P. v. Green

 

 

 

 

 

 

 

 

 

Filed 10/1/13  P. v. Green CA1/4

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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opinion has not been certified for publication or ordered published for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
FOUR

 

 
>

THE PEOPLE,             Plaintiff and Respondent, v. GLEN FOSTER GREEN,             Defendant and Appellant.

A134917         (Solano County       Super. Ct. No. VC17044)

 

I.

Introduction

        Glen Foster Green (appellant) appeals from a judgment,
following a jury trial, committing him to the State Department of Mental Health
(DMH) for an indeterminate period as a href="http://www.mcmillanlaw.com/">sexually violent
predatorname="SR;279"> (SVP) under the name="SR;283">Sexually Violent Predators
Act (SVPA).  (Welf.
& Inst. Code, § 6600 et seq.)href="#_ftn1"
name="_ftnref1" title="">[1]  He contends the judgment must be reversed for
a variety of reasons, including (1) the evidence was insufficient to
support a current diagnosis of pedophilia; (2) the court erred in refusing
to give an instruction quantifying the risk of reoffense necessary to support a
commitment; (3) the court erred by failing to instruct the jury
sua sponte that an SVP commitment is
for an indefinite time period; (4) the protocol
governing his SVP evaluations is invalid; (5) commitment without the
prospect of effective treatment violates his right to due process; and
(6) the SVPA is an unconstitutional href="http://www.fearnotlaw.com/">ex post facto law, improperly shifts the
burden of proof, and violates his right to equal protection.  We reject appellant’s contentions and affirm
the judgment.

II.

Facts
and Procedural History

            This is
appellant’s fifth appeal from
successive orders finding that he meets the SVPA requirements for extended
commitment.  (See People
v. Green (2000) 79 Cal.App.4th 921; People v. Green
(Feb. 20, 2003, A098496 [nonpub. opn.]);
People v. Green (Dec. 6, 2005, A109362 [nonpub. opn.]; People v. Green (Oct. 26, 2006, A112823 [nonpub. opn.].)  Therefore, because this court is extremely
familiar with this case, we need not discuss in detail the previous petitions
to extend appellant’s commitment as an SVP or his criminal history of
qualifying sex offenses.

            Instead, we
focus on the most recent petition to commit appellant as an SVP filed by the
Solano County District Attorney on February 16, 2007.  The petition alleged appellant was currently
in the custody of the DMH; and he had been evaluated and found to currently
meet the statutory definition of an SVP. 
(See § 6600.)  The petition
attached two evaluations which concluded appellant has a diagnosed mental
disorder that makes him a danger to the health and safety of others in that he
is likely to engage in acts of predatory sexual violence without appropriate
treatment and custody.

            The matter
proceeded to a jury trial where the People had the burden of proving beyond a
reasonable doubt that appellant met all the SVP criteria.  A person may be committed as an SVP only if
“(1) the offender has been convicted of a qualifying sexually violent
offense . . . ; (2) the offender has a diagnosable mental
disorder; (3) the disorder makes it likely he or she will engage in
sexually violent criminal conduct if released; and (4) this sexually
violent criminal conduct will be predatory in nature.”  (Cooley v. Superior Court (2002) 29
Cal.4th 228, 236.)  The People’s experts,
psychiatrist Dr. Mohan Nair and forensic psychologist Dr. Jeremy Coles, each
testified they evaluated appellant and found that he met the criteria of an
SVP.  They each diagnosed appellant with
the mental disorder of pedophilia.  They
testified that appellant had a substantial risk of reoffending and that they
did not believe appellant could control his behavior.

            Psychologist
Dr. James Park and psychiatrist Dr. Alan Abrams, testified for appellant.  They found no indication appellant currently
could be diagnosed with the mental disorder of pedophilia.  They believed he was not likely to reoffend
if released from custody.

            On March 8,
2012, a jury found the petition to be true and the court committed appellant to
the DMH for an indeterminate term.  On March
9, 2012, appellant filed a timely notice
of appeal.

III.

Discussion

A.  The Court Was Not Required to Give a
Requested Instruction Quantifying the Risk of Reoffense>

        Appellant argues reversal is required because the court did
not adequately instruct the jury on the risk of reoffense that is necessary to
commit a person as an SVP.  By statute,
an SVP must have 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),
italics added.)  Appellant claims the
court erred in refusing to give an instruction that would have more precisely
defined the term “likely.”

            “Likely” has been judicially construed to mean
“ â€˜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.’  [Citation.]”  (People v. Roberge (2003) 29 Cal.4th
979, 982, italics omitted (Roberge).)  The risk of reoffense must be greater than a
“mere possibility,” but need not be “better than even,” i.e., greater than 50
percent.  (People v. Superior Court
(Ghilotti) (2002) 27 Cal.4th 888, 922, italics omitted (Ghilotti).)  The instruction given in this case, CALCRIM
No. 3454, tracks this language.href="#_ftn2"
name="_ftnref2" title="">[2]

        Appellant argues the standard instruction did not go far
enough because it failed to “explain the requisite minimum level of risk that
the jury must agree upon.”  He claims the
court erred in refusing to give an amplifying instruction requested by defense
counsel that, in order to find appellant to be an SVP, the jury must first find
that he posed a “high risk” of reoffense.  The requested instruction refers to a
statement in Ghilotti:  “The SVPA
thus consistently emphasizes the themes common to valid civil commitment
statutes, i.e., a current mental condition or disorder that makes it difficult
or impossible to control volitional behavior and predisposes the person to
inflict harm on himself or others, thus producing dangerousness measured by
a high risk or threat of
further injurious acts if the person is not
confined.  [Citations.]”  (Ghilotti, supra, 27 Cal.4th at p. 920, italics omitted &
added.)

name="citeas((Cite_as:_2010_WL_1076217,_*6_(Ca">        The trial court
was not required to give the requested instruction.  As in any trial, the trial court in an SVP
proceeding must instruct on the general principles of law that are necessary to
the jury’s understanding of the case.  (Roberge, supra, 29 Cal.4th at
p. 988.)  Our Supreme Court has
rejected the claim that a jury must be instructed that to be found an SVP, the
person’s “ â€˜diagnosed mental disorder must render the person unable to
control his dangerous behavior.’ â€ 
(People v. Williams (2003) 31 Cal.4th 757, 763, original italics
(Williams).)  Williams held
that the plain language of the SVPA “inherently encompasses and conveys to a
fact finder the requirement of a mental disorder that causes serious difficulty
in controlling one’s criminal sexual behavior.” 
(Id. at p. 759.)  The Williams court reasoned that a
mental disorder meeting the statutory criteria of the SVPA “must additionally
produce an actual risk of violent reoffense” that is sufficiently substantial,
serious, and well-founded.  (>Id. at p. 776.)  Jurors who are instructed using the statutory
language of the SVPA necessarily understand that in order
to be found to be an SVP, the defendant must have a seriously impaired capacity
or ability to control violent criminal
sexual conduct.  Therefore, no name="SR;4620">additional instructions are
constitutionally required.  (>Id. at p. 777.)

        Here, the trial court name="SR;4635">instructed the jury with CALCRIM No. name="SR;4641">3454, which employs the statutory terms used in the SVPA
that Williams found satisfied constitutional requirements.  (Williams, supra, 31 Cal.4th at pp. 776-777.)  Based on Williams’s holding that the language
of the SVPA inherently and adequately conveys the crucial elements necessary to
find a defendant to be an SVP subject to indefinite commitment, no name="SR;5103">additional amplifying instruction was
necessary.  (Ibid.; Roberge, supra,
29 Cal.4th at pp. 988-989.)

B.  The Court Was Not Required to
Give a Sua Sponte Instruction name="SR;2394">Informing the Jury That an SVP
Commitment Is for an Indefinite Time Period>

name="citeas((Cite_as:_2013_WL_3009741,_*4_(Ca">            Appellant
next contends the trial court should have instructed the jury
sua sponte that a verdict finding
appellant is an SVP would result in his indefinite
commitment, “subject only to the limited future review protocol allowed by
law.”  Appellant argues that failing to
instruct the jury on the consequences of its true finding
“may give them the mistaken impression that a civil commitment is short term
and allows for real review in the future.” 
This contention fails.

        “The trial court has a sua name="SR;2482">sponte duty to instruct the name="SR;2487">jury on the general principles of law that are necessary for
the jury’s understanding of the case.  [Citation.]” 
(People v. Butler (2010) 187 Cal.App.4th 998, 1013 (>Butler).)  At appellant’s SVP trial, the name="SR;2520">jury was asked to determine, based on the evidence presented
by the parties, whether appellant is an SVP. 
(§ 6604.)  The trial court
properly instructed the jury on the principles of law
governing its resolution of that issue. 
The duration of any commitment to be imposed based on the name="SR;2571">jury’s findings was irrelevant.  (See People v. Allen (1973) 29
Cal.App.3d 932, 935-938 [trial court erred in a mentally disordered sex
offender proceeding by allowing evidence regarding the type and length of
treatment the defendant would receive]; People
v. Rains (1999) 75 Cal.App.4th 1165 [same]; People v. Calderon (2004) 124 Cal.App.4th 80, 91 [it is “well
established that a jury should not consider what will happen as a result of its
verdict”].)  Accordingly, the trial court
was not required to instruct the jury sua sponte regarding the consequences of
an SVP finding.

C.  Appellant Has Not Shown He Was Prejudiced by
any Legal Flaw in the 2009 Protocol Governing SVP Evaluations>

            Appellant next maintains the 2009 standardized assessment
protocol is not sufficiently detailed and provides “next to no real guidance
for professionals.” 
(Fn. omitted.)  By way of
background, “[b]efore a petition for commitment may be filed, the SVPA requires
a suspected SVP to undergo two psychological evaluations conducted pursuant to
a protocol established by the [DMH]. 
Only if these evaluations result in a finding that the person, in
effect, qualifies as an SVP does the SVPA authorize the filing of a commitment
petition.  Recently, the protocol
developed by the Department and used for many years was declared to be an
unlawful ‘underground regulation’ because it was implemented without compliance
with the Administrative Procedure Act [APA] . . . .”  (People v. Medina (2009) 171
Cal.App.4th 805, 810-811; accord, People
v. Landau (2013) 214 Cal.App.4th 1, 16 (Landau).)

        Based on this authority, in November 2009, appellant filed a
motion for new section 6601 evaluations and a new probable cause hearing,
arguing that an underground regulation was used in his evaluations. href="#_ftn3"
name="_ftnref3" title="">[3]  (See, e.g., In re Ronje (2009)
179 Cal.App.4th 509, 513, disapproved of in Reilly
v. Superior Court (2013) 57 Cal.4th 641, 652 (Reilly).)  On December 7,
2009, the court granted appellant’s motion.

        Appellant now claims the updated evaluations, which were
prepared under DMH’s 2009 protocol, were invalid because the 2009 protocol is
not sufficiently detailed to be considered a “standardized assessment protocol”
as called for in section 6601, subdivision (c). 
In discussing the meaning of the term “standardized assessment protocol”
relative to DMH’s 2009 protocol, appellant claims “[t]he 2009 SAP is not
‘standardized’ because it is left to the evaluators whether they are to use
tests and which to use, and the questions to ask of individuals being
assessed.”href="#_ftn4" name="_ftnref4" title="">[4]

        “The court, not the agency, has ‘final responsibility for the
interpretation of the law’ under which the regulation was issued.  [Citations.]” 
(Yamaha Corp. of America v. State Bd. of Equalization (1998) 19
Cal.4th 1, 11, fn. 4 (Yamaha Corp.).)  When a court reviews an agency’s
interpretation of a statute, however, the court “accords great weight and
respect to the administrative construction. 
[Citation.]’  [Citations.]”  (Id. at p. 12.)  By adopting the 2009 protocol and title 9,
section 4005 of the California Code of Regulations pursuant to section 6601,
DMH impliedly construed the statutory meaning of the term “standardized.”  When “an agency has adopted an interpretative
rule in accordance with [APA] provisions—which include procedures (e.g., notice
to the public of the proposed rule and opportunity for public comment) that
enhance the accuracy and reliability of the resulting administrative
‘product’—that circumstance weighs in favor of judicial deference.”  (Yamaha
Corp., supra, at p. 13.)

        Appellant neither claims nor demonstrates that DMH failed to
comply with the APA when it adopted title 9, section 4005 of the California
Code of Regulations.  Appellant also
offers no legislative history suggesting the Legislature intended any particular
manner of standardization.  Section 6601
does not expressly define “standardized assessment protocol,” and it appears
the Legislature left standardization to the expertise of DMH.

        In any event, appellant has not shown that he was deprived of
a fair trial or suffered any prejudice as a result of the use of the 2009
protocol.  (Reilly, supra, 57 Cal.4th
at p. 655 [defendant may obtain “relief arising from use of an invalid
protocol in an SVP evaluation” only if he or she demonstrates that “the error
was material”].)  He was provided a constitutionally
mandated jury trial and, at that trial, two experts testified that based on
their training and experience, appellant was an SVP as that term is statutorily
defined.  After hearing the evidence
presented, the jurors concluded, beyond a reasonable doubt, that appellant was
an SVP within the meaning of section 6600, subdivision (a)(1).  Appellant does not claim that the use of the
2009 protocol harmed his ability to mount a defense or in any way influenced
the jury in finding him to be an SVP.  Because
appellant received a full and fair trial on the ultimate issue in the case, we
conclude appellant was not prejudiced by the error he has alleged.  (Reilly,
supra, at p. 656 [where
defendant “was found to be an SVP under the new protocol, it is clear that the
2007 protocol error did not materially affect the outcome of his probable cause
hearing”].)name=B00032030810751>

D.  Improperly Placing the Content of Other
Doctors’ Opinions Before the Jury

        Appellant claims it was error to admit href="http://www.fearnotlaw.com/">testimonial evidence that nontestifying
experts had formed the opinion appellant was a pedophile, a danger to the
community, and likely to reoffend.  This
argument is based on defense counsel’s cross-examination of Dr. Coles where he
was asked whether adequately trained professionals could reach different
conclusions based on the same evidence. 
Dr. Coles responded that in “a hypothetical situation” this was
possible.  Defense counsel then
asked:  “And you don’t think that’s
possible in this case, right?  There’s
only one reasonable conclusion and it’s yours?” 
Dr. Coles replied:  “No.  What I said is that virtually every treatment
provider that’s come in contact with [appellant] over the past 30 years has
made [the same] diagnosis.”

        Defense counsel objected that Dr. Coles was testifying to
unreliable hearsay.  The court
responded:  “Well, I’m going to overrule
the objection, because your question kind of invited that response.  So overruled. 
But we’ll leave it and move on.” 
The court then admonished the jury that Dr. Coles’s testimony regarding
other professionals’ diagnoses was admissible only for the limited purpose of
explaining his opinion and not for any other purpose.

        Appellant argues that Dr. Coles’s testimony “use[d] the
opinions of others to bolster his own conclusion,” which prejudiced appellant
in obtaining a fair trial.  In making
this argument, he relies principally on People v.
Campos (1995) 32 Cal.App.4th 304 (Campos).  The Campos court held that the trial
court properly permitted the People’s only witness, a psychiatrist with the
DMH, to testify that she relied on other medical
evaluations in forming her opinion that defendant met all of the MDO
criteria.  However, the >Campos court found the trial court erred
in permitting the psychiatrist to testify that nontestifying
experts concurred in the psychiatrist’s opinion regarding
the defendant’s MDO status.  (name="SR;2313">Id. at pp. 307-308.) 
Campos reasoned: “ â€˜[D]octors can testify as to the basis
for their opinion [citation], but this is not intended to
be a channel by which testifying doctors can place the opinion of innumerable
out-of-court doctors before the jury’ â€ who are not subject to
cross-examination.  (Id. at
p. 308, quoting Whitfield v. Roth (1974) 10 Cal.3d 874, 895; People
v. Young (1987) 189 Cal.App.3d 891, 913 [“The rule which allows an expert
to state the reasons upon which his opinion is based may not be used as a
vehicle to bring before the jury incompetent evidence”].)

        However, the error in Campos
was found to be harmless, since the psychiatrist’s references to the other
professional opinions consumed only a small portion of her lengthy testimony
and the remainder of that testimony easily supported the jury’s determination
that defendant met the MDO criteria. 
Thus, it was not reasonably probable that a result
more favorable to Campos would have been reached in the
absence of the improper evidence.  (name="SR;1708">Campos, >supra, 32 Cal.App.4th at
pp. 308-309.)

        As in Campos, even
if the court erred in allowing Dr. Coles’s challenged testimony, the error was
harmless.  (People v. Watson
(1956) 46 Cal.2d 818, 836.) 
Dr. Coles offered this testimony on cross-examination, when he was
questioned as to whether reasonable treatment providers could come to different
conclusions about whether appellant could be diagnosed with pedophilia.  “ â€˜[A] broader range of evidence may be
properly used on cross-examination to test and diminish the weight to be given
the expert opinion than is admissible on direct examination to fortify the
opinion.  [Citation.]’  [Citation.]” 
(People v. Montiel (1993) 5 Cal.4th 877, 924.)  Furthermore, the court immediately admonished
the jury that the other diagnoses could not be considered for their truth, but
only as they supported Dr. Coles’s opinion. 
Based on the court’s clarifying admonishment and the overwhelming
evidence that appellant met the criteria of an SVP, we conclude it is not
reasonably probable that a result more favorable to him would have been reached
in the absence of the challenged evidence. 
(Campos, supra, 32 Cal.App.4th at pp. 308-309.)

>E.  Substantial Evidence Supports the Jury’s
Finding that Appellant’s Paraphilia Currently Exists

            Appellant next challenges the sufficiency of the evidence
to support his SVP commitment.  He
argues, “with respect to proof of the ‘currency’ of the claimed disorder, there
was a stand-off between state and defense experts in terms of the continued
existence of appellant’s pedophilia and, if it exists, whether he is able to
control his urges and impulses.”  In
questioning the “partially-informed judgments” of the prosecution’s experts,
appellant notes that he “had never been found with pornographic contraband, he
had never acted in a way that would reflect on the existence of pedophilic
urges . . . , and he had not articulated in past meetings with
psychologists that he experienced fantasies or distress rooted in a current
medical condition.”

        “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.]” 
(People v. Poe (1999) 74 Cal.App.4th 826, 830; People v.
Mercer (1999) 70 Cal.App.4th 463, 466 (Mercer).)  Generally, “the direct evidence of one
witness who is entitled to full credit is sufficient for proof of any
fact.”  (Evid. Code, § 411.)  It is up to the fact finder to decide what
weight to give the expert opinions.  (See
In re Scott (2003) 29 Cal.4th 783, 823.)

        It is true that “[a]n expert’s opinion which rests upon
guess, surmise or conjecture, rather than relevant, probative facts, cannot
constitute substantial evidence.  [Citations.]” 
(Garza v. Workmen’s Comp.App. Bd. (1970) 3 Cal.3d 312, 318,
fn. 3.)  However, the record does
not demonstrate that the prosecution’s experts’ diagnoses
or opinions in this case were so flawed. 
Instead, the record shows that the People’s experts considered name="SR;7365">appellant’s full history and relied upon established DSM-IV
diagnostic criteria and narrative descriptions of the mental disorders
in making their present diagnoses.  In
assessing the risk of reoffense,
they considered the Static 99 and other studies and applied their own clinical
judgment.  They explained in detail the
specific risk factors they considered relevant.  Both experts testified that pedophilia is
generally understood by the profession to be a chronic condition and explained
their reasons for determining that appellant’s mental name="SR;7461">disorder persists. 
Consequently, the opinions of the prosecution’s experts were not a
matter of pure speculation or guesswork and, therefore, their testimony
constituted substantial evidence supporting the jury’s verdict.  (See Mercer,
supra, 70 Cal.App.4th at
pp. 466-467.)

            In a related argument, appellant claims the jury
was “left with no real guidance about what ‘evidence’ is necessary to prove a
disorder ‘currently’ plagues an individual.” 
However, he cites to no portion of the record where he requested an additional
instruction on this point and he has not, in his appellate briefs, suggested
clarifying language.  “Once the trial
court adequately instructs the jury on the law, it has no duty to give
clarifying or amplifying instructions absent a request.  [Citation.]” 
(Butler, supra, 187 Cal.App.4th at p. 1013.)  Appellant’s claim is without merit.

F. Appellant’s Commitment Did Not Violate Due Process for
Lack of Effective Treatment

 

            Appellant contends his involuntary and indefinite
hospitalization under the SVPA violates due process because the evidence failed
to establish he would receive appropriate and effective treatment during his
commitment.  He argues that if “the state
has nothing to offer in the way of meaningful treatment, then it cannot be
allowed to simply lock away human beings based on speculative anxiety and fear
that appellant or others might commit a sexual crime if released.”

        Our Supreme Court rejected a similar due process challenge in
Hubbart v. Superior Court (1999)
19 Cal.4th 1138 (Hubbart).  There, the defendant asserted that
involuntary confinement as an SVP violates due process “unless it is coupled
with a statutory guarantee of treatment providing a ‘realistic opportunity to
be cured.’ â€  (Id. at p. 1164.)  At the
outset, the court rejected the suggestion that “the Legislature cannot
constitutionally provide for the civil commitment of dangerous mentally
impaired sexual predators unless the statutory scheme guarantees and provides
‘effective’ treatment.”  (Ibid.)  Amenability to treatment is not required for
a finding that an individual is an SVP, nor is it required in order to receive
treatment as an SVP.  (§ 6606, subd.
(b).)

        Appellant primarily relies upon People v. Feagley
(1975) 14 Cal.3d 338, but that case was distinguished in Hubbart, which explained, “We invalidated
the MDSO procedure under which [Mr.] Feagley was committed because it resulted
in a complete denial of treatment under conditions of confinement so penal as
to constitute ‘cruel and unusual punishment.’ 
[Citation.]”  (Hubbart, supra, 19 Cal.4th at
pp. 1167-1168, fn. 29.) 
Appellant’s situation can be similarly distinguished from the situation
in Feagley.  We conclude appellant’s claim is foreclosed
by Hubbart, supra,
19 Cal.4th 1138.

            G.  The SVPA Is Not an Unconstitutional Ex Post
Facto Law and Does Not         Improperly
Shift the Burden of Proof or Violate Appellant’s Right to Equal
Protection

        We next consider various constitutional challenges posed by
appellant to the latest version of the SVPA. 
As originally enacted, the SVPA provided for a two-year commitment,
established procedures for release of an SVP before the expiration of the
two-year period, and allowed recommitment upon expiration of the two-year
period only if it was proved beyond a reasonable doubt that the person
currently met the statutory criteria.  (People
v. McKee (2010) 47 Cal.4th 1172, 1185-1186 (McKee I).)

            In November 2006, the SVPA was amended to make it more
difficult for an SVP to obtain release. 
“[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 [SVPA].  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 [or her] own, is able to bear the burden of
proving by a preponderance of the evidence that he [or she] 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 [or her]
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 1187-1188, fn. omitted.)

            Appellant contends the post-Proposition 83 SVPA violates
his constitutional right to due process because it imposes on him “the burden
to prove by a preponderance of the evidence that he . . . is entitled
to release” after being committed as an SVP. 
He also contends the SVPA violates the federal constitutional
prohibition against ex post facto laws,
because it is punitive and was applied to his conduct prior to its
enactment.  These contentions were
considered and rejected by our Supreme Court in McKee I.  In McKee
I, supra, 47 Cal.4th at page
1195, the court held the amended SVPA does not violate the ex post facto clause
of the federal Constitution. 
Additionally, in McKee I, the
court concluded that “the requirement that [an individual], after [an] initial
commitment, must prove by a preponderance of the evidence that he [or she] is
no longer an SVP does not violate due process.” 
(47 Cal.4th at p. 1191.)  We
are bound by the decisions of our Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)  Therefore,
we reject appellant’s due process and ex-post facto claims.

            Appellant also contends his involuntary SVP commitment
violates his federal constitutional right to equal protection because the SVPA
treats him less favorably than similarly situated individuals committed under
other statutes, such as MDO’s, individuals who have found to be not guilty by
reason of insanity (NGI’s) and criminal defendants sentenced to life in
prison.  In McKee I, supra, 47 Cal.4th at page
1203, the Supreme Court found SVPs and MDOs are similarly situated because,
inter alia, both “ â€˜have been found, beyond a reasonable doubt, to suffer
from mental disorders that render them dangerous to
others. . . .  At the end
of their prison terms, both have been civilly committed to the [DMH] for
treatment of their disorders. . . .  [T]he purpose of the MDO Act and the SVPA is
the same: to protect the public from dangerous felony offenders with mental
disorders and to provide mental health treatment for their disorders.’  [Citations.]” 
(Ibid.)  The court concluded the disparate treatment
afforded SVP’s and MDO’s under the law, whereby SVP’s suffer indefinite
commitment and carry the burden of proving they should no longer be committed,
“raises a substantial equal protection question that calls for some
justification by the People.”  (Ibid.)  Accordingly, the Supreme Court remanded the
case 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 a
release from commitment.”  (Id. at
pp. 1208-1209, fn. omitted.)

        The remand in McKee I resulted in a 21-day evidentiary
hearing and a subsequent finding by the trial court that the People met their
burden to justify the disparate treatment of SVP’s.  (See People v. McKee (2012) 207
Cal.App.4th 1325, 1330 (McKee II).) 
McKee appealed the trial court’s decision, which was upheld by the
Fourth District in McKee II.

        The appellate court concluded that the People showed
“ â€˜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.  [Citation.]” 
(McKee II, supra,
207 Cal.App.4th at p. 1347.) 
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.) 
Thereafter, the Supreme Court denied a petition for review.  (People v. McKee, review den. Oct. 10,
2012, S204503.)  Subsequent appellate
decisions have followed McKee II. 
(See People v. McDonald (2013) 214 Cal.App.4th 1367, 1377 (>McDonald); Landau, supra, 214 Cal.App.4th at
pp. 45-48; People v. McCloud (2013) 213 Cal.App.4th 1076,
1085-1086; People v. McKnight (2012) 212 Cal.App.4th 860, 863-864.)

        Appellant argues the McKee II court misunderstood and
misapplied the strict scrutiny test and applied the wrong standard of
review.  These arguments were considered
and rejected in McDonald, supra,
214 Cal.App.4th at pages 1378-1382, and in Landau, supra, 214 Cal.App.4th at pages 47-48.  We agree with those decisions on this point.

        As explained in McKee II, we also agree that appellant’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
appellant, 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 children. 
We therefore reject defendant’s equal protection challenge.

            Appellant further contends SVP’s are treated unfavorably
as compared to criminals sentenced to life in prison.  He argues that he “has been given a life term
absent almost all of the procedural protections afforded those charged with
crimes, convicted and then sent to prison for life terms.”  However, appellant has not demonstrated that
the appellate court in McKee II incorrectly concluded that there was a
compelling state interest justifying the differential treatment of name=SearchTerm>SVP’s
as compared to MDO’s and NGI’s.  Appellant has not made any argument to show
that a different conclusion would pertain as to the differential treatment of name="SR;9438">SVP’s as compared to
individuals criminally convicted and sentenced to life terms.  Therefore, appellant’s claim fails because he
has not shown SVP’s are similarly situated to that class of criminals.

H.  Error in the Petition––Wrong Term of
Confinement Alleged

            Appellant claims he was denied due process because the
petition sought only a two-year commitment, but the trial court ordered an
indefinite commitment.  As we have
already explained, prior to 2006, an SVP was committed to the custody of the
DMH for a two-year term, and the term of commitment could be extended for
additional two-year periods.  (Former
§ 6604, as amended by Stats. 2000, ch. 420, § 3; former
§ 6604.1, as amended by Stats. 2000, ch. 420, § 4.)  On September 20, 2006, the Governor signed
into law Senate Bill No. 1128, which amended the SVPA
effective immediately.  (Stats. 2006,
ch. 337, § 62.)  Among other
changes, the amended SVPA provides for an indeterminate
term of commitment. 
(Stats. 2006, ch. 337, § 55.) 
Voters later approved Proposition 83, amending the SVPA
effective November 8, 2006.  (See Cal.
Const., art. II, § 10, subd. (a).) 
Proposition 83 amended the SVPA to provide that an
SVP’s commitment term is “indeterminate.”  (§ 6604; see § 6604.1.)  Currently, a person found to be an SVP under
the SVPA is subject to an
indeterminate term of involuntary civil commitment.  (People v. Whaley (2008) 160
Cal.App.4th 779, 785-787.)

            As the Attorney General concedes, the petition in
appellant’s case, which was filed just months after Proposition 83’s enactment,
reflected the earlier statutory scheme and incorrectly stated that the
prosecution was seeking to commit appellant for an additional period of two
years.  Appellant contends that because
“the state inexplicably requested only a two-year commitment . . .
[i]t cannot get more later on” and the commitment order should be amended to
reflect only a two-year commitment.  We
disagree.

            The
error was harmless for at least two reasons. 
First, appellant
does not claim he lacked actual notice that he was subject to an indeterminate
term.  After all, the indeterminate term
of commitment was the statutorily mandated term and was not the result of a
discretionary charging decision.  (Compare
People v. Mancebo (2002) 27 Cal.4th
735, 749.)  Evidencing that appellant was
not misled by the error in the petition, appellant filed a motion in the
trial court arguing that an indeterminate commitment would violate his due
process and equal protection rights.  In
other words, he was perfectly aware that the district attorney was seeking an
indeterminate sentence.

            Second,
appellant cannot show how the petition’s erroneous reference to a two-year
term, instead of an indeterminate term, had any affect on his defense.  In People v. Carroll (2007) 158
Cal.App.4th 503,
immediately prior to trial seeking to extend defendant’s commitment as an SVP,
the prosecutor struck the petition’s language name="SR;9054">seeking a two-year
term and substituted language seeking an indeterminate
term.  (Id. at
pp. 507-508.)  Thereafter the
appellate court rejected the defendant’s argument that “the law in effect at
the time the petition was filed should control, and so
the trial court was authorized to recommit [the defendant] only for a name="SR;9112">two-year, not an
indeterminate, term.” 
(Id. at pp. 508-509.) 
The court reasoned that the amendment to the petition
under the SVPA was timely and that the allegations against which the defendant
had to defend, that is, that he had a current mental disorder and he was likely
to engage in sexually violent criminal behavior in the future, were name="SR;5403">not affected by the amendment.  (Id. at p. 512.)  The Carroll
court also emphasized that “the petition at all times referred to the
applicable code section; the statute itself gave notice of the increased
commitment term, and [defendant] was presumed to be aware of its
existence.  [Citations.]”  (Ibid.)  Thus, for the reasons stated in name="SR;5456">Carroll, we reject appellant’s claim that he was
deprived of procedural due process.

IV.

Disposition>

            The judgment is affirmed.

 

 

 

 

 

                                                                                    _________________________

                                                                                    RUVOLO,
P. J.

 

 

We concur:

 

 

_________________________

REARDON, J.

 

 

_________________________

HUMES, J.