People v. Whaley CA6

Filed 2/9/15 P. v. Whaley CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040068
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 204226)

v.

GEORGE WHALEY,

Defendant and Appellant.

I. INTRODUCTION
Since 1999, defendant George Whaley has been committed as a sexually violent
predator under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.;1
SVPA). (People v. Whaley (2008) 160 Cal.App.4th 779, 784 (Whaley).) The present
appeal arises from the August 5, 2013 order finding true the allegation in the People’s
most recent recommitment petition that he is a sexually violent predator within the
meaning of section 6600 and directing that Whaley be committed to the Department of
Mental Health for an indeterminate term.
On appeal, Whaley contends that (1) the 2013 amendments to section 6608, which
provide that a committed person may not petition for unconditional discharge prior to a

1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
minimum of one year on conditional release (former § 6608, subd. (k), now § 6608,
subd. (m)), violate his constitutional rights to due process and equal protection; (2) this
court should not follow the decision in People v. McKee (2012) 207 Cal.App.4th 1325
(McKee II) that the SVPA does not violate a committed person’s constitutional right to
equal protection; and (3) the current version of the SVPA violates the due process, ex
post facto, and double jeopardy provisions of the California and United States
Constitutions.
As we will further explain, we decline to address the issue of whether the 2013
amendments to section 6608 violate defendant’s constitutional rights to due process and
equal protection since those constitutional issues are not ripe for review. We find no
merit in the remaining contentions on appeal and therefore we will affirm the August 5,
2013 order.
II. FACTUAL AND PROCEDURAL BACKGROUND
The initial petition to commit Whaley as a sexually violent predator was filed in
1998. (Whaley, supra, 160 Cal.App.4th at p. 788.) The petition was based on two
qualifying convictions, the 1981 rape of a 16-year-old girl and forcible oral copulation on
another inmate while Whaley was in jail for the rape conviction. (Ibid.) After a court
trial, Whaley was found to be a sexually violent predator. He was committed to the
custody of the Department of Mental Health for a period of two years. (Ibid.)
The People subsequently filed several petitions to extend Whaley’s commitment.
As a result, Whaley was recommitted for additional two-year terms from January 28,
2001 to January 28, 2003; January 28, 2003 to January 28, 2005; and January 28, 2005 to
January 28, 2007. (Whaley, supra, 160 Cal.App.4th at p. 788.)
On January 2, 2007 the People filed a petition to extend Whaley’s commitment.
(Whaley, supra, 160 Cal.App.4th at p. 788.) In May 2007, the People filed a motion
seeking to retroactively convert Whaley’s initial commitment as a sexually violent
predator from a two-year term to an indeterminate term, pursuant to the 2006

2
amendments to sections 6604 and 6604.1 of the SPVA by Senate Bill No. 1128 (2005-
2006 Reg. Sess.) and by Proposition 83. (Whaley, supra, at p. 788.) The trial court
granted the motion and on May 24, 2007, ordered that Whaley’s term of commitment be
indeterminate retroactive to the initial commitment order. (Id. at p. 790.) Whaley
appealed and this court reversed the order after determining that the 2006 amendments to
sections 6604 and 6604.1 providing for an indeterminate term of commitment applied
prospectively. (Whaley, supra, 160 Cal.App.4th at pp. 803-805.)
In April 2012 the People filed an amended January 2, 2007 petition to recommit
Whaley as a sexually violent predator from January 28, 2007, to the term prescribed by
law. After a court trial, the trial court issued its August 5, 2013 order finding true the
allegations in the petition that Whaley was a sexually violent predator within the meaning
of section 6600 and directing that Whaley be committed to the Department of Mental
Health for an indeterminate term.
Whaley subsequently filed a timely notice of appeal from the August 5, 2013
commitment order. In this appeal Whaley does not challenge the trial court’s finding that
he meets the statutory criteria for commitment as a sexually violent predator. For that
reason, we have not provided a summary of the evidence presented at the court trial.
III. DISCUSSION
A. Due Process Challenge to 2013 Amendments to Section 6608
Defendant contends that his constitutional rights to due process and equal
protection are violated by the 2013 amendments to section 6608 because now “the only
way for [a committed] person to be unconditionally discharged is to successfully be
placed in a conditional release program, and remain in that program for a full year.”
1. Unconditional Discharge under the SVPA
In 2013, the SVPA “specifie[d] two different procedures, in sections 6605 and
6608, for determining whether the mental condition of a person committed as an SVP has
improved sufficiently to entitle the person to either conditional release in a community-

3
based facility or unconditional release.” (People v. Smith (2013) 212 Cal.App.4th 1394,
1399 (Smith).)
Former section 6605 (now § 6604.9) applied when the State Department of Mental
Health (now, State Department of State Hospitals; hereafter the Department) had
determined, in conjunction with its annual report, that the committed person no longer
met the definition of a sexually violent predator or conditional release was in the best
interests of the person. (People v. McKee (2010) 47 Cal.4th 1172, 1187 (McKee I).
When either determination was made by the Department, former section 6605,
subdivision (b) mandated that “ ‘the director shall authorize the person to petition the
court for conditional release to a less restrictive alternative or for an unconditional
discharge.’ ” (McKee I, supra, at p. 1187.)
The SVPA previously provided that where the Department did not authorize the
committed person to apply for conditional release, the committed person could file a
petition for conditional release without Department authorization. (former § 6608,
subd. (a);2 see Smith, supra, 212 Cal.App.4th at pp. 1400-1401.)
The Legislature amended section 6608 in 2013. (Stats. 2013, ch. 182, § 3.)
Effective January 1, 2014, former section 6608, subdivision (k) (now § 6608, subd. (m))
provided: “After a minimum of one year on conditional release, the committed person,
with or without the recommendation or concurrence of the Director of State Hospitals,
may petition the court for unconditional discharge. The court shall use the procedures
described in subdivisions (a) and (b) of Section 6605 to determine if the person should be
unconditionally discharged from commitment on the basis that, by reason of a diagnosed

2
Former section 6608, subdivision (a) provided in part: “Nothing in this article
shall prohibit the person who has been committed as a sexually violent predator from
petitioning the court for conditional release or an unconditional discharge without the
recommendation or concurrence of the Director of State Hospitals.”

4
mental disorder, he or she is no longer a danger to the health and safety of others in that it
is not likely that he or she will engage in sexually violent criminal behavior.”
2. Analysis
The People ask that we decline to address these constitutional issues because
defendant’s appeal is from the August 5, 2013 commitment order, and not from any
determination under the SVPA’s post-commitment release procedures as set forth in
sections 6605 and 6608, and therefore the issues are not ripe.
According to defendant, the issues are ripe for review because his constitutional
rights to due process and equal protection are violated under the 2013 amendments to
section 6608 since no committed person may petition for unconditional discharge without
Department authorization before undergoing one year on conditional release. He asserts
that any petition for unconditional discharge that is filed before the committed person has
been on conditional release for one year will be dismissed. Defendant also argues that
the constitutional issues should be decided now because future litigation of a petition for
unconditional discharge will result in an extension of his time in custody although he is
not a sexually violent predator.
Additionally, defendant asserts that because the California Supreme Court’s ruling
in McKee I, supra, 47 Cal.4th 1172 that an indeterminate term of commitment under the
SVPA did not violate process was based on a prior version of section 6608, the reasoning
of McKee I does not apply to the current issue of whether the 2013 amendments to
section 6608 violate due process.
We agree with the People that the issue is not ripe for review. “The ripeness
requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely
advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role
of the judiciary does not extend to the resolution of abstract differences of legal opinion.
It is in part designed to regulate the workload of courts by preventing judicial
consideration of lawsuits that seek only to obtain general guidance, rather than to resolve

5
specific legal disputes. However, the ripeness doctrine is primarily bottomed on the
recognition that judicial decisionmaking is best conducted in the context of an actual set
of facts so that the issues will be framed with sufficient definiteness to enable the court to
make a decree finally disposing of the controversy.” (Pacific Legal Foundation v.
California Coastal Com. (1982) 33 Cal.3d 158, 170.)
The ripeness requirement applies to constitutional issues. “A fundamental and
longstanding principle of judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of deciding them. [Citations.]”
(Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439, 445-446; Santa
Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230-
231 [same].) Under “our constitutional system courts are not roving commissions
assigned to pass judgment on the validity of the Nation’s laws. [Citation.] Constitutional
judgments . . . are justified only out of the necessity of adjudicating rights in particular
cases between the litigants brought before the Court.” (Broadrick v. Oklahoma (1973)
413 U.S. 601, 610-611.)
Thus, “[i]t is well-settled law that the courts will not give their consideration to
questions as to the constitutionality of a statute unless such consideration is necessary to
the determination of a real and vital controversy between the litigants in the particular
case before it.” (People v. Perry (1931) 212 Cal. 186, 193 (Perry).) In other words,
“[o]ne who seeks to raise a constitutional question must show that his rights are affected
injuriously by the law which he [or she] attacks and that he [or she] is actually aggrieved
by its operation. [Citations.]” (People v. Williams (1966) 247 Cal.App.2d 169, 170; see
also People v. Carroll (2007) 158 Cal.App.4th 503, 508, fn. 2 [declining to issue advisory
opinion on the constitutionality of § 6605, subd. (d) of the SVPA].)
In the present case, defendant has appealed from the August 5, 2013 order finding
him to be a sexually violent predator within the meaning of section 6600 and directing
that he be committed to the Department of Mental Health for an indeterminate term.

6
Defendant has not appealed from an order or judgment arising from a petition for
unconditional discharge under former section 6608, subdivision (k) (now § 6608,
subd. (m)). Accordingly, defendant has not shown that he has been aggrieved by the
operation of section 6608 or that consideration of the constitutionality of section 6608 is
necessary to the determination of a real and vital controversy arising from the August 5,
2013 order. (See Perry, supra, 212 Cal. at p. 193.) We therefore decline to issue an
advisory opinion on the issue of whether the provision of former section 6608,
subdivision (k) (now § 6608, subd. (m)) requiring a committed person to undergo one
year of conditional release before filing a petition for conditional release without
Department authorization violates defendant’s constitutional rights to due process and
equal protection.
B. Equal Protection Challenge to the SVPA
Defendant contends that a commitment for an indeterminate term under the SVPA
violates the equal protection clauses of the federal and state Constitutions. Defendant
acknowledges that his equal protection argument was rejected in McKee II, supra, 207
Cal.App.4th 1325 and also rejected in subsequent appellate court decisions, including:
People v. McDonald (2013) 214 Cal.App.4th 1367 (McDonald), People v. Landau (2013)
214 Cal.App.4th 1 (Landau), People v. McCloud (2013) 213 Cal.App.4th 1076, and
People v. McKnight (2012) 212 Cal.App.4th 860 (McKnight). He states that he wishes to
preserve his equal protection claim for federal review and therefore makes an abbreviated
argument on the issue. Our analysis of the issue will be similarly brief in light of
defendant’s statement that he has raised the issue solely for purposes of federal review.
1. Brief Overview of the SVPA
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 definition of a sexually violent predator (SVP) is set forth in

7
section 6600, subdivision (a)(1) as follows: “ ‘Sexually violent predator’ means a person
who has been convicted of a sexually violent offense against one or more victims and
who has a diagnosed mental disorder that makes the person a danger to the health and
safety of others in that it is likely that he or she will engage in sexually violent criminal
behavior.”
The SVPA was amended twice in 2006. Prior to those amendments, an individual
determined to be an SVP was committed to the custody of the Department for a two-year
term. The individual’s 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 provided for an indeterminate term of commitment,
and the references to two-year commitment terms and extended commitments in
sections 6604 and 6604.1 were eliminated. (Stats. 2006, ch. 337, §§ 55, 56.)
Less than two months later, voters approved Proposition 83, which amended the
SVPA effective November 8, 2006. (See Cal. Const., art. II, § 10, subd. (a).) Like
Senate Bill No. 1128, Proposition 83 amended the SVPA to provide that an SVP’s
commitment term is “indeterminate.” (§ 6604; see § 6604.1.) Proposition 83 also
eliminated all references to a two-year term of commitment and most references to an
extended commitment in sections 6604 and 6604.1. Thus, a person found to be an SVP
under the SVPA is now subject to an indeterminate term of involuntary civil
commitment. (Whaley, supra, at pp. 785-787.)
2. McKee I
In McKee I, the California Supreme Court considered the defendant’s argument
that his indeterminate commitment under the SVPA violated his equal protection rights
because the SVPA treats SVP’s significantly less favorably than similarly situated

8
individuals who are civilly committed under other statutes. (McKee I, supra, 47 Cal.4th
at p. 1196.)
The California Supreme Court first determined in McKee I that SVP’s and
mentally disordered offenders (MDO’s) are similarly situated for equal protection
purposes because they have been involuntarily committed with the objectives of
treatment and protection of the public. (McKee I, supra, 47 Cal.4th at p. 1203.) The
court also found that SVP’s and those who had been adjudged not guilty by reason of
insanity (NGI’s) are similarly situated and “a comparison of the two commitment regimes
raises similar equal protection problems . . . .” (Id. at p. 1207.) Consequently, the court
agreed with the defendant “that, as with MDO’s, the People have not yet carried their
burden of justifying the differences between the SVP and NGI commitment statutes.”
(Ibid.) However, the California Supreme Court did “not conclude that the People could
not meet [their] burden of showing the differential treatment of SVP’s is justified.”
(Ibid.) The court gave the People “an opportunity to make the appropriate showing on
remand,” noting that the People would have to 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.” (Id. at p. 1208.)
The McKee I court remanded the case to the trial court with instructions to, among
other things, “determine whether the People, applying the equal protection principles
articulated in [In re Moye (1978) 22 Cal.3d 457] and related cases . . . 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 I, supra, 47
Cal.4th at pp. 1208-1209, fn. omitted.)
3. McKee II
On remand from McKee I, “the trial court conducted an evidentiary hearing to
determine whether the People could justify the [SVPA’s] disparate treatment of SVP’s

9
under the strict scrutiny standard for equal protection claims. . . . 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 [SVPA] was based on a reasonable perception of the greater and unique dangers they
pose compared to MDO’s and NGI’s.” (McKee II, supra, 207 Cal.App.4th at p. 1332.)
McKee appealed, and Division One of the Fourth Appellate District affirmed the
trial court’s order. (McKee II, supra, 207 Cal.App.4th at pp. 1330-1331, 1350.) In
McKee II, the appellate court explained that it would “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 [SVPA].” (Id. at p. 1338.)
After performing its independent review of the evidence presented in the 21-day
evidentiary hearing held in the trial court (McKee II, supra, 207 Cal.App.4th at p. 1330),
the McKee II court made several findings. First, with respect to recidivism, the court
determined that the expert witness testimony of three psychologists, as well several
studies and the Static-99 data comparing recidivism rates, was sufficient to show that
sexually violent predators posed a higher risk of recidivism than MDO’s or NGI’s. (Id. at
p. 1342.)
Second, the McKee II court concluded that “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 therefore deserving of more protection.”
(McKee II, supra, 207 Cal.App.4th at pp. 1343-1344.)
Third, the McKee II court found that there was “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,

10
and success rates are likewise significantly different. . . . 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.” (McKee II, supra, 207 Cal.App.4th at p. 1347.)
The appellate court therefore concluded in McKee II that “the People on remand
met their burden to present substantial evidence, including medical and scientific
evidence, justifying the amended [SVPA’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). [Citation.]” (McKee II, supra, 207 Cal.App.4th at
p. 1347.) Accordingly, the trial court’s order rejecting the defendant’s equal protection
claim and affirming his indeterminate commitment under the SVPA was upheld. (Id. at
p. 1350.) The California Supreme Court denied review of McKee II on October 10, 2012,
and therefore the proceedings on remand from McKee I are now final.
4. Analysis
Defendant urges this court not to follow McKee II and to undertake an
independent analysis of the equal protection issue because (1) the McKee II court failed
to properly conduct a de novo review, (2) the McKee II court misapplied the strict
scrutiny test, (3) the McKee II court’s factual analysis was flawed; and (4) the McKee II
court did not analyze “the electorate’s real reasons for changing the SVP law.”
First, defendant claims that the McKee II court applied a deferential standard of
review rather than an independent standard of review. Defendant acknowledges that the
appellate court stated that it was conducting a de novo review (McKee II, supra,
207 Cal.App.4th at p. 1338), but he asserts that the court actually performed a substantial
evidence review.
Having reviewed the opinion, we believe the McKee II court’s description of its
review is consistent with an independent, de novo review of the evidence, as well as with
the Supreme Court’s opinion and directions in McKee I. After the McKee I court

11
remanded the case, the McKee II court independently reviewed all of the evidence and
concluded that “the disparate treatment of SVP’s under the [SVPA] is reasonable and
factually based and was adequately justified by the People at the evidentiary hearing on
remand.” (McKee II, supra, 207 Cal.App.4th at p. 1348.) We discern no error.
Additionally, we note that other courts have rejected a similar challenge to McKee II.
(See McKnight, supra, 212 Cal.App.4th at p. 864 [finding that the “claim that the
appellate court failed to independently review the trial court’s determination is
frivolous”]; Landau, supra, 214 Cal.App.4th at pp. 47-48; McDonald, supra, 214
Cal.App.4th at pp. 1378, 1381.)
Second, we reject defendant’s claim that the McKee II court in effect applied a
rational basis test rather than a strict scrutiny test in reviewing the evidence presented at
the hearing. He criticizes McKee II for analyzing only whether “the electorate may have
reasonably believed that SVPs were more dangerous.”
We disagree that McKee II failed to apply strict scrutiny. The McKee II court
referred to the issue as “whether the People presented substantial evidence to support a
reasonable inference or perception that the [SVPA’s] disparate treatment of SVP’s is
necessary to further compelling state interests. [Citations.]” (McKee II, supra,
207 Cal.App.4th at p. 1339, italics added.) Moreover, the appellate court’s use of the
phrase “reasonable inference or perception” (ibid.) reflects the California Supreme
Court’s remand instructions. In McKee I, the court stated, “On remand, the government
will have an opportunity to justify Proposition 83’s indefinite commitment provisions . . .
and demonstrate that they 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, 47 Cal.4th at p. 1210, fn. omitted.) Thus, in applying the
strict scrutiny test, McKee II followed the language set forth in McKee I.
Moreover, we agree with the McKee II court’s statement that “[w]e are
unpersuaded the electorate that passed Proposition 83 in 2006 was required to adopt the

12
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.” (McKee II, supra,
207 Cal.App.4th at p. 1349.) Given the evidence presented in McKee II – that the vast
majority of SVP’s are diagnosed with pedophilia or other paraphilias, that a paraphilia
ordinarily persists throughout a patient’s lifetime, that treatment is not focused on
medication, and that most SVP’s do not participate in treatment (id. at pp. 1344-1345) –
we have no basis for concluding that an indeterminate term is not necessary to further the
compelling state interest in providing treatment to SVP’s and protecting the public or that
there is any less burdensome alternative to effectuate those interests.
Third, we disagree with defendant’s contention that “[t]he McKee II court’s factual
analysis was also flawed because it did not show how the factual findings connected to
the necessity for the indeterminate commitment.” As we have discussed, the McKee II
court conducted a proper de novo review, which followed the Supreme Court’s opinion
and direction in McKee I. The court determined whether there was substantial evidence
that “ ‘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.’ ” (McKee II, supra,
207 Cal.App.4th at p. 1347; see also McKnight, supra, 212 Cal.App.4th at p. 863.)
Following independent review of the evidence, McKee II concluded that “the People on
remand met their burden to present substantial evidence, including medical and scientific
evidence, justifying the amended [SVPA’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),” and that “the disparate treatment of SVP’s under the
[SVPA] is reasonable and factually based and was adequately justified by the People at
the evidentiary hearing on remand.” (McKee II, supra, 207 Cal.App.4th at pp. 1347,
1348.)

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 Finally, defendant contends that the McKee II court erred in failing to “analyze the
electorate’s real reasons for changing the SVP law.” He explains that “[a] review of the
arguments in favor of Proposition 83 in the Voter’s Guide shows that none of the alleged
facts upon which the McKee II court relied were placed in front of the voters as reasons
for adopting the law.” We find no merit in this contention, since, as we have discussed,
the McKee II court’s analysis was consistent with the remand instructions of the
California Supreme Court in McKee I: “On remand, the government will have an
opportunity to justify Proposition 83’s indefinite commitment provisions . . . and
demonstrate that they 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, 47 Cal.4th at p. 1210, fn. omitted.)
Therefore, in light of the Supreme Court’s clearly expressed intent to avoid an
unnecessary multiplicity of proceedings, the Supreme Court’s denial of review in
McKee II, and our conclusions regarding the asserted flaws in McKee II, we find that
defendant’s equal protection claims are without merit.
C. Other Constitutional Challenges
Lastly, defendant contends that the SVPA, as amended in 20063 to provide for an
indeterminate term of commitment and as amended in 2013 regarding the procedure for
unconditional release (Stats. 2013, ch. 182, § 3), violates the due process, ex post facto
and double jeopardy clauses. He acknowledges that the California Supreme Court has
rejected due process, ex post factor and double jeopardy challenges to the SVPA in
McKee I, supra, 47 Cal.4th 1172, but states that our Supreme Court erred and he wishes
to preserve these issues for federal review.

3
As we have noted, the SVPA was amended twice in 2006, by Senate Bill 1128
(Stats. 2006, ch. 337), and by Proposition 83 (see Cal. Const., art. II, § 10, subd. (a)).

14
 1. Due Process
In McKee I, the Supreme Court determined that a person subject to an indefinite
commitment under the amended SVPA is not deprived of due process because he or she
has the burden, after the initial commitment, to show by a preponderance of the evidence
that he or she no longer meets the statutory criteria for commitment as an SVP.
(McKee I, supra, 47 Cal.4th at p. 1191.) The McKee I court also found no merit in the
contention that the trial court’s discretion to deny as frivolous a committed person’s
petition for conditional release pursuant to section 6608, subdivision (a) violates due
process. (McKee I, supra, at p. 1192.) Finally, the McKee I court construed the amended
SVPA to implicitly provide for the appointment of a state-funded mental health expert
when a committed person petitions for release under section 6608, subdivision (a), and
that as so construed, “it does not violate the due process clause.” (McKee I, supra, at
p. 1193.)
Defendant contends that the ability of a committed person to petition for
unconditional release under section 6608 is not an adequate remedy for a due process
violation. However, in McKee I the Supreme Court stated, “We construe statutes when
reasonable to avoid difficult constitutional issues. [Citation.] After Proposition 83, it is
still the case that an individual may not be held in civil commitment when he or she no
longer meets the requisites of such commitment. An SVP may be held, as the United
States Supreme Court stated under similar circumstances, ‘as long as he is both mentally
ill and dangerous, but no longer.’ [Citation.]” (McKee I, supra, 47 Cal.4th at p. 1193.)
Accordingly, based on the decision in McKee I, supra, 47 Cal. 4th 1172, we
conclude that the current version of the SVPA does not violate the due process clause.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity
Sales).)

15
 2. Ex Post Facto and Double Jeopardy
Defendant contends that the amended SVPA violates the ex post facto and double
jeopardy clauses of the California and United States Constitution because he “has already
been convicted and sentenced for his crimes.” This contention has no merit.
In McKee I, the California Supreme court reiterated its decision in Hubbart v.
Superior Court (1999) 19 Cal.4th 1138 that the SVPA was not punitive because it had
two nonpunitive objectives, “treatment for the individual committed and protection of the
public.” (McKee I, supra, 47 Cal.4th at p. 1194.) After examining the amended SVPA,
the McKee I court determined that “the Proposition 83 amendments at issue here cannot
be regarded to have changed the essentially nonpunitive purpose of the [SVPA],” and
therefore that the amended SVPA does not violate the ex post facto clause. (Ibid.)
In light of the California Supreme Court’s holding in McKee I that the amended
SVPA is not punitive in nature, defendant’s double jeopardy claim is likewise without
merit. (See People v. Carlin (2007) 150 Cal.App.4th 322, 348, italics omitted [California
Supreme Court’s determination that SVPA is not punitive “ ‘removes an essential
prerequisite for both . . . double jeopardy and ex post facto claims’ ”].)
We therefore find that the SVPA does not violate the ex post facto or double
jeopardy clauses of the United States Constitution. (Auto Equity Sales, supra, 57 Cal.2d
at p. 455.)
IV. DISPOSITION
The judgment is affirmed.

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 ___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

__________________________
MIHARA, J.

__________________________
MÁRQUEZ, J.