Filed 6/5/13 P. v. Glenn 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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G040608

                   v.                                                  (Super. Ct. No. FMBMS007714)

JAMES ROY GLENN,                                                       OPINION

     Defendant and Appellant.

In re JAMES ROY GLENN
                                                                       G041245
     on Habeas Corpus.


                   Appeal from an order of the Superior Court of San Bernardino County,
Gilbert G. Ochoa, Judge. Affirmed. Original proceedings; petition for writ of habeas
corpus, after an order of the Superior Court of San Bernardino County,
Brian S. McCarville, Judge. Petition denied.
                   Rudy Kraft, under appointment by the Court of Appeal, for Defendant,
Appellant and Petitioner.
              Kamala D. Harris, Attorney General, and Bradley A. Weinreb, Deputy
Attorney General, for Plaintiff and Respondent.
                                  *           *          *

                                      INTRODUCTION
              James Roy Glenn was adjudged a sexually violent predator under the
Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq.
         1
(SVPA), and was placed in involuntary commitment for an indeterminate term. Glenn
was 82 years old at the time of trial in early 2008. He appealed, and later filed a petition
for writ of habeas corpus also challenging the order of commitment. We issued an order
to show cause and consolidated the writ petition with the appeal. We later issued an
opinion affirming the order of commitment and denying the writ petition. (People v.
Glenn (2009) 178 Cal.App.4th 778, review granted Feb. 10, 2010, S178140 (Glenn I).)
              The California Supreme Court granted Glenn’s petition for review and
deferred further action in the matter pending consideration and disposition of People v.
McKee (2010) 47 Cal.4th 1172 (McKee I). After issuing its opinion in McKee I, the
California Supreme Court issued an order transferring this case back to us with directions
to vacate our opinion and to reconsider the cause in light of McKee I. The Supreme
Court further ordered: “In order to avoid an unnecessary multiplicity of proceedings, the
court is additionally directed to suspend further proceedings pending finality of the
proceedings on remand in McKee [I] [citation], including any proceeding in the Superior
Court of San Diego County in which McKee may be consolidated with related matters.”
              Division One of the Fourth Appellate District of the Court of Appeal
subsequently issued its opinion in People v. McKee (2012) 207 Cal.App.4th 1325
(McKee II). After the California Supreme Court denied review of McKee II, we issued an

 1
   Further code references are to the Welfare and Institutions Code unless otherwise
noted.

                                              2
order lifting the suspension of proceedings in this matter and inviting the parties to
submit supplemental letter briefs addressing the effect of McKee I on Glenn’s equal
protection claim. Having considered the supplemental letter briefs, we now reject
Glenn’s equal protection claim. Our opinion includes issues and arguments addressed in
Glenn I because the California Supreme Court ordered us to vacate that opinion. We
again affirm the order of commitment and deny the petition for writ of habeas corpus.
                                  OVERVIEW OF THE SVPA
              The SVPA provides for involuntary civil commitment of an offender
immediately upon release from prison if the offender is found to be a sexually violent
predator. (People v. Yartz (2005) 37 Cal.4th 529, 534.) The SVPA “was enacted to
identify incarcerated individuals who suffer from mental disorders that predispose them
to commit violent criminal sexual acts, and to confine and treat such individuals until it is
determined they no longer present a threat to society.” (People v. Allen (2008) 44 Cal.4th
843, 857.) “‘[A]n SVPA commitment proceeding is a special proceeding of a civil
nature, because it is neither an action at law nor a suit in equity, but instead is a civil
commitment proceeding commenced by petition independently of a pending action.’”
(People v. Yartz, supra, at p. 536.)
              A sexually violent predator is defined as “a person who has been convicted
of a sexually violent offense against one or more victims and who has a diagnosed mental
disorder that makes the person a danger to the health and safety of others in that it is
likely that he or she will engage in sexually violent criminal behavior.” (§ 6600,
subd. (a)(1).) A “diagnosed mental disorder” 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).)
              The procedure for determining whether a convicted sex offender is a
sexually violent predator typically begins when an inmate is scheduled to be released

                                               3
from custody. (Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1054.) “‘Under
section 6601, whenever the Director of Corrections determines that a defendant serving a
prison term may be a sexually violent predator, the Department of Corrections and the
Board of Prison Terms undertake an initial screening “based on whether the person has
committed a sexually violent predatory offense and on a review of the person’s social,
criminal, and institutional history.” (§ 6601, subd. (b).)’” (People v. Hurtado (2002) 28
Cal.4th 1179, 1182-1183.)
              The screening is conducted in accord with an assessment protocol
developed by the State Department of Mental Health (DMH). (People v. Hurtado, supra,
28 Cal.4th at p. 1183.) “‘If that screening leads to a determination that the defendant is
likely to be a sexually violent predator, the defendant is referred to the Department of
Mental Health for an evaluation by two psychiatrists or psychologists. (§ 6601,
subds. (b) & (c).) If both find that the defendant “has a diagnosed mental disorder so that
he or she is likely to engage in acts of sexual violence without appropriate treatment and
custody” (§ 6601, subd. (d)), the department forwards a petition for commitment to the
county of the defendant’s last conviction (ibid.). If the county’s designated counsel
concurs with the recommendation, he or she files a petition for commitment in the
superior court. (§ 6601, subd. (i).)’” (Ibid.)
              “[A] petition seeking the commitment or recommitment of a person as a
sexually violent predator cannot be filed unless two mental health professionals,
specifically designated by the Director under statutory procedures to evaluate the person
for this purpose, have agreed, by correct application of the statutory standards, that the
person ‘has a diagnosed mental disorder so that he or she is likely to engage in acts of
sexual violence without appropriate treatment and custody.’” (People v. Superior Court
(Ghilotti) (2002) 27 Cal.4th 888, 894.)
              If one of the two professionals performing the evaluation does not conclude
the person meets the criteria for commitment as a sexually violent predator, and the other

                                                 4
concludes the person does meet those criteria, then the DMH “shall arrange for further
examination of the person by two independent professionals selected in accordance with
subdivision (g).” (§ 6601, subd. (e).) If an evaluation by two independent professionals
is conducted, a petition for commitment may be filed only if both concur the person
meets the criteria for commitment as a sexually violent predator. (§ 6601, subd. (f).)
              Upon filing of the SVPA commitment petition, the superior court must
review the petition and determine “whether the petition states or contains sufficient facts
that, if true, would constitute probable cause to believe that the individual named in the
petition is likely to engage in sexually violent predatory criminal behavior upon his or her
release.” (§ 6601.5.) If the court determines the petition on its face supports a finding of
probable cause, then it orders the person named in the petition to be kept in a secure
facility until a probable cause hearing under section 6602 is conducted. (§ 6601.5.) The
probable cause hearing must be conducted within 10 calendar days of the issuance of the
order finding the petition would support a finding of probable cause. (Ibid.)
              The purpose of the probable cause hearing is to determine whether “there is
probable cause to believe that the individual named in the petition is likely to engage in
sexually violent predatory criminal behavior upon his or her release.” (§ 6602, subd. (a).)
The probable cause hearing is an adversarial hearing where the person named in the
petition has the right to counsel. (Ibid.) If the court finds probable cause, it orders a trial
to determine whether the person is a sexually violent predator under section 6600.
(§ 6602, subd. (a).) The person named in the petition must remain in a secure facility
between the time probable cause is found and the time trial is completed. (Ibid.)
              The person named in the petition is entitled to a trial by jury, and the jury’s
verdict must be unanimous. (§ 6603, subds. (a) & (f).) The person named in the petition
also is entitled to retain experts or professional persons to perform an examination on his
or her behalf. (§ 6603, subd. (a).) At trial, the trier of fact determines whether, beyond a
reasonable doubt, the person named in the petition is a sexually violent predator.

                                               5
(§ 6604.) If the trier of fact determines the person named in the petition is a sexually
violent predator, the person is committed for an indefinite term to the custody of the
DMH for appropriate treatment and confinement in a secure facility. (Ibid.)
                                          FACTS
                                             I.
                                    The People’s Case
              In 2005, the Office of the District Attorney of San Bernardino County filed
a petition for Glenn’s commitment as a sexually violent predator pursuant to section 6600
et seq. At the jury trial, conducted in January and February 2008, the deputy district
attorney called Jeffery Hart and licensed psychologists Mark A. Schwartz and Dawn
Starr as witnesses. Hart had been Glenn’s former neighbor in North Carolina, and
Schwartz and Starr had evaluated Glenn and testified he qualified as a sexually violent
predator. The deputy district attorney also called Glenn to testify as an adverse witness.
                                      A. Jeffery Hart
              In 2000, Glenn purchased two acres in rural North Carolina and lived there
in a mobilehome. Jeffery Hart was Glenn’s neighbor. Hart and Glenn initially got along
well, but they had a falling out because Glenn wandered around his property in the nude.
Glenn cut down the trees on his property, and would situate himself in his yard or on his
roof to make himself visible. On several occasions, Hart’s mother, who lived with Hart,
saw Glenn naked. Hart asked Glenn not to appear naked in front of her. According to
Hart, Glenn “just got bolder and bolder every day.”
              One morning, Hart informed Glenn that four women were coming to look
at nearby property and asked that he wear clothing when they arrived. When the women
drove up the road, Glenn, wearing only fishnet underwear, blocked the road with his
backhoe. Glenn got down from the backhoe and walked over to talk with the women.




                                             6
              Glenn twice told Hart that Glenn needed “a young boy” to help with work
around the house. Hart did not recommend anyone to Glenn and testified, “by the way he
was acting, I wouldn’t subject any kid to that.”
                                   B. Mark A. Schwartz
              Mark A. Schwartz holds a Ph.D., had been a licensed psychologist for 27
years, and worked under contract for the DMH. He interviewed Glenn in 2005 and 2006
and prepared reports in January and November 2007. Schwartz considered three criteria:
(1) whether Glenn committed qualifying predicate offenses; (2) whether he has a mental
disorder predisposing him to commit future sexual offenses; and (3) whether he is at risk
of committing future sexual offenses.
              Under the first criterion, Schwartz concluded Glenn had committed four
predicate offenses against three victims, all of whom were under 14 years of age. In
1988, Glenn invited a nine-year-old boy and an 11-year-old boy to his house, where he
gave them treats, showed them sexually explicit movies, exposed himself, and touched
them. As a result, a jury convicted him of two counts of committing lewd and lascivious
acts with a child under the age of 14. Also in 1988, Glenn molested a seven-year-old girl
by exposing himself and masturbating in front of her, for which another jury convicted
Glenn of two counts of the same crime.
              Schwartz also explained that Glenn had been convicted of offenses that did
not qualify as predicate offenses for a sexually violent predator determination. Glenn had
been convicted of an attempt to commit lewd and lascivious acts with a child under the
age of 14 for exposing himself to and masturbating in front of a boy. Glenn also had
been convicted on two indecent exposure charges involving two girls. Schwartz testified
he “really didn’t have to” consider those incidents, but they “just hardened the fact that
[Glenn] was a pedophile.”




                                             7
              Under the second criterion, Schwartz concluded Glenn suffers from
                                                                                       2
pedophilia, nonexclusive, with sexual attraction to both male and female children.
Schwartz based his conclusion of pedophilia on Glenn’s qualifying and nonqualifying
offenses, and incidents appearing in police reports that did not lead to charges. Schwartz
concluded Glenn was volitionally impaired from pedophilia because he continued to
engage in pedophilic behavior even after being arrested and imprisoned for sex crimes.
              Under the third criterion, Schwartz concluded there was a serious and
well-founded risk that Glenn would commit sexually violent criminal acts in the future.
Schwartz considered Glenn’s score on the Static-99, an actuarial tool used to predict
recidivism in sex offenders. Although Glenn’s score of seven on the Static-99 usually
would place him in the high risk category, Schwartz was not certain whether Glenn
would fall into that category because he was much older than all but one person in the
data set on which the Static-99 was based. Schwartz testified: “We don’t have a lot of
data on 82-year-old-guys. When you look at the number of people in these data sets that
are past 60, 75, 80, very, very few.”
              Schwartz testified he initially did not believe Glenn qualified as a sexually
violent predator because of his advanced age and because the qualifying offenses
occurred a long time ago. Schwartz ultimately concluded Glenn was a sexually violent
predator based on his score on the Static-99, the fact Glenn had continued to act out
sexually, and Schwartz’s opinion that pedophilia is a compulsive and chronic condition.
Schwartz considered “the incidents in North Carolina and the indecent exposure in North
Carolina as an indication that [Glenn] was still . . . sexually acting out and at risk.”
Despite studies suggesting recidivism rates for pedophiles decrease after age 60,

 2
    Schwartz defined pedophilia as having two components. The first is “recurrent
intense sexually arousing fantasies or sexual urges or behaviors . . . with prepubescent
children . . . over a period longer than six months.” The second is “the person has acted
on the urges or the fantasies . . . [a]nd/or the fantasies have caused marked distress in his
life.”

                                               8
Schwartz believed Glenn posed a risk of reoffending because he had engaged in serious
acts of pedophilia at age 62.
                                                                    3
              Schwartz also diagnosed Glenn with exhibitionism. Schwartz initially
“wavered back and forth” on that diagnosis because it requires exposing oneself to
unsuspecting strangers. Ultimately, Schwartz concluded the women in North Carolina
who saw Glenn in fishnet underwear were strangers, thus satisfying the definition of
exhibitionism.
                                      C. Dawn Starr
              Dawn Starr holds a Ph.D. in psychology and had been a licensed
psychologist for over 20 years when she testified. She served on the DMH’s sexually
violent predator panel of evaluators and had conducted over 1,000 sexually violent
predator evaluations. She conducted a sexually violent predator evaluation of Glenn in
July 2005 and conducted follow-up evaluations of him in August 2006 and
September 2007.
              Starr concluded Glenn committed qualifying predicate offenses, had a
mental disorder predisposing him to commit future sexual offenses, and was likely to
commit future sexually violent predatory offenses as a result of his mental disorder.
              Starr diagnosed Glenn with “pedophilia, sexually attracted to male and
female children, but a non-inclusive type, meaning he’s had adult sexual partners.” Starr
testified, “[t]hat was an SVP [(sexually violent predator)] diagnosis because I thought
that he showed both volitional and emotional impairment with regards to that diagnosis.”
She believed Glenn was volitionally impaired because he “gets in very little trouble with
the law” and “[i]s not a rule breaker,” yet had serious difficulty controlling his sexual
behavior. As to emotional impairment, Starr testified: “[H]e is taking advantage of these
children, most of whom were either in situations where they were low income or the
 3
   Schwartz defined exhibitionism as the tendency to expose one’s genitals to
unsuspecting strangers.

                                              9
parents were maybe neglectful or not around very much. And he would groom them,
give them candy, put on cartoons maybe and then switch over to sexually explicit movies.
Fix the boys’ bikes. [¶] And then he would sexually abuse them for his own personal
gratification with little or no regard to the adverse consequences of these children.”
              Starr considered several nonqualifying crimes and victims because “under
the diagnostic criteria . . . we’re supposed to look at whether the person has recurrent
intense sexually arousing deviant fantasies or urges or behaviors towards prepubescent
children. So I’m interested to see how many people or young children he’s had sexual
contact with over what period of time.”
              Starr’s conclusion that Glenn committed the qualifying predicate offenses
was based on his convictions in 1988 for committing lewd and lascivious acts with a
child under the age of 14 involving the girl and the two boys. Starr also considered these
nonqualifying crimes and victims in reaching her diagnosis:
              In the 1950’s or 1960’s, one of Glenn’s daughters reported that Glenn had
sexually molested her when she was a child.
              In 1976, when Glenn was 50 years old, he was arrested and charged with
two counts of lewd and lascivious behavior with a child under 14 years old in violation of
Penal Code former section 288. (Ultimately, he was convicted of contributing to the
delinquency of a minor.)
              In 1977, Glenn took a nine-year-old girl and a seven-year-old boy to Big
Bear, where he exposed himself to them, bathed with them, fondled and orally copulated
the girl, and had the boy use a relaxer on Glenn until he ejaculated.
              In 1986, a mother left her three children with Glenn while she moved into a
new home. Glenn licked the 10-year-old girl between the legs, then tried to “hypnotize”
her. Glenn touched her six-year-old brother’s penis.
              In 1987, Glenn molested his seven-year-old granddaughter and
four-year-old grandson. The granddaughter reported that Glenn carried her to the living

                                             10
room, put his hand over her mouth, pulled down her underwear, and touched her groin.
The grandson reported that Glenn touched his penis.
              Starr concluded Glenn currently suffers from pedophilia, despite his age,
because it is a chronic and lifelong condition. Significant too, Starr found that Glenn
used the victims for his own gratification, did not accept responsibility for his conduct,
and showed no remorse.
              Starr also diagnosed Glenn with exhibitionism, which she described as a
type of paraphilia. Her diagnosis of exhibitionism was based on Glenn’s claim to be a
nudist and a pattern of conduct in which he appeared to go out of his way to expose
himself to others.
              Starr concluded Glenn likely would engage in future sexually violent
predatory behavior as a result of his mental disorder. Like Schwartz, Starr used the
Static-99 and gave Glenn a total score of eight, placing him in the highest risk of
reoffense category. She placed Glenn in the “rare group of people” who, despite
advanced age, would continue to sexually reoffend. She considered Glenn’s age, good
health, and family history of longevity to conclude a five- to eight-year risk prediction
period to be appropriate.
              Starr believed Glenn’s age lowered the risk of reoffense a little, but not
enough to take Glenn out of the high risk category. She explained: “[H]e is exactly the
same man he is today as he was when he committed the offenses in the late 1980s. His
personality is the same; his attitude about them is the same. Either it was no big deal or I
did not do it. [¶] He has not done anything to try to get treatment for that in the
community or now that it’s available to him at absolutely no cost where he’s staying. He
doesn’t go do that. He is in pretty good physical health. He has good mental capacity.
So the only thing is, he is a little older and he is still sexually preoccupied.”




                                              11
                                          D. Glenn
              The deputy district attorney called Glenn as an adverse witness. He
testified he was a nudist and denied committing all but one of the qualifying and
nonqualifying offenses.
              Glenn claimed he had been falsely accused in each instance and gave
various reasons why. As to the incident in Big Bear in 1977, Glenn claimed the mother
told her children to accuse Glenn of molesting them because he had kicked her out of his
house. As for the incident in 1986, Glenn claimed the 10-year-old girl made obscene
telephone calls to him, and falsely accused him of molestation for fear he would tell her
mother about the calls. Glenn denied molesting his grandchildren, claiming his son had
been “wasted on drugs.”
              Glenn asserted he did not commit the crimes for which he was convicted in
1989. Glenn claimed the two boys came over to his house to repair their bicycles. Glenn
showered, and when he came out of the shower, the boys were on his bed watching a
pornographic video and the 11-year-old boy had an erection. Glenn claimed he ran the
boys out of the house. According to Glenn, the pornographic video belonged to a friend.
              As for the conviction involving the girls, Glenn testified they would come
into his apartment without knocking. On one occasion, he stepped out of the shower to
find three girls in his bathroom looking at him. On another occasion, one of the girls
walked into his apartment, unannounced, and Glenn, a nudist, was naked. The girl said,
“[g]et some clothes on”; Glenn replied, “you better start getting use to it if you don’t start
knocking.”
              Glenn was arrested, convicted by two separate juries, and sent to prison.
He was released in 1995, and, in 1998, bought two acres of land in North Carolina, where
he continued to practice nudism. He contended Hart’s mother would hide in the bushes
with binoculars to watch him naked. She had tried to “put the make on [him],” but he
was not interested in her, and she complained to the police in anger. According to Glenn,

                                             12
none of the 13 people who complained to the police about his nudity had ever seen him
naked. He also claimed Hart’s testimony that Glenn had asked about finding a young boy
to work for him was a lie.
              On the day the women came by to inspect property, Glenn wore the fishnet
underwear because “from a distance it just looks like regular shorts.” He did not expect
he would have to step down from his backhoe to see anyone.
              Glenn testified he had been impotent since undergoing chemotherapy for
colon cancer in 1996. He testified he loved children, and “[w]hen I see children with a
problem, my heart bleeds for them.”
                                             II.
                                       Defense Case
              Glenn called licensed clinical psychologists Brian Abbott and
Craig Updegrove to testify on his behalf.
                                      A. Brian Abbott
              Brian Abbott testified he is a licensed clinical psychologist, has a forensic
psychological practice, and primarily evaluates sex offenders, including sexually violent
predators.
              Abbott reviewed Glenn’s medical and hospital records, law enforcement
reports, probation reports, DMH evaluator reports, and investigative reports prepared by
the district attorney’s office and by the public defender’s office. Abbott interviewed
Glenn three times, and administered a general personality test, the Millon Clinical
Multiaxial Inventory-III, The Abel Assessment for sexual interest-2, and a cognitive
functioning test.
              Abbott concluded, “[t]here’s absolutely no information to substantiate a
current diagnosis of pedophilia or to substantiate a current mental disorder under the
Sexually Violent Predator Act.” In reaching that conclusion, Abbott observed that Glenn
had displayed no symptoms of sexual interest in children for 20 years and found it critical

                                             13
that no reports were made of Glenn engaging in inappropriate conduct with children
during the seven-year period in which he was not in custody. There was no evidence
that, since Glenn had been committed as a sexually violent predator, he had engaged in
the type of conduct typical of someone with a current diagnosis of pedophilia. Because
Glenn interacted sexually with both adults and children, Abbot believed his conduct
might be the result of sexual compulsiveness rather than pedophilia.
              Abbott testified that sex drive decreases dramatically in people over 50
years old. He acknowledged pedophilia is a chronic condition for some people, but
testified it was not chronic in Glenn’s case. He found no indication that Glenn currently
had any sexual interest in prepubescent children and was not likely to reoffend in a
sexually violent manner. Abbott declined to diagnose Glenn with exhibitionism because
he did not expose himself for sexual gratification or to unsuspecting strangers.
                                   B. Craig Updegrove
              Craig Updegrove holds a Ph.D. in clinical psychology, was a licensed
psychologist, and, since 1996, had served on the DMH’s panel of sexually violent
predator evaluators.
              Under appointment by the DMH, Updegrove conducted an evaluation of
Glenn in July 2005. Updegrove concluded Glenn did commit the qualifying offenses,
had a diagnosable mental disorder within the meaning of the SVPA, but was not likely to
reoffend in a sexually violent, predatory manner.
              Updegrove reached the same conclusions after reevaluating Glenn in
October 2006. Again diagnosing Glenn as having pedophilia, Updegrove acknowledged,
“he’s had this recurrent pattern of sexually aroused behavior around prepubescent
children” and recognized Glenn’s score on the Static-99 placed him in the high risk of
reoffense category.
              Updegrove concluded nonetheless that Glenn did not pose a serious and
well-founded risk of sexually reoffending. In reaching that conclusion, Updegrove

                                            14
considered Glenn’s age, the lack of evidence of offending behavior after 1988, and
chemotherapy in 1996, which, according to Glenn, had left him impotent. Updegrove
found it significant that Glenn had no known sexual offenses against children in the
eight-year period from his release from prison to his conviction for indecent exposure.
Updegrove did not diagnose Glenn with exhibitionism because he found no evidence that
Glenn exposed himself in North Carolina for sexual gratification.
                    APPELLATE AND HABEAS PROCEDURAL HISTORY
              In February 2008, the jury found Glenn to be a sexually violent predator,
and the trial court ordered him committed for an indeterminate term. Glenn timely
appealed from the commitment order. In October 2008, he filed a petition for writ of
habeas corpus in the trial court. The trial court denied the petition, stating: “Petitioner’s
claims are currently being adjudicated within the Court of Appeal. There is nothing
contained in the Petition to substantiate Petitioner’s claims. A Petition for Writ of
Habeas Corpus cannot serve as a substitute for Appeal.”
              In November 2008, Glenn, representing himself in propria persona, filed a
petition for writ of habeas corpus in this court, challenging the validity of the SVPA
commitment petition on the ground the evaluations were based on an invalid standardized
assessment protocol. We issued an order to show cause, consolidated the writ petition
with the appeal, and invited the Attorney General to file a combined respondent’s brief
and return to the petition. In Glenn I, we affirmed the order of commitment and denied
the petition for writ of habeas corpus.
                                          DISCUSSION
                                              I.

                        The Trial Court Did Not Err by Sustaining
                            Objections to Abbott’s Testimony.
              Glenn argues the trial court erred by precluding Abbott from testifying
about studies and research conducted by other mental health experts concerning whether


                                              15
pedophilia is chronic. Glenn contends such testimony was admissible to establish the
basis for Abbott’s expert opinion. Relying on People v. Campos (1995) 32 Cal.App.4th
304 (Campos), the Attorney General argues an expert witness may not testify on direct
examination to the contents of reports or opinions expressed by other experts. We
conclude the trial court did not err.
                                        A. Background
              During Abbott’s direct examination by Glenn’s counsel, the following
colloquy occurred:
              “A [(Abbott):] . . . First, you have to prove the fact that they do have what
they refer to as pedophiliac arousal. You have to first be able to show that the individual
was sexually aroused toward prepubescent children, and then if they act upon that, then
you can make the diagnosis. You cannot make the diagnosis based on the number of
prepubescent victims over time. In fact, one of the criteria text editors—
              “Ms. Norman [(the deputy district attorney)]: Objection.
              “The Court: Sustained.
              “Q (By Mr. Lowry [(Glenn’s counsel)]:) Have you read documents that
indicate to you that behavior alone is not enough to make the diagnosis of pedophilia?
              “Ms. Norman: Objection, your Honor. May we approach?
              “The Court: Yes.”
              The court did not immediately rule on the second objection.
              Later, Abbott testified he did not subscribe to the belief that pedophilia is
chronic. When he was asked to explain, the following transpired:
              “A [(Abbott):] Because essentially when you look at the literature from
which that statement is made, it goes back to I think really the early 1990’s when the last
major revision of the DSM Four [American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders (4th ed. 2000)] happened, at least as it relates to
diagnosis of pedophilia. In fact, there was an author by the name of Michael Seto who

                                             16
published a chapter in a book that came out three weeks ago where he states that this idea
of pedophilia being tending to be chronic really—
              “Ms. Norman: Objection, your Honor.
              “The Court: Sustained.
              “Mr. Lowry: Okay.
              “Ms. Norman: Move to strike.
              “The Court: The testimony with regard to what the other doctor testified to
would be stricken.
              “Mr. Lowry: Okay.
              “Q (By Mr. Lowry:) . . . In the literature, is there an indication that there’s
a question as to whether or not pedophilia is chronic?
              “Ms. Norman: Objection. Same objection.
              “The Court: Sustained.
              “The witness [(Abbott)]: Yes.
              “Ms. Norman: Move to strike.
              “The Court: The answer will be stricken.”
              A few moments later, the court overruled a similar objection but advised
Glenn’s counsel to “be careful in this area.”
              Outside the jury’s presence, the court and counsel discussed whether
Abbott could testify about studies and research conducted by other mental health experts
concerning whether pedophilia is chronic. Glenn’s counsel announced that, over the
lunch break, he and Abbott had pared down a PowerPoint presentation to 22 “slides,” all
of which were graphs taken from studies, and argued Abbott should be permitted to
testify about the slides as part of the basis for his opinion: “It just makes no sense for
him not to be able to use at least these [P]ower[P]oint slides having to do with plotting of
graphs and the statistics in order to aid his testimony.” The deputy district attorney



                                                17
objected on the ground the material in the PowerPoint presentation had not been
produced in discovery.
              The trial court stated: “I still think that this is a Campos issue. If you have
a graph, for instance, Graph A, and at the bottom it looks like we have ‘age’ is the input.
And on the left-hand side we have ‘percentages[,’] six-year rate of recidivism. [¶] Just
because something is in a graph, you’re still trying to get in the opinion of this expert via
a graph, it’s just not coming in via Dr. Abbott testifying about it. It’s still the same thing.
It’s still going to be hearsay that [the People] cannot cross[-]examine Doctor Milloy on
this graph. So we still have the same issue.” (Italics added.) The court explained Abbott
could testify to his own opinions and even use the graphs prepared by the nontestifying
experts, if he deleted the nontestifying experts’ names. The court stated: “If it’s his
opinion, he can relate it, because that’s his opinion based upon his training, his expertise,
his evaluation, and how it relates to Mr. Glenn based upon his evaluation of Mr. Glenn.
He can testify to that. [¶] He just can’t testify and throw up on the screen ‘this is
Milloy’s opinion with regards to six-year recidivism rates.’ That he can’t do. But he
may be able to give the same information in [it] if it’s his opinion in a different way.”

                  B. Case Law Regarding Admissibility of Nontestifying
                            Experts’ Studies and Opinions
              In Campos, supra, 32 Cal.App.4th at page 306, the defendant appealed a
jury determination he was a mentally disordered offender. The defendant argued the trial
court erred by permitting the prosecution’s expert psychiatrist, Dr. Mertz, to testify that
she relied on other medical evaluations of the defendant and that the evaluations
confirmed her opinion he was a mentally disordered offender. (Id. at p. 307.) The
appellate court agreed. A psychiatrist, like other expert witnesses, may rely on reliable
hearsay, including the statements and reports of other treating professionals in forming an
opinion, and, on direct examination, may testify the reports of the other experts were a
basis for that opinion. (Id. at pp. 307-308.) However, an expert witness may not, on


                                              18
direct examination, reveal the contents of the other experts’ reports or opinions expressed
in the reports. (Id. at p. 308.) “Here, the reports of the nontestifying experts were
hearsay. Doctor Mertz was properly allowed to testify that she relied upon the reports in
forming her own opinions. The trial court erred, however, when it allowed her to reveal
their content on direct examination by testifying that each prior medical evaluation
agreed with her own opinion.” (Ibid.) While doctors can testify about the basis for their
opinion, they cannot disclose to the jury the opinions of out-of-court doctors. (Ibid.) The
appellate court nonetheless affirmed because, it concluded, Dr. Mertz’s testimony about
prior medical evaluations was not prejudicial. (Id. at pp. 308-309.)
              Glenn argues Campos is inapplicable because the nontestifying experts in
that case had evaluated and prepared reports on the defendant. Here, in contrast, Abbott
was precluded from testifying about nontreating experts’ opinions on whether pedophilia
in general is a chronic condition.
              Campos is the product of a line of authority starting with Kelley v. Bailey
(1961) 189 Cal.App.2d 728, 737-738, in which the court held a testifying physician could
not rely on a report of another physician as independent proof of facts, but could rely on
it as part of the basis on which the testifying physician formed a diagnosis and course of
treatment. On request, the jury should be given a limiting instruction that the hearsay is
admitted as the basis for the testifying physician’s diagnosis, not to prove the truth of
what the patient told the original physician. (Id. at p. 738.)
              The California Supreme Court adopted this general rule in Whitfield v. Roth
(1974) 10 Cal.3d 874, 894-895, stating: “It is obvious that the testimony concerning the
opinion of the other doctors who were not present in court, and who had not been
qualified as experts was hearsay. ‘“The reason for this is obvious. The opportunity of
cross-examining the other doctors as to the basis for their opinion, etc., is denied the party
as to whom the testimony is adverse.”’ [Citations.] [¶] Defendants contend, however,
that the testimony concerning the opinions of the other doctors was admissible to show

                                              19
the basis of the testifying doctor’s opinion under the doctrine of limited admissibility as
applied in Kelley [v.] Bailey . . . . This rule has no application to the case at bench for
two reasons. First, the opinions of the out-of-court doctors in this case were not used by
either testifying doctor in the course of treatment or diagnosis of plaintiff. They were
consulted as experts and then called as witnesses to offer expert opinion evidence. It is
clear that doctors can testify as to the basis of their opinion [citation], but this is not
intended to be a channel by which testifying doctors can place the opinion of innumerable
out-of-court doctors before the jury.” (Fn. omitted.) The court held the testimony
concerning the opinion of the nontestifying doctors was inadmissible on the ground it
was being offered as independent proof of the fact in issue—that an X-ray of the patient’s
skull showed no abnormality. (Id. at p. 895.)
               In People v. Coleman (1985) 38 Cal.3d 69, 92, the Supreme Court
expressed the rule: “‘While an expert may state on direct examination the matters on
which he relied in forming his opinion, he may not testify as to the details of such matters
if they are otherwise inadmissible. [Citations.] The rule rests on the rationale that while
an expert may give reasons on direct examination for his opinions, including the matters
he considered in forming them, he may not under the guise of reasons bring before the
jury incompetent hearsay evidence. [Citation.]’”
               These cases permit an expert witness to testify about the contents or details
of the matters on which the expert relied, including the opinions of nontestifying experts,
if those matters and opinions are otherwise admissible. If the contents or details of the
matters on which the expert relied, including the opinions of nontestifying experts, are
otherwise inadmissible, for example, they are offered to prove the truth of a fact in issue,
they may not be disclosed.
               An illustrative and analogous case is Mosesian v. Pennwalt Corp. (1987)
191 Cal.App.3d 851. In that case, the plaintiff, the owner of a vineyard, alleged a
pesticide manufactured by one of the defendants caused chemical burning of grape leaves

                                               20
leading to defoliation and crop destruction. (Id. at p. 855.) The defendant’s expert
testified the pesticide did not chemically burn the leaves on the plaintiff’s grapevines.
(Id. at pp. 856-857.) During the course of direct examination, the expert testified he had
consulted with six other experts about the potential of the pesticide to cause leaf burn and
had based his own opinion in part on those other experts’ opinions. (Id. at p. 856.) None
of the six other experts testified. (Id. at p. 857.) Also on direct examination, the expert
revealed those experts had concluded the defendant’s pesticide could not cause more than
marginal leaf burn. (Id. at pp. 857, 863.) The trial court permitted the testimony but
admonished the jury the nontestifying experts’ opinions could only be considered as part
of the basis for the testifying expert’s opinion and could not be considered as proof the
pesticide did not damage the plaintiff’s vineyard. (Id. at p. 857.) The jury returned a
defense verdict, and the trial court granted the plaintiff’s motion for a new trial. (Id. at
p. 858.)
              The Court of Appeal concluded the testifying expert’s testimony on the
opinions of the nontestifying experts was inadmissible hearsay because the opinions were
offered for the truth of the matter asserted—that the defendant’s pesticide did not cause
more than marginal leaf burn. “The fundamental issue that stood as the cornerstone of
the entire trial was whether the plaintiff suffered a crop loss. The introduction of the
hearsay opinions through [the defense expert] touched upon only one aspect of economic
crop loss. Can [the pesticide] ever cause leaf burn and does leaf burn lead to a loss of
production? If the leaf burn complained of by the plaintiff could only be marginal, then
the probability of economic loss was remote.” (Mosesian v. Pennwalt Corp., supra, 191
Cal.App.3d at p. 866.) But the Court of Appeal reversed the order granting a new trial,
concluding admission of the hearsay opinions was harmless error because the opinions
touched on only one issue in the case, the great weight of the evidence supported the
defense verdict, and the trial court had admonished the jury. (Id. at pp. 866-867.)



                                              21
                In Mosesian v. Pennwalt Corp., the nontestifying experts did not opine
whether the pesticide damaged the plaintiff’s vineyard; rather, they opined whether the
pesticide could ever cause leaf burn. Their opinions were inadmissible because they were
offered to prove a disputed fact—whether the pesticide could cause leaf burn, and thus
might have damaged the plaintiff’s vineyard.
                                 C. Application to This Case
                                               4
                Here, the nontestifying experts’ opinions and studies related to whether
pedophilia in general is chronic. The only conceivable purpose of offering the opinions
and studies of Seto, Milloy, and other nontestifying experts (via the PowerPoint
presentation) was to prove the truth of a disputed fact—whether pedophilia is chronic,
and, thus, whether Glenn could still suffer from it. Although Abbott could testify to his
own opinions and describe the matters he considered in reaching those opinions, he could
not testify to the opinions of the other nontestifying experts, explain or read their
writings, or present graphs and charts revealing their opinions that were otherwise
inadmissible.
                Glenn argues, “if the testimony relating to Michael Seto as to whether or
not pedophilia is a chronic disorder and the use of the graph prepared by Milloy was
invalid then it was equally invalid to introduce Dr. Hanson’s opinion as to [Glenn]’s
likely recidivism rate thr[ough] the use of the STATIC-99.” But neither in the
appellant’s opening brief nor in the appellant’s reply brief, does Glenn include record
citations supporting that argument. Glenn concedes nobody objected to the challenged
testimony, and, therefore, any claim of error has been forfeited.

 4
   Specifically, Abbott was precluded from testifying (1) certain text authors had
concluded pedophilia cannot be diagnosed based on the number of prepubescent victims
over time; (2) Michael Seto had written a book in which he concluded pedophilia was not
necessarily chronic; and (3) as shown in the PowerPoint demonstration, Dr. Milloy and
other experts in the field had reached the same conclusion. Glenn also argues he should
have been able to introduce a graph prepared by Milloy on six-year recidivism rates.

                                              22
                In addition, “[b]ecause an expert’s need to consider extrajudicial matters,
and a jury’s need for information sufficient to evaluate an expert opinion, may conflict
with an accused’s interest in avoiding substantive use of unreliable hearsay, disputes in
this area must generally be left to the trial court’s sound judgment.” (People v. Montiel
(1993) 5 Cal.4th 877, 919.) The trial court may exclude from an expert’s opinion
testimony any hearsay matter if its probative value is outweighed by its irrelevance,
unreliability, or potential prejudice. (People v. Catlin (2001) 26 Cal.4th 81, 137.) The
trial court did not abuse its discretion in sustaining the objections to the PowerPoint
presentation.
                                              II.

                Use of an Invalid Standardized Assessment Protocol Did Not
                   Deprive the Trial Court of Fundamental Jurisdiction;
                       Therefore, a Harmless Error Analysis Applies,
                             and Glenn Suffered No Prejudice.
                Glenn argues his commitment as a sexually violent predator was illegal
because the evaluations leading to the SVPA commitment petition were based on the
mental health assessment protocol later determined by the Office of Administrative Law
(OAL) to be invalid as “underground regulations.” The Attorney General argues
(1) Glenn forfeited the issue by failing to object at the probable cause hearing held
pursuant to section 6602, subdivision (a), and (2) any error in using the assessment
protocol was harmless.
                Glenn did not forfeit the issue, but use of the invalid assessment protocol
did not deprive the trial court of fundamental jurisdiction. Because Glenn is challenging
the evaluations after trial, he must show he was deprived of a fair trial or suffered
prejudice as a result of the use of the assessment protocol. (People v. Landau (2013) 214
Cal.App.4th 1, 17 (Landau); In re Ronje (2009) 179 Cal.App.4th 509, 517.)




                                              23
               A. Deficiencies in the Return to the Habeas Corpus Petition
               First, we address Glenn’s argument the Attorney General admitted the
allegations of the petition for writ of habeas corpus by not filing a formal response
admitting or denying the petition’s allegations.
               In People v. Duvall (1995) 9 Cal.4th 464, 474-481, the California Supreme
Court thoroughly explained habeas corpus rules and procedures. The Duvall court
explained the function and requirements of the return: “[W]e have required the return to
‘allege facts tending to establish the legality of petitioner’s detention.’ [Citations.]
Those facts are not simply the existence of a judgment of conviction and sentence when
the petitioner challenges his restraint in prison. The factual allegations of a return must
also respond to the allegations of the petition that form the basis of the petitioner’s claim
that the confinement is unlawful. [Citations.] In addition to stating facts, the return
should also, ‘where appropriate, . . . provide such documentary evidence, affidavits, or
other materials as will enable the court to determine which issues are truly disputed.’”
(Id. at p. 476, fn. omitted.)
               In County of San Bernardino v. Superior Court (1994) 30 Cal.App.4th 378,
382, footnote 6, the respondents filed a document called “‘responsive brief’” that did not
respond to the formal allegations of the petition. The Court of Appeal noted its order
issuing an alternative writ requested a formal return, meaning an answer or a demurrer.
(Ibid.) By filing a responsive brief, the respondents did not follow the correct
procedures. (Ibid.)
               Although the Attorney General’s combined respondent’s brief and return
does not respond to the allegations of the habeas corpus petition by admitting or denying
them, that does not mean Glenn is entitled to habeas corpus relief. From the petition and
the combined respondent’s brief and return, we can tell the relevant facts in this case are
essentially not in dispute. The contested issues—whether the assessment protocol is an
underground regulation and whether use of the invalid assessment protocol deprived the

                                              24
trial court of fundamental jurisdiction—are legal ones. The return could not formally
respond to issues of prejudice or deprivation of a fair trial because the habeas corpus
petition made no such allegations. In the combined respondent’s brief and return, the
Attorney General argues Glenn suffered no prejudice and received a fair trial, thus
framing those issues for our review.
                            B. 2008 OAL Determination No. 19
              The mental health evaluators who performed the section 6601 evaluations
of Glenn followed the Clinical Evaluator Handbook and Standardized Assessment
Protocol issued by the DMH. In August 2008, the OAL issued a determination that
various challenged portions of the standardized assessment protocol used by the DMH for
SVPA evaluations—specifically, the Clinical Evaluator Handbook and Standardized
Assessment Protocol (2007)—met the statutory definition of a regulation and, therefore,
should have been adopted pursuant to Government Code section 11340.5 of the
Administrative Procedure Act (Gov. Code, § 11340 et seq.). (2008 OAL Determination
No. 19 (Aug. 15, 2008) pp. 1, 13 <http://www.oal.ca.gov/res/docs/pdf/determinations/
2008/2008_OAL_Determination_19.pdf> [as of June 5, 2013].) The OAL determined
that, as such, the protocol constituted an underground regulation as defined in California
Code of Regulations, title 1, section 250, and is therefore invalid. (2008 OAL
Determination No. 19, supra, at p. 13.) In In re Ronje, supra, 179 Cal.App.4th at
page 516, we concluded the 2007 standardized assessment protocol was invalid as an
underground regulation.
                                       C. Forfeiture
              Challenges based on noncompliance with statutory requirements and
regulations pertaining to evaluators should be raised in the trial court. (In re Wright
(2005) 128 Cal.App.4th 663, 672 [question whether evaluator had requisite degree in
psychology was an “evidentiary issue . . . properly left to the trial court”].) In People v.
Medina (2009) 171 Cal.App.4th 805, 817, the court held the alleged sexually violent

                                             25
predator forfeited a challenge to the validity of the assessment protocol as an
underground regulation by failing to raise the issue in the trial court.
              Although Glenn did not challenge the validity of the assessment protocol in
the trial court, his petition for writ of habeas corpus alleges 2008 OAL Determination
No. 19 is “‘newly discovered’ evidence” justifying habeas relief. The Attorney General
does not deny that allegation. (See People v. Duvall, supra, 9 Cal.4th at p. 476.)
Accordingly, we find no forfeiture.
                                  D. Prejudice/Fair Trial
              However, any error in using evaluations based on the invalid assessment
protocol did not deprive the trial court of fundamental jurisdiction over the petition to
                                               5
commit Glenn as a sexually violent predator. In People v. Pompa-Ortiz (1980) 27
Cal.3d 519, 529 (Pompa-Ortiz), the California Supreme Court held illegalities in criminal
preliminary hearings that are not “jurisdictional in the fundamental sense” are not
reversible per se on an appeal following the subsequent trial. Rather, such illegalities
must be reviewed “under the appropriate standard of prejudicial error and shall require
reversal only if defendant can show that he was deprived of a fair trial or otherwise
suffered prejudice as a result of the error at the preliminary examination.” (Ibid.)
Because Glenn did not raise the issue of the invalid assessment protocol until after his
commitment as a sexually violent predator, he must show prejudice to obtain relief.
(Landau, supra, 214 Cal.App.4th at p. 17.) Glenn has not shown he was deprived of a
fair trial or suffered prejudice as a result of the use of the invalid assessment protocol.
              Instructive on the issue of prejudice are cases concerning irregularities in
the SVPA probable cause hearing because such irregularities are subject to harmless error

 5
   The use of the invalid assessment protocol to conduct Glenn’s evaluations did not
deprive the trial court of the legal power to hear and determine the SVPA commitment
petition. (In re Ronje, supra, 179 Cal.App.4th at p. 518.) “Use of the evaluations based
on the invalid assessment protocol, though erroneous, did not deprive the trial court of
fundamental jurisdiction over the SVPA commitment petition.” (Ibid.)

                                              26
review. (People v. Butler (1998) 68 Cal.App.4th 421, 435 (Butler).) In Butler, the
defendant challenged his sexually violent predator commitment on the ground the trial
court did no more than conduct a facial review of the commitment petition at the
probable cause hearing. (Ibid.) The Court of Appeal agreed the trial court erred by not
holding a full evidentiary hearing, but held the Pompa-Ortiz rule applied. (Butler, supra,
at. p. 435.) The court concluded the defendant suffered no prejudice because “[h]e was
found to be an SVP after a trial at which he was able to cross-examine the prosecution’s
witnesses and call his own witnesses.” (Ibid.)
              In People v. Hayes (2006) 137 Cal.App.4th 34, 44 (Hayes), the People filed
a petition to recommit the defendant just as the initial term of commitment was about to
expire. Due to numerous delays, the trial on the recommitment petition had not
proceeded to trial by the eve of the two-year recommitment period. (Ibid.) As a result,
the People filed a second petition to recommit the defendant for another two-year period.
(Ibid.) The trial court consolidated and tried the two recommitment petitions. (Ibid.)
The probable cause hearing on the second recommitment petition was not conducted until
the conclusion of trial. (Ibid.)
              The Court of Appeal concluded the trial court erred by conducting the
probable cause hearing on the second recommitment petition at the conclusion of trial,
but held the error was not prejudicial under the Pompa-Ortiz rule. (Hayes, supra, 137
Cal.App.4th at p. 49.) Likening the probable cause hearing under the SVPA to a
preliminary hearing in a criminal trial, the court reasoned: “Defendant did not have a
probable cause hearing until after the evidentiary phase of trial had concluded and jury
deliberations had begun. Thus, he had no pretrial probable cause hearing at all. But like
the defendant who has an improper, nonevidentiary hearing—or a criminal defendant
who has a preliminary hearing without counsel, in effect no hearing at all—defendant
received a full-blown trial and had a jury conclude, beyond a reasonable doubt, that he



                                            27
was an SVP within the meaning of section 6600, subdivision (a)(1).” (Hayes, supra, at
p. 51.)
              In In re Wright, supra, 128 Cal.App.4th at page 673, the court concluded
the defendant received a fair trial because he was represented by counsel, presented his
own expert witness, and was permitted to cross-examine the People’s witnesses. As for
prejudice, the Wright court stated: “The only possible prejudice [the defendant] could
have suffered was in the fact that the petition actually proceeded to trial; however, our
high court concluded that the erroneous denial of a motion to dismiss an information
under Penal Code section 995 will not be reversed on appeal in the absence of a showing
that the defendant was deprived of a fair trial, or otherwise prejudiced in the ability to
mount a defense.” (Ibid.) The fact the defendant was “compelled to ‘participate in an
otherwise fair trial’” therefore did not establish prejudice. (Id. at p. 674.)
              Glenn received a fair trial. He was represented by counsel, presented his
own witnesses (including two expert witnesses), and cross-examined the People’s
witnesses. (Butler, supra, 68 Cal.App.4th at p. 435.) After a full, public trial, a jury
found he was a sexually violent predator. We have concluded Glenn’s only assertion of
error occurring during trial—the limitations on his expert witness’s testimony—had no
merit.
              Nor did Glenn suffer prejudice. The 2008 OAL Determination No. 19 did
not suggest the assessment protocol was flawed or unreliable as an instrument for
assessing whether a person might be a sexually violent predator. The 2008 OAL
Determination No. 19 concerned only the issue whether the assessment protocol was a
regulation and expressly stated it was not evaluating its “advisability or . . . wisdom.”
(2008 OAL Determination No. 19, supra, p. 1.) Once the petition was filed, the People
could not rely on the evaluations, but were “‘required to show the more essential fact’”
that Glenn is a sexually violent predator. (People v. Scott (2002) 100 Cal.App.4th 1060,
1063.) At the probable cause hearing, Glenn could have challenged the evaluations and

                                              28
cross-examined the evaluators. (Hayes, supra, 137 Cal.App.4th at p. 43.) He does not
contend the invalid assessment protocol was used at the commitment trial, harmed his
ability to mount a defense, or in any way influenced the jury in finding him to be a
sexually violent predator. He does not challenge the sufficiency of the evidence at either
the probable cause hearing or the commitment trial.
              Glenn argues, “it is very possible that the [DMH], assuming it follows a fair
regulation adoption process, would adopt regulations that create a completely different
protocol for the evaluation of sexually violent predators.” This type of prejudice is not
relevant under a Pompa-Ortiz analysis, and Glenn concedes, “it is completely impossible
to predict whether [Glenn] will be found to qualify as a sexually violent predator under
the new protocol.”
              Glenn’s challenge to the evaluations based on the invalid assessment
protocol fails because he received a fair trial and suffered no prejudice under the
Pompa-Ortiz rule. For the same reason, his claim his trial counsel was ineffective for not
challenging the evaluations in the trial court also fails. (Strickland v. Washington (1984)
466 U.S. 668, 687-698.) “[A] court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be so, that course should be
followed.” (Id. at p. 697; accord, In re Fields (1990) 51 Cal.3d 1063, 1079.)
                                              III.

               Indeterminate Commitment Under the 2006 Amendments to
               the SVPA Does Not Violate Due Process, Equal Protection,
                          Ex Post Facto, or Double Jeopardy.
              Glenn argues the SVPA, as amended in 2006, violates the due process,
equal protection, ex post facto, and double jeopardy clauses of the United States and
California Constitutions. We conclude the 2006 amendments are constitutional.


                                              29
                                   A. The Amended SVPA
              As originally enacted, the SVPA provided for a two-year term of
confinement for persons civilly committed as sexually violent predators, subject to
subsequent petitions for extended commitment. (Former § 6604.) The Legislature
amended the SVPA, effective September 20, 2006, to provide for indeterminate
commitment terms for persons determined to be sexually violent predators. (Stats. 2006,
ch. 337, §§ 55, 56, 62, pp. 2665-2668.) In the November 2006 general election,
California voters approved Proposition 83 (entitled “The Sexual Predator Punishment and
Control Act: Jessica’s Law”), which also provided for indeterminate terms of
commitment for sexually violent predators. (Voter Information Guide, Gen. Elec.
(Nov. 7, 2006) text of Prop. 83, § 1, p. 127; id., §§ 27, 28, subd. (a), p. 137.)
Proposition 83 went into effect on November 8, 2006. (Prop. 83, §§ 27, 28, as approved
                                                                                    6
by voters, Gen. Elec. (Nov. 7, 2006); see Cal. Const., art. II, § 10, subd. (a).)
Section 6604 now states: “If the court or jury determines that the person is a sexually
violent predator, the person shall be committed for an indeterminate term to the custody
of the [DMH] for appropriate treatment and confinement in a secure facility . . . .”
Thereafter, the committed person can be released without the concurrence or
recommendation of the DMH only by petitioning the court for conditional release or
unconditional discharge. (§ 6608, subd. (a).)
              “[U]nder Proposition 83, an individual SVP’s commitment term is
indeterminate, rather than for a two-year term as in the previous version of the [SVPA].
An SVP can only be released conditionally or unconditionally if the DMH authorizes a
petition for release and the state does not oppose it or fails to prove beyond a reasonable
doubt that the individual still meets the definition of an SVP, or if the individual,
petitioning the court on his own, is able to bear the burden of proving by a preponderance

 6
   We refer to the SVPA, as amended by the Legislature’s 2006 amendments and
Proposition 83, as the Amended SVPA.

                                              30
of the evidence that he is no longer an SVP. In other words, the method of petitioning the
court for release and proving fitness to be released, which under the former [SVPA] had
been the way an SVP could cut short his two-year commitment, now becomes the only
means of being released from an indefinite commitment when the DMH does not support
release.” (McKee I, supra, 47 Cal.4th at pp. 1187-1188.)
              Section 6608, subdivision (i) was not amended by Proposition 83 and
continues to provide that in a hearing on a committed person’s section 6608 petition for
release or discharge, “the petitioner shall have the burden of proof by a preponderance of
the evidence.” (§ 6608, subd. (i).) After the trial court denies a section 6608 petition,
“the person may not file a new application until one year has elapsed from the date of the
denial.” (§ 6608, subd. (h).)
                                      B. Due Process
              Glenn argues his indeterminate commitment term under the Amended
SVPA violated the due process clauses of the United States and California Constitutions.
In McKee I, supra, 47 Cal.4th at page 1193, the California Supreme Court held the
Amended SVPA does not violate the due process clauses of the federal and state
Constitutions. (See also People v. McDonald (2013) 214 Cal.App.4th 1367, 1382;
Landau, supra, 214 Cal.App.4th at p. 44; People v. McCloud (2013) 213 Cal.App.4th
1076, 1085 (McCloud).)
                                   C. Equal Protection
              Glenn argues that by making a commitment indeterminate and by placing
the burden on the sexually violent predator to obtain release, the Amended SVPA violates
the constitutional right to equal protection. We reject Glenn’s equal protection challenge.
              In McKee I, supra, 47 Cal.4th at pages 1203, 1207, the California Supreme
Court concluded sexually violent predators, persons found to be mentally disordered
offenders (MDO’s) who have been committed under the Mentally Disordered Offender
Act (Pen. Code, § 2960 et seq.), and those committed after being found not guilty by

                                             31
reason of insanity (NGI’s) are similarly situated for equal protection purposes. The
Supreme Court remanded the matter to the trial court to determine “whether the People,
applying the equal protection principles . . . discussed in the present opinion, can
demonstrate the constitutional justification for imposing on SVP’s a greater burden than
is imposed on MDO’s and NGI’s in order to obtain release from commitment.”
(McKee I, supra, at pp. 1208-1209.)
              On remand from McKee I, the trial court conducted a 21-day evidentiary
hearing at which the People presented the testimony of eight witnesses and documentary
evidence, and Richard McKee presented the testimony of 11 witnesses and documentary
evidence. (McKee II, supra, 207 Cal.App.4th at pp. 1330, 1332.) The trial court issued a
35-page statement of decision summarizing the testimony and documentary evidence
presented at the hearing. (Id. at p. 1332.) The trial court found, “the People had met their
burden to establish, by a preponderance of the evidence, that the disparate treatment of
SVP’s under the [Amended SVPA] was based on a reasonable perception of the greater
and unique dangers they pose compared to MDO’s and NGI’s.” (Ibid.) The court
confirmed its prior order committing McKee to an indeterminate term. (Ibid.)
              In McKee II, Division One of the Fourth Appellate District of the Court of
Appeal applied a de novo standard of review to “independently determine whether the
People presented substantial, factual evidence to support a reasonable perception that
SVP’s pose a unique and/or greater danger to society than do MDO’s and NGI’s, thereby
justifying the disparate treatment of SVP’s under the [Amended SVPA].” (McKee II,
supra, 207 Cal.App.4th at p. 1338.) The Court of Appeal concluded: “[T]he People on
remand met their burden to present substantial evidence, including medical and scientific
evidence, justifying the [A]mended [SVPA]’s disparate treatment of SVP’s (e.g., by
imposing indeterminate terms of civil commitment and placing on them the burden to
prove they should be released). [Citation.] The People have shown that,
‘notwithstanding the similarities between SVP’s and MDO’s [and NGI’s], the former as a

                                             32
class bear a substantially greater risk to society, and that therefore imposing on them a
greater burden before they can be released from commitment is needed to protect
society.’ [Citation.] The People have shown ‘that the inherent nature of the SVP’s
mental disorder makes recidivism as a class significantly more likely[;] . . . that SVP’s
pose a greater risk [and unique dangers] to a particularly vulnerable class of victims, such
as children’; and that SVP’s have diagnostic and treatment differences from MDO’s and
NGI’s, thereby supporting a reasonable perception by the electorate that passed
Proposition 83 that the disparate treatment of SVP’s under the [A]mended [SVPA] is
necessary to further the state’s compelling interests in public safety and humanely
treating the mentally disordered. [Citation.]” (Id. at p. 1347, italics added.)
              The California Supreme Court denied review of McKee II and the opinion
is final.
              In McDonald, supra, 214 Cal.App.4th at page 1377, and Landau, supra,
214 Cal.App.4th at page 48, panels of this court found the reasoning and conclusion of
McKee II to be persuasive and agreed with its equal protection analysis. (See also
McCloud, supra, 213 Cal.App.4th at pp. 1085-1086; People v. McKnight (2012) 212
Cal.App.4th 860, 863-864.)
              In his supplemental letter brief, Glenn challenges McKee II on various
grounds, all of which we addressed in McDonald or Landau. Glenn argues McKee II was
based on the specific facts presented to the trial court in that case and therefore does not
preclude further litigation on the issue whether the Amended SVPA violates equal
protection. In McDonald, we rejected this argument and concluded: “McKee I plainly
expressed the Supreme Court’s desire to resolve on a classwide basis the equal protection
challenge of all SVP’s to indeterminate commitments under the Amended SVPA.”
(McDonald, supra, 214 Cal.App.4th at pp. 1377-1378.)
              Glenn argues the McKee II court misunderstood and misapplied the strict
scrutiny test and applied the wrong standard of review. We also rejected that argument in

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McDonald, supra, 214 Cal.App.4th at page 1379, and in Landau, supra, 214 Cal.App.4th
at pages 47-48.
              Glenn argues the evidence presented in the postremand trial following
McKee I did not support the Court of Appeal’s holdings in McKee II on the issues of
recidivism, trauma to the victims, and treatment differences. We rejected the same
argument in McDonald, supra, 214 Cal.App.4th at pages 1381-1382, and in Landau,
supra, 214 Cal.App.4th at pages 47-48. Glenn argues at length the Court of Appeal’s
assessment of the evidence in McKee II was flawed, but we rejected the same argument
in McDonald, supra, 214 Cal.App.4th at pages 1380-1382. Glenn filed a motion
requesting that we take judicial notice of the trial court’s statement of decision in the
postremand trial in McKee II, and we granted his motion. In Landau, we also took
judicial notice of that statement of decision and “agree[d] with our brethren in Division
One” that “[t]he People introduced ‘substantial evidence to support a reasonable
perception by the electorate that SVP’s have significantly different diagnoses from those
of MDO’s and NGI’s, and that their respective treatment plans, compliance, and success
rates are likewise significantly different.’” (Landau, supra, 214 Cal.App.4th at p. 47.)
                            D. Ex Post Facto/Double Jeopardy
              Glenn argues the Amended SVPA is punitive rather than civil and therefore
violates the ex post facto and double jeopardy prohibitions of the federal and state
Constitutions. In McKee I, supra, 47 Cal.4th at pages 1193, 1195, the California
Supreme Court held the Amended SVPA does not violate the ex post facto clause of the
federal and state Constitutions. (See also McDonald, supra, 214 Cal.App.4th at p. 1382;
Landau, supra, 214 Cal.App.4th at p. 44; McCloud, supra, 213 Cal.App.4th at p. 1085.)
In McDonald, supra, 214 Cal.App.4th at page 1383, we concluded the Amended SVPA
does not violate the constitutional prohibition of cruel and/or unusual punishment and
indeterminate commitment under the Amended SVPA does not constitute double
jeopardy.

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                                       DISPOSITION
              The order of commitment is affirmed. The order to show cause is dissolved
and the petition for writ of habeas corpus is denied.



                                                  FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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