P. v. Redding CA2/6

Filed 6/20/13 P. v. Redding CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B237901
(Super. Ct. No. PS027014)
Plaintiff and Respondent, (Ventura County)

v.

BILLY RAY REDDING,

Defendant and Appellant.

Billy Ray Redding appeals from the judgment and order committing him as
a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators
Act. (Welf. & Inst. Code, § 6600 et seq., Act or SVP Act.) He contends the SVP Act
violates his right to equal protection under both the state and federal constitutions
because it treats SVPs differently from those involuntarily committed for treatment as
mentally disordered offenders (MDOs) and those found not guilty by reason of insanity
(NGIs). He further contends the Act violates his right to due process, double jeopardy
protections and the constitutional prohibitions against ex post facto laws.
We have considered these arguments in light of our Supreme Court's recent
opinion in People v. McKee (2010) 47 Cal.4th 1172 (McKee I), the Court of Appeals'
now final opinion on remand in the same case, People v. McKee (2012) 207
Cal.App.4th 1325 (McKee II), and the parties' supplemental letter briefs addressing that
opinion. We concur with the holding in McKee II. In doing so, we join the Courts of

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Appeal in People v. McDonald (March 28, 2013, G044963) ___ Cal.App.4th ___ [2013
WL 1246831], People v. Landau (2013) 214 Cal.App.4th 1, People v. McCloud (2013)
213 Cal.App.4th 1076, and People v. McKnight (2012) 212 Cal.App.4th 860, in holding
that the SVP Act's provisions concerning the indeterminate commitment of SVPs and the
allocation of the burden of proof do not violate the equal protection rights of the person
named in the SVP petition. Accordingly, we affirm the order of the trial court
committing appellant to the custody of the Department of Mental Health (DMH) as an
SVP.
Facts
Appellant does not contest the trial court's finding that he meets the
statutory definition of an SVP. Rather, he contends the SVP Act violates his federal and
state constitutional rights to equal protection because it treats SVPs differently from
mentally disordered offenders (MDOs) and persons found not guilty by reason of insanity
(NGIs). Consequently, we provide only a very brief summary of the facts.
The parties stipulated at appellant's nonjury SVP recertification trial that
appellant meets the first statutory criteria for an SVP commitment because he has been
convicted of more than one qualifying sex crime. Two clinical psychologists, Jeremy
Coles, Ph. D. and Dr. Robert Owen, Ph. D., evaluated appellant and diagnosed him with
two mental disorders: paraphilia not otherwise specified (sex with nonconsenting
partners) and a personality disorder with anti-social and narcissistic traits.1 Both also
concluded that appellant posed a high risk of sexually reoffending.
Seven hospital staff members testified on behalf of appellant. None of the
witnesses opined that he was ready for release, but they described his positive behavior in
the hospital and his participation in treatment. The defense witnesses assessed appellant's
risk of reoffending to be lower than the evaluators had.

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Coles concluded appellant had a personality disorder, not otherwise specified, with anti-
social and narcissistic traits. Owen diagnosed appellant with anti-social personality
disorder.
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 At the conclusion of the nonjury trial, the trial court found that appellant
continues to qualify as an SVP. The trial court ordered appellant committed to the
Department of Mental Health ("DMH") for an indeterminate term.
Discussion
As our Supreme Court explained in McKee I, California voters approved
Proposition 83 in 2006, amending the SVP Act to change the SVP commitment "from a
two-year term, renewable only if the People prove to a jury beyond a reasonable doubt
that the individual still meets the definition of an SVP, to an indefinite commitment from
which the individual can be released if he proves by a preponderance of the evidence that
he no longer is an SVP." (McKee I, supra, 47 Cal,4th at pp. 1183-1184.) SVPs are thus
treated differently from MDOs and NGIs, raising equal protection concerns for our
Supreme Court. It concluded: "[T]he state has not yet carried its burden of
demonstrating why SVPs, but not any other ex-felons subject to civil commitment, such
as mentally disordered offenders, are subject to indefinite commitment . . . . [W]e
remand to the trial court to permit the People the opportunity to justify the differential
treatment in accord with established equal protection principles." (Id. at p. 1184.)
On remand, the trial court held a 21-day evidentiary hearing and concluded
the state had carried its burden to justify the disparate treatment of SVPs. That judgment
was affirmed by the Court of Appeal in McKee II, supra, 207 Cal.App.4th 1325).
Appellant urges us to reject the legal analysis in McKee II as "badly flawed" and to
conclude instead that the SVP Act violates his right to equal protection because it treats
SVPs differently from MDOs and NGIs without adopting the least restrictive means
available to address the state's compelling interests in public safety and the humane
treatment of the mentally ill. We recognize that we are not bound by McKee II. (Sarti v.
Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1193 ["there is no horizontal stare decisis
in the California Court of Appeal"].) However, we are persuaded by its equal protection
analysis and adopt it as our own.
The Court of Appeal in McKee II independently reviewed the evidence
presented to the trial court. Among other things, the evidence presented in McKee II

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supported the conclusion that "victims of sex offenses suffer unique and, in general,
greater trauma than victims of nonsex offenses." (Mcee II, supra 207 Cal.App.4th. at p.
1342.) SVPs pose a higher risk of sexual reoffending than do MDOs or NGIs. Their
recidivism rates are equal to, or slightly higher than those of sex offenders who do not
qualify as SVPs. (Id.) Most SVPs are diagnosed with different mental illnesses than are
MDOs and NGIs. Their treatment plans also differ, as do their rates of compliance and
success in treatment. (Id. at p. 1347.) "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." (Id.) There is also 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 SVPs."
(Id.)
After reviewing this evidence, the Court of Appeal concluded, "[T]he
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. (Ibid.)" (McKee II, supra, 207 Cal.App.4th at p. 1347.)
Having concluded that "the disparate treatment of SVP's under the Act is reasonable and

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factually-based and was adequately justified by the People at the evidentiary hearing on
remand," the court in McKee II held the Act does not violate the equal protection rights of
SVPs. (McKee II, supra, 207 Cal.App.4th at p. 1348.)
The court in McKee II also rejected the assertion that the SVP Act violated
the appellant's equal protection rights because it failed to adopt the least restrictive means
available to further the state's compelling interests. Relying on In re Moye (1978) 22
Cal.3d 457, the court in McKee II held, "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. [Citations.] We
are unpersuaded that 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." (Id. at p.
1349.)
We agree with this analysis. This case does not involve a suspect
classification of persons based on an immutable characteristic such as race or ethnicity.
As a consequence, the "least restrictive means" test does not apply. (See, e.g., Connerly
v. State Personnel Bd. (2001) 92 Cal.App.4th 16, 33-35.) It is sufficient that the means
adopted by the SVP Act are a necessary means of advancing the state's compelling
interests in public safety and the humane treatment of the mentally ill. (In re Moye,
supra, 22 Cal.3d at p. 465.) The evidence before the trial court in McKee II demonstrated
that the treatment of SVPs takes longer than does the treatment of MDOs or NGIs. In
addition, treatment plans for SVPs rely less on medication and more on psychosocial
interventions designed to provide SVPs with tools to reduce their risk of sexually
reoffending. (McKee II, supra, 207 Cal.App.4th at pp. 1345-1347.) Expert witnesses at
the McKee II trial also opined that the indeterminate commitment term provided for in the
SVP Act supports the treatment plan because it provides SVPs with a greater incentive to
participate in treatment. By contrast, the two-year determinate terms often interfered
with treatment because SVPs were often required to be absent from treatment for months

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at time, to attend their court hearings. (Id. at pp. 1345-1346.) This evidence supports the
conclusion that the provisions of the SVP Act are a necessary means of advancing the
compelling state interests at stake. (Id. at p. 1349.)
Appellant further contends the SVP Act violates his right to due process, to
be protected against ex post facto laws and to be protected against double jeopardy. He
correctly concedes these same contentions were rejected by our Supreme Court in McKee
I and that we are bound by that decision.
Disposition
The December 9, 2011 order of commitment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

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 Kevin G. Denoce, Judge

Superior Court County of Ventura

______________________________

Rudy Craft, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.

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