P. v. Rose

 

 

 

 

 

 

 

 

 

Filed 6/24/13  P. v. Rose CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

----

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   WARREN DAVID ROSE, JR.,                           Defendant and Appellant.

C067448   (Super. Ct. No. 96F09863)

 

            In the
underlying civil commitment proceedings,
the trial court allowed the prosecution to relitigate the finding that Warren
David Rose, Jr., was not a sexually violent predator (SVP) at the time of his
prior release and failed to instruct the jury it must find changed
circumstances to establish that he currently suffers from a diagnosed mental
disorder that makes him dangerous and likely to engage in sexually violent
predatory criminal behavior upon release. 
(Welf. & Inst. Code, § 6602; People
v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902.)  The court disallowed evidence of a 1999 court
finding that he was not an SVP and a 2001 jury finding that he was, based on an
Evidence Code section 352 determination that the jury would be confused,
misled, or distracted.

            Fundamental
principles of res judicata and collateral
estoppel are not at the mercy of Evidence Code section 352.  By excluding the evidence and failing to
instruct the jury on the prosecution’s burden of proof, the court relegated the
collateral estoppel principles embodied in Turner
v. Superior Court (2003) 105 Cal.App.4th 1046 (Turner) and People v.
Munoz (2005) 129 Cal.App.4th 421 (Munoz)
to the vagaries of a section 352 balancing act, an error that was not
harmless beyond a reasonable doubt.  We
reject, however, defendant’s challenge to the constitutionality of the 2006
amendments to the Sexually Violent Predators Act (SVPA; Welf. & Inst. Code,
§ 6600 et seq.)href="#_ftn1"
name="_ftnref1" title="">[1]  We reverse the judgment of commitment and
remand the matter to the trial court. 
Rose is entitled to a jury trial in accordance with the views expressed
herein.

FACTS

            We extract
the relevant facts from 1982 through 2003 from an earlier opinion.  (People
v. Rose (Feb. 28, 2003,
C039548) [nonpub. opn.] (Rose I).)

            “In 1982,
defendant was 27 years old and serving in the United States Navy in Guam
when he committed violent sexual offenses against three eight-year-old
girls.  He was court martialed for these
offenses and sentenced to approximately seven years in federal prison.  He was paroled from federal custody in 1990.

            “Defendant
violated the terms of his parole by contacting, hitting, and twice raping his
ex-girlfriend who had told him she was no longer interested in being involved
with him.  He was returned to href="http://www.fearnotlaw.com/">federal prison for five years and released
in 1996.

            “Less than
a year after defendant’s release from prison, he reoffended by committing a
lewd act on a seven-year-old girl whom he was babysitting.  He was charged and convicted of violating
Penal Code section 288, subdivision (a) and sentenced to three year[s’]
imprisonment.

            “On June 8,
1999, prior to his completion of his three-year sentence, the prosecution filed
a petition to have him committed as an SVP, and attached two psychological
evaluations prepared by clinical psychologists Drs. Craig Updegrove and Dana E.
Putnam.  After a court trial, the
petition was found not true.

            “Defendant
completed his term of imprisonment and was released from prison in 2000.  He then promptly violated the terms of his
parole by failing to keep a log of his behavior and whereabouts, providing
false information to his parole officer, and having contact with minors.  On July 26, 2000, the prosecution filed a
second SVP petition, attaching three psychological evaluations, the first
evaluation prepared by Dr. Putnam and two new evaluations also prepared by
Drs. Putnam and Updegrove.

            “Drs.
Putnam and Updegrove testified at defendant’s jury trial and gave similar
diagnoses.  They both opined that
defendant was predatory within the meaning of the SVPA and that he suffered
from a diagnosed mental
disorder of pedophilia as defined by the American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000)
(DSM-IV-TR) [fn. omitted] and section 6600. 
Dr. Updegrove testified that defendant’s disorder affects his emotional
and volitional capacity and his impulse control and predisposes him to commit
criminal sexual acts, so that he is not able to control himself from acting on
his urges.  Both doctors concluded
defendant was likely to commit sexually violent predatory acts in the future
and that he fit the criteria of an SVP. 
Dr. Putnam defined ‘likely’ as greater than 50 percent.  Both doctors estimated that defendant’s
likelihood of reconviction was 33 percent at five years, 38 percent at
10 years, and 52 percent at 15 years.

            “The jury
found defendant to be a sexually violent predator and the trial court committed
him to the custody of the [Department of Mental Health] for a period of two
years.  (§§ 6604, 6604.1, subd.
(a).)”

            Defendant’s
commitment expired on October 10, 2003. 
The record is quite splotchy about the petitions filed and the
continuances granted between 2003 and the jury trial in January 2011.  An amended petition for an indeterminate
extension of the commitment of a sexually violent offender was filed in April
2007.  Suffice it to say that in 2010
defendant moved to dismiss the petition, arguing, “The prejudice to the respondent
here is plain; respondent has been incarcerated, based on this petition alone
for over seven years without going to trial after the expiration of his prior
commitment.”  There were no new
allegations of sexual misconduct or predatory behavior.

            Trial
commenced in 2011.  Relying on >Turner, supra, 105 Cal.App.4th 1046, defendant brought a motion in
limine to introduce evidence that in 1999 the court found he was not an
SVP.  The trial court, acknowledging that
pursuant to Munoz, >supra, 129 Cal.App.4th 421 evidence
that a jury found he was an SVP in 2001 was not admissible, concluded it would
mislead the jury to admit the not-true finding without apprising the jury of
the subsequent true finding.  The court
balanced the probative value of the not-true finding against the potential
prejudice and, pursuant to Evidence Code section 352, excluded the evidence of
both findings.

            The
prosecution’s case was built on the facts we described in the appeal of the
2001 jury finding.  Based on those facts,
Dr. Jesus Padilla opined that defendant remained an SVP likely to
reoffend.  A defense expert disputed the
diagnosis and prognosis for future dangerousness.  Defendant testified that he did not
participate in the treatment program in which approximately 150 to 175 of the
1,000 patients at Coalinga State Hospital participate because the doctors
favored castration and masturbation therapy; very few, if any, participants
were ever released; and patient disclosures were used against them in
court.  Employees at the hospital
testified that defendant was a model patient. 
He took advantage of educational programs, maintained friendships, never
used drugs or contraband, and avoided trouble.

            The jury
found defendant was an SVP within the meaning of section 6600, subdivision
(a).  The court committed defendant to
the Department of Mental Health for an indeterminate term.  Defendant appeals.

DISCUSSION

I

            An SVP is
“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)(1).)  If
certain preliminary requirements are met (§ 6601), a petition for
commitment can be filed, and if a court finds that there is “probable cause” to
believe the named defendant is likely to engage in sexually violent predatory
criminal behavior upon release (§ 6602, subd. (a)), a trial is
conducted “to determine whether the person is, by reason of a diagnosed mental
disorder, a danger to the health and safety of others in that the person is
likely to engage in acts of sexual violence upon his or her release . . .” (>ibid). 
The alleged SVP is entitled to a jury trial, a unanimous verdict, the
assistance of counsel, the right to retain experts to perform further
evaluations, and access to all relevant medical and psychological reports.  (§ 6603, subds. (a), (f).)  If a jury finds the allegation true, the SVP
is committed to the Department of Mental Health for an indeterminate term of
commitment from which the individual can be released if he proves by a
preponderance of the evidence that he no longer is an SVP.  (§ 6604; People
v. McKee (2010) 47 Cal.4th 1172, 1186-1187 (McKee I).)

            Given the fluid and changing nature of mental
health, the focus of any extension or recommitment hearing is whether the
individual has, at that moment in time, a diagnosed mental disorder and whether
he or she is currently
dangerous.  (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162 (>Hubbart).)  But since many of these individuals are
subjected to multiple hearings and multiple findings, the question arose as to
whether any of the preceding findings collaterally estopped relitigation of the
same issues in subsequent proceedings. 
In two landmark cases from the Fourth Appellate District, Division One,
the court examined the nuances of applying well-established principles of
collateral estoppel in civil commitment
proceedings.  We examine those cases
as a prelude to resolution of the issue now before us.

            Defendant relies, as he did in the
trial court, upon the notable case of Turner,
supra, 105 Cal.App.4th 1046.  Turner served 14 years of a combined 25-year
sentence, was found to be an SVP, and was committed to Atascadero State
Hospital for treatment for two years. 
The prosecution sought to recommit him for another two years, but a jury
found he was not a danger to the health and safety of others and was not likely
to engage in acts of sexual violence upon his release.  (Id.
at pp. 1051-1052.)  He was released from
custody.  (Ibid.)

            A mere three months later, Turner
was rearrested for a curfew violation.  His parole was revoked and he was returned to
custody for six months.  While still in
custody, the prosecution filed a petition seeking again to commit Turner under
the SVPA for another two-year term.  (>Turner, supra, 105 Cal.App.4th at p. 1052.)  “At the February 2002 probable cause hearing,
the district attorney submitted evidence of Turner’s 1984 and 1985 qualifying
convictions, and reports authored by the two forensic psychologists who had
supported the 1998 SVPA petition, Dr. Zinik and Dr. Malinek.  These psychologists stated that Turner has a
current mental disorder of paraphilia and sexual sadism, and opined that Turner
is likely to engage in future sexually violent predatory behavior.  Although both Dr. Zinik and Dr. Malinek
prepared these reports in connection with the February 2002 probable cause
hearing, and referenced events that took place after Turner was placed on
parole (i.e., the curfew violation), they reached these conclusions primarily
based on facts that had been before the jury in the prior trial when the jury
found Turner was not a sexually violent predator.”  (Id.
at pp. 1052-1053.)

            Turner argued that the finding that
he was not an SVP barred the district attorney from filing a new petition at
least until he was convicted and sentenced for the commission of a new
crime.  (Turner, supra, 105
Cal.App.4th at p. 1056.)  The
district attorney took the opposite position, that the not-true finding should
have no effect whatsoever once Turner was released and subsequently returned to
custody.  Applying basic principles of
collateral estoppel, the Court of Appeal rejected both extreme positions.  (Id.
at pp. 1057-1058.)

            We begin with a refresher on href="http://www.mcmillanlaw.com/">collateral estoppel.  Collateral estoppel gives conclusive effect
to an issue decided in a prior proceeding if “ ‘(1) the issue necessarily
decided at the previous proceeding is identical to the one which is sought to
be relitigated; and (2) the previous proceeding resulted in a final judgment on
the merits; and (3) the party against whom collateral estoppel is asserted
was a party or in privity with a party at the prior proceeding.’ ”  (People
v. Davis (1995) 10 Cal.4th 463, 514-515, fn. 10, quoting >People v. Meredith (1992) 11 Cal.App.4th
1548, 1556; see Lucido v. Superior Court
(1990) 51 Cal.3d 335, 341.)

            In Turner, the court concluded that collateral estoppel principles
apply in SVPA proceedings.  The court
reasoned, “If these principles did not apply, the integrity of the first
proceeding could be undermined and there would be serious questions about the
fundamental fairness of a scheme that would permit the government to file
successive petitions against an individual in the same forum and on the same
facts in a proceeding that could potentially result in a complete loss of
liberty for that individual.”  (>Turner, supra, 105 Cal.App.4th at p. 1057.)  Although the court held that the district
attorney was not forever barred from filing a later petition to show >current dangerousness at a later time,
the prior finding had “strong probative value as to the precise issue to be
decided in the current proceeding.”  (>Id. at p. 1059.)  “Accordingly, to establish probable cause in
the subsequent proceeding, the district attorney must present evidence of a
change of circumstances, i.e., that despite the fact the individual did not
possess the requisite dangerousness in the earlier proceeding, the
circumstances have materially changed so that he now possesses that
characteristic.”  (Id. at p. 1060.)

            The court examined the sufficiency
of the evidence of changed circumstances following the prior jury determination
that Turner was not an SVP.  The court
acknowledged that two psychologists referred to Turner’s curfew violation but
failed to state in their reports whether or how the violation affected the
determination that Turner was currently dangerous and likely to
reoffend.  (Turner, supra, 105 Cal.App.4th at p. 1062.)  The court concluded the prosecution
did not meet its burden to show
that, in light of the prior jury verdict, “there is a serious and well-founded
risk that Turner will engage in sexually violent criminal conduct upon his
release.”  (Id. at p. 1061.)  The
psychologists appeared oblivious to the finding or, at a minimum, to the
significance of the finding that Turner was not an SVP.  The court explained, “At the very least, the
prosecution’s supporting reports must contain information showing the
evaluating professionals understood and accepted, for purposes of the current
diagnosis, the prior jury finding as true, and then explain why despite that
prior finding, the facts are sufficiently different so that the individual is
now a dangerous person who is likely to reoffend within the meaning of the
SVPA.”  (Id. at p. 1062.)

            Two years
later the same court faced the opposite question.  The district attorney filed a petition
seeking the continued involuntary
treatment of Munoz as an SVP, relying in part on evidence of his two prior
commitments.  (Munoz, supra,
129 Cal.App.4th at p. 424.) 
Munoz objected to evidence and argument about his prior SVP commitments
based on the constitutional requirement that any SVP commitment must be based
on a currently diagnosed
mental disorder that makes it likely the
person will engage in sexually violent criminal behavior.  “The logical and constitutional necessity for
an independent finding of a current mental disorder rendering the defendant
dangerous arises not simply from the serious consequences that result from the
finding but from the variability of such disorders and their effect on
predictions of behavior.  While it is
certainly the case that the fact of a prior SVP commitment has some relevance
in determining whether a defendant has a currently diagnosed mental disorder,
that relevance is limited and great care must be taken in admitting evidence
concerning the prior commitment.”  (>Id. at p. 430.)

            The court acknowledged that a past
finding is relevant but it “has no res judicata effect with regard to the
issues of the defendant’s mental condition or dangerousness since, as noted
above, it dealt with a different issue, i.e., whether the defendant then had a >currently diagnosed mental disorder
rendering him dangerous.”  (>Munoz, supra, 129 Cal.App.4th at p. 431.)  The court distinguished >Turner, pointing out that it was based
on important due process considerations. 
“[U]nder some circumstances the fact of a prior finding in an SVP
proceeding favorable to a defendant was admissible, and indeed affected the
proof required to prove a defendant an SVP, in a later proceeding.”  (Ibid.)  The court in Munoz, citing Turner,
restated the basic principle that to establish probable cause to support an SVP
commitment, the prosecution had to establish a material change of circumstances
since the earlier proceeding such that the defendant was now dangerous.  (Id.
at p. 432.)  Nevertheless, the court
stated:  “This holding in >Turner does not suggest the converse,
i.e., that prior factual findings in an SVP hearing unfavorable to the defendant are admissible in a later SVP hearing.
. . .  The Turner opinion does not hold that the mental condition finding was
admissible in a subsequent SVP proceeding to prove appellant >still suffered from that
condition.”  (Ibid.)

            The court appreciated the danger of
increasing the defendant’s burden of proof. 
Thus, the court stated that nothing can be done to even suggest that the
defendant must prove he was no longer an SVP or to effectively lessen the
prosecution’s burden of proving he had a mental defect and was currently
dangerous.  (Munoz, supra, 129 Cal.App.4th
at p. 432.)  The court reversed the order committing Munoz
as a sexually violent predator because the evidence and argument “suggested
that the issue was whether anything had changed since [his] prior SVP
commitment.”  (Ibid.)

            The facts before us present a hybrid
of Turner and Munoz.  In 1999 the jury
found Rose was not an SVP.  His next
hearing to extend his commitment was held in 2001, before either >Turner or Munoz was decided.  Evidence
of the not-true finding in 1999 was not admitted in the 2001 proceeding, and
the jury was not instructed that it should consider whether there had been a
change of circumstances since the not-true finding.  In 2001 the jury found Rose was an SVP.

            On appeal from the order of
commitment, Rose argued that the 2001 petition to commit him to the Department
of Mental Health as an SVP was barred under res judicata and href="http://www.mcmillanlaw.com/">collateral estoppel because the issue
whether he was an SVP was determined in a trial nine months earlier on a prior
petition.  In an argument now reminiscent
of Turner’ s argument, he contended the second petition was barred.  We disagreed. 
We explained, “While the legal criteria under the statute will
necessarily be the same in any proceeding under the SVPA, the ultimate factual
issue to be determined under the two petitions is different because each one
looks to defendant’s current mental condition and dangerousness at the time he
is nearing his release from prison.  That
condition may change with the
passage of time as will the evidence necessary to prove the changed
condition.”  (Rose I, supra, C039548.)

            Our
conclusion that the second petition was not barred by the related doctrines of
res judicata and collateral estoppel is consistent with Turner as far as it goes.  In
Turner, the court also rejected the
defendant’s position that one not-true finding bars any subsequent
petitions.  But the critical holding in >Turner was whether the issues actually
litigated and decided by a jury in one proceeding could be relitigated in the
next.  Because Turner had not yet been decided when Rose’s 2001 order of
commitment was entered and appealed, the issue before us now was neither raised
nor determined.

            The trial
court believed that the only res judicata/collateral estoppel issues had been
resolved in our prior opinion.  Applying >Munoz, the court excluded evidence of
the jury’s 2001 true finding.  Rose
argued that the 1999 not-true finding was relevant and admissible under >Turner. 
The court held, pursuant to Evidence Code section 352, that the not-true
finding also would be excluded.  The
court explained that it would be unfair and misleading to allow the not-true
finding into evidence without also admitting the subsequent true finding.  The court erred by utilizing section 352 to
dismiss the important and genuine concerns protected by the href="http://www.fearnotlaw.com/">doctrine of collateral estoppel.

            It is true
that traditional notions of collateral estoppel are difficult to apply in SVP
commitment proceedings.  Both >Turner and Munoz recognized that historical information is crucial to an
expert’s evaluation of a defendant’s mental health and that often a jury will
learn that a defendant has been hospitalized. 
Moreover, a defendant’s mental health can, and often does, change.  Given that a jury is charged with assessing a
defendant’s current mental condition
to predict the risk of his current
dangerousness, collateral estoppel seems unlikely to bar evidence pertinent to
the jury’s essential task.

            But >Turner makes clear that facts involving
any mental defect and dangerousness existing at the time of a prior proceeding
finding him not to be an SVP cannot be relitigated.  A defendant may become dangerous after a
not-true finding due to a change in his mental health or other factors, but a
jury cannot simply reach a different conclusion based on the same evidence
presented to an earlier jury.  >Turner’s holding is thus consistent with
time-honored principles of collateral estoppel designed to protect the individual
from “the fundamental [un]fairness of a scheme that would permit the government
to file successive petitions against an individual in the same forum and on the
same facts” and the justice system from repetitive litigation.  (>Turner, supra, 105 Cal.App.4th at p. 1057.)

            The court’s Evidence Code section
352 analysis violated these basic principles. 
By excluding evidence of the prior jury’s not-true finding, the court
allowed the prosecution to relitigate the same issues, and by failing to
instruct the jury to focus on how the circumstances had changed since the prior
finding, the court disregarded Turner.  We must determine whether the error was
harmless beyond a reasonable doubt.

            Here again the factual similarity to
Turner is striking.  In both cases there was little evidence of a
change in the defendant’s mental condition following the respective jury’s
not-true finding.  Turner violated his
curfew; Rose failed to record his whereabouts for a short time in his log and
was seen talking to two adolescent boys as he repaired a car.  Neither had committed another sexual offense
or otherwise demonstrated dangerous behavior. 
In Turner, the court concluded
there was insufficient evidence to establish probable cause the defendant was
likely to engage in sexually violent conduct and directed the trial court to
dismiss the petition.

            Our case, unlike >Turner, does not involve writ
proceedings challenging a court’s determination of probable cause.  And it is true that a considerable period of
time has passed since the not-true finding and the finding on appeal.  Nevertheless, the psychologist here, as in >Turner, did not focus on any changed
circumstances other than the fact two adolescent boys were seen watching
defendant repair a car.  Given that none
of his prior offenses involved boys, he had not committed any offenses or
demonstrated dangerous behavior, and the jury was not instructed to focus on
any changes since 1999, we cannot say the error was harmless beyond a
reasonable doubt.

II

            In 2006 the SVPA was amended by
Proposition 83, an initiative measure. 
Rose contends the SVPA’s provisions for indeterminate terms of
commitment are closely analogous to a prison sentence for life, and therefore,
pursuant to section 231 of the Code of Civil Procedure, he was entitled to 20,
not 10, peremptory challenges.  We reject
the analogy.

            In a criminal case, the defendant is
entitled to 10 peremptory challenges unless the offense with which he or
she is charged is punishable by life in prison or death, in which case the number
of allowable peremptory challenges is increased to 20.  (Code Civ. Proc., § 231, subd. (a).)  In civil cases or in criminal cases with a
maximum term of imprisonment of 90 days or less, the parties are entitled
to six challenges.  (Code Civ. Proc., §
231, subds. (b), (c).)  Rose was allowed
10 peremptory challenges.

            The question, simply put, is whether
a commitment hearing under the SVPA is a civil or criminal proceeding.  The Legislature has been clear.  In enacting the SVPA in 1996, the Legislature
expressed that no punitive purpose was intended.  (Hubbart,
supra, 19 Cal.4th at pp. 1143-1144
& fn. 5.)  Rather, the stated purpose
of the commitment is to hold the person only so long as his or her mental
abnormality creates a danger to others. 
(§§ 6600, subd. (a), 6605, subd. (a), 6608, subds. (a),
(d).)  While the commitment may be
indeterminate, it is only potentially indefinite.  Unlike a criminal defendant sentenced to life
in prison, an SVP is entitled to the Department of Mental Health’s annual review
of his mental condition, and he retains the right to seek release from
confinement based on a showing that he no longer poses the requisite
danger.  (Ibid.)

            We conclude that the purpose of the
SVPA meets neither of the primary objectives of the criminal justice system,
retribution nor deterrence.  Nor is an
indeterminate commitment the functional equivalent of a life term in
prison.  Rather, a proceeding under the
SVPA remains civil in nature.  Thus, Rose
was not entitled to 20 peremptory challenges pursuant to Code of Civil
Procedure section 231 and, in fact, was the beneficiary of four more challenges
than he was entitled to.

III

            Rose launches a multifaceted
constitutional assault on the SVPA as amended in 2006.  Of course, as even he acknowledges, the
California Supreme Court rejected all but his equal protection challenge in >McKee, supra, 47 Cal.4th 1172.  We
are not at liberty to revisit those issues. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.)

            Defendant
contends that his equal protection rights were violated because SVP’s are
treated less favorably than those committed under other statutes, such as those
addressing mentally disordered offenders (MDO) (Pen. Code, § 2960) and persons
found not guilty by reason of insanity (NGI) (Pen. Code, § 1026 et seq.).  In McKee
I, the Supreme Court found that SVP’s, MDO’s, and NGI’s are similarly
situated for equal protection purposes because each is involuntarily committed
to protect the public from an individual who is dangerously mentally ill.  (McKee
I, supra, 47 Cal.4th at pp.
1202-1203, 1207.)  The court found no
question that after the initial commitment SVP’s were treated less favorably
because they were given indeterminate commitments with the burden of proving
they should be released, whereas MDO’s and NGI’s were committed for a
determinate term and had the right to be released unless the People proved
beyond a reasonable doubt that they should be recommitted.  (Ibid.)

            To justify
the disparate treatment of SVP’s, the Supreme Court in McKee I emphasized the People had to show on remand “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.”  (McKee I, supra, 47
Cal.4th at p. 1208.) Whether the People carried their burden under the equal
protection clause for such differential treatment was resolved in >People v. McKee (2012) 207 Cal.App.4th
1325, 1339, 1347-1348 (McKee II).

            In >McKee II, Division One of the Fourth
Appellate District affirmed the trial court’s determination 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).” 
(McKee II, >supra, 207 Cal.App.4th at
p. 1347.)  The People showed “ ‘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.” 
(Ibid.)  Based on the above, the court concluded “the
disparate treatment of SVP’s under the Act is reasonable and factually based
and was adequately justified by the People at the evidentiary hearing on
remand.”  (Id. at p. 1348.)  The SVPA,
therefore, did not violate equal protection. 
(Ibid.)

            As in >McKee II, we agree that defendant’s
equal protection rights were not violated by treating him differently from
MDO’s and NGI’s for commitment purposes. 
The indeterminate commitment procedures legitimately advance a
compelling state interest in protecting the public from an SVP like defendant
who carries a substantial, well-founded risk of reoffending and cannot control
his behavior, and who poses a greater risk to a particularly vulnerable class
of victims, such as children.  We
therefore reject defendant’s equal protection challenge.  (Accord, People
v. McDonald (2013) 213 Cal.App.4th 1367, 1371; People v. Landau (2013) 214 Cal.App.4th 1, 47-48; >People v. McCloud (2013) 213
Cal.App.4th 1076, 1085-1086; People v.
McKnight (2012) 212 Cal.App.4th 860, 863-864.)

DISPOSITION

            The order of commitment is reversed
and the case is remanded to the trial court; in the event there is a subsequent
jury trial, the trial court must, if asked, admit evidence of the 1999 not true
finding and instruct the jury it must determine whether the circumstances since
1999 materially have changed so that Rose now has a mental disorder making him
currently dangerous.

 

 

                                                                                              RAYE                           ,
P. J.

 

We concur:

 

 

          NICHOLSON              , J.

 

 

          MAURO                       ,
J.