Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. Nos. CRF 97-1892, CRF 97-373-C
BRUINIERS, J.
Victor Houx appeals from an order committing him to the State Department of Mental Health (DMH) as a sexually violent predator (SVP). (Welf. & Inst. Code, § 6600 et seq. [Sexually Violent Predator Act (SVPA)].) Houx contends (1) there was insufficient evidence to support the judgment, and (2) the statutory scheme under which he was committed is unconstitutional. Houx’s argument as to the sufficiency of the evidence is unpersuasive. However, our Supreme Court recently determined in People v. McKee (2010) 47 Cal.4th 1172 (McKee) that the statutory scheme is at least potentially unconstitutional. Accordingly, we will remand for the appropriate hearing. We affirm the judgment in all other respects.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
I. Factual and Procedural Background
On September 26, 2008, the Del Norte County District Attorney filed a petition to commit Houx under the SVPA. The petition alleged that Houx was an SVP, i.e., he had been convicted of a sexually violent offense and had a diagnosed mental disorder that made him likely to engage in sexually violent predatory criminal behavior. Houx waived his right to a jury trial, and the court held a bench trial.
At trial, several expert witnesses presented testimony addressing whether Houx met the criteria for commitment under the SVPA. As discussed further in part II.B. below, the experts relied in part on records of Houx’s history of criminal convictions, charges and arrests, including both sexual and nonsexual offenses.
In 1981, when he was 16 years old, Houx was charged as a juvenile with lewd and lascivious conduct with a six-year-old girl, the daughter of a neighbor. The juvenile petition was sustained. Houx molested the victim on seven or eight occasions, including making her orally copulate him and hold his penis. Houx also inserted his finger into the victim’s vagina and orally copulated her.
In 1982, Houx was charged as a juvenile with lewd and lascivious conduct with a nine-year-old girl. Houx approached the victim in a K-Mart store and grabbed her crotch. The juvenile petition was sustained as to a lesser charge of annoying a minor.
In 1984, when he was 19 years old, Houx was charged with the attempted rape of a 19-year-old woman in the restroom of a drive-in theater. He was convicted of the lesser charge of battery.
In that same year, Houx went to Florida to stay with his half-sister and her seven-year-old son. Houx was charged in the federal system with lewd and lascivious conduct with the seven-year-old victim, including sodomizing the victim at least six or seven times with an object, and masturbating the victim. He was sentenced to 10 years in federal prison.
Houx concedes that the conviction (under 18 U.S.C. § 13; Fla. Pen. Code, § 800.04) was equivalent to a conviction under Penal Code section 288, subdivision (a).
In 1994, Houx was arrested for lewd and lascivious conduct with a child in Arizona.
Also in 1994, Houx was arrested for lewd and lascivious conduct with a seven-year-old girl in Redding, the daughter of Houx’s then-girlfriend. The case was ultimately dismissed. According to the police report, Houx molested the victim on two occasions. He allegedly touched her vagina and chest over her clothes and, in a separate incident, put his hand up her shirt and rubbed her chest. When the victim told Houx to stop, he pushed her down.
In May 1995, Houx was investigated for lewd and lascivious conduct with a different seven-year-old girl, the daughter of a friend. According to the police report, Houx put his hand up the girl’s skirt and patted her bottom. The case was ultimately dismissed.
Between 1994 and the time of trial, Houx was arrested or violated parole supervision 19 times, and he was in custody 13 times for new nonsexual offenses or the parole violations.
On July 1, 2008, Houx was found in his residence with a 16-year-old girl. This was again a violation of his parole.
At trial, three expert witnesses-clinical psychologists Drs. Wendy Weiss, Mark Koetting, and David Mandel-testified that Houx suffered from mental disorders that made him likely to reoffend in a sexually violent predatory manner. Dr. Weiss interviewed Houx and reviewed records of his prior offenses and arrests. Based on her evaluation, Dr. Weiss diagnosed Houx with pedophilia, “nonexclusive type” (i.e., he is sexually interested in both children and adults), amphetamine abuse, cannabis abuse, and antisocial personality disorder with narcissistic traits. Dr. Weiss opined that, because of these mental disorders, Houx had difficulty controlling his volitional impulses, and was predisposed to commit sexually violent offenses.
Dr. Weiss believed Houx posed a high risk for sexually reoffending in a predatory manner. Dr. Weiss evaluated Houx’s risk of reoffense using a risk assessment instrument known as the Static-99. The Static-99 compiles risk factors, primarily a person’s past behaviors that contribute to a risk of reoffense. Dr. Weiss gave Houx a score of eight on the Static-99, which correlates to a high risk of reoffense-between 22 and 38 percent of offenders with a score of eight were charged with new sexual offenses within five years, and between 30 and 48.5 percent within 10 years. Dr. Weiss also gave Houx high scores on two other assessment instruments-the Static-2002 (a score of 10, which correlates to a high risk of reoffense), and the MnSost-R (a score of 9, also correlating to a high risk of reoffense). In addition, Dr. Weiss administered the Hare Psychopathy Checklist-Revised (PCL-R), which measures psychopathic traits. Although the PCL-R is not specifically related to risk for sexual offense, it is related to “a psychopathy that can contribute to one’s propensity for breaking the law, breaking the rules[, ] including sexually re-offending.” Dr. Weiss gave Houx a score of 25 on this instrument, which is in the high range, although it is below the score of 30 used to diagnose full-fledged psychopathy. Dr. Weiss concluded Houx was a “pathologically antisocial person who’s also demonstrated poor behavior control”; she stated “his lifestyle and behavior suggests a psychopathic orientation toward the world, a lack of regard for the rights of others. He just doesn’t care a lot about other people.”
Finally, Dr. Weiss considered “dynamic risk factors, ” which provide information about a person’s current or recent behavior and can increase or decrease the risk of reoffense. Dr. Weiss did not find any protective factors that would lower Houx’s risk of reoffense. Specifically, in considering dynamic factors, Dr. Weiss found Houx had intimacy deficits (i.e., he had not sustained long-term relationships), past identification with children, a general lack of concern for others, past aggressiveness and sexually deviant behavior, and consistently poor cooperation with supervision on parole.
Dr. Koetting also conducted a clinical interview of Houx, reviewed records of his criminal and mental health history, evaluated him using behavioral risk assessment instruments, and considered dynamic risk factors that could decrease or increase his risk of reoffense. Dr. Koetting also diagnosed Houx with multiple mental disorders-pedophilia, antisocial personality disorder, psychopathy, and amphetamine dependence. Dr. Koetting concluded Houx had serious difficulty controlling his sexual urges.
Dr. Koetting believed there was a strong likelihood Houx would reoffend in a sexually violent manner. Dr. Koetting gave Houx a score of seven on the Static-99, which correlates to a high risk of reoffense, specifically a recidivism rate of 23 to 43 percent. Dr. Koetting explained that, because Houx had never received any sex offender treatment and was antisocial and psychopathic, he was closer to the high end of the range. As to psychopathy, Dr. Koetting gave Houx a score of 30.5 on the PCL-R, above the suggested cutoff of 30 for a diagnosis of psychopathy.
Dr. Koetting noted that the recidivism rates assigned to any given score on the Static-99 are lower than the actual recidivism rates because many sex offenses are not reported.
Dr. Koetting measured dynamic risk factors using the Stable-2007 instrument. Dr. Koetting found Houx had a high level of impulsivity, poor cognitive problem-solving skills, a moderate level of negative emotionality or hostility, high sexual deviance, and poor cooperation with supervision on parole and probation, although he had exhibited good behavior in prison. Dr. Koetting stated Houx seemed dishonest in his interview and had told inconsistent stories over time about his prior offenses. Based on his consideration of dynamic risk factors, Dr. Koetting concluded Houx was likely near the high end of the range predicted by the Static-99. Dr. Koetting added that the combination of psychopathy and pedophilia is rare and is “known to be a potent predictor of future recidivism.” Dr. Koetting noted that Houx has not been charged with a sexual offense since the mid-1990s. However, Dr. Koetting concluded this fact did not substantially decrease Houx’s risk of reoffending in a sexual manner, because he had not been out of custody for a significant continuous period of time.
Dr. Mandel was initially contacted by defense counsel to evaluate Houx. Dr. Mandel conducted a clinical interview of Houx, spoke to Houx’s parole officer and social worker, and reviewed reports prepared by other experts, including Dr. Weiss and Dr. Koetting. Dr. Mandel did not do his own assessment of Houx on the assessment instruments used by the other experts. Based on his interviews and his review of the reports, Dr. Mandel agreed with Drs. Weiss and Koetting that Houx suffered from pedophilia and had antisocial personality disorder with psychopathic features. Dr. Mandel believed Houx posed a high risk of reoffending in a sexually violent predatory manner.
Three clinical psychologists-Drs. Jeremy Coles, Otto Vanoni, and Christopher North-testified on behalf of Houx and concluded that, although Houx suffered from pedophilia, he was not likely to reoffend in a sexually violent predatory manner. Dr. Coles evaluated Houx in July 2007 and again in August 2008, after his July 2008 parole violation. Dr. Coles interviewed Houx, reviewed records of his criminal and mental health history, and assessed his risk of reoffense using the Static-99. Dr. Coles diagnosed Houx with pedophilia, antisocial personality disorder with psychopathic features, and amphetamine abuse. Houx’s pedophilic condition included volitional and emotional deficits that “predisposed him to commit future sex crimes at a degree constituting... a menace to society[.]”
As to the risk of reoffense, Dr. Coles gave Houx a score of eight on the Static-99, correlating to a high risk. In his 2007 evaluation, Dr. Coles found Houx was likely to reoffend sexually without appropriate treatment in custody. However, in his 2008 evaluation, Dr. Coles concluded Houx was not likely to reoffend sexually, although he believed it was “a close call[.]” Dr. Coles considered it significant that Houx, in the few years prior to his 2008 parole violation (including the year since Dr. Coles’s 2007 evaluation), had attempted to take “pro-social” steps such as attending college and getting good grades, staying sober, trying to become a drug counselor, being in a relationship with an age-appropriate person, and maintaining employment as a manager of an apartment complex.
Dr. Coles also considered other periods of time Houx had spent in the community without committing a sexual offense, including a period from 1995 to 1998. Although Houx apparently was a fugitive from justice during that period, Dr. Coles still considered it in determining the total amount of time Houx had spent in the community without committing a sexual offense; Dr. Coles contended that the applicable research focuses on whether a person is in the community, regardless of whether he is a fugitive.
Dr. Vanoni interviewed Houx and reviewed records, including prior assessment results for the Static-99, the Hare PCL-R, and the Stable-2007; he also administered additional assessment instruments-the Rorschach and Millon 3 personality tests, and the Abel, which identifies sexual interests. Dr. Vanoni diagnosed Houx as suffering from pedophilia. However, he believed Houx was not likely to reoffend, i.e., to commit future sexually violent predatory offenses. Dr. Vanoni believed that dynamic and protective factors and self-regulating behaviors lowered Houx’s risk of reoffense. Houx was employed, was in an apparently stable relationship, and was attending college, managing his finances, and abstaining from methamphetamine use. Similar to Dr. Coles’s assessment, Dr. Vanoni stated this was “a marginal case[, ]” but concluded there were sufficient dynamic and protective measures to reduce the risk of reoffense.
Dr. North, similar to other expert witnesses, diagnosed Houx with pedophilia, methamphetamine dependence in early full remission and antisocial traits. Dr. North contacted about five different people who had recently interacted with Houx, including his employer, his fiancé, and his parole agent. Dr. North believed Houx was not likely to reoffend sexually if released. Like Dr. Coles and Dr. Vanoni, Dr. North found significant Houx’s recent self-regulating behaviors, and believed Houx was sincerely trying to turn his life around after many years of criminality. Dr. North stated the critical factor in his assessment was speaking with people who had recently interacted with Houx to get “some sense of his current life.” Dr. North also found it significant that Houx had not been arrested for a sex crime since 1994. Dr. North also stated, however, that his conclusion that Houx was not likely to reoffend was a “close call” because Houx scored high on the actuarial instruments, had a long history of sex crimes, and had not received or shown interest in treatment. Moreover, Houx’s “turnaround in improvement in his life has been fairly brief.”
At the conclusion of the bench trial, the trial court found the allegations in the petition to be true. The court ordered defendant committed to DMH for an indeterminate term.
Houx filed a timely notice of appeal.
II. Discussion
A. The SVPA
The SVPA, as amended in 2006 by Proposition 83 (The Sexual Predator Punishment and Control Act: Jessica’s Law), provides for civil commitment to the DMH, for an indeterminate term, of a person who is found beyond a reasonable doubt to be an SVP. (§ 6604; McKee, supra, 47 Cal.4th at pp. 1185–1187.) An SVP is “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).) A “ ‘[d]iagnosed mental disorder’ includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).) “[A] person is ‘likely’ to engage in sexually violent criminal behavior (i.e., reoffend) if he or she ‘presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.’ [Citation.]” (McKee, at p. 1186.)
B. Sufficiency of the Evidence
Houx contends there was insufficient evidence that he (1) currently suffers from a mental disorder affecting his emotional or volitional capacity and predisposing him to commit sexual crimes, and (2) is likely to commit sexually violent future offenses if he is released from custody.
When a defendant challenges the sufficiency of the evidence in proceedings under the SVPA, “this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be ‘ “of ponderable legal significance... reasonable in nature, credible and of solid value.” ’ [Citation.]” (People v. Mercer (1999) 70 Cal.App.4th 463, 466 (Mercer).) “In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. [Citation.]” (People v. Poe (1999) 74 Cal.App.4th 826, 830; see People v. Sumahit (2005) 128 Cal.App.4th 347, 352.) In particular, we may not reassess the credibility of experts or reweigh the relative strength of their conclusions. (People v. Poe, at p. 831.) We reverse only if no rational trier of fact could have found the essential elements beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269.)
Here, the three expert witnesses called by the People-Drs. Weiss, Koetting, and Mandel-diagnosed Houx with pedophilia and other mental disorders and believed the disorders made him likely to reoffend in a sexually violent manner. Moreover, even the defense experts-Drs. Coles, Vanoni, and North-unanimously agreed with the diagnosis of pedophilia, confirming that Houx met the first element of an SVP. While the defense experts concluded that Houx was not likely to reoffend in a sexually violent predatory manner, they all conceded that this was a “close case.” The expert testimony presents substantial evidence supporting the trial court’s finding that Houx is an SVP.
Houx contends, however, that the expert testimony is insufficient because it is opinion testimony and therefore is not “recent, objective” evidence of Houx’s condition or his risk of reoffense. Houx also argues that expert opinion testimony “is insufficient to constitute substantial evidence where virtually none of the underlying facts relied upon by the experts are otherwise proved[.]” These arguments are not persuasive.
We observe first that, to the extent Houx now challenges the bases for the opinions rendered by the experts, he fails to show that he made any timely or specific objection at trial. Failure to make specific objections is fatal to such a claim. (Evid. Code, § 353; People v. Geier (2007) 41 Cal.4th 555, 609.)
Further, there is no requirement that the facts and materials on which an expert bases his or her opinions must be independently proven or admitted into evidence. “Evidence Code section 801 limits expert opinion testimony to an opinion that is ‘[b]ased on matter... perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates....’ (Id., subd. (b).)” (People v. Gardeley (1996) 14 Cal.4th 605, 617–618 (Gardeley).) On direct examination, an expert may describe otherwise inadmissible material that forms the basis of the opinion. (Evid. Code, § 802; Gardeley, at pp. 618–619.) The expert’s reliance on such sources in his or her testimony does not, however, “transform inadmissible matter into ‘independent proof’ of any fact. [Citation.]” (Gardeley, at pp. 618–619.)
We recently criticized the reasoning of Gardeley when applied to presentation of hearsay historical facts to a jury in a criminal prosecution through the opinion of an expert. (People v. Hill (Jan. 13, 2011, No. A117787) ___ Cal.App.4th ___ [2011 DJDAR 708, 715–719].) In that context, permitting the expert to testify to such unproven facts raises constitutional issues under the confrontation clause of the Sixth Amendment. (See Crawford v. Washington (2004) 541 U.S. 36 (Crawford).) Proceedings to commit an individual as an SVP in order to protect the public are civil in nature. (People v. Allen (2008) 44 Cal.4th 843, 860.) Accordingly, the Sixth Amendment right of confrontation does not apply in such proceedings. (Ibid.; People v. Fulcher (2006) 136 Cal.App.4th 41, 55; People v. Angulo (2005) 129 Cal.App.4th 1349, 1367–1368 [police reports admissible].) In civil proceedings, the right to confrontation derives from the due process clause, not from the Sixth Amendment. (People v. Angulo, at p. 1367; People v. Fulcher, at p. 55; People v. Otto (2001)26 Cal.4th 200, 214.) Further, concerns about the misuse of extrajudicial evidence admitted to support an expert’s opinion do not apply where a judge, and not a jury, is the fact finder. (People v. Martin (2005) 127 Cal.App.4th 970, 977.) In a bench trial, an expert witness may be permitted to testify in greater detail about the basis for his or her opinion without fear that the testimony will be misconstrued as substantive evidence of the truth of the matters discussed. The expert’s “need to consider extrajudicial matters, ” and the fact finder’s “need for information sufficient to evaluate an expert opinion” can be fulfilled without presenting a conflict “with an accused’s interest in avoiding substantive use of unreliable hearsay.” (People v. Montiel (1993) 5 Cal.4th 877, 919.)
Expert testimony may be “premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] Of course, any material that forms the basis of an expert’s opinion testimony must be reliable. [Citation.] For ‘the law does not accord to the expert’s opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.’ [Citation.] [¶] So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter... upon which it is based, ’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.] [¶] A trial court, however, ‘has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.’ [Citation.] A trial court also has discretion ‘to weigh the probative value of inadmissible evidence relied upon by an expert witness... against the risk that the jury might improperly consider it as independent proof of the facts recited therein.’ [Citation.] This is because a witness’s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into ‘independent proof’ of any fact. [Citations.]” (Gardeley, supra, 14 Cal.4th at pp. 618–619.)
Here, the expert witnesses relied on police and parole officers’ reports, prison and mental health records, other expert reports, and information obtained through their own clinical interviews of Houx and their professional evaluations of him using various assessment tools. Houx does not appear to contend these materials are not of the type reasonably relied on by experts conducting SVP evaluations, or that the experts’ testimony was not admissible under Evidence Code section 801. He nevertheless asserts that their testimony cannot constitute substantial evidence unless the underlying facts are independently proven with admissible evidence.
Houx relies on Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325 (Hyatt). That case fails to support his argument. In Hyatt, a personal injury automobile accident case, the plaintiff successfully moved in limine to exclude a defense expert’s anticipated testimony about the probable speed of plaintiff’s vehicle based on the alleged skidding or rolling of the vehicle. (Id. at p. 337.) The opinion was properly excluded because there was no evidence of the foundational facts that the expert intended to rely upon, and the proposed testimony would have been “speculative, conjectural and remote in nature and could very well have confused the jury.” (Id. at p. 338.) The court noted that a hypothetical question to an expert must be based upon facts shown by the evidence, and that the expert therefore “could not testify with sufficient foundation” as to the speed of the plaintiff’s vehicle. (Id. at p. 339.) This is because an expert opinion must not be based upon speculative or conjectural data, and “an expert’s assumption of facts contrary to the proof destroys the opinion.” (Id. at p. 338.) It was in that context that the appellate court then stated (in a passage relied on by Houx) that if an expert’s “ ‘opinion is not based upon facts otherwise proved, or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence.’ [Citation.]” (Id. at pp. 338–339.)
In contrast, the opinions of the experts here were not based on speculation or conjecture about hypothetical and unsupported facts. Instead, the People’s experts formed their medical opinions based on their direct examination and assessments of Houx, as well as his behavioral history as documented in historical sources “of a type that reasonably may be relied upon.”
To the extent Houx construes the language in Hyatt to suggest expert opinion testimony must be based only on facts independently proved with admissible evidence, that reading is contrary to the express provisions of Evidence Code section 801 and the case law applying that section. (See Evid. Code, § 801, subd. (b); Gardeley, supra, 14 Cal.4th at pp. 617–618.) Because expert opinion may be based on information that is reliable, even though not otherwise admissible, we see no basis for concluding such testimony may not constitute substantial evidence supporting a judgment. (See also People v. Otto, supra, 26 Cal.4th 200 [permitting hearsay related in presentence reports to establish the factual details of the predicate offenses in an SVP commitment proceeding].)
Houx next contends that, in the specific context of SVP proceedings, expert opinion testimony cannot constitute substantial evidence because it is not “objective” evidence of a defendant’s mental condition or of the likelihood the defendant will reoffend. Houx relies on People v. Buffington (1999) 74 Cal.App.4th 1149, 1161 (Buffington), in which the court stated that the SVPA “requires ‘recent objective indicia of the defendant’s condition’ and a ‘recent objective basis for a finding that an inmate is likely to reoffend.’ ” (See also People v. Hubbart (2001) 88 Cal.App.4th 1202, 1219 [SVPA requires “a finding that the person has current psychological symptoms that render him or her likely to reoffend”].) However, contrary to Houx’s suggestion, the Buffington court did not hold or suggest that expert opinion cannot provide substantial evidence that a person is an SVP. In Buffington, the court addressed several constitutional challenges to the then-current version of the SVPA, including an argument that the SVPA violated equal protection because it had less stringent evidentiary requirements than other civil commitment schemes. (Buffington, at pp. 1153–1164.) Specifically, the defendant argued that the SVPA, in contrast to other schemes, did not require “ ‘any recent objective indicia of the defendant’s condition’ or ‘any recent objective basis for a finding that an inmate is likely to reoffend.’ ” (Id. at pp. 1159–1160.) After reviewing the administrative and judicial proceedings required under the SVPA to determine whether a person qualifies as an SVP (including whether he has a diagnosed mental disorder that makes him likely to reoffend), the court rejected this contention. (Id. at pp. 1160–1161.) The court, quoting the defendant’s argument, concluded that the SVPA does require “ ‘recent objective indicia of the defendant’s condition’ and a ‘recent objective basis for a finding that an inmate is likely to reoffend, ’ ” and that “ ‘current psychological symptoms are needed’ to establish that a person is an SVP.” (Id. at p. 1161.) In stating these conclusions, the court did not state or suggest that expert testimony was disfavored or could not constitute substantial evidence under the SVPA. To the contrary, in upholding the SVPA, the court emphasized the importance of the statute’s requirement of professional assessments (by psychiatrists and psychologists) of various diagnoses and specified risk factors. (Id. at pp. 1160–1161.)
Here, the People’s experts diagnosed Houx as currently suffering from pedophilia and other mental disorders that made him likely to reoffend in a sexually violent predatory manner. This was substantial evidence of Houx’s current psychological symptoms and condition, and of the likelihood he would reoffend.
Houx criticizes the People’s experts for relying primarily on “stale ‘historical information’ ” to reach their conclusions as to Houx’s mental disorders and risk of reoffense, while the defense experts placed greater emphasis on Houx’s positive activities in the period prior to his July 2008 parole violation (such as maintaining employment, attending college, and being in a relationship with an age-appropriate person), and interviewed some of the persons he recently interacted with in the community. However, as noted above, all of the defense experts, like the People’s experts, agreed that Houx suffers from pedophilia. And, although the defense experts disagreed as to whether Houx was likely to reoffend in a sexually violent predatory manner, they each qualified their opinions by noting that this was a close case. A conflict among the experts on this issue, or a disagreement as to how much emphasis to place on certain types of underlying evidence, does not establish a lack of substantial evidence supporting the trial court’s decision. (People v. Poe, supra, 74 Cal.App.4th at pp. 830–831; People v. Sumahit, supra, 128 Cal.App.4th at pp. 352–353.) Moreover, the People’s experts did not ignore Houx’s recent conduct or the fact that he has not been arrested for a sexual offense since 1994; they considered these issues and concluded that, in light of Houx’s history, current mental disorders, and his frequent offenses and parole violations, he still posed a substantial risk of reoffense.
Finally, Houx argues his numerous nonsexual offenses and parole violations since 1994 do not support a finding that he is likely to reoffend in a sexually violent predatory manner, although he may be likely to commit low-level, nonsexual offenses. However, Drs. Weiss and Koetting explained that a sex offender’s frequent violation of rules is predictive of future sexual offenses.
C. Constitutional Issues
On November 7, 2006, California voters passed Proposition 83 (Jessica’s Law). Among other things, Proposition 83 changed an SVP commitment from a two-year term to an indefinite commitment. (McKee, supra, 47 Cal.4th at p. 1186.) Houx contends the indeterminate term of commitment now prescribed by the SVPA violates the equal protection clauses of the United States and California Constitutions and the due process, ex post facto, and double jeopardy clauses of the United States Constitution. Although Houx did not object on these grounds in the trial court, we decline the People’s invitation to treat them as forfeited. (See People v. Vera (1997) 15 Cal.4th 269, 276 [defendant not precluded from raising deprivation of “certain fundamental, constitutional rights” for first time on appeal]; People v. Calderon (2004) 124 Cal.App.4th 80, 94 [failure to object in trial court did not waive claim that SVPA violates ex post facto clause].)
The Supreme Court recently addressed some of these arguments in McKee, ruling that the due process and ex post facto challenges were without merit. (McKee, supra, 47 Cal.4th at pp. 1188–1195.) We are bound by that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The McKee court also reaffirmed that an SVPA commitment is civil in nature, and is not punitive. (McKee, at pp. 1193–1195.) A civil commitment procedure does not constitute a second prosecution for purposes of the double jeopardy clause. (Kansas v. Hendricks (1997) 521 U.S. 346, 369.) Accordingly, Houx’s civil commitment does not violate the double jeopardy clause. (People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2.)
On the equal protection challenge, however, the Court ruled that the state “has not yet carried its burden of demonstrating why SVP’s, but not any other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment.” (McKee, supra, 47 Cal.4th at p. 1184.) The Supreme Court thus remanded the case to the trial court to determine whether the state could demonstrate constitutional justification for its disparate treatment of SVP’s. (Id. at pp. 1184, 1208–1210.) We follow the same remand procedure here.
III. Disposition
The case is remanded to the trial court for consideration of Houx’s equal protection claim in light of McKee. The trial court is also directed to suspend further proceedings pending finality of proceedings in McKee (see McKee, supra, 47 Cal.4th at pp. 1208–1210), including any proceeding in the San Diego Superior Court in which McKee may be consolidated with related matters. “Finality of the proceedings” shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court. In all other respects, the judgment is affirmed.
We concur: SIMONS, Acting P. J., NEEDHAM, J.