Introduction
A petition filed in January 2008 alleged John McDonald was a sexually violent predator (SVP) within the meaning of the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA).
In March 2012, we ordered further proceedings in this matter suspended until the finality of proceedings on remand in People v. McKee (2010)
McDonald argues that by making a commitment indeterminate and by placing the burden on the SVP to obtain release, the SVPA violates the constitutional right to equal protection. We disagree. We agree with the reasoning and conclusion in McKee II that the SVPA’s provisions for indeterminate commitment and for placing the burden on the SVP to obtain release do not violate the equal protection rights of the person named in the SVPA petition. In reaching our decision, we join our colleagues in People v. Landau (2013)
As to McDonald’s other arguments, we conclude (1) McKee IPs holdings extend to the entire class of suspected SVP’s; (2) McKee II applied both the correct standard of appellate review and the equal protection strict scrutiny standard; (3) commitment to an indeterminate term under the SVPA does not
Procedural History and Facts
The initial SVPA petition, whiсh sought to commit McDonald for a two-year term, was filed in October 1999. Additional petitions for subsequent two-year commitment terms were filed in January of 2002, 2004, and 2006. Following a trial in August and September 2006, the trial court ordered McDonald’s commitment as an SVP for a two-year term ending on February 28, 2008. We affirmed the commitment order in People v. McDonald (Apr. 30, 2009, G041020) (nonpub. opn.).
The commitment petition filed in January 2008 sought to commit McDonald for an indeterminate term under the SVPA. In January 2011, McDonald waived his right to a jury trial and his right to be present in person at trial.
The trial on the January 2008 commitment petition was conducted on January 21, 2011. Dawn Starr, Ph.D., and Michael J. Selby, Ph.D., were the only witnesses who testified at trial.
Dr. Starr testified she conducted evaluations of McDonald in 2001, 2009, and 2010. Shе was able to interview McDonald only for the 2009 evaluation. In preparing the evaluations, Dr. Starr considered McDonald’s history of antisocial behavior and sex offenses, and she related that history at trial. In 1978, when he was 16 years of age, McDonald molested a six-year-old girl and was placed with the former California Youth Authority. Shortly after his release in 1982, McDonald met a 10-year-old boy and offered to pay him $15 if he would go to a boat dock with McDonald to help with some work. At the dock, the boy became suspicious and tried to run away. McDonald forced the boy into a shed, pulled down his own pants, and forced the boy to orally copulate him. McDonald told the boy he would nоt kill him if he promised not to tell. McDonald injected a clear substance into the boy’s arm and told the boy, “[t]his will make your penis grow.” McDonald released the boy, who was treated later for an infected hematoma of the left elbow.
McDonald had hired two brothers, ages 10 and eight, to work in McDonald’s home. In January 1983, the eight-year-old boy overheard McDonald make a lewd comment to the 10-year-old boy about oral copulation. An investigation
As a consequence of his actions in 1982 and 1983, McDonald was convicted of a total of 11 felony counts.
Dr. Starr used two actuarial tools, the Static-99R and the Static-2002R, to evaluate McDonald’s risk of reoffending. McDonald fell within the highest risk category for both tools. Dr. Starr concluded that McDonald presented a serious and well-founded risk of reoffending in a sexually violent manner. She diagnosed him with “pedophilia, sexually attracted to males and females but noting that it’s primarily been males.” Dr. Starr also diagnosed McDonald as having antisocial personality disorder and borderline personality disorder. She explained the relevance of that diagnosis by testifying: “The antisocial personality disorder and ... the borderline personality disorder [are] kind of like putting fuel on the fire of a paraphilic or a pedophilia diagnosis. Because if a person has these kinds of deviant inclinations but they don’t have a personality disorder, they might try to keep them in check. But if you have a person who has, for example, difficulty miking age-appropriate friendships or romantic relationships, who is immature and when he wants something acts out on it for immediate gratification, then it’s going to create an increased likelihood of sexually acting out.”
Dr. Selby conducted evaluations of McDonald in 2007 and 2010. Dr. Selby diagnosed McDonald as having “pedophilia, both sexes, nonexclusive type, as well as cognitive disorder not otherwise specified” and “[a]ntisocial personality disorder.” Dr. Selby concluded McDonald has “a very strong genetic predisposition for being sexually attracted to children . . . and that because of. . . his limited ability to control the strong urges that come to him, that he has less ability to act to control them and, therefore, would act out much more impulsively without thinking.”
McDonald, who was bom in 1962, lost all of his hearing in one ear and half of his hearing in the other ear when he was young. He has a history of acting aggressively and of having “seizure disorders,” and has been found to havе developmental disabilities. Attempts to determine his level of cognitive functioning have been inconclusive.
The trial court found McDonald to be an SVP and, in an order entered on January 21, 2011, ordered him committed for an indeterminate term to the DMH for appropriate treatment in a secured facility. McDonald timely appealed.
L
Equal Protection
A. Background: The SVPA
The SVPA provides for involuntary civil commitment of an offender immediately upon release from prison if the offender is found to be an SVP. (People v. Yartz (2005)
As originally enacted, the SVPA provided for a two-year term of confinement for persons civilly committed as SVP’s, subject to subsequent petitions for extended commitment. (Former § 6604.) The Legislature amended the SVPA, effective September 20, 2006, to provide for indeterminate commitment terms for persons determined to be SVP’s. (Stats. 2006, ch. 337, §§ 55, 56, 62, pp. 2665-2668.) In the Novеmber 2006 general election, California voters approved Proposition 83 (entitled “The Sexual Predator Punishment and Control Act: Jessica’s Law”), which also provided for indeterminate terms of commitment for SVP’s. (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 1, p. 127; id., §§ 27, 28, subd. (a), p. 137.) Proposition 83 went into effect on November 8, 2006. (Prop. 83, §§ 27, 28, as approved by voters, Gen. Elec. (Nov. 7, 2006); see Cal. Const., art. U, § 10, subd. (a).)
“[U]nder Proposition 83, an individual SVP’s commitment term is indeterminate, rather than for a two-year term as in the previous version of the
B. The Opinion in McKee I
In McKee I, the defendant, Richard McKee, asserted his indeterminate commitment under the Amended SVPA violated his constitutional rights to due process and equal protection. (McKee I, supra,
However, the Amended SVPA treats SVP’s more harshly than the similarly situated MDO’s in that MDO’s are not committed for an indeterminate period and cannot be confined beyоnd the statutory determinate term absent periodic proof beyond a reasonable doubt that the person continues to suffer from a mental disorder and is dangerous. (McKee I, supra, 47 Cal.4th at pp. 1201-1202.) “[I]mposing on one group an indefinite commitment and the burden of proving they should not be committed, when the other group is subject to short-term commitment renewable only if the People prove periodically that continuing commitment is justified beyond a reasonable doubt, raises a substantial equal protection question that calls for some justification by the People.” (Id. at p. 1203.)
Because the terms of commitment for SVP’s are substantially less favorable than those for MDO’s, the Supreme Court concluded the state must provide justification for the differential treatment. (McKee I, supra, 47 Cal.4th
The Supreme Court remanded the matter to the trial court to determine “whether the People, applying the equal protection principles . . . discussed in the present opinion, can demonstrate the constitutional justification for imposing on SVP’s a grеater burden than is imposed on MDO’s and NGI’s in order to obtain release from commitment.” (McKee I, supra, 47 Cal.4th at pp. 1208-1209.) In so doing, the Supreme Court emphasized two points. First, different classes of persons civilly committed need not be treated identically, and the government should have the opportunity to demonstrate the Amended SVPA’s indeterminate commitment provisions “are based on a reasonable perception of the unique dangers that SVP’s pose rather than a special stigma that SVP’s may bear in the eyes of California’s electorate.” (McKee I, supra, at p. 1210.) Second, “mere disagreement among experts will not suffice to overturn the Proposition 83 amendments.” (Ibid.) Thus, the trial court was directed to dеtermine only whether the legislative distinctions among classes of persons subject to civil commitment “are reasonable and factually based” and “not whether they are incontrovertible or uncontroversial.” (Id. at pp. 1210-1211.)
C. The Opinion in McKee II
On remand from McKee I, the trial court conducted a 21-day evidentiary hearing at which the People presented the testimony of eight witnesses and documentary evidence, and McKee presented the testimony of 11 witnesses and documentary evidence. (McKee II, supra, 207 Cal.App.4th at pp. 1330, 1332.) The trial court issued a 35-page statement of decision summarizing the testimony and documentary evidence presented at the hearing. (Id. at p. 1332.) The trial court found, “the People had met their burden to establish, by а preponderance of the evidence, that the disparate treatment of SVP’s under the [Amended SVPA] was based on a reasonable perception of the greater and unique dangers they pose compared to MDO’s and NGI’s.” (Ibid.) The court confirmed its prior order committing McKee to an indeterminate term. (Ibid.)
Division One of the Fourth Appellate District of the Court of Appeal applied a de novo standard of review to “independently determine whether the People presented substantial, factual evidence to support a reasonable
The California Supreme Court denied review of McKee II and the opinion is final.
We find the reasoning and conclusion of McKee II to be persuasive. Although, as McDonald argues, we are not bound by McKee II (Sard v. Salt Creek Ltd. (2008)
D. McDonald’s Challenges to McKee II
1. Whether the Equal Protection Claim Is to Be Decided on a Classwide Basis
In his supplemental letter brief, McDonald challenges the reasoning and applicability of McKee II on several grounds. First, McDonald argues he has a due process right to present his own evidence supporting an equal protection claim and “[t]he California Supreme Court did not designate the remand [of McKee /] as a test case representing all SVP’s who bring an equal protection challenge to an indefinite commitment.” We disagree; McKee I
In McKnight, supra, 212 Cal.App.4th at pages 863-864, the court stated: “McKnight also argues the Supreme Court intended that the post-McKee I remand would resolve the equal protection issue only as applied to Mr. McKee. This, too, is erroneous. McKee I recognized that the People could attempt to justify the [Amended SVPAj’s disparate impact in a variety of ways, and that these included showing that SVP’s as a class are significantly more likely to reoffend than MDO’s or NGI’s, showing they pose a greater risk to children (in which case the equal protection analysis would apply only to child predators), or by other, unspecified means. [Citation.] In light of that recognition, the court transferred the multiple ‘grant and hold’ cases under McKee I, including this one, to the Courts of Appeal with directions to vacate their prior opinions and suspend further proceedings until the McKee I remand proceedings were final, ‘in order to avoid an unnecessary multiplicity of proceedings.’ [Citations.] On remand, McKee [77] concluded that differences between SVP’s as a class and other offenders justify their different treatment under the [Amended SVPA]. 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.”
We agree with McKnight. In McKee I, supra,
■ 2. Whether the McKee II Court Applied the Correct Standard of Review
Second, McDonald argues the Court of Appeal in McKee II did not conduct the required de novo review because the opinion does not mention any evidence presented by the defense and does not discuss credibility or reliability of the People’s evidence. A panel of this court in Landau, supra, 214 Cal.App.4th at pagеs 47-48 rejected this argument. We do likewise.
Several pages of the McKee II opinion are devoted to a detailed review of the evidence presented at the remand hearing. The opinion notes disagreements in the expert testimony and concludes substantial evidence supported a reasonable inferеnce or perception that disparate treatment of SVP’s was necessary to further the state’s compelling interests in public safety and humane treatment of the mentally ill. (McKee II, supra, 207 Cal.App.4th at pp. 1339-1347.)
3. Whether the McKee II Court Applied a Strict Scrutiny Standard
Next, McDonald argues the Court of Appeal in McKee II did not apply a strict scrutiny standard to determine whether disparate treatment of SVP’s under the Amended SVPA was justified. We again disagree.
In McKee I, supra, 47 Cal.4th at pages 1208-1209, the Supreme Court directed the trial court to “apply[] the equal protection principles articulated in [In re] Moye [(1978)
McDonald argues the Court of Appeal erred in McKee II by failing to address whether indeterminate commitment was the least restrictive means available to advance a compelling state interest. In Bernal v. Fainter (1984)
In McKee II, supra,
4. Whether the McKee II Court Correctly Assessed the Evidence
McDonald argues the Court of Appeal’s assessment of the evidence in McKee II was flawed in these ways: (1) “in determining SVP’s were more
As to the first two points, the Court of Appeal in McKee II acknowledged the People’s evidence did not, by itself, support an inference that SVP’s have higher recidivism rates than do MDO’s and NGI’s. (McKee II, supra,
On the third point (McKee II’s failure to discuss McKee’s evidence), the Court of Appeal’s task as defined in McKee I was to independently review the evidence to determine whether the People had presented substantial evidence to support disparate treatment of SVP’s under the Amended SVPA. (McKee II, supra,
On the fourth point, McDonald argues the People’s evidencе presented in the postremand trial in McKee I was insufficient to support the Court of Appeal’s holdings in McKee II on the issues of recidivism, trauma to the
In arguing the Court of Appeal’s assessment of the evidence in McKee II was flawed, McDonald misreads the Supreme Court’s directions in McKee I. The Supreme Court did not require the People to produce uncontradicted evidence compelling a finding that, as an indisputable fact, SVP’s pose a substantially greater risk to society than do MDO’s or NGI’s. The Supreme Court, rеcognizing the importance of deferring to the Legislature or to the voters, framed the trial court’s task on remand as determining whether the legislative distinctions among SVP’s, MDO’s, and NGI’s are “reasonable and factually based,” and “not whether they are incontrovertible or uncontroversial.” (McKee I, supra, 47 Cal.4th at pp. 1210-1211.) Even if McKee had produced testimony contradicting the People’s witnesses in the postremand trial, “mere disagreement among experts will not suffice to overturn the Proposition 83 amendments.” (Id. at p. 1210.)
II.
Due Process, Ex Post Facto, and Cruel and/or Unusual Punishment
McDonald argues that his indeterminate commitment term under the Amended SVPA violated the due process and ex post facto clauses of thе United States and California Constitutions and constitutes cruel and/or unusual punishment. In McKee I, supra, 47 Cal.4th at pages 1193, 1195, the California Supreme Court held the Amended SVPA does not violate the due process or ex post facto clauses of the federal and state Constitutions. (See Landau, supra,
Although McKee I did not address a cruel and/or unusual punishment claim, it concluded the Amended SVPA was not punitive. (McKee I, supra, 47 Cal.4th at pp. 1194-1195.) In Kansas v. Hendricks (1997)
As the SVPA is not punitive, it does not violate the constitutional prohibition of cruel and/or unusual punishment.
m.
Double Jeopardy
McDonald argues his indeterminate commitment under the Amended SVPA violates the double jeopardy prohibitions of the federal and state Constitutions. Both the federal and the state Constitutions prohibit placing a person in jeoрardy twice for the same offense. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) The double jeopardy clause protects only against “the imposition of multiple criminal punishments for the same offense.” (Hudson v. United States (1997)
Because the Amended SVPA does not inflict punishment (McKee I, supra, 47 Cal.4th at pp. 1194—1195), McDonald’s indeterminate commitment under the Amended SVPA does not constitute double jeopardy. (See Landau, supra,
IV.
Single-subject Rule
McDonald argues Proposition 83 violated the single-subject rule for ballot initiatives set forth in article II, section 8, subdivision (d) of the California
The same argument was rejected by the Court of Appeal in People v. Kisling (2011)
We agree with Kisling and also conclude Proposition 83 did not violate the single-subject rule.
V.
Waiver of Right to Be Present at Trial
McDonald orally waived his right to be present at the trial of the January 2008 commitment petition. The trial court found the waiver to have been made “knowingly, intelligently, freely, and voluntarily” and excused
Penal Code section 977(b) provides that an accused’s right to be present during the trial of a felony charge can be waived only by a written waiver executed by the accused in open court. Section 977(b) does not apply to commitment proceedings under the SVPA because they are not felony prosecutions, but special proceedings of a civil nature. (People v. Yartz, supra, 37 Cal.4th at pp. 536-537.) The SVPA grants the committed person “the right to be present” at the commitment proceeding (§ 6605, subd. (d)), but does not require a waiver of that right to be in writing. Even if section 977(b) did apply to SVPA commitment trials, the trial court’s error in not securing a written waiver from McDonald was harmless because “the record makes clear that defendant voluntarily waived his right to be present, if only orally.” (People v. Huggins (2006)
A defendant in a proceeding under the SVPA is entitled to due process protection because civil commitment involves a significant deprivation of liberty. (People v. Otto (2001)
Federal due process does not bar a defendant from waiving the right to be present at trial. (People v. Breaux (1991)
The January 21, 2011 order of commitment is affirmed.
Rylaarsdam, Acting P. J., and Bedsworth, J., concurred.
Appellant’s petition for review by the Supreme Court was denied July 10, 2013, S210418.
Notes
Further code references are to the Welfare and Institutions Code unless otherwise indicated.
We refer to the SVPA, as amended by the Legislature’s 2006 amendments and Proposition 83, as the Amended SVPA.