Filed 5/20/15; part. pub. & mod. order 6/12/15 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIRST APPELLATE DISTRICT

                                              DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,
                                                                   A136337
v.
JOEL CURLEE,                                                       (Alameda County
                                                                   Super. Ct. No. 165110)
        Defendant and Appellant.


        The Sexually Violent Predators Act (Welf. & Inst. Code,1 § 6600 et seq. (SVPA or
the Act)) provides for involuntary civil commitment of certain offenders who are found
to be sexually violent predators (SVP’s) after completing their prison terms. (People v.
McKee (2010) 47 Cal.4th 1172, 1186–1187 (McKee I).) To establish that a person is an
SVP, the People must prove beyond a reasonable doubt that the offender has been
convicted of a qualifying sexually violent offense against one or more victims and that
the offender has a diagnosed mental disorder that makes it likely the person would
engage in sexually violent conduct if released. (§§ 6600, subd. (a)(1), 6604.)
        Defendant Joel Curlee appeals an order committing him as an SVP. He contends
recent amendments to the SVPA render his commitment unconstitutional and the trial
court abused its discretion in denying his request for a continuance of his trial. We do not
agree with Curlee on these points. Curlee also contends he was deprived of his right to
equal protection when he was compelled to testify during the People’s case-in-chief.
Curlee argues that because a person found not guilty of crimes by reason of insanity


        1
            All undesignated statutory references are to the Welfare and Institutions Code.


                                                         1
(NGI) may not be compelled to testify at hearings to extend his or her commitment,
neither should a person found to be an SVP be compelled to testify. We shall remand the
matter to the trial court to afford the People the opportunity to justify the differential
treatment of SVP’s and NGI’s in this respect.
                                     I.    BACKGROUND
       The Alameda County District Attorney filed a petition to commit Curlee as an
SVP in December 2010. A supporting declaration averred Curlee had suffered a
qualifying conviction, for forcible rape (Pen. Code, § 261), and that the Director of the
California Department of Mental Health2 (the Department) had requested Curlee be
civilly committed as an SVP based upon the evaluations of three independent mental
health professionals who had determined Curlee had a diagnosed mental disorder that
made him likely to engage in sexually violent, predatory criminal behavior unless he
received appropriate treatment in custody.
       A jury trial took place, in which the People called Curlee as a witness in their
case-in-chief. The jury found Curlee was an SVP, and on August 7, 2012, the trial court
committed him for an indefinite term to the Department for appropriate treatment and
confinement in a state hospital.
                                          II. DISCUSSION
     A. Equal Protection
       Curlee argues he was deprived of his constitutional right to equal protection when
the District Attorney called him as a witness.3
       At the time of Curlee’s commitment trial, there was case law holding that an
SVP’s constitutional right to remain silent was not violated by allowing the district
attorney to call him or her as a witness. (People v. Leonard (2000) 78 Cal.App.4th 776,


       2
        The State Department of Mental Health is now known as the State Department of
State Hospitals. (People v. Gonzales (2013) 56 Cal.4th 353, 360.)
       3
         After briefing in this matter was complete, Curlee requested, and we granted,
leave to file supplemental briefs on this point.


                                               2
789–793 (Leonard).) In reaching this conclusion, the court in Leonard reasoned that
SVP proceedings were civil, not criminal, in nature for purposes of the Fifth Amendment
privilege against compulsory self-incrimination. (Id. at pp. 791–792.)
       Curlee does not contend that Leonard was incorrectly decided. Rather, he makes
the following argument: Our Supreme Court recently held that a person found not guilty
by reason of insanity (NGI) has a statutory right not to testify in a civil proceeding to
extend his commitment. (Hudec v. Superior Court (2015) 60 Cal.4th 815, 818 (Hudec).)
This right is found in the statutory provision that such a person “ ‘shall be entitled to the
rights guaranteed under the federal and State Constitutions for criminal proceedings.’ ”
(Id. at pp. 818, 832; Pen. Code, § 1026.5, subd. (b)(7).) This holding does not apply
directly to Curlee, because he is not an NGI. However, in McKee I, supra, 47 Cal.4th at
p. 1207, in the context of considering whether an indeterminate SVP term was
unconstitutional, our Supreme Court concluded that NGI’s and SVP’s were similarly
situated for equal protection purposes. Curlee argues the same reasoning applies here,
i.e., that a regime under which NGI’s may refuse to testify at their commitment hearings
but SVP’s may not would likewise raise equal protection problems.
       1. Forfeiture
       We must first consider whether Curlee forfeited this claim by failing to raise it
below. Before trial, the District Attorney filed a brief seeking the court’s permission to
call Curlee as a witness during its case-in-chief, citing Leonard. (Leonard, supra,
78 Cal.App.4th 776.) The trial court stated at the hearing, “I’m aware that that’s
allowable,” and asked defense counsel if he wished to be heard. Defense counsel replied,
“No. I believe that is the law.” When the prosecutor called Curlee as a witness, his
counsel stated, “No objection.”
       The Attorney General argues Curlee thereby forfeited his equal protection claim.
(People v. Carpenter (1997) 15 Cal.4th 312, 362 [defendant may not raise claim that
denial of severance denied equal protection for first time on appeal].) Although Curlee
did not raise his objection below, we shall exercise our discretion to consider this issue.
When the trial court allowed the District Attorney to call Curlee as a witness, the


                                              3
published authority on the question of whether a person could be called to testify against
himself in an SVP commitment hearing answered that question in the affirmative.
(Leonard, supra, 78 Cal.App.4th at pp. 789–793.) As we have explained, however,
Curlee’s argument now is a two-step one: (1) that an NGI is statutorily exempt from
being called as a witness against himself in a commitment proceeding (as our high court
held in Hudec, supra, 60 Cal.4th 815), and (2) that although the SVP statute does not
provide such an exemption, SVP’s are similarly situated to NGI’s for purposes of the
commitment statutes, and it is therefore a denial of equal protection to require an SVP to
testify against himself.
       At the time the trial court made its ruling, there was a split of authority as to the
first step of this argument, that is, whether an NGI was statutorily exempt from being so
called. In 2004, the Fifth Appellate District concluded in People v. Haynie that pursuant
to the language of the NGI statute, the privilege against self-incrimination barred the
prosecution from questioning the defendant about his mental state at a commitment
extension hearing. (People v. Haynie (2004) 116 Cal.App.4th 1224, 1225–1226, citing
Pen. Code, § 1026.5, subd. (b)(7).) Two years later, Division Two of the Fourth
Appellate District reached the opposite conclusion. (People v. Lopez (2006)
137 Cal.App.4th 1099 (Lopez).) The defendant in Lopez was committed as a mentally
disordered offender (MDO) within the meaning of Penal Code section 2970. (Id. at
p. 1101.) At a recommitment hearing, he refused to testify, invoking the Fifth
Amendment, and the jury heard his testimony from a prior commitment hearing at which
he had been called to testify in the People’s case-in-chief. (Id. at pp. 1102, 1104.) On
appeal, he made an argument similar to the one Curlee is making here: He contended
that by admitting his prior testimony, the court had violated his right to equal protection.
For this contention, he relied on Haynie’s conclusion that an NGI could not be called by
the People and argued that MDO’s were similarly situated to NGI’s. Therefore, the state
was prohibited constitutionally from extending the right not to testify to NGI’s but not to




                                              4
MDO’s.4 (Id. at pp. 1105–1106.) The Court of Appeal concluded that Haynie had been
wrongly decided, and that the NGI statute did not grant a person subject to commitment
the right not to testify. (Id. at p. 1116.) Having reached this conclusion, the court
concluded there was no disparate treatment in refusing to afford that right to those subject
to commitment under the MDO law, and there was necessarily no resulting denial of
equal protection. (Ibid.)
       As we have explained, Hudec resolved this conflict by ruling that an NGI
committee could not be compelled to testify at a commitment extension hearing; in doing
so, it disapproved Lopez to the extent it held that the right to refuse to testify is excluded
from the rights granted in Penal Code section 1026.5, subdivision (b)(7). (Hudec, supra,
60 Cal.4th at p. 832, fn. 5.)
       Thus, at the time of the hearing, (1) there was case law that an SVP could be
compelled to testify in a commitment hearing, (2) there was a split of authority as to
whether NGI’s could be required to testify, and (3) the more recent of the cases
contributing to that split—Lopez—concluded there was no equal protection violation in
requiring an MDO to testify. Although our Supreme Court had concluded in another
context that SVP’s, NGI’s, and MDO’s were similarly situated (McKee I, supra,
27 Cal.4th at pp. 1203, 1207), no case had held that SVP’s were similarly situated to
NGI’s for purposes of the privilege not to testify. In the circumstances, it is not
unreasonable to assume that an objection would have been futile and to apply the rule
that a party is not required to make fruitless objections. (People v. Turner (1990)


       4
         The defendant in Lopez also relied on In re Luis C. (2004) 116 Cal.App.4th
1397, in which the same panel that decided Haynie held that minors could not be
compelled to testify in a proceeding to extend a Youth Authority commitment under
Welfare and Institutions Code section 1801.5, which provides that a juvenile “shall be
entitled to all rights guaranteed under the federal and state constitutions in criminal
proceedings.” (Lopez, supra, 137 Cal.App.4th at pp. 1106, 1109.) Because of the
differences in the purposes of the juvenile extended commitment statute (§§ 1800–1803)
and the adult civil commitment statutes, such as the SVPA and the MDO Act (Penal
Code § 2960 et seq.), we shall not focus our discussion on In re Luis C. (See In re
Lemanuel C. (2007) 41 Cal.4th 33, 48–49.)

                                               5
50 Cal.3d 668, 703–704 [pertinent law changed so unforeseeably trial counsel not
expected to anticipate change]; People v. Welch (1993) 5 Cal.4th 228, 237–238.)
       Moreover, as noted in People v. Brown (1996) 42 Cal.App.4th 461, 471,
“ ‘[a]lthough California authorities on the point are not uniform, our courts have several
times examined constitutional issues raised for the first time on appeal, especially when
the enforcement of a penal statute is involved [citation], the asserted error fundamentally
affects the validity of the judgment [citation], or important issues of public policy are at
issue [citation].’ ” While an SVP commitment is not criminal in nature, it affects the
committee’s liberty interests (People v. Landau (2013) 214 Cal.App.4th 1, 31), and we
deem it an appropriate exercise of our discretion to consider Curlee’s contention for the
first time on appeal. (See In re Sheena K. (2007) 40 Cal.4th 875, 887 [“at times a Court
of Appeal has exercised its discretion to hear a constitutional claim despite its holding or
assumption that the rule of forfeiture applies”].) In any case, we would do so in order to
forestall a later claim of ineffective assistance of counsel. (See People v. Mattson (1990)
50 Cal.3d 826, 854; People v. Riazati (2011) 195 Cal.App.4th 514, 530.)
       2. The Merits
       We therefore go on to consider whether, in light of the rule recently announced in
Hudec, supra, 60 Cal.4th 815, equal protection demands that a person has the right not to
testify at an SVP commitment hearing. We begin with an examination of In re Moye
(1978) 22 Cal.3d 457 (Moye). The question at issue in Moye was whether an NGI who
had been committed for the maximum term of the underlying offense could be held in
continued commitment under rules requiring the NGI to prove by a preponderance of the
evidence that he or she was no longer in need of commitment. (Id. at pp. 460, 463.) The
court concluded that NGI’s had been “unfairly selected and required to face indefinite
confinement until they can establish their own fitness for release.” (Id. at p. 463.) The
court compared NGI commitment to commitment under the former Mentally Disordered
Sex Offender (MDSO) Act, which the court has since explained was the forerunner to the
SVPA, although those committed under the MDSO Act were civilly committed in place
of a prison term rather than after that term. (Ibid.; McKee I, supra, 47 Cal.4th at p. 1196.)


                                              6
The court explained: “Perhaps the most glaring example of inequality appears when we
examine the treatment afforded mentally disordered sex offenders (MDSOs). MDSOs
comprise a class of individuals quite similar to those, such as petitioner, who have been
acquitted of a criminal offense by reason of insanity. Both classes, for example, involve
persons who initially have been found to have committed a criminal act, but whose
mental condition warrants a period of confinement for treatment in a state institution, in
lieu of criminal punishment.” (Moye, 22 Cal.3d at p. 463.) The court noted the “marked
differences between the statutory commitment and release procedures” applicable to
MDSO’s and NGI’s, and went on: “Yet, as we have noted the preconditions to both
commitment are similar: the initial commitment follows commission of a criminal act
and is based upon a finding of a mental disorder which might present a danger to others.
The MDSO can be confined for only a limited period, measured by the maximum term
for the underlying offense, unless thereafter the People (or other committing authority)
can establish grounds for an extended commitment. In contrast, persons in petitioner’s
class face indefinite, lifetime commitment unless they can prove that their sanity has been
restored.” (Id. at pp. 464–465.) The court concluded the disparity of treatment required
the People to show it had a compelling interest to justify the challenged procedure and
that the distinctions were necessary to further that interest. (Id. at p. 465.)
       Our high court in McKee I relied heavily on the reasoning of Moye. (McKee I,
supra, 47 Cal.4th at pp. 1196–1199.) In McKee I, the court considered constitutional
challenges to amendments to the SVPA passed by the voters in 2006. In pertinent part,
Proposition 83 changed an SVP commitment from a two-year term, renewable if the
People proved to a jury beyond a reasonable doubt that the committee was still an SVP,
to an indeterminate term from which the committee could be released only if he proved
by a preponderance of the evidence that he was no longer an SVP. (McKee I, 47 Cal.4th
at pp. 1183–1184, 1185–1188; § 6604.) The court rejected McKee’s contentions that the
revised law violated the due process clause of the Fourteenth Amendment to the United
States Constitution and the ex post facto clause of article I, section 10, of the United
States Constitution. (Id. at pp. 1184, 1188–1195.) The court found merit, however, in his


                                               7
contention that the law raised equal protection concerns. (Id. at p. 1184, 1196.) After
discussing Moye in detail, the court noted: “Decisions by this court and the United States
Supreme Court before and since Moye have used the equal protection clause to police
civil commitment statutes to ensure that a particular group of civil committees is not
unfairly or arbitrarily subjected to greater burdens. [Citations.]” (Id. at p. 1199.)
       McKee’s equal protection challenge was based on the fact that two other groups of
civil committees—MDO’s and NGI’s—remained subject to commitments of only a
limited term, and the People retained the burden to show beyond a reasonable doubt that
the commitment was appropriate at each successive recommitment hearing. (McKee I,
supra, 47 Cal.4th at pp. 1200–1202, 1207; Pen. Code, § 1026.5, subd. (b).) The Supreme
Court agreed that this discrepancy implicated McKee’s right to equal protection. It first
concluded that “MDO’s and SVP’s are similarly situated for our present purposes.”
(McKee I, 47 Cal.4th at p. 1203.) The court explained that “both MDO’s and SVP’s
‘have been found, beyond a reasonable doubt, to suffer from mental disorders that render
them dangerous to others. The dangerous finding requires only an assessment of future
dangerousness. It does not require proof of a recent overt act. Both have been convicted
of a serious or violent felony. At the end of their prison terms, both have been civilly
committed to the Department of Mental Health for treatment of their disorders.
Furthermore, the purpose of the MDO Act and the SVPA is the same: to protect the
public from dangerous felony offenders with mental disorders and to provide mental
health treatment for their disorders.’ [Citations.] We agree that these common features
make SVP’s and MDO’s similarly situated. Therefore, when the state makes the terms of
commitment or recommitment substantially less favorable for one group than the other,
the case law reviewed above teaches that it is required to give some justification for this
differential treatment. [¶] In other terms, imposing on one group an indefinite
commitment and the burden of proving they should not be committed, when the other
group is subject to short-term commitment renewable only if the People prove
periodically that continuing commitment is justified beyond a reasonable doubt, raises a



                                              8
substantial equal protection question that calls for some justification by the People.” (Id.
at p. 1203.)
       The court did not conclude that differentiation between the various types of civil
committees was necessarily impermissible, but rather that that differentiation “must be
made with reference to the goals of the statutes, i.e. treatment of the mentally disordered
or public protection.” (McKee I, supra, 47 Cal.4th at p. 1204.) Thus, the Legislature
could make “reasonable distinctions between its civil commitment statutes based on a
showing ‘that those who are reasonably determined to represent a greater danger may be
treated differently from the general population.’ ” (Ibid.) In light of the facts that both
SVP’s and MDO’s had suffered felony convictions and had been determined by mental
health experts to suffer from mental disorders that make them a continuing danger, “the
reasons for differential treatment are not immediately obvious from the face of the two
statutory schemes.” (Id. at pp. 1204–1205.)
       Our Supreme Court went on to agree with McKee’s argument that NGI’s and
SVP’s were also similarly situated. (McKee I, supra, 47 Cal.4th at p. 1207.) The court
explained: “NGI’s as discussed are those who have committed criminal acts but have
been civilly committed rather than criminally penalized because of their severe mental
disorder. . . . We agree that, as with MDO’s, the People have not yet carried their burden
of justifying the differences between the SVP and NGI commitment statutes.” (Ibid.)
       The court emphasized, however, that its conclusion did not mean the People could
not meet its burden of showing the differential treatment of SVP’s was justified, but
merely that it had not yet done so. (McKee I, supra, 47 Cal.4th at p. 1207.) The court
therefore remanded the matter to the trial court to allow the People to make the
appropriate showing. “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.” (Id. at pp. 1207–1208.) For example, the
court stated, the People might be able to demonstrate that SVP’s were more likely than
other civil committees to reoffend, or that they might pose a greater risk to a particularly


                                              9
vulnerable set of victims, such as children. (Id. at p. 1208.) The court therefore
remanded the matter to the trial court “to determine whether the People, applying the
equal protection principles articulated in Moye and related cases discussed in the present
opinion, can demonstrate the constitutional justification for imposing on SVP’s a greater
burden than is imposed on MDO’s and NGI’s in order to obtain release from
commitment.” (Id. at pp. 1208–1209, fn. omitted.) That showing, if appropriate, could
include expert testimony. (Id. at p. 1209.)
       On remand, the trial court conducted an evidentiary hearing and concluded the
People had met their burden to justify the differential treatment of SVP’s under the
standards of McKee I. (People v. McKee (2012) 207 Cal.App.4th 1325, 1330 (McKee
II).) The People presented evidence supporting a reasonable inference that SVP’s posed
a higher risk of sexual reoffending then did MDO’s or NGI’s. (Id. at pp. 1340–1342.)
The People also presented evidence that victims of sex offenses suffered “unique and, in
general, greater trauma than victims of nonsex offenders.” (Id. at p. 1342.) In addition,
there was evidence that SVP’s were far less likely than MDO’s and NGI’s to have major
mental illnesses, such as schizophrenia, bipolar disorder, major depression, or psychosis,
which were often effectively treated with psychotropic medications and subsequent
psychosocial support treatment, and that about two-thirds of MDO’s and NGI’s complied
with their treatment programs, typically resulting in their decertification after about three
years. (Id. at pp. 1344–1346.) There was also evidence that MDO’s and NGI’s with
sexual predicate offenses were not more likely to commit a new sexual offense, as
opposed to another dangerous offense, upon release. (Id. at p. 1345.) In contrast, SVP’s
were far more likely than MDO’s and NGI’s to be diagnosed with pedophilia or other
paraphilias;5 they had treatment plans that were not based on medication and that did not

       5
         There was evidence that patients with paraphilia had “fantasies, urges, or
behaviors specific to something not normally considered sexual (i.e., deviant). For
example, a patient may have had sexually deviant behaviors regarding children.
Paraphilia could, but does not necessarily, rise to the level of an SVP-type mental illness.
There usually are no outward signs that a person has paraphilia. Patients with paraphilia
typically develop deviant sexual fantasies in early adolescence and probably begin their

                                              10
decrease their deviant sexual interests; they were more likely to commit a new sexual
offense; only about 25 percent of SVP’s participated in treatment; and SVP’s typically
took longer than MDO’s and NGI’s to complete treatment. (Id. at pp. 1344–1346.) The
trial court found, and the Court of Appeal agreed, that the evidence supported a
reasonable perception by the electorate that SVP’s were clinically distinct from MDO’s
and NGI’s and that as a result of those distinctions, SVP’s were more difficult to treat and
more likely to commit additional sexual offenses than were MDO’s and NGI’s. (Id. at
p. 1347.)
       The first question before us, then, is whether SVP’s are similarly situated to NGI’s
for purposes of whether they may be compelled to testify at their commitment hearings.
(See People v. Buffington (1999) 74 Cal.App.4th 1149, 1155 [“If persons are not
similarly situated for purposes of the law, an equal protection claim fails at the
threshold”].) Relying on the reasoning of Moye and McKee I, we answer this question in
the affirmative. The preconditions to commitment are similar: Both groups have
committed a criminal act and have been found to suffer from a mental condition that
might present a danger to others. (See Moye, supra, 22 Cal.3d at p. 464.) At the end of
the SVP’s prison term, and at the end of the term for which an NGI could have been
imprisoned, each is committed to the state hospital for treatment if, at the end of that
period, the district attorney proves in a jury trial beyond a reasonable doubt that the
person presents a danger to others as a result of a mental disease, defect, or disorder.
(See McKee I, supra, 47 Cal.4th at pp. 1203, 1207; §§ 6600, subd. (a)(1), 6604 [SVP];
Pen. Code, § 1026.5, subd. (b) [NGI].) The purpose of the commitment is the same: To
protect the public from those who have committed criminal acts and have mental
disorders and to provide mental health treatment for the disorders. (See McKee I,
47 Cal.4th at pp. 1203, 1207; Moye, 22 Cal.3d at p. 466; Pen. Code, § 1026.5, subd. (b).)

sexual offending during adolescence. Paraphilia typically remains stable or constant
throughout a patient’s lifetime.” (McKee II, supra, 207 Cal.App.4th at p. 1345.) Patients
with paraphilia often carefully planned and executed their offenses; patients with severe
mental illnesses, on the other hand, generally committed impulsive or opportunistic
offenses, and rarely reoffended sexually. (Ibid.)

                                             11
       Despite the holding and reasoning of McKee I, the Attorney General argues that
SVP’s are not similarly situated to NGI’s for purposes of whether they may be called as
witnesses for the prosecution because an SVP is initially evaluated while in the custody
of the Department of Corrections and Rehabilitation (§ 6601, subd. (a)), while the NGI
has been committed to the Department of State Hospitals for treatment since having been
found insane at the time of the offense (Pen. Code, §§ 1026, subd. (a), 1026.5, subd.
(a)(1)). As a result, the Attorney General argues, the state hospital has “a wealth of
information” on an NGI and is in a good position to determine whether the person needs
further treatment, without the need for the NGI’s testimony at trial.
       Curlee disagrees with this assessment. He points out after an SVP petition is filed,
the person is evaluated by at least two practicing psychiatrists or psychologists and a
probable cause hearing takes place (§§ 6601, subd. (d), 6601.5); if the judge determines
there is probable cause, the person may then be committed to the state hospital pending
trial (§ 6602.5, subd. (a)). Curlee argues the person may remain in a state hospital for
years before trial, and during that time, staff at the state hospital have ample time to
evaluate whether he or she needs treatment.
       On the current record, it is impossible for us to determine whether the People in
fact are likely to have more information on an NGI’s mental state than on that of an SVP.
Logically, it appears to us that this dispute is more closely connected to the question of
whether the Attorney General has justified the disparate treatment of NGI’s and SVP’s
than to the question of whether they are in fact similarly situated. We agree with Curlee
that for our present purposes, NGI’s and SVP’s are similarly situated.6

       6
         In another attempt to persuade us that SVP’s and NGI’s are not similarly situated
for present purposes, the Attorney General also points out that the United States Supreme
Court has approved different standards of proof for the class of potential civil-
commitment candidates and the class of insanity acquittees. (Jones v. United States
(1983) 463 U.S. 354, 370 (Jones).) This argument is unavailing. In Jones, the court
allowed a lower standard of proof for NGI’s—that is, less favorable treatment—because
they had already advanced their insanity as a defense and proved their criminal acts were
a result of their mental illness. (Id. at p. 367.) Jones provides no justification for more
favorable treatment of NGI’s than of other civil committees.

                                              12
       The next question we face is whether the People have justified the disparate
treatment. On this record, we conclude that they have not done so. The Attorney
General advances a number of possible justifications. First, she argues that hospital
records are more available in an NGI extension hearing than in an SVP commitment
proceeding, and therefore the SVP’s testimony is more necessary than that of an NGI.
That may or may not be true, but, as we have explained, the record before us is
inadequate for us to make that determination.
       The Attorney General also relies on the factors that were set forth in McKee II to
justify an indefinite commitment for SVP’s. As we have explained, the court concluded
in McKee II that there was evidence SVP’s were more likely to commit new sexual
offenses when released than other civil committees; victims of sex offenses suffered
unique and, in general, greater trauma, than victims of other offenses; and SVP’s were
less likely to participate in treatment and more likely to be deceptive and manipulative
than other groups. (McKee II, supra, 207 Cal.App.4th at pp. 1340–1346.) While the
court in McKee II concluded these factors justified imposing indeterminate commitments
on SVP’s but not on MDO’s or NGI’s, we are not persuaded they necessarily show that
that an SVP’s testimony is more necessary than that of NGI’s. The court in McKee II
carefully delineated the nexus between the evidence and the propriety of an indeterminate
commitment—not only was the trauma to victims of sexual crimes greater, but SVP’s
were less receptive and amenable than MDO’s and NGI’s to treatment that would reduce
the risk of reoffense and, where successful, the treatment for an SVP typically took
longer than for members of the other groups. (Id. at pp. 1342–1347.) Here, the Attorney
General has not yet shown a similar nexus between these factors and the need for
compelled testimony from an SVP, but not an NGI.
       We must also address the issue of prejudice. The Attorney General contends that,
even if Curlee should not have been compelled to testify, the error was harmless because
it is not reasonably probable he would have achieved a more favorable outcome had he
not testified in the People’s case-in-chief. (People v. Watson (1956) 46 Cal.2d 818, 836.)
As noted in Haynie, however, “[b]y calling the person in its case-in-chief, the state is


                                             13
essentially saying that his or her testimony is necessary for the state to prove its case. We
have no doubt that a committee so compelled to testify is prejudiced under these
circumstances. The California Supreme Court noted in Cramer v. Tyars (1979)
23 Cal.3d 131 [] that permitting the jury to observe the person sought to be committed
and to hear him speak and respond provided ‘the most reliable proof and probative
indicator of the person’s present mental condition.’ [Citation.] As such, we cannot
conclude that compelling [the committee] to testify, even if his testimony was in some
regards cumulative to that of other witnesses, was harmless error.” (Haynie, supra,
116 Cal.App.4th at p. 1230.)
       We emphasize that, like our high court in McKee I, we do not conclude the People
cannot meet their burden to show the testimony of an NGI is less necessary than that of
an SVP. We merely conclude that they have not yet done so. In our view, the proper
remedy is to remand the matter to the trial court to conduct an evidentiary hearing to
allow the People to make an appropriate showing.
     B. Challenges to 2013 Amendments to SVPA
       As we have explained briefly above, as originally enacted, the SVPA provided for
a two-year term of confinement and treatment of SVP’s; new petitions requesting
successive two-year commitments had to be filed to extend the commitment, at which
time the People again had the burden of proof. (McKee I, supra, 47 Cal.4th at p. 1185,
citing Stats. 1995, ch. 763, § 3, p. 5922 & former §§ 6603, subd. (d), 6604, 6604.1,
6605.) In 2006, the California voters amended the Act in a number of ways, including
providing that terms of commitment for SVP’s would be indeterminate. (McKee I,
47 Cal.4th at pp. 1186–1187.) The Department was required to examine each SVP and
file an annual report considering whether the committed person currently met the
definition of an SVP, whether conditional release to a less restrictive placement or an
unconditional release was in the person’s best interest, and whether conditions could be
imposed that would adequately protect the community. If the Department determined the
person was no longer an SVP or conditional release was appropriate, it would authorize
the person to petition for either conditional release to a less restrictive placement or


                                              14
unconditional discharge. If the state opposed the petition, it had the burden of proving
beyond a reasonable doubt that the person still met the definition of an SVP. (Id. at
p. 1187.) If the Department did not authorize a petition, a committed person could
nevertheless file a petition for conditional release or unconditional discharge. (Ibid.,
citing former § 6608, subd. (a).) The committed person would bear the burden of proof
by a preponderance of the evidence. (McKee I, 47 Cal.4th at p. 1187, citing former
§ 6608, subd. (i).) In McKee I, our Supreme Court held that the SVPA’s provisions that
commitments were indefinite and that committed persons had the burden to show by a
preponderance of the evidence that they were no longer SVP’s did not offend due
process. (McKee I, 47 Cal.4th at pp. 1188–1193.)
       Section 6608 was amended in 2013 to allow a committed person to petition in the
first instance only for conditional release if the Department does not authorize the
petition. (§ 6608, subd. (a), as amended by Stats. 2013, ch. 182, § 3, p. 2257.) After at
least one year on conditional release, the committed person may then petition for
unconditional discharge. (§ 6608, former subd. (k), Stats. 2013, ch. 182, § 3, p. 2259,
now subd. (m), as amdended by Stats. 2014, ch. 877, § 1, p. 5676.) Curlee contends this
change in the SVPA, under which an SVP may no longer seek immediate unconditional
discharge without the recommendation of the Department but must instead petition first
for conditional release and then wait a year, violates due process.
       We conclude this issue is not ripe for review and therefore decline to address it.
The amendments about which Curlee complains had not yet been enacted at the time of
the order under appeal. As the court in People v. Gray (2014) 229 Cal.App.4th 285, 292,
recently explained in refusing to consider a similar contention, “[w]e are concerned with
the constitutionality of the SVPA as it existed when appellant was adjudged an SVP, not
the statutory scheme as it may or may not be applied to appellant in the future.”
       Moreover, as the Attorney General points out, Curlee has not sought release or
discharge without the Department’s authorization on the ground he is no longer an SVP,
and has therefore suffered no injury from the requirements of the current version of



                                             15
section 6608.7 His appeal is from his initial commitment as an SVP, not from a decision
under section 6608, and he cannot show that he has been aggrieved by a ruling under the
SVPA’s current release procedures. Even assuming those provisions were to be applied
to him in the future, any opinion we issued now on the matter would be purely advisory
and based on a hypothetical set of facts. (See Pacific Legal Foundation v. California
Coastal Com. (1982) 33 Cal.3d 158, 170 [“The ripeness requirement, a branch of the
doctrine of justiciability, prevents courts from issuing purely advisory opinions”]; Farm
Sanctuary, Inc. v. Department of Food & Agriculture (1998) 63 Cal.App.4th 495, 502
[court will not adjudicate dispute if “ ‘asked to speculate on the resolution of hypothetical
situations’ ”]; cf. People v. Carroll (2007) 158 Cal.App.4th 503, 508, fn. 2 [refusing to
issue advisory opinion on constitutionality of SVPA provision that was not basis for
decision under review].) “One who seeks to raise a constitutional question must show
that his rights are affected injuriously by the law which he attacks and that he is actually
aggrieved by its operation.” (People v. Williams (1966) 247 Cal.App.2d 169, 170.)
Curlee cannot make this showing.
     C. Motion to Continue Trial
       1. Background
       Trial was scheduled for July 16, 2012, after the trial court granted Curlee’s motion
for a continuance due to his trial counsel’s unavailability. On July 11, 2012, five days
before the rescheduled trial date, Curlee again moved to continue the trial, contending an
expert witness was unavailable and he needed additional time to find a replacement
evaluator or expert. According to the motion, Curlee had been evaluated upon his parole
release by two Department evaluators. One of them, Dr. Kimberly Smith, had concluded
he was not an SVP. Dr. Smith had recently informed defense counsel that the
Department had deemed her unqualified to perform SVP evaluations because she did not


       7
         As we have explained, our Supreme Court has concluded an indefinite SVP
commitment does not offend due process. (McKee I, supra, 47 Cal.4th at pp. 1188–
1193.) We accordingly discern no injury to Curlee from the fact that he has received an
indefinite commitment.

                                             16
have five years’ experience in the diagnosis and treatment of mental disorders,8 that her
contract had not been renewed, and that she was no longer available to testify at Curlee’s
trial.9 The Department had told defense counsel Dr. Smith had left her employment in a
contract dispute and that it would not pay her fee to testify. Defense counsel had hired a
process server to serve Dr. Smith, but he believed she was avoiding service.
       At a trial readiness conference on July 12, 2012, the trial court indicated it would
likely grant the continuance. The deputy district attorney asked the court not to make a
decision until the next hearing.
       On the day scheduled for trial, the deputy district attorney informed the court that
Dr. Smith had told both her and defense counsel that she had received her subpoena and
was available to testify in the week of July 30. Defense counsel told the court that Dr.
Smith had changed her original opinion that Curlee was not an SVP and that he wanted
the opportunity to conduct a deposition of Dr. Smith and find a replacement evaluator if
Dr. Smith was going to testify that Curlee was an SVP.10 The deputy district attorney
opposed the request for a continuance on the ground that because of contractual issues
with the Department, her expert witnesses might not remain available. The trial court
denied the continuance motion. In doing so, it noted that Dr. Smith was available to
testify and that if she testified that Curlee was an SVP, Curlee would be able to impeach
her testimony with her earlier report opining that he was not an SVP.

       8
         Section 6601 provides that if the Secretary of the California Department of
Corrections and Rehabilitation determines, before an inmate’s release, that the inmate
may be an SVP, the secretary shall refer the person for an evaluation (§ 6601,
subd. (a)(1)), which shall be carried out by two practicing psychiatrists or psychologists
(§ 6601, subd. (d)). If the two professionals do not agree on whether the person is an
SVP, the Director of Mental Health must arrange for further examination by two
independent professionals, who must have at least five years of experience in the
diagnosis and treatment of mental disorders. (§§ 6601, subds. (e), (g).)
       9
        In an email, Dr. Smith also told defense counsel the deputy district attorney was
going to forward her additional information regarding Curlee’s juvenile cases.
       10
         Dr. Smith informed defense counsel she had changed her opinion as a result of
additional information she had been provided regarding two offenses Curlee had
committed as a juvenile.

                                             17
       Curlee did not call Dr. Smith as a witness during the trial.
       2. Discussion
       Curlee contends the trial court abused its discretion in denying his request for a
continuance of the trial. He argues that Dr. Smith had not been properly served and, as a
result, might not have been available to testify, that her change of opinion was
unexpected and he acted expeditiously to seek a continuance when he learned of it, that
his counsel would have rendered ineffective assistance if he had called her as a witness
without first taking her deposition, and that he needed additional time to retain a new
expert witness in the event Dr. Smith was in fact of the opinion he was an SVP.
       “ ‘The decision to grant or deny a continuance is committed to the sound
discretion of the trial court. [Citation.] The trial court’s exercise of that discretion will
be upheld if it is based on a reasoned judgment and complies with legal principles and
policies appropriate to the case before the court. [Citation.] A reviewing court may not
disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof
appearing in the record.’ ” (Thurman v. Bayshore Transit Management, Inc. (2012) 203
Cal.App.4th 1112, 1126.) However, “ ‘[t]rial court discretion is not unlimited. “The
discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion,
which is subject to the limitations of legal principles governing the subject of its action,
and to reversal on appeal where no reasonable basis for the action is shown. [Citation.]”
[Citations.]’ [Citation.] [¶] . . . ‘The trial judge must exercise his discretion with due
regard to all interests involved. The denial of a continuance which has the practical effect
of denying the applicant a fair hearing is often held reversible error. [Citations.]’ ”
(Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, 444–445.)
       An arbitrary denial of a continuance may deny a party due process. “ ‘However,
not every denial of a request for more time can be said to violate due process, even if the
party seeking the continuance thereby fails to offer evidence. [Citation.]’ ” (People v.
Fuiava (2012) 53 Cal.4th 622, 650.) The court may not exercise its discretion to so as to
deprive the defendant of a reasonable opportunity to prepare. (Ibid.) However, “ ‘[t]here
are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to


                                              18
violate due process. The answer must be found in the circumstances present in every
case, particularly in the reasons presented to the trial judge at the time the request is
denied.’ ” (People v. Mungia (2008) 44 Cal.4th 1101, 1118.)11
       Factors that may be considered in determining whether a court has abused its
discretion in denying a continuance include “[t]he unavailability of an essential lay or
expert witness because of death, illness, or other excusable circumstances” or “[a] party’s
excused inability to obtain essential testimony, documents, or other material evidence
despite diligent efforts.” (Cal. Rules of Court, rule 3.1332(c)(1), (6).) The court may
also consider such factors as the proximity of the trial date, whether there was any
previous continuance, the length of the continuance requested, the availability of
alternative means to address the problem giving rise to the request for a continuance, and
the prejudice that parties or witnesses will suffer from a continuance. (Cal. Rules of
Court, rule 3.1332(d).)
       We see no abuse of discretion in the trial court’s denial of Curlee’s request for a
continuance. As we have noted, the trial had already been continued once at Curlee’s
request, in March 2012. The July 2012 request at issue here was made on the ground that
Dr. Smith was unavailable to testify due to the termination of her contract with the
Department. Her subsequent correspondence, however, indicated she had received the
subpoena and would be available to testify during trial. Curlee contends that Dr. Smith
was not personally served with her subpoena, and that she was therefore not obliged to
appear at trial. Based on Dr. Smith’s own statements, however, the trial court could
reasonably conclude she was available as a witness.
       Moreover, Curlee has not shown Dr. Smith’s testimony was essential. At trial,
Curlee called his own expert witness, Dr. Christopher Fisher, a clinical psychologist who
worked at Napa State Hospital in a unit specializing in the evaluation and treatment of
sex offenders. Dr. Fisher opined that Curlee did not have a diagnosed mental disorder
that predisposed him to commit sexual offenses and that he was unlikely to commit

       11
        The same standard is applied in civil and criminal proceedings. (People v.
Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679.)

                                              19
another sex offense if released—that is, that he was not an SVP—and explained at length
the basis for his opinion. In the circumstances, the denial of the continuance did not
prevent Curlee from presenting his case to the jury. The trial court neither abused its
discretion nor denied Curlee due process.
                                    III.    DISPOSITION
       The matter is remanded to the trial court for further proceedings. On remand, the
trial court is directed to conduct an evidentiary hearing at which the People will have the
opportunity to show that the differential statutory treatment of SVP’s and NGI’s is
justified. If the trial court determines the People have carried their burden to do so, it
shall confirm its order finding Curlee an SVP and committing him to the Department. If
it determines the People have not carried their burden, the trial court shall conduct a new
hearing under the SVPA to determine whether Curlee is an SVP.




                                              20
                                 _________________________
                                 Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




                            21
Filed 6/12/15
                      CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,
                                                   A136337
v.
JOEL CURLEE,                                       (Alameda County
                                                   Super. Ct. No. 165110)
        Defendant and Appellant.


THE COURT:
        The written opinion, which was filed on May 20, 2015, is ordered modified as
follows:
        On page one, the sentence stating “We do not agree with Curlee on these points”
should be changed to read:
        “In the unpublished portion of this opinion, we reject these contentions.”
        No change in judgment.


        Further, the written opinion has now been certified for partial publication pursuant
to rules 8.1105(b) and 8.1110.




Dated: _________________                      _____________________________, P.J.



*
 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.B and II.C.

                                             22
People v. Curlee (A136337)


Trial Court                                  Alameda County Superior Court


Trial Judge                                  Honorable Allan Hymer


Attorneys:

Rudolph G. Kraft, by appointment of the Court of Appeal under the First District Appellate
Project, for Defendant and Appellant.

Office of the Attorney General, Kamala D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Jeffery M. Laurence, Acting Senior Assistant Attorney General,
Laurence K. Sullivan, Supervising Deputy Attorney General, Moona Nandi, Deputy Attorney
General, and Dane R. Gillette, for Plaintiff and Respondent.




People v. Curlee, A136337




                                           23
