Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge. Super. Ct. No. CRP15352.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
Appellant John Stephen Warren challenges his commitment as a sexually violent predator on numerous constitutional grounds. He also claims that his counsel was ineffective for failing to raise constitutional objections. In addition, Warren contends the trial court erred in admitting certain evidence. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
In 1986 Warren was convicted of three counts of forcible lewd acts with a child under the age of 14. Each count involved a different victim. Warren was sentenced to a term of imprisonment and thereafter originally committed as a sexually violent predator (SVP) in 1996 pursuant to Welfare and Institutions Code section 6600 et seq. His commitment as an SVP was extended in 1998, 2000, and 2002.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
In 2005 Warren’s commitment again was extended for a period of two years. Warren appealed. In an unpublished opinion (People v. Warren (Apr. 14, 2006) [nonpub. opn.], this court reversed the order extending Warren’s commitment on the grounds the trial court had erred in denying Warren’s request for funds to pay for an expert witness. Remittitur issued on June 22, 2006.
On August 30, 2006, a petition seeking to extend Warren’s commitment as an SVP for two years was filed. On September 11, 2006, the People moved to consolidate the trial on the 2006 petition with the retrial on the 2004 petition. Over Warren’s objection, the trial court consolidated the trials.
Thereafter, on December 18, 2006, Warren filed a motion to dismiss the petitions on the grounds the recent amendments to the statutes deleted the authority to recommit for a period of two years. The People opposed the motion and, after brief argument, it was denied by the trial court.
Warren sought to preclude the People’s expert witnesses from making any reference to a penile plethysmograph, or PPG test, at trial. The trial court conducted an evidentiary hearing and denied Warren’s motion to exclude the evidence.
On August 23, 2007, a jury found that Warren was an SVP as alleged in both petitions. The trial court ordered Warren’s commitment extended for two years based upon the true finding on the 2004 petition. The trial court ordered the commitment extended indefinitely on the 2006 petition.
DISCUSSION
Warren makes the following contentions: (1) the trial court erred in denying his motion to dismiss the consolidated petitions because it had no authority to issue a recommitment order; (2) the changes to the statutory term of commitment were improperly applied retroactively to him; (3) the imposition of an indeterminate term of commitment violates due process, double jeopardy, equal protection, and ex post facto laws and constitutes cruel and unusual punishment; (4) Proposition 83 violates the single-subject rule and its provisions violate his First Amendment rights; (5) his trial counsel was ineffective for failing to raise the constitutional arguments raised in this appeal; and (6) the trial court erred in admitting the PPG test.
I. Trial Court Jurisdiction
On September 20, 2006, Senate Bill No. 1128 (2005-2006 Reg. Sess.) (hereafter Bill No. 1128), which had been enacted as an urgency measure, became law. On November 7, 2006, Proposition 83 was passed by the voters. Both Bill No. 1128 and Proposition 83 provided that the term of civil commitment for an SVP would be an indefinite term. (Stats. 2006, ch. 337, § 55; Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006) eff. Nov. 8, 2006.)
At the time the petitions were filed, former section 6604 provided for a two-year term of commitment. After enactment of Bill No. 1128, the language providing for a two-year term of commitment was deleted and an indefinite term was added. (Stats. 2006, ch. 337, § 55.) The statutory language referring to recommitment petitions was deleted.
Warren contends that because the language referring to recommitment petitions was deleted from the statute, the trial court lacked jurisdiction to order a recommitment. This court, and other appellate courts, previously have considered and rejected this contention. (People v. Carroll (2007) 158 Cal.App.4th 503, 508-510 (Carroll); Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1283-1288 (Bourquez); People v. Shields (2007) 155 Cal.App.4th 559, 562-564.) Warren has not persuaded us to alter our previous holding. The trial court had jurisdiction.
II. Constitutional Issues
No retroactive application
Warren contends that because the recommitment petitions were filed prior to the enactment of Bill No. 1128 and Proposition 83 and the statutory language providing for an indeterminate term, committing him to an indeterminate term constitutes a retroactive application of the law. He is mistaken.
This court, in Carroll, supra, 158 Cal.App.4th at page 514, pointed out that the significant date with respect to retroactivity is not the “filing of the petition, but trial and adjudication” under the SVP Act (SVPA). Warren was adjudicated an SVP after enactment of Bill No. 1128 and passage of Proposition 83 and an indeterminate term imposed because of the status of his mental condition after the effective dates of Bill No. 1123 and Proposition 83. Imposition of an indeterminate term did not constitute retroactive application of the statutory amendments. (Carroll, at p. 514.) The Third District Court of Appeal reached the same conclusion in Bourquez, supra, 156 Cal.App.4th at pp. 1288-1289.)
In determining whether a law has retroactive application, “‘the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date.’” (Bourquez, supra, 156 Cal.App.4th at p. 1288.) Because the last event necessary to trigger application of the SVPA occurs at the time of commitment, not when the recommitment petition is filed, the court in Bourquez held that applying the provisions of section 6604 as amended “to pending petitions to extend commitment under the SVPA to make any future extended commitment for an indeterminate term is not a retroactive application.” (Bourquez, at p. 1289.)
The significant point for retroactivity is the trial and adjudication. (Carroll, supra, 158 Cal.App.4th at p. 514.) Therefore, the trial court did not err in applying the amended version of section 6604 and imposing an indeterminate term of civil commitment on the 2006 petition. (Bourquez, supra, 156 Cal.App.4th at p. 1289.)
Due process of law
Warren argues that the SVPA, as modified by Proposition 83, violates due process because it improperly places the burden of proof on him to establish that he is fit for release, and the SVPA does not provide for mandatory, periodic judicial review of his continued commitment. Warren’s contentions previously have been addressed and rejected by California courts and the United States Supreme Court.
A civil commitment for an indeterminate term does not violate due process. In Kansas v. Hendricks (1997) 521 U.S. 346, 353 (Hendricks), the United States Supreme Court upheld the constitutionality of a statute that provided for an indeterminate commitment of an SVP “‘until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large.’ [Citation.]” The Kansas scheme provided for an annual review to determine whether continued commitment was warranted; the committed person also could file a petition seeking to be released. (Hendricks, at p. 353.) Because of the requirement of an annual review, the commitment period is “only potentially indefinite.” (Id. at p. 364.)
Like the Kansas scheme, California’s SVP scheme provides for an annual review and allows the committee to petition for release. Section 6605 provides that a current mental health examination shall be conducted each year to determine whether the committed person currently meets the definition of an SVP. (Id., subd. (a).) The results are to be filed with the trial court and served on the committed person. (Ibid.) If it is determined that the committed person no longer meets the definition of an SVP, or if the person can be conditionally released, then a petition for such discharge or conditional release is to be filed. (Id., subd. (b).)
If the Department of Mental Health does not certify that the committed person should be discharged or conditionally released, the person can file a petition pursuant to section 6608 for conditional release or discharge. (Id., subd. (a).) Section 6608, subdivision (i) provides that in any hearing on a petition filed under this section, the committee has the burden of proof by a preponderance of the evidence.
If at any time the Department of Mental Health believes a person committed as an SVP no longer qualifies as an SVP, the Department of Mental Health must seek judicial review of the commitment. (§ 6605, subd. (f).)
At a minimum, a current evaluation must be conducted at least once a year. (§ 6605, subd. (a).) A person committed as an SVP also may seek discharge or conditional release pursuant to sections 6607 and 6608. (People v. Grassini (2003) 113 Cal.App.4th 765, 781.) In addition, a committed person has the right to seek release by way of a petition for writ of habeas corpus. (People v. Talhelm (2000) 85 Cal.App.4th 400, 404-405 (Talhelm).)
The annual review and the numerous methods by which a committed person may seek discharge or conditional release under California’s scheme assure that an individual remains committed only as long as he or she meets the statutory qualifications as an SVP. These procedural safeguards assure that commitment as an SVP only potentially is indeterminate and that constitutional requirements are satisfied. (See Hendricks, supra, 521 U.S. at pp. 364-365.)
Furthermore, some provisions of the statute challenged by Warren are not new; they were in effect prior to the 2006 amendments. The constitutionality of the statutory scheme adopted by California for treating SVP’s has been upheld by the California Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138 (Hubbart). The court in Hubbart first comprehensively summarized the many provisions in the scheme, including noting that a person filing a petition for discharge or conditional release had the burden of proof by a preponderance of the evidence. (Id. at p. 1148 & fn. 14.) The Hubbart court then analyzed, and rejected, a due process challenge to the statutory scheme. (Id. at pp. 1151-1167.)
As SVP commitment proceedings are civil in nature, we do not apply principles applicable to criminal proceedings. (People v. Collins (2003) 110 Cal.App.4th 340, 348 (Collins).) Because commitment as an SVP involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process. The protections afforded, however, are measured by the standard applicable to civil, not criminal proceedings. (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 738.) “Due process is a flexible concept that calls for ‘“such procedural protections as the particular situation demands.”’ [Citation.]” (People v. Hardacre (2001) 90 Cal.App.4th 1392, 1399.)
Also, as the action instituted by such a petition is civil in nature, rules of civil procedure apply to petitions for discharge or conditional release filed by a committed person pursuant to section 6608. (Collins, supra, 110 Cal.App.4th at p. 348.) The burden of proof in a civil action is on the moving party and is a preponderance of the evidence. (Ibid.; § 6608, subd. (i); Evid. Code, § 115.) Section 6608, subdivision (i) specifically provides for a civil burden of proof to apply.
Warren was committed to an indeterminate term after it was determined beyond a reasonable doubt that he qualified as an SVP. (§ 6604.) If Warren believes that his mental condition has changed such that he no longer qualifies as an SVP and can be discharged, or conditionally released, he has the right to file a petition under section 6608, to have counsel appointed to represent him, and to seek the appointment of medical experts to evaluate him. (§§ 6608, subd. (a), 6605, subd. (a).) He also has the ability to seek discharge or conditional release by way of a petition for writ of habeas corpus. (Talhelm, supra, 85 Cal.App.4th at pp. 404-405.) His contention that his commitment for an indeterminate term violates due process fails.
Ex post facto
Warren contends imposition of an indeterminate term renders the SVPA punitive in nature and violates constitutional prohibitions on ex post facto laws.
It is well settled that a commitment under the SVPA is civil in nature and legally does not amount to punishment. (Hubbart, supra, 19 Cal.4th at p. 1179 [SVPA does not violate constitutional proscription against ex post facto laws because SVPA does not impose punishment or implicate ex post facto concerns]; People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2 (Chambless) [SVPA is not punitive and does not impose liability or punishment for criminal conduct]; People v. Carlin (2007) 150 Cal.App.4th 322, 348 (Carlin) [same]; see also Landgraf v. USI Film Products (1994) 511 U.S. 244, 266-267 [basic purpose of ex post facto clause is to ensure fair warning of consequences of violating penal statutes and to reduce potential for vindictive legislation].)
The analysis in this case is not dependent on the term of civil commitment, as Warren suggests, but on the intent and effect of the statute authorizing it. (Hubbart, supra, 19 Cal.4th at p. 1171 [key is whether SVPA intended by Leg. to inflict punishment].) “[T]he mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.” (United States v. Salerno (1987) 481 U.S. 739, 746.) Further, the potential for an indeterminate term has existed since the initial passage of the SVPA, and that possibility exists in similar statutes in others states. (See Hendricks, supra, 521 U.S. at pp. 358, 368 [potential for indefinite term, Kansas statute].) In addition, the need to protect the community from these especially dangerous individuals does not necessarily diminish over time. (Zadvydas v. Davis (2001) 533 U.S. 678, 690.)
In Hubbart our Supreme Court reiterated that the SVPA detains only those who presently are found to be suffering from a mental disorder that makes them a threat to society. The qualifying offense acts as a gatekeeper, but it is not the basis for commitment. (Hubbart, supra, 19 Cal.4th at p. 1171.)
The underlying purpose and intent of the SVPA has not changed. It still requires a judicial finding that the detainee is an SVP defined to mean not only that the qualifying offense has been committed, 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 key to determining whether ex post facto prohibitions apply is whether the statute is punitive in its intent and effect. Since a court ordinarily defers to the stated legislative intent in determining whether a statute is punitive, only very clear proof will override this intent and transform what the Legislature has denominated as a civil remedy into a criminal punishment. (Smith v. Doe (2003) 538 U.S. 84, 92.) Both the California and United States Supreme Courts already have decided that detaining sex offenders adjudged to be dangerous to society is a legitimate nonpunitive governmental objective. This means acts such as the SVPA, despite their restrictive natures, are not punitive. (Hendricks, supra, 521 U.S. at p. 363 [restraining freedom of dangerously mentally ill is historically acknowledged legitimate nonpunitive governmental objective]; Hubbart, supra, 19 Cal.4th at p. 1179.)
There is nothing in the legislative history that suggests Bill No. 1128 or Proposition 83 were intended to do anything other than make the SVPA a more effective civil scheme to protect the public from a small group of exceedingly dangerous individuals. Since the SVPA is not punitive, the principles of ex post facto do not apply.
Double jeopardy
Warren claims his indeterminate commitment as an SVP is punitive in nature and thus violates the prohibition against double jeopardy. Like his ex post facto claim, Warren’s double jeopardy claim is without merit because the SVPA is a civil commitment scheme.
A civil commitment procedure does not constitute a second prosecution for purposes of the double jeopardy clause. (Hendricks, supra, 521 U.S. at p. 369.) As discussed ante, the SVPA, as amended by Prop. 83, remains civil, not punitive, in nature. Because Warren’s commitment is civil in nature, it does not run afoul of the double jeopardy clause.
Equal protection
Warren contends his commitment violates equal protection because of limited judicial review. We addressed and rejected his claims of limited review ante in our discussion of due process.
Warren also argues that his commitment as an SVP violates equal protection because similarly situated groups are treated in an unequal manner. Specifically, Warren points to those confined as mentally disordered offenders (MDO), Penal Code section 2960 et seq., and those committed to the Department of Mental Health by virtue of a criminal verdict of not guilty by reason of insanity as similarly situated groups whose treatment differs from that accorded those determined to be SVP’s.
Several California appellate cases already have addressed, and rejected, the equal protection challenges with respect to commitment as an SVP that are raised by Warren. (People v. Calderon (2004) 124 Cal.App.4th 80, 94 [MDO’s and SVP’s are not similarly situated]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1314-1315 [rejects claim of equal protection violation after analyzing MDO and SVP schemes]; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1218-1219 [the SVPA does not violate equal protection]; People v. Calhoun (2004) 118 Cal.App.4th 519, 529-530 [SVP’s and criminal defendants are not similarly situated, thus no equal protection violation].)
Additionally, the Ninth Circuit has held that California’s statutory scheme for treatment of SVP’s does not violate equal protection. (Hubbart v. Knapp (9th Cir. 2004) 379 F.3d 773, 782 [no constitutionally significant distinction between MDO and SVP statutes].)
We agree with the cited authority and reject Warren’s equal protection claim.
Cruel and unusual punishment
Warren next argues that his indeterminate commitment constitutes cruel and unusual punishment. The Eighth Amendment’s cruel and unusual punishment clause prohibits those convicted of crimes from being physically punished by barbarous methods and ensures the penal measures embody concepts of dignity, humanity and decency. (Estelle v. Gamble (1976) 429 U.S. 97, 102-103; Roe v. Crawford (8th Cir. 2008) 514 F.3d 789, 799.)
The amended statute implicates neither of the two primary objectives of criminal punishment, deterrence and retribution. (People v. Robinson (1998) 63 Cal.App.4th 348, 351.) Constitutional safeguards against cruel and/or unusual punishment do not apply to civil commitment proceedings. (Chambless, supra, 74 Cal.App.4th at p. 776, fn. 2; see Carlin, supra, 150 Cal.App.4th at p. 348.) As with Warren’s ex post facto argument, his cruel and/or unusual punishment argument fails for want of a valid premise. (See People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 486-487.)
We reject Warren’s claim because he is not a prisoner, and he is not being punished. He has been committed in a civil proceeding for treatment of a mental disorder that renders him dangerous to others. While we recognize that Warren’s commitment results in a loss of freedom, the Eighth Amendment is inapplicable.
First Amendment
“The First Amendment to the United States Constitution protects the right ‘to petition the Government for a redress of grievances.’ This includes the right of access to the courts. [Citation.]” (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 162.) Warren claims that his First Amendment right to petition the courts has been infringed by the amended SVPA. His contention is without merit.
We repeat what we have stated already. Pursuant to section 6608, Warren can petition the trial court for release without anyone’s consent. He is entitled to the assistance of counsel in these proceedings. He is not prohibited from the use of expert witnesses, including the witnesses who may have been retained pursuant to section 6605. His petition is subject to dismissal only if it is based on frivolous grounds, an extremely narrow and limited basis for dismissal. Warren has the right to seek release under the provisions of the SVPA or to file a petition for writ of habeas corpus.
Warren’s First Amendment right to petition for redress of grievances is preserved under the amended SVPA.
III. Single-Subject Rule
Warren argues that Proposition 83 violates the single-subject rule of the California Constitution.
Whether or not Proposition 83 violates the single-subject rule (Cal. Const., art. II, § 8, subd. (d)), Warren’s indeterminate term remains lawful under the legislative amendment to the SVPA that took effect seven weeks before Proposition 83 took effect. (Former § 6604, amended by Stats. 2006, ch. 337, § 55, eff. Sept. 20, 2006; Prop. 83, § 27, as approved by voters, Gen. Elec. (Nov. 7, 2006) eff. Nov. 8, 2006.)
Furthermore, an initiative does not violate the single-subject requirement if “‘“‘all of its parts are “reasonably germane” to each other’”’” and to the general objective of the initiative. (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157.) Proposition 83 addressed a number of civil and criminal statutes, all related to the punishment and control of sexual predators. The proposition (1) expanded the definition of specified sex offenses; (2) increased the penalties for certain sex offenses; (3) prohibited probation for listed sex offenses; (4) eliminated custody credits for some sex offenses; (5) extended the parole period for particular sex offenses; (6) required monitoring by global positioning satellites for registered sex offenders; (7) barred registered offenders from living within 2,000 feet of a school or park; and (8) made the changes discussed here to the SVPA. (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83 (hereafter Guide).) The initiative measure was known as “The Sexual Predator Punishment and Control Act: Jessica’s Law.” (Carroll, supra, 158 Cal.App.4th at p. 509, fn. 3; Guide, text of Prop. 83, § 1, p. 127.) The stated purpose of Proposition 83 was to “‘strengthen and improve the laws that punish and control sexual offenders.’” (Bourquez, supra, 156 Cal.App.4th at p. 1282; Guide, text of Prop. 83, § 31, p. 138.) We believe that all of the component parts of Proposition 83 bear a reasonable relationship to this purpose.
Whether an initiative encompasses changes to both civil and criminal law has never been the test. As the California Supreme Court has explained, “the single-subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. [Citation.] It is enough that the various provisions are reasonably related to a common theme or purpose. [Citations.]” (Legislature v. Eu (1991) 54 Cal.3d 492, 513 [upholding Prop. 140, which combined in single measure such disparate subjects as term and budgetary limitations and pension restrictions].) In addition, the rule does not require that the collateral parts of an initiative be equivalent, for example, all civil, all criminal, all substantive, or all procedural. Nor does it mandate that the collateral parts be tied directly in application, for example, found in a single statute or applicable in a single proceeding. The only requirement is that the provisions work together to further the initiative’s stated purpose.
In Raven v. Deukmejian (1990) 52 Cal.3d 336, 347 (Raven) and Brosnahan v. Brown (1982) 32 Cal.3d 236, 247, the initiative measures challenged as violating the single-subject rule were upheld, despite widely disparate procedural and substantive provisions, where the various elements of these initiatives united to form a comprehensive criminal justice reform package with one single unifying theme. In Brosnahan, the court upheld Proposition 8, which changed evidentiary rules; placed restrictions on bail; allowed unlimited use of prior convictions for impeachment or enhancement purposes; abolished the diminished-capacity defense; created sentence enhancements for habitual criminals; allowed consideration of statements at sentencing by crime victims and their families; placed limitations on plea bargaining; restricted commitments to what was then known as the California Youth Authority; and repealed a number of provisions governing the commitment and control of mentally disordered sex offenders. The court concluded that all of these collateral parts, both civil and criminal in nature, furthered the broad purpose stated in the initiative: to protect citizens from criminal behavior. (Brosnahan, supra, at p. 247.)
Raven addressed equally sweeping changes in an attempt to nullify particular decisions of the California Supreme Court affecting various aspects of the criminal justice system. (Raven, supra, 52 Cal.3d at p. 348 [upholding Prop. 115].)
Likewise, the court in Manduley v. Superior Court (2002) 27 Cal.4th 537, 573 upheld Proposition 21 against a single-subject challenge. Proposition 21 addressed a wide variety of criminal justice subjects, including gang violence, the sentencing of repeat offenders, and juvenile crime. It covered both juvenile proceedings, which are technically not criminal proceedings, and gang-related crimes committed by adults tried in adult criminal courts. However, the court in Manduley found the unifying theme and purpose of the initiative—to address violent crime committed by juveniles and gangs—sufficiently “single” to satisfy constitutional requirements.
These initiatives, Propositions 8, 115, and 21, are no less diverse in their collateral parts than is Proposition 83.
The SVP component of Proposition 83 may be civil in nature, but it is not unrelated to the criminal justice purpose stated as the goal of the initiative. The necessary reasonable and commonsense relationship is present.
IV. PPG Test
Both at trial and in this appeal, Warren challenges the admission into evidence of the results of the PPG test. The standard of review on challenges to admission of evidence is abuse of discretion. (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) A trial court enjoys broad discretion under Evidence Code section 352 in its assessment of whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion, or undue consumption of time. The trial court’s exercise of its statutorily vested discretionary power under Evidence Code section 352 must not be disturbed on appeal unless plaintiff can show that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd way, which resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶]…[¶] (b) … the error or errors complained of resulted in a miscarriage of justice.” (Evid. Code, § 353.) In civil cases, a miscarriage of justice should be declared only when the trial court, “‘“‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”’ [Citation.]” (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) This is the same standard of review utilized for reviewing the erroneous admission of evidence in a criminal case. (See People v. Watson (1956) 46 Cal.2d 818, 836; People v. Cahill (1993) 5 Cal.4th 478, 501; People v. Breverman (1998) 19 Cal.4th 142, 173-174.)
The PPG test results were used primarily by the People to confirm a diagnosis of pedophilia. That Warren was sexually attracted to children and therefore was a pedophile was not a contested issue. Warren admitted this attraction. The issue was whether Warren was likely to reoffend. On the likelihood that Warren would reoffend, the PPG test was one of several factors that prosecution experts relied on, including the Static 99, RRASOR (Rapid Risk Assessment for Sexual Offense Recidivism), MnSOST (Minnesota Sex Offender Screening Tool), and SORAG (Sex Offender Risk Appraisal Guide) actuarial tests. Other factors included Warren’s other arrests for sexually motivated behavior, an unstable work history, that his victims included boys, his behavior while in prison, his parole violation, his prior cessation of treatment, and his current refusal to participate in treatment.
In the present case, all the medical experts testified that Warren was likely to reoffend. Although Warren admitted being a pedophile, he testified he was not likely to reoffend if he were released to his sister’s custody, lived with her in Arizona, and found a better treatment program. Other than Warren’s wishful thinking, there was no testimony or evidence indicating that Warren was not likely to reoffend.
We see no reasonable probability of a more favorable result to Warren, and thus no miscarriage of justice, even if the admission of the PPG test result was error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., KANE, J.