THE PEOPLE v. RAMIRO MADERA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

On appeal from his indeterminate commitment as a sexually violent predator (SVP), Ramiro Madera challenges the judgment on numerous grounds.   We order a remand for a hearing on whether an indefinite commitment violates equal protection.  (People v. McKee (2010) 47 Cal.4th 1172 (McKee ).)   Otherwise we affirm the judgment.

BACKGROUND

On February 9, 2007, the district attorney filed a petition to extend Madera's Sexually Violent Predators Act (SVPA) commitment.  (Welf. & Inst.Code, § 6600 et seq.)   The petition alleged that he was convicted on February 20, 1990, after trial by jury, of two counts of first degree burglary (former Pen.Code, § 460.1), five counts of lewd or lascivious conduct with a child under age 14 (former Pen.Code, § 288, subd. (a)), three counts of sodomy of a child under age 14 (former Pen.Code, § 286, subd. (c)), and two counts of oral copulation with a child under age 14 (former Pen.Code, § 288a, subd. (c)) and that he served a separate prison term for each offense.   The petition alleged that he was found to be an SVP on March 27, 2003, leading to a two-year SVPA commitment, that he was found by a jury to be an SVP on June 16, 2005, leading to a two-year SVPA recommitment set to expire on March 27, 2007, and that he qualified for another SVPA recommitment due to a currently diagnosed mental disorder by reason of which he was likely to engage in sexually violent behavior in the future.

On March 19, 2007, the court found probable cause to believe Madera was an SVP. On October 27, 2008, his first trial by jury commenced.   On November 14, 2008, the court declared a mistrial after jury deadlock.   On July 16, 2009, his second trial by jury commenced.   He declined interview requests by petitioner's psychologists, Shoba Sreenivasan, Ph.D., and Dawn Starr, Ph.D., both of whom opined, on the basis of, inter alia, his criminal, hospital, and prison records and evaluations by other mental health professionals, that he met the diagnoses of pedophilia and antisocial personality disorder in the DSM–IV.¹  Both of his own psychologists, Brian Abbott, Ph.D., and Raymond Anderson, Ph.D., interviewed him and opined to the contrary, on the basis of, inter alia, those interviews, his criminal, hospital, and prison records, and evaluations by other mental health professionals.   On September 29, 2009, the jury found him to be an SVP.

ISSUES ON APPEAL

Madera argues that (1) an insufficiency of the evidence in support of the opinions of petitioner's psychologists that he was likely to engage in sexually violent behavior in the future fails to satisfy the requirement of proof beyond a reasonable doubt, (2) an insufficiency of the evidence of his likelihood to engage in sexually violent behavior in the future violates due process, (3) the admission of his SORAG and PCL–R evaluations was an abuse of discretion and a violation of due process, (4) the denial of his proffer of lay testimony about state hospital recordkeeping and research, his conduct both in and out of custody, and his post-release community support was an abuse of discretion and a violation of due process, (5) the reliance by petitioner's psychologists on hearsay in police reports about criminal charges of which he was acquitted was a violation of due process, (6) the refusal of his proffer of modified instructions was a violation of due process and his constitutional and statutory rights to trial by jury, (7) the discharge of the holdout juror during deliberations was a violation of due process and his constitutional and statutory rights to trial by jury, (8) the court lacked jurisdiction and his commitment was invalid since the standardized assessment protocol the Department of Mental Health (DMH) used to evaluate him was adopted without compliance with the Administrative Procedures Act (APA), and (9) the SVPA violates his right to equal protection and his confinement pending our Supreme Court's adjudication of that issue violates due process.

DISCUSSION

1.  Sufficiency of the Evidence:  Proof Beyond a Reasonable Doubt

Madera argues that an insufficiency of the evidence in support of the opinions of petitioner's psychologists that he was likely to engage in sexually violent behavior in the future fails to satisfy the requirement of proof beyond a reasonable doubt.   The Attorney General argues the contrary.

Under the SVPA, the petitioner has the burden of proof that Madera was “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.”  (Welf. & Inst.Code, § 6600, subd. (a)(1); ²  see § 6600, subd. (c).)  Madera challenges Sreenivasan's and Starr's reliance on the diagnostic tools on which one or both relied to opine he met the statutory criteria for an SVPA commitment.   He disputes the validity of, inter alia, the Static–99, the Static 2002, the Sex Offender Risk Appraisal Guide (SORAG), the Psychopathy Checklist–Revised (PCL–R), the Hanson & Morton–Bourgon meta-analysis, and the Hanson & Bussiere meta-analysis.   Echoing Abbott's and Sreenivasan's testimony, he argues that the SORAG can overestimate the risk of sexual recidivism.   Emphasizing Abbott's testimony “that the PCL–R is really not useful” in predicting whether someone Madera's age “has a higher risk for committing another type of criminal offense,” he contrasts Sreenivasan's testimony that the absence of treatment “is a factor in aggravating his risk” of recidivism with Abbott's testimony that there is “no significant difference in recidivism rates” between those who complete treatment and those who receive none.  (Italics added.)

After reviewing Madera's criminal and hospital records, his medical, psychiatric, and psychological evaluations, his conduct during incarceration, his refusal to undergo treatment, his refusal to let either of petitioner's psychologists interview him, and his scores on various diagnostic tools, both of petitioner's psychologists opined he was likely to engage in sexually violent behavior in the future.   On a challenge to the sufficiency of the evidence in an SVPA commitment, our duty is to review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination of the finder of fact.  (People v. Mercer (1999) 70 Cal.App.4th 463, 466 (Mercer ), citing People v. Johnson (1980) 26 Cal.3d 557, 576–578.)  “To be substantial, the evidence must be ‘ “of ponderable legal significance ․ reasonable in nature, credible and of solid value.” ’ ”  (Mercer, supra, at p. 466, citing Johnson, supra, at p. 576.)   The jury simply resolved against Madera the issues of the credibility and the conclusions of petitioner's psychologists.  (Mercer, supra, at p. 466.)   We are not free to reweigh or reinterpret the evidence but instead are obliged to draw all reasonable inferences in favor of the judgment.  (Id. at pp. 466–467.)

A person defending against an SVPA petition is entitled to a trial by jury, to the assistance of counsel, to professional examinations on his or her behalf, and to access to relevant medical and psychological records and reports as well as to a unanimous verdict on a foundation of proof beyond a reasonable doubt.   (Moore v. Superior Court (2010) 50 Cal.4th 802, 816–817, quoting §§ 6603, subds. (a), (f), 6604.)   That is the state of the record here.

2. Sufficiency of the Evidence:  Due Process

Madera argues that an insufficiency of the evidence of his likelihood to engage in sexually violent behavior in the future violates due process.   The Attorney General argues the contrary.   Madera's due process challenge is meritless in light of our holding that an insufficiency of the evidence of his likelihood to engage in sexually violent behavior in the future fails to satisfy the requirement of proof beyond a reasonable doubt.  (See ante, part 1.)

3.  SORAG and PCL–R Evaluations

Madera argues that the admission of his SORAG and PCL–R evaluations was an abuse of discretion and a violation of due process.   The Attorney General argues that the admission of both evaluations was proper and that error, if any, was harmless.

Before trial, Madera filed motions in limine to exclude evidence of his SORAG and PCL–R evaluations.   As to the SORAG evaluation, he relied on Sreenivasan's prior testimony about her anecdotal experience that the SORAG evaluation “seems to be an overestimate” and argued that several studies show that the SORAG, which purports to measure any type of violent recidivism, overpredicts sexual recidivism.   As to the PCL–R evaluation, he relied on prior testing by two other psychologists showing that he was in the “moderate” or “moderately high” range of psychopathy and argued that those scores (too old to be relevant) did not identify him as a psychopathic criminal and that using the PCL–R to raise one's sexual offense risk level was inappropriate, especially for a person his age.

After hearing argument, the court allowed both of petitioner's psychologists to testify about Madera's SORAG and PCL–R evaluations.   Sreenivasan characterized the SORAG as both “peer accepted” and “peer reviewed” but cautioned the jury it had only “a moderate level of accuracy in terms of sexual recidivism.”   Even though she used the SORAG because of its inclusion of “a couple of different risk factors” absent from the Static–99, she expressly declined to adopt the “higher risk category” the “crafters” of the SORAG assigned.   Instead she depicted Madera as having only a “moderate or medium level risk” on the basis of his overall SORAG score of 24.   His prior PCL–R testing by one psychologist generated a “moderately high” categorization, but that psychologist did not give him a score, so instead she “went with” the “lower score of 22” in prior testing by another psychologist who did give him a score.   Starr called the PCL–R demonstrably “one of the highest correlates for predicting reoffense” and opined that a person with a high level of psychopathy has a greater risk of a sexual reoffense than a person who is not a psychopath.   His PCL–R score of 22.4 in his prior testing put him “in the moderate range of psychopathy” and ranked him “in the 43rd percentile” of prison inmates.

The relevant law is settled.   An expert generally may base his or her opinion on any matter he or she knows, including hearsay that is not otherwise admissible on which reliance is reasonable for that purpose.  (People v. Catlin (2001) 26 Cal.4th 81, 137.)   The expert may explain the reasons for the opinion, including any matter on which he or she based the opinion, but prejudice may arise if, under the guise of reasons, the explanation brings incompetent hearsay evidence before the jury.  (Ibid.) So the court may exclude from an expert's testimony any hearsay whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.  (Ibid.) Nonetheless, an expert's need to consider extrajudicial matters and a jury's need to receive enough information to evaluate an expert's opinion may conflict with an accused's interest in avoiding substantive use of unreliable hearsay, so disputes in this area are generally left to the sound exercise of the court's discretion.  (Ibid.)

Our review of the record satisfies us that the admission of Madera's SORAG and PCL–R evaluations was not an abuse of discretion.   Since all four psychologists testified about other diagnostic tools as well (like the Static–99, the Static 2002, the Hanson & Morton–Bourgon meta-analysis, and the Hanson & Bussiere meta-analysis), the SORAG and PCL–R evaluations he challenges were but a small portion of the evidence on which they relied.   Additionally, Sreenivasan and Starr carefully limited the impact of Madera's SORAG and PCL–R evaluations.   Sreenivasan testified the SORAG was only moderately accurate in terms of sexual recidivism.   Both she and Starr conservatively gave credence to the lower “moderate” categorization from his prior PCL–R testing, not the alternative “moderately high” classification.

Third, the prejudice that the exclusion of evidence by Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.   To the contrary, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors.  (People v. Zapien (1993) 4 Cal.4th 929, 958.)   Madera's SORAG and PCL–R evaluations, like the other diagnostic tools about which petitioner's psychologists testified, were relevant, not extraneous, to their opinions.

Fourth, the court carefully admonished the jury that an expert witness's reference “to information that she's received from other sources” is not “for the truth of the matter stated from those sources” but “for the purpose of explaining the reasons for the expert's opinion.”   The court additionally cautioned the jury, “You may consider those statements only to evaluate the expert's opinion.   Do not consider those statements as proof that the information contained in those statements is true or false.”

On the record before us, the court's admission of the evidence at issue was not an abuse of discretion.   Since an abuse of discretion by the court is the premise of Madera's constitutional challenge, his due process argument, too, is meritless.  (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.) The essential question is “whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair.”  (Jammal v. Van de Kamp (9th Cir.1991) 926 F.2d 918, 919.)   The record persuasively answers that question in the negative.

4. Proffer of Lay Testimony

Madera argues that the denial of his proffer of lay testimony about state hospital recordkeeping and research, his conduct both in and out of custody, and his post-release community support was an abuse of discretion and a violation of due process.   The Attorney General argues the contrary.

Madera's trial brief identified lay witnesses whom he intended to call to “undermine” the opinions of petitioner's psychologists and to “support” the opinions of the defense psychologists.   His theory of relevance was that the basis of Sreenivasan's and Starr's opinions that he met the statutory criteria for an SVP commitment was to diagnose him as having an antisocial personality disorder, the essential feature of which is an enduring pattern of behavior, but that his witnesses were to portray as normal a lot of the behavior the psychologists interpret as antisocial.

In opposition, petitioner filed a motion in limine arguing that Madera's lay witnesses were “not qualified as mental health experts” and that their testimony would be more prejudicial than probative.   Testimony of family and friends, the opposition argued, would “invoke the sympathies of the jurors by pleading for the release of their friend or loved one.”   Testimony of SVPs, the opposition argued, would be irrelevant, might be incompetent, and could even be problematic enough to require legal representation at trial as to pending cases of their own.

At the hearing on the issue, Madera argued that the testimony of his lay witnesses was relevant to rebut his diagnoses of antisocial personality disorder and pedophilia, to show his offenses were aberrational, and to cast as incomplete and biased the records on which petitioner's psychologists rely.   The district attorney reiterated the objections in her opposition.   The court rejected the proffer and ruled the evidence inadmissible.

On appellate review of an Evidence Code section 352 ruling, the deferential abuse of discretion standard governs.  (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)   In a case analogous to Madera's, a person defending against an SVPA petition argued the court's rejection of his proffer of lay witness testimony was an abuse of discretion.  (People v. McRoberts (2009) 178 Cal.App.4th 1249, 1251.)   Affirming, the appellate court noted his “lay witnesses could not counter the opinions of the SVPA experts on the psychological issue of whether [he] was likely to reoffend if released to the community for treatment.”  (Id. at p. 1257.)   Madera's lay witnesses likewise could not counter the opinions of petitioner's psychologists that he had antisocial personality disorder and pedophilia and was likely to engage in sexually violent behavior in the future.   Here, as in McRoberts, no abuse of discretion appears.

Madera's due process argument is equally meritless.   The application of the rules of evidence generally does not impermissibly infringe on one's right to present a defense, so his attempt to inflate an ordinary evidentiary issue into a constitutional one is not at all persuasive.  (People v. Thornton (2007) 41 Cal.4th 391, 443 (Thornton ).)

5. Hearsay in Police Reports

Madera argues that the reliance by petitioner's psychologists on hearsay in police reports about criminal charges of which he was acquitted was a violation of due process.   The Attorney General argues the contrary.

Madera filed a motion in limine to preclude expert witnesses from considering or referring to criminal charges of which he was acquitted.   The district attorney filed a motion in limine to admit all hearsay evidence on which expert witnesses rely for their opinions.   The court denied Madera's motion and granted the district attorney's motion.

At trial, Sreenivasan and Starr both testified about the same two incidents.   After Sreenivasan testified about convictions involving three different boys, she noted that she “looked at the totality of the behavior” since “each behavior might not necessarily have corresponded with the conviction.”   The district attorney asked her whether “in that case” there were “other boys that were discussed as being molested.”   Answering in the affirmative, she testified that “two other boys” who knew Madera “as a friend of the family” found him in bed with them.   One reported Madera was “rubbing his penis.”   The other reported Madera fondled him, put the boy's penis in his mouth, had the boy put his mouth on Madera's penis, and put Madera's penis into the boy's rectum after applying lotion.   In response to his trial attorney's “objection concerning the acquittal in this case,” the court stated, “Noted.   And it's on the record, Counsel.   Thank you.”

After Starr testified about Madera's conduct resulting in his conviction of three counts of lewd or lascivious conduct, two counts of oral copulation, and two counts of sodomy, she noted that the next thing she does with reference to her diagnosis is to see “if there were any additional victims” who “appear to be credible” on “the issue of whether or not a person has a diagnosed mental disorder.”   She found “two additional victims identified in the police reports.”   One reported “he woke up in the middle of the night” and found Madera, who “was staying at the residence,” “in his bed rubbing on the [boy's] penis.”   The other reported “he woke up” and found Madera “rubbing his penis.”   Starr testified Madera was not convicted of either of those acts.

Police reports, preliminary hearing transcripts, probation reports, psychological evaluations, and victim statements are among the materials on which expert witnesses commonly and properly rely to form opinions in SVPA cases.  (See, e.g., People v. Otto (2001) 26 Cal.4th 200, 207–209 (Otto );  People v. Whitney (2005) 129 Cal.App.4th 1287, 1298–1299;  cf.  People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 151–155.)   By expressly authorizing the use of probation and sentencing hearing reports to show the “ ‘details underlying the commission of an offense,’ ” the SVPA itself “implicitly authorizes the admission of hearsay statements in those reports.”  (Otto, supra, at p. 207, quoting § 6600, subd. (a)(3).)

The settled rule allowing the admission of competent and otherwise admissible evidence of acquittal of a charge of another crime is fair to both parties since the evidence helps the jury in assessing the significance of the other crime with the knowledge that at another time and place a lawful tribunal found the person not guilty.  (People v. Griffin (1967) 66 Cal.2d 459, 464, 466;  cf.  People v. Brown (2011) 192 Cal.App.4th 1222, 1233;  People v. Mullens (2004) 119 Cal.App.4th 648, 662, 665–668.)   The reliability of evidence showing the underlying facts of a charge of which a person defending against an SVPA petition was acquitted should be evaluated on a case-by-case basis.  (See Otto, supra, 26 Cal.4th at p. 211.)   Here, no abuse of discretion appears.   Since the application of the rules of evidence generally does not impermissibly infringe on one's right to present a defense, Madera's due process argument is equally meritless.  (Thornton, supra, 41 Cal.4th at p. 443.)

6. Proffer of Instructions

Madera argues that the refusal of his proffer of modified instructions was a violation of due process and his constitutional and statutory rights to trial by jury.   The Attorney General argues the contrary.

Madera arranged his challenges into five categories.   First, he argues that the court erred by denying his request to authorize the jury to “consider the absence of evidence of a recent overt act.”   He submitted two instructions in that category.   One read, in part, “Even though proof of a recent overt act may not be required, the absence of a recent overt act may be considered by you to decide whether Respondent currently has a mental disorder, whether he currently has difficulty in controlling sexual conduct and whether he currently is a danger to the health and safety of others.”  (Special Inst. No. 8.) The other read, in part, “A recent overt act is a criminal act that shows a likelihood that the actor may engage in sexually violent predatory criminal behavior.   However, the absence of a recent overt act may be considered by you to decide whether Respondent currently presents a danger of reoffending in a sexually predatory manner.   The significance of a recent overt act or the absence of a recent overt act is for you to determine.”  (Special Inst. No. 14.)

Yet Madera's proffer of instructions on absence of evidence of a recent act was, for the most part, cumulative to CALCRIM No. 3454, with which the court instructed, in part, “In order to prove that Mr. Madera is a danger to the health and safety of others, the petitioner does not need to prove a recent overt act committed while he was in custody.  [¶] A recent overt act is a criminal act that shows a likelihood that the actor may engage in sexually violent predatory criminal behavior.”   That instruction closely tracked the relevant statutory language in the SVPA, “ ‘Danger to the health and safety of others' does not require proof of a recent overt act while the offender is in custody.” (§ 6600, subd. (d).)

Second, Madera argues that the court erred by denying his request to require the jury “to focus on [his] present condition rather than any past condition and not punish him for past acts.”   He submitted two instructions in that category.   One read, in part, “You are not being asked to decide Mr. Madera's mental condition at any time other than now.   Neither are you being asked to decide whether Mr. Madera is guilty of a crime.   Likewise, your purpose is not to punish Mr. Madera for any past acts.”  (Special Inst. No. 1.) The other read, in part, “Mr. Madera has already been punished to the extent required by the law for the crimes for which he was convicted.   Therefore, your role as jurors in this proceeding is not to punish Mr. Madera or seek retribution from Mr. Madera.”  (Special Inst. No. 13.)

Yet Madera's proffer of instructions on present condition rather than past condition was, by and large, cumulative to CALCRIM No. 3454, with which the court instructed, in part, “In determining whether the respondent is a sexually violent predator, you should consider all of the evidence introduced in the case, including the prior conviction of one or more crimes previously listed for you.  [¶] However, you may not find respondent to be a sexually violent predator based on the prior offenses without evidence of a currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior.”   That instruction closely tracked the relevant statutory language in the SVPA, “ ‘Sexually 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).)

So Madera's proffer of instructions on absence of evidence of a recent act and on present condition rather than past act replicated, if not the exact verbiage, at least the substance of different parts of CALCRIM No. 3454, with which the court instructed the jury.   Statutory language is generally an appropriate and desirable basis for an instruction, so if the jury will have no difficulty understanding the statute without guidance, then the court need do no more than to so instruct.  (People v. Carlin (2007) 150 Cal.App.4th 322, 345–346, citing People v. Estrada (1995) 11 Cal.4th 568, 574.)   That is the state of the record as to the first two categories of Madera's proffer of instructions.

Third, Madera argues that the court erred by denying his request to tell the jury that “the likelihood of sexually violent predatory recidivism must be ‘high’ and ‘more than a possibility’ ” and that the word “ ‘[l]ikely’ does not mean that it must be more probable than not that there will be an instance of reoffending' rather than that the likelihood need not be ‘greater than 50 percent.’ ”   He submitted one instruction in that category, which read, in part, “The word ‘likely’ as used in this definition means the person presents a substantial danger, that is, a serious and well-founded risk that he will commit sexually violent predatory crimes if free in the community.  ‘Likely’ means a high risk of reoffense.   It requires that the risk be more than a possibility.   However, ‘likely’ does not mean that it must be more probable than not that there will be an instance of reoffending.”  (Special Inst. No. 1.)

Yet the court instructed the jury with CALCRIM No. 3454, which used the word “likely” to define an SVP in part as a person who has a “diagnosed mental disorder” as a result of which “he is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavior” and cautioned the jury that a “person is likely to engage in sexually violent predatory criminal behavior if there is a substantial serious and well-founded risk that the person will engage in such conduct if released into the community.”  (Italics added.)   Additionally, the instruction informed the jury, “The likelihood that a person will engage in such conduct does not have to be greater than 50 percent,” and cautioned the jury not to find him “a sexually violent predator based on the prior offenses without evidence of a currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior.” (§ 6600, subds.(a)(1), (a)(3), italics added.)

That instruction closely tracked our Supreme Court's holding that the word “likely” in the SVPA “connotes much more than the mere possibility that the person will reoffend as a result of a predisposing mental disorder that seriously impairs volitional control.   On the other hand, the statute does not require a precise determination that the chance of reoffense is better than even.   Instead, an evaluator applying this standard must conclude that the person is ‘likely’ to reoffend if, because of a current mental disorder which makes it difficult or impossible to restrain violent sexual behavior, the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.”  (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922 (Ghilotti ), quoting § 6601, subd. (d), italics in original.)   Although Ghilotti defined the word “likely” in the context of the initial step in an SVPA commitment – the requirement that two mental health evaluators agree that a convicted sex offender “is likely to engage in acts of sexual violence without appropriate treatment and custody” (§ 6601, subd. (d), italics added) – our Supreme Court subsequently “reach[ed] the same conclusion with respect to the word ‘likely’ in section 6600, subdivision (a)” – the statute at issue in the charge to the jury here.  (People v. Roberge (2003) 29 Cal.4th 979, 982.)   The court adequately instructed the jury with CALCRIM No. 3454.

Fourth, Madera argues that the court erred by denying his request to describe as “if free in the community,” rather than “if released into the community,” his risk of sexually violent criminal behavior.   The one instruction he submitted in that category linked the word “likely” to “a substantial danger, that is, a serious and well-founded risk that he will commit sexually violent predatory crimes if free in the community.”  (Special Inst. No. 1.) “By identifying the risk as that which [he] would pose if ‘released into the community,’ ” he argues, “the instruction asked the jury to decide whether they should take it upon themselves to release [him], which implies that confinement is the standard default condition, rather than asking them to decide whether they should take it upon themselves to confine [him], which implies that being free in the community is the standard default condition.”

The court, however, instructed with CALCRIM No. 3454, which informed the jury that a “person is likely to engage in sexually violent predatory criminal behavior if there is a substantial serious and well-founded risk that the person will engage in such conduct if released into the community.”  (Italics added.)   Madera correctly quotes from Ghilotti the term he prefers, “if free in the community,” but the case intimates nothing at all about modifying an instruction on that basis.  (Ghilotti, supra, 27 Cal.4th at pp. 922, 927.)   Cases are not authority for matters courts do not consider.  (People v. Stone (2009) 46 Cal.4th 131, 140.)   He cites no authority for modifying an instruction on that basis.   Since every brief should contain a legal argument with a citation of authorities on points made, the reviewing court may treat as waived a point on which none is furnished.  (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley ).)   We do so here.

Fifth, Madera argues that the court erred by denying his request to require the jury to “apply to expert testimony the requirement to favor that reasonable conclusion from circumstantial evidence which points to non-SVP status over a contrary reasonable conclusion.”  (Special Inst. No. 4.) The one instruction he submitted in that category read, in its entirety, “Expert testimony is a form of circumstantial evidence in this case.  [¶] If you find the testimony of an expert believable, then you must apply the rules of circumstantial evidence to that testimony so as to give the Respondent the benefit or [sic ] any reasonable interpretation or inference based on that testimony.  [¶] For example, when an expert predicts a range of risk percentages that is applicable to persons similar to the Respondent, you are required to adopt the interpretation that describes the lowest risk.”

The charge to the jury, however, included three instructions on expert testimony and circumstantial evidence.   One instructed on expert witness testimony generally.  (CALCRIM No. 332.)   Another, a modification of CALCRIM No. 223, instructed on both direct and circumstantial evidence generally.   (Special Inst. No. 11.)   The other, a modification of CALCRIM No. 224, cautioned the jury about circumstantial evidence in the specific context of an SVPA case and read, in its entirety, “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the respondent is currently an SVP has been proved, you must be convinced that the petitioner has proved each fact essential to that conclusion beyond a reasonable doubt.  [¶] Also, before you may rely on circumstantial evidence to find that the respondent is an SVP you must be convinced the only reasonable conclusion supported by the circumstantial evidence is that the defendant is an SVP. [¶] If you can draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions points to a finding that the respondent is not an SVP and another that the respondent is an SVP, you then must accept the one that points to a finding that the respondent is not an SVP. [¶] However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”  (Special Inst. No. 12.)   Madera cites no authority requiring the court to give, on a record of abundant instruction on expert testimony and circumstantial evidence generally and in an SVPA case specifically, the additional instruction he proffered.   So again we treat his point as waived.  (Stanley, supra, 10 Cal.4th at p. 793.)

Even assuming, without deciding, the court erred in not giving the instructions Madera proffered, he has no remedy.   A challenge to the instructions in an SVPA case is governed by the federal beyond-a-reasonable-doubt standard of review.  (Chapman v. California (1967) 386 U.S. 18, 24;  People v. Fraser (2006) 138 Cal.App.4th 1430, 1456, citing People v. Hurtado (2002) 28 Cal.4th 1179, 1194 (Hurtado ).)   The charge to the jury here was quite adequate, and the instructions he proffered were essentially cumulative, so error, if any, was harmless beyond a reasonable doubt.

7. Discharge of Juror

Madera argues that the discharge of the holdout juror during deliberations was a violation of due process and his constitutional and statutory rights to trial by jury.   The Attorney General argues that the juror at issue committed misconduct warranting his discharge.

The crux of Madera's argument is that the court improperly inquired into the thought processes of jurors, applied the wrong standard to investigate juror misconduct, and discharged the holdout juror on a record that does not reflect a demonstrable reality of his inability to perform his duties as a juror.   By application of the demonstrable reality standard of review, the record satisfies us that the court's discharge of the holdout juror during deliberations was neither an abuse of discretion nor a violation of due process or the right to trial by jury.  (See People v. Barnwell (2007) 41 Cal.4th 1038, 1052 (Barnwell ).)   Our analysis of the record follows.

After counsel finished arguing the case and the court gave the final instructions, the bailiff took charge of the jury, but in light of the late hour the court excused the jury for the day without deliberations.   On the next day, the jury, after deliberating for a little less than an hour and a half, requested (1) a copy of the DSM–IV, (2) the “board from petitioner's opening/closing argument,” (3) a transcript of Abbott's, Sreenivasan's, and Starr's testimony “on psychological risk assessment regarding Static 99 and personality assessment test,” and (4) “the results of the last hearing.”   The court replied that items (1), (2), and (4) were not available since none of those was admitted into evidence and asked the jury to be “more specific” about item (3).

After deliberating for about another two-and-one-half hours, the jury asked the court that afternoon to clarify Special Instruction No. 12 on circumstantial evidence in the specific context of an SVPA case.  “We are struggling with the entire instruction,” the jury's note to the court stated.   The court replied in writing, “You must decide whether the circumstantial evidence presented in this case is reasonable or unreasonable.  [¶] Between two reasonable interpretations of circumstantial evidence, accept the one that points to “not true.”  [¶] However, you must reject unreasonable interpretations of circumstantial evidence.”

After deliberating for less than another half hour, the jury informed the court that afternoon, “We have reached an empass [sic ].   We cannot reach a decision.”   After conferring off the record with counsel, the court asked if explaining the instructions or the law to the jury or “wading into the fray” in any other way might help.   The foreperson replied in the negative and informed the court the jury was split, “Ten to two.”   Expressing hesitance “to declare a mistrial with one day of deliberations,” the court asked the jurors to relax for the night and to return for additional deliberations in the morning.

The next morning, the jury deliberated for about an hour and a half and informed the court, “After further discussion, we are unable to reach a verdict.   We are at 11–1.”   Outside the presence of the jury, the court opined that the jury's note “means over the course of the evening and this morning they inched closer to a verdict.”   The court chose to “engage the foreman in some conversation whether or not [Special Instruction No. 12] is still a problem, is everyone engaged in deliberations, are they following the law, are they basing their decisions only on the facts presented, that kind of thing.   See what we can flush out.”   So the court brought the jury in and asked if Special Instruction No. 12 was “still the issue.”   Replying in the negative, the foreperson said everyone was engaged in the deliberations and was following the law in the instructions but nothing else could be done without a readback of all of Sreenivasan's and Starr's testimony with reference to “the Static–99 and the Static 2002” and “the DSM–IV.”

“And are you basing your decisions only on the evidence presented in the court during the trial and not from any other source?,” the court inquired of the foreperson.   He replied, “I don't believe so, no.”   After a brief sidebar with counsel, the court excused the other 11 jurors and questioned the foreperson alone.  “It's our understanding,” he said, Juror No. 6 “is relying more on his expertise in the past to make his decision.   He's not judging the facts that were presented to us.”

The court excused the foreperson and conferred with counsel.   The district attorney recalled that Juror No. 6 “personally worked in the mental health field prior to his current job as a business consultant,” inferred from the foreperson's comments “that he is not following his oath to deliberate,” and asked the court to “replace him with an alternate” since “he is basing his opinion on his personal experience in the mental health field.”   Madera's attorney thought that was “inappropriate” since the sole source of information was “the majority view interpreting what his reasons for his decision are.”

At that juncture, the court questioned Juror No. 6 in the presence of counsel.   The foreperson, the court told him, felt he was “not taking into account the testimony in this case” but instead was “basing [his] decision on [his] own psychiatric training and what you know and what you don't know about that area.”   The court told him the foreperson felt he was not “using the law and the facts that were given in this case” but was “using [his] own expertise.”   The court asked if he had a comment on the foreperson's statements.  “Not true, Your Honor,” Juror No. 6 replied.

Elaborating, Juror No. 6 said he based his comments to the jury on empirical evidence as “presented” and on the law as “stated” and characterized the foreperson's opinion as “not a fair statement.”   In reply to the court's question whether he had “used any of [his] expertise” in his “background” in the “psychiatric field,” Juror No. 6 replied in the affirmative but defended himself by portraying the court's instructions as “very clear you can use the common sense and experience based on that to arrive at a particular decision.”   Asked by the court if he was using “anything based on [his] experience in the psychiatric field,” he replied, “Not all of it, Your Honor.”

The court asked Juror No. 6 if he was “using some of [his] prior knowledge in the field of psychiatric care.”   He replied, “I'm basing my knowledge and my knowledge based on my education, as well, in applying that evidence that it is evidence that was discussed that meets my convictions, Your Honor, and reasonably.”   The court asked, “So do you feel that you are completely leaving behind your psychiatric background to decide this case or you're using some of it to help decide?”   He replied, “I'm using some of it to decide based upon the testimony of that particular evidence as given presented in the particular case.”

Over defense objection, the court brought in each of the other 10 jurors, one by one, for questioning about the foreperson's comment that Juror No. 6 “was not taking into account the testimony but using his own background.”   Juror No. 1 said, “Juror No. 6 doesn't seem to be open to the possibility that the petitioner's witnesses are credible.”   He perceived that Juror No. 6 was “discounting any possibility that pedophilia is a chronic disease.”   On the basis of his comments “several times that in coming to his decision he's taking in his education” and “his work experience,” Juror No. 1 thought that Juror No. 6's “psychological training” was “certainly a component” of his deliberations.

Juror No. 3 informed the court that when other jurors asked Juror No. 6 “various questions” he answered by asking “another question,” that when other jurors asked him if there was anything “he would like to hear, or ask, he would not answer,” and that when other jurors asked him a “different question” or the “same question” he would repeat “the same question with no answer and no meaning.”   Juror No. 3 related a statement by Juror No. 6 “when we first started” that he would put his years of experience in front of “what we were trying to debate here and now.”   Asked by the court, “So he would use his own experience and not the evidence that was presented in the case?,” Juror No. 3 answered, “Exactly.”

Juror No. 4 opined that Juror No. 6 was “biased in some form based on his 13 or 14 years he had years and years ago at the beginning of his career.”   He found “nothing that Sreenivasan or Starr said to be credible,” she added, and did not believe “anything out of the DSM” about “antisocial or pedophilia.”   “Was he basing that on his psychological training and experience?,” the court inquired.  “A large portion of it,” she answered, “was based” more on “his previous medical background” than on the “actual testimony.”

The next juror whom the court questioned was presumably Juror No. 5, although the reporter's transcript identifies him only by a seven-digit juror number, not by a juror number from one through 12.   To the court's request for comment about the foreperson's observation that Juror No. 6 “was not taking into account the testimony based on his previous psychological or psychiatric training and experience,” he replied, “I don't know if I agree with that or not.”   He said he did not remember him “saying anything” about that.  “I wasn't even aware, to tell you the truth, that he had prior experience,” he added.

Juror No. 7 opined that when other jurors ask Juror No. 6 questions, “He goes off the subject a lot.”   To the court's question whether Juror No. 6 made “any comments in the jury room regarding his training and experience and how it applies to this case,” Juror No. 7 replied, “Kind of.   Sort of, yes.”   He informed the court that Juror No. 6 was “not putting aside his – his training with the DSM–IV” and that when other jurors asked him about pedophilia, “He said I don't have the DSM here, so I can't give you everything about it, about the pedophilia, the factors of pedophilia.”

The next juror whom the court questioned was presumably Juror No. 8, although the reporter's transcript identifies her only by a seven-digit juror number, not by a juror number from one through 12.   To the court's request for comment about the foreperson's observation, she said, “It's true.   It seems like he's using his knowledge from the past.”   She said Juror No. 6 was “trying to switch the scenario” and “just not cooperating.”   The court asked, “So he has his opinion and he's sticking to it?”   She replied, “Yeah.”

Juror No. 9 characterized Juror No. 6 as “very confusing.   He talks too fast and nobody can really understand him.”   She elaborated, “And when we ask him a question he ground around it and doesn't answer it.   And if he does, he answers it with another question.”  “And then he pretty much bases it on his 14 years of medical experience and all that.”   Asked by the court for examples, she said that when other jurors “talk about the medical experience” from the expert witnesses he says “that's not what I learned back then.”   Even after other jurors say “things change” and “we're dealing with right now,” she added, “he still wants to base it” on his previous psychological experience – on “what he knows from his past.”

Juror No. 10 replied to the court's request for comment about the foreperson's observation, “I feel the same way.   He's not listening to anybody else.”   When “anybody else says to him he just sloughs it off,” he added.  “He knows better.   He's smarter than all of us.”   Asked by other jurors why he felt that way, “he said well, in my experience, this, this and this.”   He said, too, that “he had worked 14 years in a mental hospital and he knew better than everyone.”

Juror No. 11 informed the court that “it was hard to discuss any – any of the situations” with Juror No. 6, whom he characterized as “starting to discredit all – all the testimony, whether it be for the petitioner or the respondent.”   Juror No. 6, he said, “referenced the things he knew” from his “14 years of experience” in the psychiatric field without differentiating that kind of experience from the “common sense” and the “life experience” on which the instructions allowed the jurors to rely.

The last juror whom the court questioned was presumably Juror No. 12, although the reporter's transcript identifies him only by a seven-digit juror number, not by a juror number from one through 12.   He said he thought Juror No. 6 was using “his background and experience,” adding that “we all feel that he's using that,” but when the court asked him if he had heard him “make any reference to his background or history” he replied, “Not necessarily.”   Describing Juror No. 6 as “kind of hardheaded,” he said, “It's like he's knowing more than the lawyers or he's knowing more than any one of us.”

After the questioning of all 12 jurors came to a close, Madera filed a “brief in support of declaring mistrial and not dismissing holdout juror.”   Since the district attorney chose not to submit anything in writing, the court heard argument at once from both counsel.   The court found that Juror No. 6's “prior training and experience has influenced him to the point that he is injecting external information in the form of his own claimed expertise or specialized knowledge of the matter at issue” and found juror misconduct, “which raises the presumption of prejudice.”   The court discharged Juror No. 6 and seated the alternate juror.   After deliberating for about an hour, the jury reached a verdict finding that Madera was an SVP.

A court “may discharge a juror for good cause at any time, including during deliberations, if the court finds that the juror is unable to perform his or her duty.”  (People v. Lomax (2010) 49 Cal.4th 530, 588 (Lomax ), citing Pen.Code, § 1089.)  “ ‘Grounds for investigation or discharge of a juror may be established by his [or her] statements or conduct, including events which occur during jury deliberations and are reported by fellow panelists.’ ”   (Lomax, supra, at p. 588, quoting People v. Keenan (1988) 46 Cal.3d 478, 532.)  “ ‘When a court is informed of allegations which, if proven true, would constitute good cause for a juror's removal, a hearing is required.’ ”   (Lomax, supra, at p. 588, quoting Barnwell, supra, 41 Cal.4th at p. 1051, italics in original.)   Even though decisions to investigate an allegation of juror misconduct and to discharge a juror are within a court's discretion, “ ‘a somewhat stronger showing’ than is typical for abuse of discretion review must be made to support such decisions on appeal.”  (Lomax, supra, at p. 589, quoting People v. Wilson (2008) 44 Cal.4th 758, 821.)

The standard of review on appeal – whether the basis for a juror's discharge appears on the record as a “ ‘demonstrable reality’ ” – is more comprehensive and less deferential than simply determining whether any substantial evidence in the record supports the court's decision.  (Lomax, supra, 49 Cal.4th at p. 589, quoting Barnwell, supra, 41 Cal.4th at p. 1052.)  “It must appear ‘that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established.”  (Lomax, supra, at p. 589, quoting Barnwell, supra, at pp. 1052–1053, italics in original.)   The reviewing court does not reweigh the evidence but inquires whether the court's conclusion “ ‘is manifestly supported by evidence on which the court actually relied.’ ”  (Lomax, supra, at pp. 589–590, quoting Barnwell, supra, at p. 1053.)

Here, the reports by Juror No. 6's fellow jurors established – with striking, even if not absolute, consistency – the demonstrable reality of his consciously shifting the focus of deliberations away from the evidence at trial and away from the law in the instructions to the knowledge he acquired from his own education, expertise, and training.   He did so with a number of stratagems, among which were his reiterating his own background and experience, his discrediting the opinions of expert witnesses and fellow jurors alike, his deflecting some questions from fellow jurors by asking questions of his own, and his declining altogether to answer some other questions from fellow jurors.

Juror No. 6's misconduct encompassed not only the court's express finding that he injected external information from his own training and experience into the deliberative process but also the court's implied finding that he refused to engage in the deliberative process.  “ ‘A refusal to deliberate consists of a juror's unwillingness to engage in the deliberative process;  that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views.   Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury.’ ”  (Lomax, supra, 49 Cal.4th at p. 589, quoting People v. Cleveland (2001) 25 Cal.4th 466, 485.)  “A refusal to deliberate is misconduct.”  (Lomax, supra, at p. 589.)   Applying the demonstrable reality standard, we are confident that the “court's conclusion is manifestly supported by evidence on which the court actually relied.”   (Lomax, supra, at p. 590, quoting Barnwell, supra, 41 Cal.4th at p. 1053.)   The court did not err in discharging Juror No. 6.

8.  Standardized Assessment Protocol

Madera argues that the court lacked jurisdiction and his commitment was invalid since the standardized assessment protocol the Department of Mental Health (DMH) used to evaluate him was adopted without compliance with the Administrative Procedures Act (APA).   The Attorney General argues that that the court did not lack jurisdiction and that his commitment was valid since the use of noncompliant protocol did not prejudice him.

The APA (Gov.Code, § 11340 et seq.) requires government agencies to comply with specific procedures in adopting administrative regulations.  (Gov.Code, § 11340.5, subd. (a).)  A regulation the Office of Administrative Law (OAL) finds noncompliant is known as an “underground regulation.”  (People v. Medina (2009) 171 Cal.App.4th 805, 813 (Medina );  Gov.Code, § 11340.5, subds. (a), (b).)  Due to lack of compliance with the APA, the OAL found the standardized assessment protocol adopted by the DMH to be an underground regulation.  (2008 OAL Determination No. 19, Aug. 15, 2008.)   A regulation adopted in violation of the APA is invalid.  (Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal.4th 324, 340.)   Though not binding on the courts, OAL findings are entitled to deference.  (Grier v. Kizer (1990) 219 Cal.App.3d 422, 435, disapproved on another ground by Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 577.)  In re Ronje (2010) 179 Cal.App.4th 509 (Ronje ), deferring to the OAL finding, held that “2008 OAL Determination No. 19 was correct” and that the use of the invalid protocol was “an error or irregularity in the SVPA proceedings.”  (Ronje, supra, at pp. 516–517.)   Neither party here disputes the holding in Ronje.   The question before us, then, is whether Madera's commitment is invalid due to the earlier use of the invalid protocol.

To address that question, we begin with an overview of the SVPA commitment process.   The initial identification of a possible SVP begins with a screening by the Department of Corrections and Rehabilitation (DCR) of an inmate's “social, criminal, and institutional history” for the commission of “a sexually violent predatory offense.” (§ 6601, subd. (b).)  If the screening identifies the inmate as likely to be an SVP, the DCR refers the inmate to the DMH for two mental health professionals to determine, using the standardized assessment protocol adopted by the DMH, whether the inmate meets the statutory definition of an SVP. (§§ 6600, 6601, subds.(b), (c), (d).)  If both mental health professionals agree that the inmate “has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody,” the DMH requests the filing of an SVPA commitment petition in the county in which he or she was convicted. (§ 6601, subd. (d);  cf.  Ghilotti, supra, 27 Cal.4th at p. 906.)  “The purpose of this evaluation is not to identify SVP's but, rather, to screen out those who are not SVP's.” (Medina, supra, 171 Cal.App.4th at p. 814.)

“ ‘The Legislature has imposed procedural safeguards to prevent meritless petitions from reaching trial.  “[T]he requirement for evaluations is not one affecting disposition of the merits;  rather, it is a collateral procedural condition plainly designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.” ’  (People v. Scott (2002) 100 Cal.App.4th 1060, 1063.)   The legal determination that a particular person is an SVP is made during the subsequent judicial proceedings, rather than during the screening process.  (Ibid.)” (Medina, supra, 171 Cal.App.4th at p. 814.)

Judicial proceedings, all of which occur after the use of the standardized assessment protocol, have several stages.   In the first stage, the court conducts “a facial review of the petition” to 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.”   (People v. Hayes (2006) 137 Cal.App.4th 34, 42 (Hayes );  § 6601.5.)

If the court so determines, the second stage of judicial proceedings is a probable cause hearing, at which the inmate has the right to receive the assistance of counsel, to present “oral and written evidence,” and to “challenge the accuracy” of the evaluations by cross-examination of the experts. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 245, fn.   8 (Cooley );  § 6602, subd. (a).)  At the probable cause hearing, the court determines “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).)  If the court so determines, the third stage of judicial proceedings is a trial, at which the court or the jury determines “whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release.”   (Ibid.)

The probable cause hearing in an SVPA case, like the preliminary hearing in a criminal case, tests the sufficiency of the evidence behind the allegations and protects the accused from having to face trial on groundless charges.   (Cooley, supra, 29 Cal.4th at p. 247;  Hayes, supra, 137 Cal.App.4th at p. 43.)   The probable cause hearing “is only a preliminary determination that cannot form the basis of a civil commitment;  the ultimate determination of whether an individual can be committed as an SVP is made only at trial. (§ 6604.)”  (Cooley, supra, at p. 247.)

On the issue of whether the use of noncompliant protocol later found to be an underground regulation deprives the court of jurisdiction, Madera cites no case, and we are aware of none, so holding.   Case law contradicts his position.  (See, e.g., Ronje, supra, 179 Cal.App.4th at pp. 518–519 [use of noncompliant protocol does not deprive court of jurisdiction];  Medina, supra, 171 Cal.App.4th at pp. 815–819 [same];  cf.  People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1127–1130 [filing of petition before DMH receipt of evaluations does not deprive court of jurisdiction].)   “In general, the only act that may deprive a court of jurisdiction is the People's failure to file a petition for recommitment before the expiration of the prior commitment.”  (People v. Whaley (2008) 160 Cal.App.4th 779, 804;  People v. Evans (2005) 132 Cal.App.4th 950, 956;  Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1171.)

On the issue of whether the use of noncompliant protocol later found to be an underground regulation invalidates a commitment, the standard of review of a probable cause hearing in an SVPA case and a preliminary hearing in a criminal case is harmless error, so irregularities that are “ ‘not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if the defendant can show that he [or she] was deprived of a fair trial or otherwise suffered prejudice as a result of the error.’ ”  (Hayes, supra, 137 Cal.App.4th at p. 50, citing People v. Pompa–Ortiz (1980) 27 Cal.3d 519, 529–530 (Pompa–Ortiz ), italics in original;  see also Medina, supra, 171 Cal.App.4th at p. 819;  cf.  Hurtado, supra, 28 Cal.4th at p. 1190.)   Madera fails to show that, if the mental health professionals screening him used a protocol compliant with the APA, “it was “reasonably probable he would have been screened out or otherwise would have been found not to be an SVP.” (Medina, supra, 171 Cal.App.4th at p. 820.)   His commitment was valid.³

9. Equal Protection

Madera argues that the SVPA violates his right to equal protection and his confinement pending our Supreme Court's adjudication of that issue violates due process.   The Attorney General argues the contrary.

In McKee, our Supreme Court held that the state had not discharged its burden of demonstrating why SVPs – but not other ex-felons (like mentally disordered offenders) who also are subject to a civil commitment – can be subject to an indefinite commitment without violating equal protection.   (McKee, supra, 47 Cal.4th at p. 1184.)   To give the state “the opportunity to justify the differential treatment in accord with established equal protection principles,” the court ordered a remand for a hearing.  (Ibid.) We grant like relief here.   Under the doctrine of stare decisis, our Supreme Court's decision in McKee is binding on us, so we reject Madera's due process argument out of hand.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The case is remanded for a hearing on whether an indefinite commitment violates equal protection.   The court is directed to suspend further proceedings pending finality of the proceedings on remand in McKee.  (McKee, supra, 47 Cal.4th at pp. 1208–1211.)  “Finality of the proceedings” shall include any subsequent appeal and any proceedings in the California Supreme Court.   In all other respects, the judgment finding Madera to be a sexually violent predator and ordering his commitment to the custody of the Department of Mental Health is affirmed.

Gomes, J.

WE CONCUR:

Levy, Acting P.J.

Kane, J.

FOOTNOTES

FN1. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM–IV)..  FN1. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM–IV).

FN2. Later statutory references are to the Welfare and Institutions Code unless otherwise noted..  FN2. Later statutory references are to the Welfare and Institutions Code unless otherwise noted.

FN3. Our holding moots the Attorney General's argument that by declining the court's offer of another probable cause hearing he waived his challenge to the protocol..  FN3. Our holding moots the Attorney General's argument that by declining the court's offer of another probable cause hearing he waived his challenge to the protocol.