Filed 7/29/13 P. v. Scott 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136115
v.
LAQUAIN LARRY SCOTT,                                                 (San Francisco County
                                                                     Super. Ct. Nos. 106490, 1952523)
         Defendant and Appellant.


         Appellant Laquain Larry Scott appeals from a jury determination that he is a
sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA or Act). 1
He contends that the Act violates the equal protection clause and that the use of a
standard jury instruction defining SVPs was improper and violated his rights to due
process. We disagree and affirm.
                                                    I.
                                          FACTUAL AND PROCEDURAL
                                               BACKGROUND
         Scott was convicted several times of sexually violent offenses spanning a period of
26 years. The convictions date back to 1968, when Scott was 17. He was 61 at the time
of the trial on his current SVPA commitment, which occurred in 2012.



1
 Welfare and Institutions Code, § 6600 et sequitur.
All statutory references are to the Welfare and Institutions Code unless otherwise
specified.


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       Scott had been previously committed as an SVP in 2006. At that time, the trial
court committed him for a term of two years to Coalinga State Hospital, and this court
affirmed in a nonpublished opinion. (People v. Scott (Aug. 29, 2007, A113728).)
       Following Scott‟s 2006 commitment, the SVPA was amended to modify the terms
under which SVPs are committed and released. (People v. McKee (2010) 47 Cal.4th
1172, 1183 (McKee I).) Under the earlier version, a person found to be an SVP was
given an involuntary two-year civil commitment. (Id. at p. 1185.) That two-year period
could be extended only if a new petition was filed requesting a successive two-year
commitment and the People proved beyond a reasonable doubt that the person remained
an SVP. (Ibid.) Under the current version, a person found to be an SVP is given an
indeterminate commitment to the custody of the Department of State Hospitals. (§ 6604;
McKee I at pp. 1186-1187.)
       In February 2008, after the Act was amended, the People filed a petition seeking
an indefinite term of commitment for Scott. The trial court found probable cause, and a
trial ensued. At trial, four psychologists who had evaluated Scott testified. All four
diagnosed Scott with paraphilia, which is a mental disorder within the meaning of the
SVPA. One of the psychologists testified that Scott was likely to commit sexually
violent predatory offenses in the future, while the other three testified that Scott was
unlikely to do so because his advancing age and declining health placed him in a low- or
moderate-risk category.
       A jury found the petition declaring Scott an SVP to be true. The trial court
committed Scott for an indefinite term and ordered that he be returned to Coalinga State
Hospital. This timely appeal followed.
                                             II.
                                        DISCUSSION
       A. No Violation of Equal Protection Principles.
       Scott argues that the SVPA denies him equal protection of the law because SVPs
are indefinitely committed while other classes of people subject to civil commitments are
not. We disagree, and concur with our colleagues in Division Three that the recent case


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of People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II) is dispositive. (People v.
McKnight (2012) 212 Cal.App.4th 860, 862.)
       In McKee I, the California Supreme Court concluded that, for purposes of the
equal protection clause, SVPs are similarly situated to two other classes of people subject
to civil commitments: mentally disordered offenders and persons found not guilty by
reason of insanity. (McKee I, supra, 47 Cal.4th at pp. 1203-1207.) After ruling that the
classes are similarly situated, the court remanded the case for an evidentiary hearing to
determine whether there were legitimate reasons to subject SVPs, but not the other
classes, to indefinite commitments. (Id. at pp. 1208-1210.) On remand, and following a
21-day evidentiary hearing, the trial court concluded that the People had met their burden
of justifying the disparate treatment. (McKee II, supra, 207 Cal.App.4th at pp. 1330,
1332.) The Fourth District Court of Appeal affirmed (id. at pp. 1348, 1350), and our
Supreme Court denied McKee‟s petition for review on October 10, 2012 (S204503).
       Scott argues at length that McKee II was incorrectly decided. But as the court
explained in People v. McKnight, supra, 212 Cal.App.4th at pages 863-864, the Supreme
Court transferred multiple “ „grant and hold‟ ” cases under McKee I “to the Courts of
Appeal with directions to vacate their prior opinions and suspend further proceedings
until the McKee I remand proceedings were final, „in order to avoid an unnecessary
multiplicity of proceedings.‟ [Citations.] On remand, McKee II concluded that
differences between SVPs as a class and other offenders justify their different treatment
under the Act. It is plain that McKee II is not to be restricted to Mr. McKee alone . . . ,
but rather its holding applies to the class of SVP‟s as a whole.” (Original italics.) The
Supreme Court denied review in McKnight on March 13, 2013 (S208182), and it has
since denied review in other cases that also found McKee II to be dispositive on the equal
protection issue. (People v. McDonald (2013) 214 Cal.App.4th 1367, 1371 [agreeing
with McKnight], petn. review den. July 10, 2013, S210417; People v. Landau (2013)
214 Cal.App.4th 1, 48 [agreeing with McKee II‟s reasoning and conclusion and noting
that defendant made no showing he was able to introduce “any new or different evidence
that would require a different result”], petn. review den. May 22, 2013, S209450;


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People v. McCloud (2013) 213 Cal.App.4th 1076, 1079, petn. review den. May 22, 2013,
S208845.)
       Like the McKnight court, we agree with the Fourth District‟s equal protection
analysis in McKee II, supra, 207 Cal.App.4th at pages 1339-1347, and we thus conclude
that Scott‟s indeterminate recommitment under the SVPA does not violate his equal
protection rights. (People v. McKnight, supra, 212 Cal.App.4th at p. 864.)
       B. No Instructional Error.
       Scott argues on appeal that his fundamental rights were violated when the jury was
given the standard CALCRIM instruction on the requirements for finding a person to be
an SVP.2 These arguments were not raised below when the People asked for the
instruction to be given, and we question whether they were properly preserved for
appellate review even though respondent does not argue that they were forfeited.
(People v. Virgil (2011) 51 Cal.4th 1210, 1260 [party‟s failure to object to jury
instructions forfeits the claim on appeal].) Nevertheless, because Scott claims that he
was excused from objecting below because the instruction affected his substantial rights
(Pen. Code, § 1259) and to forestall any later claim brought in a habeas proceeding, we
proceed to the merits and reject each of Scott‟s arguments in turn.
              1. Instruction did not lower burden of proof.
       Jurors were instructed under CALCRIM No. 3454A that the People were required
to prove beyond a reasonable doubt that (1) Scott had a diagnosed mental disorder, (2) he
was a danger to the health and safety of others as a result of that disorder because it was
likely that he would engage in sexually violent predatory criminal behavior, and (3) it

2
  Some of Scott‟s arguments we address in this section are not new. The same attorney
who represents Scott in this appeal raised almost identical claims of instructional error in
appeal No. A131853 before Division One of this court (People v. Atualevao (Feb. 13,
2013) [nonpub. opn.]) and in appeal No. A124874 before Division Five of this court
(People v. Lowe (Nov. 29, 2010, mod. Dec. 20, 2010) [nonpub. opn.]). Our colleagues
rejected these arguments. On the court‟s own motion, we take judicial notice of the
briefs and opinion in Atualevao and the opinion in Lowe. (Evid. Code §§ 451, subd. (a),
452, subd. (d), 459, subd. (a); In re Luke L. (1996) 44 Cal.App.4th 670, 674, fn. 3
[judicial notice of nonpublished opinion pursuant to Evid. Code, § 451, subd. (a)].)


                                             4
was necessary to keep him in custody in a secure facility to ensure the health and safety
of others.3
       According to Scott, the third element‟s reference to the necessity of keeping the
person in a secure facility “improperly and unnecessarily focus[ed] the jury‟s attention on
the improper consideration of the consequences of its verdict.” He claims that the
language “effectively reverse[d] the burden of proof” because it “impress[ed] on the
factfinder what is effectively a presumption of dangerousness, a presumption that
work[ed] to [his] extreme prejudice . . . .” We conclude that there was no error. We
agree with our colleagues in Division One, who considered an almost identical argument
advanced by Scott‟s appellate attorney, that it is not reasonably likely that a jury would
understand the instruction to mean that “a person must be committed unless they can
ensure the safety of the community . . . effectively [creating] a presumption of
dangerousness.” (People v. Atualevao, supra, A131853, 2013 Cal. App. Unpub. LEXIS
1096 at p. *23.)
       The third element‟s direction that the jury determine whether it is necessary for the
person to be kept in a secure facility increases the prosecution‟s burden and was added to
the form instruction to protect SVPs by guarding against unnecessarily prolonged
custody. It must be given sua sponte in every case where evidence is presented that the
person is amenable to voluntary treatment in the community because this evidence is
relevant to whether the person is likely to engage in sexually violent behavior in the
future. (People v. Grassini (2003) 113 Cal.App.4th 765, 776-778; 2 Judicial Council of
Cal., Crim. Jury Instns. (Spring ed. 2013) Bench Notes to CALCRIM No. 3454A,
p. 1039.) A suspected SVP may request instruction on this element where he
acknowledges having a sexual or mental disorder but claims that he does not pose a

3
  The parties identify the instruction as CALCRIM No. 3454, which is to be given at
trials on the initial SVP petition. The jury was in fact instructed with CALCRIM
No. 3454A, which is given at trials on subsequent petitions. The two instructions are
almost identical, except that No. 3454A omits the prosecution‟s burden to prove that the
potential SVP has been convicted of committing sexually violent offenses against one or
more victims.


                                             5
danger to the community if released because he will undergo voluntary treatment.
(People v. McRoberts (2009) 178 Cal.App.4th 1249, 1258.)
       It is unclear why the third element was given in this case since there was little
focus at trial on Scott‟s amenability to voluntary treatment and evidence was presented
that previous treatment had been unsuccessful, Scott refused to participate in treatment in
2010, and one expert doubted Scott would undertake treatment in the community. But
we nonetheless believe that there was no error in directing the jury to sustain the petition
only if it found that it was “necessary to keep [Scott] in custody in a secure facility.” One
of Scott‟s main arguments at trial was that he was unlikely to reoffend in the community
because of advancing age and deteriorating health. In closing argument, Scott‟s trial
counsel pointedly argued that Scott no longer needed to be kept in a secure facility: “Is it
necessary to keep him in custody? That‟s the issue after 12 years. That‟s the issue.”
(Italics added.) Directing the jury to sustain the petition only if it found that it was
necessary to keep Scott in a secure facility was consistent with Scott‟s defense, which is
probably why no objection was made to the instruction by Scott‟s trial counsel.
       Furthermore, the third element‟s reference to Scott‟s status in a secure facility was
directly related to the central purpose of the proceeding. In a series of cases, our
Supreme Court has made it clear that the whole point of the SVPA is to determine
whether a person should be committed in a secure facility. (People v. Roberge (2003)
29 Cal.4th 979, 988 [person is an SVP under § 6600, subd. (a) if there is substantial
danger he or she will commit sexually violent crimes if released from custody]; Cooley v.
Superior Court (2002) 29 Cal.4th 228, 256 [although standard for probable cause finding
does not expressly include reference to custody, issue is whether person likely to reoffend
without confinement and treatment]; People v. Superior Court (Ghilotti) (2002)
27 Cal.4th 888, 921 [purpose of SVPA is to protect public from group of persons who
present high risk of reoffense if “not treated in a confined setting”].) Given these cases,
we cannot conclude that the instruction‟s suggestion that Scott was in a secure facility
amounted to error.



                                               6
       The cases upon which Scott relies were decided years before our Supreme Court‟s
decisions in Ghilotti, Cooley, and Roberge clarified the relevant standards in making an
SVP determination, and they are distinguishable in any event. People v. Rains (1999)
75 Cal.App.4th 1165 held that it was error, though harmless, for a prosecution expert to
testify that if the jury found the appellant to be an SVP, he would “ „receive a civil
commitment to a psychiatric facility and receive treatment there,‟ ” and two experts
testified briefly about the specific type of treatment he would be expected to receive. (Id.
at p. 1171.) The court held that such evidence had no relevance to the issue of whether
the appellant was likely to engage in sexually violent criminal behavior (§ 6600,
subd. (a)), but that the admission of such testimony was harmless because it was
relatively brief and the evidence against the appellant was strong. (Rains at p. 1170.)
Here, by contrast, Scott points to no such objectionable trial testimony.
       In People v. Allen (1973) 29 Cal.App.3d 932, the court held that it was reversible
error to allow testimony and argument on the particular treatment an appellant would be
compelled to receive at a state institution if the jury found that he was a mentally
disordered sex offender. (Id. at pp. 934, 938-939.) The prosecutor informed jurors that
such treatment would be beneficial to appellant and that appellant “ „need[ed] help‟ ” (id.
at p. 934), and the trial court also informed jurors of the specific treatment the appellant
would receive. (Id. at pp. 934-935.) The appellate court reversed appellant‟s judgment
of commitment, concluding that “[p]ermitting the jury to consider the alleged speculative
benefits of involuntary treatment is to allow them to believe they are doing the individual
a favor by helping him solve his problem rather than punishing him criminally.” (Id. at
pp. 938-939.) But as Scott acknowledges, the jury instruction in this case “made no
reference to treatment and its affect [sic] upon appellant‟s likelihood of reoffense,”
meaning that there was little risk that jurors would find the SVP allegations against him
true in order to do him a “favor,” as was the concern in Allen.
       And in People v. Collins (1992) 10 Cal.App.4th 690, a modified jury instruction,
along with the jury verdict forms used, directed the jury to determine whether a mentally
disordered offender would be hospitalized or released on parole, which impermissibly


                                              7
suggested that the jury should weigh the potential effects of its finding. (Id. at pp. 693-
696.) Here, Scott does not point to any objectionable testimony, argument, or verdict
form regarding the specific disposition of his case, other than the general reference in the
form jury instruction to the necessity for “custody in a secure facility.”
       We thus reject Scott‟s argument that the third element of the instruction given to
the jury in his case lowered the prosecution‟s burden of proof. The same instruction
specifically informed the jury that the People had the burden to prove their allegations
“beyond a reasonable doubt.” Jurors also were instructed under CALCRIM No. 219 that
“[t]he fact that a petition to declare [Scott] a sexually violent predator has been filed is
not evidence that the petition is true. You must not be biased against [Scott] just because
the petition has been filed and this matter has been brought to trial. The Petitioner
(People of the State of California) is required to prove the allegations of the petition are
true beyond a reasonable doubt.” Because we reject Scott‟s claim of instructional error,
we need not reach his argument that he was prejudiced thereby.
              2. Instruction did not violate due process.
       Section 6600, subdivision (a) provides that an SVP is one who has a 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.” (Italics added.)
In People v. Roberge, supra, 29 Cal.4th at page 988, our Supreme Court defined this term
to mean that “the person is found to present a substantial danger, that is, a serious and
well-founded risk, of committing such [sexually violent] crimes if released from
custody.” (Original italics.) Consistent with this holding, the jury was instructed in this
case under CALCRIM No. 3454A that “[a] person is likely to engage in sexually violent
predatory criminal behavior if there is a substantial danger, that is, a 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.”
       Scott‟s appellate counsel first acknowledges, as he did in People v. Lowe, supra,
No. A124874, that this court is bound by our Supreme Court‟s construction of the SVPA.


                                               8
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He nonetheless
argues, as he did in an identically worded passage in his Lowe briefing, that “[a]ccepting
that this is what the Legislature intended the statute to mean, . . . the statute and
[CALCRIM No. 3454A] based upon it are unconstitutional.” (Lowe, supra, 2010
Cal. App. Unpub. LEXIS 9419 at p. *14.) Scott claims that the Act (and thus the form
jury instruction upon which it is based) denies due process of law because it does not
require the People to quantify a probability that a person will reoffend if not committed,
but instead uses the vague and undefined terms “ „substantial,‟ ” “ „serious,‟ ” “ „well-
founded,‟ ” and “ „risk.‟ ”
       As our colleagues in Division Five observed in addressing this argument
(People v. Lowe, supra, 2010 Cal. App. Unpub. LEXIS 9419 at pp. *14-19), our Supreme
Court has previously rejected due process challenges to the SVPA, and the court also
repeatedly has upheld the foregoing terms. (E.g., People v. Roberge, supra, 29 Cal.4th at
pp. 988-989; People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 924 [state has
compelling interest in confining people who pose substantial danger of committing new
crimes, even if risk cannot be assessed at greater than 50 percent]; Hubbart v. Superior
Court (1999) 19 Cal.4th 1138, 1158, 1163 [SVPA establishes requisite link between
impaired volitional control and danger posed to public to pass constitutional muster under
U.S. Supreme Court precedent], relying on Kansas v. Hendricks (1997) 521 U.S. 346.)
Indeed, Scott acknowledges that the prosecutor in his closing argument relied on a
definition of “ „likely‟ ” that has been approved by both the Legislature and our Supreme
Court. We find no due process violation or instructional error.
       Finally, we reject Scott‟s short, related argument that the SVPA is void for
vagueness because “it leaves to the expert witnesses and to the jury the task of setting a
threshold probability of reoffense.” (Boldface omitted.) After summarizing the general
rules applicable to vagueness challenges, Scott essentially repeats his argument that the
SVPA inadequately defines the term “ „likely.‟ ” For the reasons set forth above, we
disagree.



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                                     III.
                                 DISPOSITION
     The judgment is affirmed.




                                            _________________________
                                            Humes, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




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