The People v. Green CA1/4

Filed 10/1/13 P. v. Green CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A134917
v.
GLEN FOSTER GREEN, (Solano County
Super. Ct. No. VC17044)
Defendant and Appellant.

I.
INTRODUCTION
Glen Foster Green (appellant) appeals from a judgment, following a jury trial,
committing him to the State Department of Mental Health (DMH) for an indeterminate
period as a sexually violent predator (SVP) under the Sexually Violent Predators Act
(SVPA). (Welf. & Inst. Code, § 6600 et seq.)1 He contends the judgment must be
reversed for a variety of reasons, including (1) the evidence was insufficient to support a
current diagnosis of pedophilia; (2) the court erred in refusing to give an instruction

1
Unless otherwise indicated, all subsequent code references are to the Welfare
and Institutions Code. The SVPA provides for the involuntary civil commitment, for
treatment and confinement, of an individual who is found, by a unanimous jury verdict
(§ 6603, subds. (e), (f)), and beyond a reasonable doubt (§ 6604), to be a “sexually
violent predator” (ibid.). The term “ „[s]exually 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.”
(§ 6600, subd. (a)(1).)

1
quantifying the risk of reoffense necessary to support a commitment; (3) the court erred
by failing to instruct the jury sua sponte that an SVP commitment is for an indefinite time
period; (4) the protocol governing his SVP evaluations is invalid; (5) commitment
without the prospect of effective treatment violates his right to due process; and (6) the
SVPA is an unconstitutional ex post facto law, improperly shifts the burden of proof, and
violates his right to equal protection. We reject appellant‟s contentions and affirm the
judgment.
II.
FACTS AND PROCEDURAL HISTORY
This is appellant‟s fifth appeal from successive orders finding that he meets the
SVPA requirements for extended commitment. (See People v. Green (2000) 79
Cal.App.4th 921; People v. Green (Feb. 20, 2003, A098496 [nonpub. opn.]); People v.
Green (Dec. 6, 2005, A109362 [nonpub. opn.]; People v. Green (Oct. 26, 2006, A112823
[nonpub. opn.].) Therefore, because this court is extremely familiar with this case, we
need not discuss in detail the previous petitions to extend appellant‟s commitment as an
SVP or his criminal history of qualifying sex offenses.
Instead, we focus on the most recent petition to commit appellant as an SVP filed
by the Solano County District Attorney on February 16, 2007. The petition alleged
appellant was currently in the custody of the DMH; and he had been evaluated and found
to currently meet the statutory definition of an SVP. (See § 6600.) The petition attached
two evaluations which concluded appellant has a diagnosed mental disorder that makes
him a danger to the health and safety of others in that he is likely to engage in acts of
predatory sexual violence without appropriate treatment and custody.
The matter proceeded to a jury trial where the People had the burden of proving
beyond a reasonable doubt that appellant met all the SVP criteria. A person may be
committed as an SVP only if “(1) the offender has been convicted of a qualifying
sexually violent offense . . . ; (2) the offender has a diagnosable mental disorder; (3) the
disorder makes it likely he or she will engage in sexually violent criminal conduct if
released; and (4) this sexually violent criminal conduct will be predatory in nature.”

2
(Cooley v. Superior Court (2002) 29 Cal.4th 228, 236.) The People‟s experts,
psychiatrist Dr. Mohan Nair and forensic psychologist Dr. Jeremy Coles, each testified
they evaluated appellant and found that he met the criteria of an SVP. They each
diagnosed appellant with the mental disorder of pedophilia. They testified that appellant
had a substantial risk of reoffending and that they did not believe appellant could control
his behavior.
Psychologist Dr. James Park and psychiatrist Dr. Alan Abrams, testified for
appellant. They found no indication appellant currently could be diagnosed with the
mental disorder of pedophilia. They believed he was not likely to reoffend if released
from custody.
On March 8, 2012, a jury found the petition to be true and the court committed
appellant to the DMH for an indeterminate term. On March 9, 2012, appellant filed a
timely notice of appeal.
III.
DISCUSSION
A. The Court Was Not Required to Give a Requested Instruction
Quantifying the Risk of Reoffense

Appellant argues reversal is required because the court did not adequately instruct
the jury on the risk of reoffense that is necessary to commit a person as an SVP. By
statute, an SVP must have 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), italics added.) Appellant claims the
court erred in refusing to give an instruction that would have more precisely defined the
term “likely.”
“Likely” has been judicially construed to mean “ „the person 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.]” (People v. Roberge (2003) 29 Cal.4th 979, 982,
italics omitted (Roberge).) The risk of reoffense must be greater than a “mere
possibility,” but need not be “better than even,” i.e., greater than 50 percent. (People v.

3
Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922, italics omitted (Ghilotti).) The
instruction given in this case, CALCRIM No. 3454, tracks this language.2
Appellant argues the standard instruction did not go far enough because it failed to
“explain the requisite minimum level of risk that the jury must agree upon.” He claims
the court erred in refusing to give an amplifying instruction requested by defense counsel
that, in order to find appellant to be an SVP, the jury must first find that he posed a “high
risk” of reoffense. The requested instruction refers to a statement in Ghilotti: “The
SVPA thus consistently emphasizes the themes common to valid civil commitment
statutes, i.e., a current mental condition or disorder that makes it difficult or impossible to
control volitional behavior and predisposes the person to inflict harm on himself or
others, thus producing dangerousness measured by a high risk or threat of further
injurious acts if the person is not confined. [Citations.]” (Ghilotti, supra, 27 Cal.4th at
p. 920, italics omitted & added.)
The trial court was not required to give the requested instruction. As in any trial,
the trial court in an SVP proceeding must instruct on the general principles of law that are
necessary to the jury‟s understanding of the case. (Roberge, supra, 29 Cal.4th at p. 988.)
Our Supreme Court has rejected the claim that a jury must be instructed that to be found
an SVP, the person‟s “ „diagnosed mental disorder must render the person unable to
control his dangerous behavior.‟ ” (People v. Williams (2003) 31 Cal.4th 757, 763,
original italics (Williams).) Williams held that the plain language of the SVPA
“inherently encompasses and conveys to a fact finder the requirement of a mental
disorder that causes serious difficulty in controlling one‟s criminal sexual behavior.” (Id.
at p. 759.) The Williams court reasoned that a mental disorder meeting the statutory
criteria of the SVPA “must additionally produce an actual risk of violent reoffense” that

2
The jury was instructed as follows: “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.”

4
is sufficiently substantial, serious, and well-founded. (Id. at p. 776.) Jurors who are
instructed using the statutory language of the SVPA necessarily understand that in order
to be found to be an SVP, the defendant must have a seriously impaired capacity or
ability to control violent criminal sexual conduct. Therefore, no additional instructions
are constitutionally required. (Id. at p. 777.)
Here, the trial court instructed the jury with CALCRIM No. 3454, which employs
the statutory terms used in the SVPA that Williams found satisfied constitutional
requirements. (Williams, supra, 31 Cal.4th at pp. 776-777.) Based on Williams‟s holding
that the language of the SVPA inherently and adequately conveys the crucial elements
necessary to find a defendant to be an SVP subject to indefinite commitment, no
additional amplifying instruction was necessary. (Ibid.; Roberge, supra, 29 Cal.4th at
pp. 988-989.)
B. The Court Was Not Required to Give a Sua Sponte Instruction
Informing the Jury That an SVP Commitment Is for an Indefinite Time
Period

Appellant next contends the trial court should have instructed the jury sua sponte
that a verdict finding appellant is an SVP would result in his indefinite commitment,
“subject only to the limited future review protocol allowed by law.” Appellant argues
that failing to instruct the jury on the consequences of its true finding “may give them the
mistaken impression that a civil commitment is short term and allows for real review in
the future.” This contention fails.
“The trial court has a sua sponte duty to instruct the jury on the general principles
of law that are necessary for the jury‟s understanding of the case. [Citation.]” (People v.
Butler (2010) 187 Cal.App.4th 998, 1013 (Butler).) At appellant‟s SVP trial, the jury
was asked to determine, based on the evidence presented by the parties, whether
appellant is an SVP. (§ 6604.) The trial court properly instructed the jury on the
principles of law governing its resolution of that issue. The duration of any commitment
to be imposed based on the jury‟s findings was irrelevant. (See People v. Allen (1973) 29
Cal.App.3d 932, 935-938 [trial court erred in a mentally disordered sex offender

5
proceeding by allowing evidence regarding the type and length of treatment the defendant
would receive]; People v. Rains (1999) 75 Cal.App.4th 1165 [same]; People v. Calderon
(2004) 124 Cal.App.4th 80, 91 [it is “well established that a jury should not consider
what will happen as a result of its verdict”].) Accordingly, the trial court was not
required to instruct the jury sua sponte regarding the consequences of an SVP finding.
C. Appellant Has Not Shown He Was Prejudiced by any Legal Flaw in
the 2009 Protocol Governing SVP Evaluations

Appellant next maintains the 2009 standardized assessment protocol is not
sufficiently detailed and provides “next to no real guidance for professionals.”
(Fn. omitted.) By way of background, “[b]efore a petition for commitment may be filed,
the SVPA requires a suspected SVP to undergo two psychological evaluations conducted
pursuant to a protocol established by the [DMH]. Only if these evaluations result in a
finding that the person, in effect, qualifies as an SVP does the SVPA authorize the filing
of a commitment petition. Recently, the protocol developed by the Department and used
for many years was declared to be an unlawful „underground regulation‟ because it was
implemented without compliance with the Administrative Procedure Act [APA] . . . .”
(People v. Medina (2009) 171 Cal.App.4th 805, 810-811; accord, People v. Landau
(2013) 214 Cal.App.4th 1, 16 (Landau).)
Based on this authority, in November 2009, appellant filed a motion for new
section 6601 evaluations and a new probable cause hearing, arguing that an underground
regulation was used in his evaluations. 3 (See, e.g., In re Ronje (2009) 179 Cal.App.4th

3
Section 6601 governs referral of individuals for SVP evaluation prior to release.
It provides in pertinent part: “The [DMH] shall evaluate the person in accordance with a
standardized assessment protocol, developed and updated by the [DMH], to determine
whether the person is a sexually violent predator as defined in this article. The
standardized assessment protocol shall require assessment of diagnosable mental
disorders, as well as various factors known to be associated with the risk of reoffense
among sex offenders. Risk factors to be considered shall include criminal and
psychosexual history, type, degree, and duration of sexual deviance, and severity of
mental disorder.” (§ 6601, subd. (c).)

6
509, 513, disapproved of in Reilly v. Superior Court (2013) 57 Cal.4th 641, 652 (Reilly).)
On December 7, 2009, the court granted appellant‟s motion.
Appellant now claims the updated evaluations, which were prepared under DMH‟s
2009 protocol, were invalid because the 2009 protocol is not sufficiently detailed to be
considered a “standardized assessment protocol” as called for in section 6601,
subdivision (c). In discussing the meaning of the term “standardized assessment
protocol” relative to DMH‟s 2009 protocol, appellant claims “[t]he 2009 SAP is not
„standardized‟ because it is left to the evaluators whether they are to use tests and which
to use, and the questions to ask of individuals being assessed.”4
“The court, not the agency, has „final responsibility for the interpretation of the
law‟ under which the regulation was issued. [Citations.]” (Yamaha Corp. of America v.
State Bd. of Equalization (1998) 19 Cal.4th 1, 11, fn. 4 (Yamaha Corp.).) When a court
reviews an agency‟s interpretation of a statute, however, the court “accords great weight
and respect to the administrative construction. [Citation.]‟ [Citations.]” (Id. at p. 12.)
By adopting the 2009 protocol and title 9, section 4005 of the California Code of
Regulations pursuant to section 6601, DMH impliedly construed the statutory meaning of
the term “standardized.” When “an agency has adopted an interpretative rule in
accordance with [APA] provisions—which include procedures (e.g., notice to the public
of the proposed rule and opportunity for public comment) that enhance the accuracy and

4
The 2009 protocol is partly codified in the California Code of Regulations,
title 9, section 4005. Section 4005, which is entitled “Evaluator Requirements,”
provides: “The evaluator, according to his or her professional judgment, shall apply tests
or instruments along with other static and dynamic risk factors when making the
assessment. Such tests, instruments and risk factors must have gained professional
recognition or acceptance in the field of diagnosing, evaluating or treating sexual
offenders and be appropriate to the particular patient and applied on a case-by-case basis.
The term „professional recognition or acceptance‟ as used in this section means that the
test, instrument or risk factor has undergone peer review by a conference, committee or
journal of a professional organization in the fields of psychology or psychiatry, including,
but not limited to, the American Psychological Association, the American Psychiatric
Association, and the Association for the Treatment of Sexual Abusers.”

7
reliability of the resulting administrative „product‟—that circumstance weighs in favor of
judicial deference.” (Yamaha Corp., supra, at p. 13.)
Appellant neither claims nor demonstrates that DMH failed to comply with the
APA when it adopted title 9, section 4005 of the California Code of Regulations.
Appellant also offers no legislative history suggesting the Legislature intended any
particular manner of standardization. Section 6601 does not expressly define
“standardized assessment protocol,” and it appears the Legislature left standardization to
the expertise of DMH.
In any event, appellant has not shown that he was deprived of a fair trial or
suffered any prejudice as a result of the use of the 2009 protocol. (Reilly, supra, 57
Cal.4th at p. 655 [defendant may obtain “relief arising from use of an invalid protocol in
an SVP evaluation” only if he or she demonstrates that “the error was material”].) He
was provided a constitutionally mandated jury trial and, at that trial, two experts testified
that based on their training and experience, appellant was an SVP as that term is
statutorily defined. After hearing the evidence presented, the jurors concluded, beyond a
reasonable doubt, that appellant was an SVP within the meaning of section 6600,
subdivision (a)(1). Appellant does not claim that the use of the 2009 protocol harmed his
ability to mount a defense or in any way influenced the jury in finding him to be an SVP.
Because appellant received a full and fair trial on the ultimate issue in the case, we
conclude appellant was not prejudiced by the error he has alleged. (Reilly, supra, at
p. 656 [where defendant “was found to be an SVP under the new protocol, it is clear that
the 2007 protocol error did not materially affect the outcome of his probable cause
hearing”].)
D. Improperly Placing the Content of Other Doctors’ Opinions Before the Jury
Appellant claims it was error to admit testimonial evidence that nontestifying
experts had formed the opinion appellant was a pedophile, a danger to the community,
and likely to reoffend. This argument is based on defense counsel‟s cross-examination of
Dr. Coles where he was asked whether adequately trained professionals could reach
different conclusions based on the same evidence. Dr. Coles responded that in “a

8
hypothetical situation” this was possible. Defense counsel then asked: “And you don‟t
think that‟s possible in this case, right? There‟s only one reasonable conclusion and it‟s
yours?” Dr. Coles replied: “No. What I said is that virtually every treatment provider
that‟s come in contact with [appellant] over the past 30 years has made [the same]
diagnosis.”
Defense counsel objected that Dr. Coles was testifying to unreliable hearsay. The
court responded: “Well, I‟m going to overrule the objection, because your question kind
of invited that response. So overruled. But we‟ll leave it and move on.” The court then
admonished the jury that Dr. Coles‟s testimony regarding other professionals‟ diagnoses
was admissible only for the limited purpose of explaining his opinion and not for any
other purpose.
Appellant argues that Dr. Coles‟s testimony “use[d] the opinions of others to
bolster his own conclusion,” which prejudiced appellant in obtaining a fair trial. In
making this argument, he relies principally on People v. Campos (1995) 32 Cal.App.4th
304 (Campos). The Campos court held that the trial court properly permitted the
People‟s only witness, a psychiatrist with the DMH, to testify that she relied on other
medical evaluations in forming her opinion that defendant met all of the MDO criteria.
However, the Campos court found the trial court erred in permitting the psychiatrist to
testify that nontestifying experts concurred in the psychiatrist‟s opinion regarding the
defendant‟s MDO status. (Id. at pp. 307-308.) Campos reasoned: “ „[D]octors can testify
as to the basis for their opinion [citation], but this is not intended to be a channel by
which testifying doctors can place the opinion of innumerable out-of-court doctors before
the jury‟ ” who are not subject to cross-examination. (Id. at p. 308, quoting Whitfield v.
Roth (1974) 10 Cal.3d 874, 895; People v. Young (1987) 189 Cal.App.3d 891, 913 [“The
rule which allows an expert to state the reasons upon which his opinion is based may not
be used as a vehicle to bring before the jury incompetent evidence”].)
However, the error in Campos was found to be harmless, since the psychiatrist‟s
references to the other professional opinions consumed only a small portion of her
lengthy testimony and the remainder of that testimony easily supported the jury‟s

9
determination that defendant met the MDO criteria. Thus, it was not reasonably probable
that a result more favorable to Campos would have been reached in the absence of the
improper evidence. (Campos, supra, 32 Cal.App.4th at pp. 308-309.)
As in Campos, even if the court erred in allowing Dr. Coles‟s challenged
testimony, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Dr. Coles offered this testimony on cross-examination, when he was questioned as to
whether reasonable treatment providers could come to different conclusions about
whether appellant could be diagnosed with pedophilia. “ „[A] broader range of evidence
may be properly used on cross-examination to test and diminish the weight to be given
the expert opinion than is admissible on direct examination to fortify the opinion.
[Citation.]‟ [Citation.]” (People v. Montiel (1993) 5 Cal.4th 877, 924.) Furthermore, the
court immediately admonished the jury that the other diagnoses could not be considered
for their truth, but only as they supported Dr. Coles‟s opinion. Based on the court‟s
clarifying admonishment and the overwhelming evidence that appellant met the criteria
of an SVP, we conclude it is not reasonably probable that a result more favorable to him
would have been reached in the absence of the challenged evidence. (Campos, supra, 32
Cal.App.4th at pp. 308-309.)
E. Substantial Evidence Supports the Jury’s Finding that Appellant’s
Paraphilia Currently Exists

Appellant next challenges the sufficiency of the evidence to support his SVP
commitment. He argues, “with respect to proof of the „currency‟ of the claimed disorder,
there was a stand-off between state and defense experts in terms of the continued
existence of appellant‟s pedophilia and, if it exists, whether he is able to control his urges
and impulses.” In questioning the “partially-informed judgments” of the prosecution‟s
experts, appellant notes that he “had never been found with pornographic contraband, he
had never acted in a way that would reflect on the existence of pedophilic urges . . . , and
he had not articulated in past meetings with psychologists that he experienced fantasies or
distress rooted in a current medical condition.”

10
 “In reviewing the record to determine the sufficiency of the evidence, this court
may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and
must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment.
[Citation.]” (People v. Poe (1999) 74 Cal.App.4th 826, 830; People v. Mercer (1999) 70
Cal.App.4th 463, 466 (Mercer).) Generally, “the direct evidence of one witness who is
entitled to full credit is sufficient for proof of any fact.” (Evid. Code, § 411.) It is up to
the fact finder to decide what weight to give the expert opinions. (See In re Scott (2003)
29 Cal.4th 783, 823.)
It is true that “[a]n expert‟s opinion which rests upon guess, surmise or conjecture,
rather than relevant, probative facts, cannot constitute substantial evidence. [Citations.]”
(Garza v. Workmen’s Comp.App. Bd. (1970) 3 Cal.3d 312, 318, fn. 3.) However, the
record does not demonstrate that the prosecution‟s experts‟ diagnoses or opinions in this
case were so flawed. Instead, the record shows that the People‟s experts considered
appellant‟s full history and relied upon established DSM-IV diagnostic criteria and
narrative descriptions of the mental disorders in making their present diagnoses. In
assessing the risk of reoffense, they considered the Static 99 and other studies and applied
their own clinical judgment. They explained in detail the specific risk factors they
considered relevant. Both experts testified that pedophilia is generally understood by the
profession to be a chronic condition and explained their reasons for determining that
appellant‟s mental disorder persists. Consequently, the opinions of the prosecution‟s
experts were not a matter of pure speculation or guesswork and, therefore, their testimony
constituted substantial evidence supporting the jury‟s verdict. (See Mercer, supra, 70
Cal.App.4th at pp. 466-467.)
In a related argument, appellant claims the jury was “left with no real guidance
about what „evidence‟ is necessary to prove a disorder „currently‟ plagues an individual.”
However, he cites to no portion of the record where he requested an additional instruction
on this point and he has not, in his appellate briefs, suggested clarifying language. “Once
the trial court adequately instructs the jury on the law, it has no duty to give clarifying or

11
amplifying instructions absent a request. [Citation.]” (Butler, supra, 187 Cal.App.4th at
p. 1013.) Appellant‟s claim is without merit.
F. Appellant’s Commitment Did Not Violate Due Process for Lack of
Effective Treatment

Appellant contends his involuntary and indefinite hospitalization under the SVPA
violates due process because the evidence failed to establish he would receive appropriate
and effective treatment during his commitment. He argues that if “the state has nothing
to offer in the way of meaningful treatment, then it cannot be allowed to simply lock
away human beings based on speculative anxiety and fear that appellant or others might
commit a sexual crime if released.”
Our Supreme Court rejected a similar due process challenge in Hubbart v.
Superior Court (1999) 19 Cal.4th 1138 (Hubbart). There, the defendant asserted that
involuntary confinement as an SVP violates due process “unless it is coupled with a
statutory guarantee of treatment providing a „realistic opportunity to be cured.‟ ” (Id. at
p. 1164.) At the outset, the court rejected the suggestion that “the Legislature cannot
constitutionally provide for the civil commitment of dangerous mentally impaired sexual
predators unless the statutory scheme guarantees and provides „effective‟ treatment.”
(Ibid.) Amenability to treatment is not required for a finding that an individual is an
SVP, nor is it required in order to receive treatment as an SVP. (§ 6606, subd. (b).)
Appellant primarily relies upon People v. Feagley (1975) 14 Cal.3d 338, but that
case was distinguished in Hubbart, which explained, “We invalidated the MDSO
procedure under which [Mr.] Feagley was committed because it resulted in a complete
denial of treatment under conditions of confinement so penal as to constitute „cruel and
unusual punishment.‟ [Citation.]” (Hubbart, supra, 19 Cal.4th at pp. 1167-1168, fn. 29.)
Appellant‟s situation can be similarly distinguished from the situation in Feagley. We
conclude appellant‟s claim is foreclosed by Hubbart, supra, 19 Cal.4th 1138.

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 G. The SVPA Is Not an Unconstitutional Ex Post Facto Law and Does Not
Improperly Shift the Burden of Proof or Violate Appellant’s Right to Equal
Protection

We next consider various constitutional challenges posed by appellant to the latest
version of the SVPA. As originally enacted, the SVPA provided for a two-year
commitment, established procedures for release of an SVP before the expiration of the
two-year period, and allowed recommitment upon expiration of the two-year period only
if it was proved beyond a reasonable doubt that the person currently met the statutory
criteria. (People v. McKee (2010) 47 Cal.4th 1172, 1185-1186 (McKee I).)
In November 2006, the SVPA was amended to make it more difficult for an SVP
to obtain release. “[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 [SVPA].
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 [SVPA] 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 I, supra, 47 Cal.4th
1187-1188, fn. omitted.)
Appellant contends the post-Proposition 83 SVPA violates his constitutional right
to due process because it imposes on him “the burden to prove by a preponderance of the
evidence that he . . . is entitled to release” after being committed as an SVP. He also
contends the SVPA violates the federal constitutional prohibition against ex post facto
laws, because it is punitive and was applied to his conduct prior to its enactment. These
contentions were considered and rejected by our Supreme Court in McKee I. In McKee I,
supra, 47 Cal.4th at page 1195, the court held the amended SVPA does not violate the ex

13
post facto clause of the federal Constitution. Additionally, in McKee I, the court
concluded that “the requirement that [an individual], after [an] initial commitment, must
prove by a preponderance of the evidence that he [or she] is no longer an SVP does not
violate due process.” (47 Cal.4th at p. 1191.) We are bound by the decisions of our
Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Therefore, we reject appellant‟s due process and ex-post facto claims.
Appellant also contends his involuntary SVP commitment violates his federal
constitutional right to equal protection because the SVPA treats him less favorably than
similarly situated individuals committed under other statutes, such as MDO‟s, individuals
who have found to be not guilty by reason of insanity (NGI‟s) and criminal defendants
sentenced to life in prison. In McKee I, supra, 47 Cal.4th at page 1203, the Supreme
Court found SVPs and MDOs are similarly situated because, inter alia, both “ „have been
found, beyond a reasonable doubt, to suffer from mental disorders that render them
dangerous to others. . . . At the end of their prison terms, both have been civilly
committed to the [DMH] for treatment of their disorders. . . . [T]he purpose of the MDO
Act and the SVPA is the same: to protect the public from dangerous felony offenders
with mental disorders and to provide mental health treatment for their disorders.‟
[Citations.]” (Ibid.) The court concluded the disparate treatment afforded SVP‟s and
MDO‟s under the law, whereby SVP‟s suffer indefinite commitment and carry the burden
of proving they should no longer be committed, “raises a substantial equal protection
question that calls for some justification by the People.” (Ibid.) Accordingly, the
Supreme Court remanded the case to the trial court “to determine whether the People . . .
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 a release from commitment.”
(Id. at pp. 1208-1209, fn. omitted.)
The remand in McKee I resulted in a 21-day evidentiary hearing and a subsequent
finding by the trial court that the People met their burden to justify the disparate
treatment of SVP‟s. (See People v. McKee (2012) 207 Cal.App.4th 1325, 1330 (McKee

14
II).) McKee appealed the trial court‟s decision, which was upheld by the Fourth District
in McKee II.
The appellate court concluded that the People showed “ „that the inherent nature of
the SVP‟s mental disorder makes recidivism as a class significantly more likely[;] . . .
that SVP‟s pose a greater risk [and unique dangers] to a particularly vulnerable class of
victims, such as children;‟ and that SVP‟s have diagnostic and treatment differences from
MDO‟s and NGI‟s, thereby supporting a reasonable perception by the electorate that
passed Proposition 83 that the disparate treatment of SVP‟s under the amended Act is
necessary to further the state‟s compelling interests in public safety and humanely
treating the mentally disordered. [Citation.]” (McKee II, supra, 207 Cal.App.4th at
p. 1347.) The appellate court concluded that “the disparate treatment of SVP‟s under the
Act is reasonable and factually based and was adequately justified by the People at the
evidentiary hearing on remand.” (Id. at p. 1348.) The SVPA, therefore, did not violate
equal protection. (Ibid.) Thereafter, the Supreme Court denied a petition for review.
(People v. McKee, review den. Oct. 10, 2012, S204503.) Subsequent appellate decisions
have followed McKee II. (See People v. McDonald (2013) 214 Cal.App.4th 1367, 1377
(McDonald); Landau, supra, 214 Cal.App.4th at pp. 45-48; People v. McCloud (2013)
213 Cal.App.4th 1076, 1085-1086; People v. McKnight (2012) 212 Cal.App.4th 860,
863-864.)
Appellant argues the McKee II court misunderstood and misapplied the strict
scrutiny test and applied the wrong standard of review. These arguments were
considered and rejected in McDonald, supra, 214 Cal.App.4th at pages 1378-1382, and in
Landau, supra, 214 Cal.App.4th at pages 47-48. We agree with those decisions on this
point.
As explained in McKee II, we also agree that appellant‟s equal protection rights
were not violated by treating him differently than MDO‟s and NGI‟s for commitment
purposes, because the indeterminate commitment procedures legitimately advance a
compelling state interest in protecting the public from an SVP, like appellant, who carries
a substantial, well-founded risk of reoffending and cannot control his behavior and who

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poses a greater risk to a particularly vulnerable class of victims such as children. We
therefore reject defendant‟s equal protection challenge.
Appellant further contends SVP‟s are treated unfavorably as compared to
criminals sentenced to life in prison. He argues that he “has been given a life term absent
almost all of the procedural protections afforded those charged with crimes, convicted
and then sent to prison for life terms.” However, appellant has not demonstrated that the
appellate court in McKee II incorrectly concluded that there was a compelling state
interest justifying the differential treatment of SVP‟s as compared to MDO‟s and NGI‟s.
Appellant has not made any argument to show that a different conclusion would pertain
as to the differential treatment of SVP‟s as compared to individuals criminally convicted
and sentenced to life terms. Therefore, appellant‟s claim fails because he has not shown
SVP‟s are similarly situated to that class of criminals.
H. Error in the Petition––Wrong Term of Confinement Alleged
Appellant claims he was denied due process because the petition sought only a
two-year commitment, but the trial court ordered an indefinite commitment. As we have
already explained, prior to 2006, an SVP was committed to the custody of the DMH for a
two-year term, and the term of commitment could be extended for additional two-year
periods. (Former § 6604, as amended by Stats. 2000, ch. 420, § 3; former § 6604.1, as
amended by Stats. 2000, ch. 420, § 4.) On September 20, 2006, the Governor signed into
law Senate Bill No. 1128, which amended the SVPA effective immediately. (Stats. 2006,
ch. 337, § 62.) Among other changes, the amended SVPA provides for an indeterminate
term of commitment. (Stats. 2006, ch. 337, § 55.) Voters later approved Proposition 83,
amending the SVPA effective November 8, 2006. (See Cal. Const., art. II, § 10, subd.
(a).) Proposition 83 amended the SVPA to provide that an SVP‟s commitment term is
“indeterminate.” (§ 6604; see § 6604.1.) Currently, a person found to be an SVP under
the SVPA is subject to an indeterminate term of involuntary civil commitment. (People
v. Whaley (2008) 160 Cal.App.4th 779, 785-787.)
As the Attorney General concedes, the petition in appellant‟s case, which was filed
just months after Proposition 83‟s enactment, reflected the earlier statutory scheme and

16
incorrectly stated that the prosecution was seeking to commit appellant for an additional
period of two years. Appellant contends that because “the state inexplicably requested
only a two-year commitment . . . [i]t cannot get more later on” and the commitment order
should be amended to reflect only a two-year commitment. We disagree.
The error was harmless for at least two reasons. First, appellant does not claim he
lacked actual notice that he was subject to an indeterminate term. After all, the
indeterminate term of commitment was the statutorily mandated term and was not the
result of a discretionary charging decision. (Compare People v. Mancebo (2002) 27
Cal.4th 735, 749.) Evidencing that appellant was not misled by the error in the petition,
appellant filed a motion in the trial court arguing that an indeterminate commitment
would violate his due process and equal protection rights. In other words, he was
perfectly aware that the district attorney was seeking an indeterminate sentence.
Second, appellant cannot show how the petition‟s erroneous reference to a two-
year term, instead of an indeterminate term, had any affect on his defense. In People v.
Carroll (2007) 158 Cal.App.4th 503, immediately prior to trial seeking to extend
defendant‟s commitment as an SVP, the prosecutor struck the petition‟s language seeking
a two-year term and substituted language seeking an indeterminate term. (Id. at pp. 507-
508.) Thereafter the appellate court rejected the defendant‟s argument that “the law in
effect at the time the petition was filed should control, and so the trial court was
authorized to recommit [the defendant] only for a two-year, not an indeterminate, term.”
(Id. at pp. 508-509.) The court reasoned that the amendment to the petition under the
SVPA was timely and that the allegations against which the defendant had to defend, that
is, that he had a current mental disorder and he was likely to engage in sexually violent
criminal behavior in the future, were not affected by the amendment. (Id. at p. 512.) The
Carroll court also emphasized that “the petition at all times referred to the applicable
code section; the statute itself gave notice of the increased commitment term, and
[defendant] was presumed to be aware of its existence. [Citations.]” (Ibid.) Thus, for
the reasons stated in Carroll, we reject appellant‟s claim that he was deprived of
procedural due process.

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 IV.
DISPOSITION
The judgment is affirmed.

_________________________
RUVOLO, P. J.

We concur:

_________________________
REARDON, J.

_________________________
HUMES, J.

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