Filed 9/17/13 P. v. Stafford CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063088

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. MH101330)

WILLIAM CHARLES STAFFORD,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of San Diego County, David M.

Gill, Judge. Affirmed.

         Ron Boyer, 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, Bradley Weinreb and Randall D.

Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
       William Charles Stafford was recommitted for an indeterminate term to the

custody of the State Department of Mental Health (DMH), now the State Department of

State Hospitals, under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code,

§ 6600 et seq.) Stafford appeals, contending that treating sexually violent predators

(SVP's) differently from mentally disordered offenders (MDO's) and those persons found

not guilty by reason of insanity (NGI's) violates his constitutional right to equal

protection. We have considered this argument in light of our Supreme Court's opinion in

People v. McKee (2010) 47 Cal.4th 1172 (McKee I), and this court's final opinion on

remand in the same case, People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II).

Based on these opinions, we affirm the order.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In 2001 Stafford was first committed as an SVP under the SVPA.1 Court

proceedings in 2003 and 2006 extended his commitment through August 2007. In June

2007 the district attorney filed the current commitment proceeding, seeking to extend

Stafford's commitment as an SVP for an indeterminate term.2 In 2009 a jury found



1      A juvenile court found true allegations that Stafford committed forcible rape in
1968. Stafford was convicted of multiple sex offenses with multiple victims in the
1970's, and in 1989 he pleaded guilty to forcible rape, forced oral copulation, and
robbery, and admitted allegations he kidnapped the first victim for the purpose of
committing a sexual offense.

2     In November 2006 California voters passed Proposition 83, entitled "The Sexual
Predator Punishment and Control Act: Jessica's Law" amending the SVPA effective
November 8, 2006. (McKee I, supra, 47 Cal.4th at p. 1183.) Proposition 83 changed an
SVP commitment from a two-year term to an indefinite commitment and shifted the
burden of proof for release to the SVP (id. at pp. 1183-1184), unless the DMH authorizes
                                              2
Stafford should be subject to involuntary commitment for an indeterminate term under

the SVPA.

       Stafford appealed the 2009 commitment order on several grounds. We rejected

Stafford's contentions, except for his challenge to the indeterminate commitment on equal

protection grounds. Based on McKee I, which held that the 2006 amendments to the

SVPA may violate equal protection (McKee I, supra, 47 Cal.4th at p. 1184), we reversed

in part and remanded to the trial court with directions to suspend further proceedings

pending finality of the proceedings on remand in McKee I.3 In July 2012 we issued our

opinion in McKee II, upholding the constitutionality of the amended SVPA on equal

protection grounds. The Supreme Court denied review (McKee II, supra, 207

Cal.App.4th 1325, review den. Oct. 10, 2012, S204503) rendering the opinion final, and

the trial court subsequently re-imposed the order for Stafford to be committed to an

indeterminate term.




a petition for release (id. at p. 1187). 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. (Pen. Code,
§ 2972.)

3      The Supreme Court remanded in McKee I for an evidentiary hearing on whether
disparate treatment for SVP's is justified. The court transferred "grant and hold" cases
under McKee I to the Courts of Appeal with directions to vacate their prior opinions and
reconsider in light of McKee I. The order expressed a desire to avoid unnecessary
multiplicity of proceedings and directed this court to suspend further proceedings
pending finality of the proceedings in McKee I.
                                             3
                                       DISCUSSION

       Stafford's constitutional argument focuses on whether the amended SVPA violates

equal protection. In McKee I, the Supreme Court held the SVPA is subject to equal

protection analysis because it "treats SVP's significantly less favorably than those

similarly situated individuals civilly committed under other statutes" including MDO's

and NGI's. (McKee I, supra, 47 Cal.4th at pp. 1196, 1203, 1207.) Since individuals

within each of these categories "have the same interest at stake—the loss of liberty

through involuntary civil commitment—it must be the case that when society varies the

standard and burden of proof for SVP's . . . , it does so because of the belief that the risks

involved with erroneously freeing SVP's from their commitment are significantly greater

than the risks involved with freeing" other civil committees. (Id. at p. 1204.)

       The Supreme Court remanded the case for a hearing on whether the People could

justify disparate treatment for SVP's. The court instructed: "It must be shown that,

notwithstanding the similarities between SVP's and [other civil committees], 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, fn. omitted.)



                                              4
       After remand, the superior court conducted a 21-day evidentiary hearing on the

justification of disparate treatment for SVP's and concluded the People had met their

burden. On appeal, we reviewed the matter de novo. (McKee II, supra, 207 Cal.App.4th

at p. 1338.) "When a constitutional right, such as the right to liberty from involuntary

confinement, is at stake, the usual judicial deference to legislative findings gives way to

an exercise of independent judgment of the facts to ascertain whether the legislative body

' "has drawn reasonable inferences based on substantial evidence." ' " (McKee I, supra,

47 Cal.4th at p. 1206, italics added.) In McKee II, we concluded "[t]he 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 the disparate treatment of SVP's under the amended

[SVPA] is necessary to further the state's compelling interests in public safety and

humanely treating the mentally disordered." (McKee II, supra, 207 Cal.App.4th at p.

1347.) The Supreme Court denied a petition for review, making McKee II final.

(McKee II, review den. Oct. 10, 2012, S204503.)

       This court has, of course, followed McKee II, and other Courts of Appeal have as

well. (See, e.g., People v. McDonald (2013) 214 Cal.App.4th 1367, 1376-1382; People

v. Landau (2013) 214 Cal.App.4th 1, 47-48; People v. McCloud (2013) 213 Cal.App.4th

1076, 1085-1086; People v. McKnight (2012) 212 Cal.App.4th 860, 863-864.) While it is



                                              5
clear Stafford believes the evidence relied on in McKee II is insufficient to justify

disparate treatment of SVP's, we have carefully evaluated it and conclude otherwise.

                                      DISPOSITION

       The order is affirmed.

                                                                        MCCONNELL, P. J.
WE CONCUR:


HALLER, J.


O'ROURKE, J.




                                              6
