1 Filed 3/20/13 P. v. Siler CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. MICHAEL ANTHONY SILER, Defendant and Appellant. A132078
(Alameda County Super. Ct. No. C162290)

Michael Anthony Siler appeals from an or der following a jury tr ial finding him to be a sexually violent predator (SVP) under the Sexually Violent Predators Act (Welfare
& Institutions Code 1 § 6600 et seq. (SVPA)) and committing him to the Department of Mental Health (DMH) for an in determinate term. Defendant contends: (1) the trial court
violated his Sixth Amendment right to counsel by refusing to suspend SVP until it found he had been restored to competency; (2) the tr ial court erred by inst ructing the jury on his refusal to testify; (3) the SVPA is void fo r vagueness; (4) there wa s insufficient evidence he had a qualifying diagnosed mental disorder; (5) the trial court erred by failing to instruct the jury sua sponte that they were required to unanimously agree on the qualifying diagnosed mental disorder; (6) the trial court erred by fa iling to instruct the jury sua sponte that an SVP co mmitment is for an indefinite time period; (7) the use by prosecution experts of actuarial tests in as sessing his risk of reoffending violated defendant’s rights to due pro cess; (8) the DMH used an i nvalid evaluation protocol to

1 Further statutory references are to the Welfare and Institutions Code unless otherwise noted.2 subject him to SVP proceedings; (9) amendmen ts to the SVP laws under Proposition 83 (Jessica’s Law) violate his constitutional ri ghts to due process a nd equal protection. Having considered defendant’s contentions , we conclude none have merit and, accordingly, affirm the judgment.

F ACTUAL AND P ROCEDURAL B ACKGROUND In November 2009, the Alameda County District Attorney (DA) filed a petition for commitment, alleging defe ndant is an SVP within th e meaning of section 6604 because he has suffered at least one qualifyi ng conviction for a sexually violent offense, currently has a diagnosed mental disorder, and poses a danger to the health and safety of others due to the likelihood he will engage in sexually violent, predatory criminal
behavior as a result of his diagnosed mental disorder un less he receives appropriate treatment in custody. The declaration filed in support of the petition states defendant is currently incarcerated at Mu le Creek State Prison with a parole release date of December 1, 2009 and that the Director of the California Department of Mental Health (Department) has requested that defendant be civilly committ ed as an SVP based on the evaluations of two independent mental health professionals, Dr. Mark Wolkenhauer and Dr. Douglas Korpi. The trial court received testimony from Drs. Wolkenhauer and Korpi at a probable cause hearing held on February 26 and March 1, 2010. Thereafter, the trial court found probable cause to believe defe ndant is an SVP and ordered him detained pending trial. In the pre-trial phase of the proceeding , the parties raised several issues now before us on appeal. Defendant filed a moti on to dismiss the petition on the grounds that defendant’s referral by the Department to the DA was based on evaluations conducted pursuant to an invalid protocol. Also, defe ndant filed a motion requesting a finding that he was restored to competency before the trial could proceed. 2 Alternatively, the People

2 In connection with this motion, defens e counsel submitted an independent forensic psychological evaluation of defendant’s compet ency to participate in the pending civil commitment proceedings conduc ted by Dr. Karen Franklin. Dr. Franklin concluded defendant suffers from a severe mental diso rder, with “primary symptoms including3 filed a trial brief seeking the court’s perm ission to call defendant as a witness if necessary. In response, defendant requested that the trial c ourt sustain “any proper claim of the privilege against self-incrimination.” In ruling on these issues, the trial court
denied defendant’s moti on to dismiss, finding that the 20 09 standardized protocol utilized by the Department complies with due proce ss and constitutes a standard assessment protocol as required by statute. In regard to defendant’s c ontention that the court make a finding that he was restored to mental competence in advance of trial, the court, relying

on Moore v. Superior Court , 3 concluded there is no due process right to be restored to trial competency for purposes of SVP proceedings and, accordingly, denied the motion. Finally, the trial court ruled that defendant could be called as a witness in the People’s
case in chief.
When trial commenced , the People called defendant as their first witness. Defense
counsel informed the court de fendant intended to invoke the privilege against selfincrimination under the Fifth Amendmen t, and the following colloquy ensued: “The Court: Mr. McCormick [defense counsel], it’s the law . . . that in . . . a civil case that the privilege does not apply. [¶] Do you acknowledge . . . that is the law?” [Counsel]: I do, your Honor. The Court: Have you so advised Mr. Siler? [Counsel]: I have. The Court: All right. [¶] Mr. Siler, I am re quired to order you to come forward and be sworn as a witness, and take the witness sta nd. [¶] Will you comply with that order? Defendant: I take the Fifth, y our Honor: self-incrimination. The Court: Then, I take it, that you will not comply w ith the order? Defendant: I take the Fifth, y our Honor: self-incrimination.”

auditory hallucinations, a fixed persecutory delusional belief system, paranoia, racing thoughts, diminished concentration and pressu red speech.” She attributed the onset of these symptoms to interfer on injections administered for hepatitis C in 2001, and concluded he was not competent to understand the nature of the proceedings or assist counsel.
3 Moore v. Superior Court (2010) 50 Cal.4th 802 ( Moore ).4 At this point, the court ordered a rece ss and, out of the presence of the jury,
informed defendant that if he refused to take the stand, the court would instruct the jury how to evaluate his refusal to testify. Defe ndant, in response to the court’s admonition,
invoked the Fifth Amendment. The trial resume d, however defendant refused to testify. Next, the People called a member of the DA’s staff to read documents describing defendant’s history of sexual offenses. The offenses chronicled for the jury began in September 1969, when defendant at age 18 entered M.A.’s residence while she was taking a shower, held a knife to her side and demanded money. 4 He then placed her naked on the bed and unzipped his pants. M.A. felt defendant’s penis on her leg and started fighting and screaming. Defendant positione d his penis and hands next to M.A.’s vaginal area but did not penetrate her. Instea d, defendant got off her, and M.A. fled the apartment to seek assistance. In Octobe r 1969, defendant entered H.T.’s apartment, grabbed her and demanded money. Defendant told H.T. he had been “watching [her] for a long time,” hit her about the face, threw he r on the bed and ripped off her clothes. Defendant climbed on top of H.T. and held a knife to he r throat, at which point H.T. passed out. The next document read to the jury described a December 1975 offense.
Defendant followed R.H. as she walked home from the market. As R.H. was going into her apartment building, defendant asked her if “the Jeffersons” lived there. She directed him to the manager’s unit. However, defendant followed R.H. to the third floor, grabbed her around the neck, put a kni fe to her throat and told her he would kill her if she
screamed. He then forced her downstairs to the carport area, pushed her to her knees and demanded money. Defendant th en threw R.H. onto her back , ripped off her pantyhose, called her a “bitch,” and vagina lly and anally raped her.
The DA staff member also read to the jury trial transcri pts of witnesses’ testimony describing incidents that occurred in November 1987. The transcript of K.B.’s testimony
reflected on November 28 she left the Blue Do lphin restaurant in San Leandro at around

4 Defendant was born on February 22, 1951.5 2:30 a.m. and began to drive home along Ma rina Boulevard. A few minutes later, defendant’s car pulled alongside and defend ant shouted at her to pull over. K.B. accelerated away and defendant followed. Defendant chased K.B. for about two miles, during which K.B. ran a red light in an a ttempt to escape defendant. The chase ended when K.B. pulled into the parking lot at a Quick Stop. Defendant approached K.B.’s vehicle on foot, informed her he was a poli ce officer and demanded angrily that she get
out of the vehicle. K.B. refused to ex it her vehicle and demanded defendant show a badge identifying him as an officer. At this point, a friend of K.B.’s happened to pull into the parking lot, and she ran to his tr uck. Defendant fled the scene and K.B. contacted the police. The transcript of M.G.’s testimony was also read to the jury. M.G. testified that she was driving along Marina Boulevard in San Leandro at around 2:30 a.m. on November 28. Defendant pulled up alongsid e her car, honked his horn and motioned her to pull over. When she failed to pull over, de fendant pulled in front and forced M.G.’s car to stop on the side of the road. Defendant approached her car on foot yelling, “Did you have anything to drink to night?” Defendant stated he was an Oakland Police Officer
and demanded M.G. exit her vehicle. Sh e refused and asked to see defendant’s identification. Defendant got really angry, opened the driver’s door of M.G.’s vehicle and grabbed her by the neck. M.G. accelerated away as fastas she could but defendant kept a hold of her neck while running alongsi de her vehicle. After the car picked up speed, defendant let go and the door slammed closed. M.G. looked in her rear view mirror and defendant was lying on the grou nd. M.G. was bleeding from the neck. Last, the DA read the trial testimony of M.B., recounting her contact with defendant in the early mornin g hours of November 28. M. B. testified that defendant pounded on her apartment door that morn ing, yelling he was a police officer and demanding she let him in becaus e “I’ve got to get to Tony.” Thinking her screen door was closed securely, M.B. opened the door a crack to see defendant, at which point he forced his way in at knifepoint. M.B. th en endured a horrific assault lasting several hours. Defendant beat her about the head, thre atened to slit her thro at and forced her to6 orally copulate him multiple times and forc ed her to lick up he r own vomit when she gagged on his penis. Defendant also ra ped M.B. multiple times both vaginally and anally. During the attack, defendant drank fro m a bottle of liquor and finally fell asleep holding onto the victim. Eventually, M.B. was able to free herself from defendant’s grasp without waking him and fled the apartm ent to seek assistance from a neighbor. The People also presented expert te stimony from Drs. Wolkenhauer and Korpi. Each offered expert opinions in the areas of psychology, risk a ssessment and addressed the criteria for determining wh ether defendant was an SVP. Dr. Wolkenhauer testified that in his opinion de fendant suffers from the mental diso rders of paraphilia not otherwise specified (NOS), paranoid schizophrenia and he concluded that defendant suffers from antisocial personality disorder as well. D r. Wolkenhauer defined defendant’s paraphilia NOS as relating to arousal based on the do minance and non-consent of the victim. Dr. Wolkenhuar opined defendant’s mental disord ers predispose defendant to reoffend as an SVP if released from custody. Dr. Korpi also diagnosed defendant with the mental disorders of paraphilia NOS and paranoid schizophrenia. However, he diagnosed
defendant with border line personality disorder. Rega rding his diagnosis of a sexual disorder (paraphilia NOS), D r. Korpi opined that defendan t’s rape of M.B. showed indicia of sadism, placing defendant some where on a continuum between rapism and sadism. As sadism was evident in only on e of defendant’s rapes, however, Dr. Korpi decided paraphilia (NOS) was the appropriate diagnosis because “it’s enough for him to
have sex with women who don’t want to have it. ” In regard to risk assessment, Dr. Korpi opined that defendant is likel y to reoffend as an SVP.
The sole witness for the defense was Dr. Brian Abbott, a licensed clinical psychologist and expert in the area of fore nsic psychology applied to the evaluation of sexually violent predators. Dr. Abbott tes tified that he diagnosed defendant with paranoid schizophrenia based upon defendan t’s bizarre delusions that the government implanted wiring and computer chips into his body in order to control him. Dr. Abbott disagreed with Drs. Wolkenhauer’s and Korpi’s diagnoses defendant suffered from paraphilia NOS. Dr. Abbott testified the NOS category listed in the Diagnostic and7 Statistical Manual (DSM) is not intended for diagnostic purpos es. Rather, that diagnosis is solely intended for “for clinical convenience” in prov iding treatment. Dr. Abbott opined there is a lack of consensus in the professional community regarding the diagnostic criteria for paraphilia NOS, thus the diagnosis is unreliable for use in SVP proceedings. Also, he opined the actuarial t ools used by Drs. Wolkenhauer and Korpi in
their risk assessments of de fendant’s likelihood of reo ffending in the future were unreliable as applied to defendant. Dr. Ab bott opined defendant does not suffer from a diagnosed mental disorder that predisposes him to commit SVP crimes and, accordingly, defendant does not present a substantia l risk of reoffending as an SVP. Out of the presence of the jury and prior to completion of the evidentiary portion of the trial, the court and counsel discussed ju ry instructions. At one such hearing, the parties discussed the instructions the court s hould give to the jury regarding defendant’s refusal to testify. Initially, the trial court pr oposed giving two instruc tions on this topic,
one based on CALCRIM 371 (Consciousness of Guilt: Supp ression and Fabrication of Evidence) and one based on Ev idence Code section 413 (Fa ilure to Explain or Deny Evidence) and defense counsel pr oposed the trial court use a ci vil instruction, BAJI 2.03. Ultimately, the parties agreed th at the trial court should wit hdraw the instruction based on
Evidence Code section 413 and instruct th e jury based solely on CALCRIM 371. As given, the instruction reads: “If, by refusing to testify, the Respondent tried to hide evidence, that conduct may s how that he was aware that he is a ‘sexually violent predator.’ If you conclude that the Respondent made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove that he is a ‘sexually viol ent predator’ by itself.” The jury after receiving the court’s inst ructions began its deliberations on the morning of May 12, 2011, and later in the af ternoon the same day delivered its verdict finding defendant is an SVP pursuant to sec tion 6600. On May 16, 2011, the trial court filed an order for commitment pursuant to s ection 6600. Defendant filed a timely notice of appeal on May 18, 2011.8 D ISCUSSION A. The Trial Court did not violate De fendant’s Right to Counsel When it Denied Defendant’s Request for Temp orary Suspension of Proceedings.

Defendant contends that the trial court violated his right to due process as well as his Sixth Amendment constitutional right to effective counsel when it refused to temporarily suspend the SVPA proceedings to facilitate restoration of his competency before proceeding to trial. According to defendant, in SVP pr oceedings the Sixth Amendment requires the state to make “reas onable efforts, for a reasonable time, to restore competence” before proceeding to tria l. Alternatively, defendant contends the court’s failure to suspend SVP proceedings for some minimally reasonable period in
order to facilitate his return to competence violated his right to due process. In pressing the latter contention, defendant acknowledge s the California Supreme Court held, in Moore v. Superior Court, supra, 50 Cal.4th 802, due proc ess was not offended by requiring a mentally incompeten t defendant, while represente d by counsel, to undergo a commitment trial. Nevertheless, he argues his due process claim is not foreclosed by
Moore , because Moore did not consider the issue he raises here—whether a temporary suspension of SVP proceedi ngs is required to protect his due process rights. For the reasons set forth below, we ag ree with the Attorney General’s argument
that the Sixth Amendment is not the source of defendant’s guarantee of effective assistance of counsel in SVP proceedings. Thus, the Sixth amendment provides no support for defendant’s denial-o f-counsel claim and, in all ev ents, he fails to establish prejudice on this record. Instead, the sour ce of defendant’s right to counsel in SVP proceedings is statutory in nature and thus whether his statutory right to counsel was violated is properly analyzed under the due process clause. However, we conclude that defendant’s due process cl aim is foreclosed under Moore . Addressing defendant’s due process claim first, we note in Moore, the court addressed the issue of whether “the defendant in an SVP proceeding has a due process right not to be tried or civilly committed while mentally incompetent” — an issue, the c ourt noted, “which is likely to arise in countless other cases.” ( Moore, supra, 50 Cal.4th at pp. 807-808.) The court9 noted that “SVP proceedings are civil, not cr iminal in nature,” therefore the constitutional rights available to criminal defendants do not apply. ( Id. at p. 818.) However, “because civil commitment involves a significant rest raint on liberty, the defendant in an SVP proceeding is entitled to certain due process protections. (Citations.)” ( Ibid. ) To determine “ ‘what process is due’ [to] a potential civil committee” ( Moore, supra, 50 Cal.4th at p. 819), courts bala nce four factors: “(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, an d the probable value, if any, of additional or substitute procedural safeguards; (3) the government’s interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute procedural requirement would entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the acti on and in enabling them to present their side of the story before a responsible government official. (Citations.)” ( Ibid. ) Employing this balancing test, the cour t acknowledged the liberty and dignitary
interests at stake in an SVP commitm ent proceeding are significant. (See Moore, supra, 50 Cal.4th at p. 824.) However, the court opined the risk of an erroneous deprivation of
such interests to an incompetent SVP defendant was “relatively attenuated” because defendant plays only a minor role in SVP proc eedings given “the nature of the issues, evidence, and findings in an SVP proceeding,” especially the preeminent role of expert opinion in resolving the critic al questions at issue. ( Moore, supra, 50 Cal.4th at p. 824.) The risk of an erroneous deprivation of an SVP defendant’s liberty and dignitary interests are further reduced, the court noted, by the “numerous procedural safeguards available to prevent an errone ous commitment in any SVP case, regardless of the contribution the particular defendant is willing or able to make . First, during trial, no defendant, including one who may be mentally incompetent, must pr oceed without “the assistance of counsel,” or without “the right to retain experts or pr ofessional persons to perform an examination” on his behalf. (§ 6603, subd . (a).) . . . [A]s a general rule, such “mandatory representation,” coupled with expert assistan ce, [is] ‘generally is beneficial’ to the defense. [Citation.] Other heightened statutor y requirements, like ju ry unanimity and the10 reasonable doubt standard of proof, help miti gate the risk that an incompetent person would be erroneously ad judicated as an SVP in the first place.” ( Ibid. ) Accordingly, the
court concluded “the risk-of-error” factor doe s not weigh in favor of finding the claimed due process right. ( Ibid. ) Pivoting to the “most critical factor” at issue — the governmental interests that “weigh against allowing SVP’s to avoid be ing tried or committed while mentally incompetent” — the court acknowledged the go vernment’s “ ‘strong interest in protecting the public from sexually violent predators, and in providing treatment to these individuals.’ ” ( Moore, supra, 50 Cal.4th at p. 825.) On this factor, the court concluded “[t]he state’s interest in en forcing [SVP] procedures, and in protecting the public, would be substantially impaired if an alleged SVP could claim, ba sed on his diagnosed mental disorders, that he was too incompetent to undergo a trial leadi ng to such targeted confinement and treatment.” ( Ibid. ) Overall, balancing the competing interest s at stake, “and plac ing special weight on the ‘paramount’ interest in public safety,” the Moore court held that “due process does not require mental competen ce on the part of someone undergoing a commitment or recommitment trial under the SVPA. [Citation.]” ( Moore, supra, 50 Cal.4th at p. 829.) Balancing the factors identified in Moore, supra, we reject defendant’s contention that due process requires a temporary susp ension in SVP proceedings to guarantee
effective assistance of coun sel. Defendant, as the Moore court stated, has significant liberty and dignitary interests at stake in the SVP proceedings . However, for the reasons
articulated in Moore , the risk-of-erroneous-deprivation fa ctor weighs against finding the due process right defendant presses here. (See Moore, supra, 50 Cal.4th at p. 824.) Likewise, as in Moore, “[t]he state’s interest in enfo rcing [SVP] procedures, and in protecting the public, would be substantially impaired” ( Moore, supra, 50 Cal.4th at p. 825) if we were to recognize the rudd erless due process right advanced by defendant, which would require suspensi on of SVP proceedings until the state made “reasonable efforts for a reasonable time to restore competen ce.” In sum, having balanced the factors
identified in Moore , defendant fails to establish any meaningful distinction between the11 claim he asserts here and the due process cl aim disposed of by the Supreme Court in
Moore. Therefore, we conclude that defendan t’s due process claim has no merit.
Defendant’s contention that the trial c ourt’s failure to tem porarily suspend SVP proceedings for a reasonable period violated his Sixth Am endment right to effective assistance of counsel fares no better. We agree with defendant, Moore did not address specifically the Sixth Amendment claim defe ndant presses here. However, for the reasons set forth below, we find his Sixth Amendment claim is meritless. In this regard, the United States Suprem e Court “has long held that the Sixth Amendment grants an indigent defendant the right to st ate-appointed counsel in a
criminal case[] (citation),” but the court has stated categorically that “the Sixth Amendment does not govern civil cases.” ( Turner v. Rogers (2011) 131 S.Ct. 2507, 2516.) “The categorization of a particular procee ding as civil or criminal ‘is first of all a question of statutory cons truction.’ [Citation.]” ( Kansas v. Hendricks (1997) 521 U.S. 346, 361.) However, both the high court an d the California Supreme Court have held SVP proceedings are civil, not criminal, in nature. (See Kansas v. Hendricks, supra, 521 U.S. at pp. 361-365 [Kansas SVPA was intende d to create a civil proceeding designed to protect the public from harm, as evidenced by th e fact “commitment under the Act does not implicate either of the two primary objec tives of criminal punishment: retribution or deterrence,” and the availability under the Ac t of “procedural safeguards traditionally
found in criminal trials . . . does not tran sform a civil commitmen t proceeding into a criminal prosecution”]; see also Allen v. Illinois (1986) 478 U.S. 364, 371-372 ( Allen ) [proceedings under the Illinois Sexually Danger ous Persons Act are not “criminal” within the meaning of the Fifth Amendment’s guarant ee against compulsory self-incrimination and the States’ “decision nevertheless to provi de some of the safeguards applicable in criminal trials cannot itself turn these procee dings into criminal prosecutions . . . .”]; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1170-1171 ( Hubbart ) [ex post facto clause “prohibits only those laws which ‘retroactively alter the definition of crimes or increase the punishment for criminal acts []’ ” and thus does not apply to the SVPA because “the Legislature disavowed any ‘punitiv e purpose[ ],’ and decl ared its intent to12 establish ‘civil commitment’ proceedings in order to provide ‘treatment’ to mentally
disordered individuals who cannot contro l sexually violent criminal behavior. (Citation.)”]; People v. Vasquez (2001) 25 Cal.4th 1225, 1231-1232 [“SVPA . . . is protective rather than punitive in its intent”].) Therefore, we have no trouble concluding that the the Sixth Amendment right to couns el does not apply in SVP proceedings which are civil in nature. (Cf. Turner v. Rogers, supra, 131 S.Ct. at p. 2516.) Accordingly,
defendant’s Sixth Amendment cl aim necessarily fails. (Cf. People v. Fraser ( 2006) 138 Cal.App.4th 1430, 1445-1446 [“because a civil commitment proceeding under the SVPA has a nonpunitive purpose and is th erefore not equivalent to a criminal prosecution, . . . there is no Sixth Amendment right to sel f-representation in SV PA proceedings”].) B. Defendant’s Failure to Testify Defendant asserts that a potential civil committee in SVP proc eedings has a right to refuse to testify. Accord ing to defendant, this right is founded on the right not to incriminate himself, and, more broadly, on California’s constitutio nal right of privacy. 5 We are not persuaded. The Fifth Amendment’s guarantee against compulsory self-incrimination does not apply in the context of civil pr oceedings under the SVPA. (See Allen, supra, 478 U.S. at p. 375 [holding that proceedings under the Illinois Se xually Dangerous Persons Act “are not ‘criminal’ within the meaning of th e Fifth Amendment to the United States Constitution, and that due process does not independently require application of the privilege]; People v. Leonard (2000) 78 Cal.Ap p.4th 776, 792 [“ Allen [] defeats
defendant’s claim the districtattorney was not entitled to call him as a witness in the SVPA proceedings”].) Furtherm ore, to establish a cognizab le violation of right to

5 “Article I, section 1 of the Californi a Constitution provides: ‘All people are by nature free and independent and have inalie nable rights. Among these are enjoying and defending life and liberty, acquiring, possessi ng, and protecting pr operty, and pursuing and obtaining safety, happiness, and privacy .’ [¶] The phrase ‘and privacy’ was added to California Constitution, article I, section 1 by an initia tive adopted by the voters on November 7, 1972 (the Privacy Initiative or Amendment).” ( Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 15 ( Hill ).)13 privacy under Article I, section 1 of th e California Constitution defendant must demonstrate (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) a serious invasion of the privacy interest. ( Hill, supra, 7 Cal.4th at pp. 35-37.) Assuming, arguendo, defendant had some legally protected privacy interest and a reasonable expectation of privacy in not testifying at his SVP hearing, defendant fails to present any evidence of disclosure or any facts that would otherwise prove he suffered a serious invasion of the purported privacy interest based upon the State’s
decision to call him as a witne ss in the SVP proceedings.
Defendant also claims the trial court erred by adversely instructing the jury regarding his refusal to testify, asserting th e instruction was unwarranted as there was no
evidence defendant’s refusal to testify was motivated by a desire to hide evidence. Given that defendant may not invoke the protections of the Fifth Amendment in the proceedings under the SVPA (see Allen, supra, 478 U.S. at p. 375), we cannot say the trial court committed legal error in instru cting the jury regarding defe ndant’s failure to testify. 6 In all events, pursuant to the jury instruction concerni ng defendant’s failure to testify, the jury was free to d ecide whether defendant tried to hide evidence by refusing to testify, and, if he was hiding evidence, to decide its meaning and importance. Moreover, although the prosecutor mentioned defendant’s refusal to testify in her closing argument, she did not, to her credit, argue the jury should draw the inference that by failing to testify defendant was hiding evidence pertinen t to the determination whether he is an
SVP. 7 Thus, even if it was given erroneous ly, defendant was not prejudiced by the
instruction.

6 Nevertheless, in light of the “tangentia l” relevancy of defenda nt’s testimony to the jury’s ultimate determination whet her defendant is an SVP (see Moore, supra, 50 Cal.4th at pp. 823-824) and the fact defendant was lik ely psychotic and delusional, we fail to see how the dignity of the procee dings would have b een enhanced by putting defendant on the witness stand; thus, the prosecutor may have been better advised to exercise the considerable discretion granted to he r under our system of justice (see People v. Dehle (2008) 166 Cal.App.4t h 1380, 1387), and not call defendant as a witness in this case.

7 Indeed, in his closing ar gument, defense counsel comme nted as follows regarding the instruction on defendant’s fa ilure to testify: “To her cr edit, [the prosecutor] didn’t14 C. Vagueness Challenge “[T]he terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what cond uct on their part will render them liable to its penalties.” ( Connally v. General Const. Co. (1926) 269 U.S. 385, 391.) This requirement is “consonant alike with ordinary notions of fair play and the settled rules of
law. And a statute which either forbids or re quires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. (Citations).” ( Ibid. )
The SVPA defines an SVP as “a person who has been convicted of a sexually violent offense against one or more victims and who has a diag nosed 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) [italics added.) Defendant contends the “likely” standard rend ers the SVPA constitutionally vague. However, defendant has forfeited this claim because he failed to raise the claim before the trial court. ( In re Josue S (1999) 72 Cal.App.4th 168, 170-171 [“ ‘No procedural principle is more fa miliar to this Cour t than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in cr iminal as well as civil cases by the failure to make timely assertion of the right before a tr ibunal having jurisdic tion to determine it.’ [Citation.]” [Citation.]’ [Citation .]”].) In any event, even if this issue were properly before us, we would reject it because the me aning of “likely to engage in acts of sexual violence’” was clearly explai ned by our Supreme Court in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 894 ( Ghilotti ).
In Ghilotti , the court “conclude[d] that the phrase ‘ likely to engage in acts of sexual violence’ (italics added), as used in section 6601, subdivision (d), connotes much more than the mere possibility that the person will reoffend as a result of a predisposing

make that big a deal about it, but to some extent, it’s kind of like kicking him when he’s down. The law does permit him to be called as a witness. He didn’t do what he was supposed to do. So, okay, if you want to hold that against him, you can, but when you know the whole story, that’s justan unfair thing to do.”15 mental disorder that seriously impairs voliti onal control. On the other hand, the statute does not require a precise determination that th e chance of reoffense is better than even. Instead, an evaluator applying this standa rd must conclude that the person is ‘ likely ’ to reoffend if, because of a current mental disorder which makes it difficu lt 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 cr imes if free in the community .” ( Id. at p. 922 [italics added].) Contra ry to defendant’s assertions, the court’s clear definition of the phrase “likel y to engage in acts of sexual violence” comports with due process requirements. Acco rdingly, we reject defendant’s claim the SVPA is constitutionally vague on that ground. D. Sufficiency of the Evidence Re garding Diagnosed Mental Disorder
In order to commit defendant as an SV P, the People had to prove beyond a reasonable doubt, inter alia, that defendant currently su ffers from a diagnosed mental
disorder. 8 Regarding this element the jury was in structed the term “ ‘diagnosed mental disorder’ includes conditions either existing at birth or acquired after birth that affect a person’s ability to control emo tions and behavior and predis pose that person to commit
criminal sexual acts to an extent that makes him or her a menace to the health and safety
of others.’ ”
Defendant contends the record fails to reflect sufficient evidence he currently suffers from a diagnosed mental disorder because the opinions rendered by the prosecution experts primarily rely on his past convictions for their diagnosis of the mental disorder paraphilia NOS. 9 This contention is unpersuasive.

8 The jury was instructed that to commit defendant as an SVP, the People had to prove beyond a reasonable doubt (1) defend ant committed a qualif ying offense against one or more victims; (2) defendant has a diagno sed mental disorder; (3) as a result of that diagnosed mental disorder, defendant is a da nger to the health and safety of others because it is likely he will engage in sexually violent predatory cr iminal behavior; and (4) it is necessary to keep defe ndant in custody in a secure facility to ensure the health and safety of others.

9 Defendant also contends, un der a section of his brief entitled, “The Demise of Paraphilia NOS,” that paraphilia NOS “fails as a sufficient ‘diagnos ed mental disorder’16 First, we note past criminal conduct ha s a “proper role” to play in the SVPA
commitment determination and thus the prosecution experts could consider defendant’s past crimes in assessing whether he currently suffers from a diagnosed mental disorder. (See Hubbart, supra, 19 Cal.4th at pp. 1163-1164, [noting the high court “has consistently upheld commitment schemes author izing the use of prior dangerous behavior to establish both present mental impairme nt and the likelihood of future harm. (citations)”].) Moreover, in forming his diagnosis, Dr. Wolk enhauer reviewed not only documents reflecting defendant’s past crimes, but also re viewed defendant’s medical
records and interviewed defe ndant in person at Mule Creek State Hospital. In forming his diagnosis, Dr. Wolken hauer identified a pattern, or modus operandi, to defendant’s offe nses demonstrating paraphilic arousal based on subjecting
victims to nonconsensual sex. Dr. Wolkenhaue r noted several factors in support of his opinion: All of the nine victims were strange rs to defendant; he wa s married at the time he committed the vast majority of sex offe nses, suggesting his actions were based on more than a simple need for sex; and, de fendant’s marked persistence and lack of volitional control, demonstrated by the factdefendant committed many of the offenses while on probation or parole. Dr. Wolkenha uer also considered defendant’s “hypersexual” behavior as a juvenile , noting he had sex with a nine year-old when he was 12 or 13 years of age and also engaged in peepin g Tom activities while in junior high school. Moreover, during his interview with Dr. Wo lkenhauer, defendant stated he had “a problem with lust” and Dr. Wolkenhauer note d defendant’s victims ranged widely in age

within the meaning of the SV PA. This contention, howeve r, is founded on citations to articles and correspondence that were not part of the record below, and we therefore must disregard that material in this proceeding. ( People v. Jacinto (2010) 49 Cal.4th 263, 272– 273, fn. 5 [appellate court ge nerally not the forum in which to develop an additional factual record and reviewing courts generally do not take judicial notice of evidence not presented below but only consider matters part of record at time judgment rendered].) Moreover, “ ‘[t]here is no duty on this court to search the record for evidence’[citation]” ( Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361 , 1379), therefore we shall simply disregard this contention. ( Ibid. [stating “an appellate court may disregard any factual contention not sup ported by a proper citation to the record [citations]”].)17 from teenagers to older adults, demonstrati ng “some persistent urge.” According to Dr. Wolkenhauer, although defendant has been incarcerated since 1988 he continues to suffer from paraphilia NOS because the conditi on is “chronic and life-long” and “doesn’t just go away” and defendant had not been treated fo r the condition during his incarceration. In fact, defendant specifica lly declined sex offe nder treatment. Dr. Korpi, the other prosecution expert, stated the criteria for paraphilia NOS are (1) a person has fantasies, urges or behavi ors concerning sex with nonconsenting adults for a period of more than six months and (2 ) the person’s fantasie s, urges or behaviors concerning sex with nonconsenting adults caus es substantial disruption in that person’s life. According to D r. Korpi, to determine if a pers on has paraphilia NOS, “you tend to look at it chronologically[,] . . . from when they were a baby to where they are now, and look at how the person develops.” D r. Korpi identified cr itical incidents from defendant’s chronology in sup port of his diagnosis of paraphilia NOS. First, as a juvenile, defendant told a probation officer he “gets increased sexual stimulation in precarious situations when he has sex with older girls”; defendant had sex with a nine year old girl when he was 12 years old; defendant engaged in peeping Tom behavior in junior high school; and defenda nt engaged in incidents of i ndecent exposure. According to Dr. Korpi, defendant’s behaviors as a juve nile “could be early signs of symptoms of a
sexual disorder.” The next point in defendant ’s chronology is Septembe r 1969 when defendant was 18 years old and suffered a conviction for assau lt-to-commit rape of a 20-year old victim. Korpi thought because defenda nt asked for money this ma y have been a robbery and
because defendant ran off when the victim screamed, “maybe this is a guy who really doesn’t like rape.” Shortly thereafter, in Oc tober 1969, defendant wa s arrested for assault to commit rape. The fact this arrest occured while defendant was on bail for the September 1969 offense made Dr. Korpi think for the first time that “we might have something; that there’s something wrong with him.” Also, defendant told the October 1969 victim, “I’ve been watching you for the longes t time,” indicating stalking, planning, and sexual anticipation. And th e fact defendant pulle d down his pants and18 pulled off the victim’s clothes means he’s no w “thinking about rape.” Only six days later, defendant was charged with indecent ex posure and battery after trying to drag a woman into his car, indicating “there’s some driving force going on here.” Next, Dr. Korpi noted after defendant pleaded guilty to the above offenses, he told a prison psychiatrist “rape is on my mind,” admitted he is a mentally disord ered sex offender and requested treatment, suggesting defendant was “looking for explanations why he did this” and had “genuine concern[ s]” about himself. According to Dr. Korpi’s diagnosis, the next signifi cant point in defendant’s chronology is June 1973, after defendant was released from prison. Only eight months later, while still on parole, defendant was charged with rape of a 15-year-old girl; the girl alleged defendant gave her a ride, stopped near her home, locked the car, and threatened her with a crow bar before raping and sodomi zing her. However, the district attorney did not press charges because the vi ctim did not want to prosecut e. Dr. Korpi stated he was not “absolutely sure” if defenda nt suffered from paraphilia at th is point in the chronology, but he was “getting very clos e” to that conclusion. The next point on the chronology, Dr. Korpi stat ed, “is where I make my diagnosis.” Seven months after his releas e from prison, and while on parole for the sexual assault of the 15-yea r-old hitchhiker, defendant ra ped and sodomized a 20-yearold woman in the carport area of her apartm ent block after taking her at knifepoint from
the entrance to her third floor apartment. Dr. Korp i opined that a pattern to defendant’s sexual crimes had now emerged, including use of a knife to threaten the victim and anal rape. Dr. Korpi stated: “Most rapes . . . a guy who goes in an ap artment . . . rapes a woman and leaves. He doesn’t rape and so domize her. That’s overkill; too much is going on. And he does[] it in a public area, right behind the darn apartment building where you can get easily caught. This co mpulsion has taken him over. We now know he’s got the disorder.” He further opined defendant is “clear ly aroused” by his victims’ lack of consent, as evidence d by the fact he maintains an erection while raping his victims vaginally and anally.19 Subsequent events in defendant’s chro nology confirmed Dr. Korpi’s diagnosis of paraphilia, specifically, after defendant was rel eased from prison in 1980, he was arrested in 1987 for 40 sex offenses ag ainst four different victims. Dr. Korpi testified the fact
defendant did not offend be tween 1980 and 1987 did not affect his diagnosis of paraphilia; rather, it merely s howed defendant, like an alco holic, had managed to control his behavior for a time but ultimately “h e could not contain[] the monster.” In forming his diagnosis Dr. Korpi also considered defendant’s reaction to his crimes; he opined defendant has a “conscience” and re grets his inability to control his impulses. In this regard, Dr. Korpi noted that when defendant went to the hospital as a MDSO in the 70’s, “he want ed treatment and he wanted an explanation.” Later, defendant blamed drugs for his behavior an d his current explanation is that he is controlled by computer chips implanted in his body that unleash anger, lust and violence. According to Dr. Korpi, this indicates defe ndant “has a disorder, that he wishes he doesn’t have, and he can’t control it and it’s some thing he’s going to have to deal with.” Dr. Korpi opined defend ant currently suffers from paraph ilia because “it’s an orientation . . . [defendant] likes . . . coercive sex. It doesn’t go away.” Treatment may prevent the behavior associated with paraphilia but cannot cure the affliction itself. The evidence presented at trial by th e prosecution’s expert witnesses was “ ‘ “reasonable in nature, credible a nd of solid value” ’ [Citation].” ( People v. Mercer (1999) 70 Cal.App.4th 463, 466.) Drs. Wolk enhauer and Korpi based their diagnoses of paraphilia NOS on defendant’s personal history and a deta iled evaluation of the type, nature and pattern of the offe nses constituting defendant’s long history of sexual assaults and attempted sexual assaults. The key fact ors identified by Drs. Wolkenhauer and Korpi in support of their diagnoses included: defe ndant’s hyper-sexual behavior as a juvenile; defendant’s choice of forced sex during a tim e he was married and ha d the opportunity of consensual sex; the fact he not only vaginally raped but also anally raped his victims; his
sexual arousal in the face of his victims’ di stress and lack of consent; the “persistent urge” or compulsion underlying his behavior as evidenced by the wide range in the ages of his victims and his disregard for the risk of detection; and the fact defendant sought20 treatment as a MDSO, his admission to having a “problem with lust” and his need to explain his behavior all show defendant realizes and is awar e of his condition. In sum, the testimony rendered by Drs. Wolkenhauer and Korpi cons titutes substantial evidence in support of the jury’s finding that defendant suffers from paraphilia NOS. (See People v. Mercer, supra, 70 Cal.App.4th at p. 46 6 [substantial evidence standard applies to a challenge to an SVPA co mmitment on sufficiency of the evidence grounds].) Accordingly, we conclude the jury’s fi nding on that point must be affirmed. ( Ibid. [appellant court must “review the entire reco rd in the light most favorable to the judgment to determine whether substantial evid ence supports the determination below”].) E. Jury Instructions
Defendant contends that the trial court committed prej udicial error by failing to instruct the jury, sua sponte, they were required to unanim ously agree on the specific mental disorder qualifying him as an SVP. Defendant bases his contention on the unanimity rule applicable in criminal proc eedings. The unanimity rule provides that “[w]here the evidence sh ows that several criminal acts ma y have been committed and the defendant is not charged separately with a vi olation of all those acts, the trial court is required, sua sponte, to instruct the jurors that they must unanimously agree beyond a reasonable doubt upon the particular act cons tituting the crime. [Cit ations.] The purpose
of this rule is to insure thatall jurors agree beyond a reas onable doubt that one particular act or acts constitute the crime charged. [Citations.]” ( People v. Washington (1990) 220 Cal.App.3d 912, 915.) However, “[a]n SVP proceeding is civil, not criminal, and the unanimity requirement for an SVP proceed ing is established by statut e. [Citation.] Under the SVPA, the jury must determin e whether the requirements for classification as an SVP have been established ‘beyond a reasonable doubt’ and the jury’s verdict must be unanimous. [Citations].” ( People v. Carlin (2007) 150 Cal.App.4th 322, 347.) Nevertheless, whereas the jury’s verdict mu st be unanimous, “[t]here is no statutory requirement regarding unanimity for each subpart of the SVP determination.” ( Id. at p. 347 [rejecting claims that the trial court erre d in failing to instruct the jurors that they21 must unanimously agree on which prior convic tions involved substantial sexual conduct
and on which acts constituted substan tial sexual conduct]; see also People v. Fulcher (2006) 136 Cal.App.4th 41, 59 [concluding that because “SVP proceedings are civil in nature, even though some criminal procedur al protections apply, the rule requiring a unanimity instruction does not apply in SVP civil commitment proceedings. [Citations]”].) Accordingly, beca use the trial court adequately instructed the jury on each of the elements of defendant’s civil commitment (see ante fn. 8), the court did not commit prejudicial error by failing to give a unanimity instruction sua sponte on the “diagnosed mental disorder” element. Next, defendant contends the trial court should have instructed the jury sua sponte that a true finding defendant is an SVP would result in his indefinite commitment, rather than the renewable, two-year commitment he would have received under a prior version
of the SVPA. 10 Defendant argues that failing to instru ct the jury on th e consequences of its true finding “may give them the mistaken impression that a civil commitment is short
term and allows for real review in the future.” This cont ention is baseless. “ ‘The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence , whether or not the defendant makes a formal request.’ [Citations.]” ( People v. Souza (2012) 54 Cal.4th 90, 115-116.) At defendant’s SVP trial, the jury was asked to determin e, based on the evidence presented by the parties, whether defendant is an SVP and, if so, whether he was likely to reoffend if released into the community. The trial court properly instruct ed the jury on the principles of law governing its resolutio n of those issues. The dura tion of any commitment imposed

10 Prior to 2006, a person determined to be an SVP wa s committed to the custody of the Department of Mental Health for a period of two years; to k eep an SVP in custody beyond the initial two year term , the People were required to file a new petition to extend the commitment and again prove to a jury beyond a reasonable doubt that defendant is an SVP. (See Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281.) In 2006, SVPA was amended by statute and voters’ initiative (Proposition 83, known as Jessica’s Law) to provide that SVP’s be committed by the court to the Department of Mental Health (department) for an indefin ite period of time rather than the renewable two-year commitment provided for under existing law. ( Ibid. )22 subsequent to the jury’s findings was irrelevantto the issues at trial. Accordingly, the trial court was not required to instruct the jury sua sponte regarding the consequences of an SVP finding.
G. Evidence on Whether Defendant’ s Mental Disorder is Treatable
Defendant contends his commitment unde r the SVP statute violates due process where, as here, the evidence failed to esta blish his mental disorder is treatable. Defendant also argues he will never achieve me ntal health as an adjudicated SVP because he is not being provided appropriate treatment . In particular, he asserts Coalinga State Hospital, where he is confined, utilizes a fi ve-phase “cognitive-base d therapy” which is an inappropriate treatment modality for a patie nt who “is incompetent and delusional.” Our Supreme Court rejected a similar “tre atment based” due process challenge to
the SVPA in Hubbart, supra . There, defendant asserted th at involuntary confinement as an SVP violates due process “unless it is coup led with a statutory guarantee of treatment providing ‘a realistic opport unity to be cured.’ ” ( Hubbart, supra, 19 Cal.4th at p. 1164.) “At the outset,” the court rejected the suggestion “that the Legislature cannot constitutionally provide for the civil commitment of dangerous mentally impaired sexual predators unless the statutory scheme guarant ees and provides ‘effective’ treatment.” ( Ibid. ) Indeed, after examining high court prec edent on civ il commitment of SVP’s, the
court concluded “there is no broad constitutional right of treatment for persons involuntarily confined as dangerous and menta lly impaired, at least where ‘no acceptable treatment exists’ or where they cannot be ‘suc cessfully treated for their afflications.’ ” ( Id. at p. 1166.) Accordingly, we conclude defendant’s c ontention is foreclosed by
Hubbart. 11

11 Defendant cites People v. Feagley (1975) 14 Cal.3d 338 ( Feagley ) in support of his treatment-based due process argument. In Feagley, the California Supreme Court invalidated the now-repealed procedure und er which the defendant was committed as a mentally disordered sex offender (MDSO) on the grounds that it resulted in a complete denial of treatment under conditions of confin ement so punitive as to constitute “cruel and unusual punishment.” ( Id. at p. 376.) However, in Hubbart, supra , the court stated23 H. Experts’ Use of Actuarial Tests in Assessing Risk of Reoffending Defendant contends the pr osecution experts’ reliance on actuarial tests to assess his risk of reoffending violates due process, 12 relying on People v. Burnick (1975) 14 Cal.3d 306 ( Burnick ). In Burnick , the California Supreme Court was “called upon to determine the proper standard of proof in ment ally disordered sex offender proceedings.” ( Id. at p. 310.) The court held that “in order to comply with the re quirements of the due process clauses of the California and federal Constitutions, so drastic an impairment of the liberty and reputation of an individual mu st be justified by proof beyond a reasonable doubt.” ( Ibid. ) Defendant acknowledges Burnick, supra, addresses the issue of the applicable burden of proof, however he claims the use of actuarial instruments by psychologists in assessing the probability of an SVP defendant reoffending ra ises the same concerns of “grievous error[] ” that led the Burnick court to require proof beyond a reasonable doubt for mentally disordered sex offender pr oceedings. This claim has no merit.

“nothing in Feagley [] requires invalidation of th e SVPA based on its treatment provisions.” ( Hubbart, supra, 19 Cal.4th 1167, fn. 29.)

12 Defendant also contends that the us e of actuarial scores by the psychologists constitutes the sort of “improper pr ofile evidence” we identified in People v. Robbie (2001) 92 Cal.App.4th 1075 ( Robie ). In Robie , at defendant’s trial on charges of kidnapping for sexual purposes, the prosec ution presented expert testimony that defendant’s behavior during the commission of the crime was consistent with the conduct of a rapist. ( Id. at p. 1081.) On appeal, we re versed defendant’s conviction on the grounds the expert testimony constituted improper profile ev idence, a profile being “a collection of conduct and characteristics commonly displayed by those who commit a certain crime.” ( Robie, 92 Cal.App.4th at p. 1084.) We noted profile evidence “is generally inadmissibl e to prove guilt” ( id. at p. 1084), as it invite s the jury to conclude, based on the premise that onl y criminals act in a given wa y, that defendant committed a crime because he matches the profile. ( Id. at pp. 1085-1086.) Moreover, we concluded admission of the expert testimony was not harm less because the defendant and the victim “gave starkly conflicting ve rsions of events.” ( Id. at p. 1087.) However, the analogy defendant attempts to draw between usin g improper profile evidence to determine a defendant’s guilt at a criminal trial, a nd using psychological testing to assess a defendant’s risk of reoffending for purpose s of an SVP determination, is entirely specious, and we reject it.24 Defendant received all the “sturdy bul warks of procedure” set forth in Burnick
, namely, “a trial by jury, [] the as sistance of counsel, [] the ri ght to retain experts . . . to perform and examination on his or her behalf, and to have access to all relevant medical and psychological records and reports.” ( Burnick, supra, 14 Cal.3d at p. 310; § 6603, subd. (a).) Moreover, th e jury was instructed the fact that a petition to declare defendant
an SVP has been filed “is not evidence the petition is true. You must not be biased against [defendant] just because the petition has been filed and this matter has been brought to trial. The Petitioner is required to prove the allegations of the petition are true beyond a reasonable doubt.” The jury was furt her instructed that the standard of proof beyond a reasonable doubt applies to all the el ements required for an SVP determination, including the finding that “as a result of that diagnosed mental disorder, [defendant] is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavio r.” In sum, the record demonstrates defendant’s SVP proceedings and the trial c ourt’s instructions thereon fully comported with the requirements of due process. Asid e from his speculation as to how the jury utilized the opinions provided by the prosecution experts, opinions based in part on actuarial assessments, defendant has failed to establish a factual or legal basis for reversal on this ground. I. Department of Mental Health Protocol for Expert Evaluations Section 6601 governs referra l of persons currently incar cerated for SVP evaluation prior to release from incarceration. It provides in pertinent part: “The State Department of Mental Health shall evaluate the person in accordance with a st andardized assessment protocol, developed and update d by the State Department of Mental Health, to determine whether the person is a sexually violent pr edator as defined in this article. The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, de gree, and duration of sexual deviance, and severity of mental disorder.” (§ 6601, subd. (c).)25 As noted above, defendant filed a pre- trial motion to dismiss the SVP petition on the grounds that his referral by the Depart ment to the DA was based on evaluations conducted pursuant to an invalid protocol. Th e trial court denied the motion, finding that the 2009 standardized protocol utilized by the Department to evaluate defendant complied with due process and met the statut e’s requirements for a valid protocol. On appeal, defendant contends that guidelines de vised by the Department of Mental Health in 2009 do not track the specific requirement s described in Section 6601, and therefore fail to qualify as a “standardized assessment protocol.” We reject defendant’s argument
because he fails to es tablish prejudice based upon the use of an invalid assessment protocol.
In People v. Pompa–Ortiz (1980) 27 Cal. 3d 519, 529 ( Pompa–Ortiz ), the California Supreme Court held illegalities in cr iminal preliminary hearings that are not “jurisdictional in the fundamental sense” are not reversible per se on an appeal following trial. ( Id. at p. 529.) Rather, such illegalities mu st be reviewed “under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffe red prejudice as a result of the error at the preliminary examination.” ( Ibid. ) Moreover, under Pompa–Ortiz , “[t]he right to relief without any showing of prejudice will be limited to pretrial challenges of irregularities

. At that time, by application for extraordin ary writ, the matter can be expeditiously returned to the magistrate for procee dings free of the charged defects.” ( Pompa–Ortiz,

supra, 27 Cal.3d at p. 529, italics added.) “ ‘In other words, a defendant who feels he has suffered error at his preliminary hearing can seek to correct that error by filing a pretrial writ petition. If he does not, and elects to go to trial, the error at the preliminary hearing can only lead to reversal of the conviction if the error created actual prejudice.’ ” ( People v. Ronje (2009) 179 Cal.App.4th 509, 517 ( Ronje ), quoting People v. Hayes (2006) 137 Cal.App.4th 34, 50) Furthermore, “[t]he Pompa–Ortiz rule apples to denial of substantive rights and technical irregularities in proceedings, and to SVPA proceedings. [Citations].” ( Ronje, supra, 179 Cal.App.4th at p. 517.)26 In this case, assuming arguendo the 2009 protocol is invalid as asserted by defendant, the use of evaluations based on th e protocol did not depr ive the trial court of fundamental jurisdiction over the SVPA commitment petition. (See Ronje, supra, 179 Cal.App.4th at p. 518; accord, People v. Medina (2009) 171 Cal.App.4th 805, 816 [concluding defendant’s argument that cour t lacked jurisdiction because section 6601 evaluations were not conducted pursuant to a valid protocol “is an argument that the court acted in excess of its jurisdiction, rather than without fundamental jurisdiction”].) Moreover, as mandated by Pompa Ortiz , defendant did not seek writ relief after the trial court denied his motion to dismiss the SVP pe tition for lack of valid evaluation protocol. Accordingly, the judgment may be reversed fo r use of an inadequate evaluation protocol ground only upon a showi ng of prejudice. ( Pompa–Ortiz, supra, 27 Cal.3d at p. 529; Ronje, supra, 179 Cal.App.4th at pp. 517-518; People v. Hayes, supra, 137 Cal.App.4th at p. 50.) This he cannot do. In analyzing the issue of prejudice it is important to note that defendant does not contend the report prepared by Dr. Wolknehaur or Dr. Korpi based on the 2009 protocol was infected by legal error, i. e., “on its face, it re flects an inaccurate understanding of the statutory crite ria governing the evaluation.” ( Ghilotti, supra, 27 Cal.4th at p. 913 [noting defendant may f ile a pleading challenging an SVP petition’s validity on grounds that a repor t is “infected by legal error”].) We also note defendant was represented by counsel, presented his own expert witness, cross-examined the People’s witnesses, and, after a full, public trial, a jury unanimous ly found he was an SVP by proof beyond a reasonable doubt. (Cf. People v. Hayes, supra, 137 Cal.App.4th at p. 47 [defendant failed to demonstrate that he was prejudiced by trial court’s failure to hold a probable cause hearing at the outset of the case] and People v. Butler (1998) 68 Cal.App.4th 421, 435 [reversal not warranted where defendant failed to seek pretrial review of the trial court’s failure to provide a full probable cause hearing and failed to demonstrate prejudice thereby because “he was f ound to be an SVP after a trial at which
he was able to cross-examin e the prosecution’s witnesses and call his own witnesses”].) In sum, even assuming the 2009 protocol doe s not comply with sec tion 6601, as asserted27 by defendant, reversal is not warranted because defendant ha s failed to articulate a basis to find the protocol used here resulted in prejudice impacti ng his ability to obtain a fair trial. (See Pompa–Ortiz, supra, 27 Cal.3d at p. 529.) J. Proposition 83 As noted above, the SVPA was amended in 2006 by Propos ition 83, known as Jessica’s Law, to provide that SVP’s be committed by the court to the Department of Mental Health (department) for an indefin ite period of time rather than the renewable two-year commitment provided for under existing law. Defe ndant contends that the postProposition 83 SVPA violates hi s constitutional rights to due pr ocess, to be free from ex post facto application of the law, and to equa l protection. We address these claims in

turn. Defendant contends Proposition 83 viol ates both his constitutional right to due process, because it “unconstitutionally im poses on him the burden to prove by a preponderance of the evidence th at he is entitled to release” after being committed as an SVP, and the federal constitutional prohibition against ex post facto laws, because it is punitive and was applied to his conduct pr ior to its enactment. As defendant acknowledges, these contentions were consid ered and rejected by our Supreme Court in
McKee. (See McKee (2010) 47 Cal.4th 1172, 1191, 1195.) We are bound by the decisions of our Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefor e, we reject defendant’s due process and ex-post facto
claims. Last, we turn to defendant’s contenti on his involuntary SVP commitment violates his federal constitutional right to equal prot ection under the law because it treats him significantly less favorably than similarly si tuated individuals civilly committed under other statutes, such as mentally disordered offenders (MDOs). In McKee, supra , the Supreme Court found SVP’s and MDOs are similarly situated because, inter alia, both “ ‘have been found, beyond a reasonable do ubt, to suffer from me ntal disorders that render them dangerous to others, . . . [a]t th e end of their prison terms, both have been civilly committed to the Department of Mental Health for treatment of their disorders28 [and] . . . the purpose of the MDO Act and the SVPA is the same: to protect the public from dangerous felony offenders with mental disorders and to provide mental health treatment for their disorders.’ [Citations.]” 13 ( McKee, supra, 47 Cal.4th at p. 1203.) The court concluded the disparat e treatment afforded SVP’s and MDOs under the law, whereby SVP’s suffer indefinite commitment and carry the burden of proving they should no longer be committed and MDOs are subjected to short-term commitment renewable only if the People prove periodica lly that continuing commitment is justified beyond a reasonable doubt, “raises a substan tial equal protection question that calls for some justification by the People.” 14 ( Ibid. ) Accordingly, the court remanded the case to
the trial court “to determine whether the Pe ople . . . can demonstrate the constitutional justification for imposing on SVP’s a greater burden than is imposed on MDO’s and
NGI’s in order to obtain a release from commitment” and stated the trial court may permit expert testimony on th at issue if appropriate. ( McKee, supra, 47 Cal.4th at pp. 1208-1209.) The remand ordered by the Supreme C ourt resulted in a 2 1–day evidentiary hearing and a subsequent finding by the trial court in McKee that the People met their burden to justify the disparate treatment of SVP’s. (See People v. McKee (2012) 207 Cal.App.4th 1325, 1330 ( McKee II ).) Moreover, in our recent opinion, People v. McKnight (2012) 212 Cal.App.4th 860 ( McNight ), we concluded McKee II was dispositive of McKnight’s equal protection claim against the SVPA. We noted the
Fourth District in McKee II concluded that SVP’s are diff erently situated than MDO’s

13 Because the general population of criminal inmates share none of the characteristics which the McKee court identified as common to MDOs and SVP’s, they are not similarly situated to SVP’s for equal protection purposes. Ac cordingly, we reject defendant’s contention that Proposition 83 violates equal protec tion because inmates receive more favorable treatment under Penal Code section 3041 in the setting of parole release dates.

14 The McKee Court also concluded SVP’s are si milarly situated to persons found not guilty by reason of insa nity (NGI) and that a comp arison of the SVPA and NGI scheme raised similar equal protection problems as those discussed in relation to MDOs. ( McKee, supra, 47 Cal.4th at p. 1207.)29 and NGI’s, and their different treatment under the Act is necessary to further compelling state interests.” ( McNight, supra, 212 Cal.4th at pp. 862-864.) Moreover, we rejected McKnight’s c ontention that the Supreme Court’s post
McKee I remand resolved the equal protection claim only as applied to Mr. McKee.

“ McKee I recognized that the People could attempt to justify the Act’s disparate impact in a variety of ways, and that th ese included showing that SVP’ s as a class are significantly more likely to reoffend than MDO’s or NG I’s, showing they pose a greater risk to children (in which case the equal protecti on analysis would apply only to child predators), or by other, unspecified means. ( McKee I, supra, 47 Cal.4th at p. 1208.) In light of that recognition, the court transfe rred the multiple ‘grant and hold’ cases under
McKee I , including this one, to the Courts of Appe al with directions to vacate their prior opinions and suspend further proceedings until the McKee I remand proceedings were final, ‘ in order to avoid an unnecessa ry multiplicity of proceedings .’ (Citing cases.) On remand, McKee concluded that differences between SVP’s as a class and other offenders justify their different treatment under the Act. It is plain that McKee II is not to be restricted to Mr. McKee alone or only to those SVP’s convicted of crimes against children, . . . but rather its holding applie s to the class of SVP’s as a whole.” ( McNight,

supra, 212 Cal.4th at pp. 863-864.) Agreeing with the Fourth District’s equal protection analysis, “[w]e therefore concluded that McKnight’s recommitment under the SVPA does not violate his equal protection rights.” ( McNight, supra, 212 Cal.4th at p. 864.) For the same reasons, we
conclude in this case that defendant’s reco mmitment under the SVPA does not violate his equal protection rights. 15

15 Defendant also contends reversal is warranted on gr ounds of cumulative error. However, as in People v. Cole (2004) 33 Cal.4th 1158, “ ‘[w]e have either rejected on the merits defendant’s claims of error or have found any assume d error to be nonprejudicial. We reach the same conclusion with respec t to the cumulative e ffect of any assumed errors.’ ” ( Id. at pp. 1235-1236.)30 D ISPOSITION The judgment is affirmed.

_ ____________ ____________ Jenkins, J.

We concur:

_____________ ____________ McGuiness, P. J.

_____________ ____________ Pollak, J.