Filed 5/15/14 P. v. Snavely CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063684

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. MH102461)

GARY GENE SNAVELY,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of San Diego County, Melinda J.

Lasater, Judge. Affirmed.

         Rudy Kraft, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Lynne

G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
       Gary Gene Snavely appeals an order denying his Welfare and Institutions Code1

section 6608 petition for conditional release from his civil commitment as a sexually

violent predator. On appeal, he contends his constitutional right to equal protection was

violated because the Sexually Violent Predators Act (§ 6600 et seq.) (the SVP Act or the

Act) placed on him the burden to prove he was suitable for conditional release. He

asserts that neither People v. McKee (2010) 47 Cal.4th 1172 (McKee I) nor People v.

McKee (2012) 207 Cal.App.4th 1325 (McKee II) decided this issue. Because, as

discussed below, in McKee II we decided the Act does not violate the equal protection

right of a sexually violent predator (SVP) by placing on him or her the burden to prove

entitlement to release, whether conditional or unconditional, we affirm the order.

                  FACTUAL AND PROCEDURAL BACKGROUND2

       In September 2012, Snavely filed the instant section 6608 petition for conditional

release and/or unconditional discharge from his civil commitment as an SVP. Snavely

did not allege, and the record does not show, the Department of Mental Health (DMH)

authorized his petition. His petition alleged he was first civilly committed as an SVP in

1997 and, after showing consistent progress in sex offender therapy and relapse

prevention offender therapy, he was conditionally released in June 2008. In September


1      All statutory references are to the Welfare and Institutions Code unless otherwise
specified.

2      Because the evidence presented at the hearing on Snavely's section 6608 petition
for conditional release is immaterial to our disposition of his facial challenge to the Act,
we only briefly discuss it in this opinion.

                                              2
2008, his conditional release was revoked based on his abuse of one of his psychotropic

medications and his fantasy involving women's feces. Snavely alleged he had since made

sufficient progress in his therapy and was entitled to placement in a conditional release

program for one year or unconditional discharge from civil commitment.

       During a five-day trial, the trial court heard the testimony of Snavely's therapists

and other treatment providers, who generally described his progress during commitment

and/or their belief he was ready for conditional release, followed by the testimony of the

State of California's forensic psychologist who concluded Snavely was not ready for

conditional release. On February 15, 2013, the trial court issued a statement of decision

denying the petition. The court concluded Snavely had not met his burden to prove by a

preponderance of the evidence he would not be a danger to others because of his

diagnosed mental state while under supervision and treatment in the community. Snavely

timely filed a notice of appeal challenging the order denying his petition.

                                       DISCUSSION

                                              I

                             The SVP Act and Proposition 83

       In McKee I, the California Supreme Court summarized the SVP Act and

Proposition 83's 2006 amendment of the Act (McKee I, 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


                                              3
persons who, by a unanimous jury verdict after trial (Welf. & Inst. Code, former §§ 6603,

subd. (d), 6604), are found beyond a reasonable 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 Predators 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. . . .


                                               4
       "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 person and conditions can be imposed that adequately protect the community, the

director shall authorize the person to petition the court for conditional release to a less

restrictive alternative or for an unconditional discharge.' (§ 6605, subd. (b).) If the state




                                                5
opposes the director's petition, then, as under the pre-Proposition 83 statute, it must prove

beyond a reasonable doubt that the person still meets the definition of an SVP.

       "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 own, is able to bear the burden of proving by a preponderance

of the evidence that he 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 two-year commitment, now becomes the only means




                                              6
of being released from an indefinite commitment when the DMH does not support

release."3 (McKee I, supra, 47 Cal.4th at pp. 1185-1188, fns. omitted.)

                                              II

                                  Equal Protection Clause

       In McKee II, we discussed the right to equal protection under the federal and

California Constitutions and repeat that discussion here. (McKee II, supra, 207

Cal.App.4th at pp. 1334-1335.) "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 situated with respect to the legitimate purpose of the law

receive like treatment; equal protection does not require identical treatment. [Citation.]'

[Citation.] The state '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 power.' "

(People v. Hubbart (2001) 88 Cal.App.4th 1202, 1216-1217.)




3       Effective as of June 27, 2012, the Act was amended to replace references to the
Department of Mental Health (DMH) with the Director of State Hospitals (DSH). (See
e.g., §§ 6605, 6608, as amended by Stats. 2012, ch. 24, §§ 144, 146.)
                                              7
       "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.) 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.) 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.)

                                              III

                                           McKee I

       In McKee I, supra, 47 Cal.4th 1172, the California Supreme Court addressed

McKee's claim that his equal protection right was violated because SVP's are treated

disparately from mentally disordered offenders (MDO's) and persons found not guilty by

reason of insanity (NGI's). Regarding SVP's and MDO's, McKee I stated:

          "SVP's under the amended Act are given indeterminate
          commitments and thereafter have the burden to prove they should be
          released (unless the DMH authorizes a petition for release). In
          contrast, an MDO is committed for a one-year period and thereafter
          has the right to be released unless the People prove beyond a
          reasonable doubt that he or she should be recommitted for another
          year. There is therefore no question that, after the initial
          commitment, an SVP is afforded different and less favorable
          procedural protections than an MDO." (McKee I, supra, 47 Cal.4th
          at p. 1202.)




                                              8
McKee I concluded SVP's and MDO's are similarly situated for equal protection

purposes. (McKee I, supra, 47 Cal.4th at pp. 1202-1203.) The court also concluded

SVP's and NGI's are similarly situated for equal protection purposes. (Id. at p. 1207.)

       However, because the People had not yet carried their burden to justify the

disparate treatment of SVP's, the court remanded the matter to the trial court for an

evidentiary hearing to determine whether, applying the strict scrutiny standard, the

People could justify the disparate treatment of SVP's under the Act by showing the

disparate treatment of SVP's was necessary to further compelling state interests.

(McKee I, supra, 47 Cal.4th at pp. 1184, 1197-1198.) The court described that disparate

treatment as the imposition on SVP's of a greater burden than is imposed on MDO's and

NGI's to obtain release from commitment. (Id. at pp. 1208-1209.) The court described

the burden the People would have on remand, stating:

          "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. . . . Or the People may produce
          some other justification." (McKee I, supra, 47 Cal.4th at p. 1208,
          italics added, fn. omitted.)




                                             9
                                            IV

                                        McKee II

       On remand after McKee I, the trial court conducted a 21-day evidentiary hearing to

determine whether the People met their burden to justify the disparate treatment of SVP's.

(McKee II, supra, 207 Cal.App.4th at p. 1330.) Following that hearing, the trial court

concluded the People met that burden and confirmed McKee's civil commitment as an

SVP. (Ibid.) On appeal, McKee asserted the trial court erred. (Ibid.)

       In McKee II, we independently reviewed the evidence presented at the evidentiary

hearing and concluded "the trial court correctly found the People presented substantial

evidence to support a reasonable perception by the electorate that SVP's present a

substantially greater danger to society than do MDO's or NGI's, and therefore the

disparate treatment of SVP's under the Act is necessary to further the People's compelling

interests of public safety and humane treatment of the mentally disordered." (McKee II,

supra, 207 Cal.App.4th at pp. 1330-1331.) In so concluding, we discussed the testimony

of the People's witnesses regarding the recidivism rates of SVP's and MDO's/NGI's, the

greater trauma of victims of sexual offenses, and diagnostic and treatment differences

between SVP's and MDO's/NGI's. (Id. at pp. 1340-1347.) We concluded "the People on

remand met their burden to present substantial 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)." (Id. at p. 1347, italics

added.) We further concluded the People showed SVP's as a class bear a substantially


                                            10
greater risk to society than do MDO's and NGI's as a class, and therefore imposing on

SVP's " 'a greater burden before they can be released from commitment is needed to

protect society.' " (Ibid., italics added.)

                                              V

                              Snavely's Equal Protection Claim

       Snavely contends the trial court erred by denying his section 6608 petition for

conditional release because his constitutional right to equal protection of the law was

violated. He claims that, pursuant to the Act, the burden was placed on him to prove, by

a preponderance of the evidence, he is suitable for conditional release under section 6608.

He asserts, and the People disagree, that neither McKee I nor McKee II decided this issue

and therefore the trial court's judgment must be reversed and the matter remanded for

either a new hearing with application of the appropriate burden of proof or, in the

alternative, an evidentiary hearing to allow the People to present evidence justifying the

disparate treatment of SVP's.

                                              A

       Snavely first asserts he did not waive or forfeit his equal protection claim when his

counsel did not raise that claim below or, if he did, he was denied his right to effective

assistance of counsel. To prove ineffective assistance of counsel, Snavely must show, by

a preponderance of the evidence, that (1) his counsel's representation was deficient (i.e.,

was below prevailing professional standards of reasonableness); and (2) he was

prejudiced by that deficient performance (i.e., it is reasonably probable that, but for his


                                              11
counsel's deficient performance, he would have obtained a more favorable result).

(Strickland v. Washington (1984) 466 U.S. 668, 687, 691-692; People v. Ledesma (1987)

43 Cal.3d 171, 215-218; People v. Pope (1979) 23 Cal.3d 412, 425.)

       For purposes of this opinion, we assume arguendo that Snavely waived or

forfeited his equal protection claim by not raising it below and his counsel performed

deficiently by not raising that claim, and therefore address only the issue of prejudice

from that assumed deficient performance. Because, as we conclude below, his equal

protection right was not violated by application of section 6608's burden of proof

provision, we conclude Snavely has not carried his burden to show he was prejudiced by

his counsel's assumed deficient performance. (Strickland v. Washington, supra, 466 U.S.

at pp. 687, 691-692; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218; People v. Pope,

supra, 23 Cal.3d at p. 425.)

                                              B

       Under the Act, an SVP's commitment term is indeterminate, and an individual so

committed can only be released conditionally or unconditionally (1) if the DSH

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 (2) 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 and is entitled to

conditional or unconditional release. (§§ 6604, 6605, 6608; McKee I, supra, 47 Cal.4th

at pp. 1185-1188, fns. omitted.) If the DSH does not, as in this case, authorize the


                                             12
committed person to file a petition for release pursuant to section 6605, the person

nevertheless may file a petition for conditional release for one year and subsequent

unconditional discharge pursuant to section 6608. (§ 6608, subd. (a).)4

       Section 6608, subdivision (e), provides the procedure for the hearing on an SVP's

petition for conditional release, stating:

           "The court shall hold a hearing to determine whether the person
           committed would be 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 due to his or her diagnosed mental disorder if under
           supervision and treatment in the community. . . . If the court at the
           hearing determines that the committed person would not be a danger
           to others due to his or her diagnosed mental disorder while under
           supervision and treatment in the community, the court shall order the
           committed person placed with an appropriate forensic conditional
           release program operated by the state for one year. . . ."

Section 6608, subdivision (i), provides: "In a hearing authorized by this section, the

committed person shall have the burden of proof by a preponderance of the

evidence . . . ."5 (Italics added.) Therefore, in a section 6608 hearing on a petition for


4      Section 6608, subdivision (a), provides in pertinent part: "A person who has been
committed as a sexually violent predator shall be permitted to petition the court for
conditional release with or without the recommendation or concurrence of the Director of
State Hospitals. . . ."

5       After amendments that were effective as of January 1, 2014, section 6608,
subdivision (i), now provides: "In a hearing authorized by this section, the committed
person shall have the burden of proof by a preponderance of the evidence, unless the
report required by Section 6604.9 determines that conditional release to a less restrictive
alternative is in the best interest of the person and that conditions can be imposed that
would adequately protect the community, in which case the burden of proof shall be on
the state to show, by a preponderance of the evidence, that conditional release is not
appropriate."

                                              13
conditional release, the committed person (i.e., the SVP) has the burden to prove, by a

preponderance of the evidence, he or she would not be a danger to others due to his or her

diagnosed mental disorder while under supervision and treatment in the community.

(§ 6608, subds. (e), (i).)

       Effective as of January 1, 2014, section 6608, subdivision (k), was added,

providing:

           "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 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."

                                              C

       Snavely asserts his equal protection rights were violated because the Act placed

the burden of proof on him to show by a preponderance of the evidence that he is suitable

for conditional release under section 6608. However, based on our review of McKee I

and McKee II, we conclude that question has been decided adversely to the class of SVP's

that includes Snavely.

       In McKee I, the California Supreme Court noted the disparate treatment of SVP's

under the Act included their indeterminate commitments and burden thereafter to prove

they should be released (unless the DSH authorizes a petition for release). (McKee I,

supra, 47 Cal.4th at p. 1202.) The court described that disparate treatment as the


                                              14
imposition on SVP's of a greater burden than is imposed on MDO's and NGI's to obtain

release from commitment. (Id. at pp. 1208-1209.) In remanding the matter for an

evidentiary hearing to allow the People to justify that disparate treatment of SVP's, the

court described the burden the People would have, stating:

          "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. . . . Or the People may produce
          some other justification." (McKee I, supra, 47 Cal.4th at p. 1208,
          italics added, fn. omitted.)

       In McKee II, we independently reviewed the evidence presented at that evidentiary

hearing after remand and concluded the People had met their burden to justify that

disparate treatment of SVP's. (McKee II, supra, 207 Cal.App.4th at pp. 1330, 1347.) We

concluded the People presented substantial evidence to support a reasonable perception

by the electorate that SVP's present a substantially greater danger to society than do

MDO's or NGI's, and therefore the disparate treatment of SVP's under the Act is

necessary to further the People's compelling interests of public safety and humane

treatment of the mentally disordered. (Id. at p. 1331.) Importantly for this case, we

concluded "the People on remand met their burden to present substantial 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


                                            15
should be released)." (Id. at p. 1347, italics added.) We further concluded the People

showed SVP's as a class bear a substantially greater risk to society than do MDO's and

NGI's as a class, and therefore imposing on SVP's " 'a greater burden before they can be

released from commitment is needed to protect society.' " (Ibid., italics added.)

       Therefore, both McKee I and McKee II considered in their equal protection

analyses disparate treatment of SVP's that included the Act's placement on SVP's of the

burden of proof to obtain release. In using the term "release," both decisions showed an

intent to include both conditional and unconditional releases within that term. Both

decisions recognized the Act's framework that sets forth procedures for an SVP to file a

petition, without the authorization or concurrence of the DMH/DSH, for conditional

release under section 6608. Under the statutory framework, presuming the DMH/DSH

does not authorize most petitions by SVP's for release (which presumption is not

contradicted by the records in McKee II and this case), a section 6608 petition for

conditional release is the most common procedure by which SVP's can obtain release

from their civil commitments. Absent authorization or concurrence of the DMH/DSH, an

SVP can obtain unconditional release or discharge only after first obtaining conditional

release and then satisfactorily completing at least one year in a forensic conditional

release program. (See Welf. & Inst. Code, former § 6608, subd. (d); cf. new § 6608,

subd. (k) [eff. Jan. 1, 2014].) Therefore, in using the term "release," McKee I and

McKee II clearly intended to include conditional release within the disparate treatment of

SVP's for purposes of their equal protection analyses.


                                             16
       Based on our reading of McKee II, our conclusion that the People met their burden

to justify the disparate treatment of SVP's under the Act included that disparate treatment

of SVP's consisting of the burden imposed on SVP's to prove, by a preponderance of the

evidence, they are suitable for conditional release under section 6608. Our holding in

McKee II was not limited to only disparate treatment of SVP's consisting of imposition of

an indeterminate civil commitment. In our opinion, we expressly concluded the People

on remand met their burden to justify "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 II, supra, 207 Cal.App.4th at

p. 1347, italics added.)

       As used in McKee II, "[t]he burden to prove they should be released" necessarily

includes, and only includes, the burden imposed on SVP's to prove they should be

conditionally released under section 6608, because it is only in the context of a section

6608 petition that the burden of proof is placed on the SVP. (McKee II, supra, 207

Cal.App.4th at p. 1347.) At the time of the trial court's February 2013 decision, the Act

provided that when the DMH authorized an SVP's petition for conditional release, the

burden of proof was on the People to show, beyond a reasonable doubt, that the SVP's

diagnosed mental disorder remains such that he or she is a danger to the health and safety

of others and is likely to engage in sexually violent criminal behavior if discharged.

(Welf. & Inst. Code, former § 6605, subd. (d); cf. new § 6608, subd. (i) [eff. Jan. 1, 2014,

when the DSH recommends conditional release for an SVP, the People now have the


                                            17
burden of proof to show, by a preponderance of the evidence, that conditional release is

not appropriate.].) Therefore, McKee II considered disparate treatment that includes the

placement of the burden of proof on SVP's to show they are suitable for, or entitled to,

conditional release under section 6608 and concluded that burden of proof did not violate

the equal protection rights of SVP's as a class. Because in McKee II we rejected the same

equal protection claim raised by Snavely in this appeal, we conclude the trial court did

not err by denying his petition for conditional release. None of the cases cited by

Snavely persuade us to reach a contrary conclusion.

       Assuming arguendo we did not decide in McKee II the question whether disparate

treatment in placing the burden on SVP's to prove they are suitable for, or entitled to,

conditional release under section 6608, we nevertheless conclude, based on our

independent review of the evidence presented at the evidentiary hearing discussed in

McKee II, the People met their burden to justify that disparate treatment of SVP's and

therefore there is no need for an evidentiary hearing on that issue in this case. We

conclude the People showed SVP's as a class bear a substantially greater risk to society

than MDO's and NGI's, and therefore imposing on SVP's a greater burden before they

can be conditionally released from their civil commitments is necessary to protect

society. (McKee II, supra, 207 Cal.App.4th at p. 1347.) As discussed above, SVP's are

treated disparately in obtaining conditional release. Under section 6608, subdivision (i),

absent DMH/DSH authorization or concurrence, SVP's have the burden to prove, by a

preponderance of the evidence, they are entitled to conditional release and placement in


                                             18
an appropriate forensic conditional release program. In contrast, MDO's are entitled to

release for treatment on an outpatient basis if the court finds there is reasonable cause to

believe the person can be safely and effectively treated on an outpatient basis. (Pen.

Code, § 2972, subd. (d).) However, that disparate treatment was justified by the evidence

presented by the People at the McKee II hearing. The People showed the inherent nature

of the SVP's mental disorder makes recidivism as a class significantly more likely, SVP's

pose a greater risk and unique dangers to a particularly vulnerable class of victims, such

as children, and SVP's have diagnostic and treatment differences from MDO's and NGI's,

thereby supporting a reasonable perception by the electorate that the disparate treatment

of SVP's under the Act is necessary to further the state's compelling interest in public

safety and humanely treating the mentally disordered. (McKee, at p. 1347.) Therefore,

the Act's disparate treatment of SVP's in placing on them the burden to prove their

suitability for conditional release does not violate the equal protection right of SVP's.

                                      DISPOSITION

       The order is affirmed.

                                                                            McDONALD, J.
WE CONCUR:


NARES, Acting P. J.


IRION, J.




                                             19
