>P. v. Glenn



















Filed 6/5/13 P. v. Glenn CA4/3























NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.









IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. JAMES ROY GLENN, Defendant and Appellant.	G040608 (Super. Ct. No. FMBMS007714) O P I N I O N
In re JAMES ROY GLENN on Habeas Corpus.	G041245

Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County, Gilbert G. Ochoa, Judge. Affirmed.
Original proceedings; petition for writ of habeas corpus, after an order
of the Superior Court of San Bernardino County, Brian S. McCarville,
Judge. Petition denied.

Rudy Kraft, under
appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.

Kamala
D. Harris, Attorney General, and Bradley A. Weinreb, Deputy Attorney General,
for Plaintiff and Respondent.

* * *

>Introduction

James
Roy Glenn was adjudged a sexually violent predator under the Sexually Violent
Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA),href="#_ftn1" name="_ftnref1" title="">^[1]
and was placed in involuntary commitment for an indeterminate term. Glenn was 82 years old at the time of trial
in early 2008. He appealed, and later
filed a petition for writ of habeas corpus also challenging the order of
commitment. We issued an order to show
cause and consolidated the writ petition with the appeal. We later issued an opinion affirming the
order of commitment and denying the writ petition. (People
v. Glenn (2009) 178 Cal.App.4th 778, review granted Feb. 10, 2010, S178140 (Glenn I).)

The
California Supreme Court granted Glenn’s petition for review and deferred
further action in the matter pending consideration and disposition of >People v. McKee (2010) 47 Cal.4th 1172 (>McKee I). After issuing its opinion in >McKee I, the California Supreme
Court issued an order transferring this case back to us with directions to
vacate our opinion and to reconsider the cause in light of McKee I. The Supreme
Court further 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 [>I] [citation], including any proceeding
in the Superior Court
of San Diego County
in which McKee may be consolidated
with related matters.”

Division
One of the Fourth Appellate District of the Court of Appeal subsequently issued
its opinion in People v. McKee (2012)
207 Cal.App.4th 1325 (McKee II). After the California Supreme Court denied
review of McKee II, we issued an
order lifting the suspension of proceedings in this matter and inviting the
parties to submit supplemental letter
briefs addressing the effect of McKee I
on Glenn’s equal protection claim.
Having considered the supplemental letter briefs, we now reject Glenn’s
equal protection claim. Our opinion
includes issues and arguments addressed in Glenn I
because the California Supreme Court ordered us to vacate that opinion. We again affirm the order of commitment and
deny the petition for writ of habeas corpus.


Overview of the SVPA

The
SVPA provides for involuntary civil commitment of an offender immediately upon
release from prison if the offender is found to be a sexually violent
predator. (People v. Yartz (2005) 37 Cal.4th 529, 534.) The SVPA “was enacted to identify
incarcerated individuals who suffer from href="http://www.sandiegohealthdirectory.com/">mental disorders that
predispose them to commit violent criminal sexual acts, and to confine and
treat such individuals until it is determined they no longer present a threat
to society.” (People v. Allen (2008) 44 Cal.4th 843, 857.) “‘[A]n SVPA commitment proceeding is a
special proceeding of a civil nature, because it is neither an action at law
nor a suit in equity, but instead is a civil commitment proceeding commenced by
petition independently of a pending action.’”
(People v. Yartz, >supra, at p. 536.)

A
sexually violent predator is defined 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).) A “diagnosed mental
disorder” is defined to include “a congenital or acquired condition affecting
the emotional or volitional capacity that predisposes the person to the
commission of criminal sexual acts in a degree constituting the person a menace
to the health and safety of others.”
(§ 6600, subd. (c).)

The
procedure for determining whether a convicted sex offender is a sexually
violent predator typically begins when an inmate is scheduled to be released
from custody. (Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1054.) “‘Under section 6601, whenever the
Director of Corrections determines that a defendant serving a prison term may
be a sexually violent predator, the Department of Corrections and the Board of
Prison Terms undertake an initial screening “based on whether the person has
committed a sexually violent predatory offense and on a review of the person’s
social, criminal, and institutional history.”
(§ 6601, subd. (b).)’”
(People v. Hurtado (2002) 28
Cal.4th 1179, 1182‑1183.)

The
screening is conducted in accord with an assessment protocol developed by the
State Department of Mental Health (DMH).
(People v. Hurtado, >supra, 28 Cal.4th at p. 1183.) “‘If that screening leads to a determination
that the defendant is likely to be a sexually violent predator, the defendant
is referred to the Department of Mental Health for an evaluation by two href="http://www.sandiegohealthdirectory.com/">psychiatrists or psychologists. (§ 6601, subds. (b) &
(c).) If both find that the defendant
“has a diagnosed mental disorder so that he or she is likely to engage in acts
of sexual violence without appropriate treatment and custody” (§ 6601,
subd. (d)), the department forwards a petition for commitment to the
county of the defendant’s last conviction (ibid.). If the county’s designated counsel concurs
with the recommendation, he or she files a petition for commitment in the
superior court. (§ 6601,
subd. (i).)’” (Ibid.)

“[A]
petition seeking the commitment or recommitment of a person as a sexually
violent predator cannot be filed unless two mental health professionals,
specifically designated by the Director under statutory procedures to evaluate
the person for this purpose, have agreed, by correct application of the
statutory standards, 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.’” (>People v. Superior Court (Ghilotti)
(2002) 27 Cal.4th 888, 894.)

If
one of the two professionals performing the evaluation does not conclude the
person meets the criteria for commitment as a sexually violent predator, and
the other concludes the person does meet those criteria, then the DMH “shall
arrange for further examination of the person by two independent professionals
selected in accordance with subdivision (g).” (§ 6601, subd. (e).) If an evaluation by two independent
professionals is conducted, a petition for commitment may be filed only if both
concur the person meets the criteria for commitment as a sexually violent predator. (§ 6601, subd. (f).)

Upon
filing of the SVPA commitment petition, the superior court must review the
petition and determine “whether the petition states or contains sufficient
facts that, if true, would constitute probable cause to believe that the
individual named in the petition is likely to engage in sexually violent
predatory criminal behavior upon his or her release.” (§ 6601.5.) If the court determines the petition on its
face supports a finding of probable cause, then it orders the person named in
the petition to be kept in a secure facility until a probable cause hearing
under section 6602 is conducted.
(§ 6601.5.) The probable
cause hearing must be conducted within 10 calendar days of the issuance of the
order finding the petition would support a finding of probable cause. (Ibid.)

The
purpose of the probable cause hearing is to determine whether “there is
probable cause to believe that the individual named in the petition is likely
to engage in sexually violent predatory criminal behavior upon his or her
release.” (§ 6602,
subd. (a).) The probable cause
hearing is an adversarial hearing where the person named in the petition has
the right to counsel. (>Ibid.)
If the court finds probable cause, it orders a trial to determine
whether the person is a sexually violent predator under section 6600. (§ 6602, subd. (a).) The person named in the petition must remain
in a secure facility between the time probable cause is found and the time
trial is completed. (>Ibid.)

The
person named in the petition is entitled to a trial by jury, and the jury’s
verdict must be unanimous. (§ 6603,
subds. (a) & (f).) The person
named in the petition also is entitled to retain experts or professional
persons to perform an examination on his or her behalf. (§ 6603, subd. (a).) At trial, the trier of fact determines
whether, beyond a reasonable doubt, the person named in the petition is a
sexually violent predator.
(§ 6604.) If the trier of
fact determines the person named in the petition is a sexually violent
predator, the person is committed for an indefinite term to the custody of the
DMH for appropriate treatment and confinement in a secure facility. (Ibid.)

Facts

I.

The People’s Case

In
2005, the Office of the District Attorney of San Bernardino County filed a
petition for Glenn’s commitment as a sexually violent predator pursuant to
section 6600 et seq. At the jury
trial, conducted in January and February 2008, the deputy district attorney
called Jeffery Hart and licensed psychologists Mark A. Schwartz and Dawn Starr
as witnesses. Hart had been Glenn’s
former neighbor in North Carolina, and Schwartz and Starr had evaluated Glenn
and testified he qualified as a sexually violent predator. The deputy district attorney also called
Glenn to testify as an adverse witness.

A. Jeffery
Hart

In
2000, Glenn purchased two acres in rural North Carolina and lived there in a
mobilehome. Jeffery Hart was Glenn’s
neighbor. Hart and Glenn initially got
along well, but they had a falling out because Glenn wandered around his
property in the nude. Glenn cut down the
trees on his property, and would situate himself in his yard or on his roof to
make himself visible. On several
occasions, Hart’s mother, who lived with Hart, saw Glenn naked. Hart asked Glenn not to appear naked in front
of her. According to Hart, Glenn “just
got bolder and bolder every day.”

One
morning, Hart informed Glenn that four women were coming to look at nearby
property and asked that he wear clothing when they arrived. When the women drove up the road, Glenn,
wearing only fishnet underwear, blocked the road with his backhoe. Glenn got down from the backhoe and walked
over to talk with the women.

Glenn
twice told Hart that Glenn needed “a young boy” to help with work around the
house. Hart did not recommend anyone to
Glenn and testified, “by the way he was acting, I wouldn’t subject any kid to
that.”

B. Mark A.
Schwartz

Mark
A. Schwartz holds a Ph.D., had been a licensed psychologist for 27 years, and
worked under contract for the DMH. He
interviewed Glenn in 2005 and 2006 and prepared reports in January and November
2007. Schwartz considered three
criteria: (1) whether Glenn
committed qualifying predicate offenses; (2) whether he has a mental
disorder predisposing him to commit future sexual offenses; and
(3) whether he is at risk of committing future sexual offenses.

Under
the first criterion, Schwartz concluded Glenn had committed four predicate
offenses against three victims, all of whom were under 14 years of age. In 1988, Glenn invited a nine‑year‑old
boy and an 11‑year‑old boy to his house, where he gave them treats,
showed them sexually explicit movies, exposed himself, and touched them. As a result, a jury convicted him of two
counts of committing lewd and lascivious acts with a child under the age of
14. Also in 1988, Glenn molested a seven‑year‑old
girl by exposing himself and masturbating in front of her, for which another
jury convicted Glenn of two counts of the same crime.

Schwartz
also explained that Glenn had been convicted of offenses that did not qualify
as predicate offenses for a sexually violent predator determination. Glenn had been convicted of an attempt to
commit lewd and lascivious acts with a child under the age of 14 for exposing
himself to and masturbating in front of a boy.
Glenn also had been convicted on two indecent exposure charges involving
two girls. Schwartz testified he “really
didn’t have to” consider those incidents, but they “just hardened the fact that
[Glenn] was a pedophile.”

Under
the second criterion, Schwartz concluded Glenn suffers from pedophilia,
nonexclusive, with sexual attraction to both male and female children.href="#_ftn2" name="_ftnref2" title="">^[2] Schwartz based his conclusion of pedophilia
on Glenn’s qualifying and nonqualifying offenses, and incidents appearing in
police reports that did not lead to charges.
Schwartz concluded Glenn was volitionally impaired from pedophilia
because he continued to engage in pedophilic behavior even after being arrested
and imprisoned for sex crimes.

Under
the third criterion, Schwartz concluded there was a serious and well‑founded
risk that Glenn would commit sexually violent criminal acts in the future. Schwartz considered Glenn’s score on the
Static‑99, an actuarial tool used to predict recidivism in sex
offenders. Although Glenn’s score of
seven on the Static‑99 usually would place him in the high risk category,
Schwartz was not certain whether Glenn would fall into that category because he
was much older than all but one person in the data set on which the Static‑99
was based. Schwartz testified: “We don’t have a lot of data on 82‑year‑old‑guys. When you look at the number of people in
these data sets that are past 60, 75, 80, very, very few.”

Schwartz
testified he initially did not believe Glenn qualified as a sexually violent
predator because of his advanced age and because the qualifying offenses
occurred a long time ago. Schwartz
ultimately concluded Glenn was a sexually violent predator based on his score
on the Static‑99, the fact Glenn had continued to act out sexually, and
Schwartz’s opinion that pedophilia is a compulsive and chronic condition. Schwartz considered “the incidents in North
Carolina and the indecent exposure in North Carolina as an indication that
[Glenn] was still . . . sexually acting out and at risk.” Despite studies suggesting recidivism rates
for pedophiles decrease after age 60, Schwartz believed Glenn posed a risk of
reoffending because he had engaged in serious acts of pedophilia at age 62.

Schwartz
also diagnosed Glenn with exhibitionism.href="#_ftn3" name="_ftnref3" title="">^[3] Schwartz initially “wavered back and forth” on
that diagnosis because it requires exposing oneself to unsuspecting
strangers. Ultimately, Schwartz
concluded the women in North Carolina who saw Glenn in fishnet underwear were
strangers, thus satisfying the definition of exhibitionism.

C. Dawn
Starr

Dawn
Starr holds a Ph.D. in psychology and had been a licensed psychologist for over
20 years when she testified. She served
on the DMH’s sexually violent predator panel of evaluators and had conducted
over 1,000 sexually violent predator evaluations. She conducted a sexually violent predator
evaluation of Glenn in July 2005 and conducted follow‑up evaluations of
him in August 2006 and September 2007.

Starr
concluded Glenn committed qualifying predicate offenses, had a mental disorder
predisposing him to commit future sexual offenses, and was likely to commit
future sexually violent predatory offenses as a result of his mental disorder.

Starr
diagnosed Glenn with “pedophilia, sexually attracted to male and female
children, but a non‑inclusive type, meaning he’s had adult sexual
partners.” Starr testified, “[t]hat was
an SVP [(sexually violent predator)] diagnosis because I thought that he showed
both volitional and emotional impairment with regards to that diagnosis.” She believed Glenn was volitionally impaired
because he “gets in very little trouble with the law” and “[i]s not a rule
breaker,” yet had serious difficulty controlling his sexual behavior. As to emotional impairment, Starr
testified: “[H]e is taking advantage of
these children, most of whom were either in situations where they were low
income or the parents were maybe neglectful or not around very much. And he would groom them, give them candy, put
on cartoons maybe and then switch over to sexually explicit movies. Fix the boys’ bikes. [¶]
And then he would sexually abuse them for his own personal gratification
with little or no regard to the adverse consequences of these children.”

Starr
considered several nonqualifying crimes and victims because “under the
diagnostic criteria . . . we’re supposed to look at whether the
person has recurrent intense sexually arousing deviant fantasies or urges or
behaviors towards prepubescent children.
So I’m interested to see how many people or young children he’s had
sexual contact with over what period of time.”

Starr’s
conclusion that Glenn committed the qualifying predicate offenses was based on
his convictions in 1988 for committing lewd and lascivious acts with a child
under the age of 14 involving the girl and the two boys. Starr also considered these nonqualifying
crimes and victims in reaching her diagnosis:

In
the 1950’s or 1960’s, one of Glenn’s daughters reported that Glenn had sexually
molested her when she was a child.

In
1976, when Glenn was 50 years old, he was arrested and charged with two counts
of lewd and lascivious behavior with a child under 14 years old in violation of
Penal Code former section 288.
(Ultimately, he was convicted of contributing to the delinquency of a
minor.)

In
1977, Glenn took a nine‑year‑old girl and a seven‑year‑old
boy to Big Bear, where he exposed himself to them, bathed with them, fondled
and orally copulated the girl, and had the boy use a relaxer on Glenn until he
ejaculated.

In
1986, a mother left her three children with Glenn while she moved into a new
home. Glenn licked the 10‑year‑old
girl between the legs, then tried to “hypnotize” her. Glenn touched her six‑year‑old
brother’s penis.

In
1987, Glenn molested his seven‑year‑old granddaughter and four‑year‑old
grandson. The granddaughter reported
that Glenn carried her to the living room, put his hand over her mouth, pulled
down her underwear, and touched her groin.
The grandson reported that Glenn touched his penis.

Starr
concluded Glenn currently suffers from pedophilia, despite his age, because it
is a chronic and lifelong condition.
Significant too, Starr found that Glenn used the victims for his own
gratification, did not accept responsibility for his conduct, and showed no
remorse.

Starr
also diagnosed Glenn with exhibitionism, which she described as a type of
paraphilia. Her diagnosis of
exhibitionism was based on Glenn’s claim to be a nudist and a pattern of
conduct in which he appeared to go out of his way to expose himself to
others.

Starr
concluded Glenn likely would engage in future sexually violent predatory
behavior as a result of his mental disorder.
Like Schwartz, Starr used the Static‑99 and gave Glenn a total
score of eight, placing him in the highest risk of reoffense category. She placed Glenn in the “rare group of
people” who, despite advanced age, would continue to sexually reoffend. She considered Glenn’s age, good health, and
family history of longevity to conclude a five- to eight‑year risk
prediction period to be appropriate.

Starr
believed Glenn’s age lowered the risk of reoffense a little, but not enough to
take Glenn out of the high risk category.
She explained: “[H]e is exactly
the same man he is today as he was when he committed the offenses in the late
1980s. His personality is the same; his
attitude about them is the same. Either
it was no big deal or I did not do it.
[¶] He has not done anything to
try to get treatment for that in the community or now that it’s available to
him at absolutely no cost where he’s staying.
He doesn’t go do that. He is in
pretty good physical health. He has good
mental capacity. So the only thing is,
he is a little older and he is still sexually preoccupied.”

D. Glenn

The
deputy district attorney called Glenn as an adverse witness. He testified he was a nudist and denied
committing all but one of the qualifying and nonqualifying offenses.

Glenn
claimed he had been falsely accused in each instance and gave various reasons
why. As to the incident in Big Bear in
1977, Glenn claimed the mother told her children to accuse Glenn of molesting
them because he had kicked her out of his house. As for the incident in 1986, Glenn claimed
the 10‑year‑old girl made obscene telephone calls to him, and
falsely accused him of molestation for fear he would tell her mother about the
calls. Glenn denied molesting his
grandchildren, claiming his son had been “wasted on drugs.”

Glenn
asserted he did not commit the crimes for which he was convicted in 1989. Glenn claimed the two boys came over to his
house to repair their bicycles. Glenn
showered, and when he came out of the shower, the boys were on his bed watching
a pornographic video and the 11‑year‑old boy had an erection. Glenn claimed he ran the boys out of the
house. According to Glenn, the
pornographic video belonged to a friend.

As
for the conviction involving the girls, Glenn testified they would come into
his apartment without knocking. On one
occasion, he stepped out of the shower to find three girls in his bathroom
looking at him. On another occasion, one
of the girls walked into his apartment, unannounced, and Glenn, a nudist, was
naked. The girl said, “[g]et some
clothes on”; Glenn replied, “you better start getting use to it if you don’t
start knocking.”

Glenn
was arrested, convicted by two separate juries, and sent to prison. He was released in 1995, and, in 1998, bought
two acres of land in North Carolina, where he continued to practice
nudism. He contended Hart’s mother would
hide in the bushes with binoculars to watch him naked. She had tried to “put the make on [him],” but
he was not interested in her, and she complained to the police in anger. According to Glenn, none of the 13 people who
complained to the police about his nudity had ever seen him naked. He also claimed Hart’s testimony that Glenn
had asked about finding a young boy to work for him was a lie.

On
the day the women came by to inspect property, Glenn wore the fishnet underwear
because “from a distance it just looks like regular shorts.” He did not expect he would have to step down
from his backhoe to see anyone.

Glenn
testified he had been impotent since undergoing chemotherapy for colon cancer
in 1996. He testified he loved children,
and “[w]hen I see children with a problem, my heart bleeds for them.”

II.

Defense Case

Glenn
called licensed clinical psychologists Brian Abbott and Craig Updegrove to
testify on his behalf.

A. Brian
Abbott

Brian
Abbott testified he is a licensed clinical psychologist, has a forensic
psychological practice, and primarily evaluates sex offenders, including
sexually violent predators.

Abbott
reviewed Glenn’s medical and hospital records, law enforcement reports,
probation reports, DMH evaluator reports, and investigative reports prepared by
the district attorney’s office and by the public defender’s office. Abbott interviewed Glenn three times, and
administered a general personality test, the Millon Clinical Multiaxial
Inventory‑III, The Abel Assessment for sexual interest‑2, and a
cognitive functioning test.

Abbott
concluded, “[t]here’s absolutely no information to substantiate a current
diagnosis of pedophilia or to substantiate a current mental disorder under the
Sexually Violent Predator Act.” In
reaching that conclusion, Abbott observed that Glenn had displayed no symptoms
of sexual interest in children for 20 years and found it critical that no
reports were made of Glenn engaging in inappropriate conduct with children
during the seven‑year period in which he was not in custody. There was no evidence that, since Glenn had
been committed as a sexually violent predator, he had engaged in the type of
conduct typical of someone with a current diagnosis of pedophilia. Because Glenn interacted sexually with both
adults and children, Abbot believed his conduct might be the result of sexual
compulsiveness rather than pedophilia.

Abbott
testified that sex drive decreases dramatically in people over 50 years
old. He acknowledged pedophilia is a
chronic condition for some people, but testified it was not chronic in Glenn’s
case. He found no indication that Glenn
currently had any sexual interest in prepubescent children and was not likely
to reoffend in a sexually violent manner.
Abbott declined to diagnose Glenn with exhibitionism because he did not
expose himself for sexual gratification or to unsuspecting strangers.

B. Craig
Updegrove

Craig
Updegrove holds a Ph.D. in clinical psychology, was a licensed psychologist,
and, since 1996, had served on the DMH’s panel of sexually violent predator
evaluators.

Under
appointment by the DMH, Updegrove conducted an evaluation of Glenn in July
2005. Updegrove concluded Glenn did
commit the qualifying offenses, had a diagnosable mental disorder within the
meaning of the SVPA, but was not likely to reoffend in a sexually violent,
predatory manner.

Updegrove
reached the same conclusions after reevaluating Glenn in October 2006. Again diagnosing Glenn as having pedophilia,
Updegrove acknowledged, “he’s had this recurrent pattern of sexually aroused
behavior around prepubescent children” and recognized Glenn’s score on the
Static‑99 placed him in the high risk of reoffense category.

Updegrove
concluded nonetheless that Glenn did not pose a serious and well‑founded
risk of sexually reoffending. In
reaching that conclusion, Updegrove considered Glenn’s age, the lack of
evidence of offending behavior after 1988, and chemotherapy in 1996, which,
according to Glenn, had left him impotent.
Updegrove found it significant that Glenn had no known sexual offenses
against children in the eight-year period from his release from prison to his
conviction for indecent exposure.
Updegrove did not diagnose Glenn with exhibitionism because he found no
evidence that Glenn exposed himself in North Carolina for sexual gratification.


>Appellate
and Habeas Procedural History

In
February 2008, the jury found Glenn to be a sexually violent predator, and the
trial court ordered him committed for an indeterminate term. Glenn timely appealed from the commitment
order. In October 2008, he filed a
petition for writ of habeas corpus in the trial court. The trial court denied the petition,
stating: “Petitioner’s claims are
currently being adjudicated within the Court of Appeal. There is nothing contained in the Petition to
substantiate Petitioner’s claims. A
Petition for Writ of Habeas Corpus cannot serve as a substitute for Appeal.”

In
November 2008, Glenn, representing himself in propria persona, filed a petition
for writ of habeas corpus in this court, challenging the validity of the SVPA
commitment petition on the ground the evaluations were based on an invalid
standardized assessment protocol. We
issued an order to show cause, consolidated the writ petition with the appeal,
and invited the Attorney General to file a combined respondent’s brief and return
to the petition. In Glenn I, we affirmed the order of commitment and denied the
petition for writ of habeas corpus.

Discussion

I.

>The
Trial Court Did Not Err by Sustaining

Objections to Abbott’s Testimony.

Glenn
argues the trial court erred by precluding Abbott from testifying about studies
and research conducted by other mental health experts concerning whether
pedophilia is chronic. Glenn contends
such testimony was admissible to establish the basis for Abbott’s expert
opinion. Relying on People v. Campos (1995) 32 Cal.App.4th 304 (Campos), the Attorney General argues an expert witness may not
testify on direct examination to the contents of reports or opinions expressed
by other experts. We conclude the trial
court did not err.

A. Background

During
Abbott’s direct examination by Glenn’s counsel, the following colloquy
occurred:

“A [(Abbott):] . . . First, you have
to prove the fact that they do have what they refer to as pedophiliac
arousal. You have to first be able to
show that the individual was sexually aroused toward prepubescent children, and
then if they act upon that, then you can make the diagnosis. You cannot make the diagnosis based on the
number of prepubescent victims over time.
In fact, one of the criteria text editors—

“Ms.
Norman [(the deputy district attorney)]:
Objection.

“The
Court: Sustained.

“Q (By Mr. Lowry [(Glenn’s counsel)] Have you read documents that indicate to you
that behavior alone is not enough to make the diagnosis of pedophilia?

“Ms.
Norman: Objection, your Honor. May we approach?

“The
Court: Yes.”

The
court did not immediately rule on the second objection.

Later,
Abbott testified he did not subscribe to the belief that pedophilia is
chronic. When he was asked to explain,
the following transpired:

“A [(Abbott):]
Because essentially when you look at the literature from which that
statement is made, it goes back to I think really the early 1990’s when the
last major revision of the DSM Four [American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000)] happened,
at least as it relates to diagnosis of pedophilia. In fact, there was an author by the name of
Michael Seto who published a chapter in a book that came out three weeks ago
where he states that this idea of pedophilia being tending to be chronic
really—

“Ms.
Norman: Objection, your Honor.

“The
Court: Sustained.

“Mr.
Lowry: Okay.

“Ms.
Norman: Move to strike.

“The
Court: The testimony with regard to what
the other doctor testified to would be stricken.

“Mr.
Lowry: Okay.

“Q (By Mr. Lowry . . . In the
literature, is there an indication that there’s a question as to whether or not
pedophilia is chronic?

“Ms.
Norman: Objection. Same objection.

“The
Court: Sustained.

“The
witness [(Abbott)]: Yes.

“Ms.
Norman: Move to strike.

“The
Court: The answer will be stricken.”

A
few moments later, the court overruled a similar objection but advised Glenn’s
counsel to “be careful in this area.”

Outside
the jury’s presence, the court and counsel discussed whether Abbott could
testify about studies and research conducted by other mental health experts
concerning whether pedophilia is chronic.
Glenn’s counsel announced that, over the lunch break, he and Abbott had
pared down a PowerPoint presentation to 22 “slides,” all of which were graphs
taken from studies, and argued Abbott should be permitted to testify about the
slides as part of the basis for his opinion:
“It just makes no sense for him not to be able to use at least these
[P]ower[P]oint slides having to do with plotting of graphs and the statistics
in order to aid his testimony.” The
deputy district attorney objected on the ground the material in the PowerPoint
presentation had not been produced in discovery.

The
trial court stated: “I still think that
this is a Campos issue. If you have a graph, for instance,
Graph A, and at the bottom it looks like we have ‘age’ is the input. And on the left-hand side we have
‘percentages[,’] six‑year rate of recidivism. [¶]
Just because something is in a graph, you’re still trying to get in the
opinion of this expert via a graph, it’s just not coming in via Dr. Abbott
testifying about it. It’s still the same
thing. It’s still going to be hearsay
that [the People] cannot cross[-]examine Doctor Milloy on this graph. So we still have the same issue.” (Italics added.) The court explained Abbott could testify to
his own opinions and even use the graphs prepared by the nontestifying experts,
if he deleted the nontestifying experts’ names.
The court stated: “If it’s his
opinion, he can relate it, because that’s his opinion based upon his training,
his expertise, his evaluation, and how it relates to Mr. Glenn based upon his
evaluation of Mr. Glenn. He can testify
to that. [¶] He just can’t testify and throw up on the
screen ‘this is Milloy’s opinion with regards to six‑year recidivism
rates.’ That he can’t do. But he may be able to give the same
information in [it] if it’s his opinion in a different way.”

B. Case
Law Regarding Admissibility of Nontestifying Experts’ Studies and Opinions

In >Campos, supra, 32 Cal.App.4th at page 306, the defendant appealed a
jury determination he was a mentally disordered offender. The defendant argued the trial court erred by
permitting the prosecution’s expert psychiatrist, Dr. Mertz, to testify
that she relied on other medical evaluations of the defendant and that the
evaluations confirmed her opinion he was a mentally disordered offender. (Id.
at p. 307.) The appellate court
agreed. A psychiatrist, like other
expert witnesses, may rely on reliable hearsay, including the statements and
reports of other treating professionals in forming an opinion, and, on direct
examination, may testify the reports of the other experts were a basis for that
opinion. (Id. at pp. 307‑308.)
However, an expert witness may not, on direct examination, reveal the
contents of the other experts’ reports or opinions expressed in the
reports. (Id. at p. 308.) “Here,
the reports of the nontestifying experts were hearsay. Doctor Mertz was properly allowed to
testify that she relied upon the reports in forming her own opinions. The trial court erred, however, when it
allowed her to reveal their content on direct examination by testifying that
each prior medical evaluation agreed with her own opinion.” (Ibid.) While doctors can testify about the basis for
their opinion, they cannot disclose to the jury the opinions of out‑of‑court
doctors. (Ibid.) The appellate court
nonetheless affirmed because, it concluded, Dr. Mertz’s testimony about
prior medical evaluations was not prejudicial.
(Id. at pp. 308‑309.)

Glenn argues >Campos is inapplicable because the
nontestifying experts in that case had evaluated and prepared reports on the
defendant. Here, in contrast, Abbott was
precluded from testifying about nontreating
experts’ opinions on whether pedophilia in general is a chronic condition.

>Campos is the product of a line of
authority starting with Kelley v. Bailey
(1961) 189 Cal.App.2d 728, 737‑738, in which the court held a testifying
physician could not rely on a report of another physician as independent proof
of facts, but could rely on it as part of the basis on which the testifying
physician formed a diagnosis and course of treatment. On request, the jury should be given a
limiting instruction that the hearsay is admitted as the basis for the
testifying physician’s diagnosis, not to prove the truth of what the patient
told the original physician. (>Id. at p. 738.)

The California
Supreme Court adopted this general rule in Whitfield
v. Roth (1974) 10 Cal.3d 874, 894‑895, stating: “It is obvious that the testimony concerning
the opinion of the other doctors who were not present in court, and who had not
been qualified as experts was hearsay.
‘“The reason for this is obvious.
The opportunity of cross‑examining the other doctors as to the
basis for their opinion, etc., is denied the party as to whom the testimony is
adverse.”’ [Citations.] [¶]
Defendants contend, however, that the testimony concerning the opinions
of the other doctors was admissible to show the basis of the testifying
doctor’s opinion under the doctrine of limited admissibility as applied in >Kelley [v.] Bailey
. . . . This rule has no
application to the case at bench for two reasons. First, the opinions of the out‑of‑court
doctors in this case were not used by either testifying doctor in the course of
treatment or diagnosis of plaintiff.
They were consulted as experts and then called as witnesses to offer
expert opinion evidence. It is clear
that doctors can testify as to the basis of their opinion [citation], but this
is not intended to be a channel by which testifying doctors can place the
opinion of innumerable out‑of‑court doctors before the jury.” (Fn. omitted.) The court held the testimony concerning the
opinion of the nontestifying doctors was inadmissible on the ground it was
being offered as independent proof of the fact in issue—that an X‑ray of
the patient’s skull showed no abnormality.
(Id. at p. 895.)

In >People v. Coleman (1985) 38 Cal.3d 69,
92, the Supreme Court expressed the rule:
“‘While an expert may state on direct examination the matters on which
he relied in forming his opinion, he may not testify as to the details of such
matters if they are otherwise inadmissible.
[Citations.] The rule rests on
the rationale that while an expert may give reasons on direct examination for
his opinions, including the matters he considered in forming them, he may not
under the guise of reasons bring before the jury incompetent hearsay evidence. [Citation.]’”


These cases permit
an expert witness to testify about the contents or details of the matters on
which the expert relied, including the opinions of nontestifying experts, if
those matters and opinions are otherwise admissible. If the contents or details of the matters on
which the expert relied, including the opinions of nontestifying experts, are
otherwise inadmissible, for example, they are offered to prove the truth of a
fact in issue, they may not be disclosed.

An illustrative and
analogous case is Mosesian v. Pennwalt
Corp. (1987) 191 Cal.App.3d 851. In
that case, the plaintiff, the owner of a vineyard, alleged a pesticide
manufactured by one of the defendants caused chemical burning of grape leaves
leading to defoliation and crop destruction.
(Id. at p. 855.) The defendant’s expert testified the
pesticide did not chemically burn the leaves on the plaintiff’s
grapevines. (Id. at pp. 856‑857.)
During the course of direct examination, the expert testified he had
consulted with six other experts about the potential of the pesticide to cause
leaf burn and had based his own opinion in part on those other experts’
opinions. (Id. at p. 856.) None of
the six other experts testified. (>Id. at p. 857.) Also on direct examination, the expert
revealed those experts had concluded the defendant’s pesticide could not cause
more than marginal leaf burn. (>Id. at pp. 857, 863.) The trial court permitted the testimony but
admonished the jury the nontestifying experts’ opinions could only be
considered as part of the basis for the testifying expert’s opinion and could
not be considered as proof the pesticide did not damage the plaintiff’s
vineyard. (Id. at p. 857.) The
jury returned a defense verdict, and the trial court granted the plaintiff’s
motion for a new trial. (>Id. at p. 858.)

The Court of Appeal
concluded the testifying expert’s testimony on the opinions of the
nontestifying experts was inadmissible hearsay because the opinions were
offered for the truth of the matter asserted—that the defendant’s pesticide did
not cause more than marginal leaf burn.
“The fundamental issue that stood as the cornerstone of the entire trial
was whether the plaintiff suffered a crop loss.
The introduction of the hearsay opinions through [the defense expert]
touched upon only one aspect of economic crop loss. Can [the pesticide] ever cause leaf burn and
does leaf burn lead to a loss of production?
If the leaf burn complained of by the plaintiff could only be marginal,
then the probability of economic loss was remote.” (Mosesian
v. Pennwalt Corp., supra, 191
Cal.App.3d at p. 866.) But the
Court of Appeal reversed the order granting a new trial, concluding admission
of the hearsay opinions was harmless error because the opinions touched on only
one issue in the case, the great weight of the evidence supported the defense
verdict, and the trial court had admonished the jury. (Id.
at pp. 866‑867.)

In >Mosesian v. Pennwalt Corp., the
nontestifying experts did not opine whether the pesticide damaged the
plaintiff’s vineyard; rather, they opined whether the pesticide >could ever cause leaf burn. Their opinions were inadmissible because they
were offered to prove a disputed fact—whether the pesticide could cause leaf
burn, and thus might have damaged the plaintiff’s vineyard.

C. Application to This Case

Here, the
nontestifying experts’href="#_ftn4"
name="_ftnref4" title="">^[4]
opinions and studies related to whether pedophilia in general is chronic. The only conceivable purpose of offering the
opinions and studies of Seto, Milloy, and other nontestifying experts (via the
PowerPoint presentation) was to prove the truth of a disputed fact—whether
pedophilia is chronic, and, thus, whether Glenn could still suffer from
it. Although Abbott could testify to his
own opinions and describe the matters he considered in reaching those opinions,
he could not testify to the opinions of the other nontestifying experts,
explain or read their writings, or present graphs and charts revealing their
opinions that were otherwise inadmissible.


Glenn argues, “if
the testimony relating to Michael Seto as to whether or not pedophilia is a
chronic disorder and the use of the graph prepared by Milloy was invalid then
it was equally invalid to introduce Dr. Hanson’s opinion as to [Glenn]’s
likely recidivism rate thr[ough] the use of the STATIC‑99.” But neither in the appellant’s opening brief
nor in the appellant’s reply brief, does Glenn include record citations
supporting that argument. Glenn concedes
nobody objected to the challenged testimony, and, therefore, any claim of error
has been forfeited.

In addition,
“[b]ecause an expert’s need to consider extrajudicial matters, and a jury’s
need for information sufficient to evaluate an expert opinion, may conflict
with an accused’s interest in avoiding substantive use of unreliable hearsay,
disputes in this area must generally be left to the trial court’s sound
judgment.” (People v. Montiel (1993) 5 Cal.4th 877, 919.) The trial court may exclude from an expert’s
opinion testimony any hearsay matter if its probative value is outweighed by
its irrelevance, unreliability, or potential prejudice. (People
v. Catlin (2001) 26 Cal.4th 81, 137.)
The trial court did not abuse its discretion in sustaining the
objections to the PowerPoint presentation.


II.

Use of an Invalid Standardized
Assessment Protocol Did Not Deprive the Trial Court of Fundamental
Jurisdiction;

Therefore, a Harmless Error Analysis Applies,

and Glenn Suffered No Prejudice.

Glenn argues his
commitment as a sexually violent predator was illegal because the evaluations
leading to the SVPA commitment petition were based on the mental health
assessment protocol later determined by the Office of Administrative Law (OAL)
to be invalid as “underground regulations.”
The Attorney General argues (1) Glenn forfeited the issue by
failing to object at the probable cause hearing held pursuant to
section 6602, subdivision (a), and (2) any error in using the
assessment protocol was harmless.

Glenn
did not forfeit the issue, but use of the invalid assessment protocol did not
deprive the trial court of fundamental jurisdiction. Because Glenn is challenging the evaluations
after trial, he must show he was deprived of a fair trial or suffered prejudice
as a result of the use of the assessment protocol. (People
v. Landau (2013) 214 Cal.App.4th 1, 17 (Landau);
In re Ronje (2009) 179 Cal.App.4th
509, 517.)

A. Deficiencies in the Return to the Habeas Corpus Petition

First, we address
Glenn’s argument the Attorney General admitted the allegations of the petition
for writ of habeas corpus by not filing a formal response admitting or denying
the petition’s allegations.

In >People v. Duvall (1995) 9 Cal.4th 464,
474‑481, the California Supreme Court thoroughly explained habeas corpus
rules and procedures. The >Duvall court explained the function and
requirements of the return: “[W]e have
required the return to ‘allege facts
tending to establish the legality of petitioner’s detention.’ [Citations.]
Those facts are not simply the existence of a judgment of conviction and
sentence when the petitioner challenges his restraint in prison. The factual allegations of a return must also
respond to the allegations of the petition that form the basis of the
petitioner’s claim that the confinement is unlawful. [Citations.]
In addition to stating facts, the return should also, ‘where
appropriate, . . . provide such documentary evidence, affidavits, or
other materials as will enable the court to determine which issues are truly
disputed.’” (Id. at p. 476, fn. omitted.)

In >County of San Bernardino v. Superior Court
(1994) 30 Cal.App.4th 378, 382, footnote 6, the respondents filed a
document called “‘responsive brief’” that did not respond to the formal
allegations of the petition. The Court
of Appeal noted its order issuing an alternative writ requested a formal
return, meaning an answer or a demurrer.
(Ibid.) By filing a responsive brief, the respondents
did not follow the correct procedures. (>Ibid.)

Although the
Attorney General’s combined respondent’s brief and return does not respond to
the allegations of the habeas corpus petition by admitting or denying them,
that does not mean Glenn is entitled to habeas corpus relief. From the petition and the combined
respondent’s brief and return, we can tell the relevant facts in this case are
essentially not in dispute. The contested
issues—whether the assessment protocol is an underground regulation and whether
use of the invalid assessment protocol deprived the trial court of fundamental
jurisdiction—are legal ones. The return
could not formally respond to issues of prejudice or deprivation of a fair
trial because the habeas corpus petition made no such allegations. In the combined respondent’s brief and
return, the Attorney General argues Glenn suffered no prejudice and received a
fair trial, thus framing those issues for our review.

B. 2008 OAL Determination No. 19

The mental health
evaluators who performed the section 6601 evaluations of Glenn followed
the Clinical Evaluator Handbook and Standardized Assessment Protocol issued by
the DMH. In August 2008, the OAL issued
a determination that various challenged portions of the standardized assessment
protocol used by the DMH for SVPA evaluations—specifically, the Clinical
Evaluator Handbook and Standardized Assessment Protocol (2007)—met the
statutory definition of a regulation and, therefore, should have been adopted
pursuant to Government Code section 11340.5 of the Administrative
Procedure Act (Gov. Code, § 11340 et seq.). (2008 OAL Determination No. 19
(Aug. 15, 2008) pp. 1, 13 2008/2008_OAL_Determination_19.pdf> [as of June 5, 2013].) The OAL determined that, as such, the
protocol constituted an underground regulation as defined in California Code of
Regulations, title 1, section 250, and is therefore invalid. (2008 OAL Determination No. 19, >supra, at p. 13.) In In
re Ronje, supra, 179 Cal.App.4th
at page 516, we concluded the 2007 standardized assessment protocol was
invalid as an underground regulation.

C. Forfeiture

Challenges
based on noncompliance with statutory requirements and regulations pertaining
to evaluators should be raised in the trial court. (In re
Wright (2005) 128 Cal.App.4th 663, 672 [question whether evaluator had
requisite degree in psychology was an “evidentiary issue . . .
properly left to the trial court”].) In >People v. Medina (2009) 171 Cal.App.4th
805, 817, the court held the alleged sexually violent predator forfeited a
challenge to the validity of the assessment protocol as an underground
regulation by failing to raise the issue in the trial court.

Although
Glenn did not challenge the validity of the assessment protocol in the trial
court, his petition for writ of habeas corpus alleges 2008 OAL Determination
No. 19 is “‘newly discovered’ evidence” justifying habeas relief. The Attorney General does not deny that
allegation. (See People v. Duvall, supra,
9 Cal.4th at p. 476.) Accordingly,
we find no forfeiture.

D. Prejudice/Fair
Trial

However,
any error in using evaluations based on the invalid assessment protocol did not
deprive the trial court of fundamental jurisdiction over the petition to commit
Glenn as a sexually violent predator.href="#_ftn5" name="_ftnref5" title="">^[5] In People
v. Pompa‑Ortiz (1980) 27 Cal.3d 519, 529 (Pompa‑Ortiz), the California Supreme Court held 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.” (>Ibid.)
Because Glenn did not raise the issue of the invalid assessment protocol
until after his commitment as a sexually violent predator, he must show
prejudice to obtain relief. (>Landau, supra, 214 Cal.App.4th at p. 17.) Glenn has not shown he was deprived of a fair
trial or suffered prejudice as a result of the use of the invalid assessment
protocol.

Instructive
on the issue of prejudice are cases concerning irregularities in the SVPA
probable cause hearing because such irregularities are subject to harmless
error review. (People v. Butler (1998) 68 Cal.App.4th 421, 435 (>Butler).) In Butler,
the defendant challenged his sexually violent predator commitment on the ground
the trial court did no more than conduct a facial review of the commitment
petition at the probable cause hearing.
(Ibid.) The Court of Appeal agreed the trial court
erred by not holding a full evidentiary hearing, but held the >Pompa‑Ortiz rule applied. (Butler,
supra, at. p. 435.) The court concluded the defendant suffered no
prejudice because “[h]e was found to be an SVP after a trial at which he was
able to cross‑examine the prosecution’s witnesses and call his own
witnesses.” (Ibid.)

In> People v. Hayes (2006) 137 Cal.App.4th
34, 44 (Hayes), the People filed a
petition to recommit the defendant just as the initial term of commitment was
about to expire. Due to numerous delays,
the trial on the recommitment petition had not proceeded to trial by the eve of
the two‑year recommitment period.
(Ibid.) As a result, the People filed a second
petition to recommit the defendant for another two‑year period. (Ibid.) The trial court consolidated and tried the
two recommitment petitions. (>Ibid.)
The probable cause hearing on the second recommitment petition was not
conducted until the conclusion of trial.
(Ibid.)

The
Court of Appeal concluded the trial court erred by conducting the probable
cause hearing on the second recommitment petition at the conclusion of trial,
but held the error was not prejudicial under the Pompa‑Ortiz rule. (>Hayes, supra, 137 Cal.App.4th at p. 49.) Likening the probable cause hearing under the
SVPA to a preliminary hearing in a criminal
trial, the court reasoned:
“Defendant did not have a probable cause hearing until after the
evidentiary phase of trial had concluded and jury deliberations had begun. Thus, he had no pretrial probable cause
hearing at all. But like the defendant
who has an improper, nonevidentiary hearing—or a criminal defendant who has a
preliminary hearing without counsel, in effect no hearing at all—defendant
received a full‑blown trial and had a jury conclude, beyond a reasonable
doubt, that he was an SVP within the meaning of section 6600,
subdivision (a)(1).” (>Hayes, supra, at p. 51.)

In
In re Wright, supra, 128 Cal.App.4th at page 673, the court concluded the
defendant received a fair trial because he was represented by counsel,
presented his own expert witness, and was permitted to cross‑examine the
People’s witnesses. As for prejudice,
the Wright court stated: “The only possible prejudice [the defendant]
could have suffered was in the fact that the petition actually proceeded to
trial; however, our high court concluded that the erroneous denial of a motion
to dismiss an information under Penal Code section 995 will not be
reversed on appeal in the absence of a showing that the defendant was deprived
of a fair trial, or otherwise prejudiced in the ability to mount a
defense.” (Ibid.) The fact the
defendant was “compelled to ‘participate in an otherwise fair trial’” therefore
did not establish prejudice. (>Id. at p. 674.)

Glenn
received a fair trial. He was
represented by counsel, presented his own witnesses (including two expert
witnesses), and cross‑examined the People’s witnesses. (Butler,
supra, 68 Cal.App.4th at
p. 435.) After a full, public
trial, a jury found he was a sexually violent predator. We have concluded Glenn’s only assertion of
error occurring during trial—the limitations on his expert witness’s
testimony—had no merit.

Nor
did Glenn suffer prejudice. The 2008 OAL
Determination No. 19 did not suggest the assessment protocol was flawed or
unreliable as an instrument for assessing whether a person might be a sexually
violent predator. The 2008 OAL
Determination No. 19 concerned only the issue whether the assessment
protocol was a regulation and expressly stated it was not evaluating its
“advisability or . . . wisdom.”
(2008 OAL Determination No. 19, supra,
p. 1.) Once the petition was filed,
the People could not rely on the evaluations, but were “‘required to show the
more essential fact’” that Glenn is a sexually violent predator. (People
v. Scott (2002) 100 Cal.App.4th 1060, 1063.) At the probable cause hearing, Glenn could
have challenged the evaluations and cross-examined the evaluators. (Hayes,
supra, 137 Cal.App.4th at
p. 43.) He does not contend the
invalid assessment protocol was used at the commitment trial, harmed his
ability to mount a defense, or in any way influenced the jury in finding him to
be a sexually violent predator. He does
not challenge the sufficiency of the evidence at either the probable cause
hearing or the commitment trial.

Glenn
argues, “it is very possible that the [DMH], assuming it follows a fair
regulation adoption process, would adopt regulations that create a completely
different protocol for the evaluation of sexually violent predators.” This type of prejudice is not relevant under
a Pompa‑Ortiz analysis, and
Glenn concedes, “it is completely impossible to predict whether [Glenn] will be
found to qualify as a sexually violent predator under the new protocol.”

Glenn’s
challenge to the evaluations based on the invalid assessment protocol fails
because he received a fair trial and suffered no prejudice under the >Pompa‑Ortiz rule. For the same reason, his claim his trial
counsel was ineffective for not challenging the evaluations in the trial court
also fails. (Strickland v. Washington (1984) 466 U.S. 668, 687‑698.) “[A] court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies. . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be
followed.” (Id. at p. 697; accord, In
re Fields (1990) 51 Cal.3d 1063, 1079.)

III.

>Indeterminate
Commitment Under the 2006 Amendments to the SVPA Does Not Violate Due Process,
Equal Protection, Ex Post Facto, or Double Jeopardy.

Glenn
argues the SVPA, as amended in 2006, violates the due process, equal
protection, ex post facto, and double jeopardy clauses of the United States and
California Constitutions. We conclude
the 2006 amendments are constitutional.

A. The
Amended SVPA

As
originally enacted, the SVPA provided for a two‑year term of confinement
for persons civilly committed as sexually violent predators, subject to
subsequent petitions for extended commitment.
(Former § 6604.) The
Legislature amended the SVPA, effective September 20, 2006, to provide for
indeterminate commitment terms for persons determined to be sexually violent
predators. (Stats. 2006,
ch. 337, §§ 55, 56, 62, pp. 2665‑2668.) In the November 2006 general election,
California voters approved Proposition 83 (entitled “The Sexual Predator
Punishment and Control Act: Jessica’s
Law”), which also provided for indeterminate terms of commitment for sexually
violent predators. (Voter Information
Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 1,
p. 127; id., §§ 27, 28,
subd. (a), p. 137.)
Proposition 83 went into effect on November 8, 2006. (Prop. 83, §§ 27, 28, as approved
by voters, Gen. Elec. (Nov. 7, 2006); see Cal. Const., art. II,
§ 10, subd. (a).)href="#_ftn6"
name="_ftnref6" title="">^[6] Section 6604 now states: “If the court or jury determines that the
person is a sexually violent predator, the person shall be committed for an
indeterminate term to the custody of the [DMH] for appropriate treatment and
confinement in a secure facility . . . .” Thereafter, the committed person can be
released without the concurrence or recommendation of the DMH only by petitioning
the court for conditional release or unconditional discharge. (§ 6608, subd. (a).)

“[U]nder
Proposition 83, an individual SVP’s commitment term is
indeterminate, rather than for a two-year term as in the previous version of
the [SVPA]. An SVP can only be released
conditionally or unconditionally if the DMH 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. In other words, the method of petitioning the
court for release and proving fitness to be released, which under the former
[SVPA] had been the way an SVP could cut short his two‑year commitment,
now becomes the only means of being released from an indefinite commitment when
the DMH does not support release.” (>McKee I,
supra, 47 Cal.4th at pp. 1187‑1188.)

Section 6608,
subdivision (i) was not amended by Proposition 83 and continues to
provide that in a hearing on a committed person’s section 6608 petition
for release or discharge, “the petitioner shall have the burden of proof by a
preponderance of the evidence.”
(§ 6608, subd. (i).)
After the trial court denies a section 6608 petition, “the person
may not file a new application until one year has elapsed from the date of the
denial.” (§ 6608, subd. (h).)

B. Due
Process

Glenn
argues his indeterminate commitment term under the Amended SVPA violated the
due process clauses of the United States and California Constitutions. In McKee I,
supra, 47 Cal.4th at page 1193,
the California Supreme Court held the Amended SVPA does not violate th