The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 2008, the People filed a petition (2008 petition) to commit defendant Eugene Clarence Wood for an indeterminate term as a sexually violent predator (SVP) and the trial court found probable cause. Subsequent case law determined that the assessment protocol used to evaluate Wood was an invalid underground regulation. Two new evaluations (first pair) were ordered, but they resulted in a split of opinion as to whether Wood met the criteria of an SVP. Two additional evaluations (second pair) were ordered, but they also resulted in split opinions.
On March 4, 2010, the People filed a new petition for commitment (2010 petition), attaching two evaluations, one from the first pair and one from the second. Contemporaneously, after the People provided more information about Wood's physical condition to the psychologist in the first pair who had found Wood was not an SVP, she changed her mind and found Wood was an SVP. On March 19, 2010, the People filed a supplemental petition (supplemental 2010 petition), attaching both evaluations from this psychologist.
After a bench trial, the trial court found Wood was an SVP, and committed him for an indeterminate term to the custody of the Department of Mental Health (DMH).
Wood timely appeals. He contends his due process rights were violated because neither the 2010 petition nor the supplemental 2010 petition complied with the statutory requirements of Welfare and Institutions Code,*fn1 section 6601, subdivisions (d), (e), and (f). He further contends there is no statutory authority for the People to participate in the evaluation process. Finally, he argues there is insufficient evidence that he is likely to commit another sexual offense, and that his indeterminate commitment violates equal protection.
For reasons we will explain, we hold that neither differences of opinion among the various evaluators, nor the People's reliance on evaluations from both the first and second pair, required dismissal of the 2010 petitions. Further, any error concerning reliance on evaluations from both pairs to support the 2010 petitions was harmless, as Wood has failed to show prejudice. Sufficient evidence supports the finding that Wood is likely to reoffend; however, we shall remand for an equal protection determination pursuant to People v. McKee (2010) 47 Cal.4th 1172 (McKee).
FACTUAL AND PROCEDURAL BACKGROUND
Wood's Criminal Background
Wood, born in 1953, has a considerable criminal history, beginning when he was a juvenile and ending in 1980 with his incarceration for murder and other crimes. In 1978, Wood pled guilty to kidnapping in Connecticut and was sentenced to two to five years in prison. Around the same time, he was charged in Rhode Island with assault with intent to commit rape and pled nolo contendere. His five-year sentence was suspended and he was sentenced to five years of probation to begin after his release from his term in Connecticut.
In 1979, Wood allegedly committed a rape in Portland, Maine. The case was not pursued because Wood was facing murder charges in Oregon. Wood allegedly committed another rape against a 16-year-old victim in Oregon, but the district attorney declined to file formal charges.
Wood's crime spree continued. In 1980, Wood pled guilty in California to two counts of kidnapping and robbery and was sentenced to 11 years in prison. He was also convicted in Oregon of murder and sentenced to life in prison.
In 1997, Wood was transferred from prison in Oregon, where he was serving his life sentence for murder, to prison in California to serve his sentence on his California crimes.
In 1999, Wood was discharged from his Oregon sentence. While in prison in California, Wood had one major rule violation and several minor rule violations.
SVP Evaluations and Petitions
An SVP is defined by statute 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).)
The 2008 petition was supported by the evaluations of two psychologists, Mark Patterson and Dawn Starr, who found Wood met the criteria of an SVP under section 6600, subdivision (a). The trial court found probable cause to believe Wood was an SVP.
While Wood's case was pending trial, Division 3 of the Fourth District decided In re Ronje (2009) 179 Cal.App.4th 509 (Ronje). In Ronje, the court found the standardized assessment protocol used to evaluate sex offenders was an invalid underground regulation. (Ronje, supra, 179 Cal.App.4th at pp. 516-517.) The remedy per the Ronje court was not to dismiss the petition, but to remand to the trial court for new evaluations using a valid assessment protocol and to conduct another probable cause hearing. (Ronje, supra, at pp. 519, 521.)
Confronted with Ronje, here the trial court and the parties agreed the case had to go back to "square one," and that two new evaluations (first pair) would be ordered.*fn2 Per the "agreement" between the parties and trial court, if the two new evaluations did not both find that Wood qualified as an SVP, the People would not file a new petition and there would be no probable cause hearing. If the evaluators did agree and find Wood an SVP, the case would go forward with a probable cause hearing.
Patterson and Starr performed new evaluations (first pair). In her January 2010 evaluation, Starr changed her opinion from 2008 as to whether Wood qualified as an SVP. Finding his deteriorating health was a significant mitigating factor, Starr opined that Wood did not meet the criteria of an SVP.
The trial court held a hearing on February 5, 2010, at which time the People represented that DMH was in the process of assigning two new doctors to perform additional evaluations (second pair). The defense argued Wood should be immediately released. The trial court indicated it would continue the case and allow a new petition to be filed; it apparently believed that without a new petition, it did not have jurisdiction to proceed.
On March 4, 2010, the People filed a second petition to extend Wood's commitment. The 2010 petition was accompanied by two evaluations, one by Patterson (from the first pair) and the second by Deirdre D'Orazio (from the second pair), both finding Wood an SVP.
Wood moved to dismiss the petition, strike the pleadings, demurrer, and for summary judgment. He claimed the petition was invalid under the following rationale: DMH had secured the first pair of evaluations (Patterson and Starr) under subdivision (d) of section 6601*fn3 ; when Starr did not find Wood an SVP, DMH secured a second pair of evaluations (D'Orazio and Mary Ann Davis) under subdivision (e) of section 6601.*fn4 But only one of those evaluators (D'Orazio) found Wood an SVP. Thus there was never any agreement within either of the two pairs that Wood was an SVP. Wood contended that the petition was valid only if there were two concurring evaluations under either subdivision (d) or subdivision (e) but not from a combination of both pairs.*fn5 The trial court opined that the issue of whether the petition was defective was premature as it now had "a petition in front of me," and set a probable cause hearing.
In the meantime, the People provided Starr with additional current information about Wood's physical condition, including recent reports of Wood running, jogging, and playing handball for up to an hour, as well as a CD ROM showing Wood engaging in aerobic exercise. As a result of this information, Starr changed her opinion, finding Wood did meet the criteria of an SVP because his health issues were not a protective factor. Starr issued an addendum to ...