Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CV403891
NEEDHAM, J.
Ava Zinlu (Zinlu) appeals from a judgment extending his involuntary commitment in a state mental hospital under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA). Zinlu contends: (1) the SVPA’s standard for commitment (particularly if established by use of the Static 99 test) violates his due process rights, because it fails to account adequately for his age; (2) his due process rights were violated by an amendment to the SVPA permitting commitment for an indefinite term; (3) he was deprived of a fair trial because the court permitted expert witnesses to testify about details of his crimes and other behavior which, in the experts’ view, supported their opinions; (4) his recommitment constituted cruel and unusual punishment; and (5) he was deprived of equal protection under the laws. Zinlu’s arguments have no merit, and we will affirm the judgment.
Except where otherwise indicated, all statutory references are to the Welfare and Institutions Code.
I. FACTS AND PROCEDURAL HISTORY
A. Background
In February 1998, a petition alleging that Zinlu was a sexually violent predator was filed in San Mateo County Superior Court. As set forth in the petition, Zinlu had been convicted of two violent sex crimes qualifying as predicate offenses under the SVPA, and he suffered from a mental disorder rendering him eligible for involuntary commitment for treatment. The trial court found probable cause and remanded him to the custody of Atascadero State Hospital pending trial.
Zinlu admitted the allegations of the petition. By order filed on August 7, 2001, the trial court found that he was a sexually violent predator within the meaning of former section 6600 and committed him for an initial two-year term of treatment (expiring August 9, 2003).
Section 6600 was amended effective September 20, 2006. (Stats. 2006, ch. 337, § 53.)
A petition to extend the commitment to August 9, 2005, was filed in May 2003. Trial on the petition commenced in August 2004, but the jury was unable to reach a verdict and a mistrial was declared. In a new trial, the jury found the allegations of the petition to be true. Zinlu was committed for an additional two-year period.
B. Most Recent Petition to Extend Commitment
A petition to extend Zinlu’s commitment for another two-year term was filed on June 9, 2005, alleging the commitment period was expiring on August 9, 2005, and seeking an extension to August 9, 2007. Both parties waived a probable cause hearing. A jury trial was held in January 2006, but the jury deadlocked and the court declared a mistrial. Retrial commenced on May 30, 2006.
1. Prosecution’s Evidence at the Retrial
The prosecution presented the opinions of three expert witnesses that Zinlu was a sexually violent predator within the meaning of the SVPA, including that he suffered from a mental disorder creating a high risk that he would reoffend if released.
Psychologist Jeffrey Davis explained that an individual qualifies as a sexually violent predator if (1) he was convicted of two qualifying crimes; (2) he has a qualifying mental disorder; and (3) the mental disorder makes it likely that he will commit criminal sexual acts to an extent that he is a menace to others.
As to the qualifying crimes, Dr. Davis described Zinlu’s convictions for forcible sodomies in 1978 and 1982. The 1978 conviction arose after Zinlu instructed a 17-year-old hitchhiker to pull his pants down to his knees and then sodomized him, armed with a bayonet, commenting on how good it felt. The 1982 conviction was based on an incident when Zinlu was in jail, in which he told his 18-year-old cellmate to accompany him to the shower, he struck the victim in the face, another cellmate held a shank to the victim’s throat, and Zinlu and yet another cellmate sodomized him.
As to Zinlu’s mental disorders, Dr. Davis opined that Zinlu suffered from paraphilia, not otherwise defined, with a target of nonconsenting partners. Paraphilia is characterized by recurrent and intense sexual fantasies, urges, or behaviors toward nonconsenting persons, for at least six months. Dr. Davis also testified that Zinlu suffered from polysubstance dependence, with institutional remission. In addition, Dr. Davis diagnosed Zinlu with anti-social personality disorder (APD), which is a pattern of disregard for and violation of the rights of others, characterized by deceit and aggressiveness, commencing before the age of 15. Dr. Davis based this diagnosis on reports that Zinlu was expelled from school before he was 15 for fighting, swearing, and spitting at teachers, stole money from his parents, failed seventh grade three times, and was committed to a juvenile facility for vandalism and burglary.
Also contributing to Dr. Davis’s diagnoses was Zinlu’s arrest record (including a 1970 burglary, a 1971 burglary, a 1972 assault conviction, the August 1978 sodomy of the hitchhiker, the kidnapping of his stepsister in August 1982 after instructing her to tape her wrists and ankles together and pulling down her pants and panties while telling her he was going to rape her, and the November 1982 sodomy of his cellmate), a rules violation Zinlu committed while in prison in 1985 (in which his cellmate said he struck Zinlu in self-defense for trying to rape him), and his absconding from parole two days after a release from prison.
As to assessing the risk that Zinlu would reoffend, Dr. Davis considered both static (unchanging) risk factors and dynamic (changing) risk factors. He measured static factors by actuarial tests, such as the Static 99 test. Zinlu’s Static 99 score indicated that he had a 39 percent risk of reoffense in five years, a 45 percent risk in 10 years, and a 52 percent risk in 15 years. Zinlu’s score on another actuarial test also indicated a high risk for reoffense.
Dr. Davis considered other factors in assessing the risk of Zinlu reoffending. Indeed, the diagnosis of paraphilia and APD, as two factors of sexual deviance, were the two major components of Dr. Davis’s conclusion that Zinlu was a high risk to reoffend. He based his view that Zinlu had paraphilia and a high degree of sexual deviance on a 1986 Department of Corrections report that Zinlu wanted his genitals cut off because he had uncontrollable urges to masturbate, a report stating that he masturbated up to 16 times a day, and a 1978 Santa Barbara County probation report recording Zinlu’s statements that he enjoyed urinating on women, beat up the boyfriends of bisexual women to capture the women like a “bull elk,” and burned off the tattoo of a woman’s boyfriend’s name with a cigarette. The Santa Barbara probation report also referred to Zinlu’s statements that he had worked as a prostitute and patronized “soft clubs,” which are darkened rooms where people exchange blows. In addition, Zinlu expressed that he obtained sexual gratification from burning himself with cigarettes; several healed scars confirmed his statement. In an interview Dr. Davis conducted with Zinlu in May 2006, Zinlu denied his criminal history except for the 1978 offense. Dr. Davis also found that Zinlu has psychopathy, which further increased his likelihood of reoffense.
Dr. Davis acknowledged that Zinlu’s advanced age (of 54) lowered his risk of reoffending, but not enough to outweigh the other factors that increased the risk, including Zinlu’s APD, his psychopathy, his unwillingness to obey the law as shown by his parole violation, and the fact that he was a loner and had no history of intimacy. Dr. Davis also noted that Zinlu had no “protective” factors, such as the completion of a treatment program or history of being offense-free in the community for five years. By way of conclusion, Dr. Davis opined that Zinlu was at a high risk of reoffense.
Psychologist Jack Vognsen testified about Zinlu’s two qualifying offenses, his offense against his stepsister, and the 1985 incident where his cellmate alleged that Zinlu had tried to rape him. Dr. Vognsen also considered Zinlu’s request in 1992 to be transferred from a prison cell where he and his cellmate had repeatedly engaged in oral and anal sex. Dr. Vognsen diagnosed Zinlu with paraphilia, with attraction to sex with nonconsenting victims, APD, and polysubstance abuse. Those conditions together, he opined, are signs of a dangerous person.
In assessing the risk of reoffense, Dr. Vognsen considered Zinlu’s results on the Static 99 and RRASOR (Risk Assessment of Sexual Offense Recidivism) tests, as well as other factors. Zinlu scored in the high risk category on both tests. The other factors included Zinlu’s sexually deviant interests, no history of stable work experience or stable relationships, and no history of sex therapy or anger therapy. Zinlu also suffered from psychopathy which, along with APD and deviant sexual interests, increased the risk of reoffense. Furthermore, Dr. Vognsen opined, Zinlu displayed none of the protective factors that could lessen the risk. In regard to Zinlu’s age, Dr. Vognsen noted the authority indicating that paraphilia tends to decline with age, but added that the risk of reoffending did not decrease in a high risk offender such as Zinlu, and studies have shown that the risk continues until the age of 60.
The prosecution’s third expert witness, Dr. Douglas Korpi, also diagnosed Zinlu with paraphilia, APD, and substance abuse. He testified that three primary factors affected the likelihood of reoffense: degree of sexual deviance, degree of anti-social orientation, and dynamic factors reflected in any changes since the last offense. The Static 99 evaluation found Zinlu to be in the high risk category, and Zinlu had a high score on a psychopathy checklist as well. As to dynamic risk factors, Dr. Korpi testified that Zinlu’s age and physical maladies lowered the risk of offense. Nonetheless, Dr. Korpi opined, Zinlu was still a sexually violent predator because there was a moderately high risk that he would reoffend in a predatory fashion. Dr. Korpi acknowledged that Zinlu’s risk was diminishing with age, and he would change his opinion of Zinlu’s risk of reoffense if Zinlu underwent treatment or turned 60.
The jury was read a stipulation in which the parties agreed that Zinlu was convicted of sexually violent offenses under the definition of former section 6600 in 1978 and 1982.
2. Defense Case
On behalf of Zinlu’s defense, psychologist John Hupka testified that Zinlu was not a sexually violent predator, because his mental disorder did not qualify under the SVPA and he was not likely to reoffend. Specifically, Dr. Hupka concluded that Zinlu did not have paraphilia, although he acknowledged that Zinlu had a very high score on the psychopathy checklist and might have APD. He also gave Zinlu a very high score on the Static 99, but opined that Static 99 risk predictions did not apply to a 54-year-old such as Zinlu.
Michael Ross, a psychiatric technician at Atascadero State Hospital, testified that he had never seen Zinlu engaged in any sexual behavior.
3. Jury’s Finding and Order Extending Commitment
The jury found the allegations of the petition to be true, and the trial court extended Zinlu’s term of commitment for an additional two-year term.
This appeal followed.
II. DISCUSSION
The SVPA provides for the civil commitment of sexually violent predators to a state mental institution after their term of imprisonment. (Former § 6604.) At the time of Zinlu’s trial, sexually violent predator (SVP) was defined as “a person who has been convicted of a sexually violent offense against two or more victims [i.e. predicate offenses] 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 [i.e. likely to reoffend]” if released. (Former § 6600, subd. (a)(1); People v. Williams (2003) 31 Cal.4th 757, 764.) At the time of the recommitment order in this case, commitments were made for two-year terms. (Former § 6604.) By an amendment effective later in 2006, section 6604 now provides for indeterminate terms of commitment. (§ 6604, see Stats. 2006, ch. 337, § 55.)
The process usually begins when the Department of Corrections determines that an inmate approaching release may be a sexually violent predator, and refers him to the Department of Mental Health (DMH) for evaluation by two psychologists or psychiatrists. If the evaluators agree that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the DMH forwards a request for civil commitment to the county to file a petition for commitment in superior court. (Former § 6600, subds. (a)(1), (b), (d).) After a probable cause hearing, a trial is conducted to determine whether the defendant is a sexually violent predator under former section 6600, subdivision (a). (Former §§ 6602, 6604.) Both the defendant and the People have the right to trial by jury. (Former § 6603, subd. (a).) If the defendant is found to meet the statutory criteria for a SVP, he is committed to DMH custody for treatment and confinement. (Former § 6604; see generally Hubbart v. Superior Court (1999) 19 Cal.4th 1138.)
As mentioned, Zinlu contends: (1) the “likely to reoffend” standard for SVPA commitments violates Zinlu’s due process rights because it guarantees his lifelong forced hospitalization; (2) the new SVPA provision for indefinite terms of commitment violates procedural and substantive due process; (3) Zinlu was denied a fair trial by the admission of details about his predicate offenses and other incidents; (4) the SVPA as applied to Zinlu constitutes cruel and unusual punishment; and (5) Zinlu has been deprived of his right to equal protection under the law. We address each contention in turn.
A. Commitment Standard and the Static 99 Test
To obtain or extend an involuntary commitment under the SVPA, the prosecution must prove beyond a reasonable doubt that the individual is likely to reoffend if released, in that he has a mental disorder making it likely that he would engage in sexually violent behavior. (Former §§ 6600, subd. (a)(1), 6604.) This standard is met if, as the result of a current mental disorder that makes it difficult or impossible for the person to refrain from violent sexual behavior, he or she presents “a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody.” (People v. Roberge (2003) 29 Cal.4th 979, 988 [§ 6600, subd. (a)(1)], italics in original; see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 916 [§ 6601, subd. (d)].)
Zinlu contends that the use of the Static 99 test to prove that he was likely to reoffend violates his due process rights, because it does not account for the dynamic factor of his age. As time passes, he argues, his age makes it less likely that he will reoffend, and the static factors measured by the Static 99 become less reliable in predicting his future behavior. For this proposition Zinlu relies on the following passage in People v. Rasmuson (2006) 145 Cal.App.4th 1487 (Rasmuson): “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 . . . .” (Rasmuson, supra, at p. 1509.)
In the relevant section heading of his opening brief, Zinlu contends that “[t]he ‘likely to reoffend’ standard offends substantive due process in [Zinlu’s] case in that it guarantees his lifelong forced hospitalization absent meaningful review standards or clear standards governing release for aged patients.” (Italics added, capitalization omitted.) He presents no authority or argument relevant to this contention. Instead, the argument in the text of his brief is that it is improper to rely on the Static 99 test results, or to rely unduly on static factors, in evaluating whether an aged offender like Zinlu is likely to reoffend.
Zinlu’s argument has no merit in the context of this case. It is well-established that an expert may consider static factors and use tests such as the Static 99—if also considering dynamic factors—to support the expert’s opinion that an individual is likely to reoffend. (See, e.g., People v. Flores (2006) 144 Cal.App.4th 625, 629-633 (Flores) [Static 99 test results and consideration of other factors, including the dynamic factor of postoffense castration, provided substantial evidence that defendant was likely to reoffend]; People v. Therrian (2003) 113 Cal.App.4th 609, 616 (Therrian) [where experts testified that they considered factors beside the Static 99 test results in forming their opinion that defendant was likely to reoffend, no reasonable juror would conclude that the test results constituted infallible truth as to the likelihood of reoffense]; see also Cooley v. Superior Court (2002) 29 Cal.4th 228, 258-260 (Cooley) [substantial evidence supported the trial court’s conclusion that the prosecution failed to establish probable cause under the SVPA, where one prosecution expert relied solely on the Static 99, the other lacked command of the statistical information and relied almost completely on the Static 99, and the defendant’s witnesses were more credible].)
Zinlu points out that Flores and Therrian did not deal directly with age as a dynamic factor. But Zinlu does not establish that the dynamic factor of age should be treated differently from other dynamic factors which, if considered, appropriately supplement the use of the Static 99 test.
Rasmuson, on which Zinlu relies, is by no means to the contrary. There, a defendant who had been committed under the SVPA petitioned for his conditional release under section 6608. (Rasmuson, supra, 145 Cal.App.4th at p. 1491.) The defendant presented the testimony of eight mental health professionals, all of whom agreed that he would not be a significant danger to the community if released and that he did not present a serious and well-founded risk of reoffending. (Id. at pp. 1492-1499, 1508.) The prosecution “failed to present a scintilla of evidence” to the contrary: one expressed no opinion on the issue and the other conceded he would not object to a court-ordered conditional release. (Id. at pp. 1499-1500, 1508-1509.) The trial court nonetheless denied the defendant’s petition on the ground that he failed to prove it unlikely he would reoffend if released, without making any findings of fact or giving any indication why it chose to reject the testimony of the expert witnesses. (Id. at pp. 1500-1501, 1509.)
The Court of Appeal reversed, concluding that the trial court’s order was not supported by substantial evidence. (Rasmuson, supra, 145 Cal.App.4th at pp. 1509-1510.) Although the prosecution emphasized that the defendant’s crimes were heinous, the Court of Appeal observed that those offenses in themselves were insufficient, since they occurred two decades earlier. (Id. at pp. 1500, 1509.) It was in this regard that the court observed that a “person’s history should not be determinative of whether he or she is a danger to reoffend.” (Id. at p. 1509, italics added.)
Rasmuson is consistent with Flores, Therrian, and Cooley in its conclusion that more than static factors must be considered in evaluating the defendant’s likelihood of reoffending. Rasmuson reached a different outcome, however, because its facts were distinguishable from Flores, Therrian, and the matter at hand. All of the psychological experts who proferred an opinion in Rasmuson supported the defendant’s case, with none opining that he was likely to reoffend. Here, by contrast, all three prosecution experts expressly found that Zinlu was likely to reoffend within the meaning of the SVPA, based on both static and dynamic factors. Thus, there was no substantial evidence supporting the trial court’s ruling in Rasmuson, while there is ample supporting evidence in the matter before us.
Each of the prosecution’s experts in this case used the Static 99 test as just one part of their evaluation of Zinlu’s risk of reoffending. They also considered other factors, including the dynamic factor of Zinlu’s age. For example, in finding Zinlu likely to reoffend, Dr. Vognsen testified that Zinlu scored “close to as high as you can” on the RRASOR static test and scored very high on the Static 99 test, indicating a 32.7 percent risk of reoffense in five years and a 48.6 percent risk of reoffense in 10 years. But he also based his conclusion on other factors, including Zinlu’s paraphilia, APD, polysubstance abuse, and very high score on the psychopathy scale, which, with his deviant sexual interests, increased the risk of reoffense. In addition, Dr. Vognsen considered protective factors that could lessen the risk indicated by the Static 99 test (five years in the community with no offense, old age or poor health, and successful completion of a treatment program) but found that none of them applied to Zinlu. Specifically as to the dynamic factor of age, Dr. Vognsen opined that the average sex offender’s risk of reoffense may decline with age, but the risk continues until the age of 60, particularly with a high-risk sex offender such as Zinlu.
Psychologist Davis also scored Zinlu in the high risk category on the Static 99 test, but he too went beyond the baseline risk shown by that test and other actuarial instruments, and looked at other factors such as Zinlu’s paraphilia, polysubstance dependence, APD, psychopathy, degree of sexual deviancy, violation of parole, being a loner, and absence of any history of intimacy. Dr. Davis acknowledged that age can lower the risk of reoffending, and that Zinlu’s long-range risk was lower than what the static test would estimate due to his age. Considering all of the static and dynamic factors, however, it remained Dr. Davis’s opinion that Zinlu, although approaching 55 years old, was likely to reoffend due to his mental disorder.
Psychologist Korpi also addressed dynamic as well as static risk factors, stating that age lowered Zinlu’s risk and that individuals over 60 years old do not reoffend. He nonetheless concluded, considering all relevant factors together, that “this man is at least moderate high risk to re-offend . . . in a sexually violent predatory fashion.”
Akin to the experts in Flores and Therrian, the experts in this matter relied on far more than the Static 99 test in concluding that Zinlu was a high risk to reoffend if released. There is no indication that the trier of fact relied exclusively, or predominantly, on the Static 99 factors without consideration of dynamic factors such as Zinlu’s age. (Therrian, supra, 113 Cal.App.4th at p. 616.) Put another way, substantial evidence supports the jury’s finding that Zinlu was likely to reoffend within the meaning of the SVPA. (Flores, supra, 144 Cal.App.4th at pp. 629-633.)
Zinlu’s arguments to the contrary are unpersuasive. He notes that Davis, Vognsen, and Korpi all recognized that recidivism declined with age, but criticizes them for concluding that Zinlu, at his age at the time of the hearing, was nonetheless likely to reoffend. But this determination was a matter for the jury, which also heard Zinlu’s expert explain the limits of the Static 99 test, contend the results could not be applied to someone of Zinlu’s age, and opine that Zinlu was not likely to reoffend. The jury was persuaded by the prosecution’s experts, whose opinions were supported by substantial evidence. The fact that Zinlu disagrees with their opinions does not mean that they were unworthy of the jury’s consideration, that the jury’s verdict was unwarranted, or that his due process rights were violated.
Zinlu also claims that the use of the Static 99 test guarantees that he will never be released. This is plainly untrue. Even with the ongoing use of the Static 99 test, the continued consideration of the dynamic factor of Zinlu’s age and other factors might tip the scale in his favor and lead the trier of fact (or even the experts) in a future commitment proceeding to conclude that he is no longer likely to reoffend. As Dr. Korpi testified, “When he gets to be 60, I’ll probably have a difficult time up here saying he is going to do it again.”
Lastly, Zinlu argues that the use of the Static 99 in his case is similar to the use of “traditionally inadmissible ‘profile evidence,’” in which “the state also uses an expert employing a hypothetical situation to brand the accused, despite a weak logical link between the profile and the specific offender.” Zinlu cites to People v. Robbie (2001) 92 Cal.App.4th 1075 (Robbie), stating that “profile” evidence is disfavored and the trial court in Robbie abused its discretion in admitting it. (Id. at pp. 1084-1087.) Robbie is inapposite to the matter at hand. There, an expert testified that the defendant’s actions fit the profile of a rapist, which was used to argue that the defendant must therefore be guilty of the crime. (Id. at pp. 1082-1085.) Robbie was only concerned with the use of profile evidence to prove guilt, and it did not address the use of expert opinion testimony predicting future dangerousness for purposes of a SVPA commitment.
B. New SVPA Statutory Scheme of Indefinite Commitment
Effective September 2006, the SVPA was amended to provide that a sexually violent predator may be committed to the custody of the Department of Mental Health for appropriate treatment and confinement for an indeterminate term, rather than for a two-year term. (§ 6604.) In hyperbole typical of his briefs, Zinlu insists: “In one fell swoop, the procedural devices that have justified post-conviction extended confinement have been eliminated.” Zinlu contends that the provision permitting an indefinite commitment violates his procedural and substantive due process rights, because it guarantees his lifelong forced hospitalization.
This amendment to section 6604, however, did not become effective until September 20, 2006. (Stats 2006, ch. 337, § 55, eff. Sept. 20, 2006.) Because the June 2006 order recommitting Zinlu was issued about three months before the effective date of the amendment, and extended Zinlu’s commitment for a two-year period rather than for an indeterminate term, the amendment is irrelevant to the order from which Zinlu appealed.
Undaunted, Zinlu reiterates in his reply brief that all procedural devices to which he was entitled have been eliminated and he will “likely” never get staff permission to seek judicial review “in the future.” “[Zinlu] requests that the issue be considered as he will have no effective alternative avenue in which to raise the claim and the law explicitly applies to him now. It is not a moot point and is one that is of significant public interest that affects all persons incarcerated by the SVPA.”
Zinlu is incorrect on all points. He will have an effective means of raising his arguments if he is ever committed to an indeterminate term under the amended statute, by appeal from that order. Furthermore, the question here is not mootness, but whether the amendment contributed to some harm arising from the order now on appeal. Since he was not sentenced under the amendment and was not committed for an indeterminate term, he fails to demonstrate any such harm.
C. Evidence of Predicate Offenses and Other Crimes
Zinlu next contends that he was denied a fair trial by the admission of evidence concerning his predicate offenses and other crimes and behavior. We review the trial court’s evidentiary rulings for an abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236.)
1. Whether Experts Were Improperly Permitted To Testify
Zinlu first notes that the jury was read a stipulation in which Zinlu conceded his convictions for sexually violent offenses against different victims in 1978 and 1982. He argues that this stipulation should have precluded the experts from testifying about the details of the offenses and their belief that the offenses were sexually violent predatory crimes.
In support of his argument, Zinlu relies on People v. Reynolds (2006) 139 Cal.App.4th 111 (Reynolds) for the proposition that an expert’s testimony as to the sexually violent predatory nature of a prior offense is improper. Reynolds, however, was depublished by our Supreme Court back in August 2006, about six months before Zinlu filed his opening brief. (People v. Reynolds (Aug. 23, 2006, S143970).)
In any event, the stipulation at trial was read after the prosecution’s experts had already testified, without objection from defense counsel. Zinlu establishes no prejudicial abuse of discretion arising from the fact that the experts testified about predatory offenses that he admitted committing.
2. Evidence of Predicate Offenses
Zinlu next contends that certain details concerning his predicate offenses should not have been admitted.
Former section 6600, subdivision (a)(3), provides a hearsay exception for proof of a defendant’s prior sexually predatory convictions, and the underlying factual details, by documentary evidence: “Conviction of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination. The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health. Jurors shall be admonished that they may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently 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.” Thus, documentary evidence of the predicate offenses and their underlying details is admissible, subject to limitations for undue prejudice under Evidence Code section 352. (People v. Otto (2001) 26 Cal.4th 200, 208, 214 (Otto).)
Zinlu’s 1978 sodomy conviction involving a hitchhiker and 1982 sodomy conviction involving a fellow inmate—his two predicate crimes under the SVPA—were relevant to a determination of whether Zinlu was a sexually violent predator. In testifying about these incidents, the experts appropriately relied on the 1978 Santa Barbara probation report and the 1983 San Mateo probation report. (Otto, supra, 26 Cal.4th at p. 210-212 [hearsay evidence in probation reports is admissible in SVPA proceedings, because they bear a “special indicia of reliability”].)
Zinlu argues that the testimony concerning the 1978 sodomy conviction extended beyond the fact of the conviction and into “all sorts of murky, uncorroborated details and innuendo.” His explanation for this assertion is that the Santa Barbara probation report, which addressed the conviction, also contained references to other matters without clearly specifying the source. For example, he notes that the probation report contains no victim statement aside from a reference to the arrest report, mentions unspecified prisoner records provided by a parole officer, and quotes from the psychological portion of a report originating in Washington, which provided the factual basis for Dr. Davis’s testimony about Zinlu’s conduct in burning himself, participating in “soft club routines,” urinating on women, and burning a tattoo off of his girlfriend. Zinlu also criticizes the probation officer’s drafting of Zinlu’s social history, in which she states that Zinlu “apparently” was the middle child of three, “apparently” suffered “school adjustment problems and truancy,” and in Arizona in 1970 suffered his “apparent first incarceration as an adult.” The probation officer noted that some of her information was obtained from Zinlu while he was “quite incoherent.”
Zinlu’s argument has no merit. In the first place, most of the matters to which he refers in the probation report were not details of his predicate offenses; to the extent he objects to their citation by Dr. Davis in other contexts, we address his contentions post. At any rate, Zinlu fails to establish that the references within the reports were so unreliable or unduly prejudicial that it was an abuse of discretion to permit the experts to testify about them. As mentioned, probation reports are generally deemed to possess a “special indicia of reliability.” (Otto, supra, 26 Cal.4th at pp. 210-212.) To the extent Zinlu quarrels with the accuracy or reliability of specific assertions within the reports, he was free to press those concerns through cross-examination of the expert witnesses and argument to the jury. He fails to establish reversible error on this ground.
3. Evidence of Other Incidents and Behavior
Zinlu next contends the court erred in permitting the prosecution’s experts to testify as to other acts and behaviors underlying their expert opinions.
An expert witness may testify to an opinion based on “matter . . . perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Evid. Code, § 801, subd. (b); People v. Gardeley (1996) 14 Cal.4th 605, 618.) Moreover, the expert may state on direct examination the facts forming the basis of his or her opinion. (Evid. Code, § 802.) Testimony regarding those facts may be subject to a limiting instruction that the evidence is not admitted for the truth, but merely as a basis for the evaluation of the expert’s opinion. (See People v. Montiel (1993) 5 Cal.4th 877, 919.) The extent to which an expert may testify concerning the material on which he or she relied may also be limited by Evidence Code section 352. (Ibid.; People v. Coleman (1985) 38 Cal.3d 69, 92-93.)
a. Juvenile violations and arrest history
Zinlu contends that it was error to permit the prosecution’s experts to testify concerning his juvenile violations, commitment to a juvenile facility, and arrest history. In particular, he notes, Dr. Davis testified that Zinlu was expelled from school for fighting, swearing, and spitting at his teachers, that he stole money from his parents, and that he failed the seventh grade three times. Dr. Davis also testified that Zinlu was committed to a juvenile facility for vandalism and burglary in 1964-1965, that his adult arrest history began “in around 1970 with burglaries,” and that Zinlu was arrested in 1971 for burglary and convicted in May 1972 in Washington for assault.
The testimony was permissible under Evidence Code section 802. As Dr. Davis testified, these facts supported his conclusion that Zinlu suffered from APD, which in turn supported his opinion that Zinlu was a sexually violent predator. The juvenile incidents were material, he explained, because the definition of APD requires a finding that the relevant behavior began “prior to age 15.” The adult arrests were also germane, as APD requires a finding that the subject failed to conform to social norms regarding lawful behavior.
The source of these facts came from material on which an expert in Dr. Davis’s field may reasonable rely. Information concerning Zinlu’s juvenile violations and detention was taken from a report recording Zinlu’s own statements. The 1970 burglary, 1971 arrest, and 1972 assault were set forth in a CLETS database report and in a forensic report on which Dr. Davis relied in rendering his opinion.
Zinlu fails to establish that the incidents to which Dr. Davis testified were unduly prejudicial, particularly since the court gave a limiting instruction, advising the jury that the evidence was not admitted for its truth, but solely for the basis of the expert’s opinion. The trial court did not abuse its discretion in allowing the testimony.
b. Zinlu’s statement regarding masturbation
Zinlu contends the court erred in permitting Dr. Davis to testify as to Zinlu’s statement in 1978 that he masturbated as often as 16 times a day. Dr. Davis relied on this fact in assessing the risk of reoffending, observing that behavior which deviates from cultural norms, including “something that’s highly unusual in terms of sex drive [or] sexual preoccupation,” is one of the major components of the risk of reoffense. The source of the testimony was a doctor’s report, which stated that the information derived from a September 1986 letter from Zinlu to the Tehachapi Correctional Facility Medical Department, as well as the record of an interview in 1978.
Zinlu fails to establish that the evidence was not admissible under Evidence Code section 802. He asks rhetorically: “But how, exactly, would this situation 25 years ago (even if true) be relevant to a current assessment?” (Italics in original.) Certainly the time that elapsed between the incident and the commitment hearing would be an acceptable area of inquiry in cross-examination and argument to the jury. Zinlu has not established, however, that the passage of time rendered the matter so prejudicial and of such little probative value that the court abused its discretion in permitting Dr. Davis’s testimony.
c. 1978 probation report
Zinlu also argues that the court erred in permitting Dr. Davis to testify to a variety of matters referenced in the 1978 Santa Barbara probation report: Zinlu’s admissions that he urinated on women, beat up boyfriends of bisexual women, used a cigarette to burn off an ex-boyfriend’s tattooed name from the body of his girlfriend, worked as a male prostitute, participated in “soft club” activities, was sexually aroused by burning himself with cigarettes, and worked as a cocktail waitress. Dr. Davis relied on these facts in concluding that Zinlu suffered from sexual deviance, which was material to his opinion regarding Zinlu’s risk of reoffense. Before allowing the testimony, the trial court required a foundation that the 1978 probation report was relevant and, outside the presence of the jury, why the behavior it described was relevant.
Zinlu fails to establish evidentiary error. A probation report is generally accepted as a reliable source on which an expert may rely in rendering his opinion. (See Otto, supra, 26 Cal.4th at pp. 210-212.) Dr. Davis explained to the court why the information supported his opinion. While Zinlu questions the relevance of a probation report written 25 years before the hearing, Zinlu was free to cross-examine Dr. Davis on this position and argue to the jury that the incidents described in the report were insignificant. In addition, the court gave a limiting instruction that the evidence was admitted “not for its truth but only for the basis for the doctor’s diagnosis.” We find no prejudicial abuse of discretion.
d. 1982 kidnapping
Zinlu challenges the admission of testimony regarding Zinlu’s kidnap of his stepsister in 1982, in which he was armed with a gun, forced her to bind her wrists and ankles, pulled down her pants and panties, got some Vaseline, and told her he was going to rape her. This incident, however, was relevant to whether Zinlu was a sexually violent predator. As Dr. Davis explained, the incident had sexual overtones and supported his diagnosis of paraphilia. There is no indication that the source of Dr. Davis’s testimony was unreliable, as it was based on Zinlu’s statements appearing in the San Mateo County probation report. The trial court did not err in permitting this testimony under Evidence Code section 802.
e. Psychiatric interview
Dr. Vognsen testified to a statement Zinlu purportedly made to a psychiatrist, Dr. Dondershine, in 1982. Allegedly, Zinlu told Dr. Dondershine that he had three personalities—Gidon, Oman, and Destiny—the first letter of each name spelling “god.” Dr. Vognsen further testified that he relied on Dr. Dondershine’s report in rendering his opinion as to Zinlu’s psychopathy. In particular, Dr. Vognsen viewed Zinlu’s statement as reflecting his grandiosity, which contributed to Dr. Vognsen’s diagnosis.
After Zinlu’s counsel objected to the testimony, the trial court held a bench conference and then required the prosecutor to lay a foundation. The prosecutor complied without further objection from defense counsel. Zinlu fails to establish any error in the admission of the evidence.
f. 1985 prison rule violation
Dr. Davis and Dr. Vognsen testified about a 1985 prison rule violation involving Zinlu’s altercation with another inmate, who accused Zinlu of trying to rape him. As Zinlu argues, Dr. Davis remarked that the prison record “didn’t have a lot of detail in it” and agreed that there was no supporting evidence for the rape claim, no charge was filed, and he knew nothing about the alleged victim and was unable to determine which man attacked the other.
There was no prejudicial abuse of discretion in permitting this testimony. The jury was aware that there was no substantiation of the accusation of attempted rape. In addition, the court instructed the jury that it could use the testimony only in evaluating the expert opinion and not for the truth of the alleged rape attempt. It was for the jury to determine whether the evidence supported the expert’s opinion.
g. 1995 parole violation
Based on official records, Dr. Davis testified that Zinlu was arrested in 1995 for violation of his parole, within days of his release from prison. Dr. Davis explained that Zinlu’s absconding from parole was one example of his “failure to conform to social norms regarding lawful behaviors,” and thus relevant to the diagnosis of APD. There was no abuse of discretion in allowing this testimony.
h. 1986 request for removal of genitalia
Dr. Davis testified that Zinlu requested a staff prison psychiatrist to have his penis and testicles surgically removed in 1986. Similarly, Dr. Korpi testified to a comment by Zinlu concerning “uncontrollable masturbatory urges” and a request for help controlling them. Both doctors explained that these statements evinced sexual deviance. The statements appeared in prison reports, on which the expert witnesses relied in rendering their opinions. There is no indication that these matters are not the type reasonably relied upon by experts in the field in rendering an opinion of the likelihood of reoffense under the SVPA. Zinlu fails to establish error.
i. 1992 prison incident
Dr. Vognsen described a Department of Corrections incident report in which Zinlu told prison authorities in 1992 that he wanted to be transferred from his cell because his cellmate had repeatedly involved Zinlu in anal and oral copulation and had forced Zinlu to shave his head and pubic hair. Dr. Vognsen believed this showed aspects of sexual humiliation, which supported his diagnosis that Zinlu suffered from paraphilia. Zinlu fails to establish that the trial court erred in admitting the testimony.
j. 2004-2005 horseplay
Zinlu contends the court erred in permitting Dr. Vognsen to testify about incidents in 2004 and 2005 regarding repeated “horseplay” by Zinlu at Atascadero State Hospital. Dr. Vognsen based his testimony on a note from hospital staff that Zinlu was counseled to stop the behavior with another patient because of a concern about a possible sexually arousing component. There is little if anything inflammatory about the evidence, and Zinlu fails to demonstrate an abuse of discretion in this regard.
Lastly, Zinlu argues that the cumulative prejudice of the erroneous admission of evidence warrants reversal. Because he has not established that the court abused its discretion in admitting any of the evidence, there is no issue of cumulative prejudice.
D. Cruel and Unusual Punishment
Zinlu contends that the SVPA as applied to Zinlu constitutes cruel and unusual punishment. He argues that, because he is “outside the likely age bracket for reoffending, the SVPA as applied to [appellant] becomes unconstitutional because it . . . subordinates treatment to the overriding purpose of continued incarceration.”
Zinlu’s argument is meritless, for several reasons. First, the SVPA does not impose “punishment”—cruel and unusual or otherwise—for criminal conduct. (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1171-1177; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1226.)
Zinlu states in his reply brief: “Appellant cannot deny that the California Supreme Court has characterized the SVP as non-punitive. But that does not make it so . . . .” Actually, for purposes of our review, it does. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Second, Zinlu does not demonstrate that his commitment was cruel or unusual. He argues that a SVPA commitment becomes cruel and unusual at the point where actuarial studies no longer support the opinion of state-appointed psychologists; when offenders like Zinlu have grown beyond the age bracket of likely reoffenders, he contends, the SVPA becomes just a tool for indefinite confinement without meaningful treatment. In the matter before us, however, the actuarial studies did not fail to support the prosecution’s experts, and Zinlu was not outside the age bracket of likely reoffenders. As we have explained, the opinions of the prosecution’s experts were supported by sufficient evidence and were accepted by the jury.
Third, Zinlu cites People v. Lakey (1980) 102 Cal.App.3d 962 (Lakey) for the proposition that it is unconstitutional to maintain an individual’s commitment unless it is shown that the individual is amenable to treatment. Lakey actually held that recommitment of a mentally disordered sex offender (MDSO) under section 6316.2 required a showing that the offender is amenable to treatment. (Lakey, supra, at pp. 970-972.) Lakey was not decided under the SVPA. In fact, our Supreme Court has established that the SVPA does not require amenability to treatment for continued confinement. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1164.)
E. Equal Protection
Equal protection of the laws is guaranteed by the Fourteenth Amendment to the federal Constitution and article I, section 7 of the California Constitution. An equal protection claim requires a “‘showing that “the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.”’” (People v. Massie (1998) 19 Cal.4th 550, 571.) However, the state “may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] Variation of the length and conditions of confinement, depending on degrees of danger reasonably perceived as to special classes of persons, is a valid exercise of state power.” (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 172.)
Zinlu first argues “that the differential, based solely on age, cannot be justified.” In essence, he is arguing that persons above a certain age must be treated in an equal manner to those below a certain age. Whatever that certain age may be, the SVPA complies: the same standard applies to persons of all ages, and the same considerations, including whatever significance age might have, is applied in ascertaining whether the standard is met. There is no equal protection violation.
Zinlu then switches his analysis and argues: “Defendant claims he is similarly situated to other older persons convicted of violent felonies who have served their terms and are entitled to parole release.” However, Zinlu is not similarly situated with other older persons convicted of violent felonies, because he meets the criteria of a sexually violent predator under the SVPA. Again, Zinlu fails to state an equal protection violation.
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., GEMELLO, J.