P. v. Smeltzer
Filed 8/7/13 P. v. Smeltzer CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW SMELTZER,
Defendant and Appellant.
D062222
(Super. Ct.
No. MH101395)
APPEAL from
a judgment of the Superior Court
of
Howard H.
Shore, Judge. Affirmed.
Susan K.
Shaler, on 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, Bradley Weinreb and William M.
Wood, Deputy Attorneys General, for Plaintiff and Respondent.
A jury
found that Matthew Smeltzer was a sexually
violent predator (SVP) for purposes of his continued civil commitment at Coalinga
State Hospital
(Coalinga). Challenging the judgment on
appeal, Smeltzer argues the trial court erred by limiting his presentation of
impairment requirement, and declining to modify an instruction on the
volitional impairment requirement. He
also asserts his indeterminate commitment violates his
FACTUAL
AND PROCEDURAL BACKGROUND
Smeltzer's
civil commitment arose from his repeated acts of molestation of young children
and his diagnosis of pedophilia. In 1985
when Smeltzer was 29 years old, the 10-year-old daughter of his first wife
accused him of digitally penetrating her vagina; these allegations were
investigated but not pursued by the authorities.
sustained three convictions of lewd acts against a child under age 14, which
formed the predicate offenses for his SVP status.
The 1991
offenses were committed on multiple occasions during a four- to six-week period
after Smeltzer distributed a letter at his apartment complex inviting children,
ages five to 10, to his apartment for "movie night." While his pregnant wife was at home in
another room, Smeltzer molested two seven-year-old girls and a four-year-old
girl while they were sitting on his lap covered with a blanket, including
touching their genital areas over or under their underwear. With one of the seven-year-old victims, he
also digitally penetrated her vagina and made her touch his penis while she was
on his bed. Three other girls at the
apartment complex also reported that Smeltzer touched their genital area over
their clothing; these charges were not part of his guilty plea but he later
admitted to an interviewer that he molested four girls at his apartment. Smeltzer told the probation officer that he
would fantasize about these touchings while masturbating. When asked how he felt about molesting the
victims when his wife was at home, Smeltzer told the probation officer that he
was afraid of being caught, but his desire to molest overcame his fear.
Smeltzer
was granted probation for the 1991 offenses, with a suspended 10-year
sentence. While released on probation,
he at times participated in sex offender treatment. In 1994, he violated probation by being with
his children without supervision; this occurred when his wife felt it was safe
to leave him alone with their infant twin sons because he had never molested
boys and the boys were infants. After
this violation, his probation was modified and reinstated. A few months later he violated probation a
second time by possessing obscene material about sexual acts with "quasi
human/animal figures" that his therapist determined were "pedophilic
in nature." Based on this second
violation, his probation was revoked and he was sent to prison to serve the
10-year term.
Smeltzer
commenced his prison term in 1995, and he was released on parole in 1999. In 2000, he was caught walking out of his
residence with a VCR and cartoon videos that would appeal to children, which
was in violation of his parole. In this
same year, he was found in possession of a list of names of children from Kenya
and their ages; he stated he had been corresponding with these children since
1997 through a pastor. He was sent to
prison for violating parole and released in December 2000.
In 2002, he
wrote letters to three 15-year-old girls using the name and address of a friend
(also a convicted sex offender) who lived in the same hotel where he was
residing. Also in 2002, he committed a
child pornography offense by using a key to go into the friend's room and going
online on the friend's computer. He
admitted that over a five- to eight-month period he viewed 20 to 100 images of
nude children in provocative poses and engaging in sexual acts. He said that "he knows it was not good
to do, but he continued." After
committing the child pornography offense, in 2003 he was determined to be an
SVP and committed to a state hospital.
petition to commit him as an SVP for an indeterminate term.
At trial,
psychologists Robert Owen and Eric Simon testified on behalf of the People.
from pedophilia, and his sexual misconduct was predatory in nature because he
engaged in a very methodical approach to bring children to him whom he could
molest. Further, his condition affected
his volitional control and he continued to pose a substantial risk of
committing predatory sex offenses if released into the community.
In support,
the People's experts relied on a variety of factors, including Smeltzer's
standardized testing results; his failure to complete an intensive sex offender
treatment program; his continued pedophilic behavior notwithstanding criminal
punishment; and his distorted cognitive thinking. In standardized testing (the Static-99R),
Smeltzer scored in the moderate to high risk range of reoffending based on such
factors as reoffending after a penal consequence; actual touching of the
victims; unrelated victims; and female victims.
The
People's experts testified that Smeltzer could have decreased his risk of
reoffending if he had completed the "phase treatment program" at
Coalinga, which is a comprehensive, intensive sex offender treatment program
that specifically addresses sexual deviance and takes years to complete. Smeltzer attended an introduction to the
program, but then declined to participate in it. He was not a behavior problem at Coalinga and
he participated in groups and classes, including a sexual compulsivity recovery
group. These courses are considered
"peripheral" to treatment and although they can address some of the
sex offender issues, they are not "anywhere near the level of
intensity and thoroughness" of the phase program.
Smeltzer's
volitional impairment was shown by his pattern of continued pedophilic behavior
when released into the community, which indicated he was unlikely to be
deterred by the threat of future criminal
punishment. He had police contact
due to the 1985 accusation by his stepdaughter, and yet in 1991 he engaged in
"considerable pedophilic behavior" (the lewd act convictions). He was placed on probation, but he continued
to engage in pedophilic behavior (possessing the pedophilic-in-nature material
in 1994) that resulted in a 10-year prison sentence. Upon his release from prison, in 2000 he
engaged in "potential pedophilic behavior" (possessing the children's
cartoon videos) which resulted in a parole violation and return to prison. Undeterred, in 2002 he again violated parole
by possessing child pornography, which led to another conviction and prison sentence.
Smeltzer
exhibited cognitive distortions common in individuals with pedophilia that can
promote sexual reoffending. In 1991, he
said he believed the girls liked the touching because they did not protest; the
manner in which he touched the girls was " 'not that bad' "
compared to other sexual offenders; and he engaged in the touching because of
such factors as his unhappy, sexless marriage, depression, anxiety, and
loneliness. He also sanitized his
history of sexual deviance by saying he had actually touched only one victim
and he did not realize he was pleading guilty to touching three victims. After the 2002 child pornography offense, he
continued to manifest cognitive distortions, for example, blaming the offense
on his friend who owned the computer, and saying the offense was not "
'that bad' "; some of the images just "popped up" on the screen;
he was " 'only curious' "; and it was " 'not like [he was] out
walking around schools or following kids around.' " Dr. Owen testified that he did not see
anything in Smeltzer's records indicating he had addressed his cognitive
distortions at Coalinga.
The
People's experts also rejected the notion that Smeltzer's risk of reoffending
was reduced because he had a low sex drive as shown by a history of sparse
sexual activity.
title="">[6] The experts testified that Smeltzer's low sex
drive claim was contradicted by his 1994 probation violation showing a
preoccupation with sexual material and his 2002 child pornography offense.
The
People's experts concluded Smeltzer continued to meet the SVP criteria because
his condition impaired his self-control and it was likely he would sexually
reoffend with children if released.
Defense
To refute
the People's claim that he still qualified as an SVP, Smeltzer presented testimony
from numerous Coalinga personnel, including two psychologists, two social
workers, a rehabilitation therapist, and four psychiatric technicians. He also presented testimony from a
psychiatrist who was retained by the defense to evaluate him.
Defense
witnesses testified that Smeltzer was not a "fixated" pedophile, but
rather was a "situational" child sexual offender who engaged in the
1991 molestation due to environmental stressors. His sexual history showed he had a low sex
drive, and he did not suffer from volitional impairment but was "overly
inhibited." Although the phase
program was designed to be the core sex offender treatment program at Coalinga,
it was not the only means of treatment.
Other programs, including the sexual compulsivity recovery group, could
complement the phase program or serve as an alternative program. Smeltzer had participated in the sexual
compulsivity recovery group and other therapeutic courses, and he had learned
about such concepts as trauma as a cause of sexual addiction, triggers for
sexual behavior, empathy for victims, skills to manage deviant thoughts, and
establishing a support system in the community.
He had also addressed his depression and anxiety which can trigger sexual
deviancy. He had no difficulty controlling
himself in the stressful hospital environment, and he had not possessed
pornography even though it is illegally available at the hospital.
The defense
witnesses opined that if he was released into the community, Smeltzer would
voluntarily seek treatment, and he had a very low risk of reoffending because
the molestation occurred in isolated circumstances that were unlikely to be
repeated; he was not a fixated pedophile; and he was no longer anxious and
depressed.
Jury Verdict
The jury
found that Smeltzer was an SVP, and the court committed him to an indeterminate
term with the California Department of Mental Health. (Welf. & Inst. Code, § 6600 et seq.)
DISCUSSION
I. Claims
of Error Related to the Volitional Impairment Standard
Smeltzer
argues the trial court violated his due
process rights by (1) precluding his expert witness from testifying
regarding the legal standards applicable to volitional impairment, and (2)
refusing his request to modify the language in the standard jury instruction to
state that volitional control must be seriously
affected.
As a matter
of federal constitutional due process, a person may not be subjected to
involuntary civil commitment unless the person, as a result of a mental
abnormality, has serious difficulty controlling his or her dangerous
behavior. (In re Lemanuel C. (2007) 41 Cal.4th 33, 40-41; People v. Williams (2003) 31 Cal.4th 757, 759, 766.) This control impairment requirement for civil
commitment distinguishes those offenders whose mental disorders impair their
volitional control over their dangerousness from other dangerous offenders who
are more properly dealt with exclusively through criminal proceedings. (People
v. Williams, supra, at pp. 766-767.)
The volitional impairment need not involve total or complete lack of
control; however, there must be a serious difficulty in controlling
behavior. (In re Lemanuel C., supra, at p. 42; People v. Williams, supra, 31 Cal.4th at p. 773.)
With these
general principles in mind, we evaluate Smeltzer's claims of error concerning
the volitional impairment requirement.
A.
Background
The expert
witnesses called by the People and the defense were questioned at length, both
on direct and cross-examination, about whether Smeltzer's mental disorder
affected his ability to control his urges to molest children. The People's witness Dr. Owen testified that
Smeltzer's pedophilia affected his "self-control, volitional control,"
as shown by the fact that he has not been deterred by consequences but
"just keeps going in a deviant direction[,]" and the fact that he has
been sanctioned and ignores the possible consequences shows he is "driven
by some underlying, unhealthy urges . . . ." Similarly, the People's witness Dr. Simon
testified that there was a "driven quality" to Smeltzer's actions;
his pattern of continued pedophilic activity notwithstanding repeated detection
and punishment shows he has "a certain amount of volitional
impairment"; and his complete lack of criminal behavior apart from
pedophilic conduct shows that his trouble "lies in controlling his
[pedophilic] impulses."
Both of the
People's experts referred to an appellate court decision (People v. Burris (2002)
102 Cal.App.4th 1096) as providing a useful definition of volitional
impairment. Dr. Owen testified the
has not been deterred by a prior consequence such as going to prison, this is
an example of volitional impairment."
Dr. Simon testified the Burris
decision states "someone who evidences a pattern of detection followed by
punishment followed by new sex offenses, . . . that the
person's not likely to be deterred by the threat of future criminal punishment
and that that would indicate volitional impairment."
During this
line of questioning, defense counsel sought to elicit testimony from the
People's experts that the SVP finding required a showing of
recidivism did not necessarily establish this requirement. At one point Dr. Owen testified there is a
continuum of volitional impairment from "mild, moderate to severe,"
but in this case there was "ample evidence of a man here who just hasn't
been deterred by consequences and he just keeps going in a deviant direction." When queried specifically on the issue of
whether the volitional impairment needed to be serious, Dr. Owen initially
agreed the law requires serious volitional impairment. However, after the prosecutor objected that
the term "serious" was a misstatement of the law, Dr. Owen testified
he did not recall seeing the word "serious" in the case law, and he
"misspoke" if he earlier acknowledged seriousness as a requirement.
Dr. Simon
testified on cross-examination that there had "to be some but not
necessarily complete" volitional impairment to qualify as an SVP. He agreed that sex offenders who have a
"serious difficulty controlling" their deviant impulses posed a
greater risk than people who have a "degree of control"; in general
the SVP law was "looking for those higher risk offenders" who have
"a diminished ability to control themselves"; and persons who meet
the SVP criteria have "a serious deficiency in their ability to control
themselves." Also, Dr. Simon generally
agreed recidivism "is not enough by itself to show someone can't control
their behavior" and it was necessary "to look at a lifetime of
experience to see if that person has had a history of having difficulty
controlling their behavior . . . ."
At several
points while pursuing the control impairment issue, defense counsel asked the
People's experts about the case law, including the Burris case. In response,
the court admonished counsel not to get into a discussion of the witness's
interpretation of the case law; however, the witness could state what standards
he used to form his opinion, and the jury could determine whether the standards
used by the witness comported with the court's instructions on the law. Based on this ruling, the court told defense
counsel not "to go any further into discussion of specific cases"
while questioning Dr. Owen about the seriousness requirement, and the court
sustained an objection to defense counsel's questioning of Dr. Simon about the
factual details of the Burris case.
During the
defense case, the defense expert witness (psychiatrist Alan Abrams) testified
that SVP case law requires that the person have serious difficulty controlling
his or her sexual violence. When defense
counsel sought to elicit testimony from Dr. Abrams about the
that the expert witness could state the definition he used and the jury could
compare it with the definition given by the court, but the questioning could
not involve "a legal discussion."
After an
unreported sidebar discussion, defense counsel was permitted to ask additional
questions about Dr. Abrams's understanding of the volitional impairment
requirement. Dr. Abrams testified that
reoffending after punishment was "one factor to look at"; this factor
was "the minimum criteria" for volitional impairment; the question
was whether the person was starting "a pattern of inability to control
behavior"; and not all pedophiles suffer from inability to control
themselves. Further, Dr. Abrams agreed
that to understand the volitional impairment requirement, typically it was not
sufficient to "just read one line from one case like Burris"; rather, it is usually necessary to read many more
cases.
After this
testimony was presented to the jury, defense
counsel argued to the trial court that People's expert Dr. Owens had given
the jury a "false impression" regarding the definition of volitional
impairment set forth in the Burris
case which he used in formulating his opinion, and accordingly the trial court
had improperly precluded defense counsel from asking Dr. Abrams (who had a law
degree) about his interpretation of the Burris
case. Defense counsel asserted that
although he could argue the People's expert had used a flawed definition of
volitional impairment, it would be "a meaningless argument" if there
was no foundational support for the argument that the expert did not properly
understand the case. The prosecutor
argued the court had not erred because defense counsel was allowed to ask Dr.
Abrams about his interpretation of the law that he used to form his opinions,
and the court had merely excluded a lengthy recitation and interpretation of
each case.
The trial
court ruled that additional questioning of Dr. Abrams on this point had minimal
relevance, and the relevance was substantially outweighed by the likelihood of
confusion under Evidence Code section 352.
The court reasoned the important issue was whether the expert used the
proper standard on the lack of control requirement; the parties could argue to
the jury if an expert did not use the proper standard; and testimony by the
experts explaining the case law would usurp the court's function and be
irrelevant and confusing.
B.
Analysis
1.
Limitation on Defense Expert's Testimony
Smeltzer
argues the People's expert witnesses misstated the volitional impairment
requirement by reducing it "to simply nothing more than a history of
offending more than once," rather than the correct definition that the
person must have a serious difficulty controlling his or her behavior. He asserts the trial court's limitation on
the defense expert's testimony, including regarding the Burris decision cited by the People's experts, precluded him from
confronting the People's experts about their misstatements.
Contrary to
Smeltzer's contention, he was not precluded from challenging the People's
experts' reliance on recidivism as a factor showing control impairment. Defense counsel elicited testimony from the
defense expert that the correct standard was whether the person had serious
difficulty controlling sexual misbehavior, and recidivism was simply one
relevant factor to consider. Smeltzer
has not explained how testimony from the defense expert on the specifics of the
Burris decision would have
meaningfully augmented the defense expert's testimony on this point.
The record
shows Smeltzer had a full opportunity to present testimony from his expert
witness on the definition of volitional impairment, and his due process rights
were not impeded by the trial court's ruling precluding both the People's and
the defense experts from expounding on the case law underlying the volitional
impairment definition.
2. Instruction
on Volitional Impairment
With
respect to the volitional impairment requirement, the jury was instructed in
relevant part as follows:
"To prove
[the SVP] allegation, the People must prove beyond a reasonable doubt
that . . . [¶] . . . [¶] [a]s
[Smeltzer] is a danger to the health and safety of others because it is likely
he will engage in sexually violent predatory criminal behavior;
"And . . . ,
it is necessary to keep him in custody in a secured facility to ensure the
health and safety of others. [¶] The term diagnosed mental disorder includes
conditions . . . that
affect a person's ability to control emotions and behavior that predispose the
person to commit criminal sexual acts
to an extent that makes him a menace to the health and safety of others.
"
violent predatory criminal behavior if there is a substantial, serious and
well-founded risk that the person will engage in such conduct if released in
the community. The likelihood that
the person will engage in such conduct does not have to be greater than 50
percent." (Italics added and
omitted; see CALCRIM No. 3454.)
During
discussions with the trial court, Smeltzer's counsel requested that instead of
merely instructing the jury that the person's mental disorder must
behavior, the jury should be told the disorder must seriously affect the person's ability to control behavior. Defense counsel argued that without explicit
language requiring the jury to find a serious impairment, the jury might be
confused because one of the People's experts had misstated the standard and the
standard had not been corrected in any other fashion. The court rejected defense counsel's request,
finding the use of the term "serious" was not necessary because the instruction
clearly defined the level of impairment that must be shown.
On appeal,
Smeltzer asserts it was essential to include the term "serious"
because the People's experts misstated the volitional impairment standard, and
the instruction did not contain any specific language informing the jury the control
impairment must be serious. He also
asserts the evidence in his case warranted a pinpoint instruction on the
serious control impairment requirement based on the evidence that he did not
lose control in the stressful hospital environment; he had gained insight and
tools for maintaining control; and he had a low sex drive.
In
Supreme Court held the serious control impairment requirement is necessarily
conveyed to the jury based on an instruction following the SVP statutory
language (i.e., a disorder affecting volitional capacity that predisposes the
person to commit sex crimes in a menacing degree and produces a substantial,
serious and well-founded risk of reoffense), and no additional instruction is
required. (People v. Williams, supra, 31 Cal.4th at pp. 759, 776-777.) Williams
also underscored that, under
States Supreme Court authority, the lack of control element does not have a
narrow or technical meaning amenable to an exact standard and enforceable
through rigid bright-line rules; rather, the standard can properly be
articulated by state legislatures as long it does not dispense with the
requirement that there be proof of serious difficulty in controlling
behavior. (Id. at pp. 772-774.)
Here, the
record shows that at one point the jury was presented with information that
called into question the seriousness requirement. That is, during cross-examination of People's
expert Dr. Owen, defense counsel asked whether the volitional impairment needed
to be serious, and the prosecutor objected that the term "serious"
was a misstatement of the law. Dr. Owen
then testified he did not recall seeing the term "serious" in the
case law, and he misspoke if he had earlier agreed that seriousness was a
requirement under the case law.
In
appropriate circumstances a defendant is entitled upon request to an
instruction that clarifies the law. (See
People v. Butler (2010) 187
Cal.App.4th 998, 1013.) Assuming
arguendo the court erred by declining to add the word "serious" to
the instruction, any error was harmless beyond a reasonable doubt. (People
v. Williams, supra, 31 Cal.4th at p. 778.)
Viewing the record as a whole, we have no doubt the jury understood the
control impairment must be serious. The
SVP instructions told the jury that (1) the disorder must make it
sexually violent predatory behavior; (2) the disorder includes conditions
affecting ability to control that create a predisposition to commit sexual acts
to such an extent that the person is
a menace to safety; and (3) there is
a likelihood of sexually violent predatory behavior if there is a
of such conduct. An instruction
requiring that the person must constitute a menace to society and pose a
substantial and serious risk of misconduct undoubtedly conveyed to the jury
that the control impairment must be serious.
(People v. Williams, supra, 31
Cal. 4th at pp. 774-777; In re Lemanuel
C., supra, 41 Cal.4th at p. 42.)
Further,
the serious control impairment requirement was conceded during the testimony of
People's expert Dr. Simon, who acknowledged that persons who meet the SVP
criteria have a "serious deficiency" in their ability to control
themselves. In closing arguments,
although counsel for both parties sought to define the term "serious"
in the manner most favorable to their positions, there was no claim that
seriousness was not a requirement. The prosecutor
argued that Smeltzer's control was impaired to such a degree that he acted even
though he knew he might suffer criminal consequences: "Volitional capacity, he was able to
override his fears that told him 'Don't do this
behavior. . . . You're going
to get caught.' He did it anyways. So that shows the volitional capacity that's
impaired, that it's affected."
Defense counsel emphasized that an SVP finding requires a "serious
impairment" of ability to control to "such an intensity of urge and
effect on the person that they lose control of their volition[,]"; an
"inability to control" such that the person poses a "serious,
substantial and well-founded risk . . . .";
"[w]e're looking for those people that can't control
themselves . . . ."
In rebuttal the prosecutor argued that Smeltzer's pedophilia affected
his ability to control, he could not control his behavior, and he posed a
serious, nontrivial risk of reoffending:
"Does he have a disorder that affects his ability to control his
behavior? Yes. Is he likely to reoffend again? Yes. . . . [¶]
. . . [¶] And what's the other
bit of evidence that we have that shows that he cannot control his behavior?
We have the investigation in '85, arrest in '91, crime-arrest,
crime-arrest, crime-arrest cycle. . . . [¶]
. . . [¶] . . . [I]s the risk presented
serious? Yes? What's the antonym? Trivial or meaningless. Are we talking meaningless risk here? No.
Even his own experts say he presents a risk. [¶] . . . [¶] [A]ll the
instruments . . . [place] him in either the moderate-high
or the high-risk component."
(Italics added.)
The record
as a whole shows the jurors were presented with testimony, instructions, and
them that the control impairment must be serious. There is no reasonable possibility the jury
thought Smeltzer could qualify as an SVP if he did not have serious difficulty
controlling his pedophilia. Accordingly,
any error in failing to clarify the seriousness requirement in the jury
instructions was harmless.
II. Constitutional
Challenges
Smeltzer
raises several constitutional challenges to his indeterminate commitment that
have been repeatedly rejected by the courts, including denial of equal protection,
denial of due process, ex post facto violation, cruel and unusual punishment,
and double jeopardy. (
1193, 1195 (McKee I) [rejecting due
process and ex post facto challenges]; People
v. McKee (2012) 207 Cal.App.4th 1325, 1347-1348 (McKee II) [rejecting equal protection challenge];
Cal.App.4th 1367, 1383 [rejecting cruel and unusual punishment and double
jeopardy challenges]; accord People v.
Landau (2013) 214 Cal.App.4th 1, 8, 44-45; People v. McCloud (2013) 213 Cal.App.4th 1076, 1085-1086;
Cal.App.4th 860, 863-864.) We agree with
this case authority, and it is not necessary for us to repeat the extensive
analyses set forth in these decisions that respond to Smeltzer's
challenges. Based on this precedent, we
reject Smeltzer's various constitutional challenges.
With
respect to his equal protection challenge, Smeltzer argues he is entitled to an
individual assessment as to whether he should be subjected to an indeterminate
term when other civilly committed offenders are not, and the case should be
remanded to the trial court to make these findings in his specific case. Because Smeltzer did not raise this fact-based
claim before the trial court, we deem it forfeited on appeal. (See In
re Spencer S. (2009) 176 Cal.App.4th 1315, 1323.)
In any
event, we also reject it on the merits.
In McKee I,
that on remand the People would have an opportunity to prove that SVP's
"as a class" pose a greater risk than similarly-situated offenders so
as to justify indefinite commitment "at least as applied to
McKee." (McKee I, supra, 47 Cal.4th at pp. 1208, 1210.) At the remand hearing, after an extensive
evidentiary presentation, the trial court found the People had made the
requisite showing, and on appeal our court affirmed the trial court's
ruling. (McKee II, supra, 207 Cal.App.4th at pp. 1330-1331, 1348.) In our decision on appeal, we concluded that
the information presented by the People supported that SVP's as a class
to be treated differently from other types of offenders, and our holding was
not premised on McKee's particular characteristics. (Id.
at pp. 1340-1348.) Given the scope of our
holding, we reject Smeltzer's contention that he is entitled to an
individualized determination of his equal protection challenge. (Accord, People
v. McKnight, supra, 212 Cal.App.4th at pp. 863-864 [McKee II's equal protection holding applies to "class of SVP's
as a whole," not to Mr. McKee alone]; People
v. McDonald, supra, 214 Cal.App.4th at pp. 1377-1378.)
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] Later, after Smeltzer was arrested for child molestation in
1991, he told a mental health evaluator that he was aroused when his
stepdaughter would " 'squirm' " over his groin area while
sitting on his lap, but he denied that he digitally penetrated her.
name="_ftn2" title="">[2] Smeltzer pled guilty to the child pornography offense. It appears that he entered his guilty plea
and was sentenced for this offense in 2005 (after he was committed to the state
hospital in 2003), and he received credit for time served on his prison
sentence.
