P. v. Aguon
A jury found Anthony Salas Aguon to be a sexually violent predator (SVP). He was recommitted to an indeterminate civil commitment term under the Sexually Violent Predator Act (SVPA or the Act). (Welf. & Inst. Code, §§ 6600-6604.)[1]
This case is before us for the third time. In the first appeal, we affirmed the judgment; however, Aguon appealed and the California Supreme Court directed us to vacate our decision and reconsider the cause in light of its decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee I). In the second appeal, as required by McKee I, we reversed the judgment (order of civil Commitment) and remanded the case for proceedings solely on the issue of equal protection, but otherwise affirmed the judgment. This court subsequently decided People v. McKee (2012) 207 Cal.App.4th 1325, 1347, review denied Oct. 10, 2012 (McKee II). On this third appeal, the parties submitted supplemental briefing regarding the effect of McKee I and McKee II on Aguon's equal protection claim. We affirm the judgment.
Aguon contends insufficient recent and objective evidence supports the jury's findings. He further contends the trial court erroneously: (1) instructed the jury to determine whether it was necessary to keep him in a secure facility to ensure the health and safety of others, which improperly directed the jury to consider the consequences of its verdict and thereby diminished the prosecutor's burden of proof and denied him due process; (2) instructed regarding his likelihood of reoffense; (3) admitted evidence regarding his prior 1972 uncharged rape; (4) failed to instruct the jury, without request, that it was required to find he had serious difficulty in controlling his sexual behavior. Moreover, (5) the prosecutor's "use of the term 'sexually violent predator' was governmental misconduct;" (6) the evaluations supporting the petition to recommit him are invalid because the statutorily required protocol was an "underground regulation," which was promulgated in violation of the Administrative Procedure Act (APA); therefore, the trial court lacked jurisdiction to proceed with the SVP petition; (7) the SVPA violates the due process, ex post facto, double jeopardy and equal protection clauses of the federal or state Constitutions; and (8) his trial counsel rendered ineffective assistance of counsel.
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