Opinion
Richard McKee appeals an order entered by the trial court on remand after the California Supreme Court’s decision in People v. McKee (2010) 47 Cal.4th 1172 [104 Cal.Rptr.3d 427, 223 P.3d 566] (McKee). Following an evidentiary hearing, the trial court confirmed McKee’s indeterminate-term civil commitment as a sexually violent predator (SVP) under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.; Act or SVP Act),
Following a 21-day evidentiary hearing, the trial court concluded the People met their burden to justify the disparate treatment of SVP’s under the standards set forth in McKee. On appeal, McKee contends the trial court erred by finding the People met that burden. We conclude the trial court correctly found the People presented substantial evidence to support a
FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2004, a petition was filed to establish McKee as an SVP within the meaning of the Act. The petition alleged McKee was “a person who has been convicted of a sexually violent offense against two or more victims for which he was sentenced and who has a diagnosed mental disorder that makes him a danger to the health and safety of others, in that it is likely he will engage in sexually violent predatory criminal behavior.” It alleged he had been convicted of two counts of committing lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)). One victim was an 11-year-old girl and the other was an eight-year-old girl.
On March 5, 2007, an amended petition was filed restating the original petition’s factual allegations and requesting that McKee be committed to the DMH’s custody for an indeterminate term pursuant to the Act (as amended on Nov. 7, 2006, by the electorate’s passage of Prop. 83). Following a five-day trial, the jury returned a verdict finding McKee was an SVP within the meaning of the Act and the trial court issued an order committing him to the custody of the DMH for an indeterminate term pursuant to the Act. (McKee, supra, 47 Cal.4th at pp. 1184—1185.) McKee filed a notice of appeal challenging that order. (Id. at p. 1185.) On appeal, we rejected McKee’s claims that the indeterminate commitment under Proposition 83 violated federal or state due process, ex post facto or equal protection provisions; we also rejected his challenges to the sufficiency of the evidence and adequacy of the jury instructions. (47 Cal.4th at p. 1185.) The California Supreme Court granted review and limited the issues to whether the Act, as amended by Proposition 83, violated McKee’s constitutional rights under the due process, equal protection, and ex post facto clauses. (47 Cal.4th at p. 1185.)
In McKee, the California Supreme Court rejected McKee’s due process and ex post facto claims. (McKee, supra, 47 Cal.4th at pp. 1188-1195.) However, the court disagreed with our conclusion that SVP’s were not similarly
After the case was remanded to the trial court following McKee, the trial court conducted an evidentiary hearing to determine whether the People could justify the Act’s disparate treatment of SVP’s under the strict scrutiny standard for equal protection claims. At the hearing, the People presented the testimony of eight witnesses and documentary evidence. The trial court also allowed McKee to present evidence; he presented the testimony of 11 witnesses and documentary evidence. The court issued a 35-page statement of decision summarizing the extensive testimonial and documentary evidence presented at the hearing and finding the People had met their burden to establish, by a preponderance of the evidence, that the disparate treatment of SVP’s under the Act was based on a reasonable perception of the greater and unique dangers they pose compared to MDO’s and NGI’s. Accordingly, the court confirmed its March 13, 2007, order committing McKee to the custody of the DMH for an indeterminate term under the Act. McKee timely filed a notice of appeal.
DISCUSSION
I
The SVP Act and Proposition 83
In McKee, the California Supreme Court summarized the SVP Act and Proposition 83 ’s 2006 amendment of the Act (McKee, supra, 47 Cal.4th at pp. 1185-1188), which summary we quote in large part as follows;
“The Act, as originally enacted (Stats. 1995, ch. 763, § 3, p. 5922), provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, by a unanimous jury verdict after trial (. . . former §§ 6603, subd. (d), 6604), are found beyond a reasonable*1333 doubt to be an SVP (former § 6604). [Citations.] A person’s commitment could not be extended beyond that two-year term unless a new petition was filed requesting a successive two-year commitment. [Citations.] On filing of a recommitment petition, a new jury trial would be conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. [Citations.] . . .
“As originally enacted, an SVP was defined as ‘a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence 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.’ (Former § 6600, subd. (a).) A ‘sexually violent offense’ included a Penal Code section 288 lewd act on a child under age 14. [Citations.] Under the Act, a person is ‘likely’ to engage in sexually violent criminal behavior (i.e., reoffend) if he or she ‘presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.’ [Citation.] [¶] . . . [¶]
“On November 7, 2006, California voters passed Proposition 83, entitled ‘The Sexual Predator Punishment and Control Act: Jessica’s Law’ amending the Act effective November 8, 2006. . . . Proposition 83 . . . changes an SVP commitment from a two-year term to an indefinite commitment. . . .
“Pursuant to Proposition 83, section 6604, which had prescribed a two-year term for SVP’s, now provides in relevant part: ‘If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement . . . .’ (Italics added.) Proposition 83 did not change section 6604’s requirement that a person’s initial commitment as an SVP be proved at trial beyond a reasonable doubt. Under Proposition 83, section 6605 continues to require current examinations of a committed SVP at least once every year. (§ 6605, subd. (a).) However, Proposition 83 added new provisions to section 6605 regarding the DMH’s obligations: Pursuant to section 6605, subdivision (a), the DMH now files an annual report in conjunction with -its examination of SVP’s that ‘shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community.’ Subdivision (b) now provides that ‘[i]f the [DMH] determines that either: (1) the person’s condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the
“In the event the DMH does not authorize the committed person to file a petition for release pursuant to section 6605, the person nevertheless may file, as was the case with the pre-Proposition 83 Act, a petition for conditional release for one year and subsequent unconditional discharge pursuant to section 6608. (§ 6608, subd. (a).) Section 6608, subdivision (i), which was also unamended by the Act, provides: ‘In any hearing authorized by this section, the petitioner shall have the burden of proof by a preponderance of the evidence.’ (Italics added.) After a trial court denies a section 6608 petition, ‘the person may not file a new application until one year has elapsed from the date of the denial.’ (§ 6608, subd. (h).)
“In short, under Proposition 83, an individual SVP’s commitment term is indeterminate, rather than for a two-year term as in the previous version of the Act. 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 [or her] own, is able to bear the burden of proving by a preponderance of the evidence that he [or she] 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 [or her] two-year commitment, now becomes the only means of being released from an indefinite commitment when the DMH does not support release.” (McKee, supra, 47 Cal.4th at pp. 1185-1188, fns. omitted.)
II
Equal Protection Clause and McKee
Equal Protection Clause.
“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
“Strict scrutiny is the appropriate standard against which to measure claims of disparate treatment in civil commitment.” (People v. Green (2000) 79 Cal.App.4th 921, 924 [94 Cal.Rptr.2d 355].) Applying the strict scrutiny standard, the state has the burden of establishing it has a compelling interest that justifies the law and that 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 [88 Cal.Rptr.2d 283, 982 P.2d 154].) Alternatively stated, applying the strict scrutiny standard, a law “is upheld only if it is necessary to further a compelling state interest.” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1156 [88 Cal.Rptr.2d 696].)
McKee.
On review before the California Supreme Court in this case, McKee contended “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 because it treats SVP’s significantly less favorably than those similarly situated individuals civilly committed under other statutes.” (McKee, supra, 47 Cal.4th at p. 1196.) McKee extensively discussed In re Moye (1978) 22 Cal.3d 457 [149 Cal.Rptr. 491, 584 P.2d 1097] (Moye), which the court considered to be “highly relevant to assessing McKee’s [equal protection] claim.” (McKee, at p. 1196.) Moye applied the strict scrutiny standard in reviewing the equal protection claim by an NGI who asserted that although NGI’s are similarly situated to mentally disordered sex offenders (MDSO’s), NGI’s, unlike MDSO’s, are retained in civil commitment in the custody of the DMH after the maximum term of their underlying offense without a further commitment proceeding in which the People bear the burden of proof. (Moye, at pp. 460-462.) Moye stated: “Because petitioner’s personal liberty is at stake, the People concede that the applicable standard for measuring the validity of the statutory scheme now before us requires application of the strict scrutiny standard .of equal protection analysis. Accordingly, the state must establish both that it has a ‘compelling interest’ which justifies the challenged procedure and that the distinctions drawn by the procedure are necessary to further that interest. [Citation.] At the very least, persons similarly situated must receive like treatment under the law.” (Moye, supra, 22 Cal.3d at pp. 465-466.)
McKee then addressed the burden the People bear in justifying the Act’s disparate treatment of SVP’s, stating: “We do not conclude that the People could not meet [their] burden of showing the differential treatment of SVP’s is justified. We merely conclude that [they have] not yet done so. Because neither the People nor the courts below properly understood this burden, the People will have an opportunity to make the appropriate showing on remand. It must be shown 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. This can be shown in a variety of ways. For example, it may be demonstrated that the inherent nature of the SVP’s mental disorder makes recidivism as a class significantly more likely. Or it may be that SVP’s pose a greater risk to a particularly vulnerable class of victims, such as children. Of course, this latter justification would not apply to SVP’s who have no history of victimizing children. But in the present case, McKee’s previous victims were children. Or the People may produce some other justification.” (McKee, supra, 47 Cal.4th at pp. 1207-1208, italics added, fn. omitted.) McKee directed the case be remanded “to the trial court to determine whether the People, applying the equal protection principles articulated in Moye and related cases discussed in the present opinion, can demonstrate the constitutional justification for imposing on SVP’s a greater burden than is imposed on MDO’s and NGI’s in order to obtain release from commitment.” (McKee, at pp. 1208-1209, fn. omitted.)
McKee emphasized that “different classes of individuals civilly committed need not be treated identically.” (McKee, supra, 47 Cal.4th at p. 1210.) The court noted that in Conservatorship of Hofferber (1980) 28 Cal.3d 161 [167 Cal.Rptr. 854, 616 P.2d 836], it “acknowledged the government’s legitimate capacity to make reasonable distinctions: ‘The state has compelling interests in public safety and in humane treatment of the mentally disturbed. [Citation.] It 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 state power.’ [Citation.] Moreover, we have recognized ‘the importance of deferring to the legislative branch in an area which is analytically nuanced and dependent upon medical science.’ [Citation.] But the government has not yet shown that the special treatment of
McKee gave the following guidance to the trial court on remand: “[M]ere disagreement among experts will not suffice to overturn the Proposition 83 amendments. The trial court must determine whether the legislative distinctions in classes of persons subject to civil commitment are reasonable and factually based—not whether they are incontrovertible or uncontroversial. The trial court is to determine not whether the statute is wise, but whether it is constitutional.” (McKee, supra, 47 Cal.4th at pp. 1210-1211, fn. omitted.)
III
Standard of Review
McKee asserts, and we agree, that we review de novo the trial court’s determination whether the Act, as amended by Proposition 83, violates his equal protection rights. We independently determine whether the People presented substantial, factual evidence to support a reasonable perception that SVP’s pose a unique and/or greater danger to society than do MDO’s and NGI’s, thereby justifying the disparate treatment of SVP’s under the Act. Although the trial court heard the testimony of many witnesses and received in evidence many exhibits, the instant constitutional question involved mixed questions of law and fact that are predominantly legal, if not purely legal questions, which are subject to de novo review. (People v. Ault (2004) 33 Cal.4th 1250, 1264 [17 Cal.Rptr.3d 302, 95 P.3d 523]; People v. Cromer (2001) 24 Cal.4th 889, 901 [103 Cal.Rptr.2d 23, 15 P.3d 243].) Furthermore, because in this case the trial court presumably did not decide any disputed historical facts, but determined only whether the People presented sufficient evidence to support a reasonable perception that SVP’s pose a greater danger to society, we are in as good a position as the trial court to make that determination.
IV
The Evidence Presented by the People to Justify the Disparate Treatment of SVP’s
McKee contends the People did not meet their burden on remand to present evidence to justify the disparate treatment of SVP’s under the Act. To justify that disparate treatment of SVP’s, the California Supreme Court stated in McKee that the People on remand must show “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. This can be shown in a variety of ways. For example, it may be demonstrated that the inherent nature of the SVP’s mental disorder makes recidivism as a class significantly more likely. Or it may be that SVP’s pose a greater risk to a particularly vulnerable class of victims, such as children. Of course, this latter justification would not apply to SVP’s who have no history of victimizing children. But in the present case, McKee’s previous victims were children. Or the People may produce some other justification.” (McKee, supra, 47 Cal.4th at p. 1208, italics added, fn. omitted.) Following McKee’s guidance, the People presented evidence on each of those alternative grounds.
Recidivism.
The People presented evidence showing the inherent nature of the SVP’s mental disorder makes recidivism significantly more likely for SVP’s as a class than for MDO’s and NGI’s. (McKee, supra, 47 Cal.4th at p. 1208.) In a summary manner, we describe that evidence. The trial court took judicial notice of two studies conducted by the United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics (DOJ). In a 1989 report, the DOJ reviewed the rates of recidivism of prisoners released in 11 states, including California, in 1983 for the three-year period following their release. As the trial court noted, that report concluded sex offenders generally reoffended at a higher rate than homicide offenders, but less often than property crime offenders. Released rapists were 10.5 times more likely to have a subsequent arrest for rape than nonrapists. Also, prisoners released for other sexual assaults were 7.5 times more likely to be arrested for a subsequent sexual assault than prisoners released for offenses other than sexual assault. In a 2003 report, the DOJ reviewed the rates of recidivism of sex offenders released from prisons in 15 states, including California, in 1994 for the three-year period following their release. That report concluded released sex offenders were four times more likely to be rearrested for a sex offense than nonsex offenders. Although as McKee notes, neither of those reports specifically reviewed the sexual reoffense rates of SVP’s (as a subset of all sex offenders), we believe that one could reasonably infer from those reports, when considered with other testimony described below, that the sexual reoffense rates of SVP’s, if released, would be equal to, if not greater than, the sexual reoffense rates of other sex offenders.
Dr. David Thornton, a psychologist, testified for the People. He is the treatment director for the Wisconsin SVP program at the Sandridge treatment center. Thornton testified that sex offenders have a higher rate of sexual recidivism (i.e., risk of sexual offending) than nonsex offenders. Referring to a 2009 report of the Massachusetts Department of Corrections regarding the recidivism rates of inmates released in 2002, Thornton testified that nonsex offenders had a 0.30 percent recidivism rate for a sex crime, while sex offenders had a 5.76 percent recidivism rate for a sex crime, making released sex offenders about 19 times more likely to commit a sex crime. Thornton was a codeveloper of the Static-99 test, a tool used to assess the risk that a sex offender will reoffend. He testified that given a group of sex offenders (e.g., SVP’s) who have average Static-99 scores of between 5 and 6, he would expect them as a class to have a lifetime recidivism rate of between 50
Dr. Rebecca Jackson, a psychologist, testified that she is the chief psychologist for South Carolina. Jackson discussed a 2007 study of 135 State of Washington sexual offenders who were referred for civil commitment under its SVP program, but for which no civil commitment petitions were filed by prosecutors. During the six-year period following their release from prison, 23 percent were reconvicted for new felony sex offenses. An additional 10 percent were reconvicted for felony nonsex offenses (although six of them had been arrested for a felony sex offense). In comparison, general sex offenders who were released (i.e., those not referred for the SVP program) had only a 2.7 percent recidivism rate for new felony sex offenses. The 2007 study concluded sex offenders referred for the SVP program (but for whom no commitment petitions were filed) had a much higher rate of sexual recidivism than general sex offenders who were released. Jackson testified that SVP’s generally have Static-99 scores averaging between 5.4 (Wn.) and 6.17 (Wis.), whereas the average or mean Static-99 score for non-SVP sex offenders was only 3 (with a median score of only 2).
Dr. Robert Prentky, a psychologist and an expert on sexual violence, testified that studies have shown sex offenders generally have a reoffense rate of between 10 and 15 percent. However, he has never seen a study comparing recidivism rates of sex offenders with that of MDO’s. Furthermore, although the DOJ’s studies and other studies have not calculated the recidivism rates of SVP’s versus other sex offenders, he believed the recidivism rates of sexual offenders who are civilly committed (e.g., SVP’s) would be higher than the recidivism rates of sex offenders in general.
The People also presented DMH data (trial court exhibit 5) showing a significant difference between the Static-99 scores of SVP’s and those of MDO’s/NGI’s. The average Static-99 score for all SVP’s civilly committed since the passage of the amended Act in 2006 is 6.19. According to another exhibit (trial court exhibit 8), that score places SVP’s in the “high” risk category for sexual reoffense. In comparison, the average Static-99 score for MDO’s at Patton State Hospital subject to Penal Code section 290 registration requirements in 2010 was only 3.6, placing them in the “moderate-low” risk category for sexual reoffense. Also, the average Static-99 score for all patients discharged from Atascadero State Hospital since January 1, 2010, subject to Penal Code section 290 registration requirements (which group
The electorate that passed Proposition 83 could reasonably infer from the above evidence that the sexual reoffense rates of SVP’s, if released, would be equal to, if not greater than, the sexual reoffense rates of other sex offenders. However, as McKee argues, that evidence, by itself, does not support a reasonable inference that SVP’s have higher sexual recidivism rates than do MDO’s and NGI’s. Therefore, the People’s evidence on actual rates of sexual recidivism shows the inherent nature of the SVP’s mental disorder makes recidivism as a class significantly more likely than recidivism of sex offenders generally, but does not show SVP’s have, in fact, a higher sexual recidivism rate than MDO’s and NGI’s. Nevertheless, that recidivism rate evidence, as the trial court concluded, “is significant, given that the goal of the SVP Act is specifically to protect society from particularly serious sexual offenses, and in light of the additional evidence presented that sexual crimes cause a different and more severe harm than most other crimes.” Regardless of the shortcomings or inadequacy of the evidence on actual sexual recidivism rates, the Static-99 evidence discussed above supports, by itself, a reasonable inference or perception that SVP’s pose a higher risk of sexual reoffending than do MDO’s or NGI’s.
B
Greater trauma of victims of sexual offenses.
The People presented evidence that the victims of sex offenses suffer unique and, in general, greater trauma than victims of nonsex offenses. As the trial court noted, this factor is relevant to McKee’s factor of whether SVP’s pose a greater risk to a particularly vulnerable class of victims than do MDO’s and NGI’s. (McKee, supra, 47 Cal.4th at p. 1208.)
Dr. Robert Geffner, a psychologist, testified regarding the effects of trauma on victims. Sexual trauma differs qualitatively from other traumas because of its intrusiveness and long-lasting effects. Sexual assault or abuse adversely affects victims psychologically, physiologically, socially, and neuropsychologically. Child abuse is the highest predictor of mortality in adults (although research does not always distinguish between physical or sexual abuse). Sexual assault victims generally feel guilty and have low self-esteem. They are more likely to be obese, abuse substances, commit suicide, and have sexuality issues. They acquire vulnerability that can be detected by sex offenders, making them more likely to be revictimized. Sexual abuse causes the greatest trauma of adverse childhood experiences.
Dr. Jon Conte, a social work professor, testified he had interviewed thousands of victims of sexual abuse. His testimony regarding the effects of sexual abuse was generally consistent with that of Drs. Geffner and Urquiza. Studies show sexual assault or abuse is a major cause of many mental health issues, including depression, PTSD, anxiety, phobias, cognitive distortions, disassociation, substance abuse, and intimacy problems. Also, victims of sexual abuse have a reduced quality of fife.
Based on the testimony of Drs. Geffner, Urquiza, and Conte, we, like the trial court, conclude there is substantial evidence supporting the reasonable perception that the nature of the trauma caused by sex offenses is generally more intense or severe than the trauma caused by nonsex offenses and is sometimes unique to sex offenses. Alternatively stated, there is substantial evidence to support a reasonable perception by the electorate, as a legislative body, that the harm caused by child sexual abuse and adult sexual assault is, in general, a greater harm than the harm caused by other offenses and is
C
Diagnostic and treatment differences.
The People also presented evidence showing SVP’s are significantly different from MDO’s and NGI’s diagnostically and in treatment. DMH statistics from 2005 through 2010 show that about 95 percent of MDO’s and 90 percent of NGI’s have major mental illnesses, such as schizophrenia, bipolar disorder, major depression, or another psychosis. Only 2 percent of MDO’s and NGI’s suffer from pedophilia or other paraphilias. In comparison, nearly 90 percent of SVP’s are diagnosed with pedophilia or other paraphilias. In the years 2005 through 2010, less than 2 percent of SVP’s were diagnosed with major mental illnesses. Although some expert witnesses criticized DMH’s imprecise methods for assigning diagnoses for its patients, the testimony of other expert witnesses tends to support the significantly different diagnoses between SVP’s and MDO’s/NGI’s.
Dr. David Fennell, a psychiatrist and chief of forensics at Atascadero State Hospital, testified that about 90 percent of MDO and NGI patients suffer from a psychotic mental disorder. In comparison, only 1 to 3 percent of SVP’s suffer from a psychosis, but 66 percent of SVP’s suffer from pedophilia and 33 percent have another paraphilia. Jackson also testified that a high percentage of SVP’s have paraphilias. About 80 percent of SVP’s in Wisconsin and 99 percent of SVP’s in Washington are diagnosed with paraphilias. Dr. Robert Withrow, a psychiatrist and the acting medical director at Coalinga State Hospital, testified that 60 percent of SVP’s are diagnosed with pedophilia and 40 percent are diagnosed with other paraphilias. About 15 percent of SVP’s have schizophrenia, bipolar disorders, major depression, and anxiety disorders.
Fennell testified that the different diagnoses between SVP’s and MDO’s/NGI’s led to, or were reflected in, their different treatment plans, different rates of treatment compliance and success, and different risks for sexual reoffense. He stated that MDO’s, most of whom are housed at Atascadero, are overwhelmingly treated with psychotropic medications, resulting in their stabilization and amenability to psychosocial support
Furthermore, the treatment plans for SVP’s are different from those for MDO’s and NGI’s. SVP’s treatment plans are not based on medications, but rather on giving them the tools to limit their risk of sexually reoffending. However, only about 25 percent of SVP’s participate in treatment. The shortest time in which an SVP has completed treatment is two and one-half years. Many other SVP’s took up to five years to complete treatment.
Fennell believes indeterminate civil commitments are more beneficial for SVP’s because the former two-year commitments interfered with the treatment process when their treatment was put “on hold” pending the court hearing and oftentimes SVP’s were absent from treatment for eight to nine months while their cases were pending.
Dr. Jill Stinson, a psychologist, is the sex offender treatment coordinator for a state hospital in Missouri. She testified regarding the different diagnoses and characteristics of patients who are severely mentally ill and those who are SVP’s and/or have paraphilias. Severely mentally ill patients have very serious psychotic or mental disorders (e.g., schizophrenia, schizoaffective disorder, or bipolar disorder). Patients with paraphilia have fantasies, urges, or behaviors specific to something not normally considered sexual (i.e., deviant). For example, a patient may have had sexually deviant behaviors regarding children. Paraphilia could, but does not necessarily, rise to the level of an SVP-type mental illness. There usually are no outward signs that a person has paraphilia. Patients with paraphilia typically develop deviant sexual fantasies in early adolescence and probably begin their sexual offending during adolescence. Paraphilia typically remains stable or constant throughout a patient’s lifetime. Although there may be an “aging out” effect where patients’ behavior or acting out on their fantasies is decreased as they age, that does not mean their urges and fantasies are similarly decreased. Patients with paraphilia generally have a specific intent in selecting victims (e.g., boys age seven to 10 years) and carefully plan and execute their offenses (e.g., by “grooming” their victims before committing the offense). In contrast, patients with severe mental illnesses generally are not that organized and commit impulsive or opportunistic offenses. It is rare for a patient with a severe mental illness to sexually reoffend.
Thornton testified that 80 to 90 percent of SVP’s participate in Wisconsin’s treatment program. Wisconsin has released about 160 SVP’s (100 supervised discharges and 60 absolute discharges) after their indeterminate civil commitments. He believes that if SVP’s do not see regular releases of other SVP’s from continued civil commitment, they are far less likely to participate in treatment programs. Wisconsin’s minimum period for treatment of SVP’s is six years. He believes a two-year commitment causes distractions and a loss of motivation and interferes with treatment. He believes a highly motivated SVP could complete treatment in about six years.
Jackson testified that 77 to 88 percent of SVP’s have personality disorders (e.g., antisocial personality disorders), making them more likely to act out their paraphilia. Also, very few SVP’s (10 to 20 percent) have severe mental illnesses or psychotic disorders.
Regarding the advisability of indeterminate civil commitments for SVP’s, the expert witnesses had differing opinions. As discussed above, Thornton and Fennell believed that two-year terms interfere with treatment of SVP’s and Fennell further believed that indeterminate terms do not. In contrast, Dr. Jerry Kasdorf, the former chief psychologist at Coalinga State Hospital,
Based on the above evidence, there is substantial evidence to support a reasonable perception by the electorate that SVP’s have significantly different diagnoses from those of MDO’s and NGI’s, and that their respective treatment plans, compliance, and success rates are likewise significantly different. That evidence and the evidence on recidivism discussed above, as the trial court found, “supports the conclusion that, as a class, SVP’s are clinically distinct from MDO’s and NGI’s and that those distinctions make SVP’s more difficult to treat and more likely to commit additional sexual offenses than are MDO’s and NGI’s.” In particular, SVP’s are less likely to participate in treatment, less likely to acknowledge there is anything wrong with them, and more likely to be deceptive and manipulative. As the trial court found, “the large majority of SVP’s simply are not motivated to enter treatment or to succeed in it if they do begin it.” Furthermore, there is substantial evidence to support a reasonable inference that an indeterminate, rather than a determinate (e.g., two-year), term of civil commitment supports, rather than detracts from, the treatment plans for SVP’s.
D
In summary, we conclude 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, supra, 47 Cal.4th at p. 1207.) 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.” (Id. at p. 1208.) 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. (47 Cal.4th at p. 1208.)
V
Least Restrictive Means Available
Finally, we address McKee’s assertion that the Act is unconstitutional unless it adopts the least restrictive means available to further the state’s compelling interests. He argues: “The requirements of strict judicial scrutiny means that the disparate treatment of similarly situated groups may be upheld only if they are shown to be necessary for furtherance of a compelling state interest and they address that interest through the least restrictive means available. (Bernal v. Fainter [(1984)] 467 U.S. 216, 219-220 [81 L.Ed.2d 175, 104 S.Ct. 2312]; Weber v. City Council [(1973)] 9 Cal.3d 950, 958 [109 Cal.Rptr. 553, 513 P.2d 601].)” However, McKee does not carry his burden on appeal to persuade us the equal protection clause requires that disparate
The two cases McKee cites in support of his argument are unpersuasive. First, Bernal involved the suspect class of aliens. (Bernal v. Fainter, supra, 467 U.S. at p. 219, fn. 5.) In probable dictum and without citation to any supporting cases, Bernal noted: “In order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available.”
We are unaware of any case applying the “least restrictive means available” requirement to all cases involving disparate treatment of similarly situated classes. On the contrary, our review of equal protection case law shows the two-part test, as discussed in Moye and McKee, is the prevailing standard. Moye stated that in cases requiring the application of the strict scrutiny standard of equal protection analysis, “the state must establish both that it has a ‘compelling interest’ which justifies the challenged procedure and that the distinctions drawn by the procedure are necessary to further that interest.” (Moye, supra, 22 Cal.3d at p. 465, italics added.) Therefore, in strict scrutiny cases, the government must show both a compelling state interest justifying the disparate treatment and that the disparate treatment is necessary to further that compelling state interest. (Ibid.; In re Smith (2008) 42 Cal.4th 1251, 1263 [73 Cal.Rptr.3d 469, 178 P.3d 446].) We are unpersuaded the electorate that passed Proposition 83 in 2006 was required to adopt the least restrictive means available (e.g., a two-year or other determinate term of civil commitment) in disparately treating SVP’s and furthering the compelling state interests of public safety and humane treatment of the mentally disordered.
The order is affirmed.
Benke, Acting P. J., and Aaron, J., concurred.
Appellant’s petition for review by the Supreme Court was denied October 10, 2012, S204503.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
At trial, the evidence showed McKee had been convicted in 1991 for committing lewd acts against an 11-year-old babysitter and in 1998 for committing lewd acts against his eight-year-old niece. (McKee, supra, 47 Cal.4th at p. 1184, fn. 1.)
Although the People argue we should defer to the trial court’s findings of historical fact and, in particular, its determination of the credibility of expert witnesses, the trial court’s statement of decision did not make any express findings regarding disputed historical facts or the credibility of certain witnesses. We believe we are in as good a position as the trial court to decide whether the evidence presented by the People during the remand hearing satisfied their burden to justify the disparate treatment of SVP’s under the Act.
The Static-99R is a revised version of the Static-99 that takes into account the age of a sexual offender based on statistics showing the risk of sexual reoffense decreases as the offender ages.
We believe that statement is dictum because Bernal ultimately concluded there was no factual showing by the State of Texas that the proffered purpose of the law in question “presented] a real, as opposed to a merely speculative, problem to the State. Without a factual underpinning, the State’s asserted interest lacks the weight we have required of interests properly denominated as compelling.” (Bernal v. Fainter, supra, 467 U.S. at pp. 227-228.)