Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. 915704
Jenkins, J.
Following a bench trial, the trial court entered an order continuing appellant Richard A. Edison’s commitment for an indeterminate term in the custody of the Department of Mental Health (DMH) as a sexually violent predator (SVP), within the meaning of the Sexually Violent Predators Act (Welf. & Inst. Code, section 6600 et. seq.) (the SVPA). In his opening brief, Edison contends the order should be reversed because his indeterminate commitment under the SVPA, as amended in 2006, violates his federal constitutional rights (1) to due process of law, (2) against ex post facto laws, and (3) to equal protection under the law. Edison also argues that the order should be reversed because his indeterminate commitment violated an alleged agreement between the parties and the court that the commitment would be for a term of two years. In a supplemental opening brief, appellant further contends that the trial court’s order should be reversed because it is based upon the DMH’s illegal use of underground regulations in the evaluation and screening process of SVPs. We affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
The underlying facts are not relevant to the issues raised on appeal. We briefly summarize the procedural background only.
In December 2001, the Mendocino County District Attorney (DA) filed a petition to commit Edison as an SVP. In November 2002, Edison was adjudged an SVP and committed to custodial treatment for a term of two years. On November 24, 2004, Edison waived trial, admitted a petition for re-commitment as an SVP, and was committed to custodial treatment for a further period of two years, expiring on November 26, 2006.
On August 8, 2006, the DA filed a petition seeking to extend Edison’s involuntary commitment as an SVP “from its present date of November 26, 2006, until November 26, 2008.” On October 3, 2006, the DA filed an Amended Petition seeking to extend Edison’s involuntary commitment as an SVP “from its present date of November 26, 2006, until the term prescribed by law.”
On February 27, 2007, Edison filed a “Waiver of appearance for hearings and trial and waiver of jury trial in favor of court trial” (waiver). At the conclusion of a bench trial held on December 17, 2007, the court found the petition true and committed Edison to the DMH until November 26, 2008. On December 21, 2007, the court modified its order and committed Edison for an indeterminate term. Edison filed a timely notice of appeal on January 3, 2008.
Discussion
A. Waiver
1. Background
On October 3, 2006, Edison’s counsel advised the court regarding the upcoming probable cause hearing that Edison “typically does not want to be transported [from hospital to county jail]. Counsel added Edison “typically does not demand his jury trial,” indicated that she “would expect [Edison] to waive this time” but stated she “need[ed] to get that in writing and confirm personally with Mr. Edison that’s what he’s prepared to do.” Before the probable cause hearing commenced on November 2, 2006, the court noted that Edison’s counsel “filed a waiver of his appearance for hearing up to trial.” Edison’s counsel stated he was “satisfied with that document in terms of waiving [Edison’s] personal presence [at the probable cause hearing].”
At a pre-trial hearing on January 29, 2007, Edison’s counsel again indicated that “my client is going to waive appearance. And I’m pretty sure by now he’s going to waive jury trial.” Counsel asked the court to “vacate the trial date that’s set for next week and reset it sometime after April 3rd” to allow counsel time to obtain a written waiver. At a further pre-trial hearing on February 28, 2007, Edison’s counsel filed the waiver at issue. The court noted Edison waived both his appearance and his right to a jury trial in favor of a bench trial. Counsel represented that the waiver was initialed and signed by Edison, and witnessed by “someone from Coalinga State Hospital where he’s at.”
The waiver itself consists of a list of separate understandings or acknowledgments, each initialed “RLE” by Edison, as to his various rights in the SVP commitment proceedings. In this manner, Edison acknowledges in the waiver that he has the right to be personally present and to be represented by counsel, a right to a jury trial, a right to confront and cross-examine witnesses called against him and to present evidence on his own behalf, and the right to testify or not to testify as he deems proper. The waiver also contains the following initialed acknowledgment: “I understand that if the petition is granted my current commitment . . . will be extended for an additional two years, specifically from November 26, 2006, to November 26, 2008.” Last, the waiver states: “Understanding these rights, and having had the assistance and consultation of my counsel, I, Richard Arnold Edison, make such waivers as set forth under my initials below: I freely and voluntarily waive my right to be personally present at the trial, and agree to appear through counsel for that hearing. I waive trial by jury.” The waiver is signed by Edison and witnessed by a member of staff at the Coalinga State Hospital.
Analysis
Edison argues that by accepting his waiver, which included his understanding that any period of further commitment would be for two years, the trial court entered into a “binding agreement such that the trial court was either obligated to comply with the agreement or grant appellant the opportunity to withdraw from the agreement. Since the trial court did neither, the indeterminate commitment it imposed on appellant is invalid.” Edison asserts the waiver operates as a plea agreement and that the trial court violated terms of this plea agreement by imposing an indeterminate term rather than a two-year term. He suggests the appropriate remedy under the law of contract governing plea bargains is to allow him to withdraw his waiver and proceed to jury trial. Alternatively, Edison contends that even if the waiver did not constitute a binding contract, the trial court was estopped from imposing an indeterminate term. Citing Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 692, Edison sets forth the 4 elements of promissory estoppels — a clear promise, reliance, substantial detriment and damages—and asserts those elements are met here. These contentions fail.
Plea agreements are an “ ‘integral component of the criminal justice system.’ ” A plea agreement is a disposition negotiated between “the People and the defendant and approved by the court [by which] the defendant agrees to plead guilty [or no contest] in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. . . . [I]mplicit in all of this is a process of ‘bargaining’ between the adverse parties to the case—the People represented by the prosecutor on one side, the defendant represented by his counsel on the other—which bargaining results in an agreement between them. [¶] [O]nly the prosecutor is authorized to negotiate a plea agreement on behalf of the state” and the court has no authority to inject itself into the negotiation process and “ ‘agree’ to a disposition of the case over prosecutorial objection.’ ” (People v. Segura (2008) 44 Cal.4th 921, 929 [italics added, citations omitted].)
“Proceedings under the SVPA,” on the other hand, “are civil in nature . . . [and] principles applicable to criminal proceedings” do not apply “unless the Legislature has indicated otherwise.” (People v. Collins (2003) 110 Cal.App.4th 340, 348 [italics added] [rejecting the People’s contention that by waiving a jury trial and submitting to the court the issues presented by the People’s petition for continued involuntary treatment under the SVPA, appellant had effectively entered “a plea of guilty or of no contest resulting in an admission of ‘all matters essential to the conviction,’ thus barring this appeal” (id. at p. 347)]; accord People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1128 [noting that proceedings under the SVPA “are civil in nature (citations)” and that “unless otherwise indicated on the face of the statute, rules of civil procedure will operate. (Citations.)”].)
Moreover, because an SPVA commitment proceeding is “a special proceeding of a civil nature . . . [and] neither an action at law nor a suit in equity, . . . the use of a jury is a matter of legislative grant and not of constitutional right.” (People v. Rowell (2005) 133 Cal.App.4th 447, 451-452 (Rowell).) Section 6603 governs the right to a jury trial in SVP cases. (Id. at p. 452; § 6603.) “Under section 6603, a defendant’s right to a jury trial in an SVP proceeding is waived by the simple failure to demand one. There is no requirement that the statutory right to a jury trial be personally waived.” (Ibid.) However, waiver of the statutory right to a jury trial in an SVP proceeding, like the constitutional right to a jury trial in a criminal matter, must be knowing, voluntary, and intelligent to be valid. (In re Hannie (1970) 3 Cal.3d 520, 526-527 [waivers of constitutional and statutory rights must be “voluntary and ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences’ ” (citations omitted)]; People v. Charles (1985) 171 Cal.App.3d 552, 559 [statutory right “may also be validly waived provided such waiver is knowing, free and intelligent”].)
In light of the above authorities, we reject Edison’s assertions that the Waiver operated as a plea agreement or estopped the trial court from imposing indefinite commitment. First, Edison identifies nothing “on the face of the statute” to indicate that criminal procedures allowing for plea bargaining are contemplated under the SVPA. (People v. Superior Court (Preciado), supra, 87 Cal.App.4th at p. 1128; cf. People v. McClellan (1993) 6 Cal.4th 367, 380 [noting that where a sex offender registration requirement is “statutorily mandated” it is “not a permissible subject of plea agreement negotiation”].)
Second, the plea agreement process is integral to criminal proceedings and results in a disposition of pending criminal charges negotiated between the People and the defendant. A plea agreement must be approved by the court, but only the prosecutor is authorized to negotiate a plea agreement on the People’s behalf. (People v. Segura, supra, 44 Cal.4th at pp. 929-930.) The waiver here lacks these fundamental characteristics and indicia of a plea agreement. An SVP proceeding is civil, not criminal in nature, and the liberty interests at stake therein are protected by statutory, not constitutional, rights. Also the waiver is not a disposition—it is not an admission on the ultimate issue of whether Edison is an SVP—that remained to be adjudicated at trial.
Moreover, nothing in the record suggests any negotiations took place between Edison and the DA regarding the terms of the waiver. Similarly, nothing in the record indicates that the court regarded the waiver as the product of negotiations between Edison and the DA, requiring the court to approve a two-year term of commitment. Nor is there any indication in the record that the court promised Edison a two-year term of commitment in exchange for his waiver. Indeed, the waiver itself states it was the result of consultation between Edison and his counsel, and mentions the involvement of no third party. Having obtained Edison’s consent to waive his appearance and right to a jury in this manner, Edison’s counsel validly presented the waiver to the court on Edison’s behalf. (Rowell, supra, 133 Cal.App.4th at p. 451-452 [no requirement that defendant personally waive statutory right to a jury trial in an SVP proceeding].)
In sum, Edison’s waiver was neither a plea agreement nor a binding promise on the ultimate disposition of the SVP proceeding. Thus, we reject Edison’s contentions that the waiver constituted a binding contract and that the trial court was estopped from imposing an indeterminate commitment.
Edison made no request to withdraw his waiver after the trial court ruled that his commitment would be indeterminate, nor does he contend on appeal that his waiver was involuntary based on the understanding that the commitment would extend only for two years.
B. Constitutional Claims
1. Overview of SVPA
The SVPA took effect on January 1, 1996. (Stats.1995, ch. 763, § 3.) As originally enacted, the SVPA provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, by a unanimous jury verdict after trial (former §§ 6603, subd. (d), 6604), were found beyond a reasonable doubt to be an SVP (former § 6604). (People v. Williams (2003) 31 Cal.4th 757, 764; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1147.) As originally enacted, the SVPA provided that a person could be recommitted for a successive two-year term only upon the filing of a recommitment petition followed by another jury trial at which the People again had to prove beyond a reasonable doubt that the person was currently an SVP. (Former §§ 6604, 6605, subds. (d), (e).)
References to “former” versions of the statutes comprising the SVPA are to the statutes as originally enacted.
Amendments to the SVPA took effect on September 20, 2006. (See Stats. 2006, ch. 337, § 55.) Under the SVPA as amended, the government must still prove beyond a reasonable doubt at an initial commitment proceeding that the person whose commitment is sought is an SVP. (§ 6604.) However, the SVPA now provides that if the court or jury finds that a person is an SVP, the court must commit the person for an indeterminate term, rather than a two-year term. (§ 6604.)
Further references to the SVPA are to the statutes as amended.
Because the SVPA provides for an indeterminate term of commitment, the government no longer has to prove every two years that a person remains an SVP beyond a reasonable doubt. Instead, the SVPA, as amended, provides that the Department must examine the person’s mental condition at least once a year and must report annually on whether the person remains an SVP. (§ 6605, subd. (a).) If the Department determines the person is no longer an SVP, the director of the Department must authorize the person to petition the court for an unconditional discharge. (§ 6605, subd. (b).) If, on consideration of such a petition, the court finds probable cause to believe the person is no longer an SVP, the court must order a hearing on the petition. (§ 6605, subd. (c).) At the hearing, a petitioner is entitled to a jury trial, the assistance of counsel, and the government must prove beyond a reasonable doubt that the petitioner is still an SVP. (§ 6605, subd. (d).) If the government meets that burden, the person must be recommitted to the Department for an indeterminate term: If the government does not meet its burden, then the person must be unconditionally discharged. (§ 6605, subd. (e).)
Another avenue for release from confinement under the SVPA is a petition under section 6608. Under section 6608, a person committed as an SVP may petition for conditional release or unconditional discharge without the recommendation or concurrence of the director of the Department. (§ 6608, subd. (a).) The court may deny the petition without a hearing if it determines it is based on frivolous grounds. A person petitioning for release is entitled to the assistance of counsel. (§ 6608, subd. (a).) In any hearing under section 6608, the petitioner has the burden to show by a preponderance of the evidence that he would not be a danger to the health and safety of others if under supervision and treatment in the community. (§ 6608, subd. (i).)
The constitutional issues raised by Edison are now pending before our Supreme Court in People v. McKee 160 Cal.App.4th 1517 (review granted July 9, 2008, S162823) and People v. Johnson 162 Cal.App.4th 1263 (review granted Aug. 13, 2008, S164388). The same arguments have been considered and rejected in People v. Riffey (2008) 163 Cal.App.4th 474, 486-489 (review granted Aug. 20, 2008, S164711); People v. Boyle (2008) 164 Cal.App.4th 1266 (review granted Oct. 1, 2008); and People v. Garcia (2008) 165 Cal.App.4th 1120 (review granted Oct. 16, 2008); and most recently in People v. Force (2009) 170 Cal.App.4th 797 (Force).)
(a) Due Process
Edison contends that the SVPA as amended violates due process because it imposes an indefinite term of commitment and places the burden of proof on defendant to establish he no longer qualifies as an SVP. This contention is without merit.
The high court has held that an initial civil commitment for an indefinite term does not violate due process merely because of the potential for a lengthy commitment. (See Jones v. United States (1983) 463 U.S. 354, 368 [statute providing for indefinite commitment of a criminal defendant acquitted by reason of insanity and requiring defendant to prove by preponderance of evidence that he is no longer insane or dangerous in order to be released does not violate due process]; see also Kansas v. Hendricks (1997) 521 U.S. 346, 358 (Hendricks) [upholding Kansas Sexually Violent Predator Act, which provided for commitment until mental abnormality or personality disorder has so changed that the committed person is no longer dangerous].) An indefinite civil commitment is consistent with due process if the statute provides fair and reasonable procedures to ensure that the person is held “as long as he is both mentally ill and dangerous, but no longer.” (Foucha v. Louisiana (1992) 504 U.S. 71, 77.)
Suffice to say we believe the SVPA as amended meets these constitutional standards of due process. The initial commitment hearing itself provides a significant level of due process protection because it requires a finding beyond a reasonable doubt that appellant had qualifying criminal conduct and is both mentally ill and dangerous: By comparison, the federal Constitution requires proof in an initial civil commitment case by the lesser standard of clear and convincing evidence. (Addington v. Texas (1979) 441 U.S. 418, 426-427.) Moreover, the required periodic reviews of appellant’s mental health status and the petition for release procedures minimize the risk of erroneous deprivation. (People v. Force, supra, 170 Cal.App.4th at p. 811 [stating that where the state has established defendant is an SVP by proof beyond a reasonable doubt and defendant’s SVP status is verified on an annual basis by DMH, it is “constitutionally permissible” to impose on a committed individual the burden of showing by a preponderance of the evidence that he is not an SVP].) In sum, the SVPA as amended satisfies due process requirements.
3. Equal Protection
Edison asserts he has been denied equal protection because SVPs receive treatment disparate from other similarly situated persons. He argues that SVPs are similarly situated to and should be treated no differently than mentally disordered offenders (MDO) subject to commitment under either the Mentally Disordered Offenders Act (Pen. Code, § 2960 et seq.) or those civilly committed because they were found not guilty of a crime by reason of insanity (NGI) (Pen. Code, § 1026 et. seq.).
Several California appellate cases already have addressed and rejected the equal-protection challenges Edison raises. (People v. Calderon (2004) 124 Cal.App.4th 80, 94 [MDOs and SVPs not similarly situated]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1314-1315 [rejects claim of equal-protection violation after analyzing MDO and SVP schemes]; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1218-1219 [SVPA does not violate equal protection]; People v. Calhoun (2004) 118 Cal.App.4th 519, 529-530 [SVPs and criminal defendants not similarly situated, so no equal-protection violation].) Additionally, the Ninth Circuit has held that California’s statutory scheme for treatment of SVPs does not violate equal protection. (Hubbart v. Knapp (9th Cir.2004) 379 F.3d 773, 782 [no constitutionally significant distinction between MDO and SVP statutes].) Since the groups are not similarly situated, there is no requirement that they be treated the same. “[T]he Legislature may make reasonable distinctions between its civil commitment statutes based on a showing that the persons are not similarly situated.” (In re Smith (2008) 42 Cal.4th 1251, 1266.) Under the authority cited above, we reject Edison’s equal-protection claim.
4. Ex-Post Facto and Double Jeopardy
Edison contends that the SVPA as amended is a criminal statute, not a civil statute, and therefore it violates ex post facto and double jeopardy provisions of the state and federal constitutions. This contention is without merit.
The ex post facto clause of the United States Constitution “prohibits only those laws which ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’ ” (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1170-1171 (Hubbart), quoting Collins v. Youngblood (1990) 497 U.S. 37, 43.) The double jeopardy clause of the United States Constitution prohibits punishing any individual twice for the same offense. (Hendricks, supra, 521 U.S. at p. 369.) Before the SVPA’s amendment, the California Supreme Court rejected arguments that the SVPA implicated the ex post facto clauses of the state and federal Constitutions, finding that the statutory scheme was not punitive in nature. (Hubbart, supra, at pp. 1170-1178.) After the SVPA was amended, the appellate court in People v. Carlin (2007) 150 Cal.App.4th 322, 348, applied Hubbart in rejecting double jeopardy and ex post facto challenges to the SVPA. Nothing in the SVPA amendments alter the conclusion reached in Hubbart and Carlin.
As the Hubbart court pointed out, the legislative characterizations of a law play a critical role in determining whether or not a law inflicts punishment. (Hubbart, supra, 19 Cal.4th at p. 1171.) The court noted, among other things, that the SVPA legislative scheme makes clear that persons eligible for commitment as SVP’s “are to be viewed ‘not as criminals, but as sick persons’ ” pursuant to section 6250. (Ibid.) Furthermore, “[c]onsistent with these remarks, the SVPA was placed in the Welfare and Institutions Code, surrounded on each side by other schemes concerned with the care and treatment of various mentally ill and disabled groups.” (Ibid.) The court also relied on the ex post facto analysis in Hendricks, supra, 521 U.S. 346, 351, which found the Kansas Act did not inflict punishment within the meaning of the ex post facto clause. (Hubbart, supra, 19 Cal.4th at pp. 1171-1175.) Also, the Legislature stated in 1996 that its intent was for SVPs to “be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes.” (Stats.1995, ch. 763, § 1.) Nothing in its amendments indicates an alteration of this intent. We conclude that defendant’s ex post facto and double jeopardy rights were not violated by the SVPA.
C. Underground Regulations
1. Background
“The [Administrative Procedure Act (APA)] requires every administrative agency guideline that qualifies as a ‘regulation,’ as defined by the APA, to be adopted according to specific procedures. (Gov. Code, § 11340.5, subds. (a), (b).) The Office of Administrative Law (OAL) is charged with, among other functions, enforcing this requirement. (Gov. Code, §§ 11340.2, 11340.5, subd. (b).) If the OAL is notified or learns that an administrative agency is implementing a regulation that was not properly adopted under the APA, the OAL must investigate, make a determination, and publish its conclusions. (Gov. Code, § 11340.5, subd. (c).) [¶] A regulation found not to have been properly adopted is termed an ‘underground regulation.’ ‘An underground regulation is a regulation that a court may determine to be invalid because it was not adopted in substantial compliance with the procedures of the [APA].’ (Citations.) An OAL determination that a particular guideline constitutes an underground regulation is not binding on the courts, but it is entitled to deference. (Citations.)” (People v. Medina (2009) 171 Cal.App.4th 805, 813-814 (Medina).) As pertinent here, DMH developed guidelines entitled the “Clinical Evaluator Handbook Standardized Assessment Protocol (2007) (“protocol”) for purposes of conducting the SVP evaluations prescribed under section 6601.
Section 6601 requires that before a person can be committed as a sexually violent predator, the DMH must “evaluate the person in accordance with a standardized assessment protocol, developed and updated by [DMH], to determine whether the person is a [SVP] as defined in this article.” (§ 6601, subd. (c).)
“Early in 2008, a petition was filed with the OAL challenging as underground regulations various provisions of [the protocol]. (Citation.) The OAL found the challenged provisions invalid, concluding that ‘[t]he challenged provisions in the [protocol] issued by [the Department] meet the definition of a ‘regulation’ as defined in [Government Code] section 11342.600 that should have been adopted pursuant to the APA.’ (Citation.) Although the OAL specifically restricted its inquiry to 10 provisions within the protocol] (citation), its decision effectively invalidates the operative content of the protocol.” (Medina, supra, 171 Cal.App.4th at p. 814.)
The Attorney General (AG) does not concede the Protocol is a regulation. The AG further informs us that DMH has not challenged the OAL determination but instead has revised the Protocol “to adhere to the [OAL] determination and treat the protocol as a regulation, including adopting it per the APA.” Given the AG’s position, we assume but do not decide the protocol is an underground regulation.
2. Analysis
Based on the OAL’s determination that numerous provisions in the Protocol were regulations subject to the APA, Edison contends that those provisions “were illegally adopted underground regulations.” Edison contends that because the protocol is void, he was not initially evaluated as an SVP in compliance with section 6601. As a result, he claims, the district attorney lacked statutory authority to seek his commitment under the SVPA. Thus, he asserts his commitment as an SVP was void ab initio and therefore he should be released. Even assuming the protocol is an underground regulation, however, Edison is not entitled to relief.
As noted by Division One of this Court in Medina, supra, a defendant’s challenge to his SVPA status based on the illegality of the DMH’s screening protocol is a collateral attack on the initial judgment of commitment. (Medina, supra, 171 Cal.App.4th at pp. 814-815.) Cognizable grounds for such a collateral attack “are restricted to a lack of jurisdiction.” (Id. at p. 815.) Essentially, Edison argues the court in the initial commitment proceeding acted without the procedural prerequisite of a valid screening process under section 6601. “[T]his is an argument that the court acted in excess of its jurisdiction, rather than without fundamental jurisdiction. (Citations.)” (Medina, supra, 171 Cal.App.4th at p. 816.) A judgment by a court lacking fundamental jurisdiction is void, whereas a judgment by a court acting in excess of its jurisdiction is merely voidable. (Id. at p. 815.) Moreover, “ ‘[e]rrors which are merely in excess of jurisdiction should be challenged directly, for example by motion to vacate the judgment, or on appeal, and are generally not subject to collateral attack once the judgment is final unless “unusual circumstances were present which prevented an earlier and more appropriate attack.” [Citations.]’ (Citations.)” (Id. at p. 816.) Edison has not cited any unusual circumstances that prevented an earlier and more appropriate challenge to the protocol during the initial commitment proceedings. Moreover, Edison’s consent to the re-commitment petition in 2004 forfeited any claim that the court acted in excess of its jurisdiction in entering the 2002 order of commitment. (Id. at pp. 816-817.) In sum, Edison may not raise a challenge to the original order of commitment “by way of collateral attack.” (Id. at p. 817.)
At oral argument, Edison’s counsel stated that his underground regulation challenge is directed at the most recent commitment petition (the subject of the current appeal). We hold that he forfeited this claim by failing to raise it in the trial court. (Medina, supra, 171 Cal.App.4th at p. 817 [challenge to current commitment proceeding based on illegality of DMH protocol forfeited for failure to raise issue before trial court]; accord People v. Castillo (2009) 170 Cal.App.4th 1156, 1175-1176 (Castillo).) Anticipating our ruling in this regard, Edison contends that counsel’s failure to raise the issue below constitutes ineffective assistance of counsel (IAC). It does not.
Edison cannot demonstrate the necessary prejudice for IAC. (Strickland v. Washington (1984) 466 U.S. 668, 687-698 [“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”].) Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (In re Hardy (2007) 41 Cal.4th 977, 1018 [citations omitted].) In the context of this particular claim, to establish prejudice Edison “must show that had his trial counsel challenged the protocol, thereby obtaining reevaluation, it is reasonably probable he would have been screened out or otherwise would have been found not to be an SVP.” (Medina, supra, 171 Cal.App.4th at p. 820.)
Edison, however, like the defendant in Medina, supra, “makes no showing that the characteristics of his particular mental disorder are sufficiently ‘borderline’ or controversial that there is a reason to believe that changes in the protocol would affect his personal standing. Indeed, he does not discuss the evidence in the record relating to his own disorder at all.” (Medina, supra, 171 Cal.App.4th at p. 820.) Instead, Edison merely speculates that an APA-compliant protocol might be “completely different” to the challenged protocol and on that basis asserts that “it is completely impossible to predict whether [he] will be found to qualify” as a [SVP] under a APA-compliant protocol. We agree with the Medina and Castillo courts that such speculation “is simply insufficient to carry [the] burden of demonstrating the reasonable probability, rather than the mere possibility, of a different outcome.” (Medina, supra, 171 Cal.App.4th at p. 820; see similarly Castillo, supra, 170 Cal.App.4th at pp. 1177-1179) Accordingly, Edison’s IAC claim fails.
Disposition
The trial court’s order of commitment is affirmed.
We concur: McGuiness, P. J., Pollak, J.