P. v. Garcia





















Filed 1/29/13 P. v. Garcia CA1/1

Opinion following rehearing















>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
ONE










>

THE PEOPLE, Plaintiff and Respondent, v. XAVIER GARCIA, Defendant and Appellant.

A125107 (Solano County Super. Ct. No. VC35874)

The jury returned a finding that
defendant is a sexually violent predator
(SVP) as defined in the Sexually Violent Predator Act (Welf. & Inst. Code,
§ 6600 et seq.) (the Act),href="#_ftn1"
name="_ftnref1" title="">[1]
and the trial court imposed an involuntary civil
commitment upon him for an indeterminate period. In this appeal defendant argues that the
trial court erred by admitting testimony on the nature of treatment received by
committed sexually violent predators (SVP’s), and complains that he was
committed on the basis of invalid evaluation regulations. He also claims that the Act, as amended by
Proposition 83 in 2006, violates due
process, ex post facto, double jeopardy and equal protection principles.

We find no error in the admission of
relevant testimony that described the treatment of SVP’s. We further conclude
that reliance on invalid regulations during the evaluation process of defendant
did not result in prejudice to him. We
conclude that in accordance with the California Supreme Court’s opinion in >People v. McKee (2010) 47 Cal.4th 1172 (>McKee I), the current version of the Act
does not contravene due process, ex post facto or double jeopardy
considerations. Defendant established
disparate treatment of SVP’s for equal protection purposes, but pursuant to the
discussion in People v. McKee (2012)
207 Cal.App.4th 1325 (McKee II),
constitutional justification for the distinction exists. We therefore affirm the judgment.

>STATEMENT OF FACTS

In March of 2005, and January of
2007, two petitions were filed to extend defendant’s commitment to the State
Department of Mental Health (the Department) under the Act, as amended by
Proposition 83, an initiative enacted on November 7, 2006, and effective the
next day. (People v. Shields (2007) 155 Cal.App.4th 559, 562–563.) The petitions were consolidated, and a jury
trial on the petitions was held in May of 2009.

At trial, the prosecution presented href="http://www.mcmillanlaw.com/">expert opinion testimony from Dr.
Douglas Korpi, a clinical forensic psychologist, who reviewed defendant’s
criminal records and interviewed him extensively. Dr. Korpi recounted defendant’s lengthy
history of sexual offenses, which began in October of 1966, when he was 16
years old, and continued with regularity – other than a period from 1985 to
1991— until his most recent incarceration in 1993. Defendant’s convictions range from
misdemeanor annoying or molesting a child, to lewd and lascivious conduct with a
child, failure to register as a sex offender, rape, assault with intent to
commit rape, attempted rape, assault with a deadly weapon, kidnapping, and
attempted burglary. Four of the crimes
he has committed are classified as “sexually violent predatory offenses.”href="#_ftn2" name="_ftnref2" title="">[2]


Defendant was convicted most
recently for an attempted burglary he committed in October of 1993, and for
which he received a state prison term of 13 years. He was apprehended after he attempted to
forcibly enter a residence carrying a “gym bag” full of items that comprised a
“rape kit.” Defendant admitted that he
intended to rape a 12-year-old child named Tiffany in the residence.href="#_ftn3" name="_ftnref3" title="">[3]


Based on defendant’s history and the
interviews he conducted, Dr. Korpi diagnosed defendant as suffering from
nonexclusive pedophilia, a sexual attraction to children, coupled with
paraphilia, an “aggressive sexuality” known as “the rape diagnosis.” Dr. Korpi essentially characterized defendant
as a “sexually violent predator” who is a “rapist and a child molester;” he
“likes little kids and to rape women.”
Dr. Korpi also offered a “provisional antisocial personality diagnosis”
for defendant that “almost meets the criteria for a full-blown diagnosis of
antisocial.” Defendant “feels regret”
and “self-recrimination” for his
crimes, but his sexual disorders cannot be cured; at best, his deviant criminal
behavior may be controlled or avoided with treatment. Defendant has marginally participated in six
different treatment programs over the years, both in custody and while released
on parole, without control of his conduct unless he is incarcerated. Defendant also admitted to Dr. Korpi that he
has frequently used drugs. Dr. Korpi
identified defendant’s drug abuse as a risk factor for reoffending when he is
not in custody.

Dr. Korpi testified that defendant
does not “give evidence of his pathology when he’s in custody,” as is common
for those with his disorders, but has “trouble controlling” the disorders,
“predisposing [him] to sexual offenses” when he is released. Dr. Korpi conducted a “risk analysis” of
defendant based on assessment of various known “risk factors” for
reoffending. Following the risk analysis
and evaluation of defendant’s individual circumstances – including his age,
failure to successfully participate in treatment, and lack of monitoring if
released – Dr. Korpi concluded that defendant is about “40 percent” likely to
reoffend. He offered the opinion that
defendant, placed in that percentage group, “poses a serious and well-founded
risk to the community to commit another sexually violent offense” if he is not
maintained in custody.

The prosecution also offered
testimony from another forensic psychologist, Dale Arnold, who interviewed
defendant in July of 2000. Defendant
acknowledged to Dr. Arnold that he had a “sexual preoccupation” that was
difficult to control. He also admitted
that when he committed the attempted burglary in 1993, he went “to that home
with the purpose in mind of raping Tiffany.”

Dr. Jeremy Coles, a href="http://www.sandiegohealthdirectory.com/">clinical and forensic
psychologist, testified that he reviewed defendant’s criminal history file
and conducted an interview of him in October of 2005. Defendant’s history until the time of his
last incarceration in 1993 indicates that he has engaged in “repetitive rape
and/or molestation of either nonconsenting females or children, multiple rounds
of treatment, multiple rounds of custody,” and has been “generally unable to
stay out in the community for less than a year without committing another sex
offense starting at the age of 16 and winding up through the age” of 43. Dr. Coles concluded that defendant suffers
from “paraphilia not otherwise specified, sex with nonconsenting others,”
pedophilia, and antisocial personality disorder. He agreed with Dr. Korpi that defendant’s
conditions “don’t go away,” and cannot be cured. Only the symptoms can be controlled with
treatment, and defendant has not “participated in sex offender treatment”
offered to him. Defendant expressed that
he does not have a “sex problem,” is not at risk to reoffend, and does not
intend to “go into treatment for sex” if he is released. Based on defendant’s high-risk score of seven
on the Static-99 risk assessment, Dr. Coles believes that defendant has “both
emotional and volitional deficits that predispose him to commit sex crimes of a
sexually violent nature,” and is at high risk to commit sexually violent
predatory offenses if released.

In defendant’s testimony he admitted
and recounted the offenses described in his criminal history, but claimed that
he had not committed any other offenses.
The motivation for the offenses, asserted defendant, was essentially his
interest in having sex with the victims, whether they consented or not. Defendant realizes “there’s no cure” for his
illness. He testified that if he “was to
be released” he would go to Texas to live with his family, where he was “set up
with a job” in his cousin’s textile business.
His family knows about his “sexual past,” and he would disclose his
prior offenses to others. He would also
register as a sex offender and “get counseling.” He would not become involved “in a
relationship with a woman who has kids.”

The defense presented testimony from
nurses and a licensed psychiatric technician who worked in the state facilities
in which defendant resided. They had
regular contact with defendant since 1993, and did not observe any violent,
sexually inappropriate behavior on his part.

Alan Abrams, a href="http://www.sandiegohealthdirectory.com/">physician and psychiatrist,
testified for the defense that he interviewed defendant, administered tests to
him, and reviewed his records along with the evaluations of other SVP
evaluators. Dr. Abrams found that
defendant has a “personality disorder” with “schizoid and alexithymic
features,” but does not currently have a qualifying diagnosed mental disorder
that renders him a person classified as dangerous for purposes of an SVP
commitment. He agreed that defendant may
have met the criteria for “paraphilia” and “nonexclusive pedophilia” in the
“1970’s and 1980’s,” but in light of the absence of any behavioral problems
other than “minor write-ups” since his incarceration in 1993, those disorders
are currently “either in remission or have disappeared.” Dr. Abrams testified that he does not believe
defendant presents a serious and substantial danger of reoffending if
released. Defendant’s age of nearly 60
places him in a category of elderly offenders that have a “1 in 20 to 1 in 10
risk of reoffending,” which is not significant and “very easily managed.” Defendant’s risk of reoffending, according to
Dr. Abrams, is between five and ten percent.

Dr. Robert Halon, a licensed
psychologist, also interviewed defendant, administered formal psychological
tests to him, and evaluated his history and diagnoses for the defense. He testified that defendant does not
currently have “any form of mental disorder,” although he exhibits signs of
antisocial attitudes and characteristics.
Dr. Halon considered “paraphilia NOS [not otherwise specified]” to be a
“prime candidate” for defendant’s “sexually deviant” behavior when he examined
him in 2005, but found that a current differential diagnosis of defendant was “extremely difficult to
make.” Defendant may suffer from
“paraphilic coercive disorder,” but “all of his sexual behavior” may also have
been “related to undiagnosed Asperger’s disorder.” Dr. Halon theorized that the absence of “any
sign of sexual deviance or sexual deviant interest” during the last 15 years of
defendant’s incarceration and close observation suggests that he does not
suffer from an uncontrollable mental disorder.


Michael Raymond, the Native American
Chaplin at Coalinga State Hospital, testified for the defense he teaches the Medicine
Wheel classes, a 12-step recovery program attended by defendant which uses
“Native American spiritual concepts” to treat addictions and other
compulsions. Defendant fully
participated in the classes for the past three years, completed the program, and
became a mentor to others. While doing
so his attitude became less suspicious, angry and fearful.

>DISCUSSION

I. Testimony on the Sexually Violent Predator
Treatment Program.

Defendant asserts that the trial
court erred by admitting testimony from Dr. Korpi in which he described the
“quality and content of the sexually
violent predator treatment program offered by the Department of Mental Health,”
known as the “Phase Program.” Although
the program was available to defendant, he did not participate, so he argues
that “this information was completely irrelevant.” He adds that the evidence was nevertheless
“highly prejudicial,” since it suggested to the jury that “it would be safer
not to release him until he completed the treatment program.”href="#_ftn4" name="_ftnref4" title="">[4]


We proceed with our inquiry
from the fundamental premise that, “ ‘No evidence is admissible except
relevant evidence.’ (Evid. Code, §
350.) ‘ “Relevant evidence” means
evidence, including evidence relevant to the credibility of a witness or
hearsay declarant, having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.’ (Evid. Code, § 210.)” (People v. Honig (1996) 48 Cal.App.4th
289, 342.) “ ‘The test of relevance
is whether the evidence tends “logically, naturally, and by reasonable
inference” to establish material facts such as identity, intent, or
motive. [Citations.] The trial court retains broad discretion in
determining the relevance of evidence.’
[Citations.]” (People v.
Cunningham (2001) 25 Cal.4th 926, 995.)
However, “A trial court has no discretion to admit irrelevant
evidence.” (People v. Honig, supra, at p. 343.)
We apply an abuse of discretion standard to our review of the trial
court’s decision to admit the evidence.
(People v. Lewis (2008) 43
Cal.4th 415, 502; People v. Hamlin
(2009) 170 Cal.App.4th 1412, 1449.)
“ ‘A trial court abuses its discretion when its ruling “fall[s]
‘outside the bounds of reason.’ ”
[Citation.]’ [Citation.]” (People
v. Sisneros (2009) 174 Cal.App.4th 142, 151.)

Defendant
acknowledges that his failure to participate in the Phase Program was relevant,
and challenges only “the description of and praise for the treatment
program.” Dr. Korpi testified that the
Phase Program is a “new and improved version” of the programs used at
Atascadero when defendant was committed there on multiple occasions, and uses a
“relapse prevention model.” According to
Dr. Korpi, the current program seeks to discover and confront sex offenders
with the “behavior chains” and “risk factors” that resulted in their sexually
deviant behavior, so the offenders may then be able to avoid reoffending when
they are released into the community.
Defendant had been offered the opportunity to enroll every three months,
but has refused to participate. Dr.
Korpi also agreed that defendant’s failure to partake in the program “was not a
good factor for him.”

We find
that the explication of the sex offender treatment program by Dr. Korpi was
relevant, notwithstanding defendant’s failure to participate in it. The description of the available treatment
program, along with defendant’s refusal to take advantage of it, offered the
jury pertinent information to assess the likelihood that he will engage in sexually violent criminal
behavior if free in the community.
Further, the
nature of the treatment offered to defendant may have assisted the jury in
evaluating the legitimacy of the reasons for defendant’s refusal to participate
in it. Finally, evidence of the
characteristics of the treatment plan and the potential advantages to the
offender if a commitment is continued is also relevant to the jury’s
determination of whether the person should be committed for an additional indeterminate term to
custody for appropriate confinement and treatment. After all, it is the prosecution that must
sustain the burden of proof – beyond a reasonable doubt – in the SVP
prosecution. The challenged testimony
from Dr. Korpi aided the jury’s understanding of the treatment schemes
available to this defendant; this is particularly so in light of defendant’s
claim that he did not require further treatment.

We further conclude that the
testimony was not subject to exclusion under Evidence Code
section 352. Even relevant
evidence may be subject to exclusion in the discretion of the trial court under
Evidence Code section 352 “if its probative value is substantially outweighed
by the probability that its admission will . . . create substantial
danger of undue prejudice . . . .” “ ‘The prejudice which exclusion of
evidence under Evidence Code section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from relevant, highly
probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its
etymological sense of “prejudging” a person or cause on the basis of extraneous
factors. [Citation.]’ [Citation.]”
(People v. >Zapien (1993) 4 Cal.4th 929, 958; >People v. Harris (1998) 60 Cal.App.4th
727, 737.) “ ‘ “The
‘prejudice’ referred to in Evidence Code section 352 applies to evidence which
uniquely tends to evoke an emotional bias against defendant as an individual
and which has very little effect on the issues.
In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’
[Citation.]” (>People v. Coddington (2000) 23 Cal.4th
529, 588.) Any prejudice associated with
admission of the evidence was not extraneous to its probative value. Defendant’s refusal to engage in treatment
may have cast him in an unfavorable light, but the nature of the treatment was
not prejudicial to him. The testimony was not
particularly lengthy, and nothing indicates to us that the jury would have
considered it for an improper purpose. Thus,
while the probative value of the evidence was not strong, we agree with the
trial court’s assessment that it was also not outweighed by any emotional bias
or other prejudice it may have evoked against defendant. The trial court did not abuse its discretion
by admitting the evidence.

II. The Department of Mental
Health’s Reliance on Invalid Regulations to Recommend a Commitment Proceeding.


We turn to
defendant’s complaint that his current commitment was illegally based on
regulations for evaluation protocol promulgated by the Department of Mental
Health (the Department) that have been found “void.” Defendant’s argument is that due to the
invalidity of the “illegally adopted” regulations, he was “not found to qualify
as a sexually violent predator by two evaluators pursuant to the required
standardized assessment protocol,” as required by the Act. Therefore, his argument proceeds, the
“district attorney lacked the statutory authority” to file a commitment
petition, and the trial court “lacked fundamental jurisdiction over his case”
to issue an SVP commitment order.
Defendant maintains that his “state and federal due process rights” have
been violated by the “illegal” commitment, and we must “order his immediate
release.” In the alternative, he
suggests that we order a remand with directions to require the Department to
“re-evaluate” him in accordance with its recently promulgated “final
regulations.”

We initiate our examination
of defendant’s claim that invalid regulations have tainted his commitment by
briefly outlining the procedural requirements that attach to an SVP proceeding. The Act mandates compliance with an elaborate
network of administrative and judicial procedures, which commences with a
screening of the inmate’s records by prison officials to determine whether he
or she is likely to be an SVP; if so, the inmate is referred to the Department
of Mental Health for a full evaluation of SVP criteria under section 6600. (§ 6601, subd. (b).) Two mental health professionals designated by
the Department then must “evaluate the person in accordance with a standardized
assessment protocol, developed and updated by the State Department of Mental
Health, to determine whether the person is a sexually violent predator as
defined in this article. The
standardized assessment protocol shall require assessment of diagnosable mental
disorders, as well as various factors known to be associated with the risk of
reoffense among sex offenders. Risk
factors to be considered shall include criminal and psychosexual history, type,
degree, and duration of sexual deviance, and severity of mental disorder.” (Id.,
subd. (c).) If the evaluators agree the
person meets those criteria, the director of the Department must forward a
request for a commitment petition to the county where the offender was
convicted. (Id., subd. (d).) Judicial
proceedings then are initiated only if the county’s legal counsel concurs with
the director’s recommendation and the district attorney or county counsel files
a commitment petition in the superior court.
(Id., subd. (i).)

“Once the petition is filed, a superior
court judge must ‘review the petition and determine whether the petition states
or contains sufficient facts that, if true, would constitute probable cause to
believe that [the defendant] is likely to engage in sexually violent predatory
criminal behavior upon his or her release.’
(§ 6601.5.) If the judge makes
that determination from this facial review, the judge orders the defendant
detained in a secure facility pending a probable cause hearing under section
6602.” (People v. Hayes (2006) 137 Cal.App.4th 34, 42–43.) If the trial court determines there is
probable cause, the SVP petition proceeds to trial. (Cooley
v. Superior Court (2002) 29 Cal.4th 228, 245.) Either party may demand a jury trial. Commitment may be ordered only if the
defendant is found to be an SVP by a standard of proof beyond a reasonable
doubt, and any jury verdict must be unanimous.
(People v. Hayes, supra, at p.
44; see also §§ 6603, subds. (a), (b), (e) & (f), 6604.)

In 2008, the Office of
Administrative Law (OAL), which is charged with, among other functions,
enforcing the requirement of adoption of every administrative agency guideline
that qualifies as a “regulation” according to specific procedures (Gov. Code,
§ 11340.5, subds. (a) & (b)), found that provisions of the
Department’s assessment protocol used to evaluate potential SVP’s are invalid
regulations, adopted without compliance with the Administrative Procedure Act
(APA). (People v. Medina (2009) 171 Cal.App.4th 805, 813–814 (>Medina).)href="#_ftn5" name="_ftnref5" title="">>[5] The OAL found only that the protocol did not
comply with California administrative law governing how state agencies adopt
regulations; it did not evaluate the clinical value or substantive merit of the
protocol. (2008 OAL Determination No. 19
(Aug. 15, 2008) p. 1.) “A regulation
found not to have been properly adopted is termed an ‘underground
regulation.’ ‘ “An underground
regulation is a regulation that a court may determine to be invalid because it
was not adopted in substantial compliance with the procedures of the [APA].” ’ [Citations.]
An OAL determination that a particular guideline constitutes an
underground regulation is not binding on the courts, but it is entitled to
deference.” (Medina, supra, at pp. 813–814.)
The use of a non-APA-compliant protocol in the SVP screening process
prior to 2009 has generated claims, like the one made by defendant here, that
SVP judgments are invalid and must be reversed.

Even if we assume that defendant was
evaluated during the screening process assessment protocol pursuant to an
invalid regulation, we find, as this court previously did in >Medina, that defendant is not entitled
to relief in this appeal. The reliance
by the Department upon a mental health evaluation protocol that was
subsequently invalidated by the OAL does not undermine the ultimate legitimacy of defendant’s
commitment in the present case.

First, defendant never challenged
any aspect of the commitment procedure on the ground that the case was
initiated pursuant to an “underground regulation” under the APA. His claim of impropriety in the assessment
protocol was one that was most appropriately directed to the trial court. (See People
v. Superior Court (Ghilotti)
(2002) 27 Cal.4th 888, 894, 912–913; In
re Wright (2005) 128 Cal.App.4th 663, 672.)
Much like the forfeiture rule applied to errors in criminal proceedings
prior to the filing of the information, defendant’s failure to object to
claimed defects in assessment protocol in a timely fashion prior to trial
prevented alleviation of the error in the trial court, may result in
misallocation of judicial resources, deprives this court of the necessary
factual basis for review, and improperly invites the defendant to speculate on
the result of the trial and raise the objection following an unfavorable
verdict. (See People v. Jennings (1991) 53 Cal.3d 334, 357.) Forfeiture of the claim on appeal resulted
from defendant’s failure to object in the trial court. (Medina,
supra, 171 Cal.App.4th 805, 818.)


More importantly, defendant has
failed to demonstrate that he suffered prejudice by the use of an invalid
regulation in the screening process. (>Medina, supra, 171 Cal.App.4th 805,
819–820.) The definitive rule
established by the California Supreme Court in People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, is that illegalities
in criminal preliminary hearing proceedings which are not “jurisdictional in
the fundamental sense” are not reversible per se on an appeal following the
subsequent trial. Rather, such
illegalities must be reviewed “under the appropriate standard of prejudicial
error and shall require reversal only if defendant can show that he was
deprived of a fair trial or otherwise suffered prejudice as a result of the
error at the preliminary examination.” (>Ibid.) The rule articulated in >Pompa-Ortiz applies equally to denial of
fundamental substantive rights and technical irregularities, and to pretrial
SVP proceedings as well as preliminary hearings. (In re
Ronje (2009) 179 Cal.App.4th 509, 517; People
v. Hayes, supra, 137 Cal.App.4th 34, 50–51; People v. Butler (1998) 68 Cal.App.4th 421, 435.)

“ ‘Essentially, jurisdictional
errors are of two types. “Lack of
jurisdiction in its most fundamental or strict sense means an entire absence of
power to hear or determine the case, an absence of authority over the subject
matter or the parties.” [Citation.] When a court lacks jurisdiction in a
fundamental sense, an ensuing judgment is void, and “thus vulnerable to direct
or collateral attack at any time.”
[Citation.] [¶] However, “in its
ordinary usage the phrase ‘lack of jurisdiction’ is not limited to these
fundamental situations.”
[Citation.] It may also “be
applied to a case where, though the court has jurisdiction over the subject
matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or
power) to act except in a particular manner, or to give certain kinds of
relief, or to act without the occurrence of certain procedural
prerequisites.” [Citation.] “ ‘[W]hen a statute authorizes [a]
prescribed procedure, and the court acts contrary to the authority thus
conferred, it has exceeded its jurisdiction.’ ” [Citation.]
. . .’ [Citations.]” (Medina,
supra, 171 Cal.App.4th 805, 815–816.)


This court
reached the conclusion in Medina, and
other courts have uniformly concurred, that use of the evaluations conducted
pursuant to the invalid assessment protocol does not deprive the trial court of
the “fundamental jurisdiction” to hear and determine the subsequently filed
SVPA commitment petition. (>Medina, supra, 171 Cal.App.4th 805, 815;
see also In re Ronje,
supra, 179
Cal.App.4th 509, 517.) “The trial
court has the power to hear the petition notwithstanding the error in using the
invalid assessment protocol.” (>In re Ronje, supra, at p. 518.) The court in Medina explained: “Although [the defendant] contends that the
initial trial court lacked ‘fundamental’ jurisdiction over his petition,
thereby producing a void judgment, his claim does not call into question the
court’s personal or subject matter jurisdiction. As to personal jurisdiction, there is no
evidence to suggest, and [the defendant] does not contend, that he lacked
minimum contacts with the State of California [citation] or that he was not
served with the documents necessary to initiate the proceedings. [Citations.]
As to subject matter jurisdiction, the superior court was undoubtedly
the appropriate court to hear the commitment petition [citations], and there is
no claim of untimeliness.” (>Medina, supra, at p. 816.) The validity and even the existence of the
psychological evaluations are not even at issue at either the probable cause
hearing or at trial. “[O]nce the
petition is filed a new round of proceedings is triggered. [Citation.]
After the petition is filed, rather than demonstrating the existence of
the two evaluations, the People are required to show the more essential fact
that the alleged SVP is a person likely to engage in sexually violent predatory
criminal behavior. [Citation.] In short, like many other matters subject to
the principles governing pleas in abatement, the requirement for evaluations is
not one affecting disposition of the merits; rather, it is a collateral
procedural condition plainly designed to ensure that SVP proceedings are
initiated only when there is a substantial factual basis for doing so.” (People
v. Superior Court (Preciado )
(2001) 87 Cal.App.4th 1122, 1130 (Preciado); see
also People v. Scott (2002) 100
Cal.App.4th 1060, 1063.) The argument
that evaluations based on invalid assessment protocols are a procedural
prerequisite to jurisdiction, was, the court stated in Medina, supra, at page 816, “an argument that the court acted in
excess of its jurisdiction, rather than without fundamental jurisdiction.”

Thus, to obtain reversal in this
appeal defendant must demonstrate under the appropriate standard of prejudicial
error that he was deprived of a fair trial or otherwise suffered prejudice as a
result of use of the invalid preliminary evaluations. (People
v. Pompa-Ortiz, supra, 27 Cal.3d 519, 529; In re Ronje, supra, 179 Cal.App.4th 509, 517; People v. Hayes, supra, 137 Cal.App.4th 34, 50–51.) He has not done so. The 2008 OAL Determination No. 19 did not
suggest the assessment protocol was flawed or unreliable as an instrument for
assessing whether a person might be an SVP.
The 2008 OAL Determination No. 19 concerned only the issue whether the
assessment protocol was a regulation, and expressly stated it was not
evaluating its “advisability or . . . wisdom.” (2008 OAL Determination No. 19, >supra, p. 1.) Once the petition was filed, the People could
not and did not rely on the evaluations, but were required to separately show
“ ‘the more essential fact’ ” that defendant was an SVP. (People
v. Scott, supra, 100 Cal.App.4th 1060, 1063, quoting Preciado, supra, 87 Cal.App.4th 1122, 1130.) At the probable cause hearing, defendant had
the opportunity to challenge the evaluations and cross-examine the
evaluators. (People v. Hayes, supra, at p. 43.)
He has not established that the invalid assessment protocol was used at
the commitment trial, harmed his ability to mount a defense, or in any way
influenced the jury to reach the finding that he is an SVP. He received a full-blown trial at which he
was represented vigorously by counsel, and a jury found beyond a reasonable
doubt, without any reference to the evaluations, that he was an SVP within the
meaning of section 6600, subdivision (a)(1).
(People v. Hayes, supra, at p.
51.) Defendant does not challenge the
sufficiency of the evidence at either the probable cause hearing or the
commitment trial.

Further, there is no indication in
the record that had the petition been dismissed due to the use of noncompliant
evaluation protocol, abandonment of the commitment proceedings would have
ensued, or that, had the experts used compliant evaluation protocol, an
ultimate finding that defendant is not an SVP would have resulted. Whatever procedural irregularity occurred in
the Department’s use of an underground regulation in the clinical screening
process that found defendant meets the SVP criteria did not taint the jury’s
later independent legal determination beyond a reasonable doubt that defendant
is an SVP. (People v. Taylor, supra, 174 Cal.App.4th 920, 937–938; >Medina, supra, 171 Cal.App.4th 805,
814–815.)

Thus, defendant’s challenge
to the evaluations based on the invalid assessment protocol fails for lack of a
showing of no prejudice under the Pompa-Ortiz
rule. For the same reason, his claim his
trial counsel was ineffective for failing to challenge the evaluations in the
trial court also fails. (>Medina, supra, 171 Cal.App.4th 805,
819–820.)

III. The Current Act as a
Violation of Defendant’s Due Process, Ex Post Facto and Double Jeopardy Rights.

Next, defendant argues that the
procedures followed in his commitment action under the Act as amended in 2006
abridged his rights to due process, and contravened the prohibitions against href="http://www.fearnotlaw.com/">double jeopardy and ex post facto laws. We group these contentions together because,
as defendant acknowledges, the California Supreme Court recently declared in >McKee I, supra, 47 Cal.4th 1172, 1184, that the defendant’s due process,
double jeopardy, and ex post facto challenges to the Act, as amended in 2006 by
Proposition 83, are without merit. With
the decision in McKee I, the law is
settled that an indeterminate SVPA commitment, even after the 2006 amendment of
the Act, is a civil matter imposing no punishment, and thus neither violates
due process rights nor implicates ex post facto or double jeopardy concerns. (McKee
I, supra, at pp. 1188–1195.) We are
bound to follow McKee I to reach the
same conclusion here. (>Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455; People v.
Carlin (2007) 150 Cal.App.4th 322, 348.)

IV. The Current Act as a Violation of Defendant’s Equal Protection
Rights.

Defendant’s final contention is that
he was denied equal protection under the present version of the Act. He maintains that the law in its current
state “subjects sexually violent predators, but only sexually violent
predators, to an indeterminate civil commitment where the burden of proof is
placed upon the person to justify his release after the initial commitment and
where the person has no right to a jury
trial.” He argues that “[t]his
disparate treatment” of SVP’s in comparison to other “involuntary civil
commitment” – specifically, mentally disordered offenders (MDO’s) and those
acquitted due to a finding of not guilty by reason of insanity (NGI acquittees)
– “violates their constitutional rights under both the state and federal equal
protection clauses.”

The decision in McKee I resolved the equal protection claim presented by defendant
in his favor, although not definitively.
The court in McKee I found
“some merit” to the contention by the defendant that his indeterminate
commitment as an SVP violates his right to equal protection. (McKee
I, supra, 47 Cal.4th 1172, 1196.)
The court decided that SVP’s are similarly situated to MDO’s and NGI
acquittees for equal protection purposes, as all three classes of individuals
are involuntarily committed to protect the public from those who are
dangerously mentally ill. (>Id. at pp. 1203, 1207.) Relying on In re Moye (1978) 22 Cal.3d 457, and In re Smith (2008) 42 Cal.4th 1251, the court in >McKee I concluded that SVP’s “bear a
substantially greater burden in obtaining release from commitment” than MDO’s
and NGI acquittees. (>McKee I, supra, at pp. 1203,
1208–1209.) The court agreed with the
defendant that the People had not yet carried their burden of justifying the
differences between the SVP and NGI commitment statutes, but did “not conclude
that the People could not meet its burden of showing the differential treatment
of SVP’s is justified.” (>Id. at p. 1207.) Rather, the court “merely conclude[d] that it
has not yet done so. Because neither the
People nor the courts below properly understood this burden, the People will
have an opportunity to make the appropriate showing on remand. It must be shown that, 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 pp. 1207–1208.) The
matter was remanded to the trial court to determine whether the People could
demonstrate the requisite “constitutional justification” for the
distinction. (Id. at p 1208; see also id.
at pp. 1203, 1209.)

We granted rehearing and suspended
proceedings in the present appeal pending the finality of the equal protection
proceedings ordered in McKee I, supra,
47 Cal.4th 1172, 1208–1210. Following a
lengthy hearing on the constitutional justification for the disparate treatment
as directed in McKee I, the trial
court found the People presented substantial evidence to support a reasonable
perception that SVP’s pose a unique or greater danger to society than MDO’s and
NGI acquittees. (See >McKee II, supra, 207 Cal.App.4th 1325,
1347.) The evidence included expert
testimony that SVP’s pose a higher risk of reoffending than MDO’s or NGI’s (>id. at pp. 1340–1342), and evidence that
victims of sexual offenses suffer greater trauma than victims of other offenses
due to the intrusiveness and enduring psychological, physiological, social and
neuropsychological impacts of sexual assault or abuse. (Id.
at pp. 1342–1344.) The People in >McKee II also presented substantial
evidence that SVP’s have significantly different diagnoses, treatment plans,
motivations, degree or extent of compliance with treatment directives, and
success rates than MDO’s and NGI’s. (>Ibid.)
Finally, the evidence supported a reasonable inference that an
indeterminate, rather than a determinate (e.g., two-year), term of civil commitment
improves, rather than detracts from, the success of treatment plans for
SVP’s. (Ibid.)

On appeal, the Fourth District Court
of Appeal concluded that “the People on remand met their burden to present
substantial evidence, including medical and scientific evidence, justifying the
amended Act’s disparate treatment of SVP’s (e.g., by imposing indeterminate
terms of civil commitment and placing on them the burden to prove they should
be released). [Citation.] The People have 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.’ [Citation.] The People have shown ‘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 1325,
1347.)href="#_ftn6" name="_ftnref6" title="">[6]


The
California Supreme Court denied review in McKee
II, and for our purposes the McKee
proceedings are now final. We disagree
with defendant’s contention that McKee II
is a “badly flawed” opinion that “misunderstood and misapplied the strict
scrutiny test” delineated by the Supreme Court in McKee I.href="#_ftn7"
name="_ftnref7" title="">[7] We concur with the reasoning and holding of
the court in McKee II, which is the
case specifically demarcated by the California Supreme Court to resolve
defendant’s equal protection challenge presented in the appeal before us, and
others like it. (People v. McKnight (Dec. 12, 2012, A123119) ___ Cal.App.4th ___
[2012 Cal.App. Lexis 1325, *4–*5].) We
are also persuaded that the scope of the decision in McKee II is not restricted to the defendant in that case alone or
only to those SVP’s convicted of crimes against children, like his, but rather
its holding applies to the entire class of SVP’s. We therefore conclude that defendant’s
recommitment under the SVPA does not violate his href="http://www.fearnotlaw.com/">equal protection rights.href="#_ftn8" name="_ftnref8" title="">[8]


Accordingly, the order of commitment
is affirmed.




>

	__________________________________ Dondero, J.
We concur: __________________________________ Marchiano, P. J. __________________________________ Banke, J.