Filed 7/31/14 P. v. Murphy CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137906
v.
RALPH P. MURPHY,                                                     (Napa County Super. Ct.
                                                                     No. CR20399)
         Defendant and Appellant.


         Defendant Ralph P. Murphy was found after a jury trial to be a sexually violent
predator (SVP) and was civilly committed for an indeterminate term, as required by the
Sexually Violent Predator Act, Welf. & Inst. Code, § 6600 et seq. (SVPA). Defendant
challenges his commitment on a variety of grounds, including instructional error, lack of
evidentiary support, due process, and equal protection. We affirm.
                                                 BACKGROUND
         On August 1, 2011, the District Attorney of Napa County filed a petition for
defendant’s commitment as an SVP. He had been convicted in 1987 of the molestation
of three young girls and in 1994 of the molestation of another girl, all under the age of
eight.
         Prior to trial on the petition, defense counsel filed a motion in limine to allow the
jury to “consider the consequences of [a] true finding.” Although the court granted the
motion, it changed the language of what was apparently a requested jury instruction from




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“confined indefinitely” to “confined in a locked facility for treatment.”1 At the next
pretrial conference, defense counsel told the court, “I would prefer no discussion of
consequences to the compromise we arrived at” and withdrew the request. Instead,
counsel asked for the jury to be instructed with CALCRIM No. 3454, which requires the
jury to find, “It’s necessary to keep [the defendant] in custody in a secure facility to
ensure the health and safety of others.”
       At trial, two expert witnesses concluded that defendant met the criteria for an
SVP. Dr. Dawn Starr gave defendant a diagnosis of pedophilia and borderline
personality disorder. She also noted he suffered from depression and dysthymia disorder,
although these were not necessarily related to his status as an SVP. Defendant had
acknowledged to her that, despite being imprisoned for several years, he continued to
have sexual thoughts about young girls, and she believed the difficulty he had connecting
with others as a result of the personality disorder predisposed him to act on this sexual
desire. Dr. Starr applied psychiatric “actuarial tools” to estimate defendant’s risk of re-
offending. Using two different tests, she concluded he had a likelihood of 16 percent
after 5 years and 24 percent after 10 years. As she testified, this was an estimate of the
likelihood defendant would be re-arrested, rather than commit further sexual assaults; the
calculation of probabilities did not take into account unreported or undetected sexual
assaults. On this basis, Dr. Starr believed defendant was likely to engage in sexually
violent conduct, if released.
       Dr. Garrett Essres also found that defendant fit the diagnostic criteria for
pedophilia and borderline personality disorder. For reasons he explained at length, Dr.
Essres reached a similar conclusion about defendant’s likelihood of re-offending. In the
course of his testimony, Dr. Essres remarked that SVP defendants sometimes prevaricate


       1
         The motion in limine did not itself propose a jury instruction. Rather, it sought a
ruling that evidence regarding the nature of an SVP commitment would be admitted. The
record does not contain the full text of the jury instruction to which the court alluded on
the record, which appears to have been formulated during chambers discussions that were
not transcribed.

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in talking with examining psychiatrists to avoid “an indeterminate sentence to a state
hospital.”
       Soon after Dr. Essres made this comment, the jury submitted a question to the
court, asking, “Is there a time when [defendant] would be re-evaluated for community
treatment? What would be necessary for this to happen? Should we be concerned with
this or is it irrelevant?” After extensive consultation with counsel and Dr. Essres, and
with the express consent of defense counsel, the court responded, “An inmate can petition
annually for review but few petitions are successful, or on rare occasions the Department
of Mental Health may deem the person able to return to the community.” Although court
and counsel discussed referring to an “indeterminate commitment,” that phrase was not
included in the response.
       An expert for the defense, Dr. John Podboy, disagreed with the two prosecution
experts, testifying that he had ruled out diagnoses of borderline personality disorder and
pedophilia, although he agreed defendant suffered from dysthymia, or mild, chronic
depression. Dr. Podboy explained to the jury the controversial nature and weaknesses of
the psychological instruments used by the prosecution experts to estimate the likelihood
of future sexually violent conduct.
       The jury found the petition to be true, and defendant was committed to the
Department of Mental Health for an indeterminate term.
                                       DISCUSSION
       “Under the SVPA, the state can civilly commit individuals found to be SVPs after
they conclude their prison terms. [Citation.] Section 6600, subdivision (a)(1) defines the
SVP 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.’ ” (Reilly v. Superior Court (2013) 57 Cal.4th 641, 646.)
“After a petition for commitment has been filed in the superior court, . . . ‘[t]he superior
court first holds a hearing to determine whether there is “probable cause” to believe that
the person named in the petition is likely to engage in sexually violent predatory criminal


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behavior upon release. . . . [I]f the court finds probable cause within the meaning of this
section, the court orders a trial to determine whether the person is an SVP under section
6600.’ [Citation.] Though civil in nature, this trial contains a number of procedural
safeguards commonly associated with criminal trials, including the alleged SVP’s right to
a jury trial [citation], to assistance of counsel (ibid.), and to a unanimous jury finding that
he or she is an SVP beyond a reasonable doubt before he or she may be committed
[citation].” (Id. at p. 648.)
       A. Indefinite Commitment Instruction
       Defendant first contends he was entitled to “a complete instruction beyond what
was given, informing the jury that a true finding would result in his indefinite
commitment and the rigid parameters limiting any future judicial review of his
confinement.”2
       We decline to address the merits of defendant’s argument because the failure to
give the instruction he seeks was rendered harmless “under any standard” by the trial
court’s response to the jury’s question. (People v. Cowan (2010) 50 Cal.4th 401, 499.)
In essence, defendant contends the jury was entitled to an instruction informing them
that, once found to be an SVP, he faced an indefinite term and difficult procedural
hurdles in ever gaining his release from confinement. The trial court’s response to the
jury’s question provided just that information. While the court did not use the word
“indefinite” and did not describe the precise procedural means for gaining release in
detail, the court told the jury release was unlikely, since “few petitions are successful”
and voluntary release by the state was “rare.” Particularly following Dr. Essres’s express
reference to an “indeterminate sentence,” this provided the jury with the information
sought by defendant.


       2
        Our analysis of this argument is hampered because defendant has not attempted
to formulate the precise language of the instruction he contends the court had a sua
sponte obligation to deliver, and there is no record of the instruction that defense trial
counsel proposed, if in fact, any was proposed. As a result, we have only a general and
imprecise description of the instruction for which defendant advocates.

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       Defendant argues that the court’s response was “accurate but incomplete,” giving
a “false view” of the commitment system because it did not disclose that a true finding
was “likely to amount to lifetime incarceration.” On the contrary, the court’s instruction
conveyed the low likelihood more forcefully than the type of technical instruction now
sought by defendant. In combination with Dr. Essres’s disclosure of an indefinite
commitment, the court told the jury that “few” petitions for release are successful and
grants of release were “rare.” The only conclusion to be drawn from this information is
that it is difficult for a person found to be an SVP to gain release, which implies the
probability of a long commitment. Given the jury’s evident interest in the issue, Dr.
Essres’s reference to an indefinite term, and the court’s instruction that relief from
commitment is uncommon, there is no reason to believe the jury’s judgment would have
been different had an instruction been given that expressly referred to an indefinite term
and described in more detail the procedural aspects of relief from commitment.
       B. Sufficiency of the Evidence
       Under section 6600, subdivision (a)(1), the prosecution was required to prove
beyond a reasonable doubt that defendant suffered from “a diagnosed mental disorder
that makes [him] a danger to the health and safety of others in that it is likely that he . . .
will engage in sexually violent criminal behavior.” A “diagnosed mental disorder” is
defined to include “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).)
       Defendant appears to concede that the two mental disorders identified by Drs.
Starr and Essres, pedophilia and borderline personality disorder, qualify as “mental
disorders” for purposes of section 6600, subdivisions (a) and (c). He contends, however,
that the evidence was insufficient to demonstrate that he suffered from those disorders
because the two experts improperly applied the criteria for their diagnosis in the
Diagnostic and Statistical Manual of Mental Disorders (DMS), the handbook used by
mental health professionals to define and categorize mental disorders.


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       We apply the same evidentiary standard of review used in the review of criminal
convictions. (People v. Carlin (2007) 150 Cal.App.4th 322, 333.) That is, we
“ ‘ “ ‘examine the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—evidence that is reasonable, credible and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” ’ ” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1182–1183.)
Whether defendant suffers from a mental disorder is a matter for expert determination in
the first instance. Two qualified expert witnesses agreed that defendant fit the criteria for
these diagnoses and explained their reasoning, and defense counsel was able to cross-
examine them about the DSM and the basis for their opinions. Defendant also introduced
testimony by a similarly qualified expert who criticized these diagnoses. It was for the
jury to resolve the conflicts in this evidence. (People v. Mercer (1999) 70 Cal.App.4th
463, 466–467.)
       For purposes of appellate review, the opinions of the two experts that defendant
suffered from a qualifying mental disorder as defined in the DSM, supported by the facts
to which they testified, constituted substantial evidence of the fact of a disorder. (Chavez
v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1309–1310, fn. 9 [properly supported expert
opinion can constitute substantial evidence].) The standard of review does not permit us
to substitute our independent reading of the requirements of the DSM for that of the
experts, as defendant urges us to do.
       C. Availability of Effective Treatment
       Defendant points out that if an SVP suffers from a mental disorder that is
untreatable, he or she might be civilly confined for life. He contends such confinement
works a denial of due process “[i]f the state has nothing to offer in the way of meaningful
treatment” that provides the prospect of future release.
       The United States Supreme Court has held that the state can, consistent with due
process, confine “those who suffer from a volitional impairment rendering them
dangerous beyond their control.” (Kansas v. Hendricks (1997) 521 U.S. 346, 358
(Hendricks).) Our Supreme Court has followed that ruling and confirmed that the


                                              6
provisions of the SVPA comply with its strictures. (Hubbart v. Superior Court (1999) 19
Cal.4th 1138, 1158.) In effect, these cases hold, society has the right to protect its
members from the conduct of persons who are dangerous beyond their control through
civil confinement. Neither Hendricks nor Hubbart premised its ruling on a defined term
of civil confinement; uncontrollably dangerous persons can be confined for as long as
they are dangerous. As Hubbart holds, the due process clause is not violated because the
mental disorder leading to such dangerousness proves not to be amenable to treatment.
(Hubbart, at p. 1167.)
       Defendant relies almost exclusively on People v. Feagley (1975) 14 Cal.3d 338
(Feagley), to support his claim, but Feagley does not hold that indefinite confinement of
untreatable SVP’s violates due process. Rather, it holds that confinement of such persons
for an indefinite period “in a prison setting” is unconstitutional. (Id. at pp. 342, 376.)
One of the grounds for this holding was the court’s conclusion that the state prison
system in 1975 provided no realistic opportunity for the treatment of such persons. (Id. at
pp. 342, 371.) As defendant acknowledges, the SVPA, which did not exist at the time of
Feagley, requires that confined persons be provided treatment (§ 6606, subd. (a)), and
SVP’s are no longer confined within prisons. (See Hubbart, supra, 19 Cal.4th at pp.
1167–1168, fn. 29.)
       The SVPA recognizes that SVP’s will not necessarily suffer from disorders that
can be effectively treated, noting that it is not necessary as a precondition for
confinement for a person to have a mental disorder that is amenable to treatment.
(§ 6606, subd. (b); see also People v. Hurtado (2002) 28 Cal.4th 1179, 1192 [“[a]lthough
treatment is a secondary objective [citation], a defendant likely to commit future
predatory acts can be committed even if his condition is not amenable to treatment”].)
Contrary to defendant’s claim, this does not conflict with the SVPA’s requirement of
treatment. It simply recognizes that while treatment is the goal, the right of society to




                                              7
confine such persons is not dependent upon their amenability to treatment. (Hubbart,
supra, 19 Cal.4th at p. 1167.)3
       D. Vagueness of “Likely” to Engage in Future Conduct
       Defendant contends the definition of “likely” in the phrase, “likely [to] engage in
sexually violent criminal behavior” is unconstitutionally vague because it does not
provide a clear threshold for the risk of future violent conduct.
       The definition provided by the trial court to the jury was formulated by our
Supreme Court in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888 (Ghilotti),
after an extended discussion of some of the issues raised by defendant. (Id. at pp. 918–
923.) Defendant criticizes the conclusions reached in Ghilotti, but as a lower court we
are not permitted the same liberty. We are bound, as was the trial court, to apply the
definition of “likely” formulated by the Supreme Court in Ghilotti.
       E. Equal Protection and Ex Post Facto
       Defendant contends the indefinite commitment provisions of the SPVA deny him
equal protection and constitute an ex post facto law. As he acknowledges, the issues he
raises were resolved against him in People v. McKee (2010) 47 Cal.4th 1172 (McKee I)
and People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II). While he argues McKee
II was wrongly decided, we have reviewed its rationale and find no reason to differ with
McKee II. We note that the Supreme Court, which remanded with specific directions for
further proceedings in McKee I (at pp. 1210–1211), declined to review the subsequent
decision in McKee II. (People v. McKee (Oct. 10, 2012, S204503).)
       Defendant does raise an issue not discussed in McKee I and McKee II, comparing
his circumstances for equal protection purposes to those of a prisoner sentenced to a life
term and arguing the regularity of parole review and the personal attention provided by
that system allow more opportunity for release to life term prisoners. We find the two
situations sufficiently different as to preclude a finding they are “similarly situated.”

       3
         In connection with this argument, defendant has requested that we take judicial
notice of a purported description of State sex offender treatment programs. In light of our
resolution of the argument, we deny the request.

                                              8
(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [equal protection applies only to
groups that are similarly situated for purposes of the challenged law].) In any event, it is
by no means clear that the right to parole, which adheres only after a considerable length
of imprisonment, provides more opportunity for release and more personal attention than
the options afforded SVP’s, and there is no evidence in the record to support such an
argument.
                                      DISPOSITION
       The order of commitment is affirmed.




                                                  ______________________
                                                   Becton, J.*


We concur:


______________________
 Margulies, Acting P.J.

______________________
 Banke, J.




* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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