P. v. Lyles

Filed 1/7/09 P. v. Lyles CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. C. Edward Simpson, Judge. Affirmed.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Carnot Andre Lyles appeals from an order recommitting him for an indeterminate term to the custody of the State Department of Mental Health (DMH), after a jury found him to be a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6600, subdivision (a)[1]of the Sexually Violent Predator Act (SVPA). Appellant contends that (1) the trial court erred in denying his motions to dismiss the petition for recommitment, (2) the trial court erred in limiting the number of peremptory challenges, (3) the trial court improperly denied appellants challenges to jurors for cause, (4) the trial court erred in allowing the victim of appellants 1988 sexual assault to testify, (5) introduction of that victims testimony was prosecutorial misconduct, (6) the evidence was insufficient to support the jurys finding that appellant was an SVP, (7) the trial court erred in applying the SVPA as revised in 2006[2]retroactively to appellants case, (8) appellants indeterminate commitment under the revised SVPA violates (a) the ex post facto clause, (b) due process, by placing the burden on him to prove that he should be released, (c) due process, by failing to provide mandatory periodic hearings to determine whether continued commitment is warranted, (d) the double jeopardy clause of the Fifth Amendment, (e) the equal protection clause of the Fourteenth Amendment, by providing limited periodic judicial review of his custodial status as compared with other civil commitment statutes, and (f) the prohibition against cruel and unusual punishment under the California Constitution and the Eighth and Fourteenth Amendments to the federal Constitution, (9) the limitations placed by the revised SVPA on the right to petition the court for release violates the First Amendment right to petition the government for redress of grievances, (10) Proposition 83 violates the single subject rule applicable to ballot initiatives, and (11) the cumulative effect of the errors was prejudicial to appellant and requires reversal of the commitment and imposition of a two-year commitment and subsequent dismissal.

We affirm.

FACTUAL BACKGROUND

The Prosecutions Evidence

Appellants criminal history

Appellant had a lengthy criminal history and was incarcerated for most of his juvenile and adult life, and continuously since 1988. As a minor, he was arrested for several burglaries and a strong-armed robbery, was frequently in fights and served a stint in boys camp. In 1972, he shot someone during a burglary, resulting in his commitment in the California Youth Authority (CYA).

In 1976, less than a year after appellant was paroled from the CYA, he was convicted by guilty plea of the rape and robbery of 65-year-old, China E. (China). He and an accomplice broke into her house, held her at knifepoint and threatened to kill her if she did not remain quiet. They raped and robbed her, taking money and her gun, after hitting her in the head with it. Appellants convictions were reversed on appeal for technical problems.

Five months after being paroled on a stolen vehicle conviction, appellant sodomized Lynn M. (Lynn). He hung her by a cord to a bedpost, and both he and his accomplice sodomized her while her husband and four-year-old child were in the room. When she complained she was choking, appellant told her to shut up or Ill kill you. When the perpetrators left, they took Christmas presents and the family car. Appellant was convicted of sodomizing Lynn with a firearm, false imprisonment, burglary and robbery with a firearm. He was paroled in 1986 and discharged from parole in 1988.

A month after his discharge from parole, appellant sexually assaulted nine-year-old Mary W. (Mary). She awoke at 2:30 a.m. and saw him lying at the foot of her bed. When Mary tried to walk upstairs, he grabbed her, covered her mouth, threw her on the bed and choked her until she urinated. He placed a pillow case over her head, put her on the bed and had oral sex with her. He rubbed his penis against her vagina, had intercourse with her and ejaculated on her stomach. Appellant admitted committing a lewd and lascivious act with a minor under the age of 14 and received eight years in state prison.

While out on bail from the assault on Mary, appellant, armed with a gun, entered a residence with an accomplice. He claimed that the woman who lived there owed him money. Inside, he struggled with her, tore her clothing and discharged the gun on the floor. He struck the man, who lived with the woman, on the head with the gun.

The Peoples mental health experts

Dr. Robert Owen

Dr. Robert Owen, a clinical psychologist in private practice, conducted hundreds of SVP evaluations. In 1999, he first interviewed appellant and reviewed pertinent records. He concluded that appellant suffered from paraphilia NOS (paraphilia) and antisocial personality disorder (ASPD).

Dr. Owen explained that paraphilia is a chronic sexual deviance characterized by sexual interest, arousal and excitement in sexual acts with nonconsenting persons that occur over a period of at least six months. It does not change much over time. Men with paraphilia have distorted ways of looking at people and looking at sex. They feel entitled to take what they want. They see women or girls as objects, not as human beings. []  . . .  [] Finally, we see the behaviors, the overt behaviors being able to be aroused and excited and [have] erections, ejaculate. . . .

In diagnosing appellant with paraphilia, Dr. Owen observed that in his assaults on China, Lynn and Mary he sadistically enjoyed humiliating them. During each attack he became sexually aroused, raping China, sodomizing Lynn, which is particularly degrading and . . . painful, and being so aroused with Mary that he ejaculated on her stomach. He used greater force than necessary to accomplish the sex acts. While it was 16 years since his last conviction, appellant was incarcerated during that time and did not seek available treatment for paraphilia.

Dr. Owen testified that appellants ASPD is a long term enduring and criminal orientation that goes beyond antisocial. He is a psychopath, that is, a person who is extremely dangerous, very callous [and] aggressive, [and] simply do[es]nt have a consc[ience]. Appellant received a high score on the Hair Psychopathy checklist, a measure of psychopathy. In reaching this diagnosis, Dr. Owen considered that appellant began his life of crime when he was 12 years old and had a lengthy and continuous adult criminal record, showing that he was undeterred by consequences, arrest or public humiliation.

Even in prison, appellant was cited for various violations. Though many were minor, Dr. Owen considered significant an incident in 1984 during which he became angry at a female correctional officer who was searching his pockets. In 1992, appellant threatened to pistol whip and rape a female officer if he ever saw her on the street. He claimed he was joking. In the mental hospital, appellant has been fairly pleasant [and] cooperative, but did not participate in the SVP therapy that he needed.

When Dr. Owen attempted to reinterview appellant in 2005, appellant refused. However, seven months before trial, Dr. Owen obtained a recorded interview with him and concluded that he was essentially the same as he was in 1999. Dr. Owen said appellant was not really willing to look at the whole impact of his terrible acts and tended to understate his actions.

Dr. Owen opined that appellant would likely commit a sexually violent predatory crime if released. In reaching this conclusion, he relied upon his interviews with appellant, appellants score of eight on the Static 99 scale, which placed him well within the high risk category of committing such crimes,[3]appellants high score on the psychopathy scale, and the fact that he did nothing to reduce his risk through available treatment. Appellants age of 49 did not diminish the risk as much as it might have if he were 65 or 70.

Dr. Dawn Starr

Dr. Dawn Starr, a psychologist had also conducted hundreds of SVP evaluations. In March 2003, she first interviewed appellant, after reviewing relevant documents. She briefly reinterviewed him in 2004, at which time appellant said he had attended only phase one of the five-phase SVP treatment program at Atascadero. This phase provided him with information but did not require his active participation. In early 2006, Dr. Starr received a document indicating that appellant made a comment to Lynns husband at a 1999 hearing that: This is a long-term problem, as in a 15-round fight. This is only round five. . . .  I should have offed [sic] you when I had the chance. When Dr. Starr met appellant in April 2006, he refused to give a full interview.

Dr. Starr opined that appellant was a psychopathic SVP, suffering from paraphilia, ASPD and narcissistic personality disorder. Dr. Starrs conclusion that he was paraphilic was based in part upon the short time periods between his sex offenses. His first such offense occurred when he was 19 years old. He approached an undercover police officer and patted her twice on the buttocks. He was convicted of battery. A couple of months later, he brutally raped China. A short time after that, he sodomized Lynn. After serving his sentence, appellant was paroled, but returned to prison when he assaulted Mary. Thereafter, he and an accomplice robbed two people in their home. Appellant tore the womans clothes, struck the man in the face and ran when the gun accidentally discharged. Dr. Starr also considered appellants prison incidents with female officers and his references in 1997 to women in group therapy sessions as bitches and hoes.

Dr. Starr also considered that during her interview of appellant, he minimized his crimes. He blamed his accomplice for tying up Lynns husband, denied sodomizing her, claiming he only had intercourse with her (although Lynn claimed he sodomized her), denied that her husband and child witnessed the crime and said he loosened the cord from her neck when Lynn said she was choking. Appellant said he was full of rage when he committed the offense because he had not been allowed to attend his sisters funeral when he was incarcerated. With respect to Mary, appellant claimed that he sexually assaulted her to teach [her] mother a lesson for failing to pay him $30 for a drug deal. While admitting that he rubbed his penis against Mary, licked her vagina, choked her and put a pillow over her face, he denied penetrating her. He showed no genuine shame, guilt or remorse.

Dr. Starr further opined that appellant had a narcissistic personality disorder, exhibiting a sense of grandiosity and entitlement to sex or whatever he wants. He had a profound lack of empathy for his . . . victims[,] and hes arrogant. He was also a pathological liar with a kind of pre-occupation with this victim, as evidenced by his 2005 statement to a doctor that Mary was wild and cussed and drank and got high and that his wife was her church counselor. Mary denied ever talking to appellants wife.

Dr. Starr concluded that appellant was an SVP with a high risk of committing another sexual offense if released. His sexual attitudes and general personality had not changed from her earlier evaluations, even though his health and age were mitigating factors, and he was less physically aggressive than when he was young. He scored in the high risk range on the Static 99 scale and had anger and hostility problems that increased the likelihood of reoffense. Dr. Starr believed appellant was a psychopath, rating high on the Hair Psychopathy scale. His criminal history showed that when released from prison, he quickly committed new sexual offenses.

The defenses evidence

Appellants testimony

Appellant testified on his own behalf. He was 49 years old. His life of crime began at age 12. He attempted to explain his sexual offenses, but could not explain why he attacked China. He molested Mary to get back at her mother for failing to pay him for a drug sale. He admitted choking Mary, licking her vagina and rubbing his penis on her stomach, but denied having intercourse with her. Appellant denied telling a doctor that Mary went to his wife for counseling. When appellant assaulted Lynn, he did not expect her or her husband to be home. Appellant and his accomplice woke them up to facilitate the robbery. After his accomplice sodomized, orally copulated and hung Lynn from a cord, appellant had intercourse with her. He denied sodomizing her. When asked why he did it, appellant said that he was mad at the world and they were white people. . . . He was angry at them because a white lieutenant did not permit him to attend his sisters funeral. He could not explain why he had an erection. He admitted that he never broke into a house where there was a woman present without sexually assaulting her.

In December 1979, appellant went to jail for assaulting Lynn. He spent four years in the hole because of bad behavior in prison. While there, he stabbed two people; one he thought was going to stab him and the other wouldnt let [him] sit on the front of the bus.

Appellant participated in several education programs in prison, before he was found to be an SVP. He did not participate in the Atascadero five-step, SVP program after Phase I because he would not sign a consent form. He testified that after what happened with Mary, it changed [him]. He became a Christian in 1988, which changed [his] heart. Also, his two bouts of cancer led him to believe he was close to death, and he did not want to die in prison. He said he would not sexually assault if released and can control his sexual offending, as he was now responsible for his actions. He claimed his sex offenses were motivated by hatred, not sexual gratification.

Dr. Amy Phenix

Dr. Amy Phenix, a clinical psychologist in private practice, developed the protocol for SVP evaluations, trained evaluators and conducted hundreds of such evaluations. She evaluated appellant after reviewing pertinent records and conducting a clinical interview. She did not find that appellant was paraphilic, even though he had erections and ejaculated during his sex offenses. His sexual offenses were for the predominant purpose of gaining power by hurting and humiliating people, not for arousal to nonconsensual sex.

Dr. Phenix believed that appellants three serious sex offenses suggested that he may have a paraphila, not that he necessarily did. To be a paraphilic there must be sufficient evidence of a repetitious pattern of deviant behavior over a sufficient period of time to indicate an internal drive to engage in coercive nonconsenting sex with others, reflecting a preference for that type of sex, as opposed to general criminal behavior. While appellant had severe ASPD, there was insufficient evidence he was paraphilic. ASPD is not a diagnosed mental disorder as defined by the SVPA because it bears on general criminality, not sexual reoffense. She found no evidence appellant engaged in abnormal sexual behavior as a juvenile.

Dr. Phenix testified that if appellant was paraphilic, there would be more historical evidence of sexual abnormality. At Atascadero, there would have been evidence of pornography in his room, stalking of female staff, over stimulation to masturbation, and exposure and inappropriate touching. There was no such evidence. Also, several of his crimes were committed with accomplices, while paraphilics ordinarily commit sex crimes alone. The crimes against China and Lynn appeared to Dr. Phenix to be more antisocial. Most rapists do not have paraphilia, as they are not aroused by a womans fear. The crime against Mary bore little relationship to the other two offenses so as to be considered part of a pattern.

Dr. Phenix acknowledged that being paraphilic is not a prerequisite to being an SVP. ASPD can also qualify one as an SVP. But appellants ASPD had moderated with age. Between 1989 and 1994, his behavior in prison had calmed down, and he had taken numerous classes to improve his life. He was largely compliant at Atascadero, participated in anger management classes, and got along well with staff and peers. He received favorable evaluations by his treatment team, admitted his crimes to them and willingly discussed them. When he was told just before his scheduled release from prison in 1994 that he had been committed, he did not react violently. Dr. Phenix opined that appellant did not have a present mental disorder, as required by the SVPA and did not present a well-founded risk that he would sexually reoffend.

Dr. Phenix acknowledged that paraphilia could be dormant for 18 years while appellant was incarcerated. But research indicates that behavior of acting out violently reduces as a person ages, particularly in a person in the late 40s and 50s. While appellant also had a high level of psychopathy, which increases the risk of violent sexual reoffense if released, she believed it too had mediated with age. Sexual deviance is the strongest predictor of sexual reoffense.

Dr. Hy Malinek

Dr. Hy Malinek, a forensic psychologist, evaluated appellant in February 2005, at the request of the DMH, after interviewing him and reviewing his criminal and medical records. Dr. Malinek had conducted approximately 250 SVP evaluations. He reviewed appellants three sex offenses, which he described as heinous, violent, and callous.

Dr. Malinek diagnosed appellant with severe, powerful ASPD, but not with paraphilia because appellants sex crimes were not a product of an independent sexual deviation. Dr. Malinek observed no evidence of sexual deviancy, no sexual misconduct in 17 years and did not believe appellant would reoffend. He believed that if appellant suffered from paraphilia, there would have been more evidence of it. Appellants rapes in the course of the robbery were not an attempt to seek a woman because he entered the house with the intent to rob. The first evidence was the rape of China in 1976. He, like Dr. Phenix, believed the rapes of China and Lynn were not paraphilic because they were committed with an accomplice, along with additional crimes against those victims. The 1988 crime against Mary was a crime of retaliation. If that attack was evidence of paraphilia, Dr. Malinek would have expected to see more sexual incidents in prison. Appellants score of eight on the Static-99 scale does not mean that he is likely to reoffend, but only that he is in a group who, on average, is at a higher risk to reoffend. His sexual acts were more extensions of his anti-social personality.

Dr. Malinek agreed with Dr. Phenix that appellants ASPD had weakened because of age, cancer episodes, increased control, and various classes that he took. He had little trouble while incarcerated since 1990. He had shown no volitional control issues since 1999 and participated in group programs showing a desire to rehabilitate.

On cross-examination, Dr. Malinek acknowledged that all three of appellants significant incarcerations were for sex offenses. In each, he evidenced no self-control. Appellant scored in the high risk category for both sexual offense recidivism under the Static 99 scale and on the psychopath scale. The Static 99 test is the best predictor of future sexual recidivism as compared to clinical judgment. One study has concluded that a high score on the Static 99 and a high psychopathy score in combination reflect a high rate of recidivism for sexually violent predatory offenses. Dr. Malinek still doubted whether appellant ever had paraphilia, and he had not had a strong ASPD incident since 1990. But he acknowledged that good institutional behavior should not be used to discount a patient violating community behavior.

DISCUSSION

I

APPLICABLE STATUTES

A. The SVPA

According to the Assembly Committee on Public Safetys Bill Analysis Worksheet of Assembly Bill No. 888 (1995-1996 Reg. Sess.), the SVPA was adopted to remedy the gaping hole in the law which allowed hundreds of dangerous sex offenders to be released from prison every month at the end of their terms and [u]nder current law, there is no legal authority to detain and treat sexually violent offenders who, because of a mental abnormality or personality disorder, are likely to reoffend once released from prison. Likewise, there is no current way to prevent their release into society.

Before the Revisions, the SVPA provided two-year terms of involuntary civil commitment and treatment of persons who, by a unanimous jury verdict after trial, were found beyond a reasonable doubt to be an SVP. (Former 6603, subds. (a) & (f), 6604; People v. Williams (2003) 31 Cal.4th 757, 764.) An SVP was defined as a person who has been convicted of a sexually violent offense against two 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. (Former 6600, subd. (a).) The qualifying sexually violent offenses were specified in the statute. (Former 6600, subd. (b).)

A persons commitment could not be extended beyond the initial two-year term unless a new petition was filed requesting a successive two-year commitment. (Former 6604, 6604.1; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243, fn. 5.) On filing of a recommitment petition, a new jury trial would be conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. (Former 6604, 6605, subds. (d), (e); Cooley v. Superior Court, supra, at p. 243, fn. 5; People v. Ward (2002) 97 Cal.App.4th 631, 634 [procedure for initial commitment applied to extended commitment to the extent possible].) The SVPA provided two ways a defendant can obtain review of his or her current mental condition to determine if civil confinement is still necessary. [First,] [s]ection 6608 permits a defendant to petition for conditional release to a community treatment program. . . .  [Second,] [s]ection 6605 [requires] an annual review of a defendants mental status that may lead to unconditional release. (People v. Cheek (2001) 25 Cal.4th 894, 898.)

B. The Revisions

On September 20, 2006, the Governor signed the Sex Offender Punishment, Control and Containment Act of 2006 (Jessicas Law), Senate Bill No. 1128 (2005-2006 Reg. Sess.) (S.B. 1128) as urgency legislation that immediately went into effect. (Stats. 2006, ch. 337, 62.) In addition to other changes not germane here, it amended the SVPA to provide that the initial commitment set forth in section 6604 was for an indeterminate term. (Stats. 2006, ch. 337, 55.) (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 12801281 (Bourquez).) The government no longer has to prove every two years, beyond a reasonable doubt, that the person remains an SVP. Instead, the DMH is required to examine the persons mental condition at least once a year and report annually on whether the person remains an SVP. ( 6605, subd. (a).) The person may retain, or if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person. (Ibid.) If the DMH determines that the person is no longer an SVP, the director must authorize the person to petition the court for unconditional discharge. ( 6605, subd. (b).) If the trial court considers the petition and concludes that the person is no longer an SVP, it must conduct a hearing at which the government must prove beyond a reasonable doubt that the person remains an SVP. (Id.subds. (c) & (d).) If the government meets its burden, the person is again committed for an indefinite period. (Id.subd. (e).) If it does not, the person is discharged. (Ibid.)

The only other avenue for release under the revised SVPA is a petition under section 6608 for either conditional release or unconditional discharge. For this procedure, the concurrence of the DMH is not required. ( 6608, subd. (a).) In a section 6608 hearing, the petitioner has the burden of proving that he or she is not an SVP by a preponderance of the evidence. ( 6608, subd. (i).)

At the November 7, 2006 general election, the voters approved Proposition 83, an initiative measure, (Deering s Ann. Welf. & Inst. Code (2007 supp.) appen. foll. 6604, p. 43) making essentially the same changes to the SVPA as S.B. 1128, as applicable here.

C. The Revisions do not convert the SVPA into a penal statute

We initially consider an issue at the core of several of appellants contentions: Whether the Revisions render the civil commitment proceedings of the SVPA punitive in nature. We conclude that they do not.

Relying on Kansas v. Hendricks (1997) 521 U.S. 346, our Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1171, 1179 (Hubbart) held that the SVPA, prior to the Revisions, was not punitive within the meaning of the ex post facto clause. It reasoned that the Legislatures characterization of the law plays a crucial role in this determination, and that the Legislature declared its intent to establish civil commitment proceedings in order to provide treatment to mentally disordered individuals who cannot control sexually violent criminal behavior. (Id.at p. 1171.) It placed the SVPA in the Welfare and Institutions Code, next to other acts concerned with the care and treatment of mentally ill and disabled individuals (ibid.) and referred to an SVPs condition as sick, not criminal. ( 6250.) But the Legislatures stated intent can be negated by a showing that the statute is so punitive either in purpose or effect. (Hubbart, supra, 19 Cal.4th at p. 1172.) Hubbart did not find the SVPA to be so punitive.

As our starting point, we are, of course, bound by the determination in Hubbart that the SVPA before the Revisions was not punitive. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We must decide whether the Revisions alter this conclusion.

Nothing in Proposition 83 or S.B. 1128 suggests any change in the Legislatures intent that the SVPA be a civil commitment proceeding. We usually defer to the Legislatures statement of intent, and only the clearest proffer will suffice to override that intent and transform what has been denominated a civil remedy into a criminal penalty. (Smith v. Doe (2003) 538 U.S. 84, 92.) Appellant points to the intent paragraph of Proposition 83, which states: It is the intent of the People of the State of California in enacting this measure to strengthen and improve the laws that punish and control sex offenders. It is also the intent of the People of the State of California that if any provision in this act conflicts with any other provision of law that provides for a greater penalty or longer period of imprisonment the latter provision shall apply. (Official Voter Information Guide for the California General Election of November 7, 2006, p. 138.) He argues that this reflects an intent to punish SVPs.

Proposition 83 was a broad, multifaceted effort by the Legislature to deal with the problem of sex offenders. Not only did it amend the SVPA, it increased penalties for violent and habitual sex offenses, prohibited probation for some sex offenses, eliminated early release credits, extended parole for specified sex offenses, and imposed various living and other restrictions on registered sex offenders. (Official Voter Information Guide for the California General Election of November 7, 2006, pp. 43-44.) Hence, nothing in the intent paragraph of the proposition suggests that the reference to punish refers to anything other than that portion of the proposition dealing with increased punishment for specified sex offenses. It cannot reasonably be read as an intent to convert the SVPA into a punishment.

Nor are the Revisions so punitive either in purpose or effect (Hubbart, supra, 19 Cal.4th at p. 1172) as to belie their civil nature. The principal changes to the SVPA include, (1) defining more sex offenders as SVPs, (2) adding various sex offenses as predicate offenses (3) requiring that the offender have been convicted of only one, not two such offenses, and (4) replacing the two-year commitment procedure, whereby the state had to file a new petition every two years and go through the entire initial commitment procedure, with an indeterminate commitment. These changes did not change the essential nature of the SVPA. The Revisions did not change the length of the persons commitment, the term of which continues to be until the person is no longer a danger. To accomplish that goal, the revised SVPA still authorizes the person to file a petition for release when DMH finds that he is no longer an SVP ( 6604) or petition for conditional release or discharge under section 6608 without DMH authorization. Nothing in the Revisions necessarily requires a greater term of commitment than in the original SVPA. They simply take into account that being an SVP is a long-term condition that is not readily changed, and that requiring the plenary commitment process every two years is costly, wasteful and unnecessary.

II

DISMISSAL OF PETITION

A. Procedural background

In August 1999, appellant was first adjudicated an SVP and was committed. On May 15, 2003, a petition was filed (2003 petition) to extend the commitment from August 17, 2003 through August 17, 2005. On August 3, 2005, before the 2003 petition was adjudicated, another petition was filed (2005 petition) to extend the commitment from August 17, 2005 through August 17, 2007. The parties stipulated that any jury finding with respect to the 2005 petition would apply to the 2003 petition. At the probable cause hearings on the two petitions, probable cause was found.

The 2003 petition was premised upon the evaluations of Drs. Starr and Nair, both of whom found that appellant met the SVP criteria. Before the hearing, updated evaluations were obtained. Dr. Nair reversed his opinion and concluded that appellant no longer met the SVP criteria. The prosecution then sought additional evaluations from Drs. Owen and Malinek. Dr. Owen found that appellant met the SVP criteria, and Dr. Malinek found that he did not.

Before trial, appellant filed two motions to dismiss the 2003 petition. The motions were made on the ground that there was a split between evaluators as to whether appellant currently met the SVP criteria.

The prosecutor argued that when the 2003 petition was filed, it was supported by two affirmative opinions that appellant was an SVP. The subsequent split did not warrant dismissal. Appellant argued that dismissal was proper because the motion was filed prior to a probable cause hearing, when trial was not imminent, and there was a split of opinions.

The trial court denied the motions. In regard to the first motion, it stated that it did not believe it had lost jurisdiction because an original evaluator changed his position. In regard to the second, it stated that the motion had been previously made and denied.

B. Contentions

Appellant contends that the split of opinions between the evaluators mandated dismissal of the 2003 petition. He argues that section 6601, subdivisions (e) and (f) require a concurrence of two mental health professionals before a petition can be filed. As a result of Dr. Nairs change of position after the petition was filed, there was a split of opinion. When two additional independent professionals, Drs. Owen and Malinek, evaluated appellant, they too disagreed. Appellant argues that proceeding to trial despite the division of opinion denied him his rights to due process under article I, sections 7, 15, and 24 of the California Constitution and the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution. This contention is without merit.

C. Applicable statutes

Section 6601 provides the procedure for filing a petition to commit a person as an SVP. The person shall be evaluated by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist appointed by the Director of the DMH. ( 6601, subd. (d).) If both concur 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 Director can forward a request for a petition for commitment, along with copies of the evaluation reports and other supporting documents, to the designated attorney for the designated county, who may file a petition for commitment. (Ibid.) If one of the professionals does not believe the person meets the criteria and one does, evaluations by two independent professionals, who are not state employees, must follow. ( 6601, subd. (e).) A petition can then only be filed if both independent professionals concur that the person meets the criteria. ( 6601, subd. (f).)

Because commitment requires a finding that the person is an SVP at the time of the hearing, the prosecuting attorney has the right to obtain updates of the evaluations if necessary to properly present the case for commitment. If those result in split opinions, then evaluations from two independents under section 6601, subdivision (f) must be conducted. ( 6603, subd. (c)(1).)

D. Two evaluations requirement

Gray v. Superior Court (2002) 95 Cal.App.4th 322 (Gray) is instructive on the question before us. In Gray, a petition for commitment as an SVP was filed against Gray in October 1996. It was supported by expert evaluations of Drs. Jackson and Haddock, who agreed that Gray met the SVP criteria. The matter did not substantially progress until 1999, when, after the probable cause hearing called for by section 6602, Gray filed a petition seeking dismissal because two of the three new evaluations by Drs. Kania, Owen and Matosich, concluded that he did not meet the SVP criteria. In 2001, four more evaluations were obtained. In January, Dr. Matosich found that the defendant met the criteria, and Dr. Jackson found he did not. In March, a similar split of opinions occurred between Drs. Sheppard and Arnold. Gray moved for summary judgment arguing that Dr. Kanias 1999 opinion replaced Dr. Haddocks (who was no longer personally available), creating a split with Dr. Jackson and that under section 6601, subdivision (f), the petition was only proper if both of the second set of evaluators, Drs. Owen and Matosich, agreed that he met the SVP criteria. They did not agree. (Gray, supra, at pp. 324325.)

The Court of Appeal concluded that the filing of the petition was properly supported by the two concurring initial evaluations of Drs. Jackson and Haddock. It found that while section 6601, subdivision (f) prohibits the filing of a petition under the SVPA unless both of the subsequent independent evaluators concur that the subject qualifies, nothing in section 6603, subdivision (c) or section 6601, subdivision (f) dealing with independent evaluations requires that an already filed petition be dismissed if those updated evaluations reflect a split of opinion. (Gray, supra, 95 Cal.App.4th at pp. 327328 [To say that a petition may not be filed unless certain conditions are met is not the same as to say that proceedings may not go forward if those conditions cease to exist].) We agree with Gray.

Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) The language of section 6601 is clear that two expert opinions that the person meets the SVP criteria are required before a petition can be filed. It nowhere suggests that those opinions must remain constant for the duration of the proceedings.

Furthermore, we presume the Legislature was aware of the Gray opinion. (In re Rayna N. (2008) 163 Cal.App.4th 262, 268269; In re Anthony C. (2006) 138 Cal.App.4th 1493, 1521 [We generally presume the Legislature is aware of appellate court decisions].) Though it has amended the SVPA after the Gray decision, it has made no changes reflecting disagreement with thatdecision.

Appellant argues that Gray is distinguishable because the trial court there had already found probable cause to try the question of whether appellant was an SVP before the subsequent evaluations were requested and before the anticipated trial date. He argues that because the trial court had already determined probable cause, any discrepancy in the evaluations was for the trier of fact. In the matter before us, he continues, the probable cause hearing had not yet been conducted.

This distinction makes no difference. The SVPA makes two evaluations finding a person to be an SVP a requirement for filing a petition. There is no requirement that two experts so testify at the trial of the matter. (People v. Scott (2002) 100 Cal.App.4th 1060, 1064.) The SVPA says nothing to suggest that a later split of opinion, should call the statutory procedure to a halt. As stated by the Court of Appeal in In re Wright (2005) 128 Cal.App.4th 663, 672, The evaluations are a prerequisite to the filing of the petition and the evaluations serve as a procedural safeguard to prevent meritless petitions from reaching trial. [Citations.] The filing of the petition initiates a new round of proceedings and rather than demonstrating the existence of the two evaluations, the People are required to show the more essential fact that the alleged SVP is a person likely to engage in sexually violent predatory criminal behavior.

III

JURY ISSUES

A. Peremptory challenges

Before trial, the trial court told the parties that each would receive six peremptory challenges. Appellant contends that the trial court erred in limiting him to that number. He argues that because the Revisions replaced the two-year period of commitment with an indeterminate commitment, the number of peremptory challenges must increase to the same number of challenges afforded criminal defendants subject to life imprisonment. This contention is meritless.

In criminal cases where the charged offense is punishable by death or life imprisonment, each of the parties is entitled to 20 peremptory challenges. (Code. Civ. Proc., 231, subd. (a).) In civil cases, each party is entitled to only six. (Code Civ. Proc., 231, subd. (b).)

As discussed in part IC, ante, the SVPA is a civil commitment statute. It is not penal in intent or effect. Thus, only six peremptory challenges are authorized. Our conclusion is supported by the First District Court of Appeal which has similarly held. (People v. Calhoun (2004) 118 Cal.App.4th 519, 527.) Although our Supreme Court has not weighed in on this specific question, it has considered an analogous situation in People v. Stanley (1995) 10 Cal.4th 764. There, it held that in a Penal Code section 1368 competency hearing, a special proceeding civil in nature, the defendant is only entitled to the number of peremptory challenges allowed in civil trials, even if the underlying offense is punishable by death or life imprisonment. (People v. Stanley, supra, at p. 807.)

B. Challenges for cause

During voir dire, Juror No. 7 responded that the nature of the underlying offenses and appellants prior behavior were completely unsettling. The juror said that, My palms are sweaty. I dont think I could be fair. Because Im feeling very angry; Im feeling very angry for those actions even though this is a long time. They are so powerful.

After the People passed for cause, the trial court asked defense counsel to identify the jurors he challenged for cause and to identify by seat number the juror and then provide the court with your statement as to why you believe that that juror should be excused for cause and then I will rule on each of them individually. Defense counsel began identifying those jurors one at a time, explaining the basis of the challenge. The trial court ruled on each challenge for cause as the discussion of each concluded. Defense counsel then collectively stated that jurors 1, 2, 4, 6, 7, and 8 all stated that their discomfort would affect their ability to be fair.[4] The trial court admonished defense counsel, Well were taking these one at a time. Defense counsel then proceeded with his challenges one at a time, but failed to again mention a challenge to Juror No. 7, thereby failing to obtain a ruling on that challenge. All of defense counsels other challenges for cause were denied.

Appellant contends that the trial court prejudicially erred by failing to excuse Juror No. 7 for cause on the basis of actual bias. The People contend that appellant forfeited this claim by failing to specifically challenge Juror No. 7 for cause and failing to utilize a peremptory to remove that juror after the challenge for cause was denied. We agree with the People.

A prospective juror may be challenged for cause when the juror is disqualified from serving in the action or trial, harbors implied bias or harbors actual bias. (Code Civ. Proc., 225, subd. (b).) Challenges for cause are required to be exercised before peremptory challenges. (Code Civ. Proc., 226, subd. (c).) In order for the defense to prevail on appeal of a claim of error in denying a challenge for cause, it has the burden of establishing that the defendant (1) exercised a peremptory challenge to remove the juror in question, (2) exhausted all available peremptory challenges, and (3) expressed dissatisfaction with the jury as finally constituted. (People v. Maury (2003) 30 Cal.4th 342, 379.)

Appellant did not preserve for appeal his claim that the trial court improperly denied his challenge for cause to Juror No. 7. The trial court instructed defense counsel to raise his challenges one at a time after counsel lumped six of them, including his challenge to Juror No. 7, together. After being so instructed, counsel failed to state a challenge to Juror No. 7, thereby forfeiting his claim. Furthermore, the trial court never ruled on the challenge, and appellants counsel did not request a ruling when it was not forthcoming. (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 711, fn. 4 [failure to request ruling on evidentiary objections in connection with summary judgment motion waived objections].) Defense counsel also failed to utilize a peremptory challenge to remove Juror No. 7, as required. (People v. Maury, supra, 30 Cal.4th at p. 379.)

IV

ADMISSION OF EVIDENCE

A. Introduction of Marys testimony not erroneous

After opening statements, before Mary, the first witness, was called by the People to testify, defense counsel objected to her testifying to the details of appellants assault on her because it was irrelevant, would be cumulative to the testimony of the mental health evaluators, was res judicata because found to be a predicate offense in appellants 1999 SVP commitment proceeding, and defense counsel offered to stipulate to it as a predicate qualifying offense.

The prosecutor acknowledged that appellants prior conviction was found to be a qualifying, predicate offense at a previous SVP hearing, and, under People v. Munoz (2005) 129 Cal.App.4th 421, 431, footnote 3 (Munoz), was res judicata as to that fact. But, she argued, that was not the purpose of introducing that evidence. It was being offered to establish that the offense was a violent sexual offense, the extent of [appellants] sexual deviancy and [to] support the mental diagnosis. It was also necessary because the victim was not fully aware of the extent of the assault when she testified in the prior proceeding.

The trial court overruled the objections but restricted Mary from testifying about the effects of the attack on her.

Appellant contends that the trial court erred in allowing Mary to testify. He argues that the nature of the offense had already been proved in the prior SVP proceeding and was therefore res judicata. He further argues that this evidence was prejudicial because the jury was allowed to hear every minute detail of the events involving this victim who was nine years old at the time of the assault, having a substantial emotional impact on the jury. This contention is without merit.

Except as otherwise provided by statute, all relevant evidence is admissible. (Evid. Code, 351.) Relevant evidence is evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.) The trial court has broad discretion in determining relevance of evidence. (People v. Riggs (2008) 44 Cal.4th 248, 289.)

To establish a person as an SVP, it is necessary to prove that the person suffers from a diagnosed mental disorder ( 6600, subd. (a)) 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)), and the person has been convicted of a sexually violent offense. ( 6600, subd. (a).) A sexually violent offense is one of the statutorily specified offenses (including lewd and lascivious conduct to a minor under 14 years old, of which appellant was convicted) when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person. . . . ( 6600, subd. (b)).

We agree with appellant that the finding that he was convicted of a sexually violent offense under the SVPA can be established at a subsequent SVP hearings by res judicata. (Munoz, supra, 129 Cal.App.4th at p. 431, fn. 3.) But this does not suggest that the prosecution cannot offer details of the offense into evidence if they are relevant to another issue. Appellants conviction of lewd conduct with Mary was relevant to issues other than establishing the predicate offense. Dr. Phenix, a defense expert, testified that paraphilia is an internal drive to engage in nonconsenting sex. In order to diagnose it, she looks for a pattern of behavior and deviance, as paraphilia is determined by the repetition of behaviors over enough time. Consequently, the details of appellants offenses were relevant to assessing if such a pattern existed. The Peoples expert, Dr. Owen, pointed to the fact that erection and ejaculation are key ingredients in determining if a person is sexually aroused by sexually assaulting a nonconsenting person. This too demonstrates the relevance of Marys testimony regarding the details of appellants sexual assault.

As stated in People v. Hubbart (2001) 88 Cal.App.4th 1202, 1234, [T]he testimony about defendants string of sex offenses . . . was highly probative of the two issues that the jury had to decide: whether defendant had a diagnosed mental disorder that made him a danger to the health and safety of others; and whether, due to that mental disorder, defendant was likely to engage in sexually violent behavior if released. . . .  The way that defendant targeted similar victims and committed the crimes in a similar manner showed his predatory behavior and the risk he posed if released. Although there was expert testimony on those issues, the details of the crimes were helpful for the jurys understanding of the experts opinions and diagnoses. Although the details of the crimes were odious, it was necessary for the jury to learn not just that defendant had committed numerous sex offenses, but the scope and nature of his sexually predatory behavior.

Marys testimony was not cumulative to the testimony of the mental health evaluators, as it was admitted regarding the details of the assault. The evaluators testimony regarding the assault was not admitted for the truth of what occurred, but only for the limited, nonhearsay purpose of establishing the basis for the experts opinions, and the jury was so instructed.

We do not find Munoz, relied upon by appellant, helpful. In that case, the reason for admission of evidence regarding the defendants prior SVP commitments and sexually violent predicate offenses was as part of the history of the case. (Munoz, supra, 129 Cal.App.4th at p. 426.) The Court of Appeal reversed the trial court ruling allowing admission of that evidence, concerned that it would cause the jury to misfocus on whether the defendants status had changed, rather than rendering a new determination by a trier of fact that the defendant is an SVP. (Munoz, supra, at p. 430.) Here, the evidence was admitted in supporting the current diagnosis that appellant was an SVP.

B. Introduction of Marys testimony was not prosecutorial misconduct

During discussion of jury instructions, the prosecutor informed the trial court that she and defense counsel would stipulate that the prior predicate offenses were true and accurate and that they need not be proved. All that needed to be proved was the current diagnosable mental disorder and the likelihood of appellant committing a violent predatory sexual offense if released.

Appellant contends that the admission of Marys testimony constituted prosecutorial misconduct. He argues that the prosecutors claimed basis for the admission of this evidence was to establish the offense was a sexually violent offense. . . .  [I]t was res judicata in the current proceedings. The prosecutor engaged in misconduct by seeking to admit the ugly details of appellants offense against Mary while knowing that the prior qualifying offenses were res judicata. The People contend that appellant forfeited this claim by failing to raise it in the trial court. We agree with the People.

Generally, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] This general rule, however, does not apply if a defendants objection or request for admonition would have been futile or would not have cured the harm caused by the misconduct; nor does it apply when the trial court promptly overrules an objection and the defendant has no opportunity to request an admonition. [Citation.] (People v. McDermott (2002) 28 Cal.4th 946, 1001.) At no time did defense counsel assert that the prosecutors efforts to admit Marys testimony or the probation report containing the details of appellants assault on her was prosecutorial misconduct. Appellant has failed to show that an exception applies, and he may not now raise this claim.

If this claim had been preserved for appeal, we would reject it. A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (Ibid.; People v. Ochoa (1998)19 Cal.4th 353, 427.) Prosecutorial misconduct does not require that the prosecutor act with a culpable state of mind. (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

The prosecutors actions here did not constitute prosecutorial misconduct under either the federal or state standard. As we concluded in the preceding section, it was not error to admit Marys testimony, hence it cannot be said to be error for the prosecutor to have introduced the evidence and argued it to the jury. It is clear from the entire record that the prosecutor did not seek to admit Marys testimony to establish that appellants offense against her was a predicate sexually violent offense, but on other relevant grounds. Moreover, it is difficult to see how a prosecutors actions, permitted by a trial court ruling, can constitute prosecutorial misconduct.

V

SUFFICIENCY OF EVIDENCE

Appellant contends that there was insufficient evidence to support the jurys finding that he was an SVP. He argues that there was inadequate evidence that he posed a threat to commit a sexually violent, predatory offense, and evidence that he was amenable to treatment made custody unnecessary. Both of the Peoples experts recognized appellant had no volitional control problems in the last 17 years, and had not exhibited any inappropriate sexual behavior since his 1988 offense against Mary. . . .  []  . . .  [] . . . He was no longer aggressive, and had participated in group programs to deal with his volitional control issues. This contention is without merit.

Courts apply the same test in evaluating the sufficiency of the evidence to support commitment under the SVPA as used in reviewing evidence to support criminal convictions. (People v. Carlin (2007) 150 Cal.App.4th 322, 333.) In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin, supra, at p. 331.) This standard of review is the same in cases involving circumstantial evidence. (People v. Catlin (2001) 26 Cal.4th 81, 139.)

Appellant focuses on the evidence supporting his claim. Under the above-stated standard, we must focus on whether there is sufficient evidence to support the decision. When that standard is applied, the jurys decision is amply supported by the evidence.

A person may be civilly committed as an SVP upon proof beyond a reasonable doubt that the person (1) had been convicted of a predicate offense as defined in the statute, (2) currently has a diagnosed mental disorder, and (3) that the diagnosed mental disorder . . . makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior. ( 6600, subd. (a)(1); People v. Flores (2006) 144 Cal.App.4th 625, 632.) The jury must conclude that the person is likely to reoffend, meaning the person p