Filed 12/18/14 P. v. Sanchez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



### IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. JESSE LEON SANCHEZ, Defendant and Appellant. F066187 (Super. Ct. No. 08CRSP678793)



### OPINION

APPEAL from a judgment of the Supe rior Court of Fresno County. Edward Sarkisian, Jr., Judge. Michael B. McPartland, under appointmen t by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorn ey General, for Plai ntiff and Respondent. -ooOoo- In January of 2008, the Fr esno County District Attorney ’s Office filed a petition to commit defendant Jesse Leon Sanchez to a st ate mental hospital as a sexually violent predator (SVP) pursuant to the provisions of the Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.). After a jury trial on the issue, the jury found the2. allegations in the petition true. The trial c ourt ordered defe ndant committed the same day to the Department of State Hosp itals pursuant to section 6604. On appeal, defendant contends the trial c ourt erred in failing to instruct the jury with his requested pinpoint instruc tions. We find no error and affirm. FACTS Dr. Dawn Starr, a licensed psychologi st, testified regarding her extensive experience in evaluating SVP’s. Dr. Starr eval uated defendant in June of 2011 and again in August of 2012. Prior to conducting th e evaluations, she reviewed various records relating to defendant, including police reports, probation reports, abstracts of judgment, parole revocation reports, criminal hist ory, and other docume nts relating to his convictions as well as his clin ical file from the hospital. Dr. Starr explained the three criteria go verning whether someone qualifies as an SVP. First, whether the person has a qualif ying prior conviction, second, whether the person has a diagnosed mental disorder, a nd third, whether the person presents a substantial, serious, and well -founded risk to reoffend in a sexually violent predatory

manner. Regarding the mental disorder, Dr. St arr diagnosed defend ant with pedophilia, sexually attracted to females, nonexclusive t ype, meaning he is attracted to both children and adults. She additionally diagnosed him with alcohol dependence. The criteria for pedophilia include (1) having sexually arou sing fantasies or beha vior directed to prepubescent children who are at least five years younger than the offender, (2) acting upon those desires, and (3) having that behavior occur over a six-month period. In reaching her conclusion, Dr. Starr revi ewed incidents occurring in 1985, 1990, and 1993. These incidents e ach included defendant engaging in sexual behavior with young female children ranging in ages from three to 10 years. According to the reports, defendant rubbed the “cr otch” area of his five- to six-year-old niece over her clothing in 1984. The following year, he digitally penetrated her and threatened her. Additionally, he rubbed the “private” area of his 10-year-old niece over her clothing. There was also3. an allegation that he had “humped” his thre e-year-old niece. As a result, he was convicted of three counts of lewd and lascivious behavior with a child under 14 (Pen. Code, § 288, subd. (a)); he was sentenced to ei ght years in prison in 1986. In discussing these offenses with defendant, he admitted t ouching his six-year-old niece and stated he had been drinking and did not know why he had done it. Defendant was paroled in April of 1990 and despite a condition of his parole prohibiting him from being ne ar young children, he mo ved into the home of his girlfriend’s sister where children were present. That same year, defendant was arrested for molesting young child ren. In one incident he kissed a seven-year-old girl on the mouth and touched her in ways that caused her to feel unc omfortable, including rubbing her inner thighs. The same victim reported she observed defendant putting his tongue inside the mouth of a three-year-old girl. Additionally, he ru bbed the leg of a 10-year-old girl while she was asleep. Defendant pled to one count of annoying or molesting a child (§ 647.6) and received a four-year prison te rm. When Dr. Starr interviewed defendant about these acts, he admitted to kissing one of the children but denied the other offenses. Defendant was again convicted for incide nts occurring in 1993. Defendant’s sixyear-old granddaughter reported defendant touched her between her legs over her clothing. When she to ld him to stop, he replied he c ould not stop. He was ultimately found not guilty of this offe nse. In another incident, it was reported defendant began kissing a young child and put his tongue in her mouth. When the child got up and went into the bathroom, he follo wed her, pulled down her underw ear, and fondled her vaginal area. He subsequently ora lly copulated her and digitally penetrated her. He was convicted of two counts of 288, subdivision (a ) and two counts of 288, subdivision (b). He was sentenced to a 23-year term. Dr. Star r stated defendant has routinely denied these allegations. Dr. Starr noted defendant chooses very young victims and engages in similar behavior with them. Due to the fact he reoffends very qui ckly after being released from custody, Dr. Starr opined defendant was acting up on either an intense urge or fantasy.4. That the disorder affects defendant’s voliti onal capacity is evidenced by the fact he continues to engage in the same behaviors ev en while still on parole. His actions also demonstrate an emotional impairment in that he continues the behavior regardless of the impact it has on his victims. In his intervie w, defendant denied being sexually attracted to young children. To determine whether a person presents a substantial risk to reoffend, Dr. Starr relies on actuarial tools. However, in additio n to using these tools, the doctor evaluates whether the tools have provided an accurate estimate of a person’s risk of reoffense. Defendant’s score varied depending on the spec ific tool used. He scored anywhere from a low to moderate risk to a high risk depe nding on the specific test she administered. In evaluating a person’s risk of reoffe nse the doctor considers whether the person is a “substantial or a serious and well-founded risk, more than just a mere possibility.” Factors decreasing the risk of reoffense includ e whether the person has been able to live in the community for a substan tial period of time without a sexual offense, advanced age, and participation in sex offender treatment. As applied to defendant, Dr. Starr noted he had always reoffended within one year of his release, thus that mitigating factor did not apply to him. Additionally, although 63 years old, defend ant was in good health. Furthermore, defendant was not involved in sex offender treatment. Defendant did participate in programs, such as the Medicine Wheel, however, that group did not address his sexual attraction to female children. Defe ndant did not participate in the sex offender treatment in the hospital. He participated in some programs at the hospital, he claimed to have some support from members of the community, he mentored other patients, and he performed above av erage in the institutional setting. In Dr. Starr’s opinion, defendant has a me ntal disorder affecting his emotional and volitional capacity and that he is a substantia l and well-founded risk to reoffend in a sexually violent predatory manner. She opin ed there was nothing to suggest defendant has understood or dealt with his proclivity to sexually abuse young girls in any way while he has been in custody. Although he has not shown any signs of pedophilia while in5. custody, he has not had acce ss to children. Pedophilia is a chronic condition, and although sexual desires may decrease w ith age, the desires do not disappear. Dr. Harry Goldberg, a licen sed clinical psychologist, ha s extensive experience in performing SVP evaluations for the State of Ca lifornia. Dr. Goldbe rg performed an inperson interview with defendan t in evaluating whether he qualified as an SVP. The evaluation is a three-part process, composed of determining whether the defendant has committed a sexually violent offe nse, whether he has a diag nosed mental disorder, and whether he is likely to commit another sexually violent predatory offense. To determine whether a person has a diagno sed mental disorder, Dr. Goldberg first looks to see if there is a recognizable disord er listed in the Diagnostic and Statistical Manual, Fourth Edition (DSM IV), and second, he determines whether the diagnosis meets certain legal criteria. Before evaluating defendant, Dr. Goldbe rg reviewed record s, including crime reports, probation reports, court documents, parole documents, and medical, hospital and psychiatric records. After evaluating defe ndant, Dr. Goldberg diagnosed him with pedophilia, sexually attracted to females, nonexclusive type, as well as alcohol dependence. Pedophilia is de fined as recurrent, intense, sexually arousing urges, fantasies, or behaviors toward prepubescent children. It further requires the person to have acted upon the urges and that the urges or fantasies have caused the person distress or difficulties. Additionally, the person must be over 16 years old and at least five years older than the child. Defenda nt’s criminal history demons trated he engaged in sexual behavior with young children, including oral copulation and fondling. Many of the children were as young as three and six year s old and as old as 10. According to the reports, defendant had approximate ly nine to 10 victims. Ho wever, not all the allegations resulted in convictions. Dr. Goldberg described a pattern of defendant molesting very young children while in consensual adult relationships. In his opinion, the only explanation for defendant’s behavior is that he is a pedophile . In his interview, defendant only admitted6. to molesting one of his victims. Defendant had been in the community for less than a year each time he reoffended. In the doctor’s opinion, the disorder affects defendant’s volitional control. This is evidenced by the fact defendan t reoffends so quickly after being placed back into the community. This was true even after serving lengthy sentences, indicating the threat of incarceration is insufficient to control his impul ses. During one offense, the victim told him to stop touching her, and he replied he c ould not stop. This in dicated his inability to control his behavior. The fact defendant had not offended while incarcerated did not affect Dr. Goldberg’s opinion as to defendant’s ability to co ntrol his behavior because pedophilia is a chronic condition. Dr. Go ldberg described sexual attractions as “resilient,” meaning they are long lasting, regardless of age. Dr. Goldberg explained that he determines whether someone is likely to reoffend. “Likely” is defined as a “ser ious and well-founded risk.” To make this determination, psychologists primarily rely upon actuarial to ols. Dr. Goldberg explained defendant received mixed results when consulting th e actuarial tools, ranging from a low to moderate risk to a moderate to high risk of reoffense. The results were mixed primarily due to defendant’s age as the various tools adjust for age. Alth ough defendant was 63 years old at the time, Dr. Goldberg noted he had no serious medical conditions and his victims tended to be very young, which made his age less of a factor. Furthermore, defendant’s failure to seek any sex offende r treatment while in the hospital created a higher risk of reoffense as defendant had not learned the skills necessary to cope with his disorder. Dr. Goldberg ack nowledged defendant had addr essed his substance abuse problems through programs such as the Me dicine Wheel, but had not addressed the source of his sexual abuse problem. The prog rams he attended did not address the issue related to his offenses. Furthermore, defendant had not acknowledg ed his crimes. Even if he were to acknowledge his crimes now, he would still pr esent a substantial and serious risk of7. reoffense as acknowledging the pr oblem is only the first step in the process. He still needs to learn the skills to control his pe dophilia. That defenda nt may have been mistakenly released and did not immediatel y reoffend did not change Dr. Goldberg’s opinion. Defendant’s release was for a very short period of time a nd did not provide him enough time to reoffend. Furthermore, defe ndant’s particular pattern is to become involved with someone who has access to youn g female children, such as grandchildren or nieces. Defendant did not have sufficient time to enga ge in that pattern. In Dr. Goldberg’s opinion, de fendant presents a serious risk of reoffense. The parties stipulated defendant was convi cted as follows: (1) three counts of lewd and lascivious behavior with a childunder the age of 14 (§ 288, subd. (a)) on May 1, 1986, and served a fixed prison term, and (2) two counts of lewd and lascivious behavior with a child under the age of 14 (§ 288, subd. (a)) as well as two counts of forcible lewd and lascivious behavior with a child under the age of 14 (§ 288, subd. (b)) on May 6, 1994, and served a fixed prison term. Defendant was called to testify by th e People. When asked whether he had committed his prior offenses, defe ndant repeatedly stated he took “full resp onsibility.” However, defendant would not actually admit to the prior conduct. On several occasions during his testimony he claimed many of the prio r incidents were fabricated. He denied being sexually attracted to children. Defense Case Dr. Carolyn Murphy is a licensed fore nsic psychologist with substantial experience in evaluating SVP’s. She cond ucted an evaluation of defendant after reviewing the documents related to his cr iminal cases as well as his medical and psychological records. In a ddition, she interviewed defe ndant. After conducting her evaluation, she concluded that although defendant meets the definition of a pedophile, the condition does not affect his ab ility to control his behavior so as to present a risk to society. In her opinion, defendant’s age, as well as his participation in the substance abuse programs, decreased his ri sk of reoffense. Additiona lly, she explaine d defendant’s8. crimes were opportunistic, whic h further reduced his risk of reoffense. These combined factors led to her conclusion that defendant was at a decreased risk of reoffense when compared to other sexual offenders. Dr. Murphy also us ed actuarial instruments to ev aluate defendant’s risk of reoffense. After considering defendant’s score on these instruments, his age, his participation in treatment, and the nature of his prior offense, Dr. Murphy opined there was not enough evidence to suggest defendant presented a serious and well-founded risk of reoffense. Dr. Mary Adams is a fore nsic psychologist with experience in performing SVP evaluations. She evaluated defendant by revi ewing legal, law enforcement, and mental health reports, as well as conducting an inte rview with him. She explained that a person who molests children is not necessarily a pe dophile; rather, pedophilia reflects a sexual preference, and in diagnosing the disorder, one lo oks for information demonstrating the person was motivated by an attr action to children. Simply looking to the number of offenses is insufficient. D r. Adams noted defendant had ne ver molested a child until the age of 35, which was inconsistent with pe dophilia. Furthermore, he did not have a history of possessing child pornography. Mo reover, his crimes were opportunistic in nature and were concurrent with drug abuse. Based on these factors, Dr. Adams concluded defendant was not a pedophile. Additionally, she opined that defendant did not pose a seri ous or substantial risk of future sexually violent predat ory behavior. While she used the same actuarial tools to assess his risk, she disagreed with the Peop le’s experts regarding defendant’s degree of risk. The disagreement was based upon wh at group to compare defendant with to determine his risk. Furthermore, his age also reduced his degree of risk. Dr. Theodore Donaldson, a licensed fo rensic psychologist with experience in evaluating SVP’s also evaluated defendant. A ccording to Dr. Donaldson, for a person to qualify as having a diagnosed mental di sorder, the person must (1) suffer from a condition that predisposes him to sexual viol ence and (2) have a serious difficulty in9. controlling his sexually dangerous behavior. As to the firs t prong, Dr. Do naldson opined defendant could not be diagno sed with pedophilia. This wa s due, in part, to his belief that the diagnosis of pedophilia as defined in the DSM-IV had never been field tested. Additionally, the criteria listed for the disorder in the DSM -IV are vague. Furthermore, he found insufficient evidence defendant had the disorder. He not ed defendant did not exhibit symptoms for 35 years, which he considered unusual as symptoms would be expected much earlier. Furthermore, he did not see a pattern of fixation on children. Defendant did not have a hist ory of seeking out children; rather, they were primarily children present in the home. Thus, his cr imes appeared opportunistic. Additionally, defendant had not, since his commitment in 1993, exhibited any signs of the disorder such as attempting to collect child pornography or other pict ures of children. Nor did Dr. Donaldson find any evidence that defendan t tried to control this behavior, primarily because defendant denied the offenses. Consequently, ther e was insufficient information to support a diagnosis of pedophilia. As to the question of whether defendant presented a serious risk of reoffense, Dr. Donaldson stated the actuarial tools us ed for that predicti on are not sufficiently accurate to inspire conf idence in their predictions. Even considering the actuarial tools, defendant presented a low risk of reoffense. The fact defendant had not participated in sex offender treatment was insignificant to Dr. Donaldson as such treatment does not affect recidivism rates. In his opinion, de fendant did not suffer fro m a mental disorder, he did not currently have any symptoms of a disorder, and he presented a low risk of engaging in sexually violent pred atory behavior in the future. The defense presented evid ence that defendant had been accidentally released several years earlier, but did not attempt to fl ee. He had been rele ased for only a few hours before being returned to custody. The defense also presented several witnesses who testified defendant had g ood behavior in the hospital and was an active participant and a mentor in the Medicine Wheel program . The Medicine Wheel was described as a 12-step program centered upon self-awareness.10. DISCUSSION Prior to trial, defendant requested the tr ial court instruct th e jury with several pinpoint instructions. The trial court determ ined the instructions were not required and denied the request. Defendant contends the tria l court erred in failing to instruct the jury with his requested pinpoint instructions. We find no error. The SVPA defines an SVP as “a person who has been convicted of a sexually violent offense against one or more victims and who has a diag nosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).) “Likely” in this context means the pers on presents “a substantial da nger, that is, a serious and wellfounded risk, of committi ng such crimes if rele ased from custody.” ( People v. Roberge (2003) 29 Cal.4th 979, 988, italics omitted.) A diagnosed mental disorder “includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600 , subd. (c).) A finding the person is dangerously disordered is not enough; there must also be “a volitional impairment rendering [the person] danger ous beyond [his or her] control.” ( Kansas v. Hendricks (1997) 521 U.S. 346, 358; see Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1157-1158.) In other word s, there must be proof the person has “serious difficulty in controlling” his or he r dangerous behavior. ( Kansas v. Crane (2002) 534 U.S. 407, 413; accord, People v. Williams (2003) 31 Cal.4th 757, 759 ( Williams ).) Pursuant to CALCRI M No. 3454, the trial court instructed the jury, in pertinent part: “The petition alleges that [defenda nt] is a sexually violent predator. “To prove this allegation, th e People must prove beyond a reasonable doubt that:
“1. He has been convicted of committing sexually violent offenses against one or more victims;11. “2. He has a diagnosed mental disorder; “3. As a result of that diagnosed mental disorder, he is a danger to the health and safety of others becaus e it is likely that he will engage in sexually violent predatory criminal behavior.
“AND “4. It is necessary to keep him in custody in a se cure facility to ensure the health and safety of others. “The term diagnosed mental di sorder includes conditions either existing at birth or acquired after bi rth that affect a person’s ability to control emotions and behavior an d predispose that person to commit criminal sexual acts to an extent th at makes him or her a menace to the health and safety of others. “A person is likely to engage in sexually violent predatory criminal behavior if there is a substantial da nger, that is, a serious and well-founded risk that the person will engage in such conduct if released in the community. The likelihood that the person will e ngage in such conduct does not have to be greater than 50 percent.” Defendant does not claim the trial cour t erred in giving CALCRIM No. 3454. Rather, he contends the trial c ourt prejudicially erred by refusi ng to instruct the jury with his requested supplemental definitions of “a diagnosed mental disorder” and “likely.” “SVP trials are ‘“special proceedings of a civil nature,”’ who lly unrelated to any criminal case. [Citation.]” (Moore v. Superior Court (2010) 50 Cal.4th 802, 815.) Because civil commitment involves a signifi cant deprivation of liberty, however, a defendant in an SVP proceedi ng is entitled to certain due process protections, albeit not the entire range of criminal procedural protections. ( Id . at pp. 818-819; People v. Carroll (2007) 158 Cal.App.4th 503, 511.) We need not determine whet her penal or civil statutes relating to jury instructions control; under eith er, 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.) Likewise, we need not decide whether defendant’s requested instructions constitu ted mere amplifications or clarifications (see, e.g., People v. Rodrigues (1994) 8 Cal.4th 1060, 1192 ) or true pinpoint instru ctions, i.e., instructions12. pinpointing the theory of the defense case (see, e.g., People v. Bolden (2002) 29 Cal.4th 515, 558; People v. Wright (1988) 45 Cal.3d 1126, 1137). A trial court may refuse any proffered instruction if it incorre ctly states the law, is argum entative, or merely duplicates other instructions. ( People v. Bolden , supra , at p. 558; People v. Gurule (2002) 28 Cal.4th 557, 659; Ideal Heating Corp. v. Royal Indem. Co. (1951) 107 Ca l.App.2d 662, 668.) During in limine motions, defendant aske d the trial court to supplement the definition of “diagnosed mental disorder ” contained in CALCRI M No. 3454 with a statement requiring that the diagnosed mental disorder causes defendant serious difficulty controlling dangerous sexual behavior. Defe ndant argued such an instruction was necessary as the United States Supreme Court has held that a person cannot be civilly committed under a statute, such as the SVPA , without proof of a serious difficulty in controlling behavior. ( Kansas v. Crane , supra , 534 U.S. at p. 413.) After deferring the ruling until the conclusion of the evidence, the trial court determined CALCRIM No. 3454 adequately defined the term and deni ed the request for additional instructions. We find no error.
In Williams , supra , 31 Cal.4th 757, the Californi a Supreme Court acknowledged the SVPA does not use the precise language of Kansas v. Crane , supra , 534 U.S. at page 413, which prohibits involuntary confinem ent of persons on the basis they are dangerously disordered “withou t ‘proof [that they have] se rious difficulty in controlling [their dangerous] behavior.’ [Citation.]” ( Williams , supra , at p. 759.) The state high court concluded, however, that, read together, the language of section 6600, subdivisions (a)(1) and (c) “inherently encompasses and conv eys to a fact finder the requirement of a mental disorder that causes serious diffi culty in controlling one’s criminal sexual behavior.” ( Williams , supra , at p. 759.) The court stated: “We are persuaded that a jury instructed in the language of California’s stat ute must necessarily understand the need for serious difficulty in co ntrolling behavior.” ( Id . at p. 774.) Thus, “a commitment rendered under the plai n language of the SVPA necessarily encompasses a determination13. of serious difficulty in controlling one’s criminal sexual violence, as required by Kansas v. Crane , supra , 534 U.S. 407. Accordingly, separa te instructions or findings on that issue are not constitutionally requ ired, and no error arose from the court’s failure to give such instructions in defendant’s trial.” ( Williams , supra , at p. 777, fns. omitted.) Williams is dispositive of defendant’s claim. ( People v. Paniagua (2012) 209 Cal.App.4th 499, 526-528.) Although defendan t’s requested instruction correctly stated the law, the principle it conveyed was duplicative of CALCRIM No. 3454. ( Williams , supra , 31 Cal.4th at p. 759.) Accordin gly, it was properly refused. ( Id . at p. 777; see People v. Gurule , supra , 28 Cal.4th at p. 660.) Defendant also asked the trial court to supplement CA LCRIM No. 3454’s definition of “likely.” Specifically, he requ ested an instruction in forming the jury the term “likely” “requires mu ch more than the mere possibility .” The court saw no basis for making the requested modification. Agai n, we conclude the court did not err.
In People v. Superior Court ( Ghilotti ) (2002) 27 Cal.4th 88 8, 922, the California Supreme Court concluded “the phrase ‘ likely to engage in acts of sexual violence’ (italics added), as used in section 6 601, subdivision (d) [concerning the initial screening stage of the SVPA process], connotes much more than the mere possibility that the person will reoffend as a result of a predisposing mental disorder that seriously impairs volitional control. On the other hand, the statute does not require a precise determination that the chance of reoffense is better than even . Instead, an evaluator applying this standard must conclude that the person is ‘likely’ to reoffe nd if, because of a current mental disorder which makes it difficult or impossible to re strain violent sexual behavior, the person presents a substantial danger , that is, a serious and well-founded risk , that he or she will commit such crimes if free in the community.”
In People v. Roberge , supra , 29 Cal.4th at page 987, the California Supreme Court concluded “the phrase ‘likely [t o] engage in sexually violen t behavior’ in section 6600, subdivision (a), should be given the same meaning” Ghilotti ascribed to the phrase for purposes of section 6601, subdivision (d). A ccordingly, “under section 6600, subdivision14. (a), which is at issue here, a person is ‘likel y [to] engage in sexually violent criminal behavior’ if at trial the pe rson is found to present a substantial danger , that is, a serious and well-founded risk , of committing such crimes if released from custody.” ( Roberge , supra , at p. 988.) The high court further held trial courts have a su a sponte duty to so define the term for jurors. ( Id . at pp. 988-989.) CALCRIM No. 3454 contains the requis ite definition of “likely.” “It is fundamental that jurors are presumed to be intelligent an d capable of un derstanding and applying the court’s instructions. [Citation.]” ( People v. Gonzales (2011) 51 Cal.4th 894, 940.) Considered together, the words “ likely,” “substantial,” “serious,” and “wellfounded” reasonably conveyed to the jury that the term “ likely” required “much more than a mere possibility.” The record does not indicate any confusion on the part of the jury and contains no requests for further guidance on either point. (See People v. Gonzales , supra , 51 Cal.4th at p. 940; see also People v. Hughes (2002) 27 Cal.4th 287, 379.) Moreover, the prosecutor emphasized the risk of reoffense had to be “substantial, serious, and ... wellfounded ....” Although he clarified it did no t have to be 50 percent, he repeatedly explained the risk had to be serious and we ll-founded, making clear it had to be much more than a mere possi bility. Furthermore, the prosecut or explained that before the jurors could find the allegations true, they had to determine defendant has “serious difficulty controlling his dangerous criminal be havior because of his pedophilia.” Also, Dr. Starr testified the term “likely” “is define d as ... more than just a mere possibility.” Taking into account the instructions as a wh ole, the evidence, and counsel’s arguments, we conclude there was no reasonable likelih ood the jury was misled concerning the governing law, despite the omission of the requested instructions. (See People v. Tate (2010) 49 Cal.4th 635, 696; People v. Young (2005) 34 Cal.4t h 1149, 1202.) Accordingly, there was no error. Were we to conclude the trial court shoul d have given one or both of the requested instructions, however, we would find the e rror harmless for the same reasons. The15. substance of the refused instructions was co nveyed through the inst ructions that were given; no essential element of, or defens e 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 thei r arguments. Under the circumstances, and in light of the evidence, it is not reasonably probable defe ndant would have obtained a more favorable result had either or both of the reques ted instructions been given. (See People v. Kraft (2000) 23 Cal.4th 978, 1066; People v. Tapia (1994) 25 Cal.App.4th 984, 1028; People v.
Mai (1994) 22 Cal.App.4th 117, 126, disapproved on another ground in People v. Nguyen (2000) 24 Cal.4th 756, 758, 761.) DISPOSITION The judgment (order of commitment) is affirmed.

__________________________ PEÑA, J. WE CONCUR:

________________________________ LEVY, Acting P.J.

________________________________ DETJEN, J.