APPEAL from an order of the Superior Court of San Diego County, Michael T. Smyth, Judge. (Super. Ct. No. MH105316)
The opinion of the court was delivered by: Mcconnell, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Randall Kent Lowe appeals from an order under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.)*fn2 (Act) committing him to the California Department of Mental Health for treatment and confinement in a secured facility for an indeterminate term. He contends the trial court prejudicially erred by permitting the People's experts to testify he was "likely" to engage in "predatory" sexually violent offenses in the future as these are legal issues and the experts' testimony invaded the jury's province. He additionally contends, like the appellant in People v. McKee (2010) 47 Cal.4th 1172 (McKee I), his indeterminate commitment violates equal protection principles.
We conclude the expert testimony in this case did not invade the jury's province as the experts properly utilized statutory criteria to frame their opinions and they did not cross the line from testifying about the bases for their opinion to advocating for a particular outcome. We further conclude Lowe's indeterminate commitment does not violate equal protection principles. We, therefore, affirm the trial court's order.
In 1998, Lowe pleaded guilty to committing both a lewd and lascivious act with a child under 14 years of age (Pen. Code, § 288, subd. (a)) and a forcible lewd and lascivious act with a child under 14 years of age (Pen. Code, § 288, subd. (b)). The victim was a six-year-old girl. The trial court sentenced him to 16 years in prison.
In 2010, near the conclusion of Lowe's incarceration, the People filed a petition alleging Lowe was a sexually violent predator under the Act and seeking his commitment to the California Department of Mental Health for an indeterminate term of involuntary treatment. To establish Lowe was a sexually violent predator under the Act, the People had to prove Lowe had been convicted of a sexually violent offense against one or more victims. The People also had to prove Lowe is dangerous because he has a diagnosed mental disorder that makes him "likely" to engage in "predatory" sexually violent criminal behavior in the future. Finally, the People had to prove Lowe needed to be confined in a secure facility to ensure the health and safety of others. (§ 6600, subd. (a)(1); Cooley v. Superior Court (2002) 29 Cal.4th 228, 243; CALCRIM No. 3454.)
At the trial on the People's petition, the parties stipulated Lowe's prior offenses were sexually violent offenses.*fn3 In addition, the People offered testimony from three psychologists, each of whom believed Lowe met the statutory criteria for classification as a sexually violent predator.
More particularly, psychologist Deirdre D'Orazio testified Lowe's prior offenses were sexually violent offenses. He suffers from pedophilia, exhibitionism, and methamphetamine and alcohol dependence. He "presents a substantial likelihood to reoffend in a sexually violent way in [the] absence of appropriate treatment in custody." His new offenses would likely be "predatory" in nature, and he could not be effectively treated if released into the community.
Psychologist Dana Putnam similarly diagnosed Lowe with pedophilia and amphetamine dependence. In addition, Putnam testified Lowe was "likely to commit sexually violent predatory offenses in the future as a result of his diagnosed mental disorder without appropriate treatment in custody," and he "cannot be safely and effectively treated in the community."
Finally, psychologist Steven Jenkins also diagnosed Lowe with pedophilia as well as amphetamine, alcohol, and marijuana abuse. Jenkins testified Lowe's pedophilia makes him dangerous, he is likely to engage in sexually violent predatory criminal behavior in the future and he "cannot be treated effectively and safely in the community."
Lowe countered with testimony from two other psychologists. Psychologist Richard Romanoff, with whom Lowe declined to interview, testified Lowe may have had a pedophilic disorder in the past, but there was insufficient evidence to determine whether Lowe still had the disorder. Romanoff additionally testified Lowe "falls below the threshold of having a serious and well-founded and substantial risk for reoffending." Psychologist Brian Abbott testified Lowe did not have a diagnosable ...