PEOPLE v. McKEE

Filed 3/20/08

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Story Continued From Part II ..

III

Federal Constitutional Ex Post Facto Clause

McKee contends his involuntary commitment as an SVP for an indeterminate term under the Act, as amended by Proposition 83 in 2006, violated the federal constitutional prohibition against ex post facto laws because it is punitive and was applied to his conduct prior to its enactment. Although he concedes the California Supreme Court in Hubbart, supra, 19 Cal.4th 1138 rejected an ex post facto challenge to a two-year involuntary commitment under the pre-Proposition 83 version of the Act, he argues his indeterminate term under the amended Act shows the legislative intent of the Proposition 83 voters was to punish SVP's and therefore the Act violates the prohibition against ex post facto laws.

A

Article I, section 10, of the United States Constitution provides: "No State shall . . . pass any . . . ex post facto Law . . . ." The ex post facto clause prohibits only those laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts." (Collins v. Youngblood (1990) 497 U.S. 37, 43.)

In Kansas v. Hendricks, supra, 521 U.S. 346, the United States Supreme Court rejected an ex post facto challenge to Kansas's SVP statute. (Id. at pp. 362-368, 370-371.) A state legislature's stated intent regarding the purpose of a civil commitment statute is an important starting point in determining whether that statute is intended to punish SVP's, and courts should ordinarily defer to a legislative statement that the statute is not penal in nature. (Id. at p. 361.) Nevertheless, an appellant is not precluded from showing that the statute is so punitive either in purpose or effect as to negate the legislature's stated intent. (Ibid.) In attempting to do so, the appellant bears a heavy burden. (Ibid.)

In Hubbart, supra, 19 Cal.4th 1138, the California Supreme Court rejected an ex post facto challenge to the pre-Proposition 83 version of the Act. (Id. at pp. 1170-1179.) In so doing, the court noted that the Legislature, in originally enacting the Act, "disavowed any 'punitive purpose[],' and declared its intent to establish 'civil commitment' proceedings in order to provide 'treatment' to mentally disordered individuals who cannot control sexually violent criminal behavior. [Citations.] The Legislature also made clear that, despite their criminal record, persons eligible for commitment and treatment as SVP's are to be viewed 'not as criminals, but as sick persons.' [Citation.] Consistent with these remarks, the [Act] was placed in the Welfare and Institutions Code, surrounded on each side by other schemes concerned with the care and treatment of various mentally ill and disabled groups. [Citation.]" (Id. at p. 1171.) "Viewing the legislative record as a whole," the court reached a similar conclusion as the United States Supreme Court did in Hendricks (i.e., that the Legislature intended a nonpenal civil commitment scheme). (Hubbart, at p. 1172.)

Hubbart also followed Hendricks for guidance in determining whether the appellant had met his heavy burden to show the Act was so punitive either in purpose or effect to negate the Legislature's stated nonpunitive intent. (Hubbart, supra, 19 Cal.4th at p. 1172.) In Hendricks, the court concluded that neither reliance on the appellant's prior criminal conduct, nor his compulsory confinement, made the Kansas scheme punitive. (Hendricks, supra, 521 U.S. at pp. 362-363.) Hendricks concluded that the restriction of the freedom of the dangerously mentally ill was "a legitimate nonpunitive governmental objective and has been historically so regarded." (Id. at p. 363.) Therefore, Kansas's SVP act had neither a retribution nor a deterrence purpose or effect. (Id. at pp. 362-363.) Importantly for purposes of the instant case, Hubbart noted that Hendricks "also found that [the appellant's] concern over the possibility of indefinite commitment was misplaced." (Hubbart, at p. 1173.) Hendricks stated:

"Far from any punitive objective, the confinement's duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. [Citation.] If, at any time, the confined person is adjudged 'safe to be at large,' he is statutorily entitled to immediate release. [Citation.]"^[1] (Hendricks, supra, 521 U.S. at pp. 363-364, italics added.)

Hendricks also concluded that the commitment under the Kansas SVP act was not "disguised punishment" because treatment was at least an ancillary goal (in addition to confinement for protection of the public). (Id. at pp. 365-368.)

Applying Hendricks's reasoning to the pre-Proposition 83 version of the Act, Hubbart concluded the Act could not be "meaningfully distinguished for ex post facto purposes from the Kansas scheme considered in Hendricks. Both laws base the commitment determination, in part, on the commission of sexually violent predatory crimes." (Hubbart, supra, 19 Cal.4th at p. 1175.) Furthermore, as in Hendricks, the Act does not affix culpability or seek retribution for criminal conduct. (Hubbart, at p. 1175.) Accordingly, Hubbart concluded: "[T]he [Act] does not impose liability or punishment for criminal conduct, and does not implicate ex post facto concerns insofar as pre-Act crimes are used as evidence in the SVP determination." (Ibid.) Hubbart also rejected the claim that commitment under the Act was equivalent to a prison sentence. (Id. at p. 1176.) It rejected the assertion that the Act's provisions for conditional release under section 6608 (including placement of the burden of proof by a preponderance of the evidence on the petitioner) allowed confinement that likely would last longer than allowed under Hendricks. (Hubbart, at pp. 1176-1177.)

Hubbart noted that "the critical factor is whether the duration of confinement is 'linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.' [Citation.]" (Hubbart, supra, 19 Cal.4th at p. 1176.) Hubbart concluded: "Viewed as a whole, the [Act] is also designed to ensure that the committed person does not 'remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.' [Citation.]" (Id. at p. 1177.) In addition to the (pre-Proposition 83) Act's strict (two-year) limitation on each period of confinement, Hubbart also noted the provisions of sections 6605 and 6608 provided procedures for conditional and unconditional release during a period of confinement. (Hubbart, at p. 1177.) Hubbart concluded: "In light of [those] provisions, [the appellant] has not established that the [Act] imposes 'punishment' by continuing the confinement of persons who are no longer dangerously disturbed." (Id. at p. 1177, fn. omitted.) Therefore, Hubbart held: "[The appellant] has not demonstrated that the [Act] imposes punishment or otherwise implicates ex post facto concerns. We therefore decline to invalidate the statutory scheme insofar as it permits use in the civil commitment determination of sexually violent offenses committed before the effective date of the Act." (Id. at p. 1179.)

B

Although McKee acknowledges Hubbart rejected the ex post facto challenge to the pre-Proposition 83 version of the Act, he nevertheless argues that Proposition 83 evinced a punitive purpose and its amendment of the Act makes it punitive in purpose and effect and therefore violates the federal constitutional prohibition against ex post facto laws. In particular, he argues the Office of the Legislative Analyst prepared an analysis describing the comprehensive package of reforms included in Proposition 83, which analysis referred to amendments to the Penal Code increasing the punishment for sex offenses. However, McKee does not expressly quote or cite to any particular provisions of either that analysis or Proposition 83. In any event, any Penal Code amendments made by Proposition 83 that increased the punishment for various sex offenses have little, if any, relevance to the purpose or effect of Proposition 83's amendments to the Welfare and Institutions Code regarding civil commitments of SVP's (e.g., amendments of  6604 and 6605). Although both provisions were included within the comprehensive Proposition 83 package of reforms, the express punitive purpose of amendments to Penal Code criminal offenses does not show the voters had the same purpose in amending the civil commitment provisions of the Act. We are not persuaded that "[t]he voters would understand Proposition 83 as a punitive measure designed to increase the period of time sex offenders are held in custody," to the extent Proposition 83 amended the Act's civil commitment provisions for SVP's.

McKee alternatively argues that, applying a seven-factor test to Proposition 83's amendments to the Act, the effect of those amendments is punitive. Without discussing each of the seven factors set forth in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, we are not persuaded the application of that test shows the purpose and effect of those amendments to the Act were punitive and prevail over their stated nonpunitive legislative intent.^[2] Although the Act, as amended, provides for an indeterminate term of civil commitment ( 6604), that term is not comparable to an indeterminate prison term, which has historically been considered punitive. On the contrary, Hendricks concluded the restriction of the freedom of the dangerously mentally ill was "a legitimate nonpunitive governmental objective and has been historically so regarded." (Hendricks, supra, 521 U.S. at p. 363.) Regarding Kansas's SVP act, it stated: "Far from any punitive objective, the confinement's duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others." (Hendricks, at p. 363.)

Therefore, although the amended Act provides for an indeterminate term, that term's duration is linked not to punishment, but to its stated purpose of treating the committed person and protecting the public from those persons who currently are SVP's. Because there are procedures for release of a committed person who no longer is an SVP (e.g.,  6605, 6608), the indeterminate term provided by section 6604 does not show the amended Act is now punitive. Accordingly, Proposition 83's amendments to the Act do not require a different conclusion than reached by the California Supreme Court in Hubbart. (Hubbart, supra, 19 Cal.4th at pp. 1176-1177.) Furthermore, the amendments to the Act do not show its purpose or effect is retribution or deterrence. (Hendricks, supra, 521 U.S. at pp. 362-363; Hubbart, at p. 1175.) Also, the Act's reliance on a person's past criminal convictions does not show the Act has a punitive purpose or effect. (Cf. Hubbart, at p. 1175 ["[T]he [Act] . . . does not implicate ex post facto concerns insofar as pre-Act crimes are used as evidence in the SVP determination."].) Finally, none of the other Proposition 83 amendments to the Act show the Act's purpose or effect is punitive.^[3] Therefore, like the court in Hubbart, we conclude: "[The appellant] has not demonstrated that the [Act] imposes punishment or otherwise implicates ex post facto concerns." (Hubbart, supra, 19 Cal.4th at p. 1179.)

IV

Federal Constitutional Right to Equal Protection under the Law

McKee contends his involuntary commitment as an SVP under the Act, as amended by Proposition 83 in 2006, violated his federal constitutional right to equal protection under the law.

A

"The right to equal protection of the laws is guaranteed by the Fourteenth Amendment to the federal Constitution and article I, section 7 of the California Constitution. The 'first prerequisite' to an equal protection claim is ' "a showing that 'the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' " . . . ' [Citation.] [] 'Equal protection applies to ensure that persons similarly situated with respect to the legitimate purpose of the law receive like treatment; equal protection does not require identical treatment. [Citation.]' [Citation.] The state 'may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] Variation of the length and conditions of confinement, depending on degrees of danger reasonably perceived as to special classes of persons, is a valid exercise of power.' [Citation.]" (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1216-1217.)

"Strict scrutiny is the appropriate standard against which to measure claims of disparate treatment in civil commitment. [Citations.]" (People v. Green (2000) 79 Cal.App.4th 921, 924.) Applying the strict scrutiny standard, the state has the burden of establishing it has a compelling interest that justifies the law and the distinctions, or disparate treatment, made by that law are necessary to further its purpose. (Warden v. State Bar (1999) 21 Cal.4th 628, 641.) Alternatively stated, applying the strict scrutiny standard, a law "is upheld only if it is necessary to further a compelling state interest. [Citation.]" (People v. Buffington (1999) 74 Cal.App.4th 1149, 1156.)

B

McKee asserts the amended Act violates his federal constitutional right to equal protection of the law because SVP's under the Act are similarly situated to mentally disordered offenders (MDO's), who are civilly committed pursuant to Penal Code section 2960 et seq., and to persons found not guilty by reason of insanity (NGI's), who are civilly committed pursuant to Penal Code section 1026 et seq. He argues SVP's are, however, disparately treated from MDO's and NGI's, and that disparate treatment is not necessary to further any compelling state interest.^[4]

McKee argues SVP's and MDO's are similarly situated apparently because both are "committed for treatment because they represent a danger to the public because of a mental disorder." However, we are not persuaded that SVP's and MDO's are similarly situated and the Legislature has adopted a classification that affects them in an unequal manner. (People v. Hubbart, supra, 88 Cal.App.4th at p. 1216.) The classifications of an SVP and an MDO are different. An SVP is defined as "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).) In contrast, an MDO is generally defined as a person with a severe mental disorder that cannot be kept in remission without treatment and that was a cause or factor in the commission of a felony offense and, because of that severe mental disorder, represents a substantial danger of physical harm to others. (Pen. Code,  2962, subds. (a)-(e); People v. Allen, supra, 42 Cal.4th at p. 99.) Therefore, the dangers posed by an SVP and an MDO are different. An SVP is civilly committed for treatment and confinement, in part, because of the danger posed that he or she will likely engage in sexually violent criminal behavior in the future. An MDO is civilly committed for treatment and confinement, in part, because of a substantial danger he or she will physically harm others in the future. Although both SVP's and MDO's have mental disorders, the dangers they pose (which provide the bases for their respective civil commitments) are different and therefore they are not similarly situated.

Assuming arguendo that SVP's and MDO's are similarly situated, we nevertheless conclude their disparate treatment is necessary to further a compelling state interest. McKee notes that SVP's under the amended Act are given indeterminate commitments and thereafter have the burden to prove they should be released (unless the DMH authorizes a petition for release). In contrast, McKee notes that MDO's are committed for one-year periods and thereafter have the right to annual reviews of their confinement at which the People have the burden to prove beyond a reasonable doubt that he or she should be recommitted for another year. (See Pen. Code,  2970, 2972, subds. (a), (b), (e); People v. Allen, supra, 42 Cal.4th at pp. 99-100.) McKee argues: "There is no compelling state interest that is advanced by granting MDO defendants the right to judicial review every year of their custodial status but making [SVP] defendants subject to potentially a life term with no meaningful judicial review of their commitment."

First, an SVP's indeterminate term of civil commitment is subject to meaningful judicial review. Sections 6605 and 6608 provide an SVP with an opportunity for annual judicial review (provided his or her petition for release is not frivolous and is supported by sufficient factual allegations). Second, there is a compelling state interest in committing an SVP to an indeterminate term. The People argue SVP's are treated differently (i.e., given an indeterminate term of civil commitment) because they are less likely to be cured, more likely to reoffend, and therefore more dangerous. As the California Supreme Court noted, the Act, on its original enactment, "narrowly target[ed] 'a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders [who] can be identified while they are incarcerated." (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253.)

Thereafter, on passage of Proposition 83, the voters' information pamphlet for Proposition 83 noted: "Sex offenders have very high recidivism rates. According to a 1998 report by the U.S. Department of Justice, sex offenders are the least likely to be cured and the most likely to reoffend, and they prey on the most innocent members of our society. More than two-thirds of the victims of rape and sexual assault are under the age of 18. Sex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon." (Historical and Statutory Notes, 47A West's Ann. Pen. Code (2008 supp.) foll.  209, p. 462; see Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.)

Also, as we noted in People v. Shields, supra, 155 Cal.App.4th 559, the voters in passing Proposition 83 in 2006 intended to enhance the confinement of SVP's. (Shields, at p. 563.) In Shields, we stated: "Proposition 83 states that the change from a two-year term to an indeterminate term is designed to eliminate automatic SVP trials every two years when there is nothing to suggest a change in the person's SVP condition to warrant release . . . ." (Shields, at p. 564.) The change to an indeterminate term also was intended to reduce the costs of SVP evaluations and court testimony. (Bourquez v. Superior Court, supra, 156 Cal.App.4th at p. 1287.) Regarding the pre-Proposition 83 version of the Act, the California Supreme Court stated: "The problem targeted by the Act is acute, and the state interests--protection of the public and mental health treatment--are compelling." (Hubbart, supra, 19 Cal.4th at p. 1153, fn. 20, italics added.) Based on the evidence of the voters' intent in passing Proposition 83, we conclude that the changes made to the Act by Proposition 83, including changing the civil commitment from two years to an indeterminate term, were necessary to further compelling state interests. Therefore, the disparate treatment between SVP's under the amended Act and MDO's does not violate McKee's federal constitutional right to equal protection under the law.

C

McKee also summarily argues SVP's and NGI's are similarly situated. However, because McKee's opening brief contains no analysis showing how those two groups are similarly situated under the law, he has not carried his burden on appeal to persuade us that SVP's and NGI's are similarly situated to the extent the Legislature has adopted a classification that affects them in an unequal manner. (People v. Hubbart, supra, 88 Cal.App.4th at p. 1216.)

In any event, assuming arguendo SVP's and NGI's are similarly situated, we nevertheless reject his argument that the People have not shown their disparate treatment is necessary to further any compelling state interest. McKee notes that SVP's under the amended Act "do not have any right to compel a hearing on the merits regarding their committed status, and that deprivation continues indefinitely." In contrast, McKee notes that NGI's have the right to file a petition for release within 180 days after their initial commitments, which petition may not be summarily denied without a hearing. (See Pen. Code,  1026.2, subds. (a), (d); People v. Soiu (2003) 106 Cal.App.4th 1191, 1197.) However, we disagree with McKee's assertion that NGI's are treated more favorably than SVP's at the first evidentiary hearings on their respective commitments. First, we reject McKee's assertion that SVP's do not have any right to a hearing on the merits of their commitment. Even without the DMH's authorization under section 6605, an SVP is annually entitled to an evidentiary hearing on a petition for release if he or she can allege sufficient facts for a release hearing. ( 6608, subds. (a), (d).) A section 6608 petition for release of an SVP may be rejected without an evidentiary hearing only if that petition is frivolous or fails to allege sufficient facts for a hearing. ( 6608, subd. (a).)

Second, McKee does not show NGI's are treated more favorably than SVP's. McKee omits reference to the process by which NGI's are initially committed. California essentially follows an automatic civil commitment process for NGI's not unlike that described in Jones, supra, 463 U.S. 354, discussed above. Penal Code section 1026 provides: "If the verdict or finding be that the defendant was insane at the time the offense was committed, the court, unless it shall appear to the court that the sanity of the defendant has been recovered fully, shall direct that the defendant be confined in a state hospital for the care and treatment of the mentally disordered or any other appropriate public or private treatment facility approved by the community program director . . . ." Therefore, an NGI's initial civil commitment is automatic (i.e., without any evidentiary hearing regarding his or her continuing mental illness and dangerousness). It is not until 180 days after that automatic initial commitment that an NGI is entitled to an evidentiary hearing on those issues on the NGI's filing of an application for release. (Pen. Code,  1026.2, subds. (a), (d).) Furthermore, at that evidentiary hearing subsequent to the NGI's initial commitment, the NGI bears the burden to prove he or she is entitled to release by a preponderance of the evidence. (Pen. Code,  1026.2, subd. (k).)

Accordingly, the 180-day evidentiary hearing for NGI's treats NGI's less favorably than SVP's under the amended Act. SVP's initial civil commitments under the amended Act are not automatic. Rather, a person can be initially committed as an SVP only after an evidentiary hearing before a jury or court at which the People bear the burden to prove beyond a reasonable doubt that the person is an SVP under the amended Act. ( 6604.) Accordingly, the 180-day evidentiary hearing given an NGI following his or her automatic initial commitment cannot be considered more favorable treatment than that given an SVP. We conclude there is no disparate treatment between SVP's and NGI's that violates McKee's (as an SVP) federal constitutional right to equal protection of the law.^[5]

V

Sufficiency of the Evidence

McKee contends the evidence is insufficient to support the jury's finding at his civil commitment trial that he is an SVP under the amended Act.

A

Section 6600, subdivision (a)(1), provides: " 'Sexually violent predator' means 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." After the evidentiary phase of McKee's trial, the trial court instructed with a modified version of CALCRIM No. 3454:

"The petition alleges that Richard McKee is a sexually violent predator. [] To prove this allegation, the People must prove beyond a reasonable doubt that: [] 1. He has been convicted of committing sexually violent offenses against one or more victims; [] 2. He has a diagnosed mental disorder; [] AND [] 3. As a result of that diagnosed mental disorder, he is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavior; [] The term diagnosed mental disorder includes conditions either existing at birth or acquired after birth that affect a person's ability to control emotions and behavior and predispose that person to commit criminal sexual acts to an extent that makes him or her a menace to the health and safety of others. [] A person is likely to engage in sexually violent predatory criminal behavior if there is a substantial, serious, and well-founded risk that the person will engage in such conduct if released into the community. [] The likelihood that the person will engage in such conduct does not have to be greater than 50 percent. [] Sexually violent criminal behavior is predatory if it is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or a person with whom a relationship has been established or promoted for the primary person of victimization."

The jury found that McKee was an SVP within the meaning of the amended Act.

In reviewing the sufficiency of the evidence to support a person's civil commitment as an SVP pursuant to the Act, we apply the substantial evidence standard of review. (People v. Mercer (1999) 70 Cal.App.4th 463, 465-466.) "Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on the ' "isolated bits of evidence." ' [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, italics added in Cuevas.) We "must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) "We must therefore review the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . ." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)

Furthermore, "[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (People v. Jones, supra, 51 Cal.3d at p. 314.) In particular, "[t]he credibility of the experts and their conclusions [are] matters [to be] resolved . . . by the jury" and "[w]e are not free to reweigh or reinterpret [that] evidence. [Citations.]" (People v. Mercer, supra, 70 Cal.App.4th at pp. 466-467.) "The testimony of one witness [e.g., an expert witness], if believed, may be sufficient to prove any fact. (Evid. Code,  411.)" (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508.)

B

At trial, psychologist Richard Romanoff testified that he evaluated McKee on two occasions (in August 2004 and in January 2007) and determined on both occasions that McKee was an SVP. Romanoff testified that McKee suffered from pedophilia and had a schizoaffective disorder. Although McKee received mental health treatment and medication while in prison through 2004, he then stopped taking his medication. He then became hostile, denied having a mental illness, and denied having inappropriate prior sexual contact with children. Based on his evaluations, a review of McKee's prior history, and the results of a standard risk-assessment test (i.e., STATIC-99), Romanoff believed McKee's mental disorders made it difficult for him to control his sexual behavior and he was likely to engage in sexually criminal behavior in the future.^[6]

Psychologist Jack Vognsen testified he had evaluated McKee in October 2004 and attempted to evaluate him in 2006 and 2007, but McKee was uncooperative. Vognsen testified that McKee suffered from pedophilia and had a schizoaffective disorder. McKee's mental condition deteriorated after he discontinued his medication in 2004. Vognsen believed McKee had difficulty controlling his behavior and was likely to reoffend and therefore met the criteria of an SVP.^[7]

In McKee's defense, psychologist Nancy Rueschenberg testified that although he suffered from pedophilia and had a schizoaffective disorder, she believed McKee had a low risk of reoffending and therefore did not meet the criteria for an SVP.^[8]

McKee testified in his defense that he faked having a mental illness to survive in prison. He denied having prior inappropriate sexual contact with his niece and claimed his wife fabricated that story. He admitted having prior sexual contact with his babysitter (who was then 11 years old), but denied knowing her age at the time.

C

In challenging the sufficiency of the evidence to support the jury's finding that he is an SVP, McKee argues the evidence is insufficient to support the "likelihood" element of the definition of an SVP (i.e., as a result of his diagnosed mental disorders, he is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavior). In so doing, McKee acknowledges that two experts (Romanoff and Vognsen) testified that he was likely to reoffend and met the criteria of an SVP, but he nevertheless argues their expert testimony was insufficient to support the jury's finding because his expert (Rueschenberg) contradicted their conclusions (i.e., she testified McKee was not likely to reoffend and therefore did not meet the criteria of an SVP).

Although McKee argues the testing and evaluations conducted by Romanoff and Vognsen were unreliable indicators of the likelihood of reoffense, we must construe the evidence most favorably to support the verdict. McKee does not cite any evidence admitted at trial that shows the testing and evaluations conducted by Romanoff and Vognsen were inherently unreliable. Rather, he essentially argues his expert's (i.e., Rueschenberg's) opinion was more credible and should have been accepted by the jury instead of the contrary opinions of the People's experts (i.e., Romanoff and Vognsen). In particular, he argues his expert's calculation of his reoffense test score (i.e., STATIC-99) of two was more accurate than the other two expert's scores of three because those two experts admitted it was possible he had only two (and not three, as they understood his record) charged offenses and one conviction in 1991. However, the jury was charged with weighing the credibility of the experts' testimony and implicitly found the credibility of the testimonies of Romanoff and Vognsen more persuasive than the testimony of Rueschenberg. It is not our function on appeal to reweigh the evidence or the credibility of witnesses. (People v. Mercer, supra, 70 Cal.App.4th at pp. 466-467.)

Furthermore, Romanoff testified that he believed McKee fell within the 30 percent group of people that the STATIC-99 testing did not properly diagnose because of the high level of deviancy demonstrated by his (McKee's) history. Therefore, Romanoff necessarily concluded McKee was likely to reoffend and was an SVP even though he may have had only two charged offenses and one conviction in 1991 that could have resulted in a lower STATIC-99 score of two. Accordingly, considering the evidence favorably to support the verdict, we conclude there is substantial evidence to support the jury's finding that as a result of his diagnosed mental disorders, McKee is a danger to the health and safety of others because it is likely he will engage in sexually violent predatory criminal behavior.

VI

Refused Jury Instruction

McKee contends the trial court erred by refusing his proposed modification to the jury instruction (i.e., CALCRIM No. 3454) given by the trial court defining an SVP and describing the People's burden of proof. McKee requested the trial court add the following language to its instruction: " 'The diagnosed mental disorder must render the person unable to control . . . his dangerous behavior.' " Citing People v. Williams, supra, 31 Cal.4th 757, the trial court denied that proposed modification.

McKee acknowledges that Williams held his proposed language is not required in properly instructing a jury on the definition of an SVP, but he nevertheless raises this contention to preserve the purported error for purposes of federal court review. Williams concluded that because the Legislature's definition of an SVP should prevail, an instruction incorporating the language of the Act's definition of an SVP, but without additional impairment-of-control instructions, is constitutionally adequate. (People v. Williams, supra, 31 Cal.4th at pp. 774-777.) Williams stated that a jury properly instructed on the requirement of dangerousness because of a diagnosed mental disorder "necessarily understand[s] that one is not eligible for commitment under the [Act] unless his or her capacity or ability to control violent criminal sexual behavior is seriously and dangerously impaired. No additional instructions or findings are necessary." (Williams, at pp. 776-777, fn. omitted.) Because we are bound to follow this binding precedent of the California Supreme Court, we reject McKee's contention that the trial court erred by refusing his proposed modification to the court's instruction defining the elements of an SVP. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The order is affirmed.

CERTIFIED FOR PUBLICATION

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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^[1] However, unlike the post-Proposition 83 version of the Act, the Kansas SVP act required an evidentiary hearing to continue a person's confinement, at which hearing the trial court would have to find beyond a reasonable doubt that the person currently met the same standards required for the person's initial confinement. (Hendricks, supra, 521 U.S. at pp. 363-364.)

^[2] Although the seven factors set forth in Kennedy are useful guideposts, they are not dispositive of the question whether a statute violates the prohibition against ex post facto laws. (Smith v. Doe (2003) 538 U.S. 84, 97.)

^[3] Neither the change in section 6600, subdivision (a)'s definition of an SVP (i.e., a person convicted of a sexually violent offense against one, rather than two, victims), nor the change in 6600, subdivision (b)'s definition of a sexually violent offense to include additional offenses, show the amended Act's purpose or effect is punitive and requires a different conclusion.

^[4] As we concluded in part II.B., ante, McKee's facial equal protection challenge to the Act, as amended by Proposition 83, is ripe for review.

^[5] In any event, assuming arguendo SVP's and NGI's are similarly situated and receive disparate treatment, we nevertheless would conclude, as we discussed in part IV.B., ante, the disparate treatment is necessary to further compelling state interests and therefore does not violate McKee's federal constitutional right to equal protection under the law.

^[6] Romanoff's testing showed McKee had a STATIC-99 score of three, making him a moderate to low risk of reoffending. However, even had that test score been only two, Romanoff believed McKee was one of the 30 percent of persons for whom the STATIC-99 test did not diagnose properly. Therefore, Romanoff nevertheless believed McKee was an SVP.

^[7] Like Romanoff, Vognsen used the STATIC-99 test and calculated a score of three for McKee's likelihood of reoffense. Vognsen also used an older version of STATIC-99 (i.e., RRASOR) and calculated a score of three for McKee on that test.

^[8] Applying the STATIC-99 test, Rueschenberg calculated a score of two for McKee, giving him a lesser likelihood of reoffense than a score of three. She also considered both static and dynamic factors in concluding McKee had a low risk of reoffense, but those factors did not cause her to adjust McKee's STATIC-99 score.