People v. Izaguirre CA4/2

Filed 4/11/16 P. v. Izaguirre CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

THE PEOPLE,

Plaintiff and Respondent, E062098

v. (Super.Ct.No. RIC1312172)

ALFREDO AGUILAR IZAGUIRRE, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge.

(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.

VI, § 6 of the Cal. Const.) Affirmed.

Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A.

Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and

Respondent.

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 Defendant, Alfredo Aguilar Izaguirre, was found to be a sexually violent predator

(SVP) by a jury, and was committed to the Department of State Hospitals (DSH) for an

indeterminate term, as he neared the conclusion of his prison sentence. He appeals the

commitment under the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code,

§ 6600, et seq.) on the grounds that (a) the SVPA provides only for civil commitment of

the most seriously ill and dangerous sexual offenders, not “minor offenders” such as

defendant; (b) there is insufficient evidence to support the jury verdict finding that

defendant met the statutory criteria for civil commitment pursuant to the SVPA; (c) the

trial court’s evidentiary rulings permitting experts to testify based on hearsay, coupled

with inadequate instructions, rendered the trial unfair; and (d) the commitment of

defendant pursuant to the SVPA violated his constitutional right to equal protection under

the law. We affirm.

BACKGROUND

At defendant’s SVP trial, the court considered evidence of defendant’s prior

history, leading up to and including the index crime of lewd acts on a child under 14. In

1994, defendant was convicted of misdemeanor indecent exposure (Pen. Code, § 314,

subd. (1))1 for feigning masturbation in the presence of an Hispanic woman in the

hallway of a K-Mart. In his testimony at the SVP trial, defendant admitted exposing

himself. Four months later, defendant was again charged with and convicted of indecent

1Hereafter, we will refer to the convicted charges as “314.1” and “314.2” to
avoid confusion, where those references appear in the record. (See In re King (1984) 157
Cal.App.3d 554, 556, fn.1.)

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exposure as a misdemeanor (Pen. Code, § 314, subd. (2)). Defendant did not recall the

second arrest at the time of the interviews conducted for his evaluations, but at trial he

admitted he motioned to a woman in K-Mart as if pulling down his zipper, but did not do

it.

In August 2003, defendant entered a women’s restroom in a Barnes and Noble

store and attempted to peek at a woman using the toilet. He was charged and convicted

of disorderly conduct within the meaning of Penal Code section 647, subdivision (k)(1).2

In July 2004, defendant was again charged and convicted of disorderly conduct (Pen.

Code, § 647, subd. (a)). On this occasion, he bumped up behind a woman at a shopping

mall, and when she turned around, he was masturbating with his hand in his pocket, but

did not recall the incident. The woman who was rubbed by defendant identified

defendant’s photograph from a photo lineup that included defendant’s photograph due to

other reports of similar incidents at the same shopping mall.

In April 2005, defendant was charged and convicted of sexual battery (Pen. Code,

§ 243.4, subd. (e)(1)). At the time of the offense, a woman with a young child were

shopping at Linens-N-Things, when the woman felt someone rubbing her buttocks. She

turned around to confront defendant and he ran out of the store, where he was

apprehended by citizens in the parking lot. Defendant denied touching her, explaining

that the aisles were narrow. Between the date of the sexual battery offense and the date

2 The reporter’s transcript reflects a violation of section “247(k)(1),” but this is
apparently an error of transcription.

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of the index crime, defendant was charged with trespass based on a complaint of

inappropriate touching by a 12-year-old girl at the Westfield Mall. Although defendant

did not recall being banned from the Westfield Mall or being charged with trespass, he

admitted on the stand in his SVP trial that he “tried” to touch the girl “a little bit.”

In 2008, defendant was charged and convicted of committing lewd and lascivious

acts on a child under the age of 14, the index crime for the SVP proceeding (Pen. Code,

§ 288, subd. (a)). On this occasion, a seven-year old girl was in a store in Coachella with

her parents, but wandered off. Defendant indicated that he noticed her shoe had fallen

off, was unfastened, or broken, and he bent down to fix it, rubbing his hand on her

vaginal area over her clothing. In the current proceeding, defendant testified the touching

was accidental, but he pled guilty anyway. For this offense, defendant received a

sentence of six years in state prison.

Before being released on parole, the People filed a petition seeking an

indeterminate commitment of defendant, pursuant to Welfare and Institutions Code,

section 6600, et seq. Two evaluations were prepared independently by experts to

determine if defendant met the criteria for an SVP commitment. Dr. William Damon,

Ph.D., a psychologist, prepared a report in which he offered the opinion that defendant

met the SVP criteria. Dr. Damon reviewed police and other reports before interviewing

defendant. The incident report pertaining to the index crime noted that defendant had

admitted having impulses to touch people and that he needed help when he was

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interviewed by police following his arrest for the index crime of lewd and lascivious acts

upon a child under the age of 14.

Dr. Damon’s initial evaluation was conducted prior to the adoption of the

Diagnostical and Statistical Manual (DSM) 5, and for that reason, included a diagnosis

under the DSM-IV TR that defendant suffered from an Axis I diagnosis of Paraphilia

NOS (not otherwise specified). Dr. Damon’s diagnosis reflected the fact that defendant’s

paraphilic symptom presentation was mixed in nature, and his deviant behavior had

escalated from non-contact to contact offenses. It also reflected that defendant admitted

having a psychological problem in which he had impulses that motivated him to sexually

offend on women and girls, and resulted in repeated contact with law enforcement. His

age was not a factor. Additionally, defendant had never sought sex-offender treatment.

The report concluded with Dr. Damon’s opinion that defendant’s likelihood for

reoffending rose to the level of a serious, well-founded risk. Using the Static-99 R, Dr.

Damon concluded defendant’s score of five placed in him the moderate-to-high risk

group for being charged or convicted of another offense.

Defendant was also evaluated by Dr. Carol Abkarian, Psy.D., a clinical

psychologist. Dr. Abkarian also diagnosed defendant as suffering from Paraphilia NOS,

because he did not meet the criteria for any other identifiable category. Dr. Abkarian

observed that defendant displayed a clear repeated pattern of offending despite negative

consequences, showing he continues to act on urges and display impaired decision-

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making. He also displayed patterns of possible escalating behaviors and frequency, along

with lack of emotional control as evidenced by the fact he blamed the victims.

In Dr. Abkarian’s opinion, contained in her evaluation report, defendant was likely

to engage in sexually violent predatory behavior without appropriate treatment. Using

the Static-99 R risk assessment, Dr. Abkarian gave defendant a score of six, putting him

in the high risk category for re-offending.

The defense retained psychologist Dr. Michael Kania to evaluate defendant. Dr.

Kania prepared an evaluation report indicating that, in his opinion, although defendant

met the SVP criterion relating to the index offense, the other criteria were not established

because he could not be diagnosed as suffering a mental disorder. Dr. Kania indicated

that his opinion was based on the fact that defendant’s two indecent exposure convictions

could not be counted towards his history of sexual offenses because, although defendant

admitted masturbating in public, there was no indication that defendant actually exposed

his genitals to an unsuspecting person.

A jury trial was conducted. At trial, Drs. Damon and Abkarian testified, updating

their opinions based on the newer version of the DSM. Under the DSM-5, defendant was

diagnosed as suffering from “other specified paraphilic disorder with exhibitionistic and

voyeuristic features.” Both experts continued to be of the opinion that defendant meets

the criteria for commitment as an SVP: His index crime qualified as a violent sexual

offense, he has a diagnosable mental disorder that predisposes him to commit criminal

sexual acts, and it is likely he would offend in a sexually predatory nature in the future.

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 Defendant testified out of order, before Dr. Abkarian took the stand. As a result,

Dr. Abkarian’s opinion was substantiated by defendant’s testimony admitting he had

exposed his genitals during the indecent exposure incidents. Dr. Kania testified on behalf

of defendant, relating his opinion that defendant did not suffer from a diagnosable mental

disorder. As a consequence, Dr. Kania was of the opinion that defendant did not meet the

criteria for commitment as an SVP.

The jury returned a verdict that defendant met the criteria for commitment as a

sexually violent predator. The court committed defendant to the Department of State

Hospitals for an indeterminate term. Defendant appealed.

DISCUSSION

1. The SVPA Applies To Any Person Who Meets the Statutory Criteria.

Defendant argues that the SVPA must be interpreted to provide for commitment

only of “the most seriously ill and dangerous sexual offenders, not minor offenders such

as appellant.” Because defendant’s premise (that he is a minor offender) is incorrect, we

disagree.

The rules of statutory construction require us to ascertain the intent of the

lawmakers so as to effectuate the purpose of the statute. (Estate of Griswold (2001) 25

Cal.4th 904, 910.) We begin by examining the statutory language, giving the words their

usual and ordinary meaning. (Id., at p. 911.) Additionally, we must consider the

statutory language in the context of the entire statute and the statutory scheme of which it

is a part. (People v. Whaley (2008) 160 Cal.App.4th 779, 793, citing Phelps v. Stostad

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(1997) 16 Cal.4th 23, 32.) These same rules of construction govern the interpretation of

an initiative measure. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901.)

The twin goals of the SVPA are to identify and segregate those persons who, by

virtue of their mental disorders, pose a significant danger to society, but to do so in a way

that enhances the accuracy of the determination that a person is in fact an SVP and

minimizes the chance of erroneous confinement. (Litmon v. Superior Court (2004) 123

Cal.App.4th 1156, 1168.) The SVPA was amended in 2006 by Senate Bill No. 1128

(2005-2006 Reg. Sess.) and subsequently by Proposition 83 that same year. As a result

of Senate Bill No. 1128, section 6604 of the Welfare and Institutions Code provided for

an indeterminate term of commitment.

The statute requires the trier of fact to find that an SVP is dangerous at the time of

commitment. (Litmon v. Superior Court, supra, 123 Cal.App.4th at p. 1170 [italics in

original]; see also, Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162.) However,

the statutory definition of “dangerous” does not mean the SVP process is limited to

persons who are physically violent with victims. Those who have been adjudicated to

have committed criminal acts represent a class that is on the whole more dangerous than

those who have not—in other words, that such adjudication is a reasonable proxy for

greater dangerousness. (People v. McKee (2010) 47 Cal.4th 1172, 1200 (McKee I).) The

dangerous finding requires only an assessment of future dangerousness. (Id., at p. 1203.)

“Danger to the health and safety of others” means “merely ‘the state of being exposed to

harm’ [citation] or ‘the condition of being exposed to the chance of evil; risk; peril’

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[citation], and that one is ‘predisposed’ to do something simply connotes that he or she is

‘inclined’ or ‘susceptible’ to doing it. [Citation.]” (People v. Superior Court (Ghilotti)

(2002) 27 Cal.4th 888, 920 [italics in original] (Ghilotti).)

Thus, the phrase “likely to engage in acts of sexual violence” [italics added], as

used in Welfare & Institutions Code, section 6601, subdivision (d), connotes that an

evaluator must conclude that the person is “‘likely’ to reoffend if, because of a current

mental disorder which makes it difficult or impossible to restrain violent sexual behavior,

the person presents a substantial danger, that is, a serious and well-founded risk, that he

or she will commit such crimes if free in the community.” (Ghilotti, supra, 27 Cal.4th at

p. 922.)

The term “predatory,” as defined by Welfare and Institutions Code section 6600,

subdivision (e), refers to acts “directed toward a stranger, a person of casual acquaintance

with whom no substantial relationship exists, or an individual with whom a relationship

has been established or promoted for the primary purpose of victimization.”

To qualify as an SVP, a person must have “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.” (Welf. & Inst. Code, § 6600, subd. (a)(1).)

A “sexually violent offense,” in addition to certain unlawful sex acts committed by force,

violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or

another person (Welf. & Inst. Code, § 6600, subd. (b)), is also a sexual offense

9
committed against a child under the age of 14. (Welf. & Inst. Code, § 6600.1.) In other

words, where the victim is a child under the age of 14, a showing of force or duress is not

required. (People v. Fraser (2006) 138 Cal.App.4th 1430, 1443, citing People v. Otto

(2001) 26 Cal.4th 200, 205.)

From the above authorities, we conclude that the statement that the SVPA

narrowly targeted “a small but extremely dangerous group of sexually violent predators

that have diagnosable mental disorders [who] can be identified while they are

incarcerated,” (McKee I, supra, 47 Cal.4th at p. 1206, citing Cooley v. Superior Court

(2002) 29 Cal.4th 228, 253) is not limited to offenders who have committed sex offenses

involving force, violence, duress, menace, fear of immediate and unlawful bodily injury

on the victim or another, or threatening retaliation.

Instead, we discern that the statute was intended to target a group of sexually

violent predators—including offenders who have committed and are deemed likely to

commit in the future other violations of Penal Code section 288, subdivision (a)—who

have diagnosable mental disorders, who present a danger to the health and safety of

others in that they are likely to commit a predatory sexually violent offense (including

violations of Penal Code section 288, subdivision (a)) if not treated. These offenders

represent the “small but extremely dangerous group of sexually violent predators that

have diagnosable mental disorders” targeted by the Act. Nothing in the statutory

language limits application of the SVPA to only “the most seriously ill and dangerous

sexual offenders,” as defendant urges us to hold.

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 Defendant’s conduct is of the sort targeted by the statute. He was convicted of a

sexually violent offense (Pen. Code, § 288, subd. (a)), which was predatory in nature

because it was committed against a stranger. Whatever else may be said about the

“nuisance” nature of defendant’s history, despite having intimate relationships with a

sexual partner, he was compelled to commit acts of indecent exposure, frotteurism, and

voyeurism over a period of years, escalating with the sexually violent crime of lewd and

lascivious acts against a seven-year-old child. Two experts concluded he had a

diagnosable mental disorder that predisposed him to commit other sexual predatory

offenses. Defendant is not a minor offender.

2. There Is Substantial Evidence to Support the Verdict that Defendant Is an

SVP.

Defendant argues there is insufficient evidence to support the jury’s finding that he

is a sexually violent predator. We disagree.

To be committed under the SVPA, there must be expert psychological evidence,

using standardized assessment protocols, that the defendant “is likely to engage in acts of

sexual violence without appropriate treatment and custody.” (Welf. & Inst. Code,

§ 6601, subds. (c) & (d).) “While there is no need for proof of a recent overt act while

the offender is in custody [citation], it is clear that the SVPA permits civil commitment

only upon a finding that the person has current psychological symptoms that render him

or her likely to reoffend.” (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1219 [italics

in original].)

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 To establish that a defendant was a sexually violent predator, the People are

required to prove that (1) the defendant has been convicted of a sexually violent offense

against one or more victims; (2) he has a diagnosed mental disorder; and (3) the mental

disorder makes it likely that, if released, he will engage in sexually violent criminal

behavior. (Welf. & Inst. Code, § 6600, subd. (a)(1); People v. Poulsom (2013) 213

Cal.App.4th 501, 516.)

When a defendant challenges the sufficiency of the evidence in proceedings under

the SVPA, we must review the entire record in the light most favorable to the judgment

to determine whether substantial evidence supports the determination below. (People v.

Mercer (1999) 70 Cal.App.4th 463, 466, citing People v. Johnson (1980) 26 Cal.3d 557,

576-578.) “To be substantial, the evidence must be ‘“of ponderable legal

significance . . . , reasonable in nature, credible and of solid value.’” [Citation.]” (People

v. Mercer, supra, 70 Cal.App.4th at p. 466.)

In reviewing the record to determine the sufficiency of the evidence, this court

may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and

must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment.

(People v. Poe (1999) 74 Cal.App.4th 826, 830.) In particular, we may not reassess the

credibility of experts or reweigh the relative strength of their conclusions. (Id., at p. 831.)

We reverse only if no rational trier of fact could have found the essential elements

beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269.)

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 In this case, the evidence supporting the defendant’s commitment consists, for the

most part, of his convictions, including the index crime, a sexually violent offense, and

the expert opinions of Drs. Damon and Abkarian. Both experts diagnosed defendant with

an undifferentiated form of paraphilia, a diagnosed mental disorder, and both predicted a

likelihood defendant would commit future sexually violent predatory acts based on his

history of escalating offenses that culminated in the sexually violent index offense. Both

experts also based their opinions on the fact that defendant persisted in committing new

offenses despite his numerous arrests and the negative consequences flowing therefrom.

Defendant does not argue that his conviction for lewd and lascivious acts on a

child under 14 does not qualify as the index offense, an element of the recommitment

scheme. Instead, he focuses his challenge on the sufficiency of the evidence to support

experts’ diagnosis that he suffered from a mental disorder that makes it likely he would

engage in sexually violent criminal behavior. To make this point, defendant relies

heavily on Dr. Kania’s evaluation.

While Dr. Kania offered a different opinion, the jury was free to reject it. (People

v. Wright (1988) 45 Cal.3d 1126, 1142 [unlike a jury instruction, expert testimony is not

binding on the jury].) We note that Dr. Kania’s reluctance to give defendant a diagnosis

for a sexual disorder was based in large part on his acceptance of defendant’s denials

respecting some of the sexual offenses to which he pled guilty, which led the expert to

discount the nature of the prior offenses. Defendant’s testimonial admission that he

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actually did expose himself in 1994 undermined Dr. Kania’s opinion to the extent it was

grounded on defendant’s denials.

Additionally, Dr. Kania testified that defendant’s prior acts of exhibitionism and

frotteurism did not involve “touching anyone or any violent acts.” He agreed with

defense counsel’s description of defendant’s conduct by referring to his body of work as

“a nuisance sort of thing.” Yet the very definition of frotteurism, as contained in both the

DSM-IV TR and the DSM-V, requires touching.3 Defendant engaged in more than one

nonconsensual touching of the frotteuristic type, before graduating to the sexually violent

felony that formed the predicate for the commitment petition.

Finally, despite acknowledging that a violation of Penal Code section 288,

subdivision (a), qualifies as a violent offense, Dr. Kania didn’t see defendant’s act as

“forcible.” Nevertheless, a violation of Penal Code section 288, subdivision (a) is a

violent sexual offense.

By history, defendant’s offenses have escalated in nature, as noted by the

prosecution’s experts. He began in the 1990s with exhibitionist offenses, and graduated

to frotteuristic offenses against adult women, including women accompanying female

children, before committing the index offense of lewd and lascivious acts with a child

3 The DSM-IV-TR defines frotteurism as a paraphilia characterized by sexual
fantasies, urges, or behaviors involving touching or rubbing one’s genitals against the
body of a non-consenting person. (American Psych. Assn.: Diagnostic and Statistical
Manual of Mental Disorders, 4th ed., Text Rev., 2000, § 302.89.) The DSM-V describes
frotteuristic disorder as a paraphilic disorder of sexual arousal as a result of touching or
rubbing a nonconsenting individual, which often occurs in public settings.

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under 14, a violent felony. The fact defendant had observed the Penal Code section 288

victim with her parents, and followed her after she wandered off, spoke volumes about

his predatory nature and the escalating nature of his sexual offenses and called into

question the sincerity of his intentions, to fix her shoe.

Defendant also argues there is insufficient evidence to support the finding there is

a likelihood defendant will commit a future sexually violent offense.4 We disagree.

To qualify as an SVP, the third element requires a showing that the person is a

danger to the health and safety of others in that it is likely that he or she will engage in

sexually violent predatory criminal behavior. (In re Calhoun (2004) 121 Cal.App.4th

1315, 1323, citing People v. Hurtado (2002) 28 Cal.4th 1179, 1181-1182 (Hurtado).)

“‘“Danger to the health and safety of others” does not require proof of a recent overt act

while the person is in custody.’ [Citation.]” (In re Calhoun, supra, 121 Cal.App.4th at p.

1323.) “‘“Danger” is merely “the state of being exposed to harm.”’ [Citation.]” (People

v. Rasmuson (2006) 145 Cal.App.4th 1487, 1506.) “Likely” does not mean more likely

than not. (People v. Shazier (2014) 60 Cal.4th 109, 126.) Nor does it refer to persons

who are more likely than not to reoffend. (Ghilotti, supra, 27 Cal.4th at p. 924.) But it

“does not require a precise determination that the chance of re-offense is better than

even.” (Id., at p. 922.)

4 In his brief, defendant emphasizes “violent” in quotation marks. Committing
violations of Penal Code section 288, subdivision (a), as defendant has done, qualifies as
a “violent” sexual offense. The fact defendant did not inflict bodily injury or employ
threats in that offense, and that his prior offenses did not qualify as “violent,” is
irrelevant.

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 Instead, it is likely that a person will engage in sexually violent predatory criminal

behavior if “the person is found to present a substantial danger, that is, a serious and

well-founded risk, of committing such crimes if released from custody.” (People v.

Roberge (2003) 29 Cal.4th 979, 988 (Roberge).) Evidence of a person’s amenability to

voluntary treatment is relevant to the ultimate determination whether the person is likely

to engage in sexually violent predatory crimes if released from custody. (Id. at p. 988,

fn. 2.)

In Ghilotti, the California Supreme Court noted that the state has a compelling

protective interest in the confinement and treatment of persons who have already been

convicted of violent sex offense, and who, as the result of current mental disorders that

make it difficult or impossible to control their violent sexual impulses, represent a

substantial danger of committing similar new crimes. (Ghilotti, supra, 27 Cal.4th at

p. 924.) The testimony of the psychologists who have evaluated the defendant constitutes

substantial evidence supporting the jury’s finding that defendant is a danger to the health

and safety of others because it is likely he will reoffend by engaging in sexually violent

acts. (People v. McCloud (2013) 213 Cal.App.4th 1076, 1090 (McCloud).)

Defendant’s history of nonconsensual sexual offenses began in 1994, and

escalated from non-contact offenses (indecent exposure offenses) to contact offenses

against adult women, including adult women with female children present, to the index

crime, a sexually violent offense of lewd and lascivious acts on a child under 14.

Beginning in 1994, he has been repeatedly prosecuted and punished, and even ordered to

16
stay away from a shopping mall, but was undeterred in the commission of new offenses

of more serious nature. Two experts evaluated his likelihood of re-offense using the

Static-99 protocol, and determined he was a moderately high risk for reoffending.

Finally, defendant argues that the record as a whole lacks a factual basis for

finding defendant’s mental disorder causes serious volitional impairment. We need only

observe that in over 20 years, defendant has acted on his paraphilic impulses

notwithstanding the number of times he has been apprehended, prosecuted, and punished.

The inability to restrain from acting on one’s sexual impulses despite such a record is

strong support for the finding of volitional impairment.

Given defendant’s history and his own testimony, many of Dr. Kania’s basic

assumptions were called into question. Dr. Kania’s attempt to mitigate defendant’s

offense history does not undermine the jury’s verdict. There was ample evidence to

support the jury’s verdict that defendant suffered from a diagnosed mental disorder

predisposing defendant to committing future sexually violent acts.

3. The Trial Court Properly Allowed the Experts, Including the Defense

Expert, to Rely On Hearsay in Forming Their Opinions.

Defendant argues that his trial was tainted by trial court rulings admitting the

evaluations of Drs. Damon and Abkarian, complaining that the evidence involved

multiple levels of hearsay concerning defendant’s criminal history. We find no violation

of defendant’s right to due process of law.

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 Civil commitments involve significant deprivation of liberty, although such

proceedings are not criminal proceedings. (People v. Blackburn (2015) 61 Cal.4th 1113,

1119.) Some constitutional protections available in the criminal context apply to civil

commitment proceedings as a matter of due process. (Id. at p. 1119, citing People v.

Allen (2008) 44 Cal.4th 843, 870.) Thus, in SVP proceedings, a defendant has a due

process right to testify over the objection of counsel (ibid), proof beyond a reasonable

doubt is required (People v. Burnick (1975) 14 Cal.3d 306, 322-323), as is the

requirement of a unanimous jury verdict. (People v. Feagley (1975) 14 Cal.3d 338, 342.)

We also recognize that due process protects a defendant in a criminal case against

conviction except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged. (Jackson v. Virginia (1979) 443 U.S. 307,

315 [61 L.Ed.2d 560, 99 S.Ct. 2781].) This has been interpreted to mean that a reviewing

court evaluates the case for substantial evidence, that is, evidence that is reasonable in

nature, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 576.)

The SVPA expressly allows experts to rely upon multiple hearsay documents.

(People v. Otto (2001) 26 Cal.4th 200, 207, 208.) “The existence of any prior

convictions may be shown with documentary evidence. The details under lying the

commission of an offense that led to a prior conviction, including a predatory relationship

with the victim, may be shown by documentary evidence, including, but not limited to,

preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and

18
evaluations by the State Department of State Hospitals.” (Welf. & Inst. Code, § 6600,

subd. (a)(3), italics added.)

The Evidence Code also allows experts to testify on matters that form the bases for

their opinions. (Evid. Code, § 802.) An expert may generally base his opinion on matter

known to the expert, including hearsay, so long as the matter is of a type reasonably

relied upon by experts in the particular field of expertise. (People v. Gardeley (1996) 14

Cal.4th 605, 618-619.) Thus, as a general rule, out-of-court statements offered to support

an expert’s opinion are not hearsay because they are not offered for the truth of the matter

asserted; they are offered for the purpose of assessing the value of the expert’s opinion.

(People v. Dean (2009) 174 Cal.App.4th 186, 193.)

Here, Dr. Damon testified in limine that when evaluating or diagnosing a person

under the SVP, he usually relied on police reports, summaries of witness statements to

investigating officers, and things of that nature. The expert explained that the matters on

which he relied, including all the police reports, are the sort of matters that other experts

in the field normally relied on. The testimony of the experts based on documentary

evidence that is admissible under Welfare & Institutions Code, section 6600, subdivision

(a)(3), did not violate defendant’s constitutional rights or taint the proceedings.

4. There Was No Instructional Error.

In connection with his argument that the trial court improperly allowed the experts

to testify as to their opinions, defendant argues that full and fair instructions were not

provided to the jury. Specifically, he argues that CALCRIM No. 3454 was deficient

19
because it did not explain that the diagnosed mental disorder must result in a serious

impairment of defendant’s ability to control his dangerous sexual behavior. We disagree.

As in a criminal trial, the trial court in an SVP proceeding must instruct on the

general principles of law that are necessary to the jury’s understanding of the case.

(Roberge, supra, 29 Cal.4th at p. 988.) We review instructional errors under the harmless

beyond a reasonable doubt standard. (Hurtado, supra, 28 Cal.4th 1179, 1194 [failure to

instruct on need to find likelihood of future predatory acts was harmless beyond a

reasonable doubt], citing Chapman v. California (1967) 386 U.S. 18.) We review

challenges for instructional error notwithstanding the lack of objection (Pen. Code,

§ 1259). A court fulfills its duty of instructing the jury by defining the elements in the

language of the statute, although it must also instruct on general principles of law that are

necessary to the jury’s understanding of the case. (People v. Calderon (2004) 124

Cal.App.4th 80, 92.)

In People v. Williams (2003) 31 Cal.4th 757 (Williams), the defendant argued that

the trial court erred in failing to give his special instructions relating to the need for the

jury to find he was unable to control his dangerous behavior by virtue of the diagnosed

mental disorder. The California Supreme Court rejected this contention. It held that

California’s statute inherently “embraces and conveys” the need for a dangerous mental

condition characterized by impairment of behavioral control, which purpose is

accomplished “by defining a sexually violent predator to include the requirement of a

diagnosed mental disorder [citation] affecting the emotional or volitional capacity

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[citation], which predisposes one to commit criminal sexual acts so as to render the

person a menace to the health and safety of others . . . .” (Id., at p. 774.)

The Court addressed the United States Supreme Court holdings of Kansas v.

Crane (2002) 534 U.S 407, and Kansas v. Hendricks (1997) 521 U.S. 346, in evaluating

the adequacy of the instructions given under California law. (Williams, supra, 31 Cal.4th

at pp. 774-775.) The Supreme Court was persuaded that a jury instructed in the language

of the statute must necessarily understand the need for serious difficulty in controlling

behavior, and that further instructions on lack-of-control were not necessary. (Id., at

p. 774.)

The instruction embodied in CALCRIM No. 3454 tracks the statutory language by

instructing the jury that it needed to find he has a diagnosed mental disorder, that as a

result of that disorder he is a danger to the health and safety of others because it is likely

he will engage in sexually violent predatory criminal behavior, and emphasized the need

for a determination that defendant currently has such a diagnosed mental disorder. The

instruction adequately conveys that defendant lacks volitional control over his impulses

by reason of his diagnosed sexual disorder.

Because the instruction is proper, there was no error.

5. Defendant’s Commitment As An SVP Did Not Violate His Equal Protection

Rights.

Defendant argues that his indeterminate commitment pursuant to the SVPA

violated federal guarantees of equal protection. He asserts that such commitments

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require like treatment for similarly situated persons unless the state establishes a

compelling interest justifying disparate treatment, and that procedure requiring a

committee to prove his suitability for release, unlike the civil commitment schemes for

Mentally Disordered Offenders (MDOs), and persons found Not Guilty by reason of

Insanity (NGIs), does not pass muster under strict scrutiny. We disagree.

The concept of the equal protection of the laws compels recognition of the

proposition that persons similarly situated with respect to the legitimate purpose of the

law receive like treatment. The first prerequisite to a meritorious claim under the equal

protection clause is a showing that the state has adopted a classification that affects two

or more similarly situated groups in an unequal manner. This initial inquiry is not

whether persons are similarly situated for all purposes, but whether they are similarly

situated for purposes of the law challenged. (Cooley v. Superior Court (2002) 29 Cal.4th

228, 253.) Neither the Fourteenth Amendment of the Constitution of the United States

nor the California Constitution precludes classification by the Legislature or requires

uniform operation of the law with respect to persons who are different. (People v.

Guzman (2005) 35 Cal.4th 577, 591.) A strict scrutiny standard is used to measure

claims of disparate treatment in civil commitments. (People v. Green (2000) 79

Cal.App.4th 921, 924.)

In McKee I, the California Supreme Court observed that while persons committed

as MDO’s (Pen. Code, § 2962) and SVP’s do not share identical characteristics, they are

similarly situated for the purpose of determining why one group received an indefinite

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commitment and had the burden of proving they should not be committed, while the

other group was subject to short-term commitment renewable only if the People

periodically proved that continuing commitment was justified. (McKee I, supra, 47

Cal.4th at p. 1203.) The California Supreme Court remanded the SVP determination to

allow the People to present evidence to support a basis for treating SVPs disparately.

Following remand and a subsequent appeal following proceedings at which the

People presented substantial evidence “‘notwithstanding the similarities between SVP’s

and MDO’s [and NGI’s], the former as a class bear a substantially greater risk to society,

and that therefore imposing on them a greater burden before they can be released from

commitment is needed to protect society.’ [Citation.]” (People v. McKee (2012) 207

Cal.App.4th 1325, 1347 (McKee II).)

More recently, in McCloud the First Appellate District, Division Two, relied on

the findings set out in McKee II in rejecting the defendant’s equal protection challenge.

There, the court observed, “We need not repeat the evidence presented in the trial court

and reviewed by the appellate court in McKee II. Both courts were satisfied that

disparate treatment of SVP’s was warranted. [Citation.] McKee II found substantial

evidence to support a reasonable perception on the part of the electorate enacting the

amended SVPA that the recidivism rate of released SVP’s is greater than the rate of re-

offense of other sex offenders; that the harm suffered by victims of sex offenses is greater

than that caused by other types of offenses; that SVP’s pose an increased risk of harm to

children; that SVP’s have significantly different diagnoses from those of MDO’s and

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NGI’s; and that treatment plans, rates of compliance and success rates are significantly

different. [Citation.]” (McCloud, supra, 213 Cal.App.4th at pp 1085-1086.)

We agree with the conclusion drawn by McCloud and do not need to repeat the

evidence supporting the conclusion that there are significant differences between SVPs

and other offenders suffering from mental disorders to warrant disparate treatment.

Defendant has not shown that he would be able to introduce new or different evidence

that would require a different result. (See People v. Landau (2013) 214 Cal.App.4th 1,

48; People v. McDonald (2013) 214 Cal.App.4th 1367, 1378; People v. McKnight (2012)

212 Cal.App.4th 860, 863-864 [“It is plain that McKee II is not to be restricted to Mr.

McKee alone or only to those SVP’S convicted of crimes against children, like him, but

rather its holding applies to the class of SVP’s as a whole.”].)

DISPOSITION

The judgment of commitment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.

We concur:

HOLLENHORST
J.

McKINSTER
J.

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