Filed 4/30/18 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. JOSEPH BOCKLETT, Defendant and Appellant. D071983

(Super. Ct. No. MH110895 )

APPEAL from a judgment of the Superior Court of San Diego County, Howard H. Shore , Judge. Affirmed. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chie f Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.Joseph Bocklett appeals from a jury verdict adjudicating him a sexually v iolent

p redator (SVP) under the Sexually Violent Predators Act (the Act ) ( W elf

. & Inst

. Code , 1 § 6600 et seq. ). On appeal, he challenges the constitutionality of Penal Code section 3000, subdivision (a)(4) (hereafter Penal Code section 3000(a)(4)), which tolls the parole period for an SVP on equal protection and ex post facto grounds. He also asserts that the procedure for obta ining conditional release under the Act violates equal protection. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2014 the San Diego County D istrict A ttorney filed a petition seeking to commit Bocklett as an SVP under the Act. Bruce Yanofsky , Ph.D. , a clinical and forensic psychologist , evaluated Bocklett to determine whether he is an SVP

. Dr. Yanofsky interviewed Bocklett three times

— in 2014, 2015 and 2016. He reviewed Bocklett ' s criminal records, medical rec ords, probation reports, and police reports for two of Bocklett ' s crimes

. Dr. Yanofsky read a police report regarding the of fense Bocklett committed in 1976 , and then talked to Bocklett about that conviction. In 1976, when Bocklett was 31 years old, he molested his nine

- year old stepdaughter for several months. He then started molesting his five

- year - old stepdaughter

. Bocklett explained that he started molesting his stepdaughters for sexual gratification and found their innocence appealing. He pleaded guilty to a single count of committing a lewd or lascivious act on his younger stepdaughter in violation of Penal Code section 288. Bocklett was placed on probation 1 Undesignated statutory references are to the Welfare and Institutions Code.

2and received treatment. He did not find the treatment to be effect ive and did not " care for it. " In 1983, whe n he was 38 years old, Bocklett married a woman and then began molesting his four

- year - old stepson by having the child play with his penis, engaging in mutual oral copulation and then sodomizing the boy. Bockl ett admitted to Dr. Yanofsky that he enjoyed molesting the boy , had fantasies about him , and act ed out or experimented with some of his fantasies with the boy. The molestation continued for approximately a year, on an almost weekly basis. Bocklett pleaded guilty to sodomy ( Pen. Code , § 286, subd. (c)) and was sentenced to 13 years in prison. He was released from prison in 1990 and received treatment. He stopped receiving treatment because he did not want to hear about other people ' s problems.
B ocklett also told Dr. Yanofsky that in 1994 he molested the four

- year - old daughter of a woman he had met through a dating service and eventually married

. He saw the child naked and became excited. He started " r ubb ing her

. " He later oral ly copulat ed and digital ly penetrat ed the child. He found the molestation difficult to stop and believed that the conduct was " okay " as long as it was consensual or the child went along with it. He eventually pleaded guilty to a lewd or lascivious act on a child under 14 years old ( Pen. Code , § 288, subd. (a))

. Dr. Yanofsky determined that Bocklett had three qualifying prior convictions for sexual offenses and thus met the first SVP criteria. Bocklett also satisfied the second
SVP criteria, the presence of a mental health condition that predisposes a person to commit sexual crimes . Specifically, Dr. Yanofsky diagnosed him with pedophilic

3disorder, mixed type and nonexclusive in that Bocklett is sexually attracted to both male and female individuals, young children, and adults. Dr. Yanofsky also determined that Bocklett was likely to engage in violent sex offenses if released , the third SVP criteria

. Dr. Yanofsky testified that Bocklett ' s reoffense would be predatory in nature because
Bocklett has a history of forming relationships with vulnerable woman to gain access to their children to gratify his sexual needs. Harry Goldberg, Ph.D., a forensic psychologist, also interviewed Bocklett three times over three years to determine if Bocklett met the criteria for commitment as an SVP

. Dr. Goldberg also reviewed Bocklett ' s records, including police reports. Dr. Goldberg opined that Bocklett met the criteria for commitment as an SVP

. Brian Abbo t t, Ph.D., a licensed clinical psychologist, testified for the defense. He interviewed Bocklett three times

— in March 2015, April 2016 and January 2017. Dr. Abbott testified that Bocklett does not currently suffer from pedophilic disorder. Dr. Abbott found that Bocklett " may have continued to have pedophili c arousal through 2008, " but there was no evidence that Bocklett suffer ed from the disorder after 2008

. Dr. Abbott did not believe that Bocklett posed a serious and well

- founded risk of engaging in sexually violent predatory acts. Dr. Abbott reviewed the evaluations prepared by Dr s . Yanofsky and Goldberg. Dr. Abbott criticized the clinically adjusted actuarial approach utilized by Dr s . Yanofsky and Goldberg to evaluate Bocklett

. Although such an approach identifies sources of risk, Dr. Abbott testifi ed that an SVP evaluation is concerned with the probability or

4likelihood of risk. Thus, in Dr. Abbot t ' s opinion, the approach utilized by Dr s . Yanofsky and Goldberg is not relevant in addressing the substantial danger threshold.
DISCUSSION

I. THE ACT
An SVP is defined 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).) Whenever the d irector of the Department of Corrections and Rehabilitation d etermines that a defendant serving a prison term may be an SVP , a screening is conducted in accordance with an assessment protocol developed by the Department of State Hospitals (DSH)

. ( People v. Hurtado (2002) 28 Cal.4th 1179, 1183

. ) " ' If that screening leads to a determination that the defendant is likely to be [an SVP] , the defendant is referred to th e [DSH] for an evaluation by two psychiatrists or psychologists. (§ 6601, subds. (b) & (c).) If both find that the defendant " has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment a nd custody " ( § 6601, subd. (d)), [DSH] forwards a petition for commitment to the county of the defendant ' s last conviction ( ibid. ). If the county ' s designated counsel concurs with the recommendation, he or she files a petition for commitment in the superi or court. (§ 6601, subd. (i).) ' " ( Ibid. ) The trial court review s the petition and determine s " whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the

5[alleged SVP ] is likely to engage in sexually violent predatory criminal be havior upon his or her release. " (§ 6601.5.) If the trial court determines the petition, on its face, supports a finding of probable cause, then the court orders that the offender be kept in a secure facility unti l a probable cause hearing under section 6602 is conducted. (§ 6601.5.) If the trial court finds probable cause, it orders a trial to determine whether the offender is
an SVP under section 6600. (§ 6602, subd. (a).) The offender must remain in a secure facility between the time probable cause is found and the time trial is completed. ( Ibid. ) At trial, the trier of fact determines whether, beyond a reasonable a doubt, the offender is an SVP

. (§ 6604.) To establish a person is an SVP , the government m ust prove the following: (1) the offender has been convicted of a qualifying sexually violent offen se against at least two victims, (2) the offender has a diagnosed mental disorder, (3) the disorder makes it likely the offender would engage in sexua lly violent conduct if released, and (4) this sexually violent conduct will be predatory in nature. ( Cooley v. Superior Court (2002) 29 Cal.4th 228, 246 & fn. 9.) The government must establish these elements beyond a reasonable doubt and the jury must unanim ously agree before finding the defendant is an SVP . ( Reilly v. Superior Court (2013) 57 Cal.4th 641, 648.) If the trier of fact determines the offender is an SVP , the offender is committed for an indefinite term to the custody of the DSH for appropriate treatment and confinement in a secure facility. (§ 6604.) P ersons undergoing the commitment process as an SVP and persons committed as an SVP have their parole periods tolled until they are discharged from their SVP commitment. ( Pen. Code , § 3000(a)(4)

. )

6I I. ALLEGED EVIDENTIARY ERROR
A. Additional Background The People sought the admission of three exhibits

— one relating to each of Bocklett ' s qualifying offenses. Two of these exhibits contained redacted police reports relating to his 1983 and 1994 qualifying offenses. Defense counsel objected to the admission of the police reports as unreliable hearsay and not admissible under section
6600 a nd People v. Sanchez (2016) 63 Cal.4th 665 ( Sanchez )

. She contrasted the police reports with probation reports, which are subject to correction should a defendant object to the accuracy of their content. The trial court admitted the exhibits into evidenc e, explaining that the reports were admissible under section 6600, subdivision (a)(3 )

. B. Analysis
Bocklett contends that the admission of the police reports regarding his 1983 and 1994 qualifying offenses violated his right to due process. He claims t hat t he admission of the police reports was highly prejudicial as these reports provided the only real source of information describing his most recent q ualifying offense

. Even assuming, without deciding, that admission of the police reports was error, w e conclude that the assumed error was harmless.

" ' Hearsay evidence ' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [¶]

. . . Except as provid ed by law, hearsay evidence is inadmissible. " (Evid. Code, § 1200, subds. (a), (b).) On direct examination, experts may testify regarding the matters on which they relied in forming their opinion, but they may not testify as to the

7details of such matter s if they are otherwise inadmissible. ( People v. Coleman (1985) 38 Cal.3d 69, 92 , disapproved on another point in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32

. ) " The rule rests on the rationale that while an expert may give reasons on direct exa mination for his opinions, including the matters he considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence. " ( Coleman , at p. 92.) We apply " the abuse of discretion standard of review to
any ru ling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question. " ( People v. Waidla (2000) 22 Cal.4th 690, 725.) A n error regarding the admission of ev idence requires reversal if " it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. " ( People v. Watson (1956) 46 Cal.2d 818, 836

. )
In Sanchez , supra , 63 Cal.4th 665, o ur Supreme Court held that an expert cannot

" r elate as true case

- specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are c overed by a hearsay exception. " ( Id. at p. 686.) The court nevertheless reaffirmed the principle that an " expert may stil l rely on hearsay in forming an opinion, and may tell the jury in general terms that he did

so. " ( Id. at p. 685.) The Sanchez rule applies to civil SVP proceedings. ( People v. Roa (2017) 11 Cal.App.5th 428, 448

- 449 ; People v. Burroughs (2016) 6 Cal.App. 5th 378,
403 ( Burroughs ) .)

" The existence of any prior convictions [in an SVP proceeding] may be shown with documentary evidence

. . . including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the

8[DSH]

. " (§ 6600, subd. (a)(3).) Our high court later explained that " [b]y permitting the use of presentence reports at the SVP proceeding to show the details of the crime, the Legislature necessarily endorsed the use of multiple

- level

- hearsay statements that do not otherwise fall within a hearsay exception

. " ( People v. Otto (2001) 26 Cal.4th 200, 208 ( Otto ) , italics added.) T he expansive hearsay exception accorded by section 6600, subdivision (a)(3) was intended to reli eve victims of the burden of testifying about the details of crimes committed many years ago . ( Otto , at p. 208

. ) The Otto court concluded that the statutory authorization regarding the admission of such evidence did not violate a defendant ' s right to due process. ( Id. at p. 20 3 .) In Burroughs , the court held that police reports were admissible under the Otto hearsay exception . ( Burroughs , supra , 6 Cal.App.5th at p. 410.) Bocklett argues that t he analysis in Burroughs was flawed . We need not address this issue because, even if the trial court erroneously admi tted the police reports, the assumed error was harmless based on the expert testimony that relayed substantially all the conduct stated in the police reports. First, Bockle tt tacitly concede d that admission of the police report regarding his 1983 conviction was harmless. Th e police report for that crime relayed the victim ' s statement to his mother that Bocklett had " ' stuck his penis up [my] butt. ' " Bocklett, however, admitted this conduct to both Drs. Yanofsky and Goldberg. Bocklett told Dr. Yanofsky that he had engaged in mutual oral copulation with and sodomized the victim. Bocklett admitted essentially the same conduct to Dr. Goldberg

.

9The 1994 police report for Bocklett ' s 2000 conviction contains the victim ' s statement to her mother that Bocklett had touched her private parts while she was naked. She also told the police that she and Bocklett had put their " ' bodies ' " and " ' privacies ' " together. Regarding this conviction, Bocklett told Dr. Yanofsky that he rubbed, orally copulated, and digitally penetrated the victim

. He also told Dr. Goldberg that he would have the victim " sit on his lap and rock back and forth, and that led him to other incidents in which he would take his clothes off, would place lotion on [the victim] and fondle and penetrate her vagina, and then he also engaged in acts of oral copulation of her. " Bocklett does not contest that these statements were admissible under the hearsay exception for a party admission under Evidence Code section 1220. ( People v. Hovarter (2008) 44 Cal.4th 983, 1007

- 1008.) Based on this overwhelming admissible evidence of qualifying sexually violent offense s , any error in receiving the police reports in evidence was harmless. For the

same reason, there is no basis for Bocklett ' s contention that his due process right to a fair trial was violated.
II I. ALLEGED CONSTITUTIONAL VIOLATIONS
A

. Alleged Equal Protection Violation Regarding Tolling
1. General b ackground California provides for the involuntary civil commitment of several classes of offenders, either after or in lieu of a term of criminal incarceration, based on the risk of danger that they present to others or to themselves. These include SVP ' s (§ 6600 et seq.) and mentally disordered offenders ( MDO ' s ) ( Pen. Code , § 2960 et seq. ( the MDO Act ) )

.

10Under the MDO Act, " offenders who have been convicted of violent crimes related to their mental disorders, and who conti nue to pose a danger to society, receive mental health treatment during and after the termination of their parole until their mental disorder can be kept in remission. [Citation.] Although the nature of an offender ' s past criminal conduct is one of the criteria for treatment as [ a n MDO] , the MDO Act itself is not punitive or penal in nature. [Citation.] Rather, the purpose of the scheme is to provide MDO ' s with treatment while at the same time protecting the genera l public from the danger to society posed by an offender with a mental disorder. " ( In re Qawi (2004) 32 Cal.4th 1, 9 .) The MDO Act provides that an MDO may be involuntarily committed at three different stages: as a condition of parole ( Pen. Code , § 2962 ) , in conjunction with the extension of parole ( Pen

. Code , § 2966, subd. (c) ) , and following release from parole ( Pen. Code , §§ 2970 & 2972). ( Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1061

- 106 3, disapproved on other grounds by People v. Harrison (2013) 57 Cal.4th 1211 , 1230, fn. 2.)
2

. Equal p rotection and the Act

" Equal protection requires the state to treat similarly situated persons alike, with some exceptions in which the disparate treatment is sufficiently related to the purpose of the [la w] in question. " ( People v. Jacobs (1992) 6 Cal.App.4th 101, 103.) T he equal protection clause applies to civil commitment statutes " to ensure that a particular group of civil committees is not unfairly or arbitrarily subjected to greater burdens. " ( Peo ple v.
McKee (2010) 47 Cal.4th 1172, 1199 ( McKee I )

. ) The similarly situated inquiry

11examines whether two groups are similarly situated for purposes of the law challenged, not whether they are similarly situated for all purposes. ( I d. at p. 1202. ) Th e threshold question is " whether two classes that are different in some respects are sufficiently similar with respect to the laws in question to require the government to justify its differential treatment of these classes under those laws. " ( Ibid. ) " If p ersons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold. " ( People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
T he McKee I court concluded that MDO ' s and SVP ' s were similarly situated for purposes of equal protection analysis regarding the length of their commitment and the burden to prove release

. ( McKee I , supra , 47 Cal.4th at pp. 1202

- 1203.) T he case was remanded to the trial court to determine whether the People could demonstrate " the constitutional justification " ( id. at p. 1208) for the indefinite commitment provisions of the Act and imposing on SVP ' s a greater burden than is imposed on MDO ' s in order to obtain release from commitment. ( McKee I , at pp. 1208

- 1209.) On remand, the trial court in McKee I , supra , 47 Cal.4th 1172 held an evidentiary hearing and then issued a statement of decision finding that the People established, by a preponderance of the evidence, that the disparate treatment of SVP ' s " under the Act was based on a reasonable perception of the greater and unique dangers they pose compared

to " MDO ' s . ( People v. McKee (2012) 207 Cal.App.4th 1325, 133 2 ( McKee II ) .) On review, the appellate court affirmed the trial court ' s decision: " We, like the trial court, conclud e the disparate treatment of SVP ' s under the Act is reasonable and factually based and was adequately justified by the People at the evidentiary hearing on remand.

12Accordingly, we conclude the Act does not violate McKee ' s constitutional equal protection r ights. " ( McKee I , at p. 1348.) The Supreme Court denied review of
McKee II

. 3

. Additional b ackground Under the current version of Penal Code section 3000(a)(4) , persons undergoing the commitment process as an SVP and persons committed as an SVP have their parole periods tolled until they are discharged from their SVP commitment. (Pen. Code , § 3000(a)(4)(A).) If the person is ul timately determined not to be an SVP , the parole period is retroactively untolled and the person gets credit for the entire time spent in custody as a prospective SVP. ( Pen

. Code , § 3000(a)(4)( B ).) In contrast, under the MDO Act a state prisoner may be civilly committed for involuntary tr eatment as a condition of parole if statutorily enumerated criteria are met. ( Pen. Code , §§ 2962, 2966.) If the s tate wishes to continue the committee ' s involuntary treatment past the expiration of his or her period of parole, the appropriate district

att orney must file a petition in the superior court and prove at a hearing that the person continues to qualify for involuntary treatment, in which case treatment will be continued for one year, unless extended again under the same process. ( Pen. Code , §§ 29 70, 2972.)
4

. Analysis
Bocklett a rgues that Penal Code section 3000(a)(4) , which tolls the parole period for an SVP , violates his right to equal protection because he is similarly situated to MDO ' s who do not have a similar tolling provision. Bocklett concedes that he failed to raise this issue below, but claims it is cognizable on appeal because he was not adversely

13affected by the statutory provisions until he was actua lly committed as an SVP ; thus, there was no point in raising the issue in the trial court

. If we determine that trial counsel should have raised this issue, then he claims counsel provided ineffective assistance by failing to do so

. The People respond that we should decline to address Bocklett ' s equal protection argument beca use the issue is not ripe for review. Assuming the issue is ripe for adjudication, the People claim Bocklett forfeited the issue by failing to raise it once the trial court concluded that he met the SVP criteria.
For the sake of argument, we assume that the People ' s ripeness challenge to this argument is not well taken. We also exercise our discretion to address the argument on its merits to avoid Bocklett ' s alternative ineffective assistance of counsel claim. ( In re Spencer S. (2009) 176 Cal.App.4th 13 15, 1323 [we " have discretion to address constitutional issues " rais ed for the first time on appeal] .) Because we find no equal protection violation, we will assume, without deciding, that these two groups are similarly situated for purposes of the restri ctions to be placed upon them when they are returned to the community post

- commitment and proceed to the second step of the equal protection analysis. ( Id. at p. 1325.) Once it is determined that two groups are similarly situated for the purposes of a statute, we next must determine what level of analysis to apply to the distinction. Bocklett asserts that strict scrutiny is the correct standard for disparate involuntary civil commitment schemes because liberty is a fundamental right. The People disagr ee , arguing that rational basis review applies because the Penal Code section 3000(a)(4)

14tolling provisions applicable to SVP ' s do not significantly infringe upon a fundamental right . The People , however, also analyze the issue under the strict scrutiny s tandard. We need not dwell on this issue because, as we shall explain, Bocklett ' s disparate treatment argument fails under the strict scrutiny standard

. Under " the strict scrutiny standard, the state has the burden of establishing it has a compelling inte rest that justifies the law and that the distinctions, or disparate treatment, made by that law are necessary to further its purpose. [Citation.] Alternatively stated, applying the strict scrutiny standard, a law ' is upheld only if it is necessary to fur ther a compelling state interest. ' " ( McKee II , supra , 207 Cal.App.4th at p. 1 335.)
W e conclude that California has shown a compelling interest to toll the parole period for SVP ' s so that SVP ' s receive parole supervision after they have been fully discharged from their commitment . Notably, this is not a situation where MDO ' s are treated differently. Rather, it is a legal impossibility to toll the parole period for an MDO because mental health treatment for an MDO is imp osed as a condition of parole. ( Pen. Code , §§ 2962, 2966 .)
On its original enactment, the Act " narrowly target[ed] ' a small but extremely dangerous group of [ SVP ' s ] that have diagnosable mental disorders [who] can be identified while they are incarcerated

. ' " ( Cooley v. Superior Court, supra, 29 Cal.4th at
p. 253.) In McKee II , the court concluded " that t he nature of the trauma caused by sex offenses is generally more intense or severe than the trauma caused by nonsex offenses and is sometimes unique to sex offenses " ( McKee II, supra, 207 Cal.App.4th at p. 1343), and thus substantial evidence support ed " a reasonable perception by the electorate, as a

15legislative body, that the harm caused by child sexual abuse and adult sexual assault is, in general, a gr eater harm than the harm caused by other offenses and is therefore deserving of more protection. " ( Id. at p p . 134 3

- 1344

. ) Additionally, SVP ' s " pose a higher risk of sexual reoffending than do MDO ' s . " ( Id. at p. 1342 , italics omitted .) While MDO ' s are

" overwhelmingly treated with psychotropic medications, resulting in their stabilization and amenability to psychosocial support " ( id. at p. 1344), SVP " treatment plans are not based on medications, but rather on giving them the tools to limit their risk of sexually reoffending. " ( Id . at p. 1345.) " ' [A] s a class, SVP ' s are clinically distinct from
MDO ' s . . . and

. . . those distinctions make SVP ' s more difficult to treat and more likely to commit add itional sexual offenses than

. . . MDO ' s . . . . ' In pa rticular, SVP ' s are less likely to participate in treatment, less likely to acknowledge there is anything wrong with them, and more likely to be deceptive and manipulative. " ( Id. at p. 1347 .) The Legislature added the current version of the tolling provis ion to the Act by amendment (the 201 1 Amendment). ( Stats. 2011, c h . 359, § 3, operative Jan. 1, 201 2 .) Before the 2011 Amendment, Penal Code section 3000 provided that " ' the parole period of any person found to be a [SVP] shall be tolled until that person is f ound to no longer be [ an SVP] , at which time the period of parole, or any remaining portion there of , shall b e g i n to run. ' " (Assem. Com

. on Public Safety, Analysis of Sen. Bill No. 179 ( 2011

- 2012 Reg. Sess.) July 5, 2011 , p. 2

. ) The amendment was drafted to " close [] a loophole in the law to ensure that sex off enders serve their court

- ordered parole time. It does not expand or extend parole

— it simply corrects the timing of the parole. [¶] Due to an incons istency in the law, t he parole t ime f o r these off e nders begins as soon as they are

16released fr o m prison, and continues while the offender is being assessed in the state hospital under full security

— thus receiv in g overlapping supervision services. As a
consequence, some o ffe nders run out the clock on their three year court

- ordered parole time and are released into the co mmuni ty with no supervision

— contrary to the intent of
the l aw. [¶] [This bill] would ins tead require that the parole time occur after the offender is release d f r om hospital custody. " ( Ibid. ) An argument made in sup port of the bill noted that '' ' [u]nder current law, the parole period begin s to run as soon as the off e nder is released from prison. Thi s means that an o ffe nder believed to be an SVP can eff ec tiv e ly complete his or her man dated parole period while confined in a state mental hospital awaiting an often delayed judicial determination of SVP status

. As a result, offenders can be released into community with no supervision upon relea s e from the state mental hospi t a l. ' " ( Id. at p. 4. ) Bocklett does not address these concerns. Rather, Bocklett challenges the parole tolling provision that applies to SVP ' s , arguing that it does not serve a compelling governmental interest for SVP ' s to remain on parole after they have been fully discharged from their commitment. He maintains that once an SVP has been unconditionally discharged, the person is no longer an SVP and thus the risks identified in McKee II are no longer present . We disagr ee. The Legislature pointed out that the tolling provision impacts when parole starts ; it does not change the length of time an SVP spends on parole. Before the amendment at issue, parole started immediately when an individual ' s prison sentence ended, bef ore the individual was even determined to be an SVP . Due to the time needed to adjudicate an

17individual as an SVP , the individual ' s parole period could expire before the person was even adjudicated an SVP . Thus, an individual could be released into the c ommunity from SVP commitment with no parole supervision. The evidence presented in McKee II shows a compelling governmental interest
exists for SVP ' s to receive parole supervision after they have been fully discharged from their commitment

. T he clinical distinct ions between SVP ' s and MDO ' s " make SVP ' s more difficult to treat and more likely to commit additional sexual offenses than [] MDO ' s . " ( McKee II , supra , 207 Cal.App.4th at p. 134 7

. ) Critically, an SVP pose s a higher risk of sexual reoffending tha n does an MDO

. ( Id. at p. 134 2

. ) A lthough an SVP committee who is unconditional ly discharge d from custody is deemed not " likely " to reoffend (§ 6600, subd. (a)(1)) , t his does not mean that the individual poses no risk of reoffending. The risk of reoffense, " ' to a particularly vulnerable class of victims, such as children ' " ( McKee II , at p. 1347), justifies the requirement that a discharged SVP committee receive parole supervision. ( Ibid .) Accordingly, we conclude that the tolling
p rovision of the Act does not violate Bocklett ' s constitutional equal protection rights.
B

. Alleged Equal Protection Violation Regarding Conditional Release
1

. Additional b ackground

a . The MDO Act Under the MDO Act , a state prisoner may be civilly committed for involuntary

treatment as a con dition of parole if statutorily enumerated criteria are met. ( Pen. Code , §§ 2962, 2966.) When MDO treatment is ordered as a condition of parole, the treatment must be inpatient " unless the [DSH] certifies to th e Board of Parole Hearings that there is

18reasonable cause to believe the parolee can be safely and effectively treated on an outpatient basis, in which case the Board of Parole Hearings shall permit the [DSH] to place the parolee in an outpatient treatment program specified by the [DSH]. " ( Pen. Code , § 2964, subd. (a).) If the state wishes to continue the involuntary treatment of an MDO past the expiration of parole, the state must file a petition in the superior court and prove at a hearing that the person continues to qualify for involuntary treatment, in which case treatment will be continued for one year, unless extended again under the same process. ( Pen. Code , §§ 2970, 2972.) Where treatment has been continued, the court " has authority to release the MDO for outpatient treatment so long as it finds ' there is reasonable cause to believe that the committed person can be safely and ef fectively treated on an outpatient basis. ' " ( People v. May (2007) 155 Cal.App.4th 350, 359, citing Pen. Code , § 2972, subd. (d).) The statutory language of " reasonable cause to believe " requires the patient to " raise a strong suspicion in a person of or dinary prudence that outpatient treatment would be safe and effective. " ( People v. Gregerson ( 2011) 202 Cal.App.4th 306, 319.) This is similar to the " probable cause " standard imposed on the prosecution at a preliminary hearing. ( Id. at pp. 318

- 319.) b

. The Act
Three routes exist for an SVP to qualify for placement in an outpatient treatment program. First, t he d irector of DSH (the Director) " shall authorize the person to petition the court for conditional release to a less restrictive alternative " ( § 6604.9, subd. (d)) if the DSH determines in its annual report that " conditional release to a less restrictive

19alternative is in the best interest of the person and conditions can be imposed that adequately protect the community. " ( Id. at subds. (d), ( a ).) Second, after a year of commitment i n a facility designated by the D irector, an SVP is permitted to petition the court for conditional release witho ut the permission of the DSH. (§ 6608, subd. (a) , (f) .) If a patient files a petition for conditiona l release, t he patient is required to prove , by a preponderance of the evidence, his or her suitability for conditional release. (§ 6608, subd. (k).) Finally, the Director may forward a report and recommendation for conditional release under section 6608 when the Director " determines that the person ' s diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community. " (§ 660 7 , subd. (a) .) If the Director makes this determination, the Director forwards " a report and recommendation for conditional release in accordance with Section 6608 to the county attorney designated in subdivision (i) of Section 6601, the attorney of record for the
person , and the committing court. " (§ 6607, subd. (a).) When such a report and recommendation is filed, the court must " set a hearing in accordance with the procedures set forth in Section 66 08. " (§ 6607, subd. (b).)
2

. Analysis
Bocklett asserts that the Di rector is ignoring the duty under section 6607 to recommend conditional release and that this portion of the Act violates equal protection

. As support for this contention, Bocklett notes that a California Public Records Act request reveale d that from 2006 to the present only 17 people have been recommended

20for release by the treatment staff to the Dire ctor and in each of those cases the Director failed to recommend release. Bocklett claims that disparate treatment exists because
MDO ' s are routinely releas ed from custody into conditional release under favorable terms, but SVP ' s almost never are released

. 2 The People respond that this claim is not ripe for review. We agree.

" It is well

- settled law that the courts will not give their consideration to questi ons as to the constitutionality of a statute unless such consideration is necessary to the determination of a real and vital controversy between the litigants in the particular case before it. It is incumbent upon a party to an action or proceeding who as sails a law invoked in the course thereof to show that the provisions of the statute thus assailed are applicable to him and that he is injuriously affected thereby. " ( People v. Perry (1931) 212 Cal. 186, 193 ; People v. Williams (1966) 247 Cal.App.2d 169, 170 ; see People v. Carroll (2007) 158 Cal.App.4th 503, 508, fn. 2 [declining to issue advisory opinion as to constitutionality of Act provision that did not apply to decision under review].) We decline to issue an advisory opinion on the issue whether the Director should have f orward ed a report and recommendation for Bocklett ' s conditional release in accordance with s ection 660 8 because Bocklett failed to make a threshold factual showing that his " diagnosed mental disorder has so changed that [ he ] is n ot likely to 2 Bocklett requests that we take judicial notice of the relatively low rate at which the DSH approves persons committed as SVP ' s for release as support for his argument that there are constitutional flaws in the current version of section 6608. The People o ppose the request on the ground that the documents were never presented to the trial court. The request for judicial notice is denied because Bocklett has failed to explain why this new evidence was never offered to the trial court in a motion for new tri al. ( Estate of Schluttig (1950) 36 Cal.2d 416, 423.)

21commit acts of predatory sexual violence while under supervision and treatment in the community " as required by subdivision (a) of section 6607. Because Bocklett is appealing from his initial SVP commitment order and he has not challenged the sufficiency of the evidence supporting this commitment , Bocklett cannot make this showing as a matter of law. Moreover, Bocklett may not raise equal protection claims of other hypothetically disadvantaged SVP committees as a basis to invalidate the statu te ' s application to the circumstances of his case. ( People v. Garcia (1999) 21 Cal.4th 1, 11

- 12 [whether statute had hypothetical potential for equal protection violation " must await a case in which it is actually presented " ].) Bocklett also asserts that the Act violates equal protection because MDO ' s are immediately eligible for conditional release following their commitment , whereas SVP ' s must wait a year after commitment to file a petition (§ 6608, subd. (f)) , and a new petition cannot be filed unt il a year after the prior petition has been denied. ( Id. at subd. (j).) We shall a ssum e, without deciding , that this argument is ripe for review because it is easily disposed of under McKee I and McKee II

. Both decisions considered in their equal protection analyses the disparate treatment of SVP ' s resulting from the requirement that under the Act the SVP be committed for an indeterminate commitment period

. ( McKee I , supra , 47 Cal.4th at p. 1203; McKee II , supra , 207 Cal. App.4th at p. 1347.) Again, t he McKee II court f ound that the People had presented evidence showing that (1) the inherent nature of the mental disorder of SVP ' s makes recidivism significantly more likely as a class than for MDO ' s ( McKee II , supra , 207 Cal. App.4th at p. 1340); (2) victims of sex offenses suffer unique and general ly greater trauma than victims of nonsex

22offenses ( id. at p. 1342); and (3) SVP ' s are significantly different from MDO ' s in terms of diagnos is a nd treatment ( id. at p. 1344 ). The McKee II court also rejected the defendant ' s argument that the Act was unconstitutional unless it adopted the least restrictive means available to further the state ' s compelling interests. ( McKee II , at pp. 1348

- 1349.) The court stated: " We are unpersua ded the electorate that passed Proposition 83 in 2006 was required to adopt the least restrictive means available (e.g., a two

- year or other determinate term of civil commitment) in disparately treating SVP ' s and furthering the compelling state interests o f public safety and humane treatment of the mentally disordered. " ( Id. at p. 1349.) Bocklett ' s argument that immediately upon his initial commitment he should be allowed to petition for release, rather than wait a year, is simply a repackaging of the
argu ment rejected in McKee II that a less restrictive means existed ( e . g ., a shorter commitment term, such as immediate release) to further " the compelling state interests of public safety and humane treatment of the mentally disordered. " ( McKee II , supra , 207 Cal.App.4th at p. 1349.) Applying the reasoning in McKee II , we conclud e that the one

year waiting period is necessary to further the compelling state interest in providing

treatment to SVP ' s and protecting the public , and that there is no less burdensome alternative to effectuate those interests. Accordingly, we conclude that the one

- year waiting periods in the Act do not violate Bocklett ' s constitutional equal protection rights. 3

3 Although not entirely clear, Bocklett appears to also claim that SVP ' s and MDO ' s are subject to disparate treatment regarding either the burden of proof to obtain

23D

. Alleged Ex Post Facto Violation Regarding Tolling
1. Additional b ackground As originally enacted effective September 13, 1996 , Penal Code section 3000(a)(4) provided : " Any finding made pursuant to [the Act ], that a person is a [SVP] shall not toll, discharge, or otherwise affect that person ' s period of parole. " ( Pen. Code , § 3000(a)(4), as enact ed by Stats. 1996, ch. 462, § 3 , eff. Sept. 13, 1996.) Effective September 20, 2006, the Legislature amended Penal Code section
3000 (a)(4) to provide: " For any person being evaluated as [an SVP] pursuant to [the
Act ], parole shall toll from evaluation through the period of commitment, including conditional release under court monitoring, if any. The period during which parole is tolled shall include the filing of a petition for commitment, hearing on probable ca use, trial proceedings, actual commitment, and any time spent on conditional release under court monitoring. . . . Time spent on conditional release under the supervision of the court shall be subtracted from the person ' s period of parole. " ( Pen. Code, § 3000(a)(4), as amende d by Stats. 2006, ch. 337, § 45 , eff. Sept. 20, 2006.) Effective November 8, 2006, the statute was amended by the voters to provide:

" The parole period of any person found to be [ a n SVP] shall be tolled until that person is found t o no longer be [ a n SVP] , at which time the period of parole, or any remaining

conditional release, or what must be proven to obtain conditional release. We conclude either argument is not ripe for review because Bocklett has not filed a petition for conditional release under section 6608. Thus, the question whether he is disadvantaged as compared to an MDO , by what he is required to show or how he must make the showing, seeks an advisory opinion based on hypothetical facts, which we are not permitted to render.

24portion thereof, shall begin to run. " ( Pen. Code , § 3000(a)(4), as amended by Prop . 83, § 17, eff. Nov. 8, 2006.) Penal Code s ection 3000(a)(4), was amended in 2011, effective January 1, 201 2

. (Cal. Const., art. IV, § 8, subd. (c)(1) [statutes enacted at a regular session go into effect on Jan. 1 of the following year].) As amended, the statute toll s the period of parole for a person subject to SVP proceedings upon a finding of probable cause rather than upon a finding that the person is actually an SVP. ( Pen. Code , § 3000(a)(4), as amended b y Stats. 2011, ch. 359, § 1.5 .) At the same time, Penal Code section 3000, subdivision (a )(5), was added to provide as follows: " Paragraph (4) applies to persons released by the Department of Corrections and Rehabilitation on or after January 1, 2012. Persons released by the Department of Corrections and Rehabilitation prior to January 1, 2012, shall continue to be subject to the law governing the tolling of parole in effect on December 31, 2011. " ( Pen. Code , § 3000, subd. (a)(5), as added by Stats. 2011, ch. 359, § 1.5, eff. Jan. 1, 20 12 .)
2. Analysis Bocklett argues that the current version of Penal Code section 3000(a)(4), rather than the initial version enacted alongside the Act in 1996, violates his right to be free from ex post facto laws under the California and United States Constitutions. The People
arg ue this claim is not ripe because Bocklett will not be aggrieved by the operation of this

statute unless he is found to no longer meet the criteria for commitment as an SVP , granted his unconditional discharge from DSH , and released on parole. Assuming th e claim is ripe, the People contend Bocklett forfeited the claim by not raising it below. For

25purposes of analysis, we assume, without deciding, that Bocklett ' s claim is ripe for review and we exercise our discretion to address the issue on its merits.
Th e federal and state ex post facto clauses (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9) prohibit legislation " ' which makes more burdensome the punishment for a crime, after its commission

. . . . ' " ( Collins v. Youngblood (1990) 497 U.S. 37, 42 ( Collins ) ; People v. McVickers (1992) 4 Cal.4th 81, 84.) T he ex post facto prohibition is intended to ensure that individuals have " ' fair warning ' about the effect of criminal

statutes [ and ] ' restrict s governmental power by restra ining arbitrary and potentially vindictive legislation. ' " ( Landgraf v. USI Film Products (1994) 511 U.S. 244, 267.)

" The ex post facto clause prohibits only those laws that ' retroactively alter the definition of crimes or increase the punishment for cri minal acts. ' " ( McKee I , supra , 47 Cal.4th at p. 1 19 3 .)
In Hubbart v. Superior Court (1999) 19 Cal.4th 1138 ( Hubbart ) our high court ad dressed whether commitment of a prisoner under the Act violated the ex post facto prohibition if it was based on sexually violent offenses committed before the effective date of the Act

. ( Hubbart , at p. 1171 [ " The basic issue raised by [the prisoner was] whether the [Act] inflicts ' punishment ' within the meaning of Collins , supra , 497 U.S. 37,
43

. " ].) The Hubbart c ourt held that " the [Act] does not ' affix culpability ' or seek

' retribution ' for criminal conduct " ( Hubbart , at p. 1175), and rejected a prisoner ' s ex post f

acto argument. ( I bi d. ; see also McKee I , supra , 47 Cal.4th at pp. 1193

- 1195 [rejecting an ex post facto challenge to Act amendments modifying rules for release from commitment].) A judicial determination that a law is not punitive " removes an essential

26prerequisite for.

. . . ex post facto claims. " ( Kansas v. Hendricks (1997) 521 U.S. 346 , 3 69 .) S ince the Act is not punitive in nature, the constitutional provisions prohibiting ex post facto laws are inapplicable. Moreover, Bocklett committed his latest offense in 1994 , b ut t he Act and Penal Code section 3000(a)(4) were not enacted until 1996. ( Hubbart , supra , 19 Cal.4th at p. 1143; Pen. Code , § 3000(a)(4), as enacted by Stats. 1996, ch. 462, § 3 , eff. Sept. 13, 1996.) Accordingly, because the Act did not exist at the time of Bocklett ' s offenses he

was not subject to any increase in punishment based upon the tolling provision in the most recent version of the law as this provision is " clearly intended to operate and protect the public in the present , not to serve as additio nal punishment for past crimes. " ( In re
E.J. (2010) 47 Cal.4th 1258, 127 8 , 1279

- 1280 [ application of residency restrictions under Penal Code section 3003.5 to individuals released on parole after effective date of law does not violate ex post facto laws ].) For this reason, we hold that application of the law here did not impose any unconstitutional, increased punishment on Bocklett.

27DISPOSITION The judgment is affirmed.

NARES, J.
WE CONCUR:

HUFFMAN, Acting P. J.

GUERRERO, J.

28