Filed 7/24/15 P. v. Flores CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                     G048772

                   v.                                              (Super. Ct. No. M-9328)

JESSE FLORES,                                                      OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, John L.
Flynn, Judge. Affirmed.
                   Ron Boyer, under appointment by the Court of Appeal, for Defendant and
Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
                                              *              *               *
              Jesse Flores was committed for an indeterminate term to the Department of
State Hospitals (DSH; formerly the Department of Mental Health or DMH) after a jury
determined he was a sexually violent predator (SVP) within the meaning of the Sexually
Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.; all statutory citations
are to this code unless otherwise noted.) Flores raises evidentiary, instructional, and
constitutional arguments seeking to reverse the commitment order. We affirm.
                                              I
                        FACTUAL AND PROCEDURAL BACKGROUND
              In June 2001, the Orange County District Attorney petitioned to commit
Jesse Flores under the SVPA. In June 2011, the court found probable cause to believe
Flores was likely to engage in sexually violent, predatory behavior if released (§ 6602)
and set the matter for trial. At trial in 2013, witness testimony detailed Flores’s sexually
violent offenses, psychologists Christopher Matosich and Dawn Starr testified about their
respective SVP evaluations, the district attorney called Flores to testify as an adverse
witness, and Flores presented expert and percipient witness testimony on his own behalf
to demonstrate he was not an SVP.
A.   Trial Testimony Concerning Prior Sex Offenses
              Cindy C. testified she and a friend, Yvonne, were walking to a friend’s
house in Downey on an evening in November 1976. Both women were 18 years old.
Flores pulled up in his truck and persuaded them to accept a ride. Once inside, he
claimed he had to expose himself to 20 girls to get into a fraternity and had five more to
go. Yvonne managed to get out of the truck, but Flores grabbed Cindy by the throat and
threatened to kill her unless Yvonne got back inside. He took their driver licenses and
told them he was memorizing their addresses and would kill them if they told anyone
what happened. He ordered both girls to remove their tops, threatened to kill them, and
pulled his zipper down to expose his penis. He made the girls kiss each other and suck
the other’s nipples. He told Cindy to grab his erect penis. Flores laughed when Cindy

                                              2
pleaded with him not to rape her because she was a virgin. Cindy told him God would
judge him harshly and asked Flores if he was familiar with a popular Christian counselor
she identified. Flores’s demeanor changed when she mentioned the counselor’s name.
He “looked like a ghost” and admitted he knew the counselor because he had helped
Flores after he committed an act similar to his conduct with Cindy and Yvonne. Cindy
told Flores he needed help and he should meet her at church on Sunday and they could
pray with the counselor. Flores, who identified himself as Jesse Scott, admitted “there’s
something wrong with me.”
             Donna P. testified she returned to her Huntington Beach apartment after
work in March 1978. She was 22 years old at the time. Flores, a stranger, was waiting in
the carport. He approached Donna’s car, and prevented her from leaving her car by
grabbing her throat. He unbuttoned her blouse and touched her breasts. Donna asked
him to explain why he wanted to rape her because she had never done anything to him.
She argued there was no reason to rape her because he was a good looking man and could
have a girlfriend. Flores replied he would not go through with his planned rape, but
asked her to promise not to prosecute him. He demanded her driver’s license and wrote
down her information. She reported the attack, and Flores was convicted of assault with
intent to commit rape. While the case was pending, Flores followed her after a court
appearance. He and his parents offered Donna money and a car to drop the charges.
             Mary M. testified she was a 22-year-old student attending a Huntington
Beach community college on an evening in May 1978 when she felt ill and went into the
restroom. Flores followed her into the restroom, turned off the lights, and grabbed her
when she opened the stall door. He pushed her back into the stall, put his hand on her
mouth, warned her he had a knife and ordered her to be quiet. He groped her chest and
crotch and forced her to take her pants down. He unzipped his pants and tried to have
intercourse with her. She said it was not going to work, and he replied “‘well, make it
work.’” She turned around and he penetrated her vagina from behind. He asked her if

                                            3
she “had fantasies about this type of thing.” He finished, pulled up his pants, and
demanded money, and became angry when she told him she did not have any. He
searched her purse and departed, telling her not to leave.
              Laura C. testified she was 16 years old when Flores attempted to sexually
assault her in Long Beach on an evening in November 1981. Flores ran up behind her,
grabbed her in a choke hold, put his hand over her mouth, and threw her to the ground.
She yelled “rape,” and a man responded to chase Flores away.
              Meredith E. testified Flores sexually assaulted her in April 1986 when she
was 15 years old. She was watching television while babysitting the children of Flores’s
brother when Flores forced her to take her clothes off, put his finger in her vagina, raped
her, and put his tongue or mouth on her vagina.
B.   SVP Evaluator Testimony
              Psychologist Christopher Matosich contracted with the DSH to perform
independent SVP evaluations. He evaluated Flores in March 2012 and again in April
2013 using a standardized assessment protocol. The records Matosich reviewed contained
the following: Flores suffered seven convictions for sexually violent criminal acts
between 1975 and 1986 that qualified as SVP offenses. In September 1975, Flores
approached two 13-year-old girls, Gale and Becky, displayed a knife, drove them to
another location, and made them disrobe and fondle each other, guiding their hands.
Flores took off his pants and inserted his fingers into Gale’s vagina. Matosich noted the
incident involving Cindy and Yvonne occurred while Flores was on probation and
resulted in convictions for false imprisonment and commitment to Patton State Hospital
(Patton) as a mentally disordered sex offender (MDSO).
              Flores was released from Patton in November 1977. In March 1978, he
assaulted Donna and in May 1978, Flores raped Mary. Flores received a five-year prison
sentence for these offenses in August 1978 and obtained his release on parole in
September 1981.

                                             4
              In April 1986, Flores forcibly orally copulated, sexually penetrated, and
raped 15-year-old Meredith. He was convicted in November 1986 and in custody for
these offenses at the time the SVP petition was filed.
              In addition to these convictions, Matosich relied on other incidents in
forming his opinions, including the 1975 sexual assaults on Gale and Becky, the
November 1981 attempted rape incident involving Laura, which resulted in a parole
violation and commitment to Atascadero State Hospital (Atascadero) in January 1982.
Flores obtained his release from Atascadero in May 1982.
              Additional records revealed in 1973, while stationed in Oklahoma with the
military, Flores exposed himself to three eight-year-old girls. In December 1975, while
masturbating in his car, Flores raised up his pelvis so a girl named Carol could see his
penis and testicles. Flores followed Carol and her two female friends, and parked in front
of them so they could observe him masturbate. In June 1976, Flores suffered a
conviction for annoying or molesting a child and was placed on probation.
              Matosich also noted records reflected Flores admitted he began exposing
himself in school when he was 12 years old, and suffered his first arrest while in the
military at age 19 or 20. He committed a store burglary in 1983 and failed to register as a
sex offender on at least two occasions. His work history was infrequent and his longest
period of employment ended when he was fired after six months for stealing.
              Matosich testified Flores met the statutory criteria of a sexually violent
predator. Matosich defined a SVP as a person suffering from a mental disorder that
predisposes the person to commit sexually violent hands-on offenses against strangers or
casual acquaintances. Matosich found that Flores met this definition, concluding that he
currently suffered from several mental disorders, including paraphilia not otherwise
specified (NOS), exhibitionism, voyeurism, and Axis II antisocial personality disorder
characterized by aggression, irritability, impulsivity, and lack of empathy. Flores also



                                             5
suffered from bipolar disorder, which in its manic phase might involve hypersexuality,
but this affliction was currently in full remission because of medications and treatment.
              Matosich explained most persons who rape do not have a paraphilia, but
Flores’s persistent preoccupation with deviant sexual behavior, fantasies, and urges
despite incarceration and treatment supported the diagnosis. Matosich observed a
“general rapist[], rape[s] for sex. It’s focused, it’s typically quick, and they move on. [¶]
Individuals with paraphilia, specifically [] Flores, [had] a coercive type disorder. He’s
talking to the victim” and in one incident asked about her fantasies. He displayed “very
specific attempts to personalize or continue the relationship” and to establish “future
contact through a courtship-type of disorder process.” He also had “a pattern of behavior
of stalking or following” not seen with a general rapist. Matosich found significant that
Flores’s early onset of sexually deviant behavior had progressed to more diversified and
serious “hands-on” sexually violent behavior over time.
              Matosich concluded Flores’s disorders were not curable and may have both
a biological and environmental origin. Flores’s mental disorders impaired his volitional
control, predisposing him to commit criminal sexual acts that made him a menace to the
health and safety of others. Matosich believed Flores would likely engage in sexually
violent predatory behavior unless he received appropriate treatment while in custody.
              Flores denied he had a sexual disorder when Matosich interviewed him,
explaining at the time of each incident his life “was falling apart in some regard.” He
also claimed he had a very abusive mother and received a late diagnosis of bipolar
disorder. Matosich viewed this as Flores’s attempt to avoid personal responsibility and to
portray himself as a victim, which suggested Flores would not voluntarily follow up with
treatment for his disorders.
              Matosich testified Flores did not respond to treatment during his
hospitalization at Atascadero between 2001 and 2008, but records from his
hospitalization at Coalinga State Hospital (Coalinga), which began in 2008, reflected he

                                              6
actively participated in the treatment program over the previous two years and was
making significant progress. Matosich noted Flores engaged in 12 aggressive incidents at
Atascadero and one at Coalinga that demonstrated the severity and persistency of his
antisocial personality disorder, but Flores displayed no verbal or physical aggression in
the last 18 months, and there had been a decrease in his impulsivity. Flores had no
sexually aggressive incidents since 1986.
              Matosich performed the Static-99 sexual recidivism risk assessment. The
Static-99 uses various factors related to the offender, his crimes, and his victims to
determine the risk of committing another sexual offense. The assessment is regarded as a
moderate predictor of sexual recidivism and may underestimate the actual risk. Based on
Flores’s score of eight and other relevant factors, including prior MDSO commitments,
Matosich placed him in the high-risk and high-treatment category for sexual recidivism,
measuring his risk at 4.96 times higher than the typical sexual offender. Matosich
explained Flores had “intimacy deficits,” meaning there was no indication he had ever
been in a significant romantic relationship, which increased the risk of sexual recidivism.
He also had a life-long pattern of disregarding the welfare of others. Research
demonstrated “the presence of antisocial personality disorder with sexual deviancy
increases the risk of sexual recidivism.” Based on Flores’s history, Matosich believed
Flores would commit predatory sexual offenses again.
              Although Flores’s future plan included community-based treatment,
Matosich did not believe Flores would follow through with treatment in an outpatient
setting because he lacked sufficient volitional control to consistently participate in any
program. Even in the controlled setting of a state hospital, Flores only recently had
begun to accept treatment. Matosich also diagnosed Flores with malingering, which
involves the faking or exaggerating certain symptoms to obtain an advantage, such as
better housing.



                                              7
              Psychologist Dawn Starr also contracted with the DSH to perform
independent SVP evaluations. She evaluated Flores initially in 2001 and interviewed him
on five occasions, the last time in March 2013. She diagnosed Flores with paraphilia
NOS and personality disorder NOS, which are mental disorders featuring volitional and
emotional impairment. She also gave him a clinical diagnosis of voyeurism,
exhibitionism, and noted he had been diagnosed with bipolar disorder and attention
deficit disorder. Persons with his type of antisocial personality disorder tend to have a
higher level of sexual interest and behaviors than others. Flores manifested other features
of the disorder, including impulsiveness, irresponsibility, and a reckless disregard for the
safety of others. He had an “inadequate” or “dependent” personality and had “not been
able to function on his own very well when he” was “out in the community” and “had to
rely on other people for subsistence . . . .”
              Starr defined paraphilia NOS as “sexually arousing urges, fantasies, or
behaviors” occurring over a period of at least six months toward “non-consenting sex or
other kinds of deviant sexual interests that don’t meet [] specified categories.” Less than
one percent of all rapists suffer from paraphilia NOS. Flores’s history reflected he had
“serious difficulty controlling his desire for non-consensual sex,” and believed “the
specific fact that the victims are not consenting is what arouses him.” She noted Flores
had made statements in the past acknowledging there was something wrong with him, but
he could not control his misbehavior even though he knew what he was doing was wrong.
Starr opined given “the totality of his history,” Flores was “likely to commit future
sexually violent predatory offenses without appropriate treatment in custody.” Starr also
found Flores scored an eight on the Static-99R, placing him in the high-risk category of
offenders.
              Starr stated Flores appeared to be making good progress in his treatment, he
had better insight into his triggers and responses, and she was impressed with his release
and relapse plan, which she described as comprehensive. She believed he would be ready

                                                8
for release at some point in the future, but he had not had an opportunity to practice what
he had learned outside a secure facility, and he occasionally reacted emotionally in ways
that were “not consistent with good coping skills that in the past predisposed him to
commit sexual offenses.”
C.   Flores’s Testimony
              The government called Flores as an adverse witness during its case-in-chief
(Evid. Code, § 776). Flores described his prior sex offenses, both charged and
uncharged, beginning at age 12 with exhibitionism. He claimed to have forgotten
significant details about several of the incidents, but accepted as true the facts recounted
in the police reports. He generally claimed the incidents occurred on the “spur of the
moment,” denied fantasizing about the sexual acts in advance, explaining he was
“curious,” interested in “the sexual aspect of it,” and experienced “some arousal” during
the assaults. Flores stated he dated, had girlfriends, and had the ability to seek consensual
sex, but acknowledged the nonconsensual aspects of the incidents did not detract from his
sexual excitement.
              Flores admitted he made profane and derogatory comments to staff and had
physical altercations with other patients at Atascadero from 2001 to 2007 and initially
during his commitment to Coalinga in 2008. He also conceded he had been fired from
previous jobs for theft and aggressive behavior, and had been terminated from several
community college programs. Flores recently had completed phase three of a five phase
treatment plan, acknowledged it was “important to have a good relapse prevention plan,”
but claimed he did not need treatment in a secure facility like Coalinga anymore. Flores
denied ever having a sexual deviancy, explaining the rapes were “opportunistic” and he
simply made several “bad choices.” Flores asserted he would not reoffend because he
had learned how to emphathize with sexual assault victims. But he previously claimed to
have learned about his victims’ feelings from his treatment, and nonetheless reoffended.



                                              9
               Flores testified the treatment he received at Coalinga was far more
structured and “sex offender specific” than his treatment at Patton and Atascadero. He
previously had provided false psychiatric symptoms to obtain safer housing in prison. He
voluntarily participated in sex-offender treatment at Coalinga even though other patients
made threats of bodily harm to prevent him from attending. He also attended and
participated in other voluntary programs at Coalinga, including one where he comforted
dying patients in the hospital wing. The remaining phases of his treatment program
concerned preparation for release (phase four) and release (phase five) from commitment.
               Flores presented the testimony of Dr. Allen Frances, a retired psychiatrist
and chairperson of the task force that produced the fourth revision of the Diagnostic and
Statistical Manual of Mental Disorders. Frances criticized Matosich and Starr for
diagnosing Flores with paraphilia NOS, explaining “NOS diagnoses don’t belong in
courtrooms because they can’t be trusted, they are unreliable.”
               Dr. Brian Abbott, a licensed psychologist and clinical social worker,
evaluated Flores and concluded he did not meet the criteria of a SVP or a personality
disorder NOS, and never suffered from a paraphilic disorder.
               Several social workers, psychiatric technicians, other hospital workers, and
a Jewish chaplain at Coalinga testified about Flores’s progress in dealing with his mental
disorders and the insight he demonstrated into the causes of his offenses. The witnesses
also testified about his improvement in responding to treatment and described his
cooperative and helpful demeanor while coping with the pressure of the hospital
environment.
                                             II
                                        DISCUSSION
A.   Substantial Evidence Flores Suffered from a Current Mental Disorder
               The SVPA provides for indefinite involuntary civil commitment of persons
who meet specified criteria following the completion of their prison terms. (People v.

                                             10
McKee (2010) 47 Cal.4th 1172, 1186-1187 (McKee I).) Section 6600, subdivision (a)(1),
defines a sexually violent predator 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.” To establish a person is an SVP,
the government must prove the following: (1) the offender has been convicted of a
qualifying sexually violent offense against at least two victims; (2) the offender has a
diagnosed mental disorder; (3) the disorder makes it likely the offender would engage in
sexually violent conduct if released; and (4) this sexually violent conduct will be
predatory in nature. (People v. Roberge (2003) 29 Cal.4th 979, 984-985 (Roberge);
Cooley v. Superior Court (2002) 29 Cal.4th 228, 243 & 246, fn. 9; People v. Hurtado
(2002) 28 Cal.4th 1179, 1189.) The government must establish these elements beyond a
reasonable doubt and the jury must unanimously agree before finding the defendant is a
SVP. (Reilly v. Superior Court (2013) 57 Cal.4th 641, 648.)
              “When considering a challenge to the sufficiency of the evidence . . . we
review the entire record in the light most favorable to the judgment to determine whether
it contains . . . evidence that is reasonable, credible, and of solid value – from which a
reasonable trier of fact could find the defendant [qualified as an SVP] beyond a
reasonable doubt.” (People v. Lindberg (2008) 45 Cal.4th 1, 27; People v. Fulcher
(2006) 136 Cal.App.4th 41, 52; see Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
Reversal of the judgment is not warranted even though the evidence might support a
contrary finding (People v. Bolin (1998) 18 Cal.4th 297, 331) and we may not reverse
“‘unless it appears “that upon no hypothesis whatever is there sufficient evidence to
support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
              Flores first contends insufficient evidence supported the jury’s finding he
had a diagnosed mental disorder. He asserts the deputy district attorney presented no
“recent objective evidence” of a current mental disorder. Flores cites the absence of

                                              11
evidence he engaged in sexually inappropriate behavior while in custody. For example,
there was no evidence he made sexually inappropriate remarks, fantasized about his prior
crimes, engaged in sexual misconduct, or stalked staff.
              Flores relies on People v. Buffington (1999) 74 Cal.App.4th 1149
(Buffington), which rejected an SVP’s claim he was denied equal protection of the law
compared to other persons involuntarily committed (Pen. Code, § 2962 et seq. [Mentally
Disordered Offenders]; § 5000 et seq. [Lanterman–Petris–Short (LPS) Act]). The SVP
argued the “evidentiary requirements for determining who is suffering from a mental
disorder and who is likely to reoffend . . . are lower than other civil commitment
schemes,” namely “the SVPA does not require ‘any recent objective basis for a finding
that an inmate is likely to reoffend.’” (Id. at p. 1159.) Buffington upheld the
constitutionality of the SVPA in part by determining any equal protection requirement
was satisfied by the administrative and judicial proceedings for screening and evaluation
of SVP’s, including professional assessments of the diagnoses and risk factors, which
must satisfy the required criteria for SVP commitment beyond a reasonable doubt. (Id. at
p. 1160.) Buffington concluded the provisions of the SVPA require “‘recent objective
indicia of the defendant’s condition’ and a ‘recent objective basis for a finding that an
inmate is likely to reoffend.’” (Id. at p. 1161.) Here, the testimony of Matosich and Starr
established the recent objective indicia of Flores’s condition and the likelihood he would
reoffend. Nothing in Buffington or section 6600 requires evidence a person has acted out
sexually in custody while awaiting trial per the SVPA.
              Flores notes his most recent sexually violent act occurred 27 years before
his SVP trial. He asserts that “courts have held that the evidence should at a minimum be
from within the last one or two years.” The cases he relies on are inapposite. In Peters v.
Superior Court (2000) 79 Cal.App.4th 845, the issue was whether a petition to extend
commitment under the former SVPA required a new petition supported by two current
mental health evaluations. The court rejected the government’s position the original

                                             12
evaluations could “do double duty by supporting both the initial and recommitment
petitions. . . . . There is no evidence that either of the authors of the 1996 reports has seen
or examined Peters since 1996. Nor is there anything in the record to suggest that the
authors of these reports intended that the reports be used in the recommitment process.
Finally, the use of potentially stale reports subverts the manifest intent of the SVPA—the
state must prove that the party suffers from a currently diagnosed mental disorder which
predisposes him to engage in sexually violent criminal behavior.” (Id. at p. 850.)
              Flores’s reliance on several cases is misplaced. In People v. Munoz (2005)
129 Cal.App.4th 421, the appellate court held the trial court erred by allowing evidence
and argument concerning the defendant’s two prior SVP commitments because this was
irrelevant and tended to place the burden of proof on the defendant to prove he was no
longer an SVP. (Id. at p. 432 [“it is necessary that nothing be done that suggests to the
jury that its task is to compare the defendant’s present mental status with an earlier
finding that he or she is an SVP. As we have noted each SVP hearing addresses the
defendant’s current mental state. Nothing must be done to suggest the defendant is
required to prove he is no longer an SVP or to effectively lessen the state’s burden by
establishing a datum of mental disorder and dangerousness”].)
              In Conservatorship of Hofferber (1980) 28 Cal.3d 161, the court held the
state could confine incompetent criminal defendants under the LPS statute if by reason of
a mental disease, defect, or disorder the person represented a substantial danger of
physical harm to others. The court reversed for several reasons, one of which was that
“Even if [the defendant] had a dangerous mental condition in 1974 the passage of time by
itself [the opinion was filed in 1980] diminishes the validity of an assumption that his
dangerousness continues unabated.” (Id. at p. 177 [court also noted the defendant
“already had been confined in a hospital for the three-year treatment period [and]
[p]sychiatric impressions gained during such a period of observation obviously are



                                              13
relevant and important means of determining whether a person once violent remains
so”].)
              Nothing in these cases suggests recent sexual behavior is necessary to
sustain an SVP finding. Here, as described above, psychologists Matosich and Starr
considered Flores’s conduct in the state hospital in concluding that Flores currently
suffered from a mental disorder that qualified him as a SVP. Their testimony, as
described in detail above, constitutes substantial evidence Flores currently suffered from
a qualifying mental disorder. (See Kansas v. Crane (2001) 534 U.S. 407, 414-415,
quoting Abel & Rouleau, Male Sex Offenders, in Handbook of Outpatient Treatment of
Adults: Nonpsychotic Mental Disorders 271 (M. Thase, B. Edelstein, & M. Hersen eds.
1990) [“sex offenders’ ‘compulsive, repetitive, driven behavior . . . appears to fit the
criteria of an emotional or psychiatric illness’”].)
              Flores notes the psychologists testified paraphilias are chronic conditions
characterized by current, intense, sexually arousing urges, fantasies or behaviors
occurring over six months. Because he did not manifest these behaviors, Flores argues
“the only reasonable conclusion is that [Flores] does not suffer from that condition.” We
are not persuaded. The argument does not take into account other possibilities. For
example, the jury reasonably could conclude Flores kept his behaviors in check because
of the close supervision and treatment he received while confined in the state hospital.
B.   Substantial Evidence Flores Likely to Reoffend
              Flores also argues there was insufficient evidence he would engage in
predatory sexually violent conduct if released. (See Roberge, supra, 29 Cal.4th at p. 988
[“‘likely [to] engage in sexually violent criminal behavior’” means the person “poses a
substantial danger, that is, a serious and well-founded risk, of committing” such crimes if
released from custody]; see also Cooley, supra, 29 Cal.4th at p. 256 [amenability to
voluntary treatment is relevant to the ultimate determination whether the person is likely
to engage in sexually violent predatory crimes if released from custody]; People v.

                                              14
Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 927.) He challenges the reliability of
the assessment tools Matosich and Starr used to support their opinions. He cites
Matosich’s and Starr’s testimony the Static-99R is a “‘moderate predictor of sexual
recidivism’” and argues “moderate accuracy is not one that meets the objective standard
described by the term ‘well-founded.’”
              Penal Code section 290.04 requires SVP evaluators to use the Static-99 test,
which is an actuarial instrument that allows an evaluator to place sexual offenders in
different risk categories based on various factors such as age, marital status, the number
of prior offenses, and the offender’s relationship to the victims. (People v. Paniagua
(2012) 209 Cal.App.4th 499, 504, fn. 5.) Matosich explained the Static-99 assessment
has shown good to moderate reliability over time, but it underestimated the risk posed by
a SVP.
              Here both Matosich and Starr placed Flores in the high-risk and high
treatment category. Matosich concluded Flores’s disorders were not curable, they
impaired his volition, predisposed him to commit sexual acts that made him a menace to
others, and he likely would “engage in sexually violent predatory behavior without
appropriate treatment and custody.” Matosich noted Flores’s antisocial personality
disorder increased the risk he would reoffend, and Flores’s failure to acknowledge he had
a sexual disorder demonstrated a lack of personal responsibility and suggested Flores
would not follow-up with postrelease treatment for his disorders. Matosich also asserted
Flores lacked the self-discipline to participate consistently in a treatment program,
pointing out Flores did not respond to sex offender treatment at Atascadero between 2001
and 2008, and only recently had begun to accept treatment in the controlled setting of a
state hospital. Starr testified in a similar fashion. Based on Flores’s history, Starr
concluded he was “likely to commit future sexually violent predatory offenses without
appropriate treatment in custody.”



                                             15
              Flores lacked a structured postrelease plan to keep him on track and deter
any tendency to reoffend. Flores based his postrelease plans on a move to Oregon, but he
admitted he knew no one there, did not have a job or residence waiting for him, and he
had not been accepted into a sex offender treatment program. Based on Matosich’s and
Flores’s testimony, the jury reasonably could conclude Flores lacked insight into his
mental disorders and the motivation to treat them, which supported the conclusion Flores
was likely to reoffend if given a chance.
              In sum, Flores’s repeated acts of predatory sexual violence since 1975,
checked only while he was either incarcerated or in a state hospital, and expert testimony
he was likely to reoffend, provided ample evidence to conclude Flores was likely to
engage in predatory sexually violent behavior if released.
C.   Statutory Standard of Dangerousness Not Void for Vagueness
              Flores asserts the SVPA is unconstitutionally vague because its standard of
dangerousness, defined as whether the offender is “likely [to] engage in sexually violent
criminal behavior,” fails to conform to the notice requirements of the Fourteenth
Amendment’s due process clause. The California Supreme Court, however, has
interpreted section 6601’s phrase “likely to engage in acts of sexual violence” to mean
“the person presents a substantial danger, that is, a serious and well-founded risk” of
reoffending. (See Ghilotti, supra, 27 Cal.4th at p. 922; Cooley, supra, 29 Cal.4th at pp.
255-258; Roberge, supra, 29 Cal.4th at pp. 987-988.) He faults the Supreme Court’s
failure to adopt a “clear, quantitative delineation of the applicable legal standard,” such as
that used in some other states with similar SVP statutes. (See Ghilotti, supra, at p. 923,
fn. 14 [citing other state standards including “‘highly probable’” “‘having a better chance
of existing or occurring than not’” “‘a substantial likelihood, at least more likely than
not’” “‘highly likely’”].) We reject Flores’s claim the Supreme Court’s articulation of
the standard is constitutionally suspect. (In re Marquez (2003) 30 Cal.4th 14, 20 [courts
required to interpret a statute consistent with applicable constitutional provisions seeking

                                             16
to harmonize statute and constitution].) The term “likely” has been approved in statutes
that are substantially similar to the SVPA, such as the Kansas sex offender statute
reviewed in Kansas v. Hendricks (1997) 521 U.S. 346.
D.   Sua Sponte Duty to Instruct That “Likely” to Engage in Acts of Sexual Violence
Meant “Much More Than the Mere Possibility” Flores Would Reoffend
              Flores asserts the trial court erred in failing to instruct the jury sua sponte
that “likely” to engage in acts of sexual violence “connotes much more than the mere
possibility that the person will reoffend.” (See Ghilotti, supra, 27 Cal.4th at p. 922.)
              “‘Even in the absence of a request, a trial court must instruct on general
principles of law that are . . . necessary to the jury’s understanding of the case.’
[Citations.] That obligation comes into play when a statutory term ‘does not have a plain,
unambiguous meaning,’ has a ‘particular and restricted meaning’ [citation], or has a
technical meaning peculiar to the law or an area of law [citation]. [¶] As is clear from our
recent decision in Ghilotti, supra, 27 Cal.4th 888, the meaning of the SVPA’s term
‘likely’ is neither plain nor unambiguous.” (Roberge, supra, 29 Cal.4th at p. 988.)
              Here, the trial court instructed the jury that to find Flores was a SVP, there
had to be a “substantial danger” and a “serious and well-founded risk” that he would
reoffend if released. This instruction closely tracked the language in Roberge, supra, 29
Cal.4th at page 988, where the court stated that “a person is ‘likely [to] engage in
sexually violent criminal behavior’ if at trial the person is found to present a substantial
danger, that is, a serious and well-founded risk, of committing such crimes if released
from custody.” No reasonable juror would have read the trial court’s instruction to
conclude a “mere possibility” of reoffending would suffice to qualify Flores as an SVP.
The instruction was accurate as given, although in the future the better practice would be
to instruct the jury with the language Flores complains was improperly omitted to track
precisely the definition of “likely” articulated in Ghilotti, Cooley, and Roberge.



                                              17
E.   Sua Sponte Duty to Instruct on Amenability to Treatment
              Relying on People v. Grassini (2003) 113 Cal.App.4th 765 (Grassini),
Flores contends the trial court had a sua sponte duty to instruct the jury it should consider
whether his amenability to treatment raised a reasonable doubt as to whether he was
likely to reoffend. We disagree.
              In determining whether it is likely the person will reoffend, the jury must
consider whether the individual presents a serious and well-founded risk of committing a
sexually violent predatory crime if released from custody. (Roberge, supra, 29 Cal.4th at
pp. 988-989.) Evidence of the person’s amenability to voluntary treatment is relevant to
the ultimate determination whether the person is likely to reoffend. (Id. at p. 988, fn. 2.)
Evidence that a person is amenable to voluntary treatment creates a sua sponte duty “to
instruct the jury that it is to determine whether custody in a secure facility is necessary to
ensure that the individual is not a danger to the health and safety of others.” (Grassini,
supra, 113 Cal.App.4th at p. 777) “Based upon the holding in Grassini, CALCRIM No.
3454 includes as a fourth element that must be proved to establish SVP status if there is
evidence of the individual’s amenability to voluntary treatment, that it is necessary to
keep the person ‘in custody in a secure facility’ to ensure the public health and safety.”
(People v. Superior Court (George) (2008) 164 Cal.App.4th 183, 194-195.)
              Here, the trial court instructed the jury it must determine whether: “[I]t is
necessary to keep [Flores] in custody in a secure facility to ensure the health and safety of
others.” Flores acknowledges this language “parallels words in People v. Grassini,” but
asserts the words used “completely fail to address the issue that triggers the instruction”
because “it did not ask the jury to address whether [his] amenability to voluntary
treatment raised a reasonable doubt as to whether [he] was likely to reoffend.” Because
the instruction was a correct statement of the law, the trial court did not have a sua sponte
duty to further instruct the jury on this point. Flores could have asked for a special
instruction on this point, but he failed to so.

                                                  18
F.   Instructions Concerning Burden of Proof of Dangerousness
              Flores argues the trial court placed the burden of proof regarding
dangerousness on him. He explains, “The jury was asked to determine whether ‘it is
necessary to keep him in custody in a secure facility to ensure the health and safety of
others.’ Even though this instruction speaks in terms of what the petitioner must prove,
the element as stated inherently reverses the burden of proof. [¶] . . . [¶] . . . As the
question is framed, if the jury has no evidence of anything that would guarantee the
health and safety of others then the jury has no choice but to answer that confinement in a
secure facility is necessary. In that sense, on this element, the burden of proof has been
reversed. [¶] To ask the jury to determine whether confinement is necessary to ensure
the health and safety of others effectively places a burden on the individual in that the
jurors must find the element met unless the health and safety of others has been otherwise
ensured.”
              Flores’s argument does not persuade us the instruction was flawed. We
disagree. The court instructed the jury the petitioner “must prove beyond a reasonable
doubt that” it was “necessary to keep [Flores] in custody at a secure facility to ensure the
health and safety of others.” No reasonable juror would interpret this instruction to place
the burden on Flores to prove his confinement was unnecessary. The district attorney’s
argument did not shift the burden of proof either. He argued that while Flores was
“making this progress, which is good, . . . he needs to demonstrate more improvement in
treatment, more consistent progress in that type of secure setting.” He also argued,
“[Appellant] has not demonstrated or established the type of consistent improvement and
progress, and in treatment without incident that is necessary to determine that he will be
able to complete some type of outpatient treatment program successfully.” Contrary to
Flores’s view, this argument did not shift the burden to Flores to prove he would
successfully complete treatment in the community or that it was necessary to keep him in
a secure facility in contradiction to the jury instructions. The deputy district attorney

                                              19
merely noted Flores’s lack of progress in his previous treatment, which leads to an
inference that he was unlikely to follow or benefit from treatment if released from
custody.
G.   Pinpoint Instruction Concerning Absence of Recent Overt Act
              Flores requested the following pinpoint instruction: “While ‘Danger to the
health and safety of others’ does not require proof of a recent overt act while the
defendant is in custody, this does not mean that absence of such conduct may not be
considered by you in reaching a verdict in this matter.” The court denied the request:
“[I]t is more of a case of argument. I think it is not an appropriate jury instruction.”
              SVP trials are special proceedings of a civil nature. (Moore v. Superior
Court (2010) 50 Cal.4th 802, 815, 821.) In both civil and criminal cases any party may
ask the trial court to give the jury special instructions concerning points of law. (Code
Civ. Proc., § 609; Pen. Code, §§ 1093, subd. (f), 1127; People v. Rodrigues (1994)
8 Cal.4th 1060, 1192 (Rodrigues ) [amplifications or clarifications of law]; People v.
Bolden (2002) 29 Cal.4th 515, 558 (Bolden ) [instructions pinpointing the theory of the
defense case].) A trial court may refuse any proffered instruction if it incorrectly states
the law, is argumentative, or merely duplicates other instructions. (Bolden, supra, at
p. 558; People v. Gurule (2002) 28 Cal.4th 557, 659; Ideal Heating Corp. v. Royal
Indem. Co. (1951) 107 Cal.App.2d 662, 668.)
              As noted, a sexually violent predator is a person who has a “diagnosed
mental disorder that makes the person a danger to the health and safety of others . . . .”
(§ 6600, subd. (a)(1).) Section 6600, subdivision (d), provides, “‘Danger to the health
and safety of others’ does not require proof of a recent overt act while the offender is in
custody.”
              The trial court instructed the jury with CALCRIM No. 3454: “In order to
prove that . . . Flores is a danger to the health and safety of others, the People do not need
to prove a recent overt act committed while he was in custody. A recent overt act is a

                                              20
criminal act that shows a likelihood that the actor may engage in sexually violent
predatory criminal behavior.” The instruction tracked the statutory language and was
sufficient to apprise the jury of the elements needed to determine whether Flores
qualified as an SVP. (People v. Williams (2003) 31 Cal.4th 757, 774-775 [CALCRIM
No. 3454 tracks statutory language and is sufficient].) The proposed pinpoint instruction
was argumentative because it unduly emphasized a particular issue, the absence of a
recent overt act, and invaded the jury’s province by inviting the jury to draw inferences
favorable to Flores. Such an instruction is improper. (People v. Mincey (1992) 2 Cal.4th
408, 437 [court must refuse argumentative instruction that invited jury to draw favorable
inferences to one party from specified evidence].)
              Flores argues the court had a duty to provide his pinpoint instruction to
counter the deputy district attorney’s closing argument the government did not have to
prove recent sexual misconduct. The district attorney argued: “So, exposing himself to
individuals at the hospital or prison, in terms of proving that he is a danger, I don’t need
to show that. Okay. Peering through windows, don’t need to show it. Raping
individuals in the facility, don’t need to show it. Committing sexual acts on staff,
females in the facility, other patients, in terms of proving he’s a danger, that does not
have to be shown.” The deputy district attorney’s argument merely illustrated how to
apply CALCRIM No. 3454 and therefore furnishes no support for Flores’s argumentative
instruction. Nothing prevented Flores from pointing out to the jury they may consider
that Flores had not committed a recent overt act when deciding whether he posed a
danger to others.
              Finally, assuming for the sake of argument the court erred by declining to
provide the requested instruction, the error was harmless. (People v. Larsen (2012)
205 Cal.App.4th 810, 930 [“Erroneous failure to give a pinpoint instruction is reviewed
for prejudice under the Watson harmless error standard”]; People v. Ervin (2000)
22 Ca1.4th 48, 91.) The substance of the refused instruction was conveyed through the

                                             21
instructions that were given; no essential element of, or defense to, an SVP finding was
removed from the jury’s consideration, and the jury was not misled; counsel conveyed
the substance of the refused instructions in their arguments. Based on the evidence, it is
not reasonably probable defendant would have obtained a more favorable result had
either or both of the requested instructions been given. (See People v. Kraft (2000) 23
Cal.4th 978, 1066; People v. Tapia (1994) 25 Cal.App.4th 984, 1028.)
H.   Pinpoint Instruction Concerning Prosecutor’s Burden to Prove Flores’s Mental
Illness Was Sufficient to Distinguish Him From a Typical Recidivist
              Flores requested the following instruction: “You may not find the petition
true unless the prosecutor proves beyond a reasonable doubt that Mr. Flores suffers from
a diagnosable mental disorder that predisposes him to commit sexually violent crimes if
released. The prosecutor must prove beyond a reasonable doubt that the mental illness is
sufficient to distinguish Mr. Flores from a dangerous, but typical recidivist in an ordinary
case.” Counsel explained, “the jury heard evidence about antisocial personality disorder
and it causes general criminality. I think it is important to distinguish that it is not just
general criminality. The statute is not concerned about if he goes down and steals from
Target. The statute is concerned about hands-on [sexual] offending. I think that’s an
important distinction. I don’t think that’s made in 3454.” The court disagreed, stating it
was “adequately covered by [CALCRIM No.] 3454.”
              In Kansas v. Crane, supra, 534 U.S. 407, the Supreme Court noted the
federal Constitution requires a distinction to be drawn between a dangerous sexual
offender subject to civil commitment and other criminals dealt with in criminal
proceedings. To warrant civil commitment, the person must manifest “a special and
serious lack of ability to control behavior.” (Id. at pp. 412-413.) The court noted
“‘inability to control behavior’ will not be demonstrable with mathematical precision. It
is enough to say that there must be proof of serious difficulty in controlling behavior.
And this, when viewed in light of such features of the case as the nature of the psychiatric

                                               22
diagnosis, and the severity of the mental abnormality itself, must be sufficient to
distinguish the dangerous sexual offender whose serious mental illness, abnormality, or
disorder subjects him to civil commitment from the dangerous but typical recidivist
convicted in an ordinary criminal case.” (Id. at p. 413; see Foucha v. Louisiana (1992)
504 U.S. 71, 82-83 [rejecting civil commitment permitting indefinite confinement of
typical convicted criminal after completion of a prison term].)
              Nothing in Crane suggests the jury must receive an instruction requiring it
to distinguish a dangerous sexual offender from a typical recidivist. Here, the court
instructed (CALCRIM No. 3454) the jury it must find Flores had a diagnosed mental
disorder and as a result of that disorder he was a danger to the health and safety of others
because it was likely he would engage in sexually violent predatory criminal behavior,
and it was necessary to keep him in custody in a secure facility to ensure the health and
safety of others. The court also advised the jury the term “diagnosed mental disorder”
included conditions that affected “a person’s ability to control emotions and behavior,
and predispos[ed] that person to commit criminal sexual acts to an extent that [made] him
or her a menace to the health and safety of others. [¶] A person is likely to engage in
sexually violent predatory behavior if there is a substantial danger, that is, a serious and
well-founded risk that the person will engage in such conduct if released into the
community.” These instructions informed the jury they could not find Flores was a SVP
unless they found he was a “menace” and posed a substantial danger of committing
sexually predatory acts because he had a serious difficulty in controlling behavior due to
a diagnosed mental disorder. (See Williams, supra, 31 Cal.4th at pp. 774-775 [the SVPA
“inherently embraces and conveys the need for a dangerous mental condition
characterized by impairment of behavioral control,” and “a jury instructed in the
language of [the SVPA] must necessarily understand the need for serious difficulty in
controlling behavior;” no “further lack-of-control instructions or findings are necessary to
support a commitment under the SVPA.”].) Nothing in the testimony of Matosich,

                                             23
recounted above, or the prosecution’s argument, suggests a need for additional
instruction.
I.   Victim Impact Evidence
               Flores complains the court abused its discretion by allowing the district
attorney to ask Flores’s victims how the crimes had affected their lives. For example,
Laura C. testified, “I have trust issues with men. I lost a lot of relationships because of
this. I don’t have the desire to have sex.” Cindy C. testified, “This is the first time that I
had ever seen a man erect, a penis like that, and it affected me. I was scared to tell my
father. . . . It made me afraid of men a little bit.” Donna P. testified, “[I]t made me a
nervous wreck. It made me scared. I never really started putting it behind me until I
heard he was put in prison. And then, I started relaxing about it and forgetting about it.”
Mary M. testified, “In general, I was extremely traumatized. . . . I had just a lot of trouble
with just the normal things for quite a while. I didn’t, for ten years, go into a public
restroom. I just – I had for the next year, I had nervousness, these muscle spasms. I don’t
know how to explain it.” And she testified, “I ended up taking a medical leave from
school the next year for a semester. I did get back and I did complete my schooling. So,
it had quite an impact, very just traumatized is all I can say.” Meredith E. testified, “It
messed up my life a lot. I couldn’t trust guys. I still have a problem with it. I was a virgin
when it happened, so I didn’t want to be with anybody at all after that.”
               Flores objected the testimony was irrelevant and subject to exclusion under
Evidence Code section 352. The trial court overruled Flores’s objection, explaining “the
continuing impact and damage, mental and/or physical, that results from certain types of
conduct do fall within element three, may be a danger to the health and safety of others.”
               We agree with Flores the victim impact evidence, recounted above, lacked
probative value on the issue of whether he was currently a danger to the health and safety
of others because he was likely to engage in sexually violent criminal behavior in the
future. As noted by Flores, “If the district attorney has proved that the respondent has a

                                              24
mental disorder that makes him or her likely to commit sexually violent predatory
offenses, the law does not set the district attorney the further task of proving that the
commission of sexually violent predatory offenses is a danger to the health and safety of
others.” In other words, predatory sexual criminal behavior is intrinsically harmful and
evidence Flores’s prior victims did or did not suffer harmful effects from his conduct did
not assist in proving a material fact in issue. Further, any probative value was
substantially outweighed by the probability its admission would create a substantial
danger of undue prejudice, confusing the issues, or misleading the jury. (People v.
Carter (2005) 36 Cal.4th 1114, 1168 [evidence is prejudicial under Evidence Code,
section 352 if it “tends to evoke an emotional bias against a party, while having only
slight probative value with regard to the issues”]; People v. Scott (2011) 52 Cal.4th 452,
491 [“[E]vidence should be excluded as unduly prejudicial when it is of such nature as to
inflame the emotions of the jury, motivating them to use the information, not to logically
evaluate the point upon which it is relevant, but to reward or punish one side because of
the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial
because of the substantial likelihood the jury will use it for an illegitimate purpose”].)
Although the trial court has broad discretion in determining the relevance of evidence
(People v. Riggs (2008) 44 Cal.4th 248, 289; Rodrigues, supra, 8 Cal.4th at pp. 1124-
1125 [Evid. Code, § 352]), the court erred in this instance.
              The erroneous admission or exclusion of evidence does not require reversal
unless it results in a miscarriage of justice, however. (People v. Richardson (2008)
43 Cal.4th 959, 1001 (Richardson); Evid. Code, §§ 353, subd. (b); 354.) A miscarriage
of justice occurs when it is reasonably probable a result more favorable to the appealing
party would have been reached absent the error. (Richardson, supra, at p. 1001; People
v. Partida (2005) 37 Cal.4th 428, 439 [admission of evidence erroneous under state law
does not offend due process requiring review under the harmless beyond-a-reasonable-
doubt standard unless it renders the trial fundamentally unfair]; Watson, supra, 46 Cal.2d

                                              25
at p. 836.) Here, the victims’ testimony on the impact Flores’s crimes had on their lives
consisted of less than one page each in the trial transcript. The testimony was no more
likely to evoke an emotional response than testimony regarding the actual details of the
prior crimes, which was properly admitted. The trial focused mainly on expert testimony
addressing Flores’s risk of reoffending. Thus, it is not reasonably probable that a result
more favorable to Flores would have been reached absent the error.
J.   Cumulative Error
              Flores argues multiple errors combined to violate his due process right to a
fair trial. (People v. Hill (1998) 17 Cal.4th 800, 844-845 [multiple trial errors
independently harmless may in combination create reversible error].) As explained
above, we have found only one error, and that error was not prejudicial. The cumulative
error doctrine does not apply.
K.   Equal Protection
              Flores contends SVP’s are situated similarly to persons committed as
MDO’s (Pen. Code, § 2960 et seq.) and those found not guilty by reason of insanity
(NGI’s) (Pen. Code, § 1026.5, subd. (a)), but are treated differently in that MDO’s and
NGI’s may be held for only limited periods unless the State proves beyond a reasonable
doubt they remain mentally disordered and dangerous, while SVP’s (since the enactment
of Proposition 83 in 2006) may be held indefinitely unless, by a preponderance of the
evidence, they prove themselves no longer mentally ill and dangerous.
              People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II), following
remand from the Supreme Court in McKee I, held the state demonstrated a constitutional
justification under a strict scrutiny and compelling interest standard for imposing on
SVP’s a greater burden to obtain release from commitment than on those persons
committed as MDO’s and NGI’s. McKee II concluded the government “presented
substantial evidence to support a reasonable inference or perception that the Act’s
disparate treatment of SVP’s is necessary to further compelling state interests” (id. at

                                             26
p. 1339), namely that SVP’s present a substantially greater danger to society than MDO’s
or NGI’s, and disparate treatment is necessary to further the People’s compelling interests
of public safety and humane treatment of the mentally disordered.
              The California Supreme Court denied review in McKee II. Every published
opinion to consider the issue has found McKee II persuasive and concluded the SVPA
passes constitutional muster under the strict scrutiny test. (People v. Gray (2014)
229 Cal.App.4th 285; People v. Kisling (2014) 223 Cal.App.4th 544, 547-548 [declining
to follow McKee II would be contrary to the California Supreme Court’s clear intent in
remanding McKee I to the trial court for an evidentiary hearing]; People v.
McDonald (2013) 214 Cal.App.4th 1367, 1378-1383 [per McKee I equal protection
challenge was to be resolved on a classwide basis rather than affording each potential
SVP the right to present his or her own evidence on the matter, McKee II conducted the
required de novo review, applied a true strict scrutiny standard, and correctly assessed the
evidence]; People v. Landau (2013) 214 Cal.App.4th 1, 44-45; People v. McCloud (2013)
213 Cal.App.4th 1076, 1078-1079, 1085-1086; People v. McKnight (2012)
212 Cal.App.4th 860, 862-864.) Although we are not bound to follow McKee II (see
9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 498, p. 558 [noting tendency for a
Court of Appeal to follow decisions from other districts or divisions]), we do so here and
reject Flores’s claim his federal and state equal protection rights were violated by the
version of the SVPA applied to him. We decline his request to remand to the trial court
for an evidentiary hearing.




                                             27
                                      III
                                 DISPOSITION
          The order of commitment is affirmed.



                                            ARONSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




                                      28
