P. v. Philips
Filed 4/15/13 P. v. Philips CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN CAREY PHILIPS,
Defendant and Appellant.
D060912
(Super. Ct.
No. MH102766)
APPEAL from
an order of the Superior Court
of
Edward P. Allard III, Judge. Affirmed.
John Carey
Philips appeals an order involuntarily committing him for an indeterminate term
to the custody of the California Department of Mental Health (DMH) after a jury
found him to be a sexually violent
predator (SVP) under the amended Sexually Violent Predators Act (SVPA) within the meaning of Welfare
and Institutions Code
name="_ftnref1" title="">[1]
section 6600 et seq. Philips contends
the order must be reversed because the SVPA violates: (1) state and federal due
process guarantees by imposing an indeterminate term on SVP's and requiring
them to prove they no longer qualify as SVP's; (2) equal protection under the state and federal Constitutions; and
(3) ex post facto and double jeopardy
state and federal constitutional prohibitions.
Having considered Philips's constitutional contentions in light of
BACKGROUND
We omit a
discussion of the facts of the underlying convictions as well as the evidence
provided at the recommitment trial
because Philips does not challenge either the admissibility or the sufficiency
of the evidence to support his current commitment. Rather, this appeal presents
questions of law.
In May
2010, the People filed an amended petition seeking to commit Philips as an SVP
for an indeterminate term, alleging he was "convicted of a sexually
violent offense against one or more victims for which he was sentenced and who
has a diagnosed mental disorder that makes him a danger to the health and
safety of others, in that it is likely he will engage in sexually violent
predatory criminal behavior." In October 2011, a jury
found Philips qualified as an SVP and the court committed him to the DMH for an
indeterminate term.
DISCUSSION
I.
Due Process, Ex Post Facto, and Double
Jeopardy Claims
In his opening brief, Philips
contends the amended SVPA violates due process by "replacing the
two-year term with an indeterminate term and shifting the burden of proof onto
the defendant to prove his entitlement to release." He further contends
that the SVPA violates the constitutional prohibitions against ex post
facto laws and double jeopardy. Philips makes the claims to preserve them for federal
review, but acknowledges the California Supreme Court has rejected those
arguments in McKee I, supra, 47
Cal.4th 1172,
and we are bound by that case. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
II.
Philips
contends the indeterminate commitment term in the amended SVPA violates state
and federal guarantees of equal protection
because SVP's are treated differently from those offenders civilly committed
under the mentally disordered offender (MDO) statute (Pen. Code, § 2960 et
seq.) and the scheme for those found not guilty by reason of insanity (NGI). (Pen. Code, § 1620 et seq.) Specifically, Philips challenges
this court "misunderstood and misapplied the strict scrutiny
test." (Emphasis and capitalization
omitted.) Philips contends this court
"put itself in the position where it would find that McKee's equal
protection rights had not been violated, notwithstanding the strict scrutiny
test, if there was substantial evidence to support any reasonable inference
that SVPs are in some way more dangerous than MDOs or NGIs even if the
inferences are ones that are unlikely to be true. In effect, this Court applied the rational
basis test, not strict scrutiny."
Philips argues it is not enough to show that the Legislature or the
voters could reasonably believe that SVP's are more dangerous as a class, than
MDO's and NGI's. The disparate treatment
must still be necessary to protect society.
Philips further argues that "under the facts as presented in the
wrong conclusion with respect to its equal protection analysis." Philips argues we "basically ignored all
the evidence presented by McKee and acted as if all the evidence presented by
prosecution was indisputably true and believable."
A. Applicable
Law
In McKee I, the
California Supreme Court decided that SVP's
are similarly situated to other civilly committed persons, including MDO's and
NGI's. The court recognized the amended SVPA was potentially
unconstitutional in that similarly situated involuntary civilly
committed persons under other
statutory commitment regimes are not treated the same way as SVP's with regard
to commitment terms and burdens of proof for release. (McKee
I, supra, 47 Cal.4th
at p. 1207.) The case was
remanded to the trial court for an evidentiary hearing to allow the People an
opportunity to justify the disparate treatment.
(Id. at pp. 1207-1211.)
During the
pendency of this appeal, we decided McKee
II, and affirmed the trial court's finding that the People had met their
burden to justify the disparate treatment of SVP's. We concluded the People had shown that "
'notwithstanding the similarities between SVP's and MDO's [and NGI'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.' " (McKee II, supra, 207 Cal.App.4th at p. 1347.)
"Regardless of the shortcomings or inadequacy of the evidence on
actual sexual recidivism rates," the evidence "support[ed], by
itself, a reasonable inference or perception
that SVP's pose a higher risk of sexual reoffending than do MDO's or
NGI's." (Id. at p.
1342.) The California Supreme Court
denied review of McKee II, making our
ruling final.
B. Analysis
We
conclude we applied the correct standard of review in McKee II, where we stated:
"[W]e review de novo the trial court's determination whether the
Act, as amended by Proposition 83, violates his equal protection rights. We independently determine 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 Act." (McKee
II, supra, 207 Cal.App.4th at p.
1338.) Philips fails to explain how the
facts in his case are so different from those presented in McKee II as to warrant an individualized adjudication of his equal
protection claim. His unsupported arguments do not persuade
us to revisit our holding; therefore, we decline his request to remand the
matter for an evidentiary hearing.
DISPOSITION
The order is affirmed.
O'ROURKE, J.
WE CONCUR:
McINTYRE, Acting P. J.
IRION, J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code unless otherwise stated.
name="_ftn2" title="">[2] We grant Philips's request to take judicial notice of the
trial court's statement of decision following remand proceedings.
