P. v. Seeboth

Filed 3/7/07 P. v. Seeboth CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

In August 2001, a petition was filed to extend defendant Timothy Seeboths commitment as a sexually violent predator (SVP) from September 2001 to September 2003.^[1] In March 2003, a jury was unable to reach a unanimous verdict on the petition, and a mistrial was declared. In July 2003, a petition was filed to extend the commitment from September 2003 to September 2005. The Peoples motion to consolidate the two petitions was granted. In April 2005, a jury found to be true the allegation that, by reason of a diagnosed mental disorder, defendant is an SVP within the meaning of Welfare and Institutions Code section 6600, subdivision (a). (Further section references are to the Welfare and Institutions Code unless otherwise specified.) Based on the jury finding, defendants commitment to the Department of Mental Health was extended to September 2005.

On appeal, defendant contends (1) his appeal is not moot, (2) the evidence supporting the commitment is insufficient, (3) irrelevant inflammatory evidence was admitted over his objection, (4) privileged information was erroneously admitted, and (5) the jury was erroneously advised of the length of the commitment.

The relevant factual and procedural background is set forth in the Discussion. We shall affirm the judgment.

DISCUSSION

I

Defendant contends, and the People concede, this appeal is not moot even though both SVP commitments here at issue have expired. We agree that the appeal is properly before us in that it raises issues capable of repetition while evading review. (Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1166.) We thus consider defendants appeal on its merits.

II

Defendant claims there is insufficient evidence to sustain his commitment as an SVP. We disagree.

A

Defendant was born in March 1945. The parties stipulated that defendant had committed two qualifying SVP predicate offenses: in February 1974, he was convicted in Arizona of child molestation; and in November 1983, he was convicted in Sacramento County of lewd acts with a child under the age of 14.

Psychologists Robert Owen and Elaine Finnberg evaluated defendant for the Department of Mental Health (DMH) and concluded that he continued to be an SVP. Dr. Owen interviewed defendant on several occasions, most recently in August 2004. Dr. Finnberg interviewed defendant three times.

Doctors Owen and Finnberg both concluded defendant suffered from a diagnosed mental disorder, pedophilia, and they agreed he was unable to control his behavior and was likely to reoffend unless confined.

In assessing whether defendant would reoffend, both doctors applied the Static-99, an actuarial assessment tool DMH approved for that purpose. Dr. Owen testified the Static-99 was a very important instrument, and he put quite a bit of weight in it. In contrast, Dr. Finnberg testified she did not give the instrument great weight. She opined Static-99 was a moderate predictor of recidivism, in that it considered some, but not all, factors related to reoffending.

Their opinions that defendant would reoffend were based in part upon his refusal to accept treatment at Atascadero State Hospital (Atascadero). He dropped out of the second phase of the treatment program, in which patients discuss their offenses and consider the chain of behaviors that led to their offending.

Dr. Owen denied that defendants age, 60 years at the time of trial, would significantly lessen the likelihood of his reoffending.

The prosecution called defendant as a witness. He testified as follows:

Defendant admitted he [w]as a child molester and acknowledged he had molested [a]bout nine children. His first sexual experience, at age 14, involved a 13-year-old boy. His next such experience, at age 16, was group sex involving three male friends and a female in a motel room. At the age of 18, he had sex with a girlfriend. When he was 20, he was committed to DeWitt Center in Auburn after his mother discovered his sexual relationship with a 12-year-old boy. The sex consisted of mutual masturbation. The duo might have made a plaster cast of the boys genitalia. In junior college, defendant had a girlfriend for about three months.

Defendant moved to Downey, where he met a girl who was eight to ten years old and paid her $2 to pose nude for him. As a result of that incident, he was committed to Atascadero as a mentally disordered sex offender. Staff therapists told him that sex with children was wrong, but he did not think he was doing any harm. They were doing it together, and it was an agreeable thing. The staff at Atascadero concluded defendant was overly curious and kind of a late bloomer, because of an overprotective mother.

Defendant left Atascadero in 1968. By 1973, he was living in Phoenix, Arizona, where he was arrested for molesting three boys whom he was babysitting. He photographed, fondled, and probably orally copulated each of the boys. He destroyed the photographs after the father of one of the boys confronted him. Defendant pled guilty to molesting children, was sentenced to two to ten years, and was imprisoned for about three years. At the time, he did not realize that what he had done was wrong. He believed the boys were willing partners.

After leaving Arizona, he had a two-year sexual relationship with a girlfriend in Sacramento.

In 1980, defendant brought a picture of a picture showing childrens genitalia to a Sacramento photo lab to be developed. He later met a man (evidently an undercover officer) who expressed interest in obtaining child pornography. When a search warrant was served at defendants residence, a large amount of photographs and films was found depicting children, mostly eight to ten years old, actively engaged in sex acts. Defendant pled guilty to possessing the material, spent two days in jail, and was placed on informal probation.

In 1983, defendant met a family with two children, a girl who was seven years old and a younger boy who was developmentally disabled. Defendant became close to the girl. He wanted to see if she would be interested in sexual activities, such as having him touch her and take pictures of her. He performed oral copulation on the girl and had her masturbate him to ejaculation. He gave her pony rides in exchange for two licks and bought her a coloring book in exchange for one lick. He photographed her with a dildo next to her vagina and may have rubbed the vibrating dildo on the outside of her vagina. Their relationship was discovered when defendant tried to have some sexual photographic images of the girl enlarged to 11-by-14 at a camera shop. He pled guilty to molesting the girl and the boy as part of a plea bargain under which he was sentenced to 21 years, instead of the 80 or 90 years he could have received. He did not realize that his actions were harmful to the girl. From a holding tank in the courthouse, he had seen another little girl, whom he presumed was at court because something had happened to her, throwing up in a wastebasket.

While in prison in 1992, defendant saw a show on PBS that changed [his] thinking and made him realize that he had lied to, manipulated, and hurt his victims. He learned that a person who had been manipulated or befriended for sexual purposes could be deeply hurt by it.

He was paroled in 1994. In 1995, he violated his parole by possessing nude pictures. An ensuing search of his apartment revealed computer disks, magazine photographs, and videotapes. He possessed these things because he wanted to have his parole violated. His parole officer had made his life miserable by telling everyone he met that he was a sex offender. Defendant felt isolated and needed time to recoup.

He discontinued his participation in the phase program at Atascadero while still in phase two because he saw how therapists browbeat and forcibly medicate people. The therapists acted as police officers and tried to get us reconvicted on a new offense. Defendant denied that he had ever refused to talk to treatment doctors at Atascadero; but defendant refused to participate in the forensic part of the treatment program.

Defendant stated that if the petitions were not sustained, he planned to live in Reno. He told Dr. Finnberg that he planned to allow two untreated sex offenders, a rapist and a child molester, to move in with him. Defendant believed he would not reoffend, and he knew the rapist would not reoffend. He felt his newly-developed empathy for his victims makes all the difference in the matter. According to defendant, his main problem was that he had been intimidated by, or afraid of, adult women. However, he no longer put such women on a pedestal, and he had developed social skills for meeting and talking with adult women. Defendant intended to avoid places where children are normally found, such as movie matinees, parks, and toy stores. He planned to obtain counseling on forming normal relationships.

The defense called as witnesses Doctors Theodore Donaldson, Christopher Heard, and John Podboy, who were clinical and forensic psychologists in private practice.

Dr. Donaldson concluded that defendant did not have a mental disorder as defined by section 6600. Relying in part on the fact that defendant had not engaged in pedophilic behavior since 1983, Dr. Donaldson opined that if defendant ever had pedophilia, it appears to be in remission.

Dr. Heard concluded that defendant suffered from pedophilia, but that it was in remission. According to Dr. Heard, defendant did not meet the criteria for an SVP; he was not at increased risk of reoffending, and he was able to control his behavior.

Dr. Podboy agreed that defendant suffered from pedophilia that is in remission because he exhibited none of the compulsive sexual behavior that persons with active mental illnesses at Atascadero exhibited. Stating that defendants Atascadero file revealed no misconduct of any sort, Dr. Podboy found no risk that defendant would reoffend.

Doctors Donaldson, Heard, and Podboy all concluded that it was inappropriate to use the Static-99 instrument to evaluate a 60-year-old offender such as defendant.

Dr. Donaldson testified the treatment program at Atascadero is very disappointing both in its sophistication and its outcome. He opined that the treatment program does not distinguish between pedophiles and other child molesters who are simply criminals; therefore, few persons in the program may be appropriate for the treatment.

Dr. Podboy reviewed defendants taped interviews with Doctors Finnberg and Owen and found they were not standard psychological evaluations; rather, they were heavily weigh[t]ed towards irrelevant historical data going back 20 or more years and told Dr. Podboy very little about [defendant] in terms of his current function.

B

The SVPA, enacted in 1996 (Stats. 1995, ch. 763, 3) and thereafter amended, permits the involuntary civil commitment or recommitment, for two-year terms of confinement and treatment, of persons who are found, in jury trials ( 6604), and beyond a reasonable doubt ( 6603, subd. (a)), to be sexually violent predator[s] ( 6604). The Act defines a sexually violent predator as one who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior. ( 6600, subd. (a)(1).) A [d]iagnosed 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. (Id., subd. (c).) (People v. Williams (2003) 31 Cal.4th 757, 764; People v. Sumahit (2005) 128 Cal.App.4th 347, 352 (hereafter Sumahit).)

When a defendant challenges the sufficiency of the evidence to support a finding that he is an SVP, this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be of ponderable legal significance . . . reasonable in nature, credible and of solid value. [Citation.] [Citation.] In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. [Citation.] (Sumahit, supra, 128 Cal.App.4th at p. 352.)

Defendant argues the evidence was insufficient because the prosecution experts relied on three categories which, defendant claims, are unreliable or defective evidence: (1) the Static-99 test, with no showing that it had gained general acceptance in the scientific community as required by People v. Kelly (1976) 17 Cal.3d 24 (hereafter Kelly); (2) the experts own clinical judgments; and (3) defendants own failure to participate in the phase treatment program at Atascadero.

Defendant forfeited his Kelly claim by failing to assert it in the trial court. (Evid. Code, 353, subd. (a); People v. Cunningham (2001) 25 Cal.4th 926, 989.) In any event, Doctors Finnberg and Owen testified their opinions were not based solely upon the Static-99. When, as here, an experts opinion regarding the likelihood of defendant reoffending is not based solely upon the results of a Static-99 test (which assigns a risk assessment of reoffending), a Kelly hearing on the admissibility of experts testimony regarding the test is not required. (People v. Therrian (2003) 113 Cal.App.4th 609, 611 (hereafter Therrian); fn. omitted.) Defendant offers no persuasive reason to reconsider Therrian, and we decline to do so.

Because Therrian had been decided by the time of defendants 2005 retrial, his trial counsel was not ineffective for having failed to raise a Kelly objection to the Static-99 evidence. (Peoplev.Stratton (1988) 205 Cal.App.3d 87, 97.)

Defendant next claims the clinical predictive judgments of the prosecution experts were unreliable in that they were worse than chance. He is wrong.

Dr. Owen testified that clinical judgment, unassisted by actuarial instruments such as the Static-99, is a little better than chance. Dr. Finnberg agreed reliance upon clinical judgment alone is little better than flip of a coin. Dr. Heard concurred that when psychologists abide by the clinical impressions, to the exclusion of scientific evidence and research, they are wrong about as often as [they are] right. Perhaps for this reason, neither prosecution expert relied solely upon his or her clinical judgment, to the exclusion of actuarial instruments and risk factors. Thus, neither expert offered an opinion that was unreliable or worse than chance.

Finally, defendant claims the prosecution experts should not have relied on his failure to participate in the Atascadero phase program, because the efficacy of that program has never been demonstrated. We disagree.

The availability of treatment is at the heart of the SVPA. [Citation.] Through passage of the SVPA, California is one of several states to hospitalize or otherwise attempt to treat troubled sexual predators. [Citation.] Accordingly, one of the key factors which must be weighed by the evaluators in determining whether a sexual offender should be kept in medical confinement is the persons progress, if any, in any mandatory SVPA treatment program he or she has already undergone; [and] the persons expressed intent, if any, to seek out and submit to any necessary treatment . . . . [Citation.] A patients refusal to cooperate in any phase of treatment may therefore support a finding that he is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community. [Citation.] (Sumahit, supra, 128 Cal.App.4th at pp. 354-355; original italics.) That is so even if, as defendant suggests, the Atascadero phase program is ultimately shown not to be effective. In sum, defendants SVP commitment is supported by substantial evidence. (Id. at p. 352.)

III

Defendant contends the prosecutors cross-examination of defense expert Dr. Podboy regarding Kenneth Parnell, an assertedly aged and infirm child molester, violated his right to due process. We find no prejudicial error.

A

Prior to trial, defendant moved to exclude, pursuant to Evidence Code section 352, any reference to notorious cases such as Richard Ramirez (the Hillside Strangler), Ted Bundy, BTK, or an unspecified Florida child kidnapping/murder case. The trial court granted the motion and directed the prosecutor to talk to his experts and let them know the Court has made a ruling that theyre not to refer to notorious cases in their explanation as to their opinions unless they have prior Court ruling on it.

While cross-examining Dr. Podboy at trial, the prosecutor asked whether the fact a person had a high score on the RRASOR test, a predecessor of the Static-99, would cause Dr. Podboy some concern. Dr. Podboy responded: Maybe, maybe not. You know, if they were 60 years old and had a stroke and were in a wheelchair, it wouldnt mean anything because [the RRASOR] has to do with static data thats imbedded in concrete.

This exchange followed:

Q. Now, you think somebody being 60 years old in a wheelchair would make a difference if that person would actually be no longer a risk?

A. Well, it depends on a lot of things. You know, if you have certain types of cerebral vascular accidents, certain types of strokes, you can end up to where you can barely hold a cup of water. I mean, its, you know, we have to look at it closer. But, by and large, if you have a CVA, youre in big trouble, and sex is not something thats a part of your radar screen.

In response, the prosecutor mentioned Kenneth Parnell. Defense counsel immediately objected. An unreported discussion was held at the bench, and the court directed the prosecutor to proceed.^[2] This exchange followed:

Q. [BY THE PROSECUTOR]: Do you know who Kenneth Parnell is, Doctor?

A. Hes some criminal of some sort. Ive never been involved with any Kenneth Parnell.

Q. [THE PROSECUTOR]: Actually, Kenneth Parnell is the man who kidnapped Steve --

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: Overruled.

[THE PROSECUTOR]: Its the man who kidnapped Steven Stayner.

[DEFENSE COUNSEL]: Improper.

THE COURT: [Mr. Prosecutor], just go ahead and ask about Mr. Parnells issue that relates to this witness testimony about age.

[THE PROSECUTOR]: Okay.

Q. Kenneth Parnell, when he was 79 years old, wheelchair bound in Oakland, attempted to get his caretaker to buy a child from [sic] him. Are you aware of that?

[DEFENSE COUNSEL]: Objection. Facts not in evidence.

THE COURT: Overruled.

THE WITNESS: You know, I -- it sounds like youre testifying. If youre asking me a question, I dont know this Kenneth Parnell. I never heard of this guy, generally, in the news media. I havent followed this.

Q. [BY THE PROSECUTOR]: Okay. Were you aware of his trying to reoffend at the age of 79 when he was wheelchair bound?

A. No. Im not aware of that, which is not to say it didnt happen, but Im not aware of it. The prosecutor then moved on to another subject.

Following the evidentiary portion of the trial, defense counsel moved for a mistrial based upon the aforesaid cross-examination. The court denied the motion, explaining, [W]hen a witness makes what appears to be a very categorical statement with respect to the age of a person and whether or not that person, due to his age, is going to reoffend, they open the door for questions . . . . [] . . . [] . . . The issue is, Doctor, you said that this persons not going to [reoffend] because of age. . . . Are you aware that there have been, in fact, people of that age that have reoffended? That, to me, is the touchstone of the cross-examination. . . . (Italics added.)

The court precluded the prosecutor from arguing that defendant might reoffend simply because Parnell had reoffended; however, the prosecutor could argue that Dr. Podboy and other defense experts were not credible because they were unwilling to even reassess the most categorical opinions they have in light of other factual issues . . . .

The prosecutor did not mention Kenneth Parnell during his opening or closing summation.

B

Defendant contends the Parnell case was irrelevant because there was simply no nexus linking that case to him. The People respond that the evidence was relevant for the purpose cited by the trial court, to test Dr. Podboys credibility and bias. However, the trial courts premise, that Dr. Podboy had open[ed] the door by making a very categorical statement with respect to the age of a person and whether or not that person, due to his age, is going to reoffend, finds no support in the record.

Dr. Podboy testified that, if the subject were 60 years old and had a stroke and were in a wheelchair, [the RRASOR] wouldnt mean anything because it has to do with static data thats imbedded in concrete. This testimony suggests the RRASOR, as a measurement of static or unchangeable factors, does not evaluate changeable factors such as the persons age, cerebral vascular condition and use of a wheelchair. Dr. Podboy testified that maybe those variables would mitigate a high RRASOR score, but maybe they would not.

The prosecutors next question implied the sort of categorical statement that the trial court attributed to Dr. Podboy. He asked: Now, you think somebody being 60 years old in a wheelchair would make a difference if that person would actually be no longer a risk? Dr. Podboy never took the bait; he never agreed that a 60 year old in a wheelchair would be no longer a risk. Rather, he suggested that the risk is eliminated where the person suffers certain types of strokes and can barely hold a cup of water. No evidence suggested that defendant had suffered that sort of disabling injury. Whether Parnell had tried to procure a child victim at age 79 had no tendency in reason to show Dr. Podboys bias or refute his testimony. (Evid. Code, 210; see generally People v. Boyette (2002) 29 Cal.4th 381, 428.)

Nevertheless, the prosecutors brief series of questions regarding Parnell were not prejudicial. Because Dr. Podboy had no knowledge of Parnell, he never accepted the premise of any of the prosecutors questions, and the jury never received any evidence related to Parnell. Nor was Parnell mentioned during either counsels summation.

The jury was instructed pursuant to CALJIC No. 1.02, that statements made by the attorneys during the trial are not evidence; that they should not assume to be true any insinuation suggested by a question; that a question is not evidence; and that a question may be considered only as it helps the jury to understand the answer. We presume the jury followed this instruction. (People v. Boyette, supra, 29 Cal.4th at p. 453.) Therefore, we reject as unfounded defendants speculation that the prosecutors questions made the difference between defendants 2003 trial, which ended in a mistrial, and his present trial which culminated in the extension of his SVP commitment.

IV

Defendant claims his SVP commitment is unlawful because it is based on mental health treatment information and records that were protected by the physician-patient privilege (Evid. Code,  994) and the psychotherapist-patient privilege (Evid. Code,  1014). The contention fails.

Section 6603, subdivision (c) sets out express authority for the updated evaluations performed by Doctors Owen and Finnberg. (Albertson v. Superior Court (2001) 25 Cal.4th 796, 805 (hereafter Albertson).) As the Supreme Court explained: This provision specifies that if the district attorney determines that new or replacement evaluations are necessary to update one or more of the original evaluations or to replace the evaluation of an evaluator that is no longer available for testimony, the district attorney may request the State Department of Mental Health (Department) to perform such updated or replacement evaluations, and, upon such request, the Department shall perform the requested evaluations [citation] and forward them to the district attorney. (Ibid., italics omitted.) The court further explained [t]these updated or replacement evaluations shall include review of available medical and psychological records, including treatment records, consultation with current treating clinicians, and interviews of the person being evaluated . . . . [Citation.] By this language, the current provision clarifies within the SVPA an exception to section 5328s general rule of confidentiality of treatment records, and allows the district attorney access to treatment record information, insofar as that information is contained in an updated evaluation. (Ibid.; italics added.)

Defendant acknowledges Albertson, but not section 6603, subdivision (c)(1)s express provision making treatment records available to prosecution SVP evaluators. His argument that [t]reatment by . . . mental health professionals within the CDC or DMH treatment facilities on the one hand, and evaluation for further commitment under section[] 6600, et seq., on the other, require separate evaluations is contrary to this legislative determination.

Because section 6603, subdivision (c) is a recent and specific statute governing prosecution evaluations for SVP commitments, its disclosure provision prevails, not only over the general confidentiality provision of the Welfare and Institutions Code (Albertson, supra, 25 Cal.4th at p. 805), but also over the earlier and more general Evidence Code provisions on physician-patient privilege and psychotherapist-patient privilege. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 556 [[a]s a rule, a later, more specific, statute will prevail over an earlier, more general one].) Hence, defendants reliance on the Evidence Code provisions is misplaced.^[3]

V

In a supplemental opening brief, defendant contends he was denied due process of law and a fair trial because the trial court and the prosecutor advised the jury of length and nature of an SVP commitment. We are not persuaded.

A

At the outset of voir dire, the trial court told prospective jurors that the petitions sought to extend defendants commitment until September 10, 2005.

In his opening statement, the prosecutor explained that the SVP petitions go for a two-year commitment. [Defendants] commitment on his latest violation was due to expire in the September of 2002 [sic], and a new petition was filed . . . in August [sic] of 2002 [sic]. That petition has never been resolved. [Defendant] has remained at Atascadero during that period of time pending the resolution of that. Because theyre two-year commitments, we went past that period. The 2002 [sic] commitment would only run to 2004 [sic]. So a new petition had to be filed to go from the 2004 [sic] to the 2006 [sic]. [] . . . [] . . . Youll learn that during this time in Atascadero [defendant] has declined the sexual offender treatment program that they have in place there. There are five phases to the program. First phase is a very passive phase in which the person is told more or less whats going to go on in the other phases. They really can go through that phase just sitting and listening to people. [] The second phase becomes one that the person has to become a little more involved in. They have to come to grips with what theyve actually done. They have to understand the significance and the nature of --.

At this point, defense counsel objected to this whole line of statement and the evidence involved in that. The court overruled the objection without further comment, and the prosecutor concluded his opening statement as follows: They have to come to grips with what has occurred in their past and start understanding whats going on. [Defendant] began phase two and quickly dropped out. And [defendant] has refused the sex offender commitment program, the phase program, which [it] is sometimes called by people at Atascadero State Hospital and the evaluators. He has participated in some other programs there, but he refuses treatment in the sexual offender commitment program. [] Ladies and gentlemen, thats the evidence thats going to come before you from [defendant] and from the two state evaluators. Thank you.

At the end of his closing summation, the prosecutor asserted: The People have proven beyond a reasonable doubt that [defendant] does fit the criteria. Wed ask you to sustain his petition. Well let [defendant] realize he needs to go back to Atascadero. He needs to get involved in the phase program. And he needs to be able to go through the phases so that he will not be likely to reoffend so that he wont be the well-founded and serious risk so that Dr. Finnberg can look at that sort of conduct and say, yes, something has changed and change her opinion also. Thank you, ladies and gentlemen. (Italics added.)

B

Defendants claim is based in part on People v. Shazier (2006) 139 Cal.App.4th 294, a decision of the Court of Appeal, Sixth Appellate District. But the Supreme Court granted review in that case two days after defendant served his supplemental brief. (No. S144419; Aug. 30, 2006.)

He also relies on People v. Rains (1999) 75 Cal.App.4th 1165 (hereafter Rains), in which the trial court admitted evidence of the effect of a true finding on an allegation that a defendant is a sexually violent predator (i.e., that he would be committed to a hospital for a period of two years and would receive treatment) . . . . (Id. at p. 1167.) Rains held the consequences of a true finding were not relevant to either of the two issues before the court, i.e., whether the defendant had a diagnosed mental disorder, and whether the disorder made him dangerous to the health and safety of others. (Id. at pp. 1169-1170.) However, the error was not prejudicial, because (1) the evidence that the defendant was a sexually violent predator was undisputed, (2) the testimony about the consequences of a true finding was relatively brief and was presented as a result of a jurors expressed concern that a true finding would result in sending the defendant not to a hospital but to prison even though he was not charged with any crime, (3) the trial court instructed the jury not to discuss or consider the subject of penalty or punishment, and the prosecutor also asked the jury not to consider those matters, and (4) the defendant presented virtually no defense. (Id. at pp. 1170-1171; see People v. Allen (1973) 29 Cal.App.3d 932, 934-935.)

The People contend defendant has forfeited his Rains claim by failing to assert it in the trial court. We agree. Defense counsels objection to this whole line of statement and the evidence involved in that appears to be directed not toward the holding in Rains that the consequences of a true finding are irrelevant, but toward the prosecutors reliance on defendants refusal to participate in the phase program to prove that he is an SVP. By statute, an objection to the admission of evidence must make clear the specific ground of the objection or motion. (Evid. Code, 353, subd. (a).) Here, defendants objection to the prosecutors description of anticipated evidence did not make clear that he was objecting on the basis of Rains. Because the court and prosecutor were never prompted to consider Rains, their remarks do not suggest that a Rains objection would have been futile.

Perhaps anticipating this result, defendant argues that his trial counsels failure to assert a Rains objection constituted ineffective assistance. We disagree.

[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was deficient because his representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citation.] Second, he must also show prejudice flowing from counsels performance or lack thereof. [Citation.] Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.] [Citation.] (Peoplev.Avena (1996) 13 Cal.4th 394, 418; fn. omitted.)

There is no reasonable probability that, but for learning that a true finding would result in a commitment to Atascadero, the jury would have found the petitions untrue or failed to reach a verdict. To have reached either result, jurors would have had to indulge the sort of speculation averted by the trial court in Rains, i.e., that defendant would be imprisoned if the petition were found true. (Rains, supra, 75 Cal.App.4th at p. 1171.) There is no reasonable probability the jury would have so speculated and thus rejected the commitment petitions.

In any event, we disagree with Rains. Sumahit explained that California hospitalizes sexual predators; the prosecution evaluators must consider the persons progress, if any, in any mandatory SVPA treatment program, as well as the persons expressed intent, if any, to seek out and submit to any necessary treatment; and a persons refusal to cooperate in any phase of treatment may therefore support a finding that he is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community. [Citation.] (Sumahit, supra, 128 Cal.App.4th at pp. 354-355.) Where, as here, the issue of failure to participate in treatment is raised, the jury necessarily learns both that the defendant has been committed to a state hospitaland that, due to the failure to participate in its treatment, the prosecution contends that the defendant is not ready to be released from that facility.

Where, as here, the jury is asked to resolve two successive petitions in a single consolidated proceeding, it also learns that each SVP commitment is for a period of two years. Under these circumstances, any discerning juror could readily perceive that the consequence of a true finding is a further two-year commitment to the state hospital.

Thus, the Rains rule serves no useful purpose in this case. A court could accomplish the purpose of Rains--to prevent the jury from discerning the consequences of a true finding--only by limiting the evidence which could be introduced pursuant to Sumahit. That it should not do.

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

ROBIE , J.

BUTZ , J.

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^[1] Defendant was committed as an SVP from September 1997 to September 1999, and he was recommitted as an SVP from September 1999 to September 2001.

^[2] This record appears to refute defendants argument that the prosecutor questioned Dr. Podboy about Kenneth Parnell without prior court approval.

^[3]People v. Martinez (2001) 88 Cal.App.4th 465, at page 485, rejected a contention identical to defendants without considering the effect of section 6603, subdivision (c)(1). Thus, we need not address defendants argument that People v. Martinez, supra, and its antecedent, People v. Lakey (1980) 102 Cal.App.3d 962, were wrongly decided.