Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. MH101056, Charles G. Rogers, Judge.
O'ROURKE, J.
A jury found Everett Carl Kite, Jr. to be a sexually violent predator (SVP). He was recommitted to an indeterminate civil commitment term under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, §§ 6600-6604.)
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Kite contends: (1) the trial court erroneously permitted expert testimony regarding whether it was necessary for him to remain in custody; (2) the SVPA violates the due process, ex post facto and double jeopardy provisions of the state or federal Constitutions; (3) when he was tried the trial court lacked jurisdiction to impose an indeterminate sentence; (4) his commitment is illegal because it was initiated by a process that relied on an improper "underground" regulation; (5) alternatively, he was denied effective assistance of counsel. We affirm the judgment.
A number of issues with respect to the constitutionality of the SVPA are presently pending before the California Supreme Court. (See People v. McKee (2008) 160 Cal.App.4th, review granted July 9, 2008, S162823 [lead case includes due process, equal protection, and ex post facto issues]; People v. Johnson (2008) 162 Cal.App.4th, review granted Aug. 13, 2008, S164388; People v. Riffey (2008) 163 Cal.App.4th 474, review granted Aug. 20, 2008, S164711; People v. Boyle (2008) 164 Cal.App.4th 1266, review granted Oct. 1, 2008, S166167; People v. Garcia (2008) 165 Cal.App.4th, review granted October 16, 2008, S166682; People v. Force (2009) 170 Cal.App.4th, review granted April 15, 2009, S170831.)
FACTUAL AND PROCEDURAL BACKGROUND
The parties stipulated that in 1989, Kite was convicted of one count of kidnapping for child molesting and another count of forcible lewd act upon a 12-year old child. (Pen. Code §§ 207, subd. (b), 288, subd. (b).) In 1990, he was convicted of committing forcible lewd acts upon three children under 14 years; two of the children were 4 years old and one was 2 years old.
In July 2005, he was found to be an SVP and committed to the Department of Mental Health (Department) for two years. In June 2007, the People filed a petition for his recommitment.
Dr. Michael Musacco, a psychologist, diagnosed Kite with nonexclusive pedophilia. While committed in state hospital, Kite started but did not complete treatment for his illness. Based on Kite's score on the actuarial risk assessment tool, Static-99, he had a high risk of reoffense if released.
Dr. Clark Clipson, a psychologist, diagnosed Kite with nonexclusive pedophilia, voyeurism, and a learning disability. Over Kite's objection, the trial court permitted Dr. Clipson to opine regarding whether Kite needed to be in a secure facility to ensure the health and safety of others.
DISCUSSION
I.
A.
Overview of SVPA
Prior to 2006, a person who was found to be an SVP was subject to a two-year involuntary civil commitment term under the SVPA. At the end of that term, the People were required to file another petition seeking a determination that the person remained an SVP. If the People did not file a recommitment petition, the person would have to be released. (Former § 6604, as amended by Stats. 2000, ch. 420, § 3.) On filing of a recommitment petition, a new jury trial was conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. (Former §§ 6604, 6605, subds. (d), (e); People v. Munoz (2005) 129 Cal.App.4th 421, 429 ["[A]n SVP extension hearing is not a review hearing.... An SVP extension hearing is a new and independent proceeding at which... the [ People] must prove the [committed person] meets the [SVP] criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous"].)
In 2006, the SVPA was amended first by the Legislature and then by the electorate, with the passage of Proposition 83. An SVP 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).) A " 'diagnosed 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." (Id., subd. (c).)
The screening is conducted in accord with an assessment protocol developed by the Department of Mental Health (Department). (People v. Hurtado (2002) 28 Cal.4th 1179, 1183 (Hurtado).) " 'If that screening leads to a determination that the defendant is likely to be [an SVP], the defendant is referred to the [Department] for an evaluation by two psychiatrists or psychologists. (§ 6601, subds. (b) & (c).) If both find that the defendant "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody" (§ 6601, subd. (d)), the [D]epartment forwards a petition for commitment to the county of the defendant's last conviction (ibid.). If the county's designated counsel concurs with the recommendation, he or she files a petition for commitment in the superior court. (§ 6601, subd. (i).)' " (Hurtado, supra, at pp. 1182-1183.)
The trial court holds a hearing on the petition to determine whether "there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6602, subd. (a).) The probable cause hearing is an adversarial hearing and the person named in the petition has the right to counsel. (Ibid.)If the court finds probable cause, it orders a trial to determine whether the person is an SVP. (§ 6602, subd. (a).) The person named in the petition must remain in a secure facility between the time probable cause is found and the time trial is completed. (Ibid.)
The person named in the petition is entitled to a trial by jury, and the jury's verdict must be unanimous. (§ 6603, subds. (a) & (f).) The person named in the petition also is entitled to retain experts or professional persons to perform an examination on his or her behalf. (§ 6603, subd. (a).) At trial, the trier of fact determines whether, beyond a reasonable doubt, the person named in the petition is an SVP. (§ 6604.)
The SVPA grants the person named in the petition the right to be present at the commitment proceeding and "the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding." (§ 6605, subd. (d).) If the trier of fact determines the person named in the petition is an SVP, the person is committed for an indefinite term to the Department's custody for appropriate treatment and confinement in a secure facility. (§ 6604.)
Once committed, the individual must have "a current examination of his or her mental condition made at least once every year." (§ 6605, subd. (a).) After the examination, the Department must file a report in the form of a declaration that addresses (1) "whether the committed person currently meets the definition of [an SVP]," and (2) "whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community." (Ibid.) The Department is to file this report with the trial court that committed the person, and must serve the report on the prosecuting agency and the committed individual. The committed individual may retain, or the court may appoint, a qualified expert to examine him or her. (Ibid.)
If the Department concludes in the report that the committed individual no longer meets the requirements of the SVPA, or that conditional release is appropriate, the Department must authorize the committed individual to petition the trial court for release. (§ 6605, subd. (b).) Upon receipt of the petition for conditional release or unconditional discharge, the trial court is to set a probable cause hearing at which the court "can consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney or the committed person." (Ibid.) If the trial court determines that probable cause exists to believe the petition has merit, it must set a hearing on the issue, at which time the committed individual is "entitled to the benefit of all constitutional protections that were afforded him or her at the initial commitment proceeding." (Id., subds. (c), (d).) If the fact finder determines that the state has not met its burden, the committed person must be released. (Id., subd. (e).)
B.
Expert Witness Testimony
Kite contends the trial court erroneously permitted expert testimony regarding whether Kite needed to be in a secure facility to ensure the health and safety of others because this was the ultimate legal issue for the jury to decide.
The trial court instructed on the basis for finding that an individual is an SVP with CALCRIM No. 3454: "To prove this allegation, the People must prove beyond a reasonable doubt that: 1. He has been convicted of committing a sexually violent offense against one or more victims; 2. He has a diagnosed mental disorder; 3. As a result of that diagnosed mental disorder, he is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavior: and 4. It is necessary to keep him in custody in a secure facility or a state-operated forensic conditional release program to ensure the health and safety of others."
An expert witness is one who has special knowledge, skill, experience, training, or education sufficient to qualify as an expert on the subject to which his or her testimony relates. (Evid. Code, § 720.) An expert may offer opinion testimony if the subject is sufficiently beyond common experience that it would assist the trier of fact. (Id., § 801.) 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).) A trial court 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.' " (People v. Gardeley (1996) 14 Cal.4th 605, 618-619 (Gardeley).)
"Expert testimony may also 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. [Citations.]... [¶] 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." (Gardeley, supra, at pp. 618-619.)
"Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible. [Citation.] This rule, however, does not permit the expert to express any opinion he or she may have. [Citation.] ' "Undoubtedly there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided... There is no necessity for this kind of evidence; to receive it would tend to suggest that the judge and jury may shift responsibility for decision to the witnesses; and in any event it is wholly without value to the trier of fact in reaching a decision." ' [Citation.] [¶] A bright line cannot be drawn to determine when opinions that encompass the ultimate fact in the case are or are not admissible. The issue has long been a subject of debate. [Citation.] In People v. Wilson (1944) 25 Cal.2d 341, 349 the Supreme Court said: 'There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case. "We think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved.... Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in." ' " (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.)
Here, Dr. Clipson testified that in concluding Kite needed to be in a secure facility, he took into account that outpatient treatment was available in San Diego county, and Kite's failure to seek treatment in the hospital setting, but ultimately he reached this conclusion: "Well, the primary thing is that [Kite's] denial about his sexual interest in children. His naivete about saying I've decided I'm not going to do this anymore, so I'm never going to do it. The lack of any kind of relapse prevention plan. The lack of social support people need to prevent from engaging in these kinds of behaviors, and frankly, you, know, I've had the opportunity to see people who have prepared themselves for being released into the community and seeing the kinds of things that they do, the social supports that they organize for themselves, the treatment plans they contact. They make sure the money is available to pay for the treatment plans. They get social support groups organized, so they have people they can call any hour of the day or night when they are in any kind of trouble. [¶] Mr. Kite has none of that. He's not done any of those things. He's not made any steps to show there's any sincerity about getting involved in treatment, and he has no such track record of doing such things when he had the opportunity to do so before."
We conclude the trial court did not abuse its discretion in admitting Dr. Clipson's testimony as set forth above because it was not the kind of evidence that told the jury how the expert believed the case should be decided. Like the issue of whether an individual is sane, the issue of whether one is an SVP cannot be further simplified. This topic was sufficiently beyond common experience for expert testimony to assist the jury in reaching its verdict. Moreover, the court helpfully instructed the jury regarding how to evaluate expert witness testimony in the language of CALCRIM No. 332: "Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence."
II.
A.
Due Process
Kite contends the amended SVPA's provision for commitment to an indeterminate term violates his right to due process under the Fourteenth Amendment of the federal Constitution because it permitted the imposition of an indeterminate term.
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 (Jones) [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 (Kansas) [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 only held "as long as he is both mentally ill and dangerous, but no longer." (Foucha v. Louisiana (1992) 504 U.S. 71, 77.)
The initial commitment hearing provides a significant level of due process protection by requiring the prosecution to prove that the person qualifies for commitment beyond a reasonable doubt. (§ 6604.) This is a higher standard than the clear and convincing standard upheld in Addington v. Texas (1979) 441 U.S. 418, 433. The procedures for postcommitment review and release in the SVPA are also constitutionally adequate to ensure that the committed person is released once he or she no longer qualifies as an SVP. The SVPA requires at least annual reviews of an individual's mental health status and forwarding of the reviews to the committing court and the prosecuting attorney. It also requires Department to authorize the individual to file a petition for release if the examination reveals he or she is no longer an SVP. The annual examinations by Department, the right to an independent examination, and the petitioning procedures pursuant to sections 6605 and 6608 minimize the risk of an erroneous determination. The substitution of annual review by the Department and the procedure for authorized and unauthorized petitions, for the requirement in the former version of the SVPA of automatic full judicial review every two years, strikes a reasonable and fair balance between protection of the rights of committed persons not to be detained any longer than their mental illness and dangerousness requires, and the interest of the state in protecting the public from persons who are mentally ill and dangerous, and in avoiding unnecessary relitigation of issues, in the absence of some evidence of a change in the conditions underlying the initial commitment. (See, e.g., Hendricks, supra, 521 U.S. at p. 363 [state has legitimate interest in protecting community from the mentally ill and dangerous]; see also U.S. v. Wattleton (2002) 296 F.3d 1184, 1200-1201 [state also has an interest in avoiding unnecessary relitigation of issues].)
B.
Kite's Indeterminate Sentence Was Not Retroactive
Kite contends the trial court erroneously extended his two-year commitment to an indeterminate term by impermissibly applying the SVPA retroactively. "It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospective application or a clear indication that the electorate, or the Legislature, intended otherwise." (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207; Civ. Code, § 3.) Proposition 83, which became effective on November 8, 2006, is silent on the question of retroactivity, so we presume it is intended to operate only prospectively. The question, therefore, is whether applying the indeterminate commitment provisions of Proposition 83 to pending petitions to extend commitment is a prospective or retroactive application.
The last necessary event in determining whether someone is an SVP is the person's mental state at the time of the commitment. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1289 (Bourquez).) Therefore, for those petitions to extend SVP commitment, pending before the passage of S.B. 1128 or Proposition 83, the person's mental state will be determined at the time of commitment. If that determination is made after S.B. 1128 or Proposition 83, those laws do not operate retroactively. (Bourquez, at p. 1289; People v. Carroll (2007) 158 Cal.App.4th 503, 512-515.) While past qualifying sex crimes are used as evidence in determining whether the person is an SVP, a person cannot be so adjudged "unless he 'currently' suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior, and which 'makes' him dangerous and 'likely' to reoffend." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162 (Hubbart I.) "[T]he statute clearly requires the trier of fact to find that an SVP is dangerous at the time of commitment." (Ibid., italics added.)
Kite was adjudicated to require commitment as an SVP on September 3, 2008. This was after both the effective dates of S.B. 1128 and Proposition 83. Thus, the last act necessary to trigger application of the revised SVPA occurred after those provisions were effective. They therefore only operated prospectively.
Furthermore, the revised SVPA's indeterminate commitment provision did not impose new legal consequences on appellant and was therefore not a retroactive application of that statute. (People v. Carroll, supra, 158 Cal.App.4th at pp. 512-515.) Both before and after those revisions, he was only to be committed until such time as he was no longer likely to commit a violent sexual offense and hence present a danger to society. While the revisions eliminated the need for filing a new SVP petition every two years in order to extend appellant's commitment, this only affected the procedure for determining if appellant remained an SVP, not the legal consequences of being an SVP. Kite's reliance on People v. Whaley (2008) 160 Cal.App.4th 779 in unavailing because in that case the indeterminate provision of the revised SVPA were sought to be applied to an already adjudicated SVP commitment, not merely to a pending petition, as is the case here.
IV.
Ex Post Facto and Double Jeopardy
Kite contends the 2006 amended SVPA, which provides for commitment to an indeterminate term violates the ex post facto and double jeopardy clauses of the federal Constitution. (§ 6604.) Kite further argues that amendments to the SVPA have made the statute punitive in nature, despite the fact that the Act has a stated civil purpose. He bases his contention on the indeterminate term and an alleged shifting of burden to the defendant. These contentions have been rejected in In re Glenn (2009) 178 Cal.App.4th 778 (Glenn) and People v. Taylor (2009) 174 Cal.App.4th 920, 938-939.) We also reject Kite's contentions because the constitutional principles prohibiting double jeopardy and ex post facto laws apply only to criminal proceedings.
Kite does not distinguish between the federal and state Constitutions. We therefore address the thrust of his argument, which involves only the federal Constitution. In any event, the "federal and state ex post facto clauses are interpreted identically." (Hubbart I, supra, 19 Cal.4th at p. 1171.)
Article I, section 10, of the United States Constitution prohibits the states from passing any law that retroactively alters the definition of a crime or increases the punishment for a criminal act. (Collins v. Youngblood (1990) 497 U.S. 37, 43.) Only penal statutes may implicate federal ex post facto protection. (Hendricks, supra, 521 U.S. at p. 370; see also California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 504-505.) Further, if the SVPA applies only prospectively, permitting confinement only on a finding of current mental disorder and the likelihood of posing a future danger to the public, it does not violate the prohibition against ex post facto laws. (See Hendricks,at p. 371; see also People v. Whaley, supra, 160 Cal.App.4th at pp. 792-796; Bourquez, supra, 156 Cal.App.4th at pp. 1288-1289.)
The United States Supreme Court rejected a similar ex post facto challenge to Kansas's sexually violent predator statute. (Hendricks, supra, 521 U.S. at pp. 362-368, 370-371.) Based on the United States Supreme Court's analysis in Hendricks, the California Supreme Court upheld the previous version of the SVPA against challenges that it was a punitive statute that implicated federal ex post facto concerns. (Hubbart I, supra, 19 Cal.4th at pp. 1170-1179; see People v. Hubbart (2001) 88 Cal.App.4th 1202, 1226 (Hubbart II); Hubbart v. California (2002) 534 U.S. 1143.)
In determining whether the amended SVPA is punitive for purposes of federal constitutional law, we apply the same analysis that the California Supreme Court used when it considered a similar challenge to the former SVPA in Hubbart I, supra, 19 Cal.4th at pp. 1170-1179. Whether a particular proceeding should be considered to be civil or criminal is initially a question of statutory construction. We first attempt to determine whether the body enacting the law intended to establish civil, rather than criminal, proceedings. (Hendricks, supra, 521 U.S. at p. 361.) Courts ordinarily defer to the enacting body's stated intent, and "will reject the [L]egislature's manifest intent only where a party challenging the statute provides 'the clearest proof' that 'the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention' to deem it 'civil.' " (Ibid.)
Although statutory interpretation often involves questions regarding a legislative body's intent in enacting a statute or ordinance, in this situation we must ascertain the intent of the voters because they enacted Proposition 83. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901.)
It is evident from the original SVPA that the Legislature intended to create a civil commitment procedure designed to protect the public from harm. (See Hendricks, supra, 521 U.S. at p. 361; Hubbart I, supra, 19 Cal.4th at p. 1171.) The amended SVPA retains the basic structure of civil commitment procedures to treat mentally ill persons who have committed acts of sexual violence, and the same statutory placement in the Welfare and Institutions Code, as the original SVPA. These factors support the conclusion that the amended SVPA is, like the original SVPA, civil in nature.
We next consider whether the effects of the amended SVPA are so punitive that the Act should be considered a criminal statute. When analyzing the effects of a statutory scheme, we consider a non-exhaustive, non-dispositive list of seven factors that provide "a useful framework" for considering whether a statute is punitive in purpose or effect. (Smith v. Doe (2003) 538 U.S. 84, 97.) These factors include whether the statutory scheme: (1) "has been regarded in our history and traditions as a punishment," (2) "imposes an affirmative disability or restraint," (3) "promotes the traditional aims of punishment," (4) "has a rational connection to a nonpunitive purpose," (5) "is excessive with respect to this purpose," (6) "whether the regulation comes into play only on a finding of scienter," and (7) "whether the behavior to which it applies is already a crime." (Id. at pp. 97, 105.)
Commitment of the dangerously mentally ill is a legitimate governmental objective that has historically been viewed as nonpenal. (Hendricks, supra, 521 U.S. at pp. 362-363; see Hubbart I, supra, 19 Cal.4th at pp. 1172-1173.) Commitment of SVPs under the original SVPA did not implicate the two primary objectives of criminal punishment-retribution and deterrence. The original SVPA was not retributive because it did not assign culpability for prior criminal conduct, but, rather, used the existence and nature of the prior conduct as evidence of the existence of a mental disorder and/or future dangerousness. (See Hendricks, at pp. 361-363; Hubbart I,at p. 1175.)
The amendments to the SVPA did not change this. Similarly, there is no basis for concluding that the amendments to the SVPA create an increased deterrent effect over the original SVPA. Persons committed pursuant to sexually violent predator laws suffer from mental disorders that prevent them from exercising sufficient control over their conduct. Such individuals are unlikely to be deterred by the threat of civil confinement. (Hendricks, supra, 521 U.S. at pp. 362-363.) Under the amended SVPA, it must still be determined that SVPs suffer from mental disorders that prevent them from exercising sufficient control over their conduct; therefore, the amendments to the SVPA do not make it any more likely that a sexually violent predator will be deterred by its provisions than he or she would be under the provisions of the original SVPA.
Further, under both the original and amended versions of the SVPA, a jury need not make a finding of scienter or criminal intent to find that a person is an SVP. (Hendricks, supra, 521 U.S. at p. 362; compare with Pen.Code section 20 [criminal act requires both act and intent].) The absence of an intent requirement constitutes further evidence that neither the original SVPA nor the amended SVPA were intended to be retributive. (Hendricks, at p. 362.)
The amended SVPA's provision for an indeterminate commitment, rather than a determinate two-year term, as in the original SVPA, does not alter the civil nature of the statutory scheme. Commitment under the amended SVPA is distinct from an indefinite prison term in that treatment of the committed person is a goal of the amended SVPA. (See Hendricks, supra, 521 U.S. at pp. 365-368; Hubbart I, supra, 19 Cal.4th at p. 1174.) Both the original and the amended SVPA provide for treatment, in addition to confinement of SVPs. (See § 6604.) Further, the United States Supreme Court has held that the duration of commitment is not evidence in and of itself of a punitive intent where it is linked to the purpose of that commitment, i.e., to hold the individual until his or her mental disorder no longer poses a threat to others. (Hendricks, at pp. 363-364; Hubbart I, pp. 1173, 1176.) The California Supreme Court has held that the original SVPA was designed to ensure that the committed person did not remain confined past a point at which he or she ceased to suffer from a mental abnormality rendering him or her unable to control his or her dangerousness. (Hubbart I, at p. 1177.) Under the amended SVPA, it is no different; once a committed individual is adjudged to no longer meet the definition of an SVP, he or she is entitled to release. Thus, the change from a determinate to an indeterminate commitment term does not support the conclusion that the amended SVPA is more punitive than the original SVPA.
As we have previously noted, Kite had a right to a jury trial at the initial commitment hearing and at any hearing on a petition authorized by Department. (See §§ 6603, subd. (a), 6604, 6605, subd. (d).) One purpose of the amendments to the SVPA under Proposition 83 was to eliminate "unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person." (Ballot Pamp., Gen. Elec. (Nov. 7, 2006), text of Prop. 83, p. 127.) It is clear that the change from a statutory scheme involving a determinate term and the right to a jury trial for recommitment proceedings under the original SVPA, to a statutory scheme involving an indeterminate term with no jury trial right for unauthorized petitions for release, did not have a punitive purpose. We conclude that the fact that the amended SVPA does not provide for the right to a jury trial on a petition filed by an SVP who has not received Department authorization does not render the amended SVPA a punitive statute.
The underlying purpose and intent of the SVPA has not changed. The amended SVPA still requires a judicial finding that the detainee is an SVP, meaning not only that the person has committed a qualifying offense, but that the person suffers from "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).) The original and amended versions of the SVPA are thus similar with respect to whether the SVPA is punitive, for purposes of ex post facto concerns. We conclude that the amended version of the SVPA, like the original SVPA, is not punitive in either purpose or effect, for purposes of determining whether the Act violates the federal constitutional prohibition against ex post facto laws. (See Hendricks, supra, 521 U.S. at pp. 360-369.)
We similarly reject Kite's contention that his commitment under the amended SVPA constitutes double jeopardy. The double jeopardy clause of the federal Constitution prohibits punishing an individual twice for the same offense. (Hendricks, supra, 521 U.S. at p. 369.) As we have already concluded, commitment under the amended SVPA is civil in nature, not punitive. A commitment under the amended SVPA thus does not constitute a second prosecution or second punishment for the same offense for which Kite was previously convicted and incarcerated. (See Hendricks, at p. 369; see also Hubbart II, supra, 88 Cal.App.4th at p. 1226.)
Underground Regulations
Kite contends the evaluations supporting the petition are invalid because the statutorily-required protocol was promulgated in violation of the Administrative Procedure Act (APA), and therefore the trial court lacked jurisdiction to proceed with the SVP petition. He challenges the legality of his commitment because it derived from the Department's reliance on a mental health evaluation protocol, parts of which the Office of Administrative Law (OAL) has since determined constitute "underground regulation[s]." Kite contends that the illegality of the Department's protocol means that the petition to find him an SVP should be dismissed.
State agencies must formally adopt regulations in compliance with the procedural requirements of the APA. Certain guidelines that have not been adopted pursuant to the APA are considered to be illegal "underground regulations." (See Cal.Code Regs., tit. 1, § 250, subd. (a) [" 'Underground regulation' means any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation as defined in Section 11342.600 of the Government Code, but has not been adopted as a regulation and filed with the Secretary of State pursuant to the APA and is not subject to an express statutory exemption from adoption pursuant to the APA"].)
We reject Kite's claim because even if we presume that the OAL determination is correct and the Department's protocol does constitute an underground regulation, the Department's use of the protocol does not undermine the legitimacy of Kite's commitment. Other appellate courts have reached similar conclusions when faced with this claim. (See People v. Medina (2009) 171 Cal.App.4th 805 (Medina); Glenn, supra, 178 Cal.App.4th 778.)
1. Additional background
The process for committing an individual under the SVPA begins when prison officials screen an inmate's records to determine whether it is likely that he or she is an SVP. (§ 6601, subds. (a), (b).) If prison officials make such a determination, the inmate is referred to the Department for a full evaluation as to whether he or she meets the SVP criteria. (Id., subd. (b).) Two mental health professionals designated by the Department are to "evaluate the person in accordance with a standardized assessment protocol, developed and updated by the [Department], to determine whether the person is a sexually violent predator as defined in this article." (Id., subds. (c).) "The standardized assessment protocol [to be used by the evaluators] shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (Id., subd. (c).)
Consistent with the obligations set forth in section 6601, subdivision (c), the Department published the "Clinical Evaluator Handbook Standardized Assessment Protocol (2007)" (Handbook), to assist evaluators who conduct SVP evaluations on prisoners and evaluations of SVPs who are subject to recommitment. In August 2008, the OAL determined that 10 sections of the Handbook constitute "regulations" that the Department should have adopted in conformance with the procedures set forth in the APA. According to the OAL, the portions of the Handbook that were not promulgated pursuant to the APA constitute illegal "underground regulations." (2008 OAL Determination No.19.)
2. Analysis
Kite offers no authority to support his assertion that the use of an "underground regulation" during the pre-petition administrative proceedings renders the subsequent commitment proceedings void, and thus subject to per se reversal for lack of jurisdiction. In suggesting that the Department's use of the challenged protocol deprives the trial court of fundamental jurisdiction to order commitment following a jury trial, Kite fails to acknowledge the limited role that the Handbook plays in the preliminary phase of the SVP proceedings.
The Department is statutorily required to use the protocol for the purpose of administrative actions that lead up to the filing of an SVP petition. (§ 6601, subds. (c), (d).) " '[T]he requirement for evaluations is not one affecting disposition of the merits; rather, it is a collateral procedural condition plainly designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.' [Citation.] 'After the petition is filed, rather than demonstrating the existence of the two evaluations, the People are required to show the more essential fact that the alleged SVP is a person likely to engage in sexually violent predatory criminal behavior.' " (People v. Scott (2002) 100 Cal.App.4th 1060, 1063.)
"[O]nce the petition is filed a new round of proceedings is triggered." (People v. Superior Court (Preciado)(2001) 87 Cal.App.4th 1122, 1130.) Specifically, after a petition is filed, the court holds a probable cause hearing, at which the court's focus shifts away from assessing formal conformance with procedural requirements to evaluating the probative value of the evaluations on the substantive SVP criteria. The probable cause hearing under the SVPA is analogous to a preliminary hearing in a criminal case as both are designed to protect the accused from having to face trial on groundless or otherwise unsupported charges. (Medina, supra, 171 Cal.App.4th at pp. 818-819; Glenn, supra, 178 Cal.App.4th 778.)
In analogous circumstances in the context of a criminal prosecution, the California Supreme Court has concluded that defects in the preliminary hearing phase of a criminal proceeding do not automatically invalidate a subsequent conviction; rather, a defendant must show that he or she was prejudiced by the challenged defect. (See People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529-530 (Pompa-Ortiz).) "[I]rregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if [the] defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. The right to relief without any showing of prejudice will be limited to pretrial challenges of irregularities. At that time, by application for extraordinary writ, the matter can be expeditiously returned to the magistrate for proceedings free of the charged defects." (Id. at p. 529.) "The presence of a jurisdictional defect which would entitle a defendant to a writ of prohibition prior to trial does not necessarily deprive a trial court of the legal power to try the case if prohibition is not sought." (Ibid.)
The Pompa-Ortiz rule "applies to SVP proceedings." (People v. Hayes (2006) 137 Cal.App.4th 34, 51.) Furthermore, the rule applies equally to the "denial of substantial rights as well as to technical irregularities," including claims of the denial of counsel and ineffective assistance of counsel at a preliminary hearing. (Id., at pp. 50-51.) This court has held that the failure to obtain the evaluations of two mental health professionals, as required under section 6601, subdivision (d), did not deprive the court of fundamental jurisdiction to act on an SVP petition. (Preciado, supra, 87 Cal.App.4th at pp. 1128-1130.) The defect "was not one going to the substantive validity of the complaint, but rather was merely in the nature of a plea in abatement, by which a defendant may argue that for collateral reasons a complaint should not proceed." (Id. at p. 1128.)
Like the requirement that a potential SVP be examined by two evaluators, a requirement that the Department utilize a protocol that has been adopted pursuant to the APA is a matter that is collateral to the merits of Kite's SVP petition. We reject Kite's assertion that a defect in the Department's evaluative process deprived the trial court of fundamental jurisdiction to act on his petition. Rather, Kite must demonstrate that he was prejudiced by the Department's use of the Handbook. He has not attempted to make such a showing. Kite fails to explain how use of the evaluation protocol resulted in actual prejudice to him, either by depriving him of a fundamental right or a fair trial; therefore, we reject his challenge to the Department's use of an "underground regulation" in evaluating him under the SVPA.
We have addressed the claims on the merits and find no prejudicial error; accordingly, we do not address Kite's claims of ineffective assistance of counsel. "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." (Strickland v. Washington (1984) 466 U.S. 668, 697.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., IRION, J.