APPEAL from an order of the Superior Court of San Diego County, Theodore W. Weathers, Judge. Affirmed in part, reversed in part and remanded. (Super. Ct. No. MH101771)
The opinion of the court was delivered by: McINTYRE, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Edward Joe Martinez appeals an order recommitting him for an indeterminate term to the custody of the State of California Department of Mental Health (the Department) under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq. (the Act); undesignated statutory references are to the Welf. & Inst. Code). Martinez contends the commitment order must be reversed because: (1) it is not supported by sufficient evidence; (2) the trial court improperly instructed the jury; (3) use of the term "sexually violent predator" constituted governmental misconduct, and defense counsel provided ineffective assistance of counsel by failing to object to the term; and (4) cumulative error occurred. Martinez also challenges the constitutionality of the Act and asserts it violates ex post facto, double jeopardy, due process and equal protection principles.
We reject Martinez's contentions, except for his challenge to the indeterminate commitment on equal protection grounds. Based on the California Supreme Court's decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee), holding that the 2006 amendments to the Act may violate equal protection, we affirm in part and reverse in part the trial court's order of commitment. On remand, we will direct the trial court to suspend further proceedings in this case pending finality of the proceedings on remand in McKee.
FACTUAL AND PROCEDURAL BACKGROUND
In 2001, Martinez was found to be a sexually violent predator (SVP). He was recommitted in 2003 and 2005. In October 2007, the People filed a petition seeking to extend Martinez's commitment as an SVP for an indeterminate term. Jury trial on the involuntary commitment was held in May 2009. The parties stipulated that in May 1988 Martinez pleaded guilty to the crimes of forcible rape of Corinne H., and indecent liberties with a minor, Pauline D.
Forensic psychologists, Drs. Michael J. Selby and Douglas Korpi, testified at trial on behalf of the People. Both reviewed thousands of pages of documents regarding Martinez, including: court, jail, medical, and mental health records; police and probation reports; and psychological evaluations. Both also testified regarding their understanding of the facts of Martinez's offenses against Corinne H. and Pauline D.
Dr. Selby diagnosed Martinez with paraphilia, not otherwise specified, antisocial personality disorder, paranoid personality disorder, and alcohol abuse. Dr. Selby opined that Martinez was likely to engage in sexually violent predatory criminal behavior if released into the community. Dr. Korpi had difficulty diagnosing Martinez, but ultimately concluded that Martinez came within the statutory definition of an SVP based on a "psychotic, unknowable condition." Dr. Korpi also opined that Martinez's mental disorders predisposed him to commit criminal sexual acts. Each concluded that Martinez satisfied the criteria for being adjudged an SVP.
The jury also heard testimony from two defense experts who testified that Martinez did not meet the SVP commitment criteria, and was not likely to reoffend. After trial, the jury found that Martinez was an SVP and recommitted him for an indeterminate term. Martinez appeals.
The Act provides for the involuntary civil commitment of persons who, in a unanimous jury verdict after trial, are found beyond a reasonable doubt to be SVP's. (§§ 6603, subds. (e) & (f), 6604.) The term " '[s]exually violent predator' means 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).) As originally enacted, the Act provided for a two-year commitment term. The Act was amended in 2006 and, as amended, provides for an indeterminate term of confinement for persons who are found to be SVP's. (People v. Shields (2007) 155 Cal.App.4th 559, 562-563; §§ 6604, 6604.1.)
The Department is required to review the mental condition of a committed SVP at least annually, and allows the court to appoint, or the committed person to retain, an expert. (§ 6605, subd. (a).) If the Department concludes the committed individual no longer meets the requirements of the Act, or that conditional release is appropriate, it must authorize the filing of a petition for release by the committed individual. (§ 6605, subd. (b).) If, after a probable cause hearing, the court determines that the petition has merit, the committed person is entitled to a trial, with all constitutional protections as provided at the initial commitment hearing. At the trial, if the state opposes the petition, it must prove beyond a reasonable doubt that the committed individual remains an SVP. (§ 6605, subds. (c), (d).) If the trier of fact finds in the committed person's favor, the person must be unconditionally released and discharged. (§ 6605, subd. (e).)
II. Alleged Evidentiary Error
An expert's opinion is admissible if, "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Evid. Code, § 801, subd. (b).) However, when an expert bases his or her conclusions on assumptions not supported by the record, on matters not reasonably relied on by other experts, or on factors that are remote, speculative, or conjectural, then his or her opinion lacks evidentiary value. (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 338-339.) In such circumstances the expert's opinion cannot rise to the dignity of substantial evidence. (Ibid.)
Generally, out-of-court statements offered to support an expert's opinion are not hearsay because they are not offered for the truth of the matter asserted. Instead, they are offered for the purpose of assessing the value of the expert's opinion. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210.) "On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, ' "under the guise of reasons," ' the expert's detailed explanation ' "[brings] before the jury incompetent hearsay evidence." ' [Citations.]" (People v. Montiel (1993) 5 Cal.4th 877, 918 (Montiel).) The trial court may cure hearsay problems with a limiting instruction to the jury that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. (Id. at p. 919.) The trial court may also "exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]" (Ibid.) The trial court, however, has no sua sponte duty to exclude evidence, remedy misconduct, or instruct the jury on specific evidentiary limitations, and a counsel's failure to object will waive direct claims of error. (Id. at p. 918.)
"Because an expert's need to consider extra-judicial 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." (Montiel, supra, 5 Cal.4th at p. 919.) Additionally, "[t]he qualification of expert witnesses, including foundational requirements, rests in the sound discretion of the trial court." (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) Absent a manifest abuse, the court's determination will not be disturbed on appeal. (Ibid.)
We review challenges to the sufficiency of the evidence to support an SVP commitment under the standard applicable to criminal convictions. (People v. Mercer (1999) 70 Cal.App.4th 463, 465-466.) We review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the jury finding. (Id. at p. 466.) We "may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all ...