Filed 9/24/13 P. v. Sanchez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038849
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 210255)

         v.

MIKE SANCHEZ,

         Defendant and Appellant.



         Following a court trial, the court found true beyond a reasonable doubt that
defendant Mike Sanchez was a sexually violent predator (SVP) under the Sexually
Violent Predator Act (SVPA). (See Welf. & Inst. Code, § 6600 et seq.)1 By order filed
September 25, 2012, the court ordered him committed for an indeterminate term to the
custody of the State Department of State Hospitals (Department).
         On appeal, Sanchez argues that he was not evaluated with a valid “standardized
assessment protocol” as mandated by section 6601, subdivision (c) and that the SVPA’s
indeterminate commitment violates principles of equal protection. We hold that neither
of Sanchez’s claims is meritorious, and we will therefore affirm the judgment.




         1
        All further statutory references are to the Welfare and Institutions Code unless
otherwise specified.
                                   BACKGROUND
      This court summarized some of the procedural background of Sanchez’s case in
Langhorne v. Superior Court (2009) 179 Cal.App.4th 225, as follows: “Sanchez was
convicted of one count of lewd act on a child in both 1979 and 1982. He was initially
committed as a sexually violent predator in 2000. Thereafter, Sanchez was recommitted
for additional two-year terms, with the most recent two-year commitment term extending
to January 19, 2008. [Citation.] [¶] On June 8, 2007, before the expiration of the most
recent two-year commitment period, the People filed a ‘motion to retroactively apply an
indeterminate term to respondent’ under the 2006 amendments to the SVPA.[2] The trial
court granted the motion on July 19, 2007, and ordered that Sanchez be committed to the
custody of the State Department of Mental Health[3] for an indeterminate term. Sanchez
appealed, and this court reversed the order imposing an indeterminate term of
commitment in an opinion filed on July 10, 2008. [Citation.]” (Id. at pp. 230-231; see
People v. Sanchez (July 10, 2008, H031856) [nonpub. opn.].)
      On June 4, 2008, while Sanchez’s appeal in case No. H031856 was pending, the
People filed a petition to extend his commitment from the date his prior two-year term
expired to “the term prescribed by law.” The petition was supported by evaluations from




      2
         The SVPA was amended twice in 2006. Prior to those amendments, an
individual determined to be an SVP was committed to the custody of the Department for
a two-year term, which could be extended for additional two-year periods. (Former
§ 6604, as amended by Stats. 2000, ch. 420, § 3; former § 6604.1, as amended by Stats.
2000, ch. 420, § 4.) Pursuant to Senate Bill 1128 and Proposition 83, the SVPA was
amended to provide for an indeterminate term of commitment, and the references to two-
year commitment terms and extended commitments in sections 6604 and 6604.1 were
eliminated. (Stats. 2006, ch. 337, §§ 55, 56; see Cal. Const., art. II, § 10, subd. (a);
§§ 6604, 6604.1.)
       3
         In 2012, “State Department of State Hospitals” was substituted for “State
Department of Mental Health” throughout the SVPA. (Stats. 2012, ch. 24, §§ 137-146.)
We will use the term “Department” to refer to both the current and former Department.
Steven R. Jenkins, Ph.D. and C. Mark Patterson, Ph.D.; the evaluations had been
performed in March and April of 2008.
        A probable cause hearing was held on January 7, 2010 and January 21, 2010. At
the hearing, the prosecution submitted updated evaluations from Drs. Patterson and
Jenkins; these evaluations had been performed in May of 2009. Drs. Patterson and
Jenkins both testified at the probable cause hearing. At the end of the hearing, the trial
court found probable cause to believe Sanchez was an SVP.
        In May 2010, Sanchez moved to dismiss the petition on the basis that the
evaluators had not used a “standardized assessment protocol” as mandated by section
6601, subdivision (c).4 The trial court denied the motion to dismiss on July 15, 2010.
        A court trial began on September 14, 2012. Drs. Patterson and Jenkins both
testified at trial.
        Drs. Patterson and Jenkins both diagnosed Sanchez with pedophilia,
schizophrenia, and antisocial personality disorder. They both believed that due to these
disorders, Sanchez had difficulty controlling his behavior and that he was predisposed to
commit sexually violent criminal acts.
        Dr. Patterson reviewed Sanchez’s history of sexually violent crimes, which began
in 1965 when, at age 15, he sodomized or attempted to sodomize his six-year-old brother.
In 1979, Sanchez admitted having molested at least 12 children. Following his
conviction for digitally penetrating a six-year-old girl in 1978, Sanchez was sentenced to
four years in prison. One year after his release from prison, he was rearrested for
fondling and orally copulating a five-year-old boy, and he was sentenced to 11 years in
prison. Following his release from prison for that offense, he violated parole by
possessing cocaine and failing to register as a sex offender.

        4
        Below, Sanchez’s motion was heard collectively with similar motions filed by
other SVP’s facing recommitment, and Sanchez relied on declarations filed in one of
those cases. We granted Sanchez’s motion for judicial notice of the declarations.
       Sanchez had acknowledged that he would seek out locations where children
congregated and select potential victims. He had reported having sexual fantasies about
children. Sanchez had only intermittently participated in sex offender treatment, and he
could not answer when he was asked how he would keep himself from reoffending if
released.
       Drs. Patterson and Jenkins assessed Sanchez’s risk of reoffense using a number of
different instruments. On the Static 99-R, a “widely used” actuarial tool, Sanchez scored
in the group with the highest risk of reoffense. On the Static 2002-R, he again scored in
the high risk group. On the Sex Offender Risk Appraisal Guide (SORAG), Sanchez
scored in the “relatively high risk range.” On the Psychopathy Checklist (PCL-R),
Sanchez scored with a “high degree of psychopathic personality traits.” On the
Structured Risk Assessment, Sanchez scored high in several categories.
       Sanchez was age 62 at the time of trial, and he suffered from some medical
problems. Dr. Patterson acknowledged that there is a drop in recidivism after age 61.
       On September 25, 2012, the court found the petition true and ordered Sanchez
committed to the custody of the Department for an indeterminate term. The order
specified that it was “subject to the ultimate decision in” People v. McKee (2010) 47
Cal.4th 1172 (McKee I) and People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II).

                                      DISCUSSION
       A.     Brief Overview of the SVPA
       The SVPA provides for the involuntary civil commitment, for treatment and
confinement, of an individual who is found by a unanimous jury verdict (§ 6603,
subds. (e) & (f)), and beyond a reasonable doubt (§ 6604), to be a “sexually violent
predator” (ibid.). The definition of an SVP is set forth in section 6600, subdivision (a)(1)
as follows: “ ‘Sexually violent predator’ means a person who has been convicted of a
sexually violent offense against one or more victims and who has a diagnosed mental
disorder that makes the person a danger to the health and safety of others in that it is
likely that he or she will engage in sexually violent criminal behavior.”
          The SVP commitment process “begins when the secretary of the Department of
Corrections and Rehabilitation (DCR) determines that a person in custody because of a
determinate prison sentence or parole revocation may be a sexually violent predator. If
such an initial determination is made, the secretary refers the inmate for an evaluation.”
(In re Lucas (2012) 53 Cal.4th 839, 845 (Lucas).) “After the secretary’s referral, the
inmate is screened by the DCR and the Board [of Parole Hearings (Board)] to determine
whether the person is likely to be an SVP. If the DCR and the Board conclude that is the
case, the inmate is referred for full evaluation by the [Department]. (§ 6601, subd. (b).)”
(Ibid.)
          “A full evaluation is done by two practicing psychiatrists or psychologists, or by
one of each profession. (§ 6601, subd. (d).) If one evaluator concludes the inmate meets
the SVP criteria, but the other evaluator disagrees, two more independent evaluators are
appointed. (§ 6601, subd. (e).) A petition for commitment may not be requested unless
the initial two evaluators appointed under subdivision (d), or the two independent
evaluators appointed under subdivision (e), agree that the inmate meets the commitment
criteria. (§ 6601, subds. (d), (f).)” (Lucas, supra, 53 Cal.4th at p. 845.) “If, after the full
evaluation is completed, the [Department] concludes that the inmate is an SVP, the
director of the [Department] requests that a petition for commitment be filed by the
district attorney or the county counsel of the county where the inmate was convicted. If
upon review that official concurs, a petition for commitment is filed in the superior court.
(§ 6601, subds. (h), (i).)” (Id. at p. 846.)
          With regard to the full evaluation prior to the filing of a petition, former section
6601, subdivision (c), as amended by section 26 of Proposition 83, provided: “The State
Department of Mental Health shall evaluate the person in accordance with a standardized
assessment protocol, developed and updated by the State Department of Mental Health,
to determine whether the person is a sexually violent predator as defined in this article.
The standardized assessment protocol shall require assessment of diagnosable mental
disorders, as well as various factors known to be associated with the risk of reoffense
among sex offenders. Risk factors to be considered shall include criminal and
psychosexual history, type, degree, and duration of sexual deviance, and severity of
mental disorder.”
       A commitment petition proceeds to trial only if the requisite findings are made at a
probable cause hearing. (See § 6602, subd. (a); Cooley v. Superior Court (2002) 29
Cal.4th 228.) “[T]he only purpose of the probable cause hearing is to test the sufficiency
of the evidence supporting the SVPA petition. [Citation.]” (Id. at p. 247.) “. . . If the
judge determines that there is probable cause, the judge shall order that the person remain
in custody in a secure facility until a trial is completed . . . .” (§ 6602, subd. (a).)
       At trial, the court or jury must “determine whether, beyond a reasonable doubt, the
person is a sexually violent predator.” (§ 6604.) If the court or jury determines that the
person is a sexually violent predator, the person is committed for an indeterminate term.
(Ibid.; see fn. 2, supra.)
       B.      2009 Assessment Protocol
       Sanchez contends the trial court erred by denying his motion to dismiss the
petition, in which he argued that the evaluators did not use a “standardized assessment
protocol” as mandated by section 6601, subdivision (c).
               1.     The 2009 Protocol
       On February 11, 2009, the Department issued the “Standardized Assessment
Protocol for Sexually Violent Predator Evaluations” (2009 Protocol). The 2009 Protocol
had been adopted at the time of Sanchez’s probable cause hearing in January 2010.
       The 2009 Protocol is six pages long. The protocol states in its introduction: “This
protocol cannot prescribe in detail how the clinician exercises his or her independent
professional judgment in the course of performing SVP evaluations. Since the exercise
of independent, professional clinical judgment is required, this evaluation protocol is not,
and cannot be, a detailed, precise step-by-step procedure like the kind of procedure that
might apply to the chemical analysis of an unknown substance.”
        Part I of the 2009 Protocol contains statutory definitions of the terms “Sexually
Violent Predator,” “Sexually violent offense,” “Diagnosed mental disorder,” and
“Predatory.”
        Part II of the 2009 Protocol is entitled “Referral Source,” and it describes the
Department’s screening process.
        Part III of the 2009 Protocol is entitled, “Evaluator Prerequisites,” and it contains
the requirements of section 6601, subdivision (d) [specifying that evaluations are to be
performed by two practicing psychiatrists, two practicing psychologists, or one practicing
psychiatrist and one practicing psychologist] and section 6601, subdivision (g)
[specifying that if only one evaluator determines the person meets the SVP definition, a
further examination must be conducted by two independent professionals meeting certain
criteria].
        Part IV-A of the 2009 Protocol specifies the information that evaluators must give
to the potential SVP, as required by section 6601, subdivision (f). Part IV-B lists the risk
factors that must be taken into account pursuant to section 6601, subdivision (c) – that is,
criminal history, psychosexual history, type of sexual deviance, degree of sexual
deviance, duration of sexual deviance, and severity of mental disorder. Part IV-C states
the inquiry that must be answered by each evaluator: “Does the person being evaluated
have a diagnosed mental disorder so that he or she is likely to engage in acts of sexual
violence without appropriate treatment and custody?”
        Part IV-D of the 2009 Protocol (codified in section 4005 of the California Code of
Regulations, title 9) provides: “The evaluator, according to his or her professional
judgment, shall apply tests or instruments along with other static and dynamic risk factors
when making the assessment. Such tests, instruments and risk factors must have gained
professional recognition or acceptance in the field of diagnosing, evaluating or treating
sexual offenders and be appropriate to the particular patient and applied on a case-by-
case basis. The term ‘professional recognition or acceptance’ as used in this Section
means that the test, instrument or risk factor has undergone peer review by a conference,
committee or journal of a professional organization in the fields of psychology or
psychiatry, including, but not limited to, the American Psychological Association, the
American Psychiatric Association, and the Association for the Treatment of Sexual
Abusers.”
       Part IV-E of the 2009 Protocol specifies the process for updated evaluations as
provided in section 6603, subdivision (c)(1). Part IV-F discusses several judicial
opinions, including the United States Supreme Court’s decision in Kansas v. Crane
(2001) 534 U.S. 407 (Crane).
       Part V of the 2009 Protocol explains what happens if the evaluation process results
in agreement that the person is an SVP.
       In Part VI, the 2009 Protocol recommends that evaluators be “knowledgeable and
familiar with literature, studies, and tests or instruments used in the field of evaluation
and diagnosis of sex offenders, as well as the latest developments in these areas.” It also
advises evaluators to, among other things, “obtain, review, and consider all relevant
information and records that bear upon the case and be prepared to testify and undergo
cross examination regarding these sources of information and how they contributed to the
conclusions reached in the evaluation.”
              2.     Proceedings Below
       In his motion to dismiss the petition, Sanchez argued that the 2009 Protocol was
not a “standardized assessment protocol” as required by section 6601, subdivision (c)
because it “expressly eschews any specific procedures to be followed or any designated
risk assessments or tests to be used.” He asserted the 2009 Protocol improperly “leave[s]
to the discretion of each evaluator which tests and instruments to use, and which static
and dynamic risk factors to consider.” Sanchez argued that the 2009 Protocol was
invalid, that its use violated his right to due process, and that the appropriate remedy was
dismissal of the petition.
       Sanchez’s motion to dismiss was supported by declarations from Robert L. Halon,
Ph.D. and Richard Wollert, Ph.D. Dr. Halon expressed his opinion that the 2009 Protocol
“does not describe a ‘standardized assessment protocol,’ as that term is understood in the
scientific and psychological community because adhering to the instructions contained
therein cannot produce a reliable assessment, i.e., one which, using the same database,
methods and procedures, always achieves objective results, whatever they might be, with
each individual being assessed.” Dr. Wollert expressed a similar opinion in his
declaration.
       The prosecution submitted opposition to the motion to dismiss. The prosecution
noted that the term “standardized assessment protocol” (§ 6601, subd. (c)) is not defined
in the statute. The prosecution argued that by requiring a “standardized assessment
protocol,” the Legislature “wanted evaluations and assessments to follow the same
general outline” but did not intend each evaluator to follow “an identical routine.” The
prosecution further argued that “[b]ecause determination of SVP and mental disposition
is a social science and not a hard science, the protocol must allow for professional
judgment and discretion” and that a more detailed protocol would “likely create
difficulties by improperly restricting the critical role professional judgment plays in any
psychological forensic evaluation.”
       The prosecution further argued that even if the 2009 Protocol was invalid, the
proper remedy was not dismissal of the petition. Instead, the proper remedy would be to
order new evaluations under a valid protocol.
       In support of its opposition, the prosecution attached the transcript of a May 11,
2009 regulatory hearing held by the Department. The topic of the hearing was the
proposed adoption of section 4005 of the California Code of Regulations, title 9, which is
part of the 2009 Protocol and is quoted above. At the hearing, several speakers argued
that the protocol should not be adopted because it did not give specific guidance to the
evaluators and would not ensure a uniform evaluation system. In its opposition to
Sanchez’s motion, the prosecution argued that the hearing transcript showed that
Sanchez’s arguments had been considered but rejected.
       The prosecution’s opposition was further supported by a declaration from Amy
Phenix, Ph.D. Dr. Phenix had been “tasked with developing the first Standardized
Assessment Protocol,” and she had provided the Department with updates to the protocol.
She opined that the 2009 Protocol “comports with the generally accepted definition of a
‘standardized assessment protocol.’ ” Her declaration described the training that SVP
evaluators must go through, and she cited various papers and guidelines for the principle
that SVP evaluators should use their professional judgment in selecting the tests or
instruments for assessing a particular individual’s risk of reoffense.
       The trial court denied Sanchez’s motion to dismiss, finding “that the 2009 protocol
comports with the intention of the [L]egislature and comports with the accepted
definition of the words, standardized assessment protocol. The 2009 protocol recognizes
that individuals differ in psychological functioning, issues of mental health and level of
risk for sexual reoffense. In short the protocol acknowledges psychological complexities
of each human being. As Dr. Phenix says in her declaration, ‘. . . a rigid protocol would
be to the detriment of good clinical judgment and accurate risk assessment.’ ” Because
the trial court found the 2009 Protocol was valid, it also found Sanchez had not “suffered
any due process violation.”
              3.     Analysis
       As he did below, Sanchez argues that the 2009 Protocol is not a “standardized
assessment protocol” as required by section 6601, subdivision (c). He contends that use
of the invalid protocol was a violation of due process.
       Citing to the Halon and Wollert declarations, Sanchez contends that the 2009
Protocol is not a “standardized assessment protocol” as required by 6001, subdivision (c)
because it does not specify a detailed or uniform procedure for evaluators to follow when
performing SVP evaluations. According to Sanchez, a “standardized assessment
protocol” for performing SVP evaluations would list the types of records that are
relevant, require each evaluator to collect and assess the same data, provide guidance on
performing interviews, recommend particular actuarial instruments, and explain how to
select comparison groups. Sanchez acknowledges that the 2009 Protocol does list
specific risk factors that must be taken into account when determining a person’s
volitional control, but he claims the protocol is biased because all of the listed factors
would only support a finding that a person has serious difficulty in controlling his or her
behavior. Sanchez also asserts that Dr. Phenix’s declaration does not support a finding
that the 2009 Protocol is a valid “standardized assessment protocol” because she had a
clear bias due to her work developing protocols for the Department.
       The Attorney General notes that the phrase “standardized assessment protocol” is
not defined in section 6601 and that nothing in that phrase “mandates a required level of
detail.” The Attorney General argues that the 2009 Protocol does require “basic
uniformity” in evaluations, by telling evaluators the legal requirements for SVP
evaluations, requiring them to use risk assessment instruments that are accepted in the
field, recommending that evaluators be knowledgeable and familiar with developments in
the field, and recommending that evaluators obtain and consider all relevant information.
The Attorney General contends deference is due to the Department’s determination that
the need for evaluators to exercise independent professional judgment necessarily means
that a detailed, step-by-step procedure cannot be prescribed.
       We agree with the trial court that Sanchez has not established that the 2009
Protocol is invalid. Sanchez has cited, and we have found, no legislative history
supporting his assertion that the Legislature intended the phrase “standardized assessment
protocol” to convey any specific degree of standardization. (§ 6601, subd. (c).) By
specifying that the “standardized assessment protocol” be “developed and updated by the
State Department of [State Hospitals]” (ibid.), the Legislature indicated that it was
leaving the determination of detail and standardization to the Department. As the United
States Supreme Court has recognized, “the Constitution’s safeguards of human liberty in
the area of mental illness and the law are not always best enforced through precise bright-
line rules,” and “the science of psychiatry, which informs but does not control ultimate
legal determinations, is an ever-advancing science . . . .” (Crane, supra, 534 U.S. at p.
413.) And, as the California Supreme Court has recognized, the statutory scheme is
designed to allow the evaluators to exercise their “professional judgment . . . within a
specified legal framework.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888,
910.) In line with that intent, the 2009 Protocol ensures that the evaluators have a
“legally accurate understanding of the statutory criteria,” which “is crucial to the Act’s
proper operation.” (Ibid.)
       Even assuming that the 2009 Protocol is not valid as a “standardized assessment
protocol” (§ 6601, subd. (c)), Sanchez must show that he was prejudiced in order to
obtain relief. (See Reilly v. Superior Court (2013) 57 Cal.4th 641, 653 (Reilly).) In
Reilly, the Supreme Court clarified that a defendant may obtain “relief arising from use of
an invalid protocol in an SVP evaluation” only if he or she demonstrates that “the error
was material.” (Id. at p. 655.) That is, Sanchez can show prejudice only if there is “ ‘a
reasonable probability, sufficient to undermine confidence in the outcome, that the error
affected the evaluator’s ultimate conclusion’ ” or that the error “ ‘reasonably might have
affected the outcome’ ” of the proceedings. (See id. at p. 656.)
       Here, the trial court found probable cause to believe Sanchez was an SVP, and it
ultimately found him to be an SVP at trial, after hearing testimony about his sexually
violent offenses, his diagnosed mental disorders, his participation in treatment, and his
high scores on numerous risk assessment tools. Sanchez presented no evidence to
contradict the testimony of the two evaluators, and he “does not contend the evidence
was insufficient to support [the trial court’s] finding.” (People v. Landau (2013) 214
Cal.App.4th 1, 17.) Under the circumstances, “[t]here is no indication in this record” that
the initial evaluations, conducted pursuant to the 2009 Protocol, “affected [Sanchez’s]
trial.” (See People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 530.) In short, Sanchez has
failed to show that the use of the 2009 Protocol resulted in a material error (Reilly, supra,
57 Cal.4th at p. 655), and thus we conclude he is not entitled to any relief.
       C.     Equal Protection
       Sanchez contends that the SVPA’s indeterminate commitment scheme violates
principles of equal protection. In his reply brief, he suggests that he is entitled to a
remand so he can have his equal protection claim “adjudicated on the merits.”
       In McKee I, our Supreme Court addressed a claim that the indeterminate
commitment scheme violated equal protection. The court determined that SVP’s and
mentally disordered offenders (MDO’s; see Pen. Code, § 2960 et seq.) are similarly
situated for equal protection purposes because they have been involuntarily committed
with the objectives of treatment and protection of the public. (McKee I, supra, 47 Cal.4th
at p. 1203.) The court also determined that SVP’s have “different and less favorable
procedural protections” than MDO’s because “SVP’s under the amended [SVPA] are
given indeterminate commitments and thereafter have the burden to prove they should be
released (unless the [Department] authorizes a petition for release). In contrast, an MDO
is committed for a one-year period and thereafter has the right to be released unless the
People prove beyond a reasonable doubt that he or she should be recommitted for another
year.” (Id. at p. 1202.) The court rejected the appellate court’s finding that “the
legislative findings recited in the [Proposition 83] ballot initiative” were sufficient to
justify the disparate treatment of SVP’s and MDO’s. (Id. at p. 1207.)
       The California Supreme Court found that SVP’s and individuals found not guilty
by reason of insanity (NGI’s; see Pen. Code, § 1026 et seq.) are also similarly situated
and “a comparison of the two commitment regimes raises similar equal protection
problems . . . .” (McKee I, supra, 47 Cal.4th at p. 1207.) Consequently, the court agreed
with the Sanchez “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.)
       However, in McKee I, the California Supreme Court did “not conclude that the
People could not meet its burden of showing the differential treatment of SVP’s is
justified.” (McKee I, supra, 47 Cal.4th at p. 1207.) The court gave the People “an
opportunity to make the appropriate showing on remand,” noting that the People would
have to show 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 p. 1208.)
       The McKee I court then remanded the case to the trial court with instructions “to
determine whether the People . . . 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.” (McKee I, supra, 47 Cal.4th at pp. 1208-1209,
fn. omitted.)
       On remand in McKee I, “the trial court conducted an evidentiary hearing to
determine whether the People could justify the [SVPA’s] disparate treatment of SVP’s
under the strict scrutiny standard for equal protection claims. At the hearing, the People
presented the testimony of eight witnesses and documentary evidence. The trial court
also allowed McKee to present evidence; he presented the testimony of 11 witnesses and
documentary evidence. The court issued a 35-page statement of decision summarizing
the extensive testimonial and documentary evidence presented at the hearing and finding
the People had met their burden to establish, by a preponderance of the evidence, that the
disparate treatment of SVP’s under the [SVPA] was based on a reasonable perception of
the greater and unique dangers they pose compared to MDO’s and NGI’s.” (McKee II,
supra, 207 Cal.App.4th at p. 1332.)
       McKee appealed, and Division One of the Fourth Appellate District affirmed the
trial court’s order. (McKee II, supra, 207 Cal.App.4th at pp. 1330-1331, 1350.) In
McKee II, the appellate court explained that it would “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 [SVPA].” (Id. at p. 1338.)
       After performing its independent review of the evidence presented in the 21-day
evidentiary hearing held in the trial court, the McKee II court made several findings.
First, with respect to recidivism, the court determined that the expert witness testimony of
three psychologists, as well several studies and the Static-99 data comparing recidivism
rates, was sufficient to show that “the inherent nature of the SVP’s mental disorder makes
recidivism as a class significantly more likely than recidivism of sex offenders generally,
but does not show SVP’s have, in fact, a higher sexual recidivism rate than MDO’s and
NGI’s. . . . Regardless of the shortcomings or inadequacy of the evidence on actual
sexual recidivism rates, the Static-99 evidence . . . supports, by itself, a reasonable
inference or perception that SVP’s pose a higher risk of sexual reoffending than do
MDO’s or NGI’s.” (McKee II, supra, 207 Cal.App.4th at p. 1342.)
       Second, the McKee II court considered whether the People had “presented
evidence that the victims of sex offenses suffer unique and, in general, greater trauma
than victims of nonsex offenses.” (McKee II, supra, 207 Cal.App.4th at p. 1342.) Based
on the expert witness testimony, the court concluded that “there is substantial evidence to
support a reasonable perception by the electorate, as a legislative body, that the harm
caused by child sexual abuse and adult sexual assault is, in general, a greater harm than
the harm caused by other offenses and is therefore deserving of more protection.” (Id. at
pp. 1343-1344.)
       Third, the McKee II court found that there was “substantial evidence to support a
reasonable perception by the electorate that SVP’s have significantly different diagnoses
from those of MDO’s and NGI’s, and that their respective treatment plans, compliance,
and success rates are likewise significantly different. That evidence and the evidence on
recidivism . . . , as the trial court found, ‘supports the conclusion that, as a class, SVP’s
are clinically distinct from MDO’s and NGI’s and that those distinctions make SVP’s
more difficult to treat and more likely to commit additional sexual offenses than are
MDO’s and NGI’s.’ In particular, SVP’s are less likely to participate in treatment, less
likely to acknowledge there is anything wrong with them, and more likely to be deceptive
and manipulative. . . . Furthermore, there is substantial evidence to support a reasonable
inference that an indeterminate, rather than a determinate (e.g., two-year), term of civil
commitment supports, rather than detracts from, the treatment plans for SVP’s.”
(McKee II, supra, 207 Cal.App.4th at p. 1347.)
       The appellate court therefore concluded in McKee II that “the People on remand
met their burden to present substantial evidence, including medical and scientific
evidence, justifying the amended [SVPA’s] disparate treatment of SVP’s (e.g., by
imposing indeterminate terms of civil commitment and placing on them the burden to
prove they should be released). [Citation.]” (McKee II, supra, 207 Cal.App.4th at
p. 1347.) The California Supreme Court denied review of McKee II on October 10, 2012,
and therefore the proceedings on remand in McKee I are now final.
       Sanchez contends that “[t]he McKee II opinion contains three significant flaws”:
it failed to properly conduct a de novo review; it failed to properly apply the strict
scrutiny test; and the facts it relied upon did not justify a disparate treatment of SVP’s.
       First, we disagree with Sanchez’s claim that the McKee II court applied a
deferential standard of review rather than an independent standard of review. Sanchez
acknowledges that the appellate court stated that it was conducting a de novo review
(McKee II, supra, 207 Cal.App.4th at p. 1338), but he points out that the appellate court
also stated that it was determining “ ‘whether the People presented substantial evidence
to support a reasonable inference or perception that the Act’s disparate treatment of
SVP's is necessary to further compelling state interests.’ [Citations.]” (Id. at p. 1338.)
Having reviewed the opinion, we believe the McKee II court’s description of its review is
consistent with an independent, de novo review of the evidence, as well as with the
Supreme Court’s opinion and directions in McKee I. We also note that the First District
Court of Appeal rejected a similar challenge to McKee II, stating that the “claim that the
appellate court failed to independently review the trial court’s determination is frivolous.”
(People v. McKnight (2012) 212 Cal.App.4th 860, 864.)
       Second, we reject Sanchez’s claim that the McKee II court in effect applied a
rational basis test rather than a strict scrutiny test in reviewing the evidence presented at
the hearing. He claims that the court failed to properly analyze whether the distinctions
between the SVPA and other involuntary commitment schemes were “necessary” to
protect society, and he criticizes McKee II for analyzing only whether there was “a
reasonable inference or perception” that SVP’s are more dangerous than MDO’s or
NGI’s, rather than whether SVP’s are “actually” more dangerous than those groups.
(McKee II, supra, 207 Cal.App.4th at p. 1342.)
       We disagree that McKee II failed to apply strict scrutiny. The McKee II court
referred to the issue as “whether the People presented substantial evidence to support a
reasonable inference or perception that the Act’s disparate treatment of SVP’s is
necessary to further compelling state interests. [Citations.]” (McKee II, supra, 207
Cal.App.4th at p. 1339, italics added.) Moreover, the appellate court’s use of the phrase
“reasonable inference or perception” (ibid.) reflects the California Supreme Court’s
remand instructions: in McKee I, the court stated, “On remand, the government will have
an opportunity to justify Proposition 83’s indefinite commitment provisions . . . and
demonstrate that they are based on a reasonable perception of the unique dangers that
SVP’s pose rather than a special stigma that SVP’s may bear in the eyes of California’s
electorate.” (McKee I, supra, 47 Cal.4th at p. 1210, fn. omitted.) Thus, in applying the
strict scrutiny test, McKee II followed the language set forth in McKee I.
       Third, we do not agree with Sanchez’s claim that the evidence at the McKee II trial
did not support the appellate court’s ruling. Sanchez makes several different contentions
in this regard.
       For example, Sanchez claims that the McKee II court erroneously concluded that
“[t]he People presented evidence showing the inherent nature of the SVP’s mental
disorder makes recidivism as a class significantly more likely for SVP’s than for MDO’s
and NGI’s.” (McKee II, supra, 207 Cal.App.4th at p. 1340.) He contends the appellate
court did not examine any evidence comparing the sexual recidivism rate of SVP’s with
the sexual recidivism rate of MDO’s and NGI’s. However, McKee II did rely in part on
evidence that the scores on the Static 99 test, which assesses the risk that a sex offender
will commit new sex offenses, was higher for SVP’s than for non-SVP sex offenders.
(McKee II, supra, at pp. 1340-1342.) Moreover, the McKee II court acknowledged that
the evidence presented only showed that “the inherent nature of the SVP’s mental
disorder makes recidivism as a class significantly more likely than recidivism of sex
offenders generally, but does not show SVP’s have, in fact, a higher sexual recidivism
rate than MDO’s and NGI’s.” (Id. at p. 1342.) The court found that the recidivism rate
evidence was nevertheless “ ‘significant, given that the goal of the SVPA is specifically
to protect society from particularly serious sexual offenses,’ ” and that in any event, the
Static 99 evidence did support “a reasonable inference or perception that SVP’s pose a
higher risk of sexual reoffending than do MDO’s or NGI’s.” (Ibid.) In so concluding,
McKee II thus followed McKee I, where the California Supreme Court in McKee I
suggested that evidence concerning a greater risk of recidivism by SVP’s was one type of
evidence that the People might present to show 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.” (McKee I, supra, 47 Cal.4th at p. 1208.)
       Sanchez also claims that McKee II reached its conclusion that victims of sexual
abuse suffer greater trauma without any evidence regarding the trauma caused by non-sex
offenses. We disagree. The evidence relied on by the McKee II court included testimony
that “[s]exual trauma differs qualitatively from other traumas because of its intrusiveness
and long-lasting effects,” and that “[d]ysfunction, disassociation and avoidance problems
after sexual trauma are unique to sexual abuse and are not seen in victims of physical or
other types of abuse.” (McKee II, supra, 207 Cal.App.4th at pp. 1342, 1343.)
       Sanchez further claims that the evidence concerning differences in diagnoses,
treatment, compliance, and success rates between SVP’s and MDO’s or NGI’s did not
support the conclusion in McKee II that harsher treatment of SVP’s was necessary. We
are not persuaded by this argument. To the extent conflicting evidence was introduced at
the trial, the People’s burden was to show that “the legislative distinctions in classes of
persons subject to civil commitment are reasonable and factually based—not [that] they
are incontrovertible or uncontroversial.” (McKee I, supra, 47 Cal.4th at pp. 1210-1211;
accord, McKee II, supra, 207 Cal.App.4th at p. 1348.)
       Lastly, Sanchez asserts that “there were three separate but related elements that
were under attack in McKee’s equal protection challenge,” that is, the indeterminate term
of commitment, the elimination of the right to a periodic jury trial, and the shifting of the
burden of proof. Sanchez argues that the evidence presented in McKee II did not address
the latter two issues. This argument is without merit. Following independent review of
the evidence, McKee II concluded that “the People on remand met their burden to present
substantial evidence, including medical and scientific evidence, justifying the [SVPA’s]
disparate treatment of SVP’s (e.g., by imposing indeterminate terms of civil commitment
and placing on them the burden to prove they should be released),” and that “the
disparate treatment of SVP’s under the Act is reasonable and factually based and was
adequately justified by the People at the evidentiary hearing on remand.” (McKee II,
supra, 207 Cal.App.4th at pp. 1347, 1348.)
      In light of the Supreme Court’s clearly expressed intent to avoid an unnecessary
multiplicity of proceedings, the Supreme Court’s denial of review in McKee II, and our
conclusions regarding the asserted flaws in McKee II, we find that Sanchez’s equal
protection claims are without merit and do not require a remand for a further evidentiary
hearing.

                                     DISPOSITION
      The judgment is affirmed.



                                  ___________________________________________
                                  BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MÁRQUEZ, J.
