Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 96902.
ROBIE, J.
The trial court committed defendant Ronnie Levon Edwards indefinitely as a sexually violent predator. On appeal, defendant contends the commitment petition should have been dismissed before trial when a split of opinion as to whether he was a sexually violent predator developed between the independent professionals who evaluated him. He further contends that if dismissal was not required by the terms of the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600, et seq.) (the Act), then the Act violates equal protection.
All further statutory references are to the Welfare and Institutions Code.
Defendant also contends: (1) the trial court abused its discretion when it rejected the opinions of the two experts who testified he did not meet the criteria as a sexually violent predator; (2) the “likely” standard contained in the Act, as interpreted by the California Supreme Court, violates due process; and (3) the 2006 amendments to the Act violated due process and equal protection and the prohibitions against double jeopardy and ex post facto laws.
We find no merit in defendant’s arguments save one -- his claim that the 2006 amendments to the Act, which provide for indefinite commitments of sexually violent predators, violate equal protection because sexually violent predators are treated more harshly than mentally disordered offenders (MDO’s) and those who have been adjudged not guilty of a crime by reason of insanity (NGI’s). In People v. McKee (2010) 47 Cal.4th 1172, our Supreme Court determined that this equal protection argument was potentially meritorious and remanded the case to the trial court to give the People an opportunity to justify the differential treatment of sexually violent predators. Defendant is entitled to the same relief here. Accordingly, we will reverse the judgment and remand the case for further proceedings consistent with McKee.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was in prison with a parole release date in February 2007. In November 2006, psychologist Harry Goldberg evaluated him and determined he qualified as a sexually violent predator. In January 2007, psychologist Nancy Rueschenberg evaluated him and also determined he qualified as a sexually violent predator. Consequently, in February 2007, the Butte County District Attorney filed a petition to commit defendant indefinitely as a sexually violent predator.
At a hearing in April 2007, the court found probable cause to believe defendant qualified as a sexually violent predator. The hearing to determine whether defendant was a sexually violent predator was not held until June 2009, however.
In the meantime, in April 2008, the court ordered updated evaluations of defendant by Drs. Goldberg and Rueschenberg. As a result of her updated evaluation, Dr. Rueschenberg changed her mind and concluded defendant did not meet the criteria as a sexually violent predator, “[m]ostly based on the new norms for sexual recidivism.” Because Dr. Rueschenberg’s updated evaluation resulted in a split of opinion between the two psychologists, two additional evaluations were conducted. (See § 6603, subd. (c)(1).) In July 2008, psychiatrist Robin Broadman evaluated defendant and determined he qualified as a sexually violent predator. In August 2008, psychologist Kathleen Longwell evaluated defendant and also determined he qualified as a sexually violent predator.
In February 2009, before trial, Dr. Broadman reevaluated defendant based on some “new norms for some of the risk assessment instruments that had been established.” Based on this reevaluation, Dr. Broadman -- like Dr. Rueschenberg -- changed her mind and concluded defendant did not meet the criteria as a sexually violent predator.
Trial was held in June 2009; all four evaluators testified. At the outset, the parties stipulated that defendant had been convicted of three sexually violent crimes and that he had a diagnosed mental disorder that predisposed him to the commission of violent criminal sexual acts. Thus, the sole question for the bench trial was whether defendant was likely to engage in sexually violent criminal behavior if released from custody.
At trial, Drs. Rueschenberg and Broadman testified defendant was not a sexually violent predator and Drs. Goldberg and Longwell testified he was. Relying solely on Dr. Longwell’s conclusion, the trial court found that defendant presented “a substantial, serious, well-founded risk of reoffending by committing a predatory violent sexual offense.” Accordingly, the court ordered defendant committed indefinitely as a sexually violent predator. Defendant timely appealed.
DISCUSSION
I
Legal Principles
“The [Sexually Violent Predator Act] provides for the involuntary civil commitment of an offender immediately upon release from prison if the offender is found to be [a sexually violent predator]. [Citation.] The [Act] ‘was enacted to identify incarcerated individuals who suffer from mental disorders that predispose them to commit violent criminal sexual acts, and to confine and treat such individuals until it is determined they no longer present a threat to society.’ [Citations.] [A sexually violent predator] is defined as ‘a person who has 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.’ (§ 6600, subd. (a)(1).)” (Lee v. Superior Court (2009) 177 Cal.App.4th 1108, 1122.)
The commitment process under the Act begins when the secretary of the Department of Corrections and Rehabilitation “determines that an individual who is in custody under the jurisdiction of the Department of Corrections and Rehabilitation, and who is either serving a determinate prison sentence or whose parole has been revoked, may be” a sexually violent predator. (§ 6601, subd. (a)(1).) When that happens, the secretary must “refer the person for evaluation in accordance with this section.” (Ibid.)
The first step in the evaluation process is a preliminary “screening” performed by Department of Corrections and Rehabilitation and the Board of Parole Hearings “based on whether the person has committed a sexually violent predatory offense and on a review of the person’s social, criminal, and institutional history.” (§ 6601, subd. (b).) “If as a result of this screening it is determined that the person is likely to be a sexually violent predator, the Department of Corrections and Rehabilitation shall refer the person to the State Department of Mental Health for a full evaluation of whether the person meets the criteria in Section 6600.” (Ibid.)
During the “full evaluation” conducted by the State Department of Mental Health, the person is evaluated by two psychologists or psychiatrists. (§ 6601, subds. (b) & (d).) If after examining the person both professionals agree he or she “has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, ” a commitment petition may be filed. (§ 6601, subds. (d) & (i).) When there is a split of opinion between the evaluators, two independent professionals are brought in to evaluate the person, and a petition may be filed only if both independent evaluators believe he or she meets the sexually violent predator criteria. (Id., subds. (e) & (f).)
Once a petition has been filed, if the petitioning attorney “determines that updated evaluations are necessary in order to properly present the case for commitment, the attorney may request the State Department of Mental Health to perform updated evaluations. (§ 6603, subd. (c)(1).) An updated evaluation must “include review of available medical and psychological records, including treatment records, consultation with current treating clinicians, and interviews of the person being evaluated, either voluntarily or by court order. If an updated... evaluation results in a split opinion as to whether the person subject to this article meets the criteria for commitment, the State Department of Mental Health shall conduct two additional evaluations in accordance with subdivision (f) of Section 6601.” (Ibid.)
With these basic principles in mind, we turn to defendant’s arguments on appeal.
II
Dismissal Of Petition Based On Split Of Opinion
As we have noted, when there is a split of opinion between the original evaluators, before any commitment petition is filed, two independent professionals are brought in to evaluate the person, and a petition may be filed only if both independent evaluators believe he or she meets the sexually violent predator criteria. (§ 6601, subds. (e) & (f).)
Here, there was no split of opinion among the original evaluators -- Drs. Goldberg and Rueschenberg -- in 2007, before the petition was filed. A split developed in 2008, however, after the petition was filed, when Dr. Rueschenberg changed her mind as a result of her updated evaluation. Accordingly, pursuant to section 6603, subdivision (c)(1), two additional evaluations were conducted by Drs. Broadman (in July 2008) and Longwell (in August 2008). Initially, there was no split of opinion between the two additional evaluators. Several months later, in February 2009, however, Dr. Broadman changed her mind, too.
Defendant contends that when Dr. Broadman changed her mind, creating a split of opinion between the two additional evaluators, “the proceedings should have terminated at that point.” He bases that argument on the language of section 6603, subdivision (c)(1), which provides that “[i]f an updated... evaluation results in a split opinion as to whether the person subject to this article meets the criteria for commitment, the State Department of Mental Health shall conduct two additional evaluations in accordance with subdivision (f) of Section 6601.” (Italics added.) In defendant’s view, this reference to section 6601, subdivision (f) must be understood to mean that “[w]here independent evaluators appointed after a split of opinion do not concur that the person is a sexually violent predator, the petition is unauthorized” and must be dismissed.
Section 6601, subdivision (f) addresses the evaluations conducted by two independent professionals before the filing of a commitment petition when the two original evaluators split on whether the person being evaluated is a sexually violent predator. To fully understand section 6601, subdivision (f), the statute must be read in conjunction with the preceding subdivision (e). In their entirety, subdivisions (e) and (f) of section 6601 provide as follows:
“(e) If one of the professionals performing the evaluation pursuant to subdivision (d) does not concur that the person meets the criteria specified in subdivision (d), but the other professional concludes that the person meets those criteria, the Director of Mental Health shall arrange for further examination of the person by two independent professionals selected in accordance with subdivision (g).
“(f) If an examination by independent professionals pursuant to subdivision (e) is conducted, a petition to request commitment under this article shall only be filed if both independent professionals who evaluate the person pursuant to subdivision (e) concur that the person meets the criteria for commitment specified in subdivision (d). The professionals selected to evaluate the person pursuant to subdivision (g) shall inform the person that the purpose of their examination is not treatment but to determine if the person meets certain criteria to be involuntarily committed pursuant to this article. It is not required that the person appreciate or understand that information.”
As defendant notes, section 6601, subdivision (f) “contains two provisions.” “The first provides that there shall be a petition filed only if both evaluators agree that the person is a sexually violent predator. The second requires that the person evaluated be informed of the purpose of the evaluation regardless of whether the person understands that purpose.”
According to defendant, the reference to section 6601, subdivision (f) in section 6603, subdivision (c)(1) must be construed as a reference to the first provision in section 6601, subdivision (f), rather than (or in addition to) the second one. Defendant further contends that applying the first provision in section 6601, subdivision (f) to section 6603, subdivision (c)(1) requires that when there is a split of opinion between the additional evaluators provided for by section 6603, subdivision (c)(1) the commitment petition must be dismissed, just as no petition can be filed when there is a split of opinion between the independent evaluators provided for by section 6601, subdivision (e).
In Gray v. Superior Court (2002) 95 Cal.App.4th 322, Division Two of the Fourth Appellate District rejected a similar argument, writing as follows:
“It is axiomatic that in construing or interpreting legislation, the courts should not imply additional language in order to accomplish some supposed legislative purpose, at least not without very clear indications that the purpose was intended. [Citations.] Section 6603, subdivision (c), simply provides that if a[n]... updated evaluation results in a split opinion, ‘the State Department of Mental Health shall conduct two additional evaluations in accordance with subdivision (f) of Section 6601.’ The latter statute, in turn, provides for ‘independent professionals, ’ and requires these evaluators to provide certain information to the person being examined. To this extent, subdivision (f) of section 6601 has a clear application to the new evaluations required by section 6603, subdivision (c). However, subdivision (f), as Gray stresses, also prohibits the filing of a petition under the Act unless both of the independent evaluators concur that the subject qualifies. This does not apply to Gray’s situation.
“Gray would have us amend subdivision (f) of section 6601 to read in part (with changes in the language italicized): ‘[A] petition to request commitment under this article shall only be filed if both independent professionals who evaluate the person pursuant to subdivision (e) concur that the person meets the criteria for commitment specified in subdivision (d). Furthermore, if the independent professionals who evaluate the person--after a split of opinion has resulted from an updated... opinion--do not concur, a pending proceeding under this Act shall be forthwith dismissed.’ This, however, is not what the statute says. To say that a petition may not be filed unless certain conditions are met is not the same as to say that proceedings ‘may not go forward’ if those conditions cease to exist.” (Gray v. Superior Court, supra, 95 Cal.App.4th at pp. 327-328, fns. omitted.)
The Gray court further noted that “Section 6603, subdivision (c), merely provides that the new evaluators shall conduct their evaluations ‘in accordance with’ section 6601, subdivision (f). It does not, on its face, provide any consequences for a split of opinion between the second set of evaluators. Accordingly, we are unwilling to imply the drastic requirement of dismissal.” (Gray v. Superior Court, supra, 95 Cal.App.4th at p. 328, fn. omitted.)
Defendant acknowledges the decision in Gray, but contends (implicitly) that Gray was wrongly decided. First, relying on the rule of statutory interpretation that “a construction that renders a word surplusage should be avoided” (Delaney v. Superior Court (1990) 50 Cal.3d 785, 799), defendant argues that section 6603, subdivision (c)(1) must be construed as referring to the first provision in section 6601, subdivision (f) rather than the second provision because the second provision in section 6601, subdivision (f) -- requiring the evaluators to inform the person being evaluated of the purpose of the evaluation regardless of whether the person understands that purpose -- already “appl[ies] to all evaluations under the [sexually violent predator] law” and “no specific reference to subdivision (f) is required for [the second provision] to apply.” In defendant’s view, if the reference to section 6601, subdivision (f) in section 6603, subdivision (c)(1) is not construed as a reference to the first provision in section 6601, subdivision (f), then that reference is “a nullity.”
We are not persuaded by defendant’s argument. Section 6603, subdivision (c)(1) provides that if an updated evaluation results in a split opinion, “the State Department of Mental Health shall conduct two additional evaluations in accordance with subdivision (f) of Section 6601.” (Italics added.) Thus, the reference to section 6601, subdivision (f) is a reference to how the additional evaluations are to be conducted. Of the two provisions in section 6601, subdivision (f), only the second one relates to the conduct of the evaluation, by specifying that the evaluator must inform the person of the purpose of the evaluation, whether the person understands that information. The first provision in section 6601, subdivision (f) has nothing to do with the conduct of an evaluation. Instead, it limits the right to file a commitment petition depending on the result of the additional evaluations. The command in section 6603, subdivision (c)(1) that “the State Department of Mental Health shall conduct two additional evaluations in accordance with subdivision (f) of Section 6601” (italics added) is more reasonably construed as a reference to that part of section 6601, subdivision (f) that deals with the conduct of the evaluation rather than that part of the statute that deals only with what is to happen based on the result of the evaluation.
Furthermore, we disagree that the second provision in section 6601, subdivision (f) “appl[ies] to all evaluations under the [sexually violent predator] law” and “no specific reference to subdivision (f) is required for [the second provision] to apply.” The reasoning behind this argument is somewhat difficult to follow, but it goes something like this: Section 6601, subdivision (g) provides that “[a]ny independent professional who is designated by the Secretary of the Department of Corrections and Rehabilitation or the Director of Mental Health for purposes of this section shall not be a state government employee, shall have at least five years of experience in the diagnosis and treatment of mental disorders, and shall include psychiatrists and licensed psychologists who have a doctoral degree in psychology. The requirements set forth in this section also shall apply to any professionals appointed by the court to evaluate the person for purposes of any other proceedings under this article.” The second provision in section 6601, subdivision (f) provides that “[t]he professionals selected to evaluate the person pursuant to subdivision (g) shall inform the person that the purpose of their examination is not treatment but to determine if the person meets certain criteria to be involuntarily committed pursuant to this article.” Read together, defendant contends, these two statutes “require any ‘professional appointed by the court’ for any proceeding under the [Sexually Violent Predator] Act to advise the person of the purpose of the evaluation.” Therefore, in defendant’s view, “No reference to subdivision (f) of section 6601 would be necessary in subdivision (c)(1) of section 6603 if such an advisement was all that the Legislature intended.” Under this reasoning, then, the reference to section 6601, subdivision (f) in section 6603, subdivision (c)(1) must be a reference to the first provision in the former statute.
To the extent we can follow this reasoning, we are not persuaded by it. Together, sections 6601, subdivision (f) and 6601, subdivision (g) specify that where two independent professionals are selected to evaluate a potential sexually violent predator under the Act, each of those professionals (1) cannot be a state government employee; (2) must have at least five years of experience in the diagnosis and treatment of mental disorders; (3) must be either a psychiatrist or a licensed psychologist with a doctoral degree in psychology; and (4) must inform the person being evaluated of the purpose of the examination. We do not agree with defendant that these provisions, by themselves, “apply to all evaluations under the [sexually violent predator] law.” Instead, they apply only when the Act calls for evaluation by two independent professionals pursuant to these particular statutes. One such provision appears in section 6601, subdivision (e), the statute that applies when there is a split of opinion between the two original evaluators before a petition is filed. That statute provides that where such a split occurs, “the Director of Mental Health shall arrange for further examination of the person by two independent professionals selected in accordance with subdivision (g).” Another such provision is the second provision in section 6603, subdivision (c)(1), which provides that where there is a split of opinion as a result of an updated evaluation (as here) “the State Department of Mental Health shall conduct two additional evaluations in accordance with subdivision (f) of Section 6601.” The reference to section 6601, subdivision (f) in section 6603, subdivision (c)(1) thus provides that the additional evaluators are to be independent professionals who are subject to all of the requirements in section 6601, subdivisions (f) and (g). Contrary to defendant’s argument, reading the statutes in this manner does not make any of the statutory language surplusage.
Relying on the principle of statutory interpretation that statutes are to be construed to avoid constitutional infirmity (see, e.g., Erlich v. Municipal Court (1961) 55 Cal.2d 553, 558), defendant contends that we should accept his interpretation of section 6603, subdivision (c)(2) because “[t]o read the [Sexually Violent Predator] Act as providing that prior to the filing of the petition, but not after, the proceedings would come to a halt upon a second split of opinion would be to deny equal protection of the law.” Again, we disagree.
“‘“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.” [Citations.] 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.”’ [Citation.] In other words, we ask at the threshold whether two classes that are different in some respects are sufficiently similar with respect to the laws in question to require the government to justify its differential treatment of these classes under those laws.” (People v. McKee, supra, 47 Cal.4th at p. 1202.)
Defendant contends that “for all legitimate purposes” he is “similarly situated with an individual as to whom an identical split [of opinion] developed prior to the filing of the petition.” Because no commitment petition can be filed against a person being evaluated as a potential sexually violent predator when the evaluations by the two independent professionals that follow a split of opinion between the original evaluators also results in a split of opinion, defendant contends a similar split that occurs after the petition has been filed, in the course of updating the original evaluations, must result in dismissal of the commitment proceeding or else two similarly situated groups are treated disparately without a compelling reason for doing so.
We reject defendant’s threshold premise that the Act treats two similarly situated groups unequally. The Act does differentiate between two classes of potential sexually violent predators, but those classes of inmates are not similarly situated for purposes of the Act. As to inmates in the first class, an initial screening determined the inmate was likely to be a sexually violent predator but four evaluations failed to produce a consensus as to whether the inmate is a sexually violent predator. As to inmates in the second class, an initial screening determined the inmate was likely to be a sexually violent predator, the initial evaluations (whether two or four) produced a consensus that the person is a sexually violent predator, a commitment petition was filed, a superior court judge determined there was probable cause to believe the person is a sexually violent predator, and only upon updating the evaluations in preparation for trial did the consensus of expert opinion cease to exist.
These two classes of inmates are not similarly situated because as to the first class of inmates, no probable cause determination has been or is ever made. The probable cause determination is significant because at the probable cause hearing the defendant has the right to present evidence, including the right to cross-examine the professionals who evaluated the defendant and determined he or she qualified as a sexually violent predator. (See In re Parker (1998) 60 Cal.App.4th 1453, 1470.) When a superior court judge determines there is probable cause to believe the defendant is a sexually violent predator following the presentation of such evidence (or the opportunity to present such evidence), the defendant stands in a markedly different position than an inmate for whom no consensus of expert opinion was ever reached, let alone a probable cause determination made.
In Gray, the Court of Appeal -- although not expressly addressing an equal protection argument -- offered the following observations that are pertinent here:
“While original evaluations are generally performed by state employees, the Legislature may well have thought that if a conflict arises in the postfiling context, it is desirable to bring in the ‘independent professionals’ described in section 6601, subdivision (g), to examine the subject person and provide current evaluations. If these two independent professionals both agreed with the ‘updated’... evaluation that the subject person does not at the present time meet the criteria of the Act, the prosecuting attorney might well elect to dismiss the proceeding. In this way, by providing current and persuasive expert opinion, the requirements of section 6603, subdivision (c) would result in the avoidance of expensive trial proceedings that the prosecuting attorney believed would be doomed to failure. [Citation.] Insofar as Gray argues that the new evaluations are intended to prevent the commitment of persons who are not sexually violent predators, our interpretation does no harm to this intent.
“On the other hand, if the new evaluations merely reflect a further difference of opinion, there is no reason why the prosecuting attorney should be bound to act in compliance with the view of the evaluator (or even evaluators) favoring the subject person. It is true that the Act’s provisions, particularly the provisions for expert concurrence, establish substantial safeguards before a petition may even be filed. However, once the Act has been satisfied by sufficient expert opinion that the subject person meets the Act’s criteria, little in the way of justice would be gained by permitting proceedings to be derailed by the possibly fortuitous timing of conflicting opinions. As the People point out, a purely numerical standard for the continuation of a proceeding would deprive the trier of fact of the opportunity to make a qualitative assessment of the experts’ opinions. As the opinions accumulate, such an analysis becomes ever more important and desirable; it is not the number of opinions that matters, but their persuasiveness.” (Gray v. Superior Court, supra, 95 Cal.App.4th at pp. 328-329, fn. omitted.)
Because an inmate as to whom a split of opinion develops after a probable cause determination has been made is not similarly situated to an inmate as to whom no consensus of opinion ever existed, defendant’s equal protection argument fails at the threshold. Thus, we conclude defendant was not entitled to dismissal of the petition based on the split of opinion that developed as a result of the updated evaluations.
III
Rejection Of Experts’ Opinions
Defendant contends the trial court abused its discretion in rejecting the opinions of the two experts (Drs. Rueschenberg and Broadman) who testified defendant was not a sexually violent predator because some of the reasons the court gave for discrediting their testimony “were plainly contrary to the testimony of the witnesses.” As we will explain, this argument lacks merit because defendant has failed to show any prejudicefrom the trial court’s alleged abuse of discretion.
At trial, Drs. Rueschenberg and Broadman testified that defendant did not meet the criteria as a sexually violent predator. In its ruling, the trial court explained its reasons for rejecting the opinions of Drs. Rueschenberg and Broadman. As to Dr. Rueschenberg, the court essentially found her conclusions were unreasonable because: (1) she minimized a 2005 prison incident; and (2) she “did not render a full evaluation of the defendant considering dynamic factors involving the defendant’s specific mental disorder, relying instead on static assessments standing alone.” As to Dr. Broadman, the court essentially found her conclusions unreasonable because: (1) “it was not clear to the Court that she fully understood” the meaning of the term “likely” in the Act; (2) “[s]he... did not do the SORAG test done by the others”; (3) “[s]he placed undue weight on the age of the defendant, ignoring the specific facts surrounding the history of his case”; and (4) “[s]he placed insufficient significance on the incident with the prison guard in 2005.”
Defendant contends the trial court abused its discretion in rejecting Dr. Rueschenberg’s testimony because that testimony “showed unambiguously that she did consider the dynamic factors, too, and did not rely exclusively on the static assessments.” As to Dr. Broadman, defendant contends the trial court abused its discretion because “[i]t was clearly erroneous for the court to find that [Dr. Broadman] did not understand the legal meaning of the word ‘likely.’” Defendant admits “the trial court... mention[ed] other factors, too, in electing not to consider the opinions of Drs. Rueschenberg and Broadman, ” but he contends “it is not for this court to attempt to rebalance these factors with the erroneous facts excluded” and “the case should be remanded for the trial court to reconsider its ruling without the improper factors that distorted the balancing in the first instance.”
Even if we assume for the sake of argument that defendant is correct in asserting that one of the trial court’s reasons for rejecting the opinion of Dr. Rueschenberg and one of the trial court’s reasons for rejecting the opinion of Dr. Broadman were, as defendant contends, “based on findings of fact that were clearly erroneous, ” that conclusion does not, by itself, justify reversal. Defendant cites People v. Dent (1995) 38 Cal.App.4th 1726, 1731 for the proposition that “when discretion has been abused, the case should be remanded for the trial court to reconsider its ruling without the improper factors that distorted the balancing in the first instance.” But Dent does not stand for that proposition.
In Dent, the appellate court concluded the trial court abused its discretion by electing a misdemeanor sentence for a wobbler offense solely to avoid the effects of the three strikes law. (People v. Dent, supra, 38 Cal.App.4th at p. 1728.) As the appellate court observed, “in order to escape the consequences of the three strikes law at any price, the trial court impermissibly reasoned backwards from the sentence it wished to avoid to the only available alternative.” (Id. at p. 1731.) The appellate court concluded “[a] sentence based on such an approach constitutes a failure to exercise discretion as required by the law, ” and the court “remand[ed] the matter to the trial court... to resentence [the] defendant on an individualized basis, rather than impos[ing] a sentence predicated solely upon a desire to avoid the consequences of the three strikes law.” (Ibid.)
The reversal and remand for resentencing in Dent was consistent with the rule that “a ruling otherwise within the trial court’s power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law.” (People v. Penoli (1996) 46 Cal.App.4th 298, 302.) The reason for this rule is that “[f]ailure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal.” (Id. at p. 306.)
This rule has no application here because in no way can the trial court be understood to have failed to exercise its discretion, as the trier of fact, to accept or reject the testimony of Drs. Rueschenberg and Broadman. Instead, at most, the trial court abused its discretion by rejecting the testimony of those witnesses based in part on reasons that were not supported by the evidence. This sort of error is comparable to erroneously relying on one invalid aggravating circumstance among other valid aggravating circumstances to impose an upper term sentence. In such a case, “The mere fact a trial court erroneously relies upon certain factors in imposing an upper term does not per se require reversal. Reversal is only required where there is a reasonable probability the trial court would sentence the defendant differently absent the erroneous factors.” (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319.)
Thus, even assuming the trial court abused its discretion as defendant asserts, to justify reversal defendant must show there is a reasonable probability the trial court would have accepted the testimony of Dr. Rueschenberg and/or Dr. Broadman absent the erroneous reasons for rejecting their testimony. (See People v. Foster (1981) 114 Cal.App.3d 421, 431 [defendant bears burden of proving more favorable result would have been reached in absence of error].) In his opening brief, defendant did not attempt to make such a showing, but instead relied solely on his (erroneous) contention that reversal was required by Dent.
In his reply brief, defendant belatedly attempts to make a showing akin to the required showing, arguing that “the other factors cited by the trial court [to reject the testimony of Drs. Rueschenberg and Broadman] are of questionable value” and “[c]ertainly they are not so compelling that this court might turn to them and, with confidence, hold that the trial court’s determination of credibility would have been the same if it had not considered those factors that are clearly erroneous.” Even in his reply brief, however, defendant fails to appreciate the burden he faces, as most of his argument is taken up with asserting, essentially, that the trial court’s other reasons for rejecting the testimony of Drs. Rueschenberg and Broadman were not good reasons either. But that is not the issue. Having asserted in his opening brief that only one reason for rejecting the testimony of each witness was erroneous, defendant had the burden of persuading us that, absent these erroneous reasons for rejecting the witnesses’ testimony, it is reasonably probable the trial court would have accepted their testimony. Defendant cannot carry this burden by attempting to belatedly demonstrate in his reply brief that the other reasons the trial court had for rejecting the testimony were not particularly good. Certainly the trial court thought otherwise, and the question on appeal is simply whether the trial court likely would have accepted the witnesses’ testimony but for its reliance on an erroneous reason among other reasons the trial court concluded were valid.
Because defendant has not convinced us the trial court probably would have credited the testimony of Drs. Rueschenberg and Broadman but for its conclusions that Dr. Rueschenberg did not consider any dynamic factors and that Dr. Broadman did not understand the meaning of the word “likely, ” defendant has failed to show a prejudicial abuse of discretion by the trial court in its evaluation of the witnesses’ testimony.
IV
Constitutionality Of The “Likely” Standard
The Act allows commitment of a person who (among other things) is “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.” (§ 6600, subd. (a)(1).) The California Supreme Court has determined that a person meets this “likely” standard if “the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit [sexually violent] crimes if free in the community.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.)
As defendant acknowledges, “[c]ivil commitment statutes have long been upheld [against challenges for violation of due process] where dangerousness is expressed in terms of a ‘probability, ’ ‘threat, ’ or similar risk that a person who is presently mentally disturbed will inflict harm upon himself or others in the future if not confined.” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1163, fn. 26.) Defendant argues, however, that the California Supreme Court’s interpretation of the word “likely” has resulted in an unconstitutional standard for civil commitment because “it is based not on probability but rather on the quality of the possible harm and the quality of the evidence.” Stated another way, defendant asserts that “[a]s interpreted by the California Supreme Court, the [sexually violent predator] law does not require a determination of the chance of reoffense, ” and for that reason the law violates due process.
Defendant’s argument is meritless. He asserts that the words “substantial, ” “serious, ” and “well-founded, ” as used by the Supreme Court in Ghilotti, either “refer[]... to the quality of one’s concern about the possible harm rather than the probability of the harm coming about” or “relate[] to the quality of the evidence, which is to say to the burden of proof.” In his view, “None of the terms in the California Supreme Court’s interpretation of the term ‘likely’ places a quantitative limitation on the risk of harm. Rather, the finder of fact in a California [sexually violent predator] trial is instructed that if it is a serious crime that is risked and this risk has a foundation in fact, if it is a real risk, then the element of ‘likely’ is satisfied.”
Defendant’s argument defies the plain and common sense meaning of the Supreme Court’s words. Under Ghilotti, a person is “likely” to engage in sexually violent criminal behavior if there is “a substantial danger” or “a serious and well-founded risk” that the person will engage in such behavior. (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 922.) In this context, the words “risk” and “danger” are synonymous, and the words “substantial, ” “serious, ” and “well-founded” necessarily modify those words. In other words, the Ghilotti standard of “likely” does not assess whether the sexually violent behavior in which the defendant may engage would be “serious” or “substantial, ” nor does it assess whether the possibility that the defendant will engage in such behavior is “well-founded” in the sense that it “has a foundation in fact.” Rather, the Ghilotti standard assesses whether there is a substantial, serious, and/or well-founded risk or danger that the defendant will engage in sexually violent behavior. Because, construed in this common sense, straightforward manner, the Sexually Violent Predator Act does require a showing of a high probability of harm, defendant’s argument to the contrary is without merit.
In explaining the meaning of the term “likely” in Ghilotti, the Supreme Court stated that the sexually violent predator law “does not require a precise determination that the chance of reoffense is better than even.” (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 922.) According to defendant, however, a standard that does not, at the very least, “rise to the level of ‘more probable than not’” does not “comport with the due process clause of the Fourteenth Amendment to the United States Constitution” because a lesser standard is not narrowly tailored to serve a compelling state interest.
We are not persuaded. The determination of the probability or likelihood that someone will, if unconfined, commit one or more sexually violent crimes is simply not something that can be reduced to a mathematical calculation. As we have noted, our Supreme Court has observed that “[c]ivil commitment statutes have long been upheld [against challenges for violation of due process] where dangerousness is expressed in terms of a ‘probability, ’ ‘threat, ’ or similar risk that a person who is presently mentally disturbed will inflict harm upon himself or others in the future if not confined.” (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1163, fn. 26.) A standard like the one in the Act as interpreted by the Supreme Court in Ghilotti, which requires a substantial, serious, and/or well-founded risk or danger of sexually violent criminal conduct, satisfies due process.
V
Constitutionality Of The 2006 Amendments
Defendant contends that various amendments to the Act in 2006 violated due process and equal protection, as well as the prohibitions against double jeopardy and ex post facto laws. These challenges are premised largely on changes to the Act that eliminated the requirement of a recommitment hearing every two years and instead made sexually violent predator commitments indefinite.
Defendant acknowledges that, with the exception of the double jeopardy argument, all of these constitutional arguments were before the California Supreme Court in People v. McKee, supra, 47 Cal.4th at page 1172. In McKee, the Supreme Court concluded that the Act, as amended, “does not violate the due process clause” (McKee, at p. 1193) and “do[es] not violate the ex post facto clause” (id. at p. 1195). We are bound by McKee on these points (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore defendant’s due process and ex post facto challenges to the Act are without merit. Furthermore, the Supreme Court’s conclusion in McKee that the 2006 amendments to the Act did “not make the Act punitive” (McKee, at p. 1195) is binding on us, and therefore defendant’s double jeopardy argument is likewise without merit. (See People v. Hubbart (2001) 88 Cal.App.4th 1202, 1226 [“The determination that the act is not punitive ‘removes an essential prerequisite for both... double jeopardy and ex post facto claims’”].)
On the equal protection issue, however, the Supreme Court in McKee determined that sexually violent predators are similarly situated for equal protection purposes with MDO’s and NGI’s. (People v. McKee, supra, 47 Cal.4that p. 1203, 1207.) The Supreme Court further determined that the People had not yet met their “burden of showing the differential treatment of SVP’s is justified.” (Id. at p. 1207.) Accordingly, the Supreme Court remanded the case to the trial court to allow the People an opportunity to show “that, 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.” (Id. at p. 1208.)
Under McKee, further proceedings on defendant’s equal protection argument are appropriate in this case as well. To avoid an unnecessary multiplicity of proceedings, however, resolution of the equal protection issue here should await resolution of the proceedings on remand in McKee, including any resulting proceedings in the Court of Appeal or Supreme Court. Accordingly, that is what we will order.
DISPOSITION
The judgment is reversed, and the case is remanded to the trial court for reconsideration of defendant’s equal protection argument in light of People v. McKee, supra, 47 Cal.4th at page 1172 and the resolution of the proceedings on remand in McKee (McKee, at pp. 1208-1210), including any proceeding in the Superior Court of San Diego County in which McKee may be consolidated with related matters. The trial court shall suspend further proceedings in this case pending finality of the proceedings on remand in McKee. “Finality of the proceedings” shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.
We concur: NICHOLSON, Acting P. J., HULL, J.