1

Filed 9/12/24 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v. MICHAEL INGRAM,

Defendant and Appellant. C098000 (Super. Ct. No. 99F06254)

APPEAL from a judgment of the Superior Court of Sacramento County, Alyson L. Lewis, Judge. Affirmed. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Jessica C. Leal, Deputy Attorney s General, for Plaintiff and Respondent.

In 2017, a jury found d efendant Michael Ingram was a sexually violent predator
and he was committed for an indeterminate term to the State Department of State Hospitals (DSH) pursuant to the Sexually Violent Predator Act (SVPA ; Welf. & Inst.2

Code , § 6600 et seq.)

. 1 In 2020, he filed a petition for conditional release

. In order to prevail on his petition, he had to prove it wa s not likely he would engage in sexually
violent criminal behavior i f released under supervision and treatment in the community. The trial court denied the petition . Ingram appeals , challenging both the trial court ’ s decision and the constitutionality of the conditional release provisions of the S VPA

. We
find the trial court ’ s decision is supported by the evidence and Ingram fails to convince us the trial court misunderstood or misapplied the law. We also find Ingram ’ s constitutional challenges are not properly before us. We thus a ffirm.
LEGAL BACKGROUND Before discussing the factual and procedural background of this case , we begin
with a d escription of the relevant provisions of the SVPA

. The SVPA “ allows for the involuntary commitment of certain convicted sex offenders , whose diagnosed mental disorders make them likely to reoffend if released at the end of their prison terms. ” ( Cooley v. Superior Court (2002) 29 Cal.4 th 228, 235.) A person can only be civilly committed if, after a trial, a judge or a unanimous jury finds beyond a reasonable doubt the person is a sexually violent predator (SVP). (§§ 6600, 6601, 6603, 6604; see also Cooley , at p. 243.) An SVP is defined as a person who has been convicted of at least one enumerated sexually violent offense (including lewd and lascivious acts on a child under the age of 14), and who has a diagnosed mental disorder that makes it likely he or s he will engage in sexually violent and predatory criminal behavior if released. (§ 6600, subds. (a)(1) , (b) ; Walker v. Superior Court (2021) 12 Cal.5 th 177, 190 .) A diagnosed mental disorder

“ includes a congenital or acquired condition affecting the emotional or volit ional capacity that predispose s the person to the commission of criminal sexual acts in a degree

1 Further undesigned statutory references are to the Welfare and Institutions Code.3

constituting the person a menace to the health and safety of others. ” (§ 6600, subd. (c).)
P edophili c disorder can be a q ualifying mental disorder. ( See People v. McKee (2012)
207 Cal.App.4th 1325, 1344 [60 to 66 percent of SVPs have been diagnosed with pedophilia] ; People v. Mercer (1999) 70 Cal.App.4th 463, 466 [pedophilia is a “ mental
disorder ” as defined by SVPA ] .)
If the person is found to be an SVP, the court orders them committed to DSH “ for
an indefinite term

. . . for appropriate treatment and confinement in a secure facility. ” (§ 6604.) The SVPA was not designed to be punitive. ( Hubbart v. Superior Court (1999)
19 Cal.4 th 1138, 1144.) Instead, it was “ designed ‘ “ to provide ‘ treatment ’ to mentally disordered individuals who cannot control sexually violent criminal behavior ” ’ and to keep them confined until they no longer pose a threat to the public. ” ( People v. Putney (2016) 1 Cal.App.5 th 1058, 1065 ; see also § 6606, subds. (a), (c) [SVP “ shall be provided
with .

. . treatment for his or her diagnosed mental disorder ” ].) “ Because the SVPA is designed to ensure a committed person does not remain confined any longer than he or she qualifies as a sexually violent predator, it provides means for that individual to obtain review of his or her mental condition to determine if civil confinement is still necessary. [Citation.] One of two ways such review may be had is by petition for conditional
release

. . . under section 6608. ” 2 ( People v. Collins (2003) 110 Cal.App.4 th 340, 346 , italics added .) This appeal involves a petition for conditional release. Conditional release proceedings can be initiated by either DSH or the committed person. DSH can initiate release proceedings i f i t “ determines that the person ’ s diagnosed mental disorder has so changed that the person is not likely to commit acts of

2 A committed person may also file a petition for unconditional release, but that is not what Ingram did here, and his own expert agrees he is not suitable for unconditional release.4

predatory sexual violence while under supervision and treatment in the community. ” (§ 6607, subd. (a).) Here, DSH did not make such a determination

— indeed, as discussed in more detail below, in DSH ’ s opinion, Ingram should not be conditionally
released. Even without DSH ’ s concurrence, however, the committed person can still petition the court for conditional release after one year of commitment

— and that is what Ingram did in this case

. ( See § 6608, subd s

. (a), (c) , (f). )
Unless the trial court determines such a petition is frivolous, it “ shall hold a hearing to determine whether the person committed would be a danger to the health and safety of others in that it is likely that the person will engage in sexually violent criminal behavior due to the person ’ s diagnosed mental disorder if under supervision and treatment in the community. ” (§ 6608, subd. (g).) Before the hearing, the court must obtain a written recommendation on the appropriateness of conditional release from both
DSH and the director of the state

- op erated forensic conditional release program. (§ 6608, subds (e), (f).) The committed person is entitled to the assistance of counsel and the appointment of experts, and the state is entitled to have the committed person evaluated by its own experts. (§ 6608, subds. (a), (g).) At the hearing, “ t he committed person shall have the burden of proof by a preponderance of the evidence ” (§ 6608, subd. (k)), and must prove “ he or she is not likely to engage in sexually violent criminal behavior if
released under supervision and treatment. ” ( People v. Rasmuson (2006) 145 Cal.App.4th
1487 , 1505

- 1506.) The word “ likely ” in this context means “ ‘ the person presents a substantial danger , that is, a serious and well

- founded risk , that he or she will commit
such crimes if free in the community. ’ ” ( Id

. at p. 1506.)
With this legal background in mind, we turn to the factual and procedural background of this case.5 FACTUAL AND PROCEDURAL BACKGROUND
1. Ingram ’ s Sex Offense History 3 In 1984, Ingram was charged with two counts of lewd and lascivious acts on a child under the age of 14 and one count of sexual batter y. He was 25 at the time

. The
victims were an 11

- year
- old boy, a 7

- year
- old boy, and a 4

- year
- old girl who Ingram was babysitting. It was alleged he rubbed the older boy ’ s buttocks and genitals over his
clothes , told the younger boy to remove his pants, and removed the girl ’ s clothing and felt
all around her. The lewd and lascivious acts counts were dismissed , and he was
convicted of one count of sexual batter y and sentenced to six months in jail

. Two years later, Ingram was arrested for sodomy and oral copulation of a developmentally disabled 23

- year
- old man. It was alleged he dragged the victim to a
field and had forced oral copulation and anal sex. The charges were subsequently
dismissed. The next year, Ingram was arrested for lewd and lascivious acts on a child under the age of 14 and failing to register as a sex offender. The victim was an 11

- year
- old boy

. It was alleged Ingram fondled the boy ’ s penis through his clothing while engaged in a wrestling match. Ingram appeared to be intoxicated at the time. He pled guilty to annoying or molesting a child, and the lewd and lascivious act s charge was dismissed. He was sentenced to six months in jail. Three years later, i n 1990, Ingram was convicted of one count of lewd and
lascivious acts with a child under the age of 14. The victim was a 7

- year
- old boy who stated Ingram invited him over to watch television . Ingram put his hands inside the boy ’ s

3 We note t he record contains almost none of the underlying criminal records . Our description of Ingram ’ s criminal history thus comes almost exclusively from the various experts ’ reports , including Ingram ’ s, that summarize that history.6

shorts and squeezed his penis and testicles several times. Ingram was 3 1. He was
sentenced to six years in pris on

. It is unclear when he was released. In 1999, Ingram was once again convicted of two counts of lewd and lascivious acts on a child under the age of 14. Th is time, th e victim was a 12

- year
- old boy and Ingram was 40. The victim stated that on two separate occasions Ingram touch ed his penis, orally copulat ed him, and digitally penetrat ed his anus

. Ingram was sentenced to 17 years in prison.
2. SVPA Commitment Proceedings
Prior to Ingram ’ s release from prison on the 1999 conviction for lewd and
lascivious act s , proceedings were initiated to have him civilly committed as a n SVP pursuant to the SVPA. He was transferred to DSH in 2014 pending his trial. In 2017, a jury found he was a n SVP and the trial court ordered he be indefinitely committed to
DSH

. Th e initial commitment proceedings are not at issue here.
3. The Present Petition and the Hearing Thereon In 2019, Ingram filed a petition for conditional release , and a hearing on the petition was held in early 2023

. Two people testified at the hearing, both on behalf of Ingram : his expert, Dr. Gerry Blasingame, and Judith Licciardello, a client services manager for Alta California Regional Center. The parties also stipulated to the admission
of written reports from Dr. Blasingame and the state ’ s four experts , and waived hearsay objections to the reports

. The state ’ s experts were : Dr s

. Koreen Hudak and Christina
O ’ Sullivan , who evaluated Ingram specifically for the hearing ; Dr. Harry Goldberg, who performed the annual evaluation of Ingram required by section 6604. 9 ; and Dr. Sarah Evans, a program evaluator for the state ’ s conditional release program , known as CONREP, which is run by Liberty Healthcare (the program is thus frequently referred to as Liberty/CONREP)

. 4. The Experts ’ Opinions We note at the outset that the experts agree d on many important facts. For7

example, they agree d Ingram continue d to meet the definition of a n SVP (i.e., they agree d
he still ha d a diagnosed mental disorder that ma d e it likely he w ould engage in sexually violent behavior if released)

. They also largely agree d on his diagnos ed mental disorders :
pe dophili c disorder and alcohol use disorder , and either a “ mild intellectual disability ” or

“ borderline intellectual functioning. ” Dr. Blasingame believe d Ingram ha d a mild intellectual disability rather than borderline intellectual functioning, but he did not clearly explain the difference between the two , other than to note it “ is not just a matter of
semantics. ” We are not convinced th e disagreement is particularly relevant because

everyone agree d Ingram ha d intellectual challenges, and that his slow progress in DS H ’ s sex offender treatment program wa s attributable, at least in part, to those challenges. Indeed, as early as 2014, a DSH clinician opined Ingram would have difficulty reading or understanding anything written beyond an early grade level ; it would be challenging to teach him new information, especially if it was lengthy or complex ; and it was “ unclear ”
whether he was “ capable of learning and generalizing functional skills. ” The experts also agree d Ingram ’ s risk of reoffending wa s “ above average ” based on various instruments and tools designed to estimate that risk , and the state ’ s experts opine d it may actually be “ well above average

. ” Whether his risk wa s classified as above average or well above average, however, it wa s a “ ‘ serious and well

- founded risk ’ ”

— and Ingram does not seriously suggest otherwise. ( People v. Rasmuson , supra , 14 5 Cal.App.4th at p. 1506 , italics omitted .) The experts also agree d ( or at least they all note d ) Ingram completed a penile plethysmograph (PPG) assessment 4 in 2020 , which showed he had significant sexual

4 “ The PPG is a physiological measure of sexual arousal which measures penile engorgement to assess sexual arousal in response to sexually explicit images depicting males and females of different ages. ” ( People v. Grassini (2003) 113 Cal.App.4 th 765, 770, fn. 2.)8

arousal to images of underage males. It was also noted his “ self

- reported estimates of his arousal to the underage male stimuli were generally inconsistent with the arousal responses recorded by the PPG. ” Finally, and c ritically, the experts agree d Ingram wa s not suitable for the typical
conditional release to Liberty/CONREP. As discussed in more detail below, however, Ingram ’ s expert believe d it would be possible to create a n alternative to the typical
conditional release that would both (1) provide him with the specialized sex offender treatment he needs to accommodate his intellectual disability, and (2) provide 24/7, one
on
- one, line

- of

- sight supervision to ensure he does not reoffend. With the experts ’ agreement on th ese critical facts in mind, we briefly summarize their description of Ingram ’ s psychosocial history and treatment progress (and we emphasize that the experts mostly agree d here a s well )

. Ingram had seizures as a child and may have suffered some type of head injury

. Cognitive tests showed he had an IQ ranging from 58 to 76, possible neurological impairment, and skills far below his grade level. He was classified as “ educable mentally
retarded ” and enrolled in special education classes. He graduated from high school in
1977 and did not attend college

. He began drinking at an early age and has a history of alcohol abuse. It appears he was intoxicated during at least one of his sexual offenses. His work history is limited

. According to Dr. Blasingame , he never held a full

time job and he lived with his mother ( and possibly in a group home ) when he was not
incarcerated. He has a history of interpersonal difficulties. He has never been married or had a long

- term relationship with an adult male or female. DSH staff noted he was socially
awkward and easily frustrated.9

He ha d previously participated in court

- ordered outpatient sex offender treatment , but few details about the treatment were provided. According to Dr. Blasingame, he was enrolled in sex offender treatment for two years in the late 1980s

. In gram ’ s progress in DSH ’ s sex offender treatment program ( or SOTP) ha d been
slow

. The SOTP is a structured program whose “ fundamental goal

. . . i s to teach sex
offenders how not to reoffend. ” It has four modules that patients progress through sequentially

. Ingram ha d completed Module I of the SOTP but ha d not yet completed
Module II

. Ingram began Module I in 2014, and i nitially had dif ficulties and stated he was
confused and did not understand the materials . He was transferred to “ an assisted group ”

“ designed for those with intellectual and learning difficulties, ” and he thereafter “ readily ” completed Module I and was advanced to Module II
He made “ little progress ” in Module II be tween 2015 and 2017 , and frequently declined to participate. He claimed h e was “ ‘ overwhelmed ’ ” and frustrated by his inability to understand the materials and complete his assignments . T here is also a suggestion he stopped treatment during this time period “ due to a legal letter advising
him not to discuss his case. ” In 2018, h e re
- enrolled in an “ assisted group , ” and although it appear ed he ha d generally maintained enrollment in the group , his progress ha d been slow. DSH records

note d he “ reb uffed offers of help from others (peers and facilitators alike) while at the

same time complain[ing] that he was unable to complete his assignments .

. . because he
did not understand ” them. A social worker tried to help him complete a “ personal history ” by reading through and explaining the questions, but the task proved difficult
because “ Ingram continually stated that he could not remember anything. There appeared to be discrepancies in his reporting as he often claimed he has no recollection of things, yet in later unrelated questions there would be evidence of existing memories re lated to previous questions. ” He refused “ a peer mentor because he report [ed] he did not get10

along with his previous peer mentor and did not want to work with another. ” He attended

groups , but rarely participated because he was “ ‘ wary of sharing any personal information about himself for fear of his statements being taken out of context. ’ ” In late 2021, he agreed to attend several individual weekly meetings with his psychologist, Dr. Dixon, to work on SOTP assignments

. According to Dr. Blasingame,
Dr. Dixon wa s “ one example of a clinician that actually seemed to get it and understand [Ingram] and .

. . his needs. ” Dr. Dixon report ed Ingram initially made “ significant progress during the sessions ” ; however, his motivation and progress began to wane , and by the end of the year, he refused to meet with Dr. Dixon and stated he “ ‘ would not be
able to continue ’ ” his SOTP participation

. Ingram ’ s participation and progress in Module II “ continued to vacillate ” in 2022. In May, for example, his progress was updated from “ ‘ no progress/minimal progress ’ ”

to “ ‘ acceptable progress, ’ ” and it was not ed he had recently made “ ‘ major strides ’ ” by

“ ‘ talking more about his sex offense history and explaining more of his story to other group members ’ ” and becoming more receptive to feedback. This was a “ big step
forward .

. . because in the past he has repeatedly insisted that he did not remem ber anything about the crimes

. ” A few months later, however, his progress was returned to

“ minimal ” and it was note d he bec ame “ ‘ unusually frustrated if anyone .

. . is smiling or humor is utilized in group ’ ” and he “ ‘ may have difficulty reading facial cues. ’ ” Ingram ’ s e xpert, Dr. Blasingame , acknowledge d there we re “ only a few periods in the recent couple three years where [ Ingram ] actually did engage with the treatment providers and that would last for a few months and then it would go away. ” Dr. Blasingame also acknowledge d , “ There is no question that [Ingram] needs ‘ more treatment progress. ’ ”
All of the experts interviewed Ingram and asked him about his sexual offense history

. He initially denied to Dr. Goldberg that he was attracted to children

. Later, however, he told Dr. Goldberg he had masturbated the night before while “ thinking about11

one of his victims. ” He told Dr. Goldberg he might have committed h is sexual offenses due to boredom or curiosity or because he “ could not make friends with other people his

age. ” When Dr. Goldberg asked him “ who suffered more, him or the victims, ” he responded that he did, “ because he missed out on 20 years of his life ” and “ the victims were able to mend their lives and proceed. ”
He told Dr. Hudak he was “ ‘ sometimes ’ ” sexually attracted to children, but

“ ‘ lately, no, because I know it is wrong. ’ ” He acknowledged having sexual thoughts about children in the past and having masturbated to th o se sexual thoughts, but denied he currently had sexual thoughts about children and claimed he had not masturbated in 21

years. When Dr. Hudak asked wha t it was about children he found sexually arousing, he responded, “ ‘ I don ’ t know, I ’ ve never really thought about it. ’ ”
He was reluctant to discuss his sexual offenses with Dr. O ’ Sullivan, but he did not deny them either. When asked why he thought he committed his sexual offenses, he responded, “ ‘ just not fitting in

. ’ ” He stated, “ ‘ every child needs a place to go, a safe place. But I got my needs over here. And they overlapped. ’ ” Dr. O ’ Sullivan noted, “ He seemed troubled by his pedophilic urges and to be using rather primitive defense mechanisms to compensate (e.g., denial, regression and projection). Instead of acknowledging a sexual attraction to children, Mr. Ingram offered various implausible explan atio ns for his offense history

. ”
He told Dr. Evans his pedophil i c diagnosis “ ‘ doesn ’ t exist anymore. I learned from what I did, and I no longer do that. ’ ” According to Dr. Evans, he engaged “ in minimization and denial when discussing his sexual offense history. ” He blamed the
offenses on “ ‘ being alone ’ ” and “ drinking, ” and also stated, “ ‘ I wanted to have sex but
there was no one available at the time. ” When asked about potential triggers for reoffending, he stated, “ ‘ I will need to stay away from parks as far as I can and as muc h as I can, and if possible, as far as I can from kids. ’ ”12

Finally, Dr. Blasingame asked Ingram “ if he got enjoyment from touching kids, ” and he responded, “ ‘ that is a hard question. ’ ” Dr. Blasingame also asked Ingram “ what made boys sexy to him ” and explained “ s exy included thinking about touching someone ’ s private parts, like a penis, or wanted to look at the person naked while touching one ’ s own privates. ” Ingram responded , “ ‘ curiosity. ’ He said that he might have felt bored or lonely. He added that it might have been for enjoyment or to entertain him. ” Dr. Blasingame testified I ngram ’ s response “ was close to insight,

. . . considering .

. . [his] cognitive issues. ”
All four of the state ’ s expert opined Ingram wa s not suitable for co nditional
release because (among other things) : he still met the definition of a SVP ; the results of
his PPG indicate d he continue d to be sexually aroused by prepubescent boys and he ha d

not yet developed skills to manage and/or suppress that arousal ; he lack ed an understanding of his pedophilic disorder and the dynamic risk factors that are related to his sexual offending; his risk assessment scores place d him in the above average or well above average risk of reoffense; he wa s still in the early stages of sex offender treatment
and continue d to struggle with the material s and concepts ; and his plan for preventing relapse (i.e., I don ’

t do that anymore or I ’ ll try to stay away from kids ) was not adequate

. As noted above, e ven Ingram ’ s own expert agree d he wa s not suitable for
conditional release

— a t least to the conditional release program run by Liberty

. According to Dr. Evans, the Liberty/CONREP evaluator, “ Suitable Liberty/CONREP
candidates are able to demonstrate that they possess robust management/suppression skills that they are able to effectively employ in times of need (e.g., when experiencing a deviant sexual thought or fantasy). [¶] Success in CONREP relies upon each patient having learned self

- management skill s, a thorough understanding of triggers to relapse, and a plan to safely integrate into the community.

. . . In particular, evaluators are looking for ability to use treatment effectively, ability to be transparent with one ’ s Treatment Team, insight into the precursors of the sexual offending, and the13

establishment of behavioral and emotional control mechanisms to ensure safety for self
and others. ” Dr. B l asingame d id not disagree with any of this

. He wa s aware that Liberty

“ runs the only ConRep program. They are the sole vendor ” and the “ only game in town. ”
He also a cknowledge d , “ ConRep expects people to be able to function independently .

. . but .

. . [Ingram] is not going to be able to do that. ” Finally, and critically, he agree d Ingram wa s not suitable for what he call ed the “ typical ” conditional release because “ he ’ s going to need a degree of attention and services that ConRep doesn ’ t provide. ”
In Dr. Blasingame ’ s opinion, however, it would be possible for the court to
approve an alternative to the typical Liberty/CONREP release that would both (1) provide Ingram with the intensive support , treatment, and services he needs and (2) keep the community safe. Dr. Blasingame described in great detail what such an alternative program would require

. Among other things, Ingram would need to be placed in a n

“ adult residential facility ” or a “ specialized adult residential treatment home ” that serves adults with intellectual disabilities and a history of a sexual offending

. Ingram would
also need “ an elevated level of staffing and enhanced supervision. ” In particular, he
would need one
- on
- one s upervisio n by staff member s who are not “ shared with any other clients or distracted by other duties. ” The assigned staff member s would need to

m aintain “ close physical pro ximity ” to Ingram at all times ( except when he is in the
bathroom or his bedroom ) in order “ to be able see and hear his communications with other persons as well as being able to intervene in any given situation. This protective

supe rvision is often referred to as ‘ line

- of

- sight ’ or ‘ arm ’ s length ’ supervision. ” This
intensive supervision would be required “ well into the foreseeable future ” or “ for the
foreseeable decades

. ” Dr. Blasingame believe d Liberty/CONREP could work with Alta
California Regional Center to create and provide such a n alternative program.
5. Testimony of Judith Licciardello
Judith Licciardello is a client services manager for Alta California Regional
Center. Regional centers coordinate the provision of services and supports to people with14

developmental disabilities “ by contracting with ‘ direct service providers, ’ who are also
called vendors. ” (

A.L. v

. Harbor Development al Disabilities Foundation (2024)
102 Cal

. App.5 th 477, 486

. ) Ingram was assigned to Licciardello ’ s caseload , but Alta
California Regional Center wa s not providing him with services because he wa s confined

to DSH. Licciardello did not offer an opinion on whether Ingram wa s suitable or safe for
conditional release

. Instead, she testified about the types of services that might be
available to him if he were conditionally released.
Licciardello testified there are no facilities or homes in or around Sacramento County “ that could support [Ingram] and his SVP status. ” However , s he contacted the other regional centers in the state and found a home in San Bernardino County (Knight on Care Home) that she believe d could do so. She testified the h ome is in a “ very rural remote part of San Bernardino County ” and “ i s not close to

. . . any neighborhoods or any
schools , ” which is “ one of the major reasons why they a re able to meet someone ’ s SVP

status. ” She testified, “ All of the residents in the home are SVP status, ” and the home has

“ experienc e working with ConRep and Liberty

. ” She testified t he home is a “ level four ” home, and although she did not explain exactly what that means, it appears to refer to a home that provides a higher level of support and supervision. She clarified, however, that
care homes are not locked facilities and “ [i]f someone insist s on leaving the home, the home cannot stop them from leaving

. ” She explained, “ If it was an instance of someone having SVP status and they are not supposed to leave, then there would need to be [a] protocol in place on who to call, whether that be ConRep, probation or 911. ” She was
asked wh ether the home was willing to put such a protocol in place, she responded, “ Yes.
At t hat time, they expressed that they would mostly because they said that there is nowhere to go. ” She ha d not discussed the possibility of placing Ingram in this home with Liberty /CONREP and d id not know whether Liberty would approve such a placement

.15

6. The Trial Court ’ s Ruling At the end of the hearing, Ingram ’ s attorney summed up his argument as follows:

“ We all know that ConRep is .

. . the vendor that has the contract [ to run the state ’ s conditional release program ], but we also know that ConRep can work with other service providers and

. . . can be augmented if needed in cases where people might have disabilities or cognitive issues that make a

. . . typical ConRep placement difficult or impossible. ” “ [Ingram] obviously cannot be released into the community safely unconditionally, but there are circumstances where he could be conditionally released safely into the community. [¶] I maintain that ConRep working with Alta Regional [Center] who contracts with serv ice s providers, contracts with .

. . level four residential homes that can provide the right oversight, the right .

. . sex offender treatment, the right supervision, the right monitoring and in a place .

. . which is removed from schools, children, anything of that sort, I think [Ingram] can be safely released under that kind of supervision and treatment. ”
The trial court denied Ingram ’ s petition for conditional release

. It noted it found Dr. Blasingame ’ s testimony “ the most helpful, ” and while it “ appreciate [ d ] ”
Licciardello ’ s testimony, it “ did not find it to be particularly helpful for the issues that are presented

. ” It noted Ingram ’ s risk to the community was “ virtually unchanged since his
commitment ” and he ha d not made significant progress in completing the SOTP. It also noted that while where might be legitimate reasons for that (i.e., his intellectual disability), “ the remedy for that is not release to the community. [¶] If [ ] Ingram quarrels with the services being provided to him at a level that he understands and is able to complete, the remedy would be an action against Coalinga State Hospital for failure to reasonably accommodate his disability. [¶] The remedy is not release under the Sexually
Viole nt Predator Act

. ” Finally, i t stated , “ the testimony that was provided is that [ ] Ingram ’ s unlawful attraction won ’ t be cured, that he remains an above average risk to the community, and while he may get better treatment in the community than he ’ s getting in16

Coalinga State Hospital, that is not the issue before the Court

. . . . [¶] So based on all of
the evidence that was presented by the Petitioner, the petition in this case for conditional
release is denied. ” Ingram filed a timely notice of appeal.
ANALYSIS Ingram challenges both (1) the trial court ’ s order denying the petition, and (2) the constitutionality of the SVPA ’ s conditional release provisions. We begin with Ingram ’ s challenges to the order denying the petition and then consider his constitutional challenges.
1. Order D enying the P etition In reviewing the trial court ’ s order, we apply the substantial evidence standard to review any factual findings , and we interpret the SVPA de novo . ( People v. Rasmuson
, supra , 145 Cal.App.4 th at p. 1504 ; Walker v. Superior Court
, supra , 12 Cal.5 th at p. 194. )
A. The Trial Court Applied the Correct Standard Ingram ’ s first argument is that the trial court mis understood or mis applied the law and erroneously believed he had t o prove he presented no ris k or no danger of reoffending if conditionally released , when, in fact, he had to prove only that he was not likely to reoffend . We agree Ingram did not have to prove he presented no risk or no danger of reoffending

. Section 6608, subdivision (g) states that the trial court must determine whether “ it is likely that the person will engage in sexually violent criminal
behavior .

. . if under supervision and treatment in the community. ” (Italics added.) And
in People v. Rasmuson
, supra , 145 Cal.App.4 th 1487 , the court held the term “ ‘ likely ’ ” means the person “ presents a substantial danger ” or “ a serious and well

- founded risk

” of
reoffen s e , and it never suggested the person had to prove he or she presented no danger or
no risk of reoffen s e

. (

Id . at p

. 1506; see id . at p p. 1505

- 1507.) Even t he People agree Ingram had to prove “ it was not likely he would sexually reoffend

. . . if under17

supervision and treatment in the community , ” and did not have to prove there was no risk
he would reoffend. ( I talics added .) Ingram believe s the trial court misinterpreted the law and effectively required him to prove a higher (and arguably impossible) no danger standard b ecause the district attorney argued at the hearing below that Ingram had to prove he “ will pose no danger to others if under outpatient supervision and treatment. ” But as even Ingram admits , “ the trial court did not explicitly announce that it was applying the ‘ no danger ’ standard. ” And more to the point, the trial court correctly stated the standard , as follows : “ [ T ] he finding that the Court must make in these proceedings is that the Petitioner would not be

a danger to the health and safety of others in that i t is not likely that the person will engage in sexually violent criminal behaviors due to the person ’ s diagnosed m ental disorder while under the supervision and treatment in the community. ” ( I talics added .)
The trial court then asked both parties whether they agreed that is what it had to find , and
both parties agreed it was. Thus, regardless of what the district attorney argued below,
the trial court correctly stated the law, and nothing in the record suggests the trial court
failed to apply the law as stated.

“ ‘ We presume that the court properly applied the law

. . . unless the appellant affirmatively shows otherwise. ’ ” ( People v. Mataele (2022) 13 Cal.5th 372, 414 ; see also McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1103 [ “ W e presume the trial court knew and properly applied the law absent evidence to the contrary ” ]. ) Ingram fails to affirmatively show the trial court required him to prove he posed no danger to others if conditionally released or that it otherwise failed to properly apply the law

. B. Substantial E vidence S upports the T rial C ourt ’ s D ecision Ingram ’ s remaining arguments all deal with his contention tha t he proved he could be safely conditionally released to an alternative program that included the enhanced levels of treatment and supervision recommended by Dr. Blasingame. Before discussing18

these arguments, we note I ngram acknowledges , “ Clearly, the standard SVP CONRE P program is not appropriate ” for him

. And again: “ [He] acknowledge[s] that he remain[s] an SVP and that he would not be suitable for plac ement in the community using the standard CONREP treatment program. ” At first blush, t h is would appear to dispose of
this appeal , because it is tantamount to acknowledging he f ailed to prove he i s not likely to reoffend if conditionally released to the only conditional release program in the state. Ingram argues, however , that the state cannot create or contract with a single “ one
size

- fits all ” conditional release program, and then deny him conditional release because he cannot meet its requirements due to his intellectual disability. He also argues that, if
CONREP do es not provide an appropriate a lternative program, the court could order it to do so, perhaps by working with a regional center like Alta California Regional Center to locate and fund specialized housing and services. Finally, he argue s he presented substantial evidence that he could safely be released to such a n alternative program , and
th e state presented no evidence to the contrary. Although some of his arguments are colorable in the abstract, w e u ltimately affirm the trial court ’ s order for the reasons stated
below. Ingram begins by citing various provisions in the SVPA that he claims
demonstrate there can be more than one conditional release program, and the trial court
has flexibility to select among such program s and to modify their terms and conditions to

create a program that is suitable for each particular individual

. ( See, e.g., § § 6608, subd. (h) [ trial court shall obtain recommendation on “ which forensic conditional release program is most appropriate ” ] , 6608.8, subd. (b) [ “ The terms and conditions of conditional release shall be drafted to include reasonable flexibility to achieve the aims of conditional release, and to protect the public and the conditionally released person ” ] , 6609. 1, subd. (c) [ trial court may “ a pprove, modify, or reject ” state ’ s “ recommendation or proposal regarding ” terms and conditions of conditional release if it finds they are “ not appropriate ” ].) We need not analyze his arguments in much detail because the People19

acknowledge the SVPA allows alternative conditional release programs , and we agree. The People argue, however, that nothing in the SVPA require s alternative programs , and we agree with this as we l l

. Merely s tating the SVPA allows but does not require alternative programs, however, does not dispose of this appeal. Instead, the question in
this case is whether the SVPA and the evidence admitted at the hearing required the trial court to find Ingram could be safely conditionally released to an alternative program that
includes the enh anced treatment and supervision recommended by Dr. Blasingame. We conclude the answer to that question is no. In order to explain our conclusion , we first

a ddress I ngram ’ s specifi c criticisms about the standard conditional release program overseen by Liberty/CONREP, namely that (1) it is not reasonable, (2) it does not
reasonabl y accommodate his intellectual disability, and (3) it fails to include time in a locked facility

. We then address his argument that he presented substantial evidence he could be safely supervised and treated in the community, and the state presented no evidence to the contrary.
i. CONREP ’

s expectations and conditions are reasonable Ingram argues “ SVP outpatient release conditions must be reasonable, ” and “ must be subject to challenge when they are not. ” He cites only one case to support his argument : People v. Bryant (2021) 11 Cal.5 th 976. People v. Bryant is inapplicable. The question there was whether a condition of mandatory supervision imposed by the court upon the defendant ’ s release from jail (namely, sub mitting to a search of any electronic
device in the defendant ’ s possession) was reasonable. ( Id . at p. 981.) This case does not involve a condition of mandatory supervision. Moreover, and more importantly, even if we were to assume for the sake of argument that release conditions must be reasonable, Ingram fails to convince us the

r elease conditions in this case are unreasonable. He argues it is not reasonable to expect him to comply with the requirements of a typical CONREP release because his disability prevents him from progressing through D S H ’ s SOTP . We disagree . We note initially that20

Ingram ’ s failure to complete the SOTP is not the primary reason the state ’ s experts believe d he wa s unsuitable for conditional release. This is because completing the program i s not an end in and of itself ; it is means to an end

— namely, teaching SVPs
how not to reoffend if released. What the state ’ s experts believe d wa s that Ingram wa s unsuitable for conditional release because he ha d not yet learned how not to reoffend. As
Dr. Evans explained , CONREP expects people on conditional release to “ possess robust management / suppression skills that they are able to effectively employ in times of need (e.g., when experiencing a deviant sexual thought or fantasy). ” CONREP also expects
them to have “ a thorough understanding of triggers t o relapse, ” “ a plan to safely integrate into the community, ” the “ ability to use treatment effectively[ and] be transparent with

one ’ s Treatment Team, insight into the precursors of the sexual offending, and the establishment of behavioral and emotional control mechanisms to ensure safety for self
and others. ” All of t hese expectations are eminently reasonable , and the goal of the
SOTP is to teach people how to meet them

. All of these expectations are also directly
related to the SVPA

’ s requirement that an SVP must prove he or she is not likely to reoffend if conditionally released. (§ 6608, subd. (g); People v. Rasmuson
, supra , 145 Cal.App.4 th at p p

. 1505

- 1506.) These expectations also align with the goals of the SVPA. A s noted above, the
SVPA was “ designed ‘ “ to provide ‘ treatment ’ to mentally disordered individuals who cannot control sexually violent criminal behavior ” ’ and to keep them confined until they no longer pose a threat to the public. ” ( People v. Putney

, supra , 1 Cal.App.5 th at
p. 1065.) The SVPA is thus based on the principle that until an SVP has learned to
control his or her sexually violent behavior, he or she continues to pose a threat to the public and must remain confined. Disability or no disability, t here is nothing
unreasonable about requiring SVPs to learn how to control their sexually violent behavior before they are conditionally released. Here, however, even Ingram ’ s expert acknowledge d he h a d not yet learned to control his sexually violent behavior , as21

evidenced by the fact that he agree d Ingram continue d to meet the definition of a SVP
and would require constant supervision if conditionally released

. What Ingram ’ s expert effectively believe d is that others can control Ingram ’ s sexually violent behavior for him

— i.e., he believe d Ingram is not likely to reoffend if he is provided w ith 2 4/7, one

- on
- one, line

- of

- sight supervision for the foreseeable future

. Control by others, however, is not the premise of conditional release. I f it w as , there would be no need to civilly commit SVPs in the first place and they could al l be supervise d , controlled, and treated in the community

. Indeed, Ingram comes close to acknowledging as much when he states, “ if the conditional release program involved each patient being accompanied 24 hours a day by three security guards, a psychologist, a social worker, a nurse, and a psychiatrist , everyone could be safely treated in the community

. ” He admits t hat his hypothetical scenario is a “ ridiculous extreme [] ” and we

agree. Dr. Blasingame ’ s recommendation , however, is no t that much less of a ridiculous

extreme than Ing ram ’ s hypothetical, and t he only difference between the two is the number of people assigned to accompany the SVP at all time s . In any event, we find Dr. Blasingame ’ s recommendation is neither reasonable nor required by the SVPA , and the
trial court was not required to adopt it

. ii. A p etition for c onditional r elease d oes n ot r aise r

easonable a ccommodation i ssues Ingram argues the A mericans with Disabilities Act of 1990 (ADA ; 42 U.S.C. § 12101 et seq. ) requires DSH and Liberty/CONREP to reasonably accommodate his intellectual disability by modifying the SOTP and the conditional release program so that he has the same opportunity to obtain conditional release as others. Relatedly, he argues
he “ can be better accommodated in an appropriate outpatient program, than at the state hospital. ” Whatever we think of th ese argument s in the abstract, we agree with the trial

court ’ s comment that a petition for conditional release is not the proper forum to litigate
reasonable accommodation issues. When ruling on such a petition, the only question for22

the court to decide is whether the petitioner met his or her burden of proving he or she is

not likely to reoffend if conditionally released. ( See § 6608, subd. (g); People v.
Rasmuson
, supra , 145 Cal.App.4 th at p p

. 1505

- 1506.) Whether reasonable
accommodations are required in order to make treatment or conditional release more accessible to someone with an intellectual disability or whether someone ’ s disability can be better accommodated somewhere other than DSH are simply not part of that equation

. It is perhaps telling that the only case Ingram cites to support his reasonable
accommodation argument is Atay d e v. Napa State Hospital (2017) 255 F.Supp.3d 978,
which involved a lawsuit that included a n ADA claim. The lawsuit was filed on behalf of

a dece dent who committed suicide in the county jail after having been found incompetent
to stand trial and ordered committed to Napa State Hospital (NSH) for treatment. The
lawsuit alleged the county and NSH violated the ADA because they failed to timely
transfer the decedent to NSH, and as a result of this failure, he “ was excluded from participating in NSH ’ s mental health services and given no possibility of access to those

programs. ” (

Id . at p. 1003; see id . at pp. 985

- 986, 1003

- 1004.) Unlike Atay d e , however,

t his is not an A DA lawsuit

. iii. Ingram ’

s “ locked facility ” a rgument is not applicable Ingram argues the plain language of t he SVPA demonstrates a conditional release

program can include at least some inpatient treatment in a locked facility , and

“ CONREP ’ s policy of only running an outpatient program that does not use a locked facility is not contemplated by the law. ” He then argues an “ appropriate ” conditional release program for him “ would probably involve .

. . being initially placed at a locked facility

. ” Maybe so, but at the hearing Ingram did not propose simply trading one locked facility for another. Indeed, his expert, Dr. Blasingame, expressly opined he should not be placed in a locked facility , explaining, “ While a period of orientation to the new home and surroundings is appropriate, having a mandatory

. . . lock

- down for his first months in placement is not in anyone ’ s best interest and could be disastrous for his transition

. ”23

( I talics added

. ) And , a lthough Dr. Blasingame recommended he be placed in a facility that provides 24

- hour nonmedical residential care, Licciardello ’ s testimony made it clear
that such facilities are not locked

. Thus, whatever the merits of Ingram ’ s argument that conditional release can include time in a locked facility, th at argument has no relevance to the facts of this case and is directly at odds with the evidence he presented at the hearing

. iv. The evidence does not compel a finding Ingram could be safely conditionally released Finally, we disagree with Ingram ’ s argument that he presented substantial evidence
he could be safely conditionally released to an alternative program as recommended by Dr. Blasingame , and the state presented no evidence to the contrary. Instead, we find Ingram ’ s evidence much weaker and more equivocal than he acknowledges. Ingram ’ s primary evidence was Dr. Blasingame ’ s testimony and written reports. Dr. Blasingame , however, did not focus on community safety or the likelihood that
I ngram would reoffend if conditionally released . Instead, he focused on In gram ’ s intellectual disability

, how his treatment progress (or lack thereof) would be affected by his disability

, and what types of accommodations or adaptations would need to be made in order for him to progress in treatment. As characterized by Ingram , “ [Dr.] Blasingame was not testifying as an expert in SVP treatmen t. He was testifying as an expert in the type of intellectual disability suffered by [Ingram] and the appropriate way to teach and treat people with similar disabilities. ” In other words, Dr. Blasingame was not testifying as an expert on the only issue the court had to decide

— namely, whether Ingram was likely to reoffend if conditionally released. As to that issue , Dr. Blasingame acknowledge d Ingram “ has been deemed a sexually violent predator ” and “ has been assessed as an above average level of risk ” for reoffen s e if released

. He then state d , “ The presumption of a court order allowing residential placement is that the residential care staff will provide adequate supports and supervision to encapsulate [ Ingram ’ s ] risk

. ” ( I talics added

. ) In other words, in order to find Ingram met his burden of proving he24

would not sexually reoffend if conditionally released, one has to presume that staff at whatever facility or home he is placed in will never let him out of their sight. Given that a primary purpose of the SVPA “ is to protect the public from a select group of criminal
offenders ” ( Walker v. Superior Court
, supra , 12 Cal.5 th at p. 184), t he trial court was not required t o make such a presumption.
As for Licciardello , at best her testimony shows there might be some type of home or facility located in a rural part of San Bernardino County that provide s residential care
to sex offenders

. Other than her second

- hand testimony, we have no information about
this home , and we have no idea whether it could implement Dr. Blasingame ’ s enhanced supervision recommendations (i.e., 24/7, one

- on
- one, arm ’ s length supervision)

. Licciardello ’ s testimony thus does not establish Ingram is unlikely to reoffend if conditionally released. Indeed, Licciardello did not offer any testimony on that issue.
2. C onstitutional C hallenges to the SVPA Ingram also argues the SVPA ’ s conditional release provisions are unconstitutional
for two reasons

. First, he argues : (1) he is entitled to treatment to reduce his risk of reoffending so he can be conditionally released ; (2) in order to be “ constitutionally adequate, ” such treatment must reasonably accommodate his intellectual disability ; and (3) DSH has failed to provide treatment that reasonably accommodate s his disability. Second, h e argues the SVPA is unconstitutional because of excessive delays that exist in finding SVPs housing in the community after they have been found suitable for
conditional release . As a result of these delays, SVPs can remain confined for years, and some may be effectively unreleasable due to a recent appellate court decision ( People v. Superior Court ( Cheek

) (2023) 87 Cal.App.5 th 373) that (according to Ingram) allows

“ anyone who lives within a quarter mile of the prop osed release site [to] stop the release simply by purporting to open a home school. ” We agree with the People that th e se constitutional challenges are not properly before u s

.25

First, Ingram did not raise these constitutional challenge s below , and as a general rule, “ issues not raised in the trial court cannot be raised for the first time on appeal. ” ( Wisner v. Dignity Health (2022) 85 Cal.App.5th 35, 44; see also Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [ “ ‘ “ ‘ a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court ’ ” ’ ” ] .) Ingram argues we have discretion to consider new issues on appeal, and although this may be technically true , our discretion is not un limited

. “ Although appellate courts have discretion to consider an issue in the first instance if it raises a question of law on undisputed facts , our Supreme Court has cautioned th at such discretion should be exercised rarely and only in cases presenting an important legal issue

. ” ( Wisner , at
p. 44 .) Put another way, “ An exception to the general rule may be presented

. . . where the theory presented for the first time on appeal involves only a legal question determinable from facts which not only are uncontroverted in the record, but which could not be altered by the presentation of additional evidence. ” ( Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167 .) Ingram ’ s constitutional challenges do

not raise pure legal issues that are determinable from incontrovertible and unalterable
facts

. As to whether DS H failed to provide treatment that reasonably accommodated Ingram ’ s intellectual disability , that presents a predominantly factual issue and the facts

are both controverted and could be altered by the presentation of additional evidence (i.e., what disability was DSH aware of and when , what accommodations were needed, what accommodations were offered or made, how did Ingram respond, what other
accommodations might be available, etc.)

. And as noted above, w e also agree that a petition for conditional release is not the proper forum to litigate reasonable
accommodation issues

. As to the claim that conditional release is excessively delayed
because of difficulties finding appropriate housing, that, too, raises a predominantly26

factual issue rather than a legal issue , and the record contains no evidence about delays in finding hous ing , much less undisputed evidence

. Second, because the trial court denied his petition, Ingram lacks standing to challenge the SVPA on the ground that conditional release is excessively delayed because of difficulties finding housing. “ One who seeks to raise a constitutional question must show that his rights are affected injuriously by the law which he attacks and that he is actually aggrieved by its operation. ” ( People v. Williams (1966) 247 Cal.App.2d 169, 170.) “ ‘ It is well

- settled law that the courts will not give their consideration to questions 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 particul ar case before it. It is incumbent upon a party to an action or proceeding who assails 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. ’ ” ( Peo ple v. Bock

l ett (2018)
22 Cal.App.5 th 879, 898.) Because the trial court denied his petition, Ingram will not be injured by any excessive delays that may exist in finding and approving housing , and he
thus lacks standing to challenge such delays

. DISPOSITION The judgment is affirmed.

/s/ EARL, P. J.

We concur:

/s/ ROBIE, J.

/s/ RENNER, J.