I agree with the majority that a petition seeking the commitment or recommitment of a person under the Sexually Violent Predators Act (the Act) (Welf. & Inst. Code, § 6600 et seq.)1 cannot be filed unless two mental health professionals designated by the Director of the State Department of Mental Health (the Director) “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.” (§ 6601, subd. (d).) Contrary to the argument advanced by the Attorney General, the Director is not empowered under subdivision (h) of section 6601 to seek a petition for commitment or recommitment if the designated evaluators conclude that the person does not meet the statutory criteria.
*934I write separately because I do not join in part B.2 of the majority opinion, which addresses “whether a court entertaining a petition for an involuntary civil commitment has authority to review for legal error the expert evaluations which are a prerequisite to the filing of such a petition.” (Maj. opn. ante, at p. 910.) In my view, this issue is not raised by the circumstances of the present case, because neither the Director nor the district attorney sought such judicial review.
Regarding part B.3 of the majority opinion, which discusses the meaning of the statutory phrase “likely to engage in acts of sexual violence” (§ 6601, subd. (d)), I agree with the majority that the statutory standard that the person is “likely to engage in acts of sexual violence” does not mean that it must be more likely than not that the subject will engage in such acts. I write separately to explain my understanding of the majority’s holding that the word “likely” means “presents a substantial danger—that is, a serious and well-founded risk—of reoffending.” (Maj. opn., ante, at p. 916.)
Judicial Review of Evaluations
Three psychologists designated by the Director to evaluate Patrick Ghilotti concluded that, following nearly four years of treatment at Atascadero State Hospital, he no longer is a sexually violent predator (SVP) as defined in the Act. Despite these negative evaluations, the district attorney, at the request of the Director, filed a petition seeking Ghilotti’s recommitment as an SVP. The negative evaluations were not attached to the petition. Instead, the petition was supported by declarations of the Director, staff psychiatrists at Atascadero State Hospital, and the Chief Counsel of the State Department of Mental Health. In his declaration and in a letter to the district attorney, the Director stated that he disagreed with the conclusions of the designated evaluators that Ghilotti was not an SVP. In the opinion of the Director, Ghilotti was an SVP because he was likely to reoffend if released without supervision.
The petition notes that the designated evaluators had concluded Ghilotti was not an SVP and that the Director had rejected one of these evaluations as “not meeting the necessary criteria” and ordered a third evaluation. The petition did not allege that the remaining negative evaluation was improperly prepared or otherwise deficient, and the district attorney did not wait for the third evaluation to be completed before seeking recommitment. Rather, the petition alleged that the evaluations were unnecessary because the Director is empowered under subdivision (h) of section 6601 to seek a petition for recommitment even if the designated evaluators conclude that the person does not meet the statutory criteria.
*935At the hearing on the recommitment petition, the deputy district attorney stated that the government was proceeding “on a somewhat unusual basis” of asserting the Director had the authority under section 6601, subdivision (h), to seek a petition in the absence of evaluators’ reports. The deputy district attorney stated that copies of the negative evaluations had been given to Ghilotti’s counsel, but had not been given to the court, adding: “We have those available.” Ghilotti’s counsel observed that Peters v. Superior Court (2000) 79 Cal.App.4th 845 [94 Cal.Rptr.2d 350] held that the State Department of Mental Health (the Department) cannot disregard an evaluator’s report, and the court replied: “Well, that may be so in the circumstances of that case, but does it apply to circumstances in which the Department simply finds the report to be incompetent?” Ghilotti’s counsel agreed that if “an examiner turned out to be a total fraud” the Department could disregard the evaluation, but argued “that’s not the facts before this court.”
The court then noted that it had not seen the evaluations, but had “some suspicion that the evaluations might be incompetent” because “these evaluators may well be assuming some level of treatment or support network after release that would be entirely subject to Mr. Ghilotti’s own choice and election once he’s released.” Ghilotti’s counsel responded that all three evaluations agreed that Ghilotti was not an SVP. The court asked whether the evaluators “give reasoning in the evaluations” and whether “they recite the criteria that they used in evaluating” Ghilotti.
At this point, the deputy district attorney interjected: “Do you think it would be helpful to you to have those evaluations to review?” The court responded: “No, because I don’t think that is really my province. What I am concerned about is whether the Department of Mental Health knows what the criteria are, has properly informed the people who are responsible for making the evaluations and whether they have done it appropriately.” In response to the court’s questions, counsel for the Department confirmed that the Department trains the evaluators and gives them “a protocol handbook.” Counsel acknowledged that “regrettably sometimes the evaluations don’t comport with that protocol. If it fails to comport, then under those circumstances, as the Court suggested, we would not accept that as an evaluation.” The court asked whether the protocol addressed the concerns the court had expressed and counsel responded he “had to plead ignorance.”
After restating his concerns about whether the evaluators applied the correct standards, the court acknowledged that it was pursuing an issue “that really isn’t before me” and added: “If I had a strong declaration from the Department of Mental Health here today indicating that they have made a good faith effort to do the evaluation and in fact had carefully scrutinized the evaluations they had and determined them to be incompetent and were *936setting about finding appropriate evaluations based upon correct criteria, I would be a little more comfortable about the possibility of starting the process in motion and perhaps even contemplating the detention of Mr. Ghilotti further; but based upon the record I have here right now, as [Ghilotti’s counsel] amply points out, I don’t think that’s within my power.”
The court, however, invited the Department to take further action: “If you want to go back and talk to your people and get back to me some time tomorrow with a better explanation of what is going on than I have now, I will give you time.” The court rejected the Department’s argument that the Director had the authority under section 6601, subdivision (h), to seek a petition without the concurrence of two designated evaluators, but observed that “the Director has not only the discretion, but the responsibility to review the evaluations and make sure that they are competent. . . .”
The following day, counsel for the Department did not appear and the deputy district attorney informed the court he “had not received any additional materials and ha[d] no other legal authority to propose to the Court . . . .” The court dismissed the petition.
I find no basis for faulting the superior court. The superior court correctly rejected the government’s sole argument in support of the petition that section 6601, subdivision (h), authorized the Director to seek a petition without the concurrence of two designated evaluators. Neither the district attorney nor the Department ever asked the court to review the negative evaluations or asserted that those evaluations were incompetent or deficient in any respect. Even after the court invited the Department to review the evaluations and recessed for the evening, the Department did not ask the court to review the evaluations and did not assert that the evaluations were incompetent or deficient.
Accordingly, I see no basis for vacating the Court of Appeal’s order denying mandamus. The issuance of a writ of mandate to compel a judicial act is appropriate only if the lower court has erred. (Hurtado v. Superior Court (1974) 11 Cal.3d 574, 579 [114 Cal.Rptr. 106, 522 P.2d 666] [“The trial court is under a legal duty to apply the proper law and may be directed to perform that duty by writ of mandate”]; 8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 99, p. 890 [“ ‘abuse of discretion’ means only that the decision is wrong in law”].) The superior court in the present case did not err.
Because the superior court never was asked to review the negative evaluations, this case is a poor vehicle for deciding whether the court has the authority to do so. I prefer to await a case that involves a request for judicial review of a negative evaluation before addressing this issue.
*937 Meaning of “Likely to Engage in Acts of Sexual Violence”
Under section 6601, subdivision (d), the Director shall request a petition for commitment or recommitment as an SVP if two designated evaluators “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 majority properly rejects Ghilotti’s contention that the term “likely” as used in this statute means “highly likely,” or at least “more likely than not.” I agree that the statutory phrase “likely to engage in acts of sexual violence” “does not mean the risk of reoffense must be higher than 50 percent.” (Maj. opn., ante, at p. 916.) Rather, it is sufficient if the SVP “presents a substantial danger—that is, a serious and well-founded risk—of reoffending” (ibid.) or, in other words, presents “a high risk of reoffense.” (Id. at p. 921.) The risk of reoffense must be sufficiently high, however, to distinguish SVP’s from the general population of convicted sex offenders.
In Kansas v. Hendricks (1997) 521 U.S. 346 [117 S.Ct. 2072, 138 L.Ed.2d 501], the high court considered a Kansas SVP statute that required a showing that the person was “ ‘likely to engage in . . . predatory acts of sexual violence’ ” and stated: “The statute thus requires proof of more than a mere predisposition to violence; rather, it requires evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated.” (Id. at p. 357 [117 S.Ct. at p. 2080].)
The high court recently returned to the Kansas SVP statute in Kansas v. Crane (2002) 534 U.S. 407 [122 S.Ct. 867, 151 L.Ed.2d 856] to examine the requirement established in Hendricks that the person be unable to control his behavior, stating: “Hendricks underscored the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment ‘from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.’ ” (Id. at p. 411 [122 S.Ct. at p. 870.) One requirement that helps make that distinction, the court noted, was that the person must manifest “a special and serious lack of ability to control behavior.” (Ibid.) Although “ ‘inability to control behavior’ will not be demonstrable with mathematical precision,” the court required “that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.” (Ibid.)
Sadly, there is a risk that any convicted sex offender will reoffend upon being released from prison. (U.S. Dept. Justice, Bur. J. Statistics, Sex *938Offenses and Offenders (Feb. 6, 1997) p. 26 <http://www.ojp.usdoj.gov/bjs/ abstract/soo.htm> [as of Apr. 25, 2002].) The Act, therefore, requires not just a risk of reoffense, but a high risk of reoffense.
Thus, I embrace the majority’s “serious and well-founded risk” standard with the understanding that it requires a heightened risk sufficient to “distinguish the dangerous sexual offender” subject to civil commitment “from the dangerous but typical recidivist.” (Kansas v. Crane, supra, 534 U.S. at p. 411 [122 S.Ct. at p. 870].) The risk of reoffense must be sufficiently high to distinguish the “small but extremely dangerous group of sexually violent predators,” at which the Act is aimed (Stats. 1995, ch. 763, § 1) from the general population of convicted violent sex offenders, all of whom pose an elevated risk of recidivism.
I also agree with the majority that, in assessing whether a person is likely to reoffend, the evaluators may consider whether the person will voluntarily accept community treatment. (Maj. opn., ante, at pp. 924-929.) I note, however, that whether the person’s refusal to cooperate in any phase of treatment, such as a period of supervised outpatient treatment in the community, indicates that the person “is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community” (id. at p. 929) will depend upon the totality of the circumstances. It may be, for example, that the person declined the conditional release program because it imposed onerous conditions to which the person reasonably objected, or that the person’s expected release date was imminent, making conditional release unattractive.
Conclusion
I would affirm the order of the Court of Appeal denying the petition for writ of mandamus.
Brown, J., concurred.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.