due to his incarceration and because he did not consider the alcohol use directly important in assessing appellant’s life-long likelihood of recidivism in that alcohol would exacerbate the underlying problem but not cause it.
The prosecution’s third expert witness, psychologist Jack Vognsen, also testified that appellant met the criteria for an SVP. Vognsen had interviewed appellant three times, in 2002, 2006 and 2008, and appellant had given differing accounts of his offenses. His diagnosis for appellant was pedophilia with a sexual attraction to boys. He believed appellant’s pedophilia affected his ability to control his behavior and predisposed him to commit criminal sexual acts so as to make him a menace to others’ health and safety, as shown by his history of continuing to offend despite criminal sanctions, and that appellant’s alcohol use allowed him to disregard the consequences of his behavior. His opinion was not affected by the fact that appellant had not suffered a conviction since 1989, because he viewed pedophilia as “something like a sexual orientation” which, in adults, tends to be “pretty fixed.”
Vognsen believed there was a substantial, serious and well-founded likelihood appellant would reoffend in a sexually violent and predatory manner if released. The three actuarial instruments Vognsen used yielded results that were “very close to each other” and put appellant’s risk of reoffending between moderate and high. Appellant’s score on the Static-99 Revised was 6, with a 16.7 to 37.3 percent risk of reoffending within 10 years, and his score on the Static-2002 was 7, with a risk of 13.3 to 32.1 percent within 10 years. Vognsen estimated appellant was at the halfway point in the range, possibly toward the high end, explaining that appellant was not like a high risk offender because he was not a generally antisocial person, but not like the low end because he had not participated in treatment. Vognsen estimated appellant’s risk of being charged or convicted of a new sexual offense within 10 years to be about 25 percent.
Vognsen viewed appellant as having a “strong deviant sexual preference, ” indicated by the young age of his victims and lack of evidence of adult sexual relations, and saw his alcohol dependence as reflecting an impaired ability to control his behavior. Vognsen viewed the statutory definition of predatory as intended to exclude incest offenders, who he said reoffend at about half the rate of non-incest sexual offenders. Appellant’s offenses were predatory rather than incestuous because he promoted or enhanced his relationships with the children in order to engage in sexual conduct with them. Vognsen believed appellant should remain in custody with treatment because there was no evidence he would voluntarily undergo treatment in the community.
Clinical psychologist Lisa Jeko testified as an expert for appellant. She had reviewed appellant’s case at least three times, interviewed him twice, and written five reports on the case. In her prior evaluations, she had found him to meet all the criteria of an SVP. She continued to believe he met most of the criteria in that he had been convicted of qualifying sexually violent offenses and suffered from pedophilia and alcohol dependence. In the past, she had believed he also met the last criteria of being likely to engage in sexually violent predator criminal behavior, the actuarial tools resulting in a determination that he was in the high risk category according to the Static-99 and the moderate high category on the Static 2002.
After her most recent interview with appellant and a investigation of the case, however, Jeko had changed her mind on the last point. Jeko reviewed how appellant had portrayed his victims to various evaluators and others, for example describing Marty as his nephew, his second cousin, his brother’s girlfriend’s son, and his stepbrother’s cousin’s son. Jeko noted there were “a great number of relatives” and “teased out who lived in what household with which parents and where did they live.” By appellant’s account, the families lived within a four- to six-block range, and Jeko concluded that appellant had a significant amount of contact with Marty, Harold and Gerald, and “conceptualized [them] as his immediate family.” There was a “transgenerational history in [appellant’s] family of rampant sexual abuse” and a “familial social moray” in which “it’s not considered a violation or a crossing of boundaries, it’s simply what happens.” Although Jeko recognized that there could be predatory sexual offenses even within a family, she did not view appellant’s conduct as “pronounced, prolonged seeking out of victims” or going outside the family for a victim, and concluded appellant’s offenses were incestuous and not predatory. Thus, although appellant remained a pedophile with a moderate to moderately high risk of reoffending, he did not meet the legal definition of predatory. Jeko acknowledged that appellant was an unreliable historian, that he told her for the first time in late 2008 that he was related to Marty, and that he would know it was to his benefit to suggest he was related to Marty.
Clinical psychologist Theodore Donaldson evaluated appellant in August 2006, and had since reviewed the newer evaluations by Dr. Vognsen, Dr. North, Dr. Grosso and Dr. Jeko. He did not speak with appellant again because he had the new evaluations and “nothing ha[d] changed” in that appellant had not done anything consistent with a diagnosis of pedophilia.
Donaldson testified that he had been one of the first SVPA evaluators for the Department, but his contract was terminated “because we did not agree on some things.” He continued to work in the area of SVPA evaluations, with a particular focus on prediction, testifying for the defense because he was “out of the loop to testify for the prosecutors” who get their evaluators from the Department.
Donaldson thought there was insufficient evidence to conclude appellant was a pedophile. He testified that it was very difficult to distinguish between a person suffering from pedophilia, a mental illness involving a sexual preference for children or “persistent fantasy preoccupation, ” from an opportunistic child molester who “has sex with children because they’re convenient.” A pedophilia diagnosis would require current signs and symptoms of the mental disorder and current difficulty controlling offending conduct. Donaldson did not see evidence of pedophilia because appellant’s offenses involved someone related to him and available, and he had no history of seeking out children; he went for eight years while out of custody, from 1981 to 1989, without any known pedophilic behaviors, indicating he either did not have the urges or was able to control them; he displayed no signs of pedophilia while incarcerated (such as interest in pornography or suggestive pictures of children); and while he had parole violations after his release in 1994, none involved sexual offenses. Donaldson noted that mental illness does not go into remission when a person is incarcerated, so that if one is mentally ill, some signs and symptoms will be revealed. Additionally, there was no evidence appellant was unable rather than unwilling to control his conduct. Donaldson criticized the risk assessment tools used to establish a probability of recidivism for not sufficiently taking into account the base rate (percentage of offenders released who reoffend within a specified amount of time) and factors such as age and nature of the population studied. He believed these instruments resulted in estimates that were too high because the base rates used in the instruments were higher than the base rates in California. Donaldson felt too much attention was paid to risk estimates because if a person is currently a pedophile with serious difficulty controlling the behavior, the person necessarily is currently likely to reoffend. He also believed that dynamic risk factors had “no place” in SVPA evaluations, as studies had shown adding these factors decreased the accuracy of prediction. Studies also showed that coerced treatment had no effect on recidivism.
Appellant testified that Harold, Marty, Gerald and Michael were his nephews. He acknowledged that he molested Harold twice and spent five years at Atascadero State Hospital as a result. He completed the two-and-one-half-year sexual offender treatment program twice, but when asked to do it a third time, he refused and asked to be returned to state prison. Within two to three weeks of returning to prison, he was released on parole.
Appellant testified that he molested Marty while on probation for the offense against Harold. He knew Marty was his brother’s son before he molested the boy. He had been drinking when he molested both Marty and Harold, about 12 beers on each occasion; he was drinking every day at that time.
After being released from prison in 1980 or 1981, appellant testified, he did not molest anyone until 1989, when he molested Gerald twice. He had been drinking both times. Appellant testified that he never molested Gerald’s brother Michael, but “played with his private area” when Michael asked him to. Michael was 17 years old and appellant considered him an adult.
Appellant went to prison for his offenses against Gerald and was released in 1994. One of the conditions of his parole was that he not have unsupervised contact with children. Having nowhere to live while waiting to move into an apartment that was being remodeled, appellant obtained permission from his parole agent to live with his brother for a couple of weeks. The parole officer knew there were children in the house. Appellant slept in the dining room and never shared a bed with, touched or molested his nephews, but after about a week the parole officer found appellant had violated parole. Appellant testified that he took and passed a polygraph test regarding this incident, but the polygraph was never given to his parole officer and could not be found.
Appellant testified that he had not sexually molested anyone after he was released in 1994. He explained that he had had a lot of time for thinking and realized how what he had done was wrong, was ruining his nephews’ lives and causing him to lose the respect of his nephews and family. He had written to his nephews, apologizing and asking for forgiveness; they had forgiven him and wanted him to join them in Nebraska. Appellant acknowledged that his criminal record included alcohol related violations, among them three convictions for driving under the influence, the last in 1986, and that his offenses against his nephews all involved alcohol. He considered himself an alcoholic and testified that he had participated in several sobriety programs and had been sober for nine years. Appellant had been aware of alcohol and illegal drugs at Atascadero and at Coalinga State Prison, but did not partake of either. He was aware of pornographic material at both institutions, but did not look at it and did not want to ever again “do what I’ve done before.”
Appellant testified that at Atascadero he attended substance abuse programs and training classes in mechanics, plumbing, carpentry and computer skills, and had obtained his GED, hoping he would be able to go home and have a trade to make a living. In prison, in addition to Alcoholics Anonymous, he participated in an program teaching skills such as “when to appropriately and inappropriately act” and took college classes for several months, but was dropped when he missed class due to having to be in court.
Appellant testified that he had attended Phase One of the sex offender treatment program at Atascadero, and again at Coalinga, but did not participate further because he did not feel it was relevant to him; friends who had completed the program told him it was a waste of time and remained in custody years after completing it. Also, his prior attorney advised him not to take the program. Appellant felt he needed help, but wanted to get it from a treatment program on the outside such as the one he had attended while on parole. He wanted to move to Nebraska, where his siblings, nephews and nieces lived. He was welcome to stay with them until he found a place of his own, and they had found a program for him in the community. Appellant testified that he thought he was a pedophile before but not currently, as he had shown no signs of reoffending in 20 years. He testified that he did not plan to have sexual contact with anyone in the future, noting that he was 52 years old and dealing with repeated cancer surgeries. He acknowledged that he had pled guilty to a charge of failing to register as a sex offender in 1999, but insisted that he did so only on the advice of his attorney and, in fact, he had not failed to register.
DISCUSSION
The SVPA defines a “sexually violent predator” 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).) “Under the [SVPA], a person is ‘likely’ to engage in sexually violent criminal behavior (i.e., reoffend) if he or she ‘presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.’ (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922, italics omitted.)” (McKee, supra, 47 Cal.4th at p. 1186.)
As originally enacted, the SVPA “provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, by a unanimous jury verdict after trial (Welf. & Inst. Code, former §§ 6603, subd. (d), 6604), are found beyond a reasonable doubt to be an SVP (former §6604). (People v. Williams (2003) 31 Cal.4th 757, 764; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143, 1147 (Hubbart).) A person’s commitment could not be extended beyond that two-year term unless a new petition was filed requesting a successive two-year commitment. (Former §§ 6604, 6604.1; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243, fn. 5.) On filing of a recommitment petition, a new jury trial would be conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. (Former §§ 6604, 6605, subds. (d), (e).)” (McKee, supra, 47Cal.4th at p. 1185.)
In 2006, the SVPA was amended by Proposition 83, which, among other things, changed an SVP commitment from a two-year term to an indefinite commitment. (McKee, supra, 47 Cal.4th at p. 1186.) Under the current law, if a court or jury determines beyond a reasonable doubt that an individual is an SVP, the individual is committed to the custody of the Department for an indeterminate term. (Id. at pp. 1186-1187.) “An SVP can only be released conditionally or unconditionally if the [Department] authorizes a petition for release and the state does not oppose it or fails to prove beyond a reasonable doubt that the individual still meets the definition of an SVP, or if the individual, petitioning the court on his own, is able to bear the burden of proving by a preponderance of the evidence that he is no longer an SVP.” (Id. at p. 1187.)
I.
In a criminal trial, “[w]hen a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118)—the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court’s discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel. (People v. Hart (1999) 20 Cal.4th 546, 603.)” (People v. Smith (2003) 30 Cal.4th 581, 604.)
On March 2, 2009, appellant wrote a letter to the court requesting that his public defender conflict attorney, Dora Rios, be dismissed and an attorney appointed who was not affiliated with the public defender’s office or public defender’s conflict of interest office. Appellant stated that he had written numerous letters to Rios requesting information about her schooling, training and experience with section 6600 cases and had received no response; that he had asked to meet with Rios before going to court and received no response; and that, of the numerous times he had called her office, he had spoken to her briefly two times and otherwise had received no calls in response to the messages he left. Appellant attached a letter he had been provided by one of his court-appointed experts, Dr. John Podboy. Podboy’s letter to Rios stated that, because he had received no response after two months of attempting to contact her by written correspondence and phone calls, he was resigning from the case. Podboy suggested that Rios contact Dr. Donaldson, who had also not heard from her.
At a brief hearing on April 16, 2009, Rios informed the court that appellant was “withdrawing the Marsden” motion. There was no further comment on the subject. The reporter’s transcript states that appellant was “present and represented by Dora Rios, Deputy Conflict Defender.” On the minute order, however, the box for defendant “not present” is checked, with a handwritten note, “not brought out.” Rios thereafter continued to represent appellant.
Appellant now contends that the trial court erred in accepting counsel’s representation that the Marsden motion had been withdrawn without obtaining appellant’s personal consent or questioning appellant about his concerns. After questioning whether Marsden applies in the context of a civil commitment proceeding, respondent urges that appellant abandoned his motion by not further pursuing it and that any error was harmless.
The complaints appellant expressed in his letter requesting substitution of counsel concerned Rios’s nonresponsiveness to appellant’s requests for information about her qualifications and for meetings to discuss his case. The trial began almost three months after Rios told the court that appellant was withdrawing his Marsden motion, and there is no indication appellant raised any further question about the quality of his representation. At trial, Rios thoroughly cross-examined the prosecution’s expert witnesses and presented two experts who concluded appellant did not currently meet the criteria to be found a sexually violent predator. There is no indication appellant ever complained about Rios’s representation during the trial. Appellant’s conduct thus indicated he abandoned his request to substitute counsel. (See People v. Vera (2004) 122 Cal.App.4th 970, 981-982 [court heard some of defendant’s complaints and denied Marsden motion but told defendant motion could be renewed; defendant did not raise issue again]; People v. Kenner (1990) 223 Cal.App.3d 56, 60-62 [hearing on request for self-representation repeatedly continued; defendant present but did not mention request at subsequent hearings or during trial].)
In any event, any error in the court’s failure to inquire further into appellant’s request for substitution of counsel would not require remand. The parties dispute the proper standard for assessing prejudice in this context. Because Marsden is based on the criminal defendant’s constitutional right to the assistance of court-appointed counsel if he or she is unable to employ private counsel (People v. Marsden, supra, 2 Cal.3d at p. 123), error in denying a criminal defendant the right to explain the basis of a motion to substitute counsel requires reversal unless it is harmless beyond a reasonable doubt (id. at p. 126). Commitment proceedings under the SVPA are civil, not criminal, and therefore do not entail the full range of rights afforded criminal defendants. (People v. Burns (2005) 128 Cal.App.4th 794, 803-804; People v. Fraser (2006) 138 Cal.App.4th 1430, 1446, 1449.) The right to representation of counsel in SVPA proceedings is derived from statute rather than from constitutional guarantees. (Id. at p. 1449; § 6603, subd. (a).)
In an analogous context, People v. Williams (2003) 110 Cal.App.4th 1577, considered the claim that the court erroneously denied a request for self-representation in proceedings to extend a commitment as a mentally disordered offender. Because the right to counsel (and corresponding right to self-representation) in this civil proceeding was statutory rather than constitutional, Williams held that the standard for assessing prejudice was whether a more favorable result was reasonably probable, not the beyond a reasonable doubt standard applicable to constitutional error. (Id. at pp. 1592-1593.)
This case does not require us to determine whether Marsden applies in SVPA proceedings or, assuming it does, which standard of prejudice should be applied to Marsden error in this context. Under either standard, appellant did not suffer prejudice. As stated above, the complaints raised in appellant’s letter to the court concerned only counsel’s failure to respond to his pretrial attempts at contact. Appellant never again asserted these complaints or raised any others. Counsel was clearly prepared for trial, fully cross-examining the prosecution expert witnesses and presenting expert witnesses to testify on appellant’s behalf as well as appellant himself. Counsel argued as strong a defense as the circumstances allowed, conceding that the evidence showed appellant was a pedophile, but urging it was insufficient to show appellant currently could not control his behavior in light of progress he had made in stopping alcohol use and increasing understanding of his offenses; arguing that his offenses were not predatory; and pointing to reasons for concluding the instruments used by the prosecution witnesses overstated the risk of appellant reoffending. Appellant offers no suggestion of how his alleged difficulties in contacting counsel before trial affected her subsequent representation of him.
We are not aware of any case that has squarely held Marsden applies in the context of SVPA proceedings. People v. Leonard (2000) 78 Cal.App.4th 776, 787, assuming for purposes of discussion that Marsden applied, found that if there had been error, it was harmless beyond a reasonable doubt. Leonard, however, did not consider the fact that the right to counsel in an SVPA case does not have a constitutional basis.
II.
Appellant contends that the expert witnesses were improperly allowed to relate unreliable hearsay in describing the predicate offenses and to state their opinion that these offenses qualified as sexually violent offenses under the SVPA. He maintains that this testimony was irrelevant because the predicate offenses were uncontested, inappropriately bolstered the witnesses’ credibility by making it appear each had investigated the facts underlying the convictions, and permitted the prosecutor to repeatedly present appellants’ misdeeds to the jury. Appellant further challenges the experts’ testimony providing unreliable hearsay information about uncharged offenses. Specifically, appellant suggests the prosecutor improperly elicited testimony from Dr. North concerning appellant’s conduct with David; elicited testimony from the experts relating appellant’s statements that Michael was mentally retarded and prone to lying and suggesting appellant had committed offenses that had not been reported; repeatedly elicited testimony regarding the 1995 parole revocation that portrayed the incident of appellant sharing a bed with his two nephews as a proven fact; and introduced an unproven allegation that appellant threatened to get a gun if Gerald and Michael did not go along with his sexual demands.
“As a general rule, out-of-court statements offered to support an expert’s opinion are not hearsay because they are not offered for the truth of the matter asserted. Instead, they are offered for the purpose of assessing the value of the expert’s opinion. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210.) [¶] ‘ “[A]n expert may generally base his opinion on any ‘matter’ known to him, including hearsay not otherwise admissible, which may ‘reasonably... be relied upon’ for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, ‘ “under the guise of reasons, ” ’ the expert’s detailed explanation “ ‘[brings] before the jury incompetent hearsay evidence.’ ” ’ (People v. Catlin (2001) 26 Cal.4th 81, 137, italics added.)” (People v. Dean (2009) 174 Cal.App.4th 186, 193.)
“ ‘[W]hile an expert may rely on inadmissible hearsay in forming his or her opinion [citation], and may state on direct examination the matters on which he or she relied, the expert may not testify as to the details of those matters if they are otherwise inadmissible.’ ([Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, ] 415.) This rule is based in part upon the rationale that by allowing an expert to testify as to the details of inadmissible hearsay reports, the jury might improperly consider such testimony as independent proof of the facts described in the reports and the adverse party is denied the opportunity to cross-examine the person who made the statements. (See Frampton v. Hartzell (1960) 179 Cal.App.2d 771, 773; People v. Campos (1995) 32 Cal.App.4th 304, 308.)” (People v. Dean, supra, 174 Cal.App.4th at pp. 196-197.) The 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.” [Citation.]’ (People v. Gardeley (1996) 14 Cal.4th 605, 619.) [¶] Within this context, ‘probative value’ refers to the relative reliability of the inadmissible evidence and its necessity to the jury’s understanding of the credibility and bases for the expert opinion. This must be weighed against the risk that the jury will view and use this inadmissible evidence for an improper purpose, i.e., as substantive evidence against the defendant. This risk is increased when the reports are particularly inflammatory or describe prior misconduct. (Cf. People v. Ewoldt (1994) 7 Cal.4th 380, 404 [analyzing prejudicial effect of evidence of uncharged misconduct for purposes of Evid. Code, § 1101, subd. (b)]; People v. Albarran (2007) 149 Cal.App.4th 214, 230-231 [expert gang evidence that was extremely inflammatory prevented a fair trial].)” (People v. Dean, at p. 199.)
The challenged testimony concerning David came up when Dr. North, asked about prior offenses that bore on his determination whether appellant had a mental disorder, testified, “Sometime around the same time of the molests of Marty, he was involved in molesting another one of his nephews named David, and I wasn’t clear on exactly what David’s age was from reviewing the record.” Over defense counsel’s objection, North testified that a sheriff’s report from when appellant was being questioned about molesting Gerald reflected that appellant admitted having sodomized David, although appellant told North he did not recall this. Respondent urges that appellant’s objection referred to a motion in limine based on relevance grounds, not on the unreliable hearsay basis presently urged, so that the current claim was forfeited. (Evid. Code, § 353.) In any case, the information North relayed, appellant’s admission to a police officer, was reliable; moreover, asked about David at trial, appellant admitted he had “played with his private area, ” although he insisted that he did not sodomize or orally copulate David and that he considered then 17-year-old David an adult at the time.
When asked the basis of her objection, defense counsel stated, “We had discussed this in my motion in limine.” The court responded that it had not made a ruling then and overruled the present objection. Prior to trial, counsel had objected to David being presented as a victim or considered by the doctors in their evaluations because he did not accuse appellant of molesting him until he was an adult, it was unclear whether he was a minor when he and appellant had sexual contact, and there was no evidence it was not consensual, as appellant claimed. The court viewed the information as relevant, but agreed David should not be referred to as a “victim.”
Appellant also points to testimony about his 1995 parole revocation, which was based on his sharing a bed with two of his nephews, and his alleged molestation of Michael, Gerald’s older brother, in 1989, although his brief confuses the two incidents. Appellant’s complaint about the testimony regarding the 1995 incident appears to be that it was presented as a proven fact despite appellant having denied it and there being no contemporaneous witness interviews to prove it: Appellant argues, “Indeed, by the time of the third expert witness, the 1995 allegation—denied by appellant and not proven by witness interviews at the time—now became firmly characterized as a proven, reliable fact and described as the ‘sleeping with the two boys’ situation.” This argument refers to Dr. Vognsen’s testimony, when asked about the contact with children for which appellant was sanctioned in 1995, responded, “Yes. The sleeping with the two boys.” Dr. North, the first expert presented, had testified that, in violation of a condition of appellant’s probation prohibiting unsupervised contact with children, appellant was found “sleeping in bed with a 7-year-old and 10-year-old nephews [sic]. He was sleeping in their bedroom. Now, originally the boys reported that he was sleeping on the dining room floor, but then through further questioning, both the boys admitted that in fact he was sleeping in their room in their bunk beds with them.” North testified that it could be seen as a positive that appellant had not been charged with molesting the boys, but that “a reasonable person would probably conclude that he was very close to molesting them, or molest was probably imminent with the boys, given his history of sleeping with boys and molesting them in the past, ” and that his doing so within two months of being released from prison indicated difficulty in controlling his behaviors. Dr. Grosso testified that the probation violation summary indicated appellant had admitted sleeping in the same bed with the two nephews and that, although he was not convicted of molesting either child, the incident reflected appellant’s lack of awareness of behaviors that could lead to reoffending as well as his failure to follow the rules of community supervision.
Defense counsel made no objection to any of this testimony on the grounds now urged; the record reflects either no objection at all, or occasional objections to a particular question on grounds such as “misstates the testimony, ” “speculation, ” “vague, ” or “asked and answered.” None of the objections in any way suggested the now-challenged testimony was inadmissible hearsay. Having failed to bring this issue to the trial court’s attention, appellant has forfeited the claim. (People v. Hartsch (2010) 49 Cal.4th 472, 510; People v. Carey (2007) 41 Cal.4th 109, 126.)
Regarding Michael, appellant complains that the experts testified about statements appellant made about Michael being mentally retarded and prone to lying, and “offered innuendos that there existed unspecified unreported or undetected crimes by appellant.” Appellant’s citations to the record are to testimony that appellant was charged with orally copulating Michael but the charge was dropped; testimony about the 1995 parole violation; and testimony that appellant admitted two offenses against Marty, but was held legally responsible for only one. Appellant provides no citations to testimony regarding statements he made about Michael. He does provide citations to points where the experts testified about the possibility appellant may have committed additional offenses—noting that appellant admitted an additional offense against Marty and suggesting that appellant might have actually molested the nephews in the incident leading to the 1995 parole violation. The defense made no objection to this testimony, however, thus forfeiting the present challenge.
In a portion of the record appellant does not cite, on cross-examination, appellant testified: “Michael and Gerald made a lot of accusations that wasn’t true, as far as like making them have sex with them, making them have sex with me, pulling a gun to their head, making them have sex with me, a lot of accusations that wasn’t true. Michael was mentally retarded. He’s basically a liar, and I told the doctors that, and that’s the truth. Gerald—whatever Michael would tell Gerald to say or do, Gerald would do.”
Appellant complains that the prosecutor used the expert’s hearsay testimony in cross-examination, again “placing it before the jury as proven facts of uncharged or undetected misconduct.” He cites two pages of the reporter’s transcript, where the prosecutor elicited Dr. Donaldson’s testimony that he did not know at the time of his evaluation that appellant had admitted more than one offense against Marty or that he had admitted molesting David. There were no objections to this testimony, which in any case related admissions by appellant.
After Dr. Donaldson testified that appellant told him he had no victims other than those in the offenses for which he was arrested, and that he was not able to talk to appellant about having molested Marty more than once because appellant had not yet admitted having done so, the prosecutor asked the witness to acknowledge that appellant’s account was not true. Defense counsel objected on grounds of speculation, the objection was overruled, and Donaldson testified that either the denial or the admission was not true.
Appellant also points to the prosecutor’s introduction of an additional unproven allegation by asking Dr. Jeko on cross-examination about a statement in her 2008 report that, in the incident with Gerald and Michael, appellant had threatened to get a gun if the boys did not comply with his sexual demands. The defense did not object, and Dr. Jeko went on to testify that she was not sure she believed this happened because she found only one reference to it in the several interviews concerning the incident.
Appellant additionally urges that the expert witnesses invaded the province of the jury by testifying that the predicate crimes qualified as sexually violent offenses under the SVPA. Dr. North was the only expert witness who so testified, stating that appellant had been convicted of oral copulation of a minor, which qualifies as a sexually violent offense “by virtue of the sexual activity and the victim’s age.” North testified that a sexual assault against a minor under the age of 14 was defined by law as a sexually violent offense and that appellant’s conviction for molesting Gerald in 1989 also qualified as a sexually violent offense. Appellant did not object to this testimony, thereby forfeiting the claim of error. In any event, there is no possibility any error in Dr. North testifying that appellant’s prior convictions were for qualifying offenses could have affected the jury’s verdict. Appellant made no suggestion at trial that the predicate offenses were not qualifying ones; his argument was that, despite his having qualifying offenses and a diagnosed mental disorder, he was not currently unable to control his behavior or likely to engage in predatory sexually violent conduct in the future. The jury was instructed that felony violations of Penal Code section 288, oral copulation of a minor under 14 years of age, and Penal Code section 288a, lewd and lascivious act upon the person of a minor under 14 years of age, are sexually violent offenses. It could not have found appellant had not been convicted of two sexually violent offenses.
Finally, appellant urges the trial court erred in refusing his request to instruct the jury pursuant to CALCRIM No. 303, which provides: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and no other.” The court did give an instruction on expert testimony, as follows: “In this case, witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. [¶] In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses in general. In addition, consider the expert’s knowledge, skill, experience, training and education, the reasons that the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. [¶] You must decide whether the information on which the expert relied was true and accurate. You may disregard any opinion if you find it unbelievable, unreasonable or unsupported by the evidence.”
Appellant contends this instruction was insufficient to inform the jury that hearsay evidence upon which the experts relied in forming their opinions was admitted for the limited purpose of showing the basis of the opinions and could not be used for any other purpose. In discussing the proposed jury instructions, the court stated, “I have 303, admission of evidence for a limited purpose, but I don’t recall that that has happened yet. Do counsel recall any evidence admitted for a limited purpose? I don’t. So I’ll probably not give that, assuming it doesn’t happen.” Defense counsel responded, “Just the facts within the police reports. It’s hearsay, but it comes in for a limited purpose.” The court replied, “Well, yeah, but that wasn’t brought up at the time. The jury wasn’t instructed at the time. This jury instruction applies to that type of evidence. That didn’t happen.”
The trial court’s comment suggests that a limiting instruction must be given at the time the subject evidence is introduced or not at all. This is not correct: Appropriate limiting instructions must be given if properly requested, but the trial court has discretion whether to give the instruction at the time the evidence is presented or subsequently. (People v. Dennis (1998) 17 Cal.4th 468, 533-534.) Here, CALCRIM No. 303 was requested by both parties in their respective proposed jury instructions. The prosecution did not press the request when the court stated its intention not to give the instruction. Defense counsel told the court the instruction applied “just” to the facts in the police reports without reference to the experts’ testimony, and did not object when the court stated it was not going to give the instruction. “Trial courts generally have no duty to instruct on the limited admissibility of evidence in the absence of a request.” (People v. Lang (1989) 49 Cal.3d 991, 1020.)
Respondent asserts that the prosecution, not the defense, requested CALCRIM No. 303. The record reflects that this instruction was included in the proposed instructions submitted by the defense as well as those submitted by the prosecution.
In any case, even if we were to assume for the sake of argument that defense counsel’s comments were sufficient to inform the court that the limiting instruction was needed with respect to the expert’s testimony as well, any error in failing to give CALCRIM No. 303 was not prejudicial. The instruction on evaluating expert testimony, as indicated above, directed the jury to determine whether the facts an expert relied upon in forming an opinion were true and accurate. This at least served to inform the jury that it was not required to accept the facts the experts related as true. More importantly, on this record, the facts of appellant’s offenses related by the experts simply were not the critical issue at trial. Appellant acknowledged having molested several of his nephews, both the victims of the predicate offenses and others. His main defenses were that his offenses were limited to his relatives and not predatory, as required by the SVPA, and that he was not likely to reoffend in the future because his offenses were long past and he had changed his life in relevant ways. Nothing in the hearsay evidence to which appellant now objects undermined these defenses.
III.
Appellant contends the prosecutor committed prejudicial misconduct by cross-examining him about irrelevant details of the predicate offenses with “indecent and prurient” questions. Appellant urges it was unnecessary for the prosecutor to elicit these details because the expert witnesses had already described the details of the offenses, and argues the method of questioning violated the “elevated standard of conduct” expected of prosecutors. (People v. Hill (1998) 17 Cal.4th 800, 819.)
“ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” (People v. Espinoza, supra, 3 Cal.4th at p. 820.)’ (People v. Samayoa (1997) 15 Cal.4th 795, 841.)” (People v. Hill, supra, 17 Cal.4th at p. 819.)
Appellant provides a number of examples of the questions he contends the prosecutor should not have asked:
“I want to know what you said and what you did to the child to be able to accomplish this.”
“I don’t know what you do. That’s why I’m asking.”
“What was your zipper doing undone?”
“How did that work out? Like how would you get Marty to come in your bed?”
“[I]s it crossing your mind that you may want to go over and check out the boys, so that you can have a little fun with them?”
“Well, let’s start from the beginning then if we can. How about Harold. Let’s start with him.”
“[W]hat was it specifically about Harold at that particular moment that caused you to want to touch him sexually?”
“How did you transition Harold” from horseplay to molestation?
“How did you get his pants off?”
“[Y]ou were sexually aroused by it, right?” Appellant had said, in response to a question whether he thought Harold was not objecting, that he was not thinking about whether Harold objected, but was “being curious... what would I get out of molesting a kid.”
“Now, was there something in particular about the physical makeup of Harold that caused you to be attracted to him?... Was it just the mere fact that he was a young boy?”
Appellant also points to the prosecutor’s questions about how he molested Harold and whether he recalled fantasizing about touching Harold, and argues that the same pattern of questioning was used with respect to each incident and each victim. Appellant then quotes his response to the prosecutor’s questions about his motivation in babysitting Marty: “My main thing was to take care of my dying dad and stay and home and do whatever else I can to help my family, because I had to be there to do that. My brothers and sisters are numerous of them. I have plenty of them. I have 52 nephews and nieces. And Marty and Harold and all of the rest of them that I babysat ain’t the first things. I have other nephews and nieces. [¶] Have I molested them all? No. Have I molested particular ones in my family? Yes. Marty was one of them. I fell in love with Marty, all right. I was intoxicated and drunk. And I was horny and I molested him, but I didn’t molest him every time he stayed at my house. And he stayed at my house many a times overnight, and I didn’t do nothing to him. But sometimes I have, once or twice in the lifetime that he’s been staying with me. That’s it. If that answers your question.”
No objection was raised to any of the specific questions appellant mentions in his brief, and he has not directed our attention to any objection to similar questioning. “ ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Berryman (1993) 6 Cal.4th 1048, 1072.)’ ([People v.] Samayoa [(1997)] 15 Cal.4th [795, ] 841.)” (People v. Hill, supra, 17 Cal.4th at p. 820.) Having failed to make any attempt to limit the prosecutor’s questioning about the details of his offenses, appellant forfeited his claim of prosecutorial misconduct.
Nor are we persuaded that the questioning amounted to prejudicial misconduct. The prosecutor was required to prove, in addition to the fact of appellant’s predicate offenses, that he suffered from a diagnosed mental disorder as a result of which he was likely to engage in sexually violent behavior in the future. (§ 6600, subd. (a)(1).) To do so, the prosecutor had to prove there was a “serious and well-founded risk” appellant would commit a “sexually violent predatory crime” against “a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.” (People v. Roberge (2003) 29 Cal.4th 979, 989;§ 6600, subd. (e).) The prosecutor’s questions about appellant’s thoughts and actions in molesting his nephews were relevant to the disputed issue of whether appellant was likely to reoffend in a predatory manner. In our view, the questions appeared designed less to elicit unnecessarily graphic details of the sex acts than to assess appellant’s state of mind in perpetrating the offenses—why he chose these victims and what he did to create the situations in which he molested them.
IV.
Appellant next contends the evidence was insufficient to demonstrate that he suffered from a qualifying mental disorder at the time of trial or that any future offense would be predatory. “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.’ ” [Citation.]’ (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) ‘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.)” (People v. Sumahit (2005)128 Cal.App.4th 347, 352.)
As was stated in People v. Munoz (2005) 129 Cal.App.4th 421, 429: “ ‘[A]n SVP extension hearing is not a review hearing.... An SVP extension hearing is a new and independent proceeding at which... the [People] must prove the [committed person] meets the [SVP] criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous.’ ” (McKee, supra, 47 Cal.4th at p. 1185, quoting People v. Munoz, at p. 429.)
Noting Dr. North’s testimony that the definition of pedophilia requires “recurrent, intense, sexually-arousing fantasies, urges or behaviors involving sexual activity with prepubescent children, ” which “persist for a minimum of six months” and “cause the individual significant distress or impairment in functioning, ” appellant urges that there was no evidence of such factors for at least 20 years. He points out that the most recent information North cited for concluding appellant lacked the ability to control his behavior was the 1995 parole violation involving sharing a bed with his nephews, and that North agreed appellant had shown “a high level of control” in that he had not been charged with a sexual offense since 1989. Dr. Grosso also testified there was no current evidence that appellant’s volitional control was impaired, noting that because appellant was currently not around children, the only available evidence was from when he was last around them. Appellant suggests the prosecution’s experts did not even agree on the distinction between pedophilia and child molestation: Dr. North testified that a pedophile has a repeated pattern of sexual activity with children, whereas a child molester might act on only one occasion and for “other reasons”; Dr. Grosso testified that the distinction was “mixing legal and psychiatric” terms, with pedophilia being “the psychiatric term” and “child molester” the “more common term, ” and Dr. Vognsen did not comment on the distinction.
Appellant portrays Grosso as having contradicted himself by first stating that it was “only ‘possible’ that a person could commit a sex crime involving a child and not fit the diagnosis for pedophilia, ” then saying a person could commit multiple sex crimes involving a child and not fit the definition of pedophilia if all the offenses were committed within six months. Appellant is apparently suggesting Grosso’s first statement should have been more definitive—that a person who committed a single sex offense against a child could never fit the diagnosis. Grosso was asked whether there was “such a thing” as a person who would commit a sex offense against a child and not fit the diagnosis of pedophilia. His response—“[t]hat’s possible”—was not inconsistent with his further statement that even with commission of several sex offenses a person would not necessarily fit the diagnosis.
The prosecution witnesses testified that pedophilia is a lifelong condition and appellant’s history of reoffending after periods of incarceration demonstrated his inability to control his behavior. The experts discussed appellant’s failure to participate meaningfully in sex offender treatment and the fact that his opportunities to reoffend had been limited by his incarceration; found his scores on actuarial tests used to predict recidivism to be in the moderate to high categories; and found deficiencies in the dynamic factors used to assess risk of recidivism. They were not persuaded by the fact that appellant had not been found to act out sexually while at the state hospital or to have committed a recent sex offense because his opportunities to reoffend had been limited by his incarceration and lack of contact with children.
As appellant stresses, his expert witness Dr. Donaldson was highly critical of the tests used and factors considered by the prosecution witnesses in formulating their opinions on appellant’s risk of future offense, and testified that there was no current evidence that appellant was unable to control his behavior. Through this testimony and the arguments of counsel, the jury was fully presented with the differing expert opinions and offered reasons to discredit the prosecution witnesses’ conclusions. The jury chose to accept the prosecution’s evidence.
Appellant is correct that the jury could find him to be a sexually violent predator only upon evidence that he currently suffered from a diagnosed mental disorder that prevents him from controlling his sexually violent behavior. (Hubbart, supra, 19 Cal.4th 1138, 1162; see People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1509 (Rasmuson).) Appellant relies upon a caution expressed in Rasmuson, which reversed a trial court’s denial of an SVP’s petition for conditional release. (Rasmuson, at p. 1491.) Rasmuson stated: “A person’s history should not be determinative of whether he or she is a danger to reoffend.... That history is static and will never change. As substantial time has passed, its reliability as a predictor of a defendant’s future behavior becomes more equivocal. If such static factors predominated in the assessment of whether an SVP should be given conditional release, a serious offender would never be released regardless of what events subsequent to his offenses revealed....” (Id. at p. 1509.)
In Rasmuson, eight mental health professionals, including staff members from the institution where the defendant was being treated, Department evaluators and a psychologist who worked for the program that would supervise the defendant on conditional release all agreed that the defendant would not present a significant danger to the community if he was conditionally released due to factors including that he was taking medication that virtually eliminated his sexual arousal and deviant fantasies, he had completed all phases of treatment at Atascadero and worked hard on relapse prevention, and he would be supervised by a program that was “virtually ‘failsafe.’ ” (Rasmuson, supra, 145 Cal.App.4th at p. 1508.) There was no evidence to the contrary, and the prosecution’s opposition to conditional release was based on the heinous nature of the defendant’s past offense and the fact that he had reoffended shortly after a release almost two decades earlier. (Ibid.)
The point appellant derives from Rasmuson, that history alone cannot be the basis of a current SVP finding, is perfectly valid. Unlike that case, however, here there was evidence in addition to appellant’s history of offending that he currently posed a danger to the community due to his pedophilia. As the prosecution experts explained, evaluation of appellant’s current situation necessarily depended on his history, as he had not been at liberty in the community in recent years. (See People v. Sumahit, supra, 128 Cal.App.4th at p. 353 [“Because he currently lacks access to children, [defendant’s] lack of outward signs of sexual deviance is not dispositive of whether he is likely to reoffend if released into society at large. Such an assessment must include consideration of his past behavior, his attitude toward treatment and other risk factors applicable to the facts of his case”].) The prosecution experts’ conclusion that appellant was currently unable to control his conduct due to his pedophilia was supported by their testimony concerning the chronic nature of the mental illness, appellant’s history of reoffending when released into the community, appellant’s failure to participate meaningfully in therapy, and their evaluation of appellant’s performance on actuarial instruments and other factors used in the field as a basis for estimating risk of reoffense. Indeed, even Dr. Jeko, one of appellant’s expert witnesses, agreed that appellant currently suffered from pedophilia and posed a moderate to moderately high risk of sexually reoffending, concluding that appellant did not meet the statutory definition of an SVP only because she viewed his offenses as incestuous rather than predatory.
Appellant also urges that the SVPA approach to commitment is “the near equivalent of using inadmissible ‘profile evidence.’ ” People v. Robbie (2001) 92 Cal.App.4th 1075, upon which appellant relies, reversed a criminal conviction for sex offenses where the trial court improperly permitted a prosecution witness to testify, in response to hypothetical questions, that the conduct the victim described was characteristic of a certain type of sex offender. Robbie explained that the problem with profile evidence is that it begins with a faulty major premise—that criminals and only criminals act in a given way—and asks the jury to conclude from that premise that because the defendant acted that way, the defendant is a criminal. (Id. at p. 1085.) Appellant asserts that in the SVPA context, the predicate crimes plus diagnosis amount to a fixed historical profile that cannot change over time. This argument ignores the role of the SVPA’s requirement of proof of current dangerousness as well as predicate offenses and a diagnosed mental disorder. As Rasmuson illustrates, an individual may have committed qualifying offenses in the past and currently suffer from a continuing mental disorder, yet lack the required current dangerousness because of progress in treatment or other factors.
Appellant also argues there was insufficient evidence any offense he committed in the future would be predatory in nature. He relies heavily on Dr. Jeko’s testimony that his offenses occurred within his large, interconnected “web” of relatives and never involved seeking out victims who were strangers. All the prosecution experts, however, testified that appellant’s offenses met the statutory definition of predatory, which includes acts “directed toward... an individual with whom a relationship has been established or promoted for the primary purpose of victimization.” (§ 6600, subd. (e).) All three testified that while appellant had a familial relationship with his victims, his conduct showed that he actively promoted relationships with them in order to molest them: He used babysitting as a means to this end, including one occasion when the mother had asked him not to; he demonstrated “grooming behavior” in establishing a big brother type relationship with Marty; as a teenager, he spent an atypical amount of time with children; he brought Harold into a private setting; and some of the boys were particularly vulnerable due to developmental delays. As appellant stresses, Dr. Jeko disagreed, viewing appellant’s offenses as incestuous because they occurred within what he considered his immediate family. Again, the competing viewpoints were fully presented to the jury through the experts’ testimony and argument of counsel. The jury accepted the prosecution witnesses’ view, and their testimony supports the verdict.
Appellant’s sufficiency of the evidence argument asks us to accept his experts’ testimony and reject that of the prosecution experts, relying upon Dr. Donaldson’s critique of the prosecution experts’ methods and conclusions and citing research that supports Donaldson’s view and undermines the prosecution testimony. Appellant also asks us to reject the prosecution experts’ opinions as “faulty, ” citing literature critical of the value of “expert” opinions in clinical contexts. The jury was instructed to consider the experts’ “knowledge, skill, experience, training and education, ” the reasons given for an opinion, and facts or information relied upon in reaching it in evaluating the “believability” of the witness. As discussed above, the defense case presented critiques of the methods used by the prosecution experts and asked the jury to reject those experts’ conclusions. The jury was not required to accept these challenges to the basis of the experts’ opinions and appellant has given us no basis to do so as a matter of law.
V.
Appellant next contends that the statutory definition of “predatory” as including an act directed toward “an individual with whom a relationship has been established or promoted for the primary purpose of victimization” is void for vagueness. He argues that the term “promoted” is overly vague, does not provide adequate notice of what is prohibited and, as applied in this case, violates his right to due process of law.
The vagueness doctrine “ ‘bars enforcement of “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” ’ ” (United States v. Lanier [(1997)] 520 U.S. 259, 266, quoting Connally v. General Construction Co. (1926) 269 U.S. 385, 391; Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [“No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes”].)... ‘Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.’ (Chicago v. Morales (1999) 527 U.S. 41, 56.)” (People v. Castenada (2000) 23 Cal.4th 743, 751.) There is a “ ‘strong presumption that legislative enactments “must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute... cannot be held void for uncertainty if any reasonable and practical construction can be given to its language.” ’ (Walker v. Superior Court (1988) 47 Cal.3d 112, 143.)” (People v. Morgan (2007) 42 Cal.4th 593, 605.)
Appellant contends that the expert witnesses “never defined what they meant” when they testified that appellant “promoted” the relationship with his nephews, “leaving that term to innuendo and inference.” Since his victims were nephews with whom he had a preexisting relationship, he questions how it could be possible to determine that he “promoted” his relationship with them. He further argues that the SVPA does not say whether a family relationship, as opposed to one with a stranger, “qualifies.”
“In common usage, ‘promote’ means to contribute to the progress or growth of....” (People v. Ngoun (2001) 88 Cal.App.4th 432, 436, citing Webster’s New College Dict. (1995) p. 885.) Contrary to appellant’s assertion, all of the prosecution experts explained what they meant by testifying that appellant promoted the relationship with his nephews within the meaning of the SVPA. As explained above, all described the behavior by which they believed appellant groomed his victims, fostered relationships and created situations in which he could molest them. The experts testified that, although appellant had a preexisting relationship with the boys by virtue of their family ties, appellant actively engaged in conduct designed to facilitate the molestation. We fail to see how this testimony left uncertain what they meant by testifying that appellant promoted the relationships for the primary purpose of victimization.
Nor is the statute ambiguous as to whether the “promoted” relationship can be with a family member. Section 6600, subdivision (e), defines “predatory” as an act “directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.” The use of the disjunctive in the definition creates different categories of victims: An act can be predatory if it is committed against a stranger or casual acquaintance without proof that the offender “established or promoted” a relationship with the victim or an act can be predatory if committed against someone with whom the offender has more than a casual relationship if the offender “established or promoted” a relationship with the victim for the “primary purpose of victimization.” The statute cannot be read as requiring that the victim be a stranger. It does not refer to intrafamily relationships one way or another. By failing to exclude family relationships, the statutory definition includes them if the offender “promoted” the relationship for the requisite purpose.
Appellant asks what an uncle with a preexisting relationship with his nephews would have to do to “promote” the family tie. The issue is not simply promoting the family tie; it is promoting the family tie “for the primary purpose of victimization.” The prosecution witnesses answered appellant’s question: The evidence that appellant promoted his relationship with his victims for the primary purpose of molesting them, as the experts described, is that he engaged in grooming behavior by developing a big brother type relationship with one nephew, brought another into a private space, and used babysitting to create the opportunity for molestation. It was the jury’s task to determine whether appellant in fact acted to develop relationships with the boys for the primary purpose of molesting the boys, or only acted within the preexisting contours of his familial relationship with them. That the evidence might be susceptible of more than one interpretation does not render the statutory definition unconstitutionally vague.
VI.
Prior to trial, appellant sought dismissal of the petition on the ground that the evaluations leading to filing of the petition were conducted pursuant to illegally adopted underground regulations. His motion was denied. Appellant now contends his commitment is unlawful because, as a result of the evaluations being conducted pursuant to underground regulations, the trial court lacked jurisdiction to act on the petition for commitment.
Under the SVPA, after initial screening identifies an individual as likely to be an SVP, the individual must be “subjected to a ‘full evaluation’ by the Department, conducted ‘in accordance with a standardized assessment protocol, developed and updated by’ the Department. (§ 6601, subds. (b), (c).) The protocol ‘shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders.’ (§ 6601, subd. (c).) If, as a result of the full evaluation under section 6601, subdivision (c), two mental health professionals conclude that the person qualifies as an SVP, the Department must request the responsible county to file a commitment petition. (§ 6601, subds. (d), (h).) The person is thereafter entitled to a jury trial on the commitment petition. (§6603, subd. (a).)” (People v. Medina (2009) 171 Cal.App.4th 805, 812 (Medina).) A petition for recommitment must be preceded by the same type of evaluations as required for an initial commitment. (Ibid.;People v. Superior Court (Ghilotti), supra, 27 Cal.4th 888, 906.)
“The [Administrative Procedure Act (APA)] requires every administrative agency guideline that qualifies as a ‘regulation, ’ as defined by the APA, to be adopted according to specific procedures. (Gov. Code, § 11340.5, subds. (a), (b).)” (Medina, supra, 171 Cal.App.4th at p. 813.) “A regulation found not to have been properly adopted is termed an ‘underground regulation.’ ” (Ibid.) In 2008, the Office of Administrative Law (OAL), pursuant to its charge of enforcing the requirements of the APA, determined that various provisions of the Department’s assessment protocol, the “Clinical Evaluator Handbook and Standardized Assessment Protocol (2007), ” were regulations that should have been adopted pursuant to the APA and, therefore, that the protocol was an invalid “underground regulation.” (In re Ronje (2009) 179 Cal.App.4th 509, 515; Medina, at p. 814.) “An OAL determination that a particular guideline constitutes an underground regulation is not binding on the courts, but it is entitled to deference.” (Medina, at p. 814.)
Appellant contends that because the evaluations that led to the filing of the recommitment petition were conducted pursuant to the 2007 protocol, the trial court lacked fundamental jurisdiction. As he recognizes, caselaw is to the contrary.
The evaluations required by section 6601 are a procedural prerequisite to filing a commitment petition under the SVPA. “Only if two mental health professionals, applying the assessment protocol, agree that the person fulfills the criteria for an SVP does the Department request the filing of a petition. (§ 6601, subds. (d)-(h); see People v. Superior Court (Ghilotti)[, supra, ] 27 Cal.4th [at p.] 906.) The purpose of this evaluation is not to identify SVP’s but, rather, to screen out those who are not SVP’s. ‘The Legislature has imposed procedural safeguards to prevent meritless petitions from reaching trial. “[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.” ’ (People v. Scott (2002) 100 Cal.App.4th 1060, 1063.) The legal determination that a particular person is an SVP is made during the subsequent judicial proceedings, rather than during the screening process. (Ibid.)” (Medina, supra, 171 Cal.App.4th at p. 814.)
“The term ‘jurisdictional in the fundamental sense’ means the ‘legal power to hear and determine a cause.’ ([People v.] Pompa-Ortiz [(1980)] 27 Cal.3d [519, ] 529.) ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) [¶]... Use of the evaluations based on the invalid assessment protocol, though erroneous, does not deprive the trial court of fundamental jurisdiction over the SVPA commitment petition. The trial court has the power to hear the petition notwithstanding the error in using the invalid assessment protocol.” (In re Ronje, supra, 179 Cal.App.4th at p. 518; see Medina, supra, 179 Cal.App.4th at p. 816.)
Under People v. Pompa-Ortiz, supra, 27 Cal.3d 519, 529, “illegalities in criminal preliminary hearings that are not ‘jurisdictional in the fundamental sense’ are not reversible per se on an appeal following the subsequent trial. Rather, such illegalities must be reviewed ‘under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.’ ” (In re Ronje, supra, 179 Cal.App.4th at p. 517.) Pompa-Ortiz “has been regularly applied in SVPA appeals.” (Medina, supra, 171 Cal.App.4th at pp. 818-819; People v. Butler (1998) 68 Cal.App.4th 421, 435.) “Under Pompa-Ortiz, ‘[t]he 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.” ([People v.] Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) ‘In other words, a defendant who feels he has suffered error at his preliminary hearing can seek to correct that error by filing a pretrial writ petition. If he does not, and elects to go to trial, the error at the preliminary hearing can only lead to reversal of the conviction if the error created actual prejudice.’ (People v. Hayes (2006) 137 Cal.App.4th 34, 50.)” (In re Ronje, supra, 179 Cal.App.4th at p. 517.)
In Ronje, the defendant challenged the evaluations leading to his commitment before trial through a petition for writ of habeas corpus and was entitled to relief without showing prejudice. (In re Ronje, supra, 179 Cal.App.4th at p. 518.) Here, appellant sought dismissal of the petition based on the impropriety of the evaluations, but did not seek review of the trial court’s denial of his motion. He is entitled to relief only upon a showing of prejudice.
Appellant argues that he was prejudiced because the underground regulations “set the framework for a psychological evaluation process that logically extended through to the trial on the merits, given that the same experts were involved and had reached their original conclusions based on the flawed regulations.” Without pointing to any specific deficiency in the regulations or explaining how the noncompliance with the APA created a risk of erroneous evaluation, appellant urges that “cognitive dissonance” makes it unlikely an expert who publicizes a conclusion will subsequently admit error and retreat from it, and that “common sense suggests that an incorrect clinical instruction manual will produce bad results” and “once those results are secured in place, they remain fastened permanently.”
This is not sufficient. The challenged evaluations, as we have said, were part of a procedural process “ ‘ “designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.” ’ ” (People v. Medina, supra, 171 Cal.App.4th at p. 814; People v. Scott, supra, 100 Cal.App.4th at p. 1063.) The OAL decision that the Department’s protocol was an underground regulation was a determination that the protocol should have been, but was not, adopted pursuant to the requirements of the APA; it explicitly disavowed any conclusion on the “underlying policy issues involved in the subject of [its] determination.” (2008 OAL Determination No. 19.) Appellant has demonstrated no actual deficiency in the protocol that would undermine the validity of an expert opinion formed in reliance upon it. Moreover, appellant’s commitment was based not on the evaluations but on the jury’s determination at a full trial. The jury heard testimony from five expert witnesses, whose opinions and methods were challenged on cross-examination, as well as from appellant, and concluded beyond a reasonable doubt that appellant was a sexually violent predator. We find no prejudice.
This conclusion makes it unnecessary for us to address respondent’s argument that the OAL was incorrect in finding the protocol to be an underground regulation.
VII.
Appellant raises several additional constitutional challenges to the SVPA: He argues that the SVPA violates his federal due process rights by placing the burden on him to show by a preponderance of the evidence that he is no longer an SVP in order to obtain release (§ 6608, subd. (i)), rather than requiring the prosecution to prove he remains an SVP by clear and convincing evidence at periodic review hearings; that the SVPA violates the prohibition against ex post facto laws due to the punitive purpose demonstrated by the provisions for indefinite commitment; and that the SVPA violates his right to equal protection by treating him significantly less favorably than similarly situated individuals who are civilly committed under other statutes.
As appellant recognizes, his due process and ex post facto challenges were squarely rejected in McKee, supra, 47 Cal.4th at pages 1188-1195. Appellant pursues them here to exhaust his appellate remedies. We, of course, adhere to McKee.
With respect to the equal protection challenge, McKee concluded that SVP’s are similarly situated to other classes of individuals who are involuntarily committed to protect the public, mentally disordered offenders (MDO’s) and those found not guilty by reason of insanity (NGI’s), and that SVP’s bear a greater burden in obtaining release from commitment than MDO’s and NGI’s. (McKee, supra, 47Cal.4th at pp. 1203, 1207-1208.) The Court stated that the difference in treatment raised a “substantial equal protection question that calls for some justification by the People” that the People had not yet answered. (Id. at pp. 1203, 1207-1208.) McKee remanded the case to give the prosecution the opportunity to demonstrate that SVP’s “as a class bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society.” (Id. at p. 1208.)
After deciding McKee, the Supreme Court transferred a number of cases raising similar equal protection challenges that were on “grant and hold” to the Courts of Appeal for reconsideration in light of McKee. Pursuant to the directions in a number of those cases, we will remand this case to the trial court for consideration of appellant’s equal protection claim in light of McKee, with directions to suspend further proceedings pending finality of the proceedings in McKee.
In many of the cases transferred to the Courts of Appeal, the Supreme Court ordered: “In order to avoid an unnecessary multiplicity of proceedings, the court is additionally directed to suspend further proceedings pending finality of the proceedings on remand in McKee (see McKee, supra, 47 Cal.4th at pp. 1208-1210), including any proceeding in the Superior Court of San Diego County in which McKee may be consolidated with related matters. ‘Finality of the proceedings’ shall include the finality of any subsequent appeal and any proceedings in this court.” (People v. Riffey (S164711) May 20, 2010 [163 Cal.App.4th 474, rev. gr. Aug. 20, 2008]; see, e.g., People v. Johnson (S164388) May 20, 2010 [162 Cal.App.4th 1263, rev. gr. Aug. 13, 2008]; People v. Garcia (S166682) May 20, 2010 [165 Cal.App.4th 1120, rev. gr. Oct. 16, 2008].)
DISPOSITION
The case is remanded to the trial court for consideration of defendant’s equal protection claim in light of McKee. The trial court is directed to suspend further proceedings pending finality of the proceedings in McKee, supra, 47 Cal.4th at pages 1208-1210, including any proceeding in the San Diego County Superior Court in which McKee may be consolidated with related matters. “Finality of the proceedings” 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: Lambden, J., Richman, J.