Filed 6/12/13 P. v. Warren CA4/1
                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                                STATE OF CALIFORNIA



THE PEOPLE,                                                         D061229

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. MH101770)

ANDREW DANG WARREN,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Kerry Wells,

Judge. Affirmed.



         Rudy Kraft for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant

Attorneys General, Lilia E. Garcia, Lynne McGinnis, Felicity Senoski, Deputy Attorneys

General for the Plaintiff and Respondent.
       Andrew Dang Warren appeals an order involuntarily committing him for an

indeterminate term to the custody of the California Department of Mental Health (DMH)

after a jury found him to be a sexually violent predator (SVP) under the amended

Sexually Violent Predators Act (SVPA) within the meaning of Welfare and Institutions

Code1 section 6600 et seq. Warren contends the order must be reversed because (1) the

court erroneously denied him an opportunity to question the prosecution's psychological

experts in order to reveal their bias because they overdiagnosed SVP's; (2) the court

erroneously refused to instruct the jury with a pinpoint instruction modifying CALCRIM

No. 3454; (3) the SVPA violates state and federal due process guarantees by imposing an

indeterminate term on SVP's and requiring them to prove they no longer qualify as

SVP's; (4) the SVPA violates equal protection guarantees under the state and federal

Constitutions; and (5) the SVPA violates ex post facto and double jeopardy state and

federal constitutional prohibitions. We affirm the order of commitment.

                                  FACTUAL BACKGROUND

       In June 2010, the People filed an amended petition seeking to commit Warren as

an SVP for an indeterminate term. At trial, the parties stipulated that in 1999, Warren

was convicted of two counts of lewd and lascivious acts on a child under the age of 14,

for which he was sentenced to a determinate prison term of 8 years. In 2000, Warren was

convicted of two counts of second degree child molestation, for which he was sentenced




1       All statutory references are to the Welfare and Institutions Code unless otherwise
stated.
                                             2
to 12 years in prison. Following a December 2011 trial, a jury found Warren qualified as

an SVP, and the court committed him to the DMH for an indeterminate term.



                                          DISCUSSION

                                                 I.

                               Admissibility of Evidence Claim

       Challenging the court's decision to exclude comparative statistics from two of his

evaluating psychologists, Warren contends: "Since the objective here was to determine

whether [he] was an SVP, the relevant question was whether the evaluators had a

tendency to find persons to be an SVP more often then [sic] they actually were, less often

then [sic] they actually were, or about as often as they actually were. Thus, [his] desire to

compare the rates of positive findings for each of the testifying prosecution experts to the

actual rates at which people are found to be SVPs is exactly the comparison that was

necessary in order to evaluate whether the individual experts were biased." Warren

contends the court's failure to admit this evidence prejudiced him "because it allowed the

prosecution's expert to inaccurately appear as unbiased and highly qualified experts [sic],

when in fact they were witnesses with a strong bias and propensity to testify against

persons alleged to be SVPs."

A. Background

       Two psychologists testified for the prosecution. Craig Updegrove, Ph.D.

diagnosed Warren with pedophilia, opining Warren is a danger to the health and safety of

others because he likely will engage in sexually violent predatory criminal behavior

                                             3
absent appropriate treatment in custody. Dr. Updegrove testified that approximately

three percent of individuals released from California prisons since 1996 were found by at

least one psychologist to meet the criteria for registration as a sex offender. In

subsequent evaluations, those criminals' conviction records were analyzed to determine if

they qualified as SVP candidates. Having evaluated approximately 825 individuals, Dr.

Updegrove calculated that approximately 16 percent of those he had evaluated qualified

as sex offenders. But he noted that starting in 2006, following a change in the law, only 8

or 9 percent of those he evaluated qualified as sex offenders.

       On Dr. Updegrove's cross-examination, this extended exchange regarding those

statistics occurred:

       "[Defense counsel:] Of those who received full evaluations, are you aware—do

you have any statistics about how many ultimately are found to meet criteria as a matter

of law?

       "[Prosecutor:] Your Honor, I'm going to object as relevance. I think that's a jury

determination.

       "The Court: Sustained.

       "[Defense counsel:] Let me ask it this way: You told us about 8 or 9 percent of

your evaluations since 2006 have yielded a result of positive for SVP criteria. Correct?

       "[Dr. Updegrove:] Yes.

       "[Defense counsel:] In other words, positive for criteria meaning you would give

the opinion that the person qualifies for SVP.

       "[Dr. Updegrove:] Yes.

                                              4
        "[Defense counsel:] And that 8 or 9 percent overstates about three times the

statistics on people that are actually found to meet criteria; correct?

        "[Prosecutor:] Your Honor, object again. Relevance. I'm not sure the relevance

of other jury findings.

        "The Court: Sustained.

        "[Defense counsel:] In terms of the accuracy of your opinions when you find

someone meets criteria, do you track the cases where you render an opinion and match it

against an ultimate result?

        "[Dr. Updegrove:] No. I don't have access to that data.

        "[Defense counsel:] Does the DMH?

        "[Dr. Updegrove:] Not in a systematic way. So there's no data that would track

that.

        "[Defense counsel:] Am I correct in stating, then, that you aren't able to tell us—

you've told us the percentage, but you don't have any way of telling us how accurate your

predictions are?

        "[Prosecutor:] Objection. Vague and relevance.

        "The Court: Sustained."

        Outside of the presence of the jury, defense counsel continued to argue based on

statewide statistics from several years: "[A]bout 2 percent of all the evaluated [released

prisoners] are ultimately found to meet criteria [as SVP's] . . . just found to meet criteria.

I'm not saying [by a] jury. [¶] And I think that when, in an effort to show how neutral

they are, the evaluators tell us that they only find, for example, 10 or 15 or 20 percent of

                                               5
their evaluations to meet criteria, they're, in essence, telling us they're overpredicting by

at least, statistically speaking, by a power of [sic] 5 or 10 and I think the jury ought to

know that."

       The court disagreed, explaining its decision to sustain the objection: "I think that

how many times [the psychologists] have found someone to qualify or not [as an SVP] is

relevant to show whether they do have a bias or tendency to frequently find or frequently

not find [SVP's]. But what the ultimate conclusions are of a jury or a judge I think has

nothing to do with whether [the psychologists] have a bias or not or whether they're right

or not. That is up to the jury. [¶] That's like asking how many times has a jury found

defendants guilty of rape. It's completely irrelevant. Depends on the circumstances of

each case. [¶] Those statistics might be interesting from a societal perspective and the

whole putting everything in perspective, but it has nothing to do with this jury's

determination regarding the facts of this case."

       The second psychologist, Steven Jenkins, Ph.D., concluded Warren qualified as an

SVP. Dr. Jenkins testified that since becoming a member of the DMH panel in May

2007, he had performed 225 evaluations, including both initial evaluations and updated

evaluations. Eighteen percent of those whose initial evaluation he conducted met the

criteria for being SVP's.

B. Analysis

       To be relevant, evidence must have a tendency in reason to prove or disprove a

fact in dispute. (Evid. Code, § 210.) The trial court has wide discretion in admitting

evidence. Here, the trial court did not err in excluding the comparative statistics from the

                                               6
psychologists because the comparators are mismatched. Specifically, the two different

decision makers—psychologists and jurors—have different responsibilities in SVP cases,

and they use different criteria to reach conclusions about different subject matters. To

elaborate, the evaluating psychologists are charged with making clinical diagnoses based

on a battery of tests, interviews with the prisoner, and a review of police and probation

reports, medical records, and so on. By contrast, the jurors' role is to decide whether the

prosecutor has proved beyond a reasonable doubt that the subject qualifies as an SVP,

based on criteria set forth in the relevant jury instruction. In reaching their decision, the

jurors avail themselves of the psychologists' evaluations, and to that extent there is an

overlap in findings. But the jurors do not conduct their own clinical evaluation or make a

diagnosis. Therefore, the trial court did not err in ruling there is no meaningful way to

compare the rates at which the evaluating psychologists determined who qualified for

registration as sex offenders with jurors' findings of who qualified as SVP's. Separately,

Dr. Updegrove testified that no available data was kept regarding the comparative

statistics that defense counsel sought. Lack of such evidence hindered Warren's ability to

draw out the comparison he sought to make. Finally, we reject Warren's contention that

the court erred in sustaining the prosecutor's objection to further questions about the

comparative statistics and denied him an opportunity to show the psychologists were

biased. Contrary to Warren's contention, that line of questioning would not have evinced

bias on the part of the evaluating psychologists. Rather, the questions sought irrelevant

information because the comparators were mismatched.



                                              7
       Under the applicable standard of review stated in People v. Watson (1956) 46

Cal.2d 818, 836, we consider whether, after an examination of the entire cause, it appears

reasonably probable the defendant would have obtained a more favorable outcome had

the court not excluded the challenged testimony. (People v. Buffington (2007) 152

Cal.App.4th 446, 456.) We conclude any error was harmless because the record included

adequate statistical evidence evincing that the psychologists' rate of positive evaluation

for sex offender registration was double, or even triple, the statewide rate of 3 percent of

ex prisoners who were determined to meet the criteria for registration as sex offenders.

From that data, the jury could find, if it were so inclined, that the testifying psychologists

were biased, but instead, the jury still elected to find Warren was an SVP. Any further

testimony on this point would have been based on mismatched comparators, and

therefore inapplicable to support Warren's attempt to evince bias on the part of the

psychologists.

                                              II.

                                 Instructional Error Claim

       Relying on Kansas v. Crane (2002) 534 U.S. 407 (Crane) and In re Howard N.

(2005) 35 Cal.4th 117 (Howard N.), Warren contends that, under both state and federal

law, a person cannot be subjected to civil commitment unless he suffers from a mental

disorder making it seriously difficult for him to control his dangerous behavior. Warren

thus contends the trial court committed reversible error by denying his request for a

pinpoint instruction that explained this legal principle.

A. Background

                                              8
       The trial court instructed the jury with CALCRIM No. 3454 regarding the People's

burden of proof: "The petition alleges that Mr. Andrew Warren is a sexually violent

predator. [¶] To prove this allegation, the People must prove beyond a reasonable doubt

that: [¶] 1. He has been convicted of committing sexually violent offenses against one

or more victims; [¶] This element has been stipulated to by the parties and the jury must

accept this fact as proven beyond a reasonable doubt. [¶] 2. He has a diagnosed mental

disorder; [¶] 3. As a result of that diagnosed mental disorder, he is a danger to the

health and safety of others because it is likely that he will engage in sexually violent

predatory criminal behavior; [¶] AND [¶] 4. It is necessary to keep him in custody in a

secure facility to ensure the health and safety of others."

       CALCRIM No. 3454 also provided the jury with additional guidance regarding

these elements: "The term diagnosed mental disorder includes conditions either existing

at birth or acquired after birth that affect a person's ability to control emotions and

behavior and predispose that person to commit criminal sexual acts to an extent that

makes him or her a menace to the health and safety of others. [¶] A person is likely to

engage in sexually violent predatory criminal behavior if there is a substantial, serious,

and well-founded risk that the person will engage in such conduct if released into the

community."

       At a hearing on jury instructions, the trial court considered and rejected Warren's

request to modify CALCRIM No. 3454 to state that the jury was required to find he had

serious difficulty in controlling his behavior.

B. Applicable Law

                                               9
       The California Supreme Court rejected a substantially similar argument to that

made by Warren in People v. Williams (2003) 31 Cal.4th 757, 774-776 (Williams).

       The Williams petitioner challenged his commitment under the SVPA, arguing the

jury in his case did not receive special, specific instruction regarding the need to find

serious difficulty in controlling behavior. (Williams, supra, 31 Cal.4th at pp. 759-760.)

The Williams court held that specific impairment-of-control instructions are not

constitutionally required in California. (Id. at pp. 776-777.) The court reasoned the

language of the SVPA "inherently encompasses and conveys to a fact finder the

requirement of a mental disorder that causes serious difficulty in controlling one's

criminal sexual behavior." (Id. at p. 759.)

       The Williams court also expressly found that "[Crane], supra, 534 U.S. 407, does

not compel us to hold that further lack-of-control instructions or findings are necessary to

support a commitment under the SVPA." (Williams, supra, 31 Cal.4th at pp. 774-775.)

In reaching this conclusion, the California Supreme Court emphasized: "[A] judicially

imposed requirement of special instructions augmenting the clear language of the SVPA

would contravene the premise of . . . [Crane], supra, 534 U.S. 407, that, in this nuanced

area, the Legislature is the primary arbiter of how the necessary mental-disorder

component of its civil commitment scheme shall be defined and described." (Williams,

supra, at p. 774.)

C. Analysis




                                              10
       Warren acknowledges Williams but argues there was a "problem with the Supreme

Court's analysis." We summarily reject this argument since this court is bound by that

case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

       Warren further contends the California Supreme Court changed its view expressed

in Williams, supra, 31 Cal.4th 757 when it decided Howard N., supra, 35 Cal.4th 117,

and, in Warren's words, "the statutory language, merely by its existence, does not

necessarily contain within it the necessary information that a jury needs in order to decide

whether the defendant has a serious difficulty in controlling his dangerous behavior." We

are not persuaded.

       Howard N. did not involve a commitment under the SVPA; rather, the defendant

challenged his commitment to the California Youth Authority pursuant to section 1800 et

seq. (Howard N., supra, 35 Cal.4th at p. 122-123.) The Howard N. court held that,

although that statute does not expressly require a finding the person's mental deficiency,

abnormality, or disorder causes serious difficulty controlling behavior, it should be

interpreted to contain such a requirement in order to preserve its constitutionality. (Id. at

pp. 122, 135-136.) The California Supreme Court repeatedly distinguished the statute at

issue in that case from the SVPA. (Howard N., at pp. 127, 130-131, 136-137.) The court

also affirmed its key holdings in Williams that (1) a jury instructed in the language of the

SVPA " 'must necessarily understand the need for serious difficulty in controlling

behavior' " and (2) " 'separate instructions or findings on that issue are not

constitutionally required.' " (Howard N., at p. 130.) Thus, contrary to Warren's



                                              11
contention, the California Supreme Court has not modified its views expressed in

Williams, supra, 31 Cal.4th 757.

       Finally, Warren attempts to distinguish Williams on its facts. The pinpoint

instruction the Williams defendant requested stated that " 'the diagnosed mental disorder

must render the person unable to control his dangerous behavior.' " (Williams, supra, 31

Cal.4th at p. 763, italics omitted.) As Warren points out, this proposed instruction did not

accurately reflect the law, which requires only a "serious difficulty in controlling

behavior." (Crane, supra, 534 U.S. at p. 413.) Therefore, Warren would limit

application of Williams to cases in which the alleged SVP failed to request an accurate

pinpoint instruction regarding the volitional requirement implicit in the mental disorder

element of the SVPA. On this premise, Warren claims his proposed special instruction

was an accurate statement of the law and "nothing in Williams suggested that it would be

error for the trial court to augment the statutory language with the serious difficulty in

controlling dangerous behavior language."

       Warren notes that Justice Kennard filed a concurring opinion in Williams in which

she suggested that in future SVPA cases it "would be prudent" to explain to jurors "that

defendants cannot be found to be sexually violent predators unless they have serious

difficulty in controlling their behavior." (Williams, supra, 31 Cal.4th at p. 780 (conc.

opn. of Kennard, J.).) However, no other justice joined in that recommendation, and it

lacks precedential value.

       Moreover, nothing in Howard N., supra, 35 Cal.4th 117 abrogates the holding in

Williams, supra, 31 Cal.4th 757. Because no separate instruction on the issue of control

                                             12
is required when the jury is instructed in the statutory language of the SVPA (Williams at

pp. 776-777), and Warren makes no contention the jury instructions given in his case

failed to follow the statutory language of the SVPA, we conclude no error arose from the

trial court's failure to give the special instruction requested by Warren's trial counsel.

                                              III.

                Due Process, Ex Post Facto, and Double Jeopardy Claims

       In his opening brief, Warren contends the amended SVPA violates due process by

"replacing the two-year term with an indeterminate term and shifting the burden of proof

onto the defendant to prove his entitlement to release." He further contends the SVPA

violates the constitutional prohibitions against ex post facto laws and double jeopardy.

Warren makes the claims to preserve them for federal review, but acknowledges the

California Supreme Court has rejected those arguments in People v. McKee (2010) 47

Cal.4th 1172 (McKee I), and we are bound by that case. (Auto Equity Sales, Inc. v.

Superior Court, supra, 57 Cal.2d at p. 455.)

                                                IV.

                                    Equal Protection Claim

       Warren contends the indeterminate commitment term in the amended SVPA

violates state and federal guarantees of equal protection because SVP's are treated

differently from those offenders civilly committed under the mentally disordered offender

(MDO) statute (Pen. Code, § 2960 et seq.) and the scheme for those found not guilty by

reason of insanity (NGI). (Pen. Code, § 1620 et seq.) Specifically, Warren challenges

our ruling in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II), arguing this

                                              13
court "misunderstood and misapplied the strict scrutiny test."2 (Emphasis and

capitalization omitted.) Warren contends this court "put itself in the position where it

would find that McKee's equal protection rights had not been violated, notwithstanding

the strict scrutiny test, if there was substantial evidence to support any reasonable

inference that SVPs are in some way more dangerous than MDOs or NGIs even if the

inferences are ones that are unlikely to be true. In effect, this Court applied the rational

basis test, not strict scrutiny." Warren argues it is not enough to show that the Legislature

or the voters could reasonably believe that SVP's are more dangerous as a class than

MDO's and NGI's. The disparate treatment must still be necessary to protect society.

Warren further argues that we "basically ignored all the evidence presented by McKee

and acted as if all the evidence presented by prosecution was indisputably true."

A. Applicable Law

       In McKee I, the California Supreme Court decided that SVP's are similarly

situated to other civilly committed persons, including MDO's and NGI's. The court

recognized the amended SVPA was potentially unconstitutional in that similarly situated

involuntary civilly committed persons under other statutory commitment regimes are not

treated the same way as SVP's with regard to commitment terms and burdens of proof for

release. (McKee I, supra, 47 Cal.4th at p. 1207.) The case was remanded to the trial




2     We grant Warren's unopposed request to take judicial notice of the trial court's
statement of decision following remand proceedings. (Cal. Rules of Court, rule
8.252(a).)
                                              14
court for an evidentiary hearing to allow the People an opportunity to justify the disparate

treatment. (Id. at pp. 1207-1211.)

       During the pendency of this appeal, we decided McKee II, and affirmed the trial

court's finding that the People had met their burden to justify the disparate treatment of

SVP's. We concluded the People had 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.' " (McKee II, supra, 207

Cal.App.4th at p. 1347.) "Regardless of the shortcomings or inadequacy of the evidence

on actual sexual recidivism rates," the evidence "support[ed], by itself, a reasonable

inference or perception that SVP's pose a higher risk of sexual reoffending than do

MDO's or NGI's." (Id. at p. 1342.) The California Supreme Court denied review of

McKee II, making our ruling final.

B. Analysis

       We applied the correct standard of review in McKee II, where we stated: "[W]e

review de novo the trial court's determination whether the Act, as amended by

Proposition 83, violates [McKee's] equal protection rights. We 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 Act." (McKee II,

supra, 207 Cal.App.4th at p. 1338.) Warren criticizes our equal protection analysis in

McKee II, claiming: "There are three elements that are under attack in this equal

                                             15
protection challenge. First, the indeterminate commitment; second, the shifting of the

burden of proof of the Welfare and Institutions Code section 6608 proceeding; and third,

the elimination of the right to a jury trial at the Section 6608 hearing. In order for the

California SVP Law to withstand equal protection strict scrutiny analysis, each of these

three elements must separately be found to be necessary to serve a compelling

governmental interest." Our colleagues in Division Three recently rejected this claim.

" '[I]n 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 Proposition 83

. . . was required to adopt the least restrictive means available.' " (People v. McDonald

(2013) 214 Cal.App.4th 1367, 1380, citing McKee II, supra, 207 Cal.App.4th at p. 1349.)

       Warren fails to explain how the facts in his case are so different from those

presented in McKee II as to warrant an individualized adjudication of his equal protection

claim. His unsupported arguments do not persuade us to revisit our holding; therefore,

we decline his request to remand the matter for an evidentiary hearing.




                                              16
                               DISPOSITION

      The order is affirmed.




                                             O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


HALLER, J.




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