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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Trell James MERCER, Jr., Defendant and Appellant.

No. E021569.

Decided: March 01, 1999

 Pearl Gondrella Mann, under appointment by the Court of Appeal, Orange, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster, Supervising Deputy Attorney General, and Bradley A. Weinreb, Deputy Attorney General, for Plaintiff and Respondent.


Defendant Trell James Mercer, Jr., appeals from his commitment to Atascadero State Hospital following a jury finding that he was a sexually violent predator within the meaning of the Sexually Violent Predator Act (SVP Act) (Welf. & Inst.Code, § 6600 et seq.)   On appeal, defendant contends the evidence was insufficient to establish that he was a sexually violent predator likely to reoffend if released.   He also contends the SVP Act denied him equal protection of the law because it treats offenders differently than they are treated under other civil commitment schemes.   In a supplemental brief, defendant contends the prosecution failed to meet its burden of establishing the reliability of the protocol and techniques its expert witnesses had used to predict he was likely to reoffend.   We find no error, and we affirm.



I. The Evidence Was Sufficient to Support the Jury's Finding

Defendant contends the evidence was insufficient to establish that he was a sexually violent predator likely to reoffend if he was released.

A. Standard of Review

 No court has yet articulated the standard for considering the sufficiency of the evidence to support a commitment under section 6600.   However, in the context of commitments under the  Mentally Disordered Offender Law (MDO Law) (Pen.Code, § 2960 et seq.), courts apply the same test as for reviewing the sufficiency of the evidence to support a criminal conviction.  (See People v. Martin (1980) 107 Cal.App.3d 714, 719, 165 Cal.Rptr. 773.)   Similarly, in the context of extended commitments under Penal Code section 1026.5 for defendants acquitted by reason of insanity, courts apply the same test.  (See People v. Overly (1985) 171 Cal.App.3d 203, 207, 216 Cal.Rptr. 924.)   Because those classes of offenders are so similar, we conclude the same standard should apply in proceedings under the SVP Act. Thus, this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below.  (People v. Johnson (1980) 26 Cal.3d 557, 576-578, 162 Cal.Rptr. 431, 606 P.2d 738.)   To be substantial, the evidence must be “ ‘of ponderable legal significance ․ reasonable in nature, credible and of solid value.’ ”  (Id. at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738.)

B. The Evidence Was Sufficient to Establish That Defendant Was a Sexually Violent Predator

 To establish that defendant was a sexually violent predator, the People were required to prove that (1) defendant had been convicted of two separate sexually violent offenses;  (2) he had received a determinate term;  (3) he had a diagnosable mental disorder;  and (4) his disorder made it likely he would engage in sexually violent conduct if released.   The parties stipulated to the first two elements.   With respect to the third and fourth elements, defendant argues that the expert witnesses were unable to agree on what mental disorder he suffered from, and there was no evidence he lacked the ability to control his sexually violent behavior.

 With respect to the mental disorder diagnosis, all three psychologists testified that defendant had pedophilia.   The two prosecution experts agreed he suffered from a personality disorder with schizoid features;  however, the defense expert testified that defendant tested low in that area, but exhibited histrionic and narcissistic characteristics.   None of the experts discussed the degree or severity of the diagnoses.

With respect to defendant's volitional control, the two prosecution experts testified defendant could not control his sexually violent behavior.   However, the defense expert testified there was no evidence of an inability to control behavior.

 The credibility of the experts and their conclusions were matters resolved against defendant by the jury.   We are not free to reweigh or reinterpret the  evidence.  (People v. Perry (1972) 7 Cal.3d 756, 785, fn. 17, 103 Cal.Rptr. 161, 499 P.2d 129.)   Moreover, we must draw all reasonable inferences in favor of the judgment.  (People v. McCleod (1997) 55 Cal.App.4th 1205, 1220-1221, 64 Cal.Rptr.2d 545.)

Here, the jury could reasonably believe the evidence of the prosecution witnesses and reject that of the defense witness.   We therefore conclude that sufficient evidence existed from which a rational fact-finder could determine that defendant could not control his sexually violent behavior and would likely reoffend if released.



The judgment is affirmed.


FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.


HOLLENHORST, Acting P.J., and GAUT, J., concur.

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