I dissent.
The impact on the individual alleged to be a mentally disordered sex offender (MDSO) of indefinite confinement in a prison-like state mental institution has been eloquently and dramatically described by our Supreme Court. It has held that because of the drastic impairment of liberty and the permanent scarring of an individual’s reputation, an *498MDSO finding requires proof beyond a reasonable doubt and conviction by a unanimous jury. (People v. Burnick (1975) 14 Cal.3d 306, 310 [121 Cal.Rptr. 488, 535 P.2d 352]; People v. Feagley (1975) 14 Cal.3d 338 [121 Cal.Rptr. 509, 535 P.2d 373].)
The Legislature, sensitive to the judicial insight expressed in Burnick and Feagley, responded by amending Welfare and Institutions Code section 6302, subdivisions (a) and (d), effective January 1977. No longer may a person convicted of any criminal offense be held to determine whether he or she is an MDSO. Only those persons who are convicted of specific sex offenses or of a felony or misdemeanor which is shown by clear proof or stipulation to have been committed primarily for the purpose of sexual arousal or gratification may be placed on the MDSO track. (Welf. & Inst. Code, § 6302, subd. (a); see Review of Selected 1976 California Legislation, 8 Pacific L.J. 165, 296-300.) The amendment “appears to codify the above decisions [Burnick and Feagley ] and to complete the task of awarding persons alleged to be MDSO’s the full rights of all persons accused of criminal offenses.” (Id., at p. 300.)
Defendant’s plea to battery certainly did not place him within the provisions of the statute (Welf. & Inst. Code, § 6302, subd. (a)). The only way he could have been certified to the superior court for hearing and examination as a possible MDSO was the court’s finding by clear proof that his crime was committed primarily for purposes of sexual arousal or gratification.
In response to our request for additional briefing, the Attorney General candidly admits the term “clear proof” has not been defined in the context of the statute nor have any procedural requirements to determine probable cause other than those set out in the statute been established. This procedural gap must be filled by either our high court or the Legislature, for a willy-nilly ad hoc process which will only occasionally satisfy due process is unacceptable. Although I defer to others to describe the procedure for all cases, I am not so hesitant to reject what was done in the case before us.
Here, the record does not indicate in the slightest that defendant was told or knew he was heading toward a commitment process. He entered into a plea bargain—he pled guilty to battery—an innocuous crime in *499terms of its sexual connotation. At his hearing for probation and sentencing, there is no indication he was told- he could contest any of the statements in the probation report recommending MDSO proceedings. The entire process smacks of an administrative web in which defendant, after having confided to a probation officer for purposes of probation, finds himself entwined as he is directed toward the state hospital. And to compound this Kafkaesque scene and to further confuse the record, the certification fails to meet the requirements of the statute itself for it does not contain the reasoning for the court’s findings there was probable cause for believing defendant an MDSO. (Welf. & Inst. Code, § 6302, subd. (d); People v. Barnes (1978) 84 Cal.App.3d 745, 746-747 [148 Cal.Rptr. 824].)
Lest the foregoing general comments blur the issue which must be focused upon, I wish to stress the requirements of Welfare and Institutions Code section 6302, subdivision (a), as applied to this case. There must be clear proof that the misdemeanor was committed by defendant for sexual arousal or gratification and probable cause that he is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others (Welf. & Inst. Code, §§ 6300, 6302, subd. (a)). The majority concludes the probation report furnished the court with “ample evidence” of defendant’s sexual problems to support the certification to the superior court. The only “facts” contained in the probation report, however, other than conclusions drawn by the probation officer, were defendant’s statement that he had no recollection of the event because he was drunk and the probation officer’s description of the offense presumably drawn from information gleaned from police reports as is usually done in the preparation of such reports, for the report itself does not indicate the writer independently obtained or verified the information describing the offense. The probation officer’s conclusions were buttressed by a prior offense which occurred in 1969 of which defendant still maintains his innocence.
This type of evidence is not sufficient, at least in my mind, to support a finding by “clear proof” that defendant’s present offense was committed primarily for sexual arousal or gratification and for probable cause he was an MDSO. The probation report should have been used only as pleadings—allegations—to which defendant should have been allowed to respond at an evidentiary hearing analogous to a preliminary hearing before probable cause could be found.
*500I would reverse the judgment with instructions to the superior court to remand the case to the municipal court for further proceedings consistent with this opinion.
A petition for a rehearing was denied April 21, 1980. Wiener, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied June 19, 1980. Bird, C. J., Mosk, J., and Newman, J., were of the opinion that the petition should be granted.