Filed 7/24/15 P. v. Flores CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JESSE FLORES,

 Defendant and Appellant.

 G048772

 (Super. Ct. No. M-9328)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, John L. 

Flynn, Judge. Affirmed.

Ron Boyer, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and 

Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent. 

* * *
2

Jesse Flores was committed for an indeterminate term to the Department of 

State Hospitals (DSH; formerly the Department of Mental Health or DMH) after a jury 

determined he was a sexually violent predator (SVP) within the meaning of the Sexually 

Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.; all statutory citations 

are to this code unless otherwise noted.) Flores raises evidentiary, instructional, and 

constitutional arguments seeking to reverse the commitment order. We affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

In June 2001, the Orange County District Attorney petitioned to commit 

Jesse Flores under the SVPA. In June 2011, the court found probable cause to believe 

Flores was likely to engage in sexually violent, predatory behavior if released (§ 6602) 

and set the matter for trial. At trial in 2013, witness testimony detailed Flores’s sexually 

violent offenses, psychologists Christopher Matosich and Dawn Starr testified about their 

respective SVP evaluations, the district attorney called Flores to testify as an adverse 

witness, and Flores presented expert and percipient witness testimony on his own behalf 

to demonstrate he was not an SVP.

A. Trial Testimony Concerning Prior Sex Offenses

Cindy C. testified she and a friend, Yvonne, were walking to a friend’s 

house in Downey on an evening in November 1976. Both women were 18 years old. 

Flores pulled up in his truck and persuaded them to accept a ride. Once inside, he 

claimed he had to expose himself to 20 girls to get into a fraternity and had five more to 

go. Yvonne managed to get out of the truck, but Flores grabbed Cindy by the throat and 

threatened to kill her unless Yvonne got back inside. He took their driver licenses and 

told them he was memorizing their addresses and would kill them if they told anyone 

what happened. He ordered both girls to remove their tops, threatened to kill them, and 

pulled his zipper down to expose his penis. He made the girls kiss each other and suck 

the other’s nipples. He told Cindy to grab his erect penis. Flores laughed when Cindy
3

pleaded with him not to rape her because she was a virgin. Cindy told him God would 

judge him harshly and asked Flores if he was familiar with a popular Christian counselor

she identified. Flores’s demeanor changed when she mentioned the counselor’s name. 

He “looked like a ghost” and admitted he knew the counselor because he had helped 

Flores after he committed an act similar to his conduct with Cindy and Yvonne. Cindy 

told Flores he needed help and he should meet her at church on Sunday and they could 

pray with the counselor. Flores, who identified himself as Jesse Scott, admitted “there’s 

something wrong with me.”

Donna P. testified she returned to her Huntington Beach apartment after 

work in March 1978. She was 22 years old at the time. Flores, a stranger, was waiting in 

the carport. He approached Donna’s car, and prevented her from leaving her car by 

grabbing her throat. He unbuttoned her blouse and touched her breasts. Donna asked 

him to explain why he wanted to rape her because she had never done anything to him. 

She argued there was no reason to rape her because he was a good looking man and could 

have a girlfriend. Flores replied he would not go through with his planned rape, but 

asked her to promise not to prosecute him. He demanded her driver’s license and wrote 

down her information. She reported the attack, and Flores was convicted of assault with 

intent to commit rape. While the case was pending, Flores followed her after a court

appearance. He and his parents offered Donna money and a car to drop the charges.

Mary M. testified she was a 22-year-old student attending a Huntington 

Beach community college on an evening in May 1978 when she felt ill and went into the 

restroom. Flores followed her into the restroom, turned off the lights, and grabbed her 

when she opened the stall door. He pushed her back into the stall, put his hand on her 

mouth, warned her he had a knife and ordered her to be quiet. He groped her chest and 

crotch and forced her to take her pants down. He unzipped his pants and tried to have 

intercourse with her. She said it was not going to work, and he replied “‘well, make it 

work.’” She turned around and he penetrated her vagina from behind. He asked her if 
4

she “had fantasies about this type of thing.” He finished, pulled up his pants, and 

demanded money, and became angry when she told him she did not have any. He 

searched her purse and departed, telling her not to leave. 

Laura C. testified she was 16 years old when Flores attempted to sexually 

assault her in Long Beach on an evening in November 1981. Flores ran up behind her, 

grabbed her in a choke hold, put his hand over her mouth, and threw her to the ground.

She yelled “rape,” and a man responded to chase Flores away. 

Meredith E. testified Flores sexually assaulted her in April 1986 when she 

was 15 years old. She was watching television while babysitting the children of Flores’s 

brother when Flores forced her to take her clothes off, put his finger in her vagina, raped 

her, and put his tongue or mouth on her vagina.

B. SVP Evaluator Testimony

Psychologist Christopher Matosich contracted with the DSH to perform 

independent SVP evaluations. He evaluated Flores in March 2012 and again in April 

2013 using a standardized assessment protocol. The records Matosich reviewed contained 

the following: Flores suffered seven convictions for sexually violent criminal acts 

between 1975 and 1986 that qualified as SVP offenses. In September 1975, Flores 

approached two 13-year-old girls, Gale and Becky, displayed a knife, drove them to 

another location, and made them disrobe and fondle each other, guiding their hands.

Flores took off his pants and inserted his fingers into Gale’s vagina. Matosich noted the 

incident involving Cindy and Yvonne occurred while Flores was on probation and 

resulted in convictions for false imprisonment and commitment to Patton State Hospital

(Patton) as a mentally disordered sex offender (MDSO).

Flores was released from Patton in November 1977. In March 1978, he 

assaulted Donna and in May 1978, Flores raped Mary. Flores received a five-year prison 

sentence for these offenses in August 1978 and obtained his release on parole in 

September 1981.
5

In April 1986, Flores forcibly orally copulated, sexually penetrated, and 

raped 15-year-old Meredith. He was convicted in November 1986 and in custody for 

these offenses at the time the SVP petition was filed.

In addition to these convictions, Matosich relied on other incidents in 

forming his opinions, including the 1975 sexual assaults on Gale and Becky, the 

November 1981 attempted rape incident involving Laura, which resulted in a parole 

violation and commitment to Atascadero State Hospital (Atascadero) in January 1982. 

Flores obtained his release from Atascadero in May 1982.

Additional records revealed in 1973, while stationed in Oklahoma with the 

military, Flores exposed himself to three eight-year-old girls. In December 1975, while 

masturbating in his car, Flores raised up his pelvis so a girl named Carol could see his 

penis and testicles. Flores followed Carol and her two female friends, and parked in front 

of them so they could observe him masturbate. In June 1976, Flores suffered a 

conviction for annoying or molesting a child and was placed on probation.

Matosich also noted records reflected Flores admitted he began exposing 

himself in school when he was 12 years old, and suffered his first arrest while in the 

military at age 19 or 20. He committed a store burglary in 1983 and failed to register as a 

sex offender on at least two occasions. His work history was infrequent and his longest 

period of employment ended when he was fired after six months for stealing.

Matosich testified Flores met the statutory criteria of a sexually violent 

predator. Matosich defined a SVP as a person suffering from a mental disorder that 

predisposes the person to commit sexually violent hands-on offenses against strangers or 

casual acquaintances. Matosich found that Flores met this definition, concluding that he

currently suffered from several mental disorders, including paraphilia not otherwise 

specified (NOS), exhibitionism, voyeurism, and Axis II antisocial personality disorder

characterized by aggression, irritability, impulsivity, and lack of empathy. Flores also 
6

suffered from bipolar disorder, which in its manic phase might involve hypersexuality,

but this affliction was currently in full remission because of medications and treatment. 

Matosich explained most persons who rape do not have a paraphilia, but 

Flores’s persistent preoccupation with deviant sexual behavior, fantasies, and urges

despite incarceration and treatment supported the diagnosis. Matosich observed a

“general rapist[], rape[s] for sex. It’s focused, it’s typically quick, and they move on. [¶] 

Individuals with paraphilia, specifically [] Flores, [had] a coercive type disorder. He’s 

talking to the victim” and in one incident asked about her fantasies. He displayed “very 

specific attempts to personalize or continue the relationship” and to establish “future 

contact through a courtship-type of disorder process.” He also had “a pattern of behavior 

of stalking or following” not seen with a general rapist. Matosich found significant that 

Flores’s early onset of sexually deviant behavior had progressed to more diversified and 

serious “hands-on” sexually violent behavior over time. 

Matosich concluded Flores’s disorders were not curable and may have both 

a biological and environmental origin. Flores’s mental disorders impaired his volitional

control, predisposing him to commit criminal sexual acts that made him a menace to the 

health and safety of others. Matosich believed Flores would likely engage in sexually 

violent predatory behavior unless he received appropriate treatment while in custody.

Flores denied he had a sexual disorder when Matosich interviewed him, 

explaining at the time of each incident his life “was falling apart in some regard.” He 

also claimed he had a very abusive mother and received a late diagnosis of bipolar 

disorder. Matosich viewed this as Flores’s attempt to avoid personal responsibility and to 

portray himself as a victim, which suggested Flores would not voluntarily follow up with

treatment for his disorders.

Matosich testified Flores did not respond to treatment during his 

hospitalization at Atascadero between 2001 and 2008, but records from his 

hospitalization at Coalinga State Hospital (Coalinga), which began in 2008, reflected he 
7

actively participated in the treatment program over the previous two years and was 

making significant progress. Matosich noted Flores engaged in 12 aggressive incidents at 

Atascadero and one at Coalinga that demonstrated the severity and persistency of his 

antisocial personality disorder, but Flores displayed no verbal or physical aggression in 

the last 18 months, and there had been a decrease in his impulsivity. Flores had no 

sexually aggressive incidents since 1986.

Matosich performed the Static-99 sexual recidivism risk assessment. The 

Static-99 uses various factors related to the offender, his crimes, and his victims to 

determine the risk of committing another sexual offense. The assessment is regarded as a 

moderate predictor of sexual recidivism and may underestimate the actual risk. Based on 

Flores’s score of eight and other relevant factors, including prior MDSO commitments, 

Matosich placed him in the high-risk and high-treatment category for sexual recidivism,

measuring his risk at 4.96 times higher than the typical sexual offender. Matosich 

explained Flores had “intimacy deficits,” meaning there was no indication he had ever 

been in a significant romantic relationship, which increased the risk of sexual recidivism. 

He also had a life-long pattern of disregarding the welfare of others. Research 

demonstrated “the presence of antisocial personality disorder with sexual deviancy 

increases the risk of sexual recidivism.” Based on Flores’s history, Matosich believed 

Flores would commit predatory sexual offenses again. 

Although Flores’s future plan included community-based treatment, 

Matosich did not believe Flores would follow through with treatment in an outpatient 

setting because he lacked sufficient volitional control to consistently participate in any 

program. Even in the controlled setting of a state hospital, Flores only recently had 

begun to accept treatment. Matosich also diagnosed Flores with malingering, which 

involves the faking or exaggerating certain symptoms to obtain an advantage, such as 

better housing.
8

Psychologist Dawn Starr also contracted with the DSH to perform 

independent SVP evaluations. She evaluated Flores initially in 2001 and interviewed him 

on five occasions, the last time in March 2013. She diagnosed Flores with paraphilia 

NOS and personality disorder NOS, which are mental disorders featuring volitional and 

emotional impairment. She also gave him a clinical diagnosis of voyeurism, 

exhibitionism, and noted he had been diagnosed with bipolar disorder and attention 

deficit disorder. Persons with his type of antisocial personality disorder tend to have a 

higher level of sexual interest and behaviors than others. Flores manifested other features 

of the disorder, including impulsiveness, irresponsibility, and a reckless disregard for the 

safety of others. He had an “inadequate” or “dependent” personality and had “not been 

able to function on his own very well when he” was “out in the community” and “had to 

rely on other people for subsistence . . . .”

Starr defined paraphilia NOS as “sexually arousing urges, fantasies, or 

behaviors” occurring over a period of at least six months toward “non-consenting sex or 

other kinds of deviant sexual interests that don’t meet [] specified categories.” Less than 

one percent of all rapists suffer from paraphilia NOS. Flores’s history reflected he had 

“serious difficulty controlling his desire for non-consensual sex,” and believed “the 

specific fact that the victims are not consenting is what arouses him.” She noted Flores 

had made statements in the past acknowledging there was something wrong with him, but

he could not control his misbehavior even though he knew what he was doing was wrong.

Starr opined given “the totality of his history,” Flores was “likely to commit future 

sexually violent predatory offenses without appropriate treatment in custody.” Starr also 

found Flores scored an eight on the Static-99R, placing him in the high-risk category of 

offenders.

Starr stated Flores appeared to be making good progress in his treatment, he

had better insight into his triggers and responses, and she was impressed with his release 

and relapse plan, which she described as comprehensive. She believed he would be ready 
9

for release at some point in the future, but he had not had an opportunity to practice what 

he had learned outside a secure facility, and he occasionally reacted emotionally in ways 

that were “not consistent with good coping skills that in the past predisposed him to 

commit sexual offenses.”

C. Flores’s Testimony

The government called Flores as an adverse witness during its case-in-chief 

(Evid. Code, § 776). Flores described his prior sex offenses, both charged and 

uncharged, beginning at age 12 with exhibitionism. He claimed to have forgotten 

significant details about several of the incidents, but accepted as true the facts recounted 

in the police reports. He generally claimed the incidents occurred on the “spur of the 

moment,” denied fantasizing about the sexual acts in advance, explaining he was 

“curious,” interested in “the sexual aspect of it,” and experienced “some arousal” during 

the assaults. Flores stated he dated, had girlfriends, and had the ability to seek consensual 

sex, but acknowledged the nonconsensual aspects of the incidents did not detract from his 

sexual excitement. 

Flores admitted he made profane and derogatory comments to staff and had 

physical altercations with other patients at Atascadero from 2001 to 2007 and initially 

during his commitment to Coalinga in 2008. He also conceded he had been fired from 

previous jobs for theft and aggressive behavior, and had been terminated from several

community college programs. Flores recently had completed phase three of a five phase 

treatment plan, acknowledged it was “important to have a good relapse prevention plan,” 

but claimed he did not need treatment in a secure facility like Coalinga anymore. Flores 

denied ever having a sexual deviancy, explaining the rapes were “opportunistic” and he 

simply made several “bad choices.” Flores asserted he would not reoffend because he 

had learned how to emphathize with sexual assault victims. But he previously claimed to 

have learned about his victims’ feelings from his treatment, and nonetheless reoffended. 
10

Flores testified the treatment he received at Coalinga was far more 

structured and “sex offender specific” than his treatment at Patton and Atascadero. He 

previously had provided false psychiatric symptoms to obtain safer housing in prison. He 

voluntarily participated in sex-offender treatment at Coalinga even though other patients 

made threats of bodily harm to prevent him from attending. He also attended and 

participated in other voluntary programs at Coalinga, including one where he comforted 

dying patients in the hospital wing. The remaining phases of his treatment program 

concerned preparation for release (phase four) and release (phase five) from commitment. 

Flores presented the testimony of Dr. Allen Frances, a retired psychiatrist 

and chairperson of the task force that produced the fourth revision of the Diagnostic and 

Statistical Manual of Mental Disorders. Frances criticized Matosich and Starr for 

diagnosing Flores with paraphilia NOS, explaining “NOS diagnoses don’t belong in 

courtrooms because they can’t be trusted, they are unreliable.” 

Dr. Brian Abbott, a licensed psychologist and clinical social worker, 

evaluated Flores and concluded he did not meet the criteria of a SVP or a personality 

disorder NOS, and never suffered from a paraphilic disorder. 

Several social workers, psychiatric technicians, other hospital workers, and 

a Jewish chaplain at Coalinga testified about Flores’s progress in dealing with his mental 

disorders and the insight he demonstrated into the causes of his offenses. The witnesses 

also testified about his improvement in responding to treatment and described his 

cooperative and helpful demeanor while coping with the pressure of the hospital 

environment.

II

DISCUSSION

A. Substantial Evidence Flores Suffered from a Current Mental Disorder

The SVPA provides for indefinite involuntary civil commitment of persons

who meet specified criteria following the completion of their prison terms. (People v. 
11

McKee (2010) 47 Cal.4th 1172, 1186-1187 (McKee I).) Section 6600, subdivision (a)(1),

defines a sexually violent predator as “a person who has been convicted of a sexually 

violent offense against one or more victims and who has a diagnosed mental disorder that 

makes the person a danger to the health and safety of others in that it is likely that he or 

she will engage in sexually violent criminal behavior.” To establish a person is an SVP, 

the government must prove the following: (1) the offender has been convicted of a 

qualifying sexually violent offense against at least two victims; (2) the offender has a 

diagnosed mental disorder; (3) the disorder makes it likely the offender would engage in 

sexually violent conduct if released; and (4) this sexually violent conduct will be 

predatory in nature. (People v. Roberge (2003) 29 Cal.4th 979, 984-985 (Roberge);

Cooley v. Superior Court (2002) 29 Cal.4th 228, 243 & 246, fn. 9; People v. Hurtado

(2002) 28 Cal.4th 1179, 1189.) The government must establish these elements beyond a 

reasonable doubt and the jury must unanimously agree before finding the defendant is a 

SVP. (Reilly v. Superior Court (2013) 57 Cal.4th 641, 648.)

“When considering a challenge to the sufficiency of the evidence . . . we 

review the entire record in the light most favorable to the judgment to determine whether 

it contains . . . evidence that is reasonable, credible, and of solid value – from which a 

reasonable trier of fact could find the defendant [qualified as an SVP] beyond a 

reasonable doubt.” (People v. Lindberg (2008) 45 Cal.4th 1, 27; People v. Fulcher

(2006) 136 Cal.App.4th 41, 52; see Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) 

Reversal of the judgment is not warranted even though the evidence might support a

contrary finding (People v. Bolin (1998) 18 Cal.4th 297, 331) and we may not reverse 

“‘unless it appears “that upon no hypothesis whatever is there sufficient evidence to 

support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) 

Flores first contends insufficient evidence supported the jury’s finding he

had a diagnosed mental disorder. He asserts the deputy district attorney presented no 

“recent objective evidence” of a current mental disorder. Flores cites the absence of 
12

evidence he engaged in sexually inappropriate behavior while in custody. For example, 

there was no evidence he made sexually inappropriate remarks, fantasized about his prior 

crimes, engaged in sexual misconduct, or stalked staff. 

Flores relies on People v. Buffington (1999) 74 Cal.App.4th 1149

(Buffington), which rejected an SVP’s claim he was denied equal protection of the law 

compared to other persons involuntarily committed (Pen. Code, § 2962 et seq. [Mentally 

Disordered Offenders]; § 5000 et seq. [Lanterman–Petris–Short (LPS) Act]). The SVP

argued the “evidentiary requirements for determining who is suffering from a mental 

disorder and who is likely to reoffend . . . are lower than other civil commitment 

schemes,” namely “the SVPA does not require ‘any recent objective basis for a finding 

that an inmate is likely to reoffend.’” (Id. at p. 1159.) Buffington upheld the 

constitutionality of the SVPA in part by determining any equal protection requirement

was satisfied by the administrative and judicial proceedings for screening and evaluation 

of SVP’s, including professional assessments of the diagnoses and risk factors, which 

must satisfy the required criteria for SVP commitment beyond a reasonable doubt. (Id. at 

p. 1160.) Buffington concluded the provisions of the SVPA require “‘recent objective 

indicia of the defendant’s condition’ and a ‘recent objective basis for a finding that an 

inmate is likely to reoffend.’” (Id. at p. 1161.) Here, the testimony of Matosich and Starr 

established the recent objective indicia of Flores’s condition and the likelihood he would 

reoffend. Nothing in Buffington or section 6600 requires evidence a person has acted out 

sexually in custody while awaiting trial per the SVPA.

Flores notes his most recent sexually violent act occurred 27 years before 

his SVP trial. He asserts that “courts have held that the evidence should at a minimum be 

from within the last one or two years.” The cases he relies on are inapposite. In Peters v. 

Superior Court (2000) 79 Cal.App.4th 845, the issue was whether a petition to extend 

commitment under the former SVPA required a new petition supported by two current 

mental health evaluations. The court rejected the government’s position the original 
13

evaluations could “do double duty by supporting both the initial and recommitment 

petitions. . . . . There is no evidence that either of the authors of the 1996 reports has seen 

or examined Peters since 1996. Nor is there anything in the record to suggest that the 

authors of these reports intended that the reports be used in the recommitment process. 

Finally, the use of potentially stale reports subverts the manifest intent of the SVPA—the 

state must prove that the party suffers from a currently diagnosed mental disorder which 

predisposes him to engage in sexually violent criminal behavior.” (Id. at p. 850.) 

Flores’s reliance on several cases is misplaced. In People v. Munoz (2005) 

129 Cal.App.4th 421, the appellate court held the trial court erred by allowing evidence 

and argument concerning the defendant’s two prior SVP commitments because this was 

irrelevant and tended to place the burden of proof on the defendant to prove he was no 

longer an SVP. (Id. at p. 432 [“it is necessary that nothing be done that suggests to the 

jury that its task is to compare the defendant’s present mental status with an earlier 

finding that he or she is an SVP. As we have noted each SVP hearing addresses the 

defendant’s current mental state. Nothing must be done to suggest the defendant is 

required to prove he is no longer an SVP or to effectively lessen the state’s burden by 

establishing a datum of mental disorder and dangerousness”].) 

In Conservatorship of Hofferber (1980) 28 Cal.3d 161, the court held the 

state could confine incompetent criminal defendants under the LPS statute if by reason of 

a mental disease, defect, or disorder the person represented a substantial danger of 

physical harm to others. The court reversed for several reasons, one of which was that 

“Even if [the defendant] had a dangerous mental condition in 1974 the passage of time by 

itself [the opinion was filed in 1980] diminishes the validity of an assumption that his 

dangerousness continues unabated.” (Id. at p. 177 [court also noted the defendant

“already had been confined in a hospital for the three-year treatment period [and]

[p]sychiatric impressions gained during such a period of observation obviously are 
14

relevant and important means of determining whether a person once violent remains 

so”].) 

Nothing in these cases suggests recent sexual behavior is necessary to 

sustain an SVP finding. Here, as described above, psychologists Matosich and Starr 

considered Flores’s conduct in the state hospital in concluding that Flores currently 

suffered from a mental disorder that qualified him as a SVP. Their testimony, as 

described in detail above, constitutes substantial evidence Flores currently suffered from 

a qualifying mental disorder. (See Kansas v. Crane (2001) 534 U.S. 407, 414-415, 

quoting Abel & Rouleau, Male Sex Offenders, in Handbook of Outpatient Treatment of 

Adults: Nonpsychotic Mental Disorders 271 (M. Thase, B. Edelstein, & M. Hersen eds.

1990) [“sex offenders’ ‘compulsive, repetitive, driven behavior . . . appears to fit the 

criteria of an emotional or psychiatric illness’”].)

Flores notes the psychologists testified paraphilias are chronic conditions 

characterized by current, intense, sexually arousing urges, fantasies or behaviors 

occurring over six months. Because he did not manifest these behaviors, Flores argues 

“the only reasonable conclusion is that [Flores] does not suffer from that condition.” We 

are not persuaded. The argument does not take into account other possibilities. For 

example, the jury reasonably could conclude Flores kept his behaviors in check because 

of the close supervision and treatment he received while confined in the state hospital. 

B. Substantial Evidence Flores Likely to Reoffend

Flores also argues there was insufficient evidence he would engage in 

predatory sexually violent conduct if released. (See Roberge, supra, 29 Cal.4th at p. 988 

[“‘likely [to] engage in sexually violent criminal behavior’” means the person “poses a

substantial danger, that is, a serious and well-founded risk, of committing” such crimes if 

released from custody]; see also Cooley, supra, 29 Cal.4th at p. 256 [amenability to 

voluntary treatment is relevant to the ultimate determination whether the person is likely 

to engage in sexually violent predatory crimes if released from custody]; People v. 
15

Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 927.) He challenges the reliability of 

the assessment tools Matosich and Starr used to support their opinions. He cites 

Matosich’s and Starr’s testimony the Static-99R is a “‘moderate predictor of sexual 

recidivism’” and argues “moderate accuracy is not one that meets the objective standard 

described by the term ‘well-founded.’”

Penal Code section 290.04 requires SVP evaluators to use the Static-99 test, 

which is an actuarial instrument that allows an evaluator to place sexual offenders in 

different risk categories based on various factors such as age, marital status, the number 

of prior offenses, and the offender’s relationship to the victims. (People v. Paniagua

(2012) 209 Cal.App.4th 499, 504, fn. 5.) Matosich explained the Static-99 assessment 

has shown good to moderate reliability over time, but it underestimated the risk posed by 

a SVP. 

Here both Matosich and Starr placed Flores in the high-risk and high 

treatment category. Matosich concluded Flores’s disorders were not curable, they 

impaired his volition, predisposed him to commit sexual acts that made him a menace to 

others, and he likely would “engage in sexually violent predatory behavior without 

appropriate treatment and custody.” Matosich noted Flores’s antisocial personality 

disorder increased the risk he would reoffend, and Flores’s failure to acknowledge he had 

a sexual disorder demonstrated a lack of personal responsibility and suggested Flores 

would not follow-up with postrelease treatment for his disorders. Matosich also asserted 

Flores lacked the self-discipline to participate consistently in a treatment program, 

pointing out Flores did not respond to sex offender treatment at Atascadero between 2001 

and 2008, and only recently had begun to accept treatment in the controlled setting of a 

state hospital. Starr testified in a similar fashion. Based on Flores’s history, Starr 

concluded he was “likely to commit future sexually violent predatory offenses without 

appropriate treatment in custody.” 
16

Flores lacked a structured postrelease plan to keep him on track and deter 

any tendency to reoffend. Flores based his postrelease plans on a move to Oregon, but he 

admitted he knew no one there, did not have a job or residence waiting for him, and he 

had not been accepted into a sex offender treatment program. Based on Matosich’s and 

Flores’s testimony, the jury reasonably could conclude Flores lacked insight into his 

mental disorders and the motivation to treat them, which supported the conclusion Flores 

was likely to reoffend if given a chance. 

In sum, Flores’s repeated acts of predatory sexual violence since 1975, 

checked only while he was either incarcerated or in a state hospital, and expert testimony 

he was likely to reoffend, provided ample evidence to conclude Flores was likely to 

engage in predatory sexually violent behavior if released.

C. Statutory Standard of Dangerousness Not Void for Vagueness

Flores asserts the SVPA is unconstitutionally vague because its standard of 

dangerousness, defined as whether the offender is “likely [to] engage in sexually violent 

criminal behavior,” fails to conform to the notice requirements of the Fourteenth 

Amendment’s due process clause. The California Supreme Court, however, has 

interpreted section 6601’s phrase “likely to engage in acts of sexual violence” to mean 

“the person presents a substantial danger, that is, a serious and well-founded risk” of 

reoffending. (See Ghilotti, supra, 27 Cal.4th at p. 922; Cooley, supra, 29 Cal.4th at pp.

255-258; Roberge, supra, 29 Cal.4th at pp. 987-988.) He faults the Supreme Court’s 

failure to adopt a “clear, quantitative delineation of the applicable legal standard,” such as 

that used in some other states with similar SVP statutes. (See Ghilotti, supra, at p. 923, 

fn. 14 [citing other state standards including “‘highly probable’” “‘having a better chance 

of existing or occurring than not’” “‘a substantial likelihood, at least more likely than 

not’” “‘highly likely’”].) We reject Flores’s claim the Supreme Court’s articulation of 

the standard is constitutionally suspect. (In re Marquez (2003) 30 Cal.4th 14, 20 [courts 

required to interpret a statute consistent with applicable constitutional provisions seeking 
17

to harmonize statute and constitution].) The term “likely” has been approved in statutes 

that are substantially similar to the SVPA, such as the Kansas sex offender statute 

reviewed in Kansas v. Hendricks (1997) 521 U.S. 346. 

D. Sua Sponte Duty to Instruct That “Likely” to Engage in Acts of Sexual Violence 

Meant “Much More Than the Mere Possibility” Flores Would Reoffend

Flores asserts the trial court erred in failing to instruct the jury sua sponte

that “likely” to engage in acts of sexual violence “connotes much more than the mere 

possibility that the person will reoffend.” (See Ghilotti, supra, 27 Cal.4th at p. 922.)

“‘Even in the absence of a request, a trial court must instruct on general 

principles of law that are . . . necessary to the jury’s understanding of the case.’

[Citations.] That obligation comes into play when a statutory term ‘does not have a plain, 

unambiguous meaning,’ has a ‘particular and restricted meaning’ [citation], or has a 

technical meaning peculiar to the law or an area of law [citation]. [¶] As is clear from our

recent decision in Ghilotti, supra, 27 Cal.4th 888, the meaning of the SVPA’s term 

‘likely’ is neither plain nor unambiguous.” (Roberge, supra, 29 Cal.4th at p. 988.)

Here, the trial court instructed the jury that to find Flores was a SVP, there 

had to be a “substantial danger” and a “serious and well-founded risk” that he would 

reoffend if released. This instruction closely tracked the language in Roberge, supra, 29 

Cal.4th at page 988, where the court stated that “a person is ‘likely [to] engage in 

sexually violent criminal behavior’ if at trial the person is found to present a substantial 

danger, that is, a serious and well-founded risk, of committing such crimes if released 

from custody.” No reasonable juror would have read the trial court’s instruction to 

conclude a “mere possibility” of reoffending would suffice to qualify Flores as an SVP. 

The instruction was accurate as given, although in the future the better practice would be 

to instruct the jury with the language Flores complains was improperly omitted to track 

precisely the definition of “likely” articulated in Ghilotti, Cooley, and Roberge.
18

E. Sua Sponte Duty to Instruct on Amenability to Treatment 

Relying on People v. Grassini (2003) 113 Cal.App.4th 765 (Grassini), 

Flores contends the trial court had a sua sponte duty to instruct the jury it should consider 

whether his amenability to treatment raised a reasonable doubt as to whether he was 

likely to reoffend. We disagree.

In determining whether it is likely the person will reoffend, the jury must 

consider whether the individual presents a serious and well-founded risk of committing a 

sexually violent predatory crime if released from custody. (Roberge, supra, 29 Cal.4th at 

pp. 988-989.) Evidence of the person’s amenability to voluntary treatment is relevant to 

the ultimate determination whether the person is likely to reoffend. (Id. at p. 988, fn. 2.) 

Evidence that a person is amenable to voluntary treatment creates a sua sponte duty “to 

instruct the jury that it is to determine whether custody in a secure facility is necessary to 

ensure that the individual is not a danger to the health and safety of others.” (Grassini, 

supra, 113 Cal.App.4th at p. 777) “Based upon the holding in Grassini, CALCRIM No. 

3454 includes as a fourth element that must be proved to establish SVP status if there is 

evidence of the individual’s amenability to voluntary treatment, that it is necessary to 

keep the person ‘in custody in a secure facility’ to ensure the public health and safety.” 

(People v. Superior Court (George) (2008) 164 Cal.App.4th 183, 194-195.)

Here, the trial court instructed the jury it must determine whether: “[I]t is 

necessary to keep [Flores] in custody in a secure facility to ensure the health and safety of 

others.” Flores acknowledges this language “parallels words in People v. Grassini,” but 

asserts the words used “completely fail to address the issue that triggers the instruction”

because “it did not ask the jury to address whether [his] amenability to voluntary 

treatment raised a reasonable doubt as to whether [he] was likely to reoffend.” Because 

the instruction was a correct statement of the law, the trial court did not have a sua sponte

duty to further instruct the jury on this point. Flores could have asked for a special 

instruction on this point, but he failed to so. 
19

F. Instructions Concerning Burden of Proof of Dangerousness

Flores argues the trial court placed the burden of proof regarding 

dangerousness on him. He explains, “The jury was asked to determine whether ‘it is 

necessary to keep him in custody in a secure facility to ensure the health and safety of 

others.’ Even though this instruction speaks in terms of what the petitioner must prove, 

the element as stated inherently reverses the burden of proof. [¶] . . . [¶] . . . As the 

question is framed, if the jury has no evidence of anything that would guarantee the 

health and safety of others then the jury has no choice but to answer that confinement in a 

secure facility is necessary. In that sense, on this element, the burden of proof has been 

reversed. [¶] To ask the jury to determine whether confinement is necessary to ensure 

the health and safety of others effectively places a burden on the individual in that the 

jurors must find the element met unless the health and safety of others has been otherwise 

ensured.”

Flores’s argument does not persuade us the instruction was flawed. We 

disagree. The court instructed the jury the petitioner “must prove beyond a reasonable 

doubt that” it was “necessary to keep [Flores] in custody at a secure facility to ensure the 

health and safety of others.” No reasonable juror would interpret this instruction to place 

the burden on Flores to prove his confinement was unnecessary. The district attorney’s 

argument did not shift the burden of proof either. He argued that while Flores was 

“making this progress, which is good, . . . he needs to demonstrate more improvement in 

treatment, more consistent progress in that type of secure setting.” He also argued, 

“[Appellant] has not demonstrated or established the type of consistent improvement and

progress, and in treatment without incident that is necessary to determine that he will be 

able to complete some type of outpatient treatment program successfully.” Contrary to 

Flores’s view, this argument did not shift the burden to Flores to prove he would

successfully complete treatment in the community or that it was necessary to keep him in 

a secure facility in contradiction to the jury instructions. The deputy district attorney 
20

merely noted Flores’s lack of progress in his previous treatment, which leads to an 

inference that he was unlikely to follow or benefit from treatment if released from 

custody.

G. Pinpoint Instruction Concerning Absence of Recent Overt Act

Flores requested the following pinpoint instruction: “While ‘Danger to the 

health and safety of others’ does not require proof of a recent overt act while the 

defendant is in custody, this does not mean that absence of such conduct may not be 

considered by you in reaching a verdict in this matter.” The court denied the request: 

“[I]t is more of a case of argument. I think it is not an appropriate jury instruction.”

SVP trials are special proceedings of a civil nature. (Moore v. Superior 

Court (2010) 50 Cal.4th 802, 815, 821.) In both civil and criminal cases any party may 

ask the trial court to give the jury special instructions concerning points of law. (Code 

Civ. Proc., § 609; Pen. Code, §§ 1093, subd. (f), 1127; People v. Rodrigues (1994) 

8 Cal.4th 1060, 1192 (Rodrigues ) [amplifications or clarifications of law]; People v. 

Bolden (2002) 29 Cal.4th 515, 558 (Bolden ) [instructions pinpointing the theory of the 

defense case].) A trial court may refuse any proffered instruction if it incorrectly states 

the law, is argumentative, or merely duplicates other instructions. (Bolden, supra, at 

p. 558; People v. Gurule (2002) 28 Cal.4th 557, 659; Ideal Heating Corp. v. Royal 

Indem. Co. (1951) 107 Cal.App.2d 662, 668.)

As noted, a sexually violent predator is a person who has a “diagnosed 

mental disorder that makes the person a danger to the health and safety of others . . . .”

(§ 6600, subd. (a)(1).) Section 6600, subdivision (d), provides, “‘Danger to the health 

and safety of others’ does not require proof of a recent overt act while the offender is in 

custody.”

The trial court instructed the jury with CALCRIM No. 3454: “In order to 

prove that . . . Flores is a danger to the health and safety of others, the People do not need 

to prove a recent overt act committed while he was in custody. A recent overt act is a 
21

criminal act that shows a likelihood that the actor may engage in sexually violent 

predatory criminal behavior.” The instruction tracked the statutory language and was 

sufficient to apprise the jury of the elements needed to determine whether Flores 

qualified as an SVP. (People v. Williams (2003) 31 Cal.4th 757, 774-775 [CALCRIM 

No. 3454 tracks statutory language and is sufficient].) The proposed pinpoint instruction

was argumentative because it unduly emphasized a particular issue, the absence of a 

recent overt act, and invaded the jury’s province by inviting the jury to draw inferences 

favorable to Flores. Such an instruction is improper. (People v. Mincey (1992) 2 Cal.4th 

408, 437 [court must refuse argumentative instruction that invited jury to draw favorable 

inferences to one party from specified evidence].)

Flores argues the court had a duty to provide his pinpoint instruction to 

counter the deputy district attorney’s closing argument the government did not have to 

prove recent sexual misconduct. The district attorney argued: “So, exposing himself to 

individuals at the hospital or prison, in terms of proving that he is a danger, I don’t need 

to show that. Okay. Peering through windows, don’t need to show it. Raping 

individuals in the facility, don’t need to show it. Committing sexual acts on staff, 

females in the facility, other patients, in terms of proving he’s a danger, that does not 

have to be shown.” The deputy district attorney’s argument merely illustrated how to 

apply CALCRIM No. 3454 and therefore furnishes no support for Flores’s argumentative 

instruction. Nothing prevented Flores from pointing out to the jury they may consider 

that Flores had not committed a recent overt act when deciding whether he posed a 

danger to others.

Finally, assuming for the sake of argument the court erred by declining to 

provide the requested instruction, the error was harmless. (People v. Larsen (2012) 

205 Cal.App.4th 810, 930 [“Erroneous failure to give a pinpoint instruction is reviewed 

for prejudice under the Watson harmless error standard”]; People v. Ervin (2000) 

22 Ca1.4th 48, 91.) The substance of the refused instruction was conveyed through the 
22

instructions that were given; no essential element of, or defense to, an SVP finding was 

removed from the jury’s consideration, and the jury was not misled; counsel conveyed 

the substance of the refused instructions in their arguments. Based on the evidence, it is 

not reasonably probable defendant would have obtained a more favorable result had 

either or both of the requested instructions been given. (See People v. Kraft (2000) 23 

Cal.4th 978, 1066; People v. Tapia (1994) 25 Cal.App.4th 984, 1028.)

H. Pinpoint Instruction Concerning Prosecutor’s Burden to Prove Flores’s Mental 

Illness Was Sufficient to Distinguish Him From a Typical Recidivist

Flores requested the following instruction: “You may not find the petition 

true unless the prosecutor proves beyond a reasonable doubt that Mr. Flores suffers from 

a diagnosable mental disorder that predisposes him to commit sexually violent crimes if 

released. The prosecutor must prove beyond a reasonable doubt that the mental illness is 

sufficient to distinguish Mr. Flores from a dangerous, but typical recidivist in an ordinary 

case.” Counsel explained, “the jury heard evidence about antisocial personality disorder 

and it causes general criminality. I think it is important to distinguish that it is not just 

general criminality. The statute is not concerned about if he goes down and steals from 

Target. The statute is concerned about hands-on [sexual] offending. I think that’s an 

important distinction. I don’t think that’s made in 3454.” The court disagreed, stating it 

was “adequately covered by [CALCRIM No.] 3454.”

In Kansas v. Crane, supra, 534 U.S. 407, the Supreme Court noted the 

federal Constitution requires a distinction to be drawn between a dangerous sexual 

offender subject to civil commitment and other criminals dealt with in criminal 

proceedings. To warrant civil commitment, the person must manifest “a special and 

serious lack of ability to control behavior.” (Id. at pp. 412-413.) The court noted 

“‘inability to control behavior’ will not be demonstrable with mathematical precision. It 

is enough to say that there must be proof of serious difficulty in controlling behavior. 

And this, when viewed in light of such features of the case as the nature of the psychiatric 
23

diagnosis, and the severity of the mental abnormality itself, must be sufficient to 

distinguish the dangerous sexual offender whose serious mental illness, abnormality, or 

disorder subjects him to civil commitment from the dangerous but typical recidivist 

convicted in an ordinary criminal case.” (Id. at p. 413; see Foucha v. Louisiana (1992) 

504 U.S. 71, 82-83 [rejecting civil commitment permitting indefinite confinement of 

typical convicted criminal after completion of a prison term].) 

Nothing in Crane suggests the jury must receive an instruction requiring it 

to distinguish a dangerous sexual offender from a typical recidivist. Here, the court 

instructed (CALCRIM No. 3454) the jury it must find Flores had a diagnosed mental 

disorder and as a result of that disorder he was a danger to the health and safety of others 

because it was likely he would engage in sexually violent predatory criminal behavior, 

and it was necessary to keep him in custody in a secure facility to ensure the health and 

safety of others. The court also advised the jury the term “diagnosed mental disorder”

included conditions that affected “a person’s ability to control emotions and behavior, 

and predispos[ed] that person to commit criminal sexual acts to an extent that [made] him 

or her a menace to the health and safety of others. [¶] A person is likely to engage in 

sexually violent predatory behavior if there is a substantial danger, that is, a serious and 

well-founded risk that the person will engage in such conduct if released into the 

community.” These instructions informed the jury they could not find Flores was a SVP 

unless they found he was a “menace” and posed a substantial danger of committing

sexually predatory acts because he had a serious difficulty in controlling behavior due to 

a diagnosed mental disorder. (See Williams, supra, 31 Cal.4th at pp. 774-775 [the SVPA 

“inherently embraces and conveys the need for a dangerous mental condition 

characterized by impairment of behavioral control,” and “a jury instructed in the 

language of [the SVPA] must necessarily understand the need for serious difficulty in 

controlling behavior;” no “further lack-of-control instructions or findings are necessary to 

support a commitment under the SVPA.”].) Nothing in the testimony of Matosich, 
24

recounted above, or the prosecution’s argument, suggests a need for additional 

instruction. 

I. Victim Impact Evidence

Flores complains the court abused its discretion by allowing the district 

attorney to ask Flores’s victims how the crimes had affected their lives. For example, 

Laura C. testified, “I have trust issues with men. I lost a lot of relationships because of 

this. I don’t have the desire to have sex.” Cindy C. testified, “This is the first time that I 

had ever seen a man erect, a penis like that, and it affected me. I was scared to tell my

father. . . . It made me afraid of men a little bit.” Donna P. testified, “[I]t made me a 

nervous wreck. It made me scared. I never really started putting it behind me until I 

heard he was put in prison. And then, I started relaxing about it and forgetting about it.”

Mary M. testified, “In general, I was extremely traumatized. . . . I had just a lot of trouble 

with just the normal things for quite a while. I didn’t, for ten years, go into a public 

restroom. I just – I had for the next year, I had nervousness, these muscle spasms. I don’t 

know how to explain it.” And she testified, “I ended up taking a medical leave from 

school the next year for a semester. I did get back and I did complete my schooling. So, 

it had quite an impact, very just traumatized is all I can say.” Meredith E. testified, “It 

messed up my life a lot. I couldn’t trust guys. I still have a problem with it. I was a virgin 

when it happened, so I didn’t want to be with anybody at all after that.” 

Flores objected the testimony was irrelevant and subject to exclusion under

Evidence Code section 352. The trial court overruled Flores’s objection, explaining “the 

continuing impact and damage, mental and/or physical, that results from certain types of

conduct do fall within element three, may be a danger to the health and safety of others.”

We agree with Flores the victim impact evidence, recounted above, lacked 

probative value on the issue of whether he was currently a danger to the health and safety 

of others because he was likely to engage in sexually violent criminal behavior in the 

future. As noted by Flores, “If the district attorney has proved that the respondent has a 
25

mental disorder that makes him or her likely to commit sexually violent predatory 

offenses, the law does not set the district attorney the further task of proving that the

commission of sexually violent predatory offenses is a danger to the health and safety of 

others.” In other words, predatory sexual criminal behavior is intrinsically harmful and 

evidence Flores’s prior victims did or did not suffer harmful effects from his conduct did 

not assist in proving a material fact in issue. Further, any probative value was 

substantially outweighed by the probability its admission would create a substantial 

danger of undue prejudice, confusing the issues, or misleading the jury. (People v. 

Carter (2005) 36 Cal.4th 1114, 1168 [evidence is prejudicial under Evidence Code, 

section 352 if it “tends to evoke an emotional bias against a party, while having only 

slight probative value with regard to the issues”]; People v. Scott (2011) 52 Cal.4th 452, 

491 [“[E]vidence should be excluded as unduly prejudicial when it is of such nature as to 

inflame the emotions of the jury, motivating them to use the information, not to logically 

evaluate the point upon which it is relevant, but to reward or punish one side because of 

the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial 

because of the substantial likelihood the jury will use it for an illegitimate purpose”].) 

Although the trial court has broad discretion in determining the relevance of evidence

(People v. Riggs (2008) 44 Cal.4th 248, 289; Rodrigues, supra, 8 Cal.4th at pp. 1124-

1125 [Evid. Code, § 352]), the court erred in this instance. 

The erroneous admission or exclusion of evidence does not require reversal

unless it results in a miscarriage of justice, however. (People v. Richardson (2008) 

43 Cal.4th 959, 1001 (Richardson); Evid. Code, §§ 353, subd. (b); 354.) A miscarriage 

of justice occurs when it is reasonably probable a result more favorable to the appealing 

party would have been reached absent the error. (Richardson, supra, at p. 1001; People 

v. Partida (2005) 37 Cal.4th 428, 439 [admission of evidence erroneous under state law 

does not offend due process requiring review under the harmless beyond-a-reasonabledoubt standard unless it renders the trial fundamentally unfair]; Watson, supra, 46 Cal.2d
26

at p. 836.) Here, the victims’ testimony on the impact Flores’s crimes had on their lives

consisted of less than one page each in the trial transcript. The testimony was no more 

likely to evoke an emotional response than testimony regarding the actual details of the

prior crimes, which was properly admitted. The trial focused mainly on expert testimony 

addressing Flores’s risk of reoffending. Thus, it is not reasonably probable that a result 

more favorable to Flores would have been reached absent the error. 

J. Cumulative Error

Flores argues multiple errors combined to violate his due process right to a 

fair trial. (People v. Hill (1998) 17 Cal.4th 800, 844-845 [multiple trial errors 

independently harmless may in combination create reversible error].) As explained 

above, we have found only one error, and that error was not prejudicial. The cumulative

error doctrine does not apply. 

K. Equal Protection 

Flores contends SVP’s are situated similarly to persons committed as 

MDO’s (Pen. Code, § 2960 et seq.) and those found not guilty by reason of insanity

(NGI’s) (Pen. Code, § 1026.5, subd. (a)), but are treated differently in that MDO’s and 

NGI’s may be held for only limited periods unless the State proves beyond a reasonable 

doubt they remain mentally disordered and dangerous, while SVP’s (since the enactment 

of Proposition 83 in 2006) may be held indefinitely unless, by a preponderance of the 

evidence, they prove themselves no longer mentally ill and dangerous. 

People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II), following 

remand from the Supreme Court in McKee I, held the state demonstrated a constitutional 

justification under a strict scrutiny and compelling interest standard for imposing on 

SVP’s a greater burden to obtain release from commitment than on those persons 

committed as MDO’s and NGI’s. McKee II concluded the government “presented 

substantial evidence to support a reasonable inference or perception that the Act’s 

disparate treatment of SVP’s is necessary to further compelling state interests” (id. at 
27

p. 1339), namely that SVP’s present a substantially greater danger to society than MDO’s 

or NGI’s, and disparate treatment is necessary to further the People’s compelling interests 

of public safety and humane treatment of the mentally disordered. 

The California Supreme Court denied review in McKee II. Every published 

opinion to consider the issue has found McKee II persuasive and concluded the SVPA 

passes constitutional muster under the strict scrutiny test. (People v. Gray (2014) 

229 Cal.App.4th 285; People v. Kisling (2014) 223 Cal.App.4th 544, 547-548 [declining

to follow McKee II would be contrary to the California Supreme Court’s clear intent in 

remanding McKee I to the trial court for an evidentiary hearing]; People v. 

McDonald (2013) 214 Cal.App.4th 1367, 1378-1383 [per McKee I equal protection 

challenge was to be resolved on a classwide basis rather than affording each potential 

SVP the right to present his or her own evidence on the matter, McKee II conducted the 

required de novo review, applied a true strict scrutiny standard, and correctly assessed the 

evidence]; People v. Landau (2013) 214 Cal.App.4th 1, 44-45; People v. McCloud (2013) 

213 Cal.App.4th 1076, 1078-1079, 1085-1086; People v. McKnight (2012) 

212 Cal.App.4th 860, 862-864.) Although we are not bound to follow McKee II (see 

9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 498, p. 558 [noting tendency for a 

Court of Appeal to follow decisions from other districts or divisions]), we do so here and 

reject Flores’s claim his federal and state equal protection rights were violated by the

version of the SVPA applied to him. We decline his request to remand to the trial court 

for an evidentiary hearing. 
28

III

DISPOSITION

The order of commitment is affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

THOMPSON, J.