P. v. Cefalu
Filed 5/24/13 P. v. Cefalu CA6
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opinion has not been certified for publication or ordered published for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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
SALVATORE JOHN CEFALU,
Defendant and Appellant.
H037736
(Santa Clara County
Super. Ct. No. 211284)
Salvatore John Cefalu
appeals from an order committing him for an indeterminate term to the custody
of the Department of Mental Health (DMH) after a court trial wherein he was
found to be a “sexually violent predator†(SVP) within the meaning of the
Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.).
reversible error requiring his immediate release, because both the 2007 and
2009 protocols used by the evaluators were invalid. He relies on In re Ronje (2009)
179 Cal.App.4th 509 (
protocol as an “underground†regulation.
He also asserts that the 2009 protocol is invalid because it is not a
“standardized assessment protocol†within the meaning of section 6601,
subdivision (c). Defendant contends that
the use of those protocols violated his statutory
and constitutional rights, and deprived the trial court of fundamental
jurisdiction. For reasons explained
below, we find both of defendant’s challenges to the 2007 and 2009 protocols
lack merit.
Defendant also
challenges the constitutionality of the SVPA on
facto, and double jeopardy grounds.
We conclude that those claims are foreclosed by People v. McKee
(2010) 47 Cal.4th 1172 (McKee I).
Further, based on the reasoning of People v. McKee (2012) 207
Cal.App.4th 1325 (McKee II) (review den. Oct. 10, 2012, S204503), we find no constitutional infirmity in the
SVPA’s provisions for indeterminate commitments. We will therefore affirm the trial court’s
commitment order.
The SVP Commitment
Process
Under
the SVPA, an individual determined to be an SVP may be civilly committed to
DMH for treatment and confinement for an indeterminate term. (§ 6604.)
In order to classify a person as
an SVP, it must be shown beyond a reasonable doubt that (1) the person has been
convicted of a sexually violent offense against one or more victims; (2) the
person has a diagnosed mental disorder; and (3) the person’s mental diagnosis
makes the person likely to engage in sexually violent criminal behavior. (§ 6600, subd. (a)(1).)
Section 6601, subdivision (c), requires DMH to develop and
update a “standardized assessment protocol†for evaluating potential
SVP’s. The 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.†(§ 6601, subd. (c).) Only after two independent mental health
professionals agree under the protocol that a person meets SVP criteria does
DMH request the filing of a petition for involuntary commitment. (§ 6601, subds. (c)-(f), (h).)
“The purpose of this evaluation is not to identify SVP’s but,
rather, to screen out those who are not SVP’s.
‘The Legislature has imposed procedural safeguards to prevent meritless
petitions from reaching trial. “[T]he
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.†’ [Citation.]
The legal determination that a particular person is an SVP is made
during the subsequent judicial proceedings, rather than during the screening
process. [Citation.]†(People v. Medina
(2009) 171 Cal.App.4th 805, 814 (Medina).) Those proceedings include a probable cause
hearing (§ 6602) and a trial (§§ 6603, 6604).
At the probable cause hearing, the People must show that the
alleged SVP is likely to engage in sexually violent predatory
Cal.App.4th 1122, 1130.) After such a
showing, the matter may proceed to trial, where the People have the burden of
proving beyond a reasonable doubt that the person meets all SVP criteria. (§§ 6603, 6604.) If the person is found at trial to be an SVP,
he or she is involuntarily committed to DMH for treatment and confinement for
an indeterminate term. (§ 6604.)
We note that the SVPA was twice amended in 2006, first by
Senate Bill No. 1128 (Stats. 2006, ch. 337, § 55), and then by Proposition 83
(see Cal. Const., art. II, § 10, subd. (a)).
Before those amendments, an individual determined to be an SVP was
committed to DMH for a two-year term, which could be extended for additional
two-year periods. (Former § 6604, as
amended by Stats. 2000, ch. 420, § 3; former § 6604.1, as amended by Stats.
2000, ch. 420, § 4.) With the 2006
amendments, the SVPA now provides for an indeterminate commitment. (Stats. 2006, ch. 337, § 55; § 6604; see Cal.
Const., art. II, § 10, subd. (a).)
History
Because defendant does not challenge
the sufficiency of the evidence supporting the trial court’s commitment order,
we do not discuss in detail defendant’s criminal history of qualifying sex
offenses. We focus on the petition to
commit defendant as an SVP filed by the Santa
Clara County District Attorney on April 30, 2008. The petition was supported by evaluations
from Drs. Karlsson and Cassidy on behalf of DMH, as required by section
6601. Both doctors, licensed and
practicing psychologists, met with defendant in person and reviewed all available
records pertaining to defendant’s criminal and psychiatric history. The commitment petition alleged defendant was
convicted of three qualifying sex offenses identified in section 6600, one in
1981 and two in 1983. The petition also
alleged that defendant has a diagnosed mental disorder, which makes him a
danger to the health and safety of others in that he is likely to engage in
acts of predatory sexual violence without appropriate treatment and custody.
Dr. Karlsson’s first evaluation
under section 6601 was prepared on April 4, 2008; Dr. Cassidy’s first
evaluation, also under section 6601, was prepared on April 16, 2008. Both used DMH’s 2007 protocol. A probable cause hearing was held on May 9,
May 14, July 15, and July 16, 2008. At
the conclusion of that hearing, the court found probable cause to believe that
defendant met SVP criteria within the meaning of section 6600.
On January 19, 2010, defendant filed
a motion for new section 6601 evaluations and a new probable cause hearing
based on the decision in Ronje,
based on Ronje, the People had
requested updated evaluations from DMH pursuant to section 6603, subdivision
(c)(1), and Drs. Karlsson and Cassidy completed the updated evaluations on
April 30, 2009 and May 5, 2009, respectively.
On January 21, 2010, the court granted defendant’s motion for a new
probable cause hearing and denied defendant’s motion for new section 6601
evaluations, without prejudice to renew the request after the new probable
cause hearing.
Before the new probable cause
hearing took place, defendant filed a motion to dismiss on the grounds that the
updated evaluations, which were prepared under DMH’s 2009 protocol, were
invalid because the 2009 protocol is not a “standardized assessment protocolâ€
as called for in section 6601, subdivision (c).
Defendant’s motion was supported by declarations from Drs. Wollert and
Halon, both licensed psychologists. Dr.
Wollert opined that DMH’s 2009 protocol is not a “standardized assessment
protocol, as that term is understood in the scientific and psychological
community.â€
The People argued in
opposition that (1) the 2009 protocol is a “standardized assessment protocolâ€
within the meaning of section 6601, subdivision
(c); (2) even if the 2009 protocol is not a “standardized assessment protocol,â€
defendant’s constitutional right to due process is not violated by the use of
the 2009 protocol; and (3) even if the court were to find in favor of
defendant, the proper remedy would be to order new section 6601, subdivision (c) evaluations and a new
probable cause hearing, not to dismiss the petition. The People also filed the declaration of Dr.
Phenix, a licensed psychologist who, according to her declaration, “was tasked
with developing the first Standardized Assessment Protocol and provided the DMH
with six updated versions as the science of risk assessment evolved and the
protocol required updating.†In
discussing the meaning of the term “standardized assessment protocol†relative
to DMH’s 2009 protocol, Dr. Phenix declared that “a ‘one size fits all’
protocol would miss the psychological complexities of each individual
evaluated.â€
Using DMH’s 2009
protocol, both Drs. Karlsson and Cassidy reevaluated defendant for trial,
pursuant to section 6603. Dr. Karlsson’s
report was completed on April 18, 2010, and Dr. Cassidy’s report was completed
on May 29, 2010. The new probable cause
hearing, ordered as a result of defendant’s Ronje
motion, was held on June 22, July 1, and July 7, 2010. At the conclusion of evidence, the court
allowed defendant time to renew his motion for new section 6601 evaluations
under Ronje,
During that time, the
court conducted a hearing on defendant’s motion to dismiss on July 9,
2010. Both parties agreed the court
could consider DMH’s 2009 protocol and the declarations of Drs. Wollert, Halon,
and Phenix as evidence. In its July 15,
2010, ruling on the motion to dismiss, the trial court found “the 2009 protocol
comports with the intention of the [L]egislature and comports with the accepted
definition of the words, standardized assessment protocol. The 2009 protocol recognizes that individuals
differ in psychological functioning, issues of mental health and level of risk
for sexual reoffense. . . . [¶] . . . Therefore, the Court rules that the 2009
Standardized Assessment Protocol meets the requirements of the statute, is
valid, and therefore [defendant has not] suffered any due process
violation.†After denial of the motion to dismiss,
defendant sought and was denied writ relief from this court. (Cefalu
v. Superior Court (The
[nonpub.].) The California Supreme Court
denied defendant’s associated petition for review. (Cefalu
v. Superior Court (The
S185791.)
On August 17, 2010, the
trial court denied the motion for new section 6601 evaluations and found
probable cause to hold defendant over for trial on his SVP status. Defendant waived jury and waived his
appearance for trial, which was held on December 5, 7, and 8, 2011. The
trial court found true beyond a reasonable doubt that defendant was an SVP
within the meaning of section 6600, and committed defendant to DMH for
treatment and confinement for an indeterminate term. The December 8, 2011, commitment order was
made “subject to the ultimate decision†in People
v. McKee (2010) 47 Cal.4th 1172. On
December 12, 2011, defendant filed a timely notice of appeal.
to the 2007 and 2009 protocols
i.
Defendant argues that since he was never evaluated under a
“valid†section 6601, subdivision (c) protocol, the trial court lacked
fundamental jurisdiction to commit him as an SVP. Defendant contends that since “[t]he initial
evaluations by both of the state’s doctors were performed using the 2007
‘underground’ protocol and the updates, not new evaluations, were performed
using the scientifically inadequate 2009 protocol,†dismissal is required
“because until an evaluation is conducted under a bona fide standardized
assessment protocol, there is no [jurisdictional] basis upon which to make a
lawful involuntary commitment under the SVPA.â€
He further argues that “[t]he same expert opinions which sprang from the
2007 unlawful protocol propelled the case through the judicial process.â€
“A lack of fundamental jurisdiction ‘ “means an entire absence
of power to hear or determine the case, an absence of authority over the
subject matter or the parties.â€
[Citation.]’ ([People v.
American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660].)†(People
v. Landau (2013) 214 Cal.App.4th 1, 17 (Landau).) It has been determined, however, that any
“failure to use properly enacted regulations in the initial evaluation of a
suspected SVP does not result in a lack of fundamental jurisdiction, depriving
the court of jurisdiction over the subject matter or appellant. ([Ronje,
supra, 179 Cal.App.4th at p. 518]; [Medina, supra, 171
Cal.App.4th at pp. 815-817].)†(
We follow these authorities and reject defendant’s jurisdictional
challenge.
ii.
DMH published the Clinical Evaluator Handbook and Standardized
Assessment Protocol (2007), the 2007 protocol, to evaluate persons who may be
SVP’s. (Medina, supra, 171
Cal.App.4th at p. 814.) In 2008, the
Office of Administrative Law (OAL) concluded that certain provisions of the
2007 protocol met the definition of a “regulation†and should have been adopted
pursuant to the Administrative Procedure Act (the APA) (Gov. Code, § 11340 et
seq.). (2008 OAL Determination No. 19
(Aug. 15, 2008) p. 13.) While OAL
determinations are not binding on this court, they are entitled to deference. (Grier v. Kizer (1990) 219 Cal.App.3d
422, 431, disapproved on another ground in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14
Cal.4th 557, 577.)
Regulations adopted in violation of the APA are termed “underground†(Cal. Code Regs., tit. 1, § 250) and may be declared invalid by
a court. (Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal.4th 324,
333.) In Ronje, the court concluded that “[a]s an underground regulation,
the 2007 standardized assessment protocol [was] invalid†and its use
constituted “an error or irregularity in the SVPA proceedings.†(Ronje,
supra, 179 Cal.App.4th at p. 517.) However, the Ronje court also found the error could be cured by a writ of habeas
corpus directing the trial court to order new evaluations under a valid
protocol and to conduct a new probable cause hearing based on those
evaluations. (Id. at pp. 517-518, 520.)
Relying on Ronje,
defendant argues that he, too, is entitled to new evaluations and a new
probable cause hearing. But, because
Ronje’s challenge to the protocol was a pretrial one, Ronje was entitled to
habeas corpus relief without a showing of prejudice. (People
v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 (Pompa-Ortiz).) Here,
defendant’s challenge is presented posttrial; therefore, he must demonstrate
that he was prejudiced at trial by the evaluators’ use of the 2007
protocol. (Ibid.; Ronje,
procedural irregularity occurred prior to a determination of probable cause,
the defendant must demonstrate prejudice to prevail on the issue in a postconviction
setting unless the claimed error denied the court jurisdiction ‘in the
fundamental sense.’ [Citation]. The same is true in SVP proceedings when it
is claimed that an underground regulation was used in the prisoner’s initial
DMH evaluation. ([Medina, supra, 171 Cal.App.4th at pp.
818–819].)†(Landau, supra,
Defendant has made no showing of prejudice, nor can he. As the Medina court noted, the purpose
of the evaluations is “to screen out those who are not SVP’s.†(Medina,
supra, 171 Cal.App.4th at p. 814.) “The legal determination that a particular
person is an SVP is made during the subsequent judicial proceedings.†(Ibid.) Those proceedings include a probable cause
hearing (§ 6602) and a trial (§§ 6603, 6604).
Here, the trial court found there was probable cause to
believe that defendant met SVP criteria, and after a court trial defendant was
found beyond a reasonable doubt to meet those criteria. Defendant has not challenged the sufficiency
of the evidence. Nor has he shown that
dismissal of the petition because the protocol was invalid would have resulted
in an abandonment of the commitment proceedings. He has not shown it reasonably probable that
he would have been found not to be an SVP had he been evaluated under a
different protocol. Defendant has not
carried his burden to show prejudice. (Paterno
v. State of California (1999) 74 Cal.App.4th 68, 105.) Therefore, reversal based on use of the 2007
protocol is not warranted.
to the 2009 Protocol
Defendant contends that the 2009
protocol is not a valid “standardized assessment protocol†within the meaning of
section 6601, subdivision (c), because it fails to provide “any suggestion of direction or uniformity in the
evaluation process.â€
name="_ftnref2" title="">[2] Defendant argues that the 2009 protocol is
not “standardized†since “each step in the evaluation process is left to the
‘exercise of independent professional clinical judgment.’ †He states that, unlike under the 2007
protocol, “the assessments by evaluators [under the 2009 protocol] are
completely discretionary and can lead to unchecked abuse and arbitrary
results.â€
The People maintain that although
the 2009 protocol does not provide a step -by -step procedure for evaluators to
follow,
achieves standardization by “informing the evaluators of the requirements of
the law, the precise issue on which they are being asked to render an opinion,
and risk factors they are required to consider.
It requires the use of tests, instruments, and unenumerated risk factors
that have gained acceptance in the field of sex offender evaluation,†and
requires evaluators “to conform to peer-reviewed, professional norms.†The People also point out that defendant is
not entitled to dismissal because he has not shown prejudice. We agree.
“Where a statute empowers an
administrative agency to adopt regulations, such regulations ‘must be
consistent, not in conflict with the statute, and reasonably necessary to
effectuate its purpose.’ (
679; Gov. Code, § 11342.2.) The task of
the reviewing court in such a case ‘is to decide whether the [agency]
reasonably interpreted the legislative mandate.
[Citation.]’ †(
668, 679; see Gov. Code, § 11342.2.)
“The court, not the agency, has
‘final responsibility for the interpretation of the law’ under which the
regulation was issued.
[Citations.]†(
Equalization (1998) 19 Cal.4th 1, 11, fn. 4.) When a court reviews an agency’s
interpretation of a statute, however, the court “accords great weight and
respect to the administrative construction.â€
(Id. at p. 12.) By adopting the 2009 protocol and section
4005 of the regulations pursuant to section 6601, DMH impliedly construed the
statutory meaning of the term “standardized.â€
When “an agency has adopted an interpretative rule in accordance with
Administrative Procedure Act provisions-which include procedures (e.g., notice
to the public of the proposed rule and opportunity for public comment) that enhance
the accuracy and reliability of the resulting administrative ‘product’-that
circumstance weighs in favor of judicial deference.†(Id.
at p. 13.)
Defendant neither claims nor
demonstrates that DMH failed to comply with the APA when it adopted section
4005. Defendant also offers no
legislative history suggesting the Legislature intended any particular manner
of standardization. Section 6601 does
not expressly define “standardized,†and it appears the Legislature left
standardization to the expertise of DMH.
While defendant suggests that DMH’s
2009 protocol is inconsistent with the California Supreme Court’s decision in
so. In Ghilotti, the court stated that “an evaluator’s recommendation for
or against commitment or recommitment is invalid if there appears a reasonable
probability it was influenced by the evaluator’s legal error.†(Id.
at p. 895.) “An evaluator’s report is
infected with legal error if, on its face, it reflects an inaccurate
understanding of the statutory criteria governing the evaluation.†(Id. at.
p. 913.) Ghilotti requires that any legal error by the evaluator must also
be material. “An evaluator’s legal error
shall be deemed material if, and only if, (1) there appears a reasonable
probability, sufficient to undermine confidence in the outcome, that the error
affected the evaluator’s ultimate conclusion, and (2) a change in the
evaluator’s conclusion would either supply, or dissolve, the necessary
concurrence of two designated evaluators.â€
(Id at p. 913
Defendant does not make any of these showings. Defendant does not argue or present evidence
demonstrating a reasonable probability that the evaluations were influenced by
any legal error committed by the evaluators.
Defendant asserts that the
evaluators’ use of the 2009 protocol violates both his substantive and
procedural Constitutional right to due process under the 14th Amendment to the
United States Constitution. Assuming,
not meet the requirements of section 6601, violations of state law do not
necessarily amount to violations of the federal Constitution. “[The U.S. Supreme Court has] long recognized
that a ‘mere error of state law’ is not a denial of due process. [Citation.]
If the contrary were true, then ‘every erroneous decision by a state
court on state law would come [to this Court] as a federal constitutional
question.’ [Citations.]†(Engle
v. Isaac (1982) 456 U.S. 107, 121, fn. 21.)
Defendant cites no authority applying federal due process protections to
an alleged failure to adopt a “standardized assessment protocol†within the
meaning of section 6601.
Even if defendant’s
evaluations under the 2009 protocol amounted to error for lack of
standardization under section 6601, defendant fails to demonstrate that he was
prejudiced by the error. As explained in
Ronje, supra, 179 Cal.App.4th at pages 517-518, the Pompa-Ortiz rule, which applies to judicial review of irregularities
in preliminary hearing procedures, also applies to judicial review of an
evaluator’s use of an invalid standardized assessment protocol in SVP
proceedings. (Pompa-Ortiz, supra, 27
Cal.3d 519; see People v. Hayes (2006)
137 Cal.App.4th 34, 50-51 [Pompa-Ortiz rule
applies to denial of substantive rights and technical irregularities in SVP
proceedings].) Accordingly, since
defendant’s claim is presented posttrial, under Pompa-Ortiz, it “shall 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.†(
The record does not establish a
reasonable probability that defendant would not have been found to be an SVP
had he been evaluated under an assessment protocol meeting defendant’s
definition of “standardized,†and defendant has not challenged the sufficiency
of the evidence supporting the finding that he is an SVP.
Challenges to Indeterminate SVP Commitment
Before
the 2006 amendments to the SVPA, a person determined to be an SVP was committed
to DMH for a period of two years.
(Stats.1995, ch. 763, § 3, p. 5922; former §§ 6603, subd. (d), 6604.)
The commitment could not be extended beyond two years unless a new
petition was filed requesting a
successive two-year commitment. (Former §§ 6604, 6604.1; Cooley v.
Superior Court (2002) 29 Cal.4th 228, 243, fn. 5.) On the filing of a recommitment petition, a
new jury trial would be conducted at which the People would again have the
burden to prove beyond a reasonable doubt that the person remained an SVP. (Former §§ 6604, 6605, subds. (d), (e).) (McKee
I, supra, 47Cal.4th at p. 1185.)
The 2006 amendments to the SVPA
changed the length of SVP commitments from two years to an indefinite
term. “An SVP can only be released
conditionally or unconditionally if the DMH authorizes a petition for release
and the state does not oppose it or fails to prove beyond a reasonable doubt
that the individual still meets the definition of an SVP, or if the individual,
petitioning the court on his own, is able to bear the burden of proving by a
preponderance of the evidence that he is no longer an SVP. In other words, the method of petitioning the
court for release and proving fitness to be released, which under the former
Act had been the way an SVP could cut short his two-year commitment, now
becomes the only means of being released from an indefinite commitment
when the DMH does not support release.â€
(McKee I, supra, 47 Cal.4th at pp. 1187-1188.)
i.
Relying on McKee I,
defendant contends his indeterminate SVP commitment violates his federal
constitutional right to equal protection because it treats SVP’s significantly
less favorably than individuals civilly committed under different statutory
schemes.
In McKee I, the
California Supreme Court found that SVP’s, Mentally Disordered Offenders
(MDO’s), and defendants found not guilty by reason of insanity (NGI’s) are
similarly situated for purposes of an equal protection analysis of the length
of their respective commitments. (
1203, 1207.) Based on the liberty
interests at stake, the McKee I court
applied a strict scrutiny standard in its equal protection analysis. (Id. at
pp. 1207-1211.) Finding that the People
had not initially demonstrated a compelling state interest to justify
differential treatment, the majority returned the case to the trial court to
permit an evidentiary hearing on that
issue. (Id. at pp. 1208-1211.) After
a 21-day evidentiary hearing, the trial court found that SVP’s present a
substantially greater danger to society than do MDO’s and NGI’s. (McKee
II, supra, 207 Cal.App.4th at p. 1330.)
On appeal in McKee II,
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.]â€
(McKee II, supra, 207 Cal.App.4th at p.
1347.) The Supreme Court denied further
review.
We find the reasoning and conclusion of McKee II
persuasive. Defendant has not shown that
he would be able to introduce new evidence to support a result different from
that reached in McKee II. (See Landau,
1076; People v. McDonald (2013) 214
Cal.App.4th 1367;
Cal.App.4th 860, 863-864 [“It is plain that McKee II is
not to be restricted to Mr. McKee alone or only to those SVP’s convicted of
crimes against children, like him, but rather its holding applies to the class
of SVP’s as a whole.â€].)
ii.
To preserve federal review, defendant contends that
indeterminate commitment under the SVPA, as amended in 2006, (1) violates
show he no longer qualifies as an SVP; (2) is punitive in nature and violates
the ex post facto clause by punishing him for crimes committed before its
enactment; and (3) places him in double jeopardy because it constitutes
additional punishment for the crimes for which he has already been
punished. He concedes that the
California Supreme Court rejected similar claims in McKee I, and he acknowledges, as he must, that we are bound by the
holding in McKee I. (McKee
I, supra, 47 Cal.4th at pp. 1193,
1195; Auto Equity Sales,
450, 455.) Accordingly, we reject
defendant’s claims.
Assistance of Counsel
Defendant argues that if he is found
to have forfeited constitutional challenges to his indeterminate commitment for
failing to reassert objections below, then he was denied due process in his
civil commitment proceeding due to ineffective assistance of counsel. As the issue was raised in the alternative,
and we have not found any forfeiture, we do not reach the issue of counsel’s
effectiveness.
The
December 8, 2011 commitment order is affirmed. ____________________________________
Grover,
J.
WE
CONCUR:
____________________________
Premo, Acting, P.J.
____________________________
Mihara, J.
name="_ftn1" title="">[1] Further statutory references are to
the Welfare and Institutions Code unless otherwise noted.
name="_ftn2" title="">[2] The 2009 protocol is partly codified
in the California Code of Regulations, title 9, section 4005. Section 4005 entitled
“Evaluator Requirements†provides: “The
evaluator, according to his or her professional judgment, shall apply tests or
instruments along with other static and dynamic risk factors when making the
assessment. Such tests, instruments and
risk factors must have gained professional recognition or acceptance in the
field of diagnosing, evaluating or treating sexual offenders and be appropriate
to the particular patient and applied on a case-by-case basis. The term ‘professional recognition or acceptance’
as used in this section means that the test, instrument or risk factor has
undergone peer review by a conference, committee or journal of a professional
organization in the fields of psychology or psychiatry, including, but not
limited to, the American Psychological Association, the American Psychiatric
Association, and the Association for the Treatment of Sexual Abusers.â€
