Sumahit

In the published portion of this opinion we hold that a person who has been found to be a sexually violent predator (SVP) is precluded from challenging the sufficiency of the evidence that he currently lacks the ability to control his behavior, where he refuses to be interviewed by the state’s experts with respect to the current status of the mental abnormality which forms the basis of his commitment. We also conclude that defendant’s refusal to be treated forecloses him from claiming that application of the Sexually Violent Predator Act (SVPA or the Act; Welfare and Institutions Code, § 6600 et seq.) violates the ex post facto clause of the federal or state Constitutions on the ground that it is primarily “punitive” in nature.

In this, his third recommitment proceeding under the SVPA, Frank Romas Sumahit was again found to be an SVP. He appeals from an order committing him to the Department of Mental Health (DMH) for a period of two years.

On appeal, defendant claims that the evidence is insufficient to support the order of commitment and that application of the SVPA to the facts of this case violated his rights under the due process and ex post facto clauses of the…