I dissent. The “beyond a reasonable doubt” standard is wholly inappropriate to determine whether a person is a mentally disordered sex offender who is predisposed to the commission of sex offenses, dangerous to others, and in need of appropriate treatment in state institutions. In view of the considerable uncertainties inherent in attempting to predict human behavior, and the compelling state interest in treating sex offenders, it should be sufficient that the jury has found, by a preponderance of the evidence, that the defendant is an MDSO.
Welfare and Institutions Code section 6321, provides that the MDSO trial shall conform to the procedures for the trial of civil causes. In criminal cases, of course, a defendant is presumed innocent and the state *333has the burden of proving him guilty beyond a reasonable doubt. (Pen. Code, § 1096.) But in civil cases, unless otherwise provided by law, proof by a preponderance of the evidence will suffice. (Evid. Code, § 115; see In re Franklin, 7 Cal.3d 126, 148.)1
The majority rely primarily upon In re Winship, 397 U.S. 358 [25 L.Ed.2d 368, 90 S.Ct. 1068], and Specht v. Patterson, 386 U.S. 605 [18 L.Ed.2d 326, 87 S.Ct. 1209], but neither case is controlling. In Winship, the United States Supreme Court required, as a matter of constitutional due process, that the “beyond a reasonable doubt” standard be applied during the adjudicatory phase of a juvenile delinquency proceeding. (See also In re Kenneth W., 12 Cal.App.3d 1120, 1122 [91 Cal.Rptr. 702]; In re Samuel Z., 10 Cal.App.3d 565, 569 [89 Cal.Rptr. 246]; In re C.D.H., 7 Cal.App.3d 230, 234 [86 Cal.Rptr. 565].) The court reasoned (p. 365 [25 L.Ed.2d p. 376]) that “The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child. . . . We made clear in . . . [In re Gault, 387 U.S. 1, 36 (18 L.Ed.2d 527, 551, 87 S.Ct. 1428)] that civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for ‘[a] proceeding where the issue is whether the child will be found to be “delinquent” and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.’ ”
Unlike criminal or juvenile proceedings, however, wherein the factual issue of prior guilt or innocence must be resolved,2 the issue before the court in MDSO proceedings is essentially predictive in nature, aimed at forecasting whether a person who has already been convicted of one criminal offense is likely to be dangerous to others by reason of a predisposition to commit sexual offenses. (Welf. & Inst. Code, § 6300.) In performing this predictive function, the court and jury must necessarily be guided in large part by psychiatric opinion which, by its very nature, is seldom conclusive beyond all reasonable doubt.
It should also be pointed out that, unlike criminal or juvenile proceedings, MDSO proceedings take place following a criminal trial at *334which defendant has been found guilty of a criminal offense beyond a reasonable doubt. The subsequent MDSO proceedings could be viewed as an alternative to penal sentencing, for the time spent under indeterminate commitment as an MDSO must be credited in fixing the term of sentence, in the event the MDSO is ultimately returned to court on the criminal charges. (Welf. & Inst. Code, § 6325; see Humphrey v. Cady, 405 U.S. 504, 510-511 [31 L.Ed.2d 394, 403-404, 92 S.Ct. 1048].) (It is true that an MDSO commitment could extend beyond the term of sentence which would have been imposed for the criminal offense. But as I point out below, adequate safeguards exist to assure that the term of commitment will not be unduly prolonged.)
Nor is Specht v. Patterson, supra, 386 U.S. 605, on point. In that case, the United States Supreme Court specified certain procedural rights which must, as a matter of due process, be afforded in MDSO proceedings, including the right to a hearing, the right to counsel, the right to confront and cross-examine witnesses, the right to present evidence, and the right to demand adequate findings by the court. Specht did not mention the right to a jury trial, much less indicate which proof standard should be applied to guide the jury’s deliberations.3 Under the California procedure, however, persons sought to be committed as MDSOs are provided a jury trial, along with the other rights specified in the Specht decision. Accordingly, this procedure would appear to satisfy the essential demands of due process of law.
I believe that an apt analogy can be found in the procedures (see Welf. & Inst. § 3100 et seq.) for the involuntary commitment of persons who have been found to be narcotics addicts or in imminent danger of addiction. In People v. Moore, 69 Cal.2d 674, 685 [72 Cal.Rptr. 800, 446 P.2d 800], we expressly rejected the contention that the facts supporting the commitment of such persons had to be established beyond reasonable doubt. As we pointed out in Moore, “The proceedings . . . are fundamentally civil in nature, and no sound reason appears to depart from that ordinary civil rule [preponderance of the evidence] here.” (Accord: People v. Valdez, 260 Cal.App.2d 895, 902-904 [67 Cal.Rptr. 583].)____
*335Similarly, MDSO proceedings are essentially civil in nature and are only collateral to criminal proceedings. (In re Bevill, 68 Cal.2d 854, 858 [69 Cal.Rptr. 599, 442 P.2d 679].) And although In re Winship, supra, 397 U.S. 358, cautions us to scrutinize with care the “civil” label of convenience, on balance I.believe that the basic demands of due process are satisfied by the use of a preponderance of evidence test in MDSO cases. The court’s observations in People v. Valdez, supra, 260 Cal.App.2d 895, 903-904, regarding narcotics addicts commitment procedures seem especially pertinent here: “Turning to due process, we may assume that in criminal cases it is part of the due process guaranteed by the Fourteenth Amendment that guilt must be established beyond a reasonable doubt. [Fn. omitted.] In re De La O., 59 Cal.2d 128, 136-150 ... [and other cases] have described narcotic commitment proceedings as ‘civil,’ ‘nonpunitive’ and ‘remedial.’ A situation may well arise where such characterization may break down in the face of the reality of the addict’s involuntary confinement. (Cf. In re Gault [supra], 387 U.S. 1....) We do not believe, however, that the distinction between confinement as a criminal and loss of liberty as an addict whom the state hopes to cure is sufficiently artificial to prohibit a difference in the burden of proof. It must be remembered that in a narcotic commitment case the jury is in reality asked to confirm what is essentially a medical diagnosis. The People’s burden of persuasion ought to be no greater than the degree of assurance with which reputable physicians express themselves. [Citation.]”
As I have pointed out, the trier of fact in MDSO proceedings is also charged with predicting future behavior and confirming what is essentially a medical diagnosis. I agree with the reasoning of Valdez that the state’s burden of proof should correspond realistically with “the degree of assurance with which reputable physicians express themselves.” The reasoning is even more compelling in cases involving psychiatric diagnoses. Of necessity, reasonable doubts accompany any attempt to predict human behavior.
The majority herein, contending that MDSO commitment proceedings are “criminal” in nature, rely primarily upon the fact that the MDSO may be ordered committed to state hospital for an indefinite period. Yet the statutory scheme contains ample protection against an abuse of discretion by hospital authorities in determining whether or not to release an MDSO.
*336First of all, under section 6317, the trial courts are empowered to “require the superintendent of the state hospital to make periodic reports to the court concerning the person’s progress towards recovery.” Moreover, under section 6327, after the MDSO has been confined for a period of not less than six months, the committing court may, on its own motion or on motion by the MDSO, “require the superintendent of the state hospital... to forward to the committing court, within 30 days, his opinion under (a) or (b) of Section 6325 [regarding the MDSO’s amenability to treatment and progress toward recovery], including therein a report, diagnosis and recommendation concerning the person’s future care, supervision, or treatment. After receipt of the report, the committing court may order the return of the person to the court for a hearing as to whether the person is still a mentally disordered sex offender . . . .” The MDSO may request additional hearings on his progress at six-month intervals.
Although the provisions of sections 6317 and 6327 appear to vest the committing court with some discretion whether or not to require the hospital officials to submit the reports specified in those sections, the courts should utilize these procedures whenever a doubt arises regarding the ability of the person committed to seek relief on his own behalf. As we noted in In re Davis, 8 Cal.3d 798, 806-807, footnote 6 [106 Cal.Rptr. 178, 505 P.2d 1018], it may be “inappropriate to place upon such [mentally disordered] persons the burden of initiating proceedings . . .” to secure habeas corpus relief.
The foregoing safeguards seem quite adequate to assure that persons such as defendant will be released after a reasonable period of treatment. Under tÉe majority’s holding, however, such persons will escape treatment and hospital confinement altogether unless the jurors conclude that MDSO status has been proved beyond a reasonable doubt. The majority’s holding in this regard is constitutionally unnecessary and could drastically interfere with the effective functioning of the MDSO treatment program.
The majority suggest, in this case and in the companion case, People v. * Feagley, post, page 338 [121 Cal.Rptr. 509, 535 P.2d 373], that the present system fails to provide adequate care and treatment for the MDSO. If true (and the record in these cases is wholly insufficient on the point), the proper solution is, I suggest, to establish and enforce safeguards which assure that such treatment is forthcoming, and not to erect procedural *337barriers (such as impractical proof standards) which deprive both the public and the defendant himself of the benefits of the MDSO program.
I would affirm the order of commitment.
McComb, J., and Wood, J.,* concurred.
Respondent’s petition for a rehearing was denied June 11, 1975. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
According to Witkin, “The phrase ‘preponderance of evidence’ is usually defined in terms of probability of truth; e.g., ‘such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability of truth lies therein.’ [Citations.]” (Witkin, Cal. Evidence, § 208, p. 189.)
As stated in In re Winship, supra, 397 U.S. 358, 363 [25 L.Ed.2d 368, 375], “The reasonable-doubt standard plays a vital role in the American áfcheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error." (Italics added.)
Subsequently, in Humphrey v. Cady, supra, 405 U.S. 504, the court held that principles of equal protection require the availability of a jury trial for persons sought to be committed as MDSOs, since such a trial was available in ordinary civil commitment cases. Significantly, however, the court acknowledged that under the procedure at issue in that case, “If the State establishes the need for treatment by a preponderance of the evidence, the court must commit the defendant for treatment in lieu of sentence . . . .” The court made no suggestion that this procedure would be invalid, or that the jury should be held to a higher proof standard.
Assigned by the Chairman of the Judicial Council.