P. v. Dannenberg

 

 

 

 

 

 

 

 

 

Filed 5/29/13  P. v. Dannenberg CA1/2

Opinion
following remand from Supreme Court

 

 

 

 

 

NOT TO BE PUBLISHED IN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 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opinion has not been certified for publication or ordered published for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

FIRST APPELLATE DISTRICT

DIVISION TWO

 
>

THE PEOPLE,             Plaintiff and Respondent, v. ERIC DANNENBERG,             Defendant and Appellant.

A123194         (Alameda County       Super. Ct. No. C132302)

 

In
2008, a jury found defendant to be a sexually
violent predator (SVP), as defined in the Sexually Violent Predator Act
(Welf. & Inst. Code, § 6600 et seq.) (SVPA).href="#_ftn1" name="_ftnref1" title="">[1]  Defendant appealed from the order committing
him to the Department of Mental Health (DMH) for an indeterminate term pursuant
to section 6604.  The petition to commit
defendant as an SVP was filed prior to the passage of Proposition 83.  Proposition 83 passed in November
2006, and the SVPA was amended.  The
petition against defendant was amended to reflect an indeterminate commitment
pursuant to the amended SVPA.

Defendant
appealed the commitment order and argued that committing him pursuant to the
amended SVPA was an improper retroactive application of the statute and that
the amended SVPA violated the due
process, equal protection, ex post facto, and double jeopardy clauses of
the state and federal Constitution.  In
our nonpublished opinion filed on June 3, 2010, we rejected
all of defendant’s contentions except for his challenge to the SVP statute on
equal protection grounds.  As to that
issue, we directed a remand for further proceedings consistent with >People v. McKee (2010) 47 Cal.4th 1172 (>McKee I).

The
California Supreme Court granted review and transferred the matter to us with
directions to vacate our decision and to suspend further proceedings pending
finality of the proceedings on remand in McKee
I, supra, 47 Cal.4th 1172.  The San
Diego County Superior Court conducted the evidentiary hearing required by >McKee I, and concluded that the People
had met their burden of justifying the disparate treatment of SVP’s, and
confirmed the indeterminate commitment. 
The Court of Appeal affirmed.  (>People v. McKee (2012) 207 Cal.App.4th
1325 (McKee II).)  The Supreme Court denied Richard McKee’s
petition for review and thus this case is now final.  Accordingly, we now reconsider defendant’s
equal protection argument in light of McKee
II.

We
reiterate our previous opinion on all issues except as to our remand based on defendant’s
equal protection claim.  Having
considered defendant’s equal protection contention in light of >McKee I and McKee II, we affirm the order of commitment.

BACKGROUND

            The facts of the predicate offenses
are only briefly summarized since these facts are not relevant to the href="http://www.fearnotlaw.com/">legal issues raised on appeal.  On September 6, 1981, when defendant was 19
years old, defendant had a knife and forced a 15-year-old boy to orally
copulate him.  Defendant was convicted of
violating Penal Code section 288, subdivision (a), and sentenced to three years
in prison. 

In 1985, defendant forced a 14-year-old boy to orally copulate him.  Defendant was convicted of violating Penal
Code section 288, subdivision (c), and sentenced to six years in prison. 

In 1988, defendant met two teenage boys and bound one of the boys, before
threatening him with scissors, sodomizing him, and orally copulating him.  Defendant was convicted of violating Penal
Code section 286, subdivision (c), and section 288, subdivision (a)(c).  He received a 10-year prison commitment.

While in prison, defendant had multiple rule violations. 

            On March 5, 1998, a petition was
filed seeking to commit defendant as an SVP pursuant to the SVPA.  Proposition 83 passed in November of 2006,
and the petition was amended to reflect an indeterminate commitment. 

Defendant had a jury trial, which began on September 18, 2008.  The jury considered the evaluations of
defendant by Dr. Dawn Starr and Dr. Jack Vognsen.  Both Starr and Vognsen found that defendant
met the criteria of an SVP. 

Dr. Starr diagnosed defendant with paraphilia not otherwise specified,
personality disorder not otherwise specified with antisocial and narcissistic
features, and sexual sadism.  She stated
that true paraphilia is chronic and lifelong. 
She assessed defendant’s risk to reoffend, if not kept in a locked
facility, as high.

Dr. Vognsen diagnosed defendant with paraphilia not otherwise specified,
sexual sadism, and anti-social personality disorder.  Using a number of tests, he concluded that
defendant scored in the high-risk category. 


On October 15, 2008, the jury found the petition to be true.  The court ordered defendant committed for an
indeterminate amount of time.

            Defendant filed a timely notice of
appeal, and we requested supplemental briefing to discuss the effect of >McKee I, supra, 47 Cal.4th 1172.  We issued a nonpublished opinion on June 3,
2010.  We remanded for a hearing on
defendant’s equal protection claim, but otherwise affirmed the lower court’s
judgment and order.

            On August 18, 2010, the California
Supreme Court granted the People’s petition for review.  The court transferred the matter to this
court “with directions to vacate [our] decision and, in order to avoid an
unnecessary multiplicity of proceedings, to suspend further proceedings pending
finality of the proceedings on remand” in McKee
I.  The order specified, “ ‘Finality
of the proceedings’ shall include the finality of any subsequent appeal and any
proceedings in this court.”

            On August 20, 2010, pursuant to the
Supreme Court’s order, we vacated our decision and suspended further
proceedings pending finality of the proceedings on remand in >McKee I.

The
San Diego County Superior Court conducted the evidentiary hearing required by >McKee I, and concluded that the People
had met their burden of justifying the disparate treatment of SVP’s, and
confirmed the indeterminate commitment. 
The Court of Appeal affirmed.  (>McKee II, supra, 207 Cal.App.4th
1325.)  The Supreme Court denied McKee’s
petition for review and thus this case became final.  On April 16, 2013, we
issued an order requesting the parties to file a brief to address the effect of
McKee II on defendant’s equal
protection claim. 

DISCUSSION

I.  The SVPA and Proposition 83

            At the time the petition was
filed seeking to commit defendant as an SVP, the SVPA (Stats.
1995, ch. 763, § 3, p. 5922) provided for the involuntary civil commitment for
a two-year term of confinement and treatment of persons who, by a unanimous jury
verdict after trial (former §§ 6603, subd. (d), 6604), are found beyond a
reasonable doubt to be an SVP (former § 6604). 
(People v. Williams (2003) 31 Cal.4th 757, 764.)  A person’s commitment could not be extended
beyond that two-year term unless a new petition was filed requesting a
successive two-year commitment.  (Former
§§ 6604, 6604.1; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243,
fn. 5.)  On filing of a recommitment
petition, a new jury trial would be conducted at which the People again had the
burden to prove beyond a reasonable doubt that the person was currently an
SVP.  (Former §§ 6604, 6605, subds. (d),
(e).)  As originally enacted, an SVP was
defined as “a person who has been convicted of a sexually violent offense
against two or more victims for which he or she received a determinate sentence
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.” 
(Former § 6600, subd. (a).)

            On November 7, 2006, voters approved
Proposition 83, “The Sexual Predator Punishment and Control Act:  Jessica’s Law.”  It amended the SVPA effective November 8,
2006.  In addition to other
modifications, Proposition 83 changed an SVP commitment from a two-year term to
an indefinite commitment.  (§ 6604.)  Proposition 83 did not change section 6604’s
requirement that a person’s initial commitment as an SVP be proved at trial
beyond a reasonable doubt and section 6605’s requirement that current
examinations of a committed SVP occur at least once every year (§ 6605, subd.
(a)).

Under Proposition 83, the DMH now files an annual report in
conjunction with its examination of an SVP, which “shall include consideration
of whether the committed person currently meets the definition of a sexually
violent predator and whether conditional release to a less restrictive
alternative or an unconditional release is in the best interest of the person
and conditions can be imposed that would adequately protect the
community.”  (§ 6605, subd. (a).)  Subdivision (b) of section 6605 now provides
that “[i]f the [DMH] determines that either: 
(1) the person’s condition has so changed that the person no longer
meets the definition of a sexually violent predator, or (2) conditional release
to a less restrictive alternative is in the best interest of the person and
conditions can be imposed that adequately protect the community, the director
shall authorize the person to petition the court for conditional release to a
less restrictive alternative or for an unconditional discharge.”  (§ 6605, subd. (b).)  If the state opposes the director’s petition,
then it must prove beyond a reasonable doubt that the person still meets the
definition of an SVP.

If DMH does not authorize the committed person to file a
petition for release pursuant to section 6605, the person may file a petition
for conditional release for one year and subsequent unconditional discharge
pursuant to section 6608.  (§ 6608, subd.
(a).)  Section 6608, subdivision (i),
provides:  “In any hearing authorized by
this section, the petitioner shall
have the burden of proof by a preponderance of the evidence.”  After a trial court denies a section 6608
petition, “the person may not file a new application until one year has elapsed
from the date of the denial.”  (§ 6608,
subd. (h).)

Our Supreme Court summarized the effect of Proposition
83:  “[U]nder Proposition 83, an
individual SVP’s commitment term is indeterminate, rather than for a two-year
term as in the previous version of the Act. 
An SVP can only be released conditionally or unconditionally if the DMH
authorizes a petition for release and the state does not oppose it or fails to
prove beyond a reasonable doubt that the individual still meets the definition
of an SVP, or if the individual, petitioning the court on his own, is able to
bear the burden of proving by a preponderance of the evidence that he is no
longer an SVP.  In other words, the
method of petitioning the court for release and proving fitness to be released,
which under the former [SVPA] had been the way an SVP could cut short his
two-year commitment, now becomes the only means of being released from an
indefinite commitment when the DMH does not support release.”  (McKee
I, supra, 47 Cal.4th at pp. 1187-1188, fn. omitted.)

II.  The
Amended SVPA is Not a Retroactive Application

            Defendant contends that applying
Proposition 83 to him, years after the filing of the petition, was a
retroactive application of the law.  As defendant recognizes, this issue has been
decided against him.  (>People v. Carroll (2007) 158 Cal.App.4th
503, 510 (Carroll); >Bourquez v. Superior Court (2007) 156
Cal.App.4th 1275, 1288-1289; see also People
v. Taylor (2009) 174 Cal.App.4th 920, 932-933.)

The Fifth District in Carroll held that imposing an indeterminate term on SVP
adjudications made after passage of the amendments from Proposition 83 is not a
retroactive application of the law.  (>Carroll, supra, 158 Cal.App.4th at
pp. 513-514.)  “In order for a law
to be retrospective, it must apply to events occurring before it was
enacted.  (In re Ramirez (1985) 39 Cal.3d 931, 936.)  Stated another way, ‘[a] statute has
retrospective effect when it substantially changes the legal consequences of past
events.  [Citation.]’  (Western
Security Bank v. Superior Court [(1997)] 15 Cal.4th [232,] 243, italics
added.)  ‘Thus, the critical question for
determining retroactivity usually is whether the last act or event necessary
to trigger application of the statute occurred before or after the
statute’s effective date. 
[Citations.]  A law is not
retroactive “merely because some of the facts or conditions upon which its
application depends came into existence prior to its enactment.”  [Citation.]’ 
(People v. Grant (1999) 20 Cal.4th
150, 157, italics added.)”  (>Carroll, at p. 513.)

            As Carroll
explained, because an extension hearing is a new proceeding requiring a new
determination of sexually violent predator status based on the person’s current
mental condition, application of the amendments to a case in which a sexually
violent predator determination had not yet been made does not “change the legal
consequences of past events or conduct.” 
(Carroll, supra, 158
Cal.App.4th at p. 513.)  The “significant
point with respect to retroactivity is not the filing of the petition, but
trial and adjudication under the SVPA.  (>Garcetti v. Superior Court (1999) 76
Cal.App.4th 685, 694.)  The conduct or
event (for want of a better term) to which the SVPA attaches legal consequences
is the person’s mental condition at the time of adjudication, not at the time
the . . . petition is filed.”  (>Carroll, at p. 514, fn. omitted.) 

Thus, defendant “was subject to recommitment for
an indeterminate term because of the status of his mental condition after [the]
amendments became effective” (Carroll,
supra, 158 Cal.App.4th at p. 514) and the amendments were not retroactively applied to him.         

III.  Due Process Claim

            Defendant argues that
the amended SVPA violated his due process rights.  The People respond that defendant never
objected to the constitutionality of the indeterminate term provision in the
trial court and therefore did not preserve the issue for appeal. 

We disagree that the issue was waived.  Challenges to the amended SVPA raise issues
regarding defendant’s substantial rights and, if he had objected, the court
could not have cured them.  (See >People v. Saunders (1993) 5 Cal.4th 580,
589, fn. 5.)  “A defendant is not
precluded from raising for the first time on appeal a claim asserting the deprivation
of certain fundamental, constitutional rights.” 
(People v. Vera (1997) 15
Cal.4th 269, 276-277.) 

            The issues raised in
defendant’s challenge on due process grounds were decided against him in >McKee I, supra, 47 Cal.4th 1172.  In McKee
I, the defendant asserted that his due process rights were violated by the
fact that his commitment was indefinite under the amended statute and that it
was now his burden to show by a preponderance of the evidence that he no longer
was an SVP.  (Id. at p. 1188.)  The court
in McKee I concluded that an
indefinite commitment did not violate the defendant’s due process rights.  (>Id. at p. 1193.)  The court explained that the defendant had
already been found to have previously committed the requisite criminal acts and
was found beyond a reasonable doubt to have “ â€˜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.’ ”  (Id.
at p. 1186.)  Thus, the requirement that
the defendant, after his initial commitment, “must prove by a preponderance of
the evidence that he is no longer an SVP does not violate due process.”  (Id. at
p. 1191.)

            Defendant also challenges the
amended SVPA to the extent it permits the court to deny his petition without a
hearing.  Under section 6608, an SVP may
unilaterally petition for release and the court may deny the petition without a
hearing only if it finds the petition frivolous.  (§ 6608, subd. (a).)  The court in McKee I held that providing the court with discretion to deny a
petition without a hearing as frivolous did not deny the defendant due process
because the defendant had no right to a hearing when the issue
“ â€˜indisputably has no merit.’ ”  (>McKee I, supra, 47 Cal.4th at p. 1192.)

            Defendant also complains that the
amended SVPA reduces his access to the court because he is not entitled to the
assistance of an expert.  In support of
this contention he raises the same points and cites the same authority considered
by the Supreme Court in McKee I, supra, 47
Cal.4th at pages 1192-1193.  Section
6605, subdivision (d) mandates the appointment of experts when the DMH
authorizes an indigent inmate to petition for release, but section 6608,
subdivision (a) merely provides that petitioner has the right to counsel, with
no mention of experts, when he petitions without the DMH’s approval.  The Supreme Court agreed that href="http://www.mcmillanlaw.com/">expert testimony is critical in an SVP
commitment proceeding.  (>McKee I, at p. 1192.)  The court observed:  “If the state involuntarily commits someone
on the basis of expert opinion about future dangerousness, places the burden on
that person to disprove future dangerousness, and then makes it difficult for
him to access his own expert because of his indigence to challenge his
continuing commitment, that schema would indeed raise a serious due process
concern.”  (Ibid.)  The court, however,
rejected this interpretation of the statute and construed section 6608, subdivision
(a), to be read in conjunction with section 6605, subdivision (a), and as
mandating appointment of an expert for an indigent SVP who petitions the court
for release.  (McKee I, at pp. 1192-1193.) 
Under this interpretation of the statute, the Supreme Court held that
the amended SVPA did not violate the due process clause.  (McKee
I, at p. 1193.) 

            Accordingly, under the holding of >McKee I, we conclude that defendant’s
claim of a due process violation has no merit.

IV.  Double
Jeopardy and Ex-Post Facto Claim

            Defendant contends that the 2006
amended SVPA is punitive and violates the double jeopardy and ex-post facto
clauses of the federal Constitution. 

Article I, section 10 of the United States Constitution
provides:  “No state shall
. . . pass any . . . ex post facto law. . . .”  The ex post facto clause prohibits only those
laws that “retroactively alter the definition of crimes or increase the
punishment for criminal acts.”  (Collins
v. Youngblood (1990) 497 U.S. 37, 43.)

The Supreme Court in McKee
I, supra, 47 Cal.4th 1172, explained that it had already made it clear in >Hubbart v. Superior Court (1999) 19
Cal.4th 1138, “in considering an ex post facto challenge to the pre-Proposition
83 version of the [SVPA], that the Legislature had ‘disavowed any “punitive
purpose[ ],” and declared its intent to establish “civil commitment”
proceedings in order to provide “treatment” to mentally disordered individuals
who cannot control sexually violent criminal behavior.  [Citations.] 
The Legislature also made clear that, despite their criminal record,
persons eligible for commitment and treatment as SVP’s are to be viewed “not as
criminals, but as sick persons.” 
[Citation.]  Consistent with these
remarks, the [SVPA] was placed in the Welfare and Institutions Code, surrounded
on each side by other schemes concerned with the care and treatment of various
mentally ill and disabled groups.’  (Hubbart,
at p. 1171.)”  (McKee I, at pp. 1193-1194.) 
The court in McKee I explained
that the “nonpunitive objectives of the [SVPA]––treatment for the individual
committed and protection of the 
public––remain the same after Proposition 83.  Moreover, under the Act after Proposition 83,
as before, a person is committed only for as long as he meets the SVP criteria
of mental abnormality and dangerousness. 
As such, the Proposition 83 amendments at issue here cannot be regarded
to have changed the essentially nonpunitive purpose of the [SVPA].”  (Id. at
p. 1194.)

With regard to the portion of Proposition 83 concerning
increased punishment for sex offenses, the court in McKee I stated, “But the fact that the amendments to the civil
commitment statute are part of the same legislative enactment as amendments to
the Penal Code does not render the former amendments punitive.”  (McKee
I, supra, 47 Cal.4th at pp. 1194-1195.) 
Defendant, here, as the defendant in McKee
I, argues the seven-factor test articulated in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169, applies
to make Proposition 83 punitive.  Our
Supreme Court considered the factors and concluded that the “Proposition 83
amendments do not make the [SVPA] punitive and accordingly do not violate the
ex post facto clause.”  (>McKee I, at p. 1195.)

As noted above, defendant also asserts that the amended
SVPA violates the double jeopardy clause of the federal Constitution.  He argues that he has already been punished
for the crimes underlying his commitment as an SVP and therefore any further
punishment for these offenses constitutes double jeopardy.  Since the Supreme Court has held that the
amended SVPA is not punitive, defendant’s double jeopardy argument also
fails. 

V.  Equal
Protection Claim>

Defendant contends his involuntary commitment as an SVP under the
SVPA, as amended by Proposition 83 in 2006, violated his federal constitutional
right to equal protection under the law because it treats SVP’s significantly
less favorably than those similarly situated individuals civilly committed
under other statutes.  Specifically, he
claims that SVP’s receive treatment disparate from mentally disordered
offenders (MDO) subject to commitment under the Mentally Disordered Offenders
Act (Pen. Code, § 2960 et seq.) or those civilly committed because they were
not guilty of a crime by reason of insanity (NGI) (Pen. Code, § 1026 et. seq.). 

The court in McKee I,
supra, 47 Cal.4th 1172 held that the SVPA, as amended, potentially violates
the equal protection clause of the federal Constitution because SVP’s are
similarly situated to MDO’s and NGI’s for purposes of the term of commitment
and burden of proof for release.  (>Id. at pp. 1202-1203.)  The court concluded that the People must
show, “notwithstanding the similarities between SVP’s and MDO’s, the former as
a class bear a substantially greater risk to society, and that therefore imposing
on them a greater burden before they can be released from commitment is needed
to protect society.”  (>Id. at p. 1208.)  The Supreme Court remanded the matter before
it to the trial court to determine whether the People can demonstrate “the
constitutional justification for imposing on SVP’s a greater burden than is
imposed on MDO’s and NGI’s in order to obtain release from commitment.”  (Id. at
pp. 1208-1209, fn. omitted.)

On remand from McKee
I, the trial court conducted a 21-day evidentiary hearing and the People
presented the testimony of eight witnesses and documentary evidence.  McKee presented the testimony of 11 witnesses
and documentary evidence.  (>McKee II, supra, 207 Cal.App.4th at pp.
1330, 1332.)  The trial court issued a
35-page statement of decision summarizing the testimony and documentary
evidence presented at the hearing.  (>Id. at p. 1332.)  The trial court found that “the People had
met their burden to establish, by a preponderance of the evidence, that the
disparate treatment of SVP’s under the [amended SVPA] was based on a reasonable
perception of the greater and unique dangers they pose compared to MDO’s and
NGI’s.”  (Ibid.)  The court confirmed
its prior order committing McKee to an indeterminate term.  (Ibid.)

McKee appealed and the Fourth Appellate District
in McKee II applied a de novo
standard of review and “independently” determined “whether the People presented
substantial, factual evidence to support a reasonable perception that SVP’s
pose a unique and/or greater danger to society than do MDO’s and NGI’s, thereby
justifying the disparate treatment of SVP’s under the [amended SVPA].”  (McKee
II, supra, 207 Cal.App.4th at p. 1338.) 
The appellate court concluded that the People showed “ ‘that the
inherent nature of the SVP’s mental disorder makes recidivism as a class
significantly more likely[;] . . . that SVP’s pose a greater risk [and unique
dangers] to a particularly vulnerable class of victims, such as children’; and
that SVP’s have diagnostic and treatment differences from MDO’s and NGI’s,
thereby supporting a reasonable perception by the electorate that passed
Proposition 83 that the disparate treatment of SVP’s under the amended Act is
necessary to further the state’s compelling interests in public safety and
humanely treating the mentally disordered.” 
(Id. at p. 1347.)  Based on the above, the appellate court
concluded that “the disparate treatment of SVP’s under the Act is reasonable
and factually based and was adequately justified by the People at the
evidentiary hearing on remand.”  (>Id at p. 1348.)  The SVPA, therefore, did not violate equal
protection.  (Ibid.)

As already noted, the California Supreme Court
denied review of McKee II and this
opinion is final.

As in McKee II, we agree that defendant’s
equal protection rights were not violated by treating him differently than
MDO’s and NGI’s for commitment purposes, because the indeterminate commitment
procedures legitimately advance a compelling state interest in
protecting the public from an SVP, like defendant, who carries a substantial,
well-founded risk of reoffending and cannot control his behavior and who poses
a greater risk to a particularly vulnerable class of victims such, as here,
children.  We therefore reject defendant’s
equal protection challenge.

Defendant contends that McKee II was wrongly decided and that we should not follow it.  He maintains that the Supreme Court’s refusal
to grant review does not amount to approval of McKee II or preclude other Courts of Appeal from issuing a
different opinion. 

We agree that ordinarily the opinion of
one Court of Appeal is not binding on another Court of Appeal.  (See, e.g., Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1193.)  However, the Supreme Court’s denial of review
is significant.  (DiGenova v. State Board of Education (1962) 57 Cal.2d 167,
178.)  “Although [the Supreme Court’s]
denial of a hearing is not to be regarded as expressing approval of the
propositions of law set forth in an opinion of the District Court of Appeal or
as having the same authoritative effect as an earlier decision of this court
[citations], it does not follow that such a denial is without significance as
to our views [citations].”  (>Ibid.) 


In the present situation, the Supreme
Court in its order to this and other Courts of Appeal strongly implied that the
determination on remand in McKee II should,
once final, be given considerable weight to “avoid an unnecessary multiplicity
of proceedings[.]”  The Supreme Court
also specified that “ ‘[f]inality of the proceedings’ shall include the
finality of any subsequent appeal and any proceedings in this court.”  Thus, in the present case, the Supreme
Court’s denial of review in McKee II signifies
its conclusion that the case was correctly decided and that the holding has
statewide significance.  Moreover, we
agree with the equal protection analysis in McKee
II.

Defendant’s contention that McKee
II was wrongly decided lacks merit. 
Defendant argues that the appellate court in McKee II did not conduct de novo review.  He asserts that the reviewing court deferred
to the lower court’s ruling because it accepted as accurate the evidence
presented by the prosecution without discussing its reliability or
credibility.  (McKee II, supra, 207 Cal.App.4th at p. 1338 & fn. 3.)  We agree with Division Three of our court
that stated, when addressing the exact same argument as the one presented here,
that this contention is “frivolous.”  (>People v. McKnight (2012) 212
Cal.App.4th 860, 864; see also People v.
McDonald (2013) 214 Cal.App.4th 1367, 1378; People v. Landau (2013) 214 Cal.App.4th 1, 47-48.)  The appellate court in McKee II met its obligation by independently reviewing the evidence
and concluding that “the disparate treatment of SVP’s under the Act is
reasonable and factually based and was adequately justified by the People at
the evidentiary hearing on remand.”  (>McKee II, at pp. 1339-1348.) 

Defendant also claims that the appellate court in McKee II misapplied the strict scrutiny test and that the evidence
did not support the ruling that SVP’s are more dangerous than MDO’s and
NGI’s.  His arguments are essentially
identical to those raised and rejected in People
v. McDonald, supra, 214 Cal.App.4th 1367. 
We agree with the reasoning and conclusions in McDonald (id. at pp.
1379-1382), and reject defendant’s arguments.

Accordingly,
we conclude that defendant’s equal protection claim lacks merit.




DISPOSITION

            The court’s judgment and order are
affirmed.

 

                                                                                    _________________________

                                                                                    Lambden,
J.

 

 

We concur:

 

 

_________________________

Kline, P.J.

 

 

_________________________

Richman, J.