P. v. Ward





















Filed 4/10/13 P. v. Ward CA4/2















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. RONALD WILLIAM WARD, Defendant and Appellant.

E054822 (Super.Ct.No. RIC298511) OPINION

APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside County. Thomas Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.

Richard
Schwartzberg, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and William M. Wood and
Bradley A. Weinreb, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant
Ronald William Ward appeals from his indeterminate commitment as a sexually
violent predator (SVP) under Welfare and Institutions Codehref="#_ftn1" name="_ftnref1" title="">^[1] section 6600 et seq. He contends his indeterminate commitment term
violates his constitutional rights to due process and equal protection, as well
as the ex post facto clause. We find no error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

Defendant
does not challenge the evidence to support his civil commitment, so we set
forth the underlying facts summarily:
Defendant has prior convictions for five counts of lewd conduct with a
child in 1985 and one prior conviction of forcible lewd conduct with a child in
1981. Defendant was also convicted of
forcible rape in 1978. In 1997,
defendant was committed under the Sexually
Violent Predator Act (SVPA) (§ 6600 et seq.) and was subsequently
recommitted several times.

In April 2005 and
March 2007, the People filed petitions to recommit defendant under the
SVPA. Defendant was evaluated in 2010
and 2011, and in the evaluators’ opinions, defendant had a history of
depression and substance abuse, as well as a mental disorder of paraphilia and
an antisocial personality
disorder, among other conditions.
Risk assessment tests showed defendant to be at a high or moderately
high risk of reoffending.

Following
trial on the petitions in August 2011, the jury found the petitions true. However, the trial court suspended
proceedings because the question whether the SVPA violated equal protection was
pending in the appellate court on remand from the California Supreme
Court. (See People v. McKee (2010) 47 Cal.4th 1172, 1211 (McKee I). Meanwhile,
the trial court ordered defendant detained at Coalinga
State Hospital,
and defendant filed a notice of appeal. This court stayed the appeal pending final
disposition of the petitions in the trial court.

In
July 2012, the Court of Appeal issued its decision in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II), and thereafter, proceedings were resumed in the trial
court. On August 12, the trial
court imposed a civil commitment on defendant under section 6600 et seq. In September 2012, this court lifted the stay
of the appeal.

III. DISCUSSION

The
SVPA provides for civil commitment of
a person “who has been convicted of a sexually violent offense against one or
more victims 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. (§ 6600, subd. (a).) In 2006, the SVPA was amended by Proposition
83. As relevant to this appeal, the
commitment to a state mental hospital was changed from a renewable two-year
commitment to an indeterminate term.
(§ 6604; see also generally Bourquez
v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1282.)

>A.
Due Process Challenge

Defendant
asserts that his involuntary commitment under the amended SVPA violates his
constitutional right to due process.
In McKee I, the California Supreme
Court rejected the defendant’s due process challenge to the application of
Proposition 83 to persons whose original commitment petition preceded the
enactment of the amendment. (>McKee I, supra, 47 Cal.4th at pp. 1188-1193.) Defendant acknowledges that we are bound by
the court’s holding. (>Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)

>B.
Ex Post Facto Challenge

Defendant
asserts that his involuntary commitment under the amended SVPA violates the
constitutional prohibition against ex post facto laws. In McKee
I, the court rejected an ex post
facto challenge to the amended SVPA. (>McKee I, supra, 47 Cal.4th at pp. 1193-1195.) Defendant acknowledges that we are bound by
the court’s holding. (>Auto Equity Sales, Inc. v. Superior Court,
supra, 57 Cal.2d at p. 455.)

>C.
Equal Protection Challenge

Defendant
asserts that his involuntary commitment under the SVPA violates his federal
constitutional right to equal protection of the laws because the amended SVPA
treats SVP’s less favorably than individuals civilly committed under other
statutory schemes such as those applicable to mentally disordered offenders
(MDO’s)and persons not guilty by reason of insanity (NGI’s). In McKee
I, the defendant raised a similar challenge, and the California Supreme
Court remanded the matter for an evidentiary hearing to determine whether,
under a strict scrutiny standard, the People could establish that disparate
treatment was necessary to further a compelling state interest. On remand, the trial court conducted a 21-day
evidentiary hearing and concluded the People had met their burden. In McKee
II, the appellate court affirmed the trial court’s conclusion.

Defendant
argues, however, that the McKee II court’s
holding applied only to McKee himself, because the court conducted a sufficiency
of the evidence review, and equal protection challenges against the SVPA must
be adjudicated on a “case specific, ‘as applied’ basis.” We disagree.
The McKee II court held that
SVP’s, as a class, are differently situated than MDO’s and NGI’s, and differing
treatment of those groups is necessary to further compelling state
interests. (McKee II, supra, 207
Cal.App.4th at pp. 1347-1348.) name=SearchTerm>Specifically, the court 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 name="SR;894">the burden to name="SR;897">prove they should name="SR;900">be released). [Citation.] name="SR;904"> 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 name="SR;929">society, and that name="SR;932">therefore imposing on
them a greater name="SR;938">burden before they name="SR;941">can be released name="SR;944">from commitment is name="SR;947">needed to protect name="SR;950">society.’ [name="SR;952">Citation.] The People name="SR;955">have shown ‘that name="SR;958">the inherent nature
of the SVP’s name="SR;964">mental disorder makes
recidivism as a class name="SR;971">significantly more likely[;] . . .
that SVP’s pose name="SR;977">a greater risk [name="SR;980">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 name="SR;1019">disparate treatment of
SVP’s under the
amended [SVPA] is
necessary to further
the state’s compelling
interests in public
safety and humanely
treating the mentally
disordered.
[Citation.]” (>Id. at p. 1347; italics added.) The court’s language made plain that its
holding applied not only to the defendant in that case, but also to the entire
class of SVP’s. (See also >People v. McKnight (2012) 212
Cal.App.4th 860, 863-864 [agreeing with McKee
II’s equal protection analysis].)

We
agree with and adopt the McKee II court’s
analysis and holding. We therefore
conclude that defendant’s recommitment under the SVPA did not violate his equal
protection rights.

IV. DISPOSITION

The
order is affirmed.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS





HOLLENHORST

Acting P. J.

We concur:



RICHLI

J.



CODRINGTON

J.