Filed 10/8/13 P. v. Gonzales 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H032866
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 211111)

             v.

RAMIRO GONZALES,

         Defendant and Appellant.



                                           STATEMENT OF THE CASE
         In 2007, the Santa Clara County District Attorney filed a petition to commit
defendant Ramiro Gonzales as a sexually violent predator (SVP) under the SVP Act.
(Welf. & Inst. Code, § 6600 et seq.)1 A jury found that defendant was an SVP, and the
trial court ordered defendant to be committed for an indeterminate term.
         Defendant appealed from the commitment order. On appeal, defendant made four
arguments: 1) the trial court erred in releasing psychological records to the prosecution
and in admitting the testimony of defendant’s former therapist; 2) there was insufficient
evidence of materially changed circumstances since a 2004 determination that defendant
was not an SVP; 3) the trial court erred in refusing to instruct the jury that defendant’s



         1
             Subsequent unspecified statutory references are to the Welfare and Institutions
Code.
mental retardation was not a mental disorder for purposes of the SVP Act; and 4)
indeterminate commitment under the SVP Act violates various constitutional guarantees.
       We held that defendant’s first argument warranted reversal. Specifically, we held
that the trial court erred in releasing privileged psychotherapeutic records and in
admitting testimony concerning privileged information, that the error violated
defendant’s federal constitutional right of privacy, and that the error was prejudicial
under the standard articulated in Chapman v. California (1967) 386 U.S. 18. Our
Supreme Court reversed. The Supreme Court agreed that the trial court erred in releasing
the psychological records and in admitting the testimony of defendant’s former therapist,
but it concluded that the error was a state law error that was harmless under the standard
articulated in People v. Watson (1956) 46 Cal.2d 818. The Supreme Court remanded the
case to this court and directed us to consider defendant’s remaining claims.
       We now conclude that there was sufficient evidence of materially changed
circumstances, that the trial court did not commit instructional error, and that defendant
has failed to show that indeterminate commitment under the SVP Act is unconstitutional.
We accordingly will affirm the order committing defendant as an SVP.
                                STATEMENT OF THE FACTS
Defendant’s Background
       Defendant was born in 1955, and he was 53 years old at the time of the SVP trial
in 2008. At age seven he contracted spinal meningitis, which resulted in intellectual and
developmental disabilities. He thereafter attended special education classes, but he
ultimately dropped out of school.
       Between 1972 and 1974, defendant was convicted numerous times of petty theft.
In 1975, he was convicted of misdemeanor annoying or molesting a five-year-old girl.
The probation report stated that while he had an erection, defendant hugged the girl and
whispered obscenities to her.


                                              2
       In 1977, defendant was convicted of lewd and lascivious conduct with a seven-
year-old girl. In that incident, defendant was mowing the lawn at the house where the
girl lived. He asked if he could use the phone, but once inside the house he pretended to
make a call. The girl’s mother became suspicious, called her brother, and waited outside
for him, leaving the girl sitting on the couch. When the girl’s mother returned, defendant
was rubbing the girl’s buttocks and crotch area over her clothing. When asked to explain
his conduct, defendant said it “looked easy” and he did not know how to “do sex” with
women.
       Defendant was convicted of vandalism in 1981, and he was convicted of battery in
1989. In 1994, defendant was convicted of molesting a four-year-old girl. In that
incident, a woman, who was visiting defendant’s sister, put her daughter in a bedroom to
sleep, and defendant was caught in the room rubbing the girl’s vagina.
       Because of his impaired mental and intellectual development, defendant was
housed at the San Andreas Regional Center, which provides services to those with
developmental disabilities. Defendant received 24-hour care, supervision, and skills
training.
       Defendant was scheduled to be released on parole in the spring of 2004. At that
time, the Santa Clara County District Attorney filed a petition seeking to have defendant
committed as an SVP, but the jury found the allegations that he was likely to reoffend not
true. Thereafter, defendant was released on parole with conditions that barred use of
alcohol, contact with sex offenders, contact with minors, and being within 100 feet of
places where children congregate, including parks and schools. He was prohibited from
living at his mother’s house because it was too close to a school, but he was allowed to
visit her. He was required to wear a tracking device and attend an outpatient psychiatric
treatment program. Two different parole officers personally read and explained each of
the parole conditions to defendant.


                                            3
       In July 2004, defendant was arrested for missing an outpatient meeting, and he
was released in August 2004. In January 2005, defendant violated parole when he
assisted another sex offender who lived in the same motel as defendant. Both offenders
were reminded of the no-contact condition. In February 2005, defendant was arrested
when parole agents found 20 beer cans in his motel room; he was released in June 2005.
He was arrested for drinking in August 2005, and he was released in December 2005.
       In April 2006, defendant was fitted with another tracking device, and he agreed to
not have contact with anyone under the age of 18 and to report any contacts he had with
minors, whether accidental or not. In August 2006, defendant’s parole agent learned
from the tracking device that defendant had loitered in an area with a playground. The
next day, the agent called defendant at his mother’s house. When the agent heard
children’s voices in the background, he and other officers immediately went there. They
found two children, defendant’s mother, the children’s father, and defendant, who was
then arrested.2 Defendant said that he knew he was not supposed to be near the
playground, but he said he just stopped to roll some cigarettes and did not look at any of
the children. Defendant also knew he was not supposed to be at the house when children
were there and admitted that he had been drinking three times a week for a couple of
months. Defendant was arrested for violating parole.
Professional Psychological Testimony
       In January 2006, a parole agent took defendant to the Atkinson Assessment Center
for outpatient treatment and counseling as a court-ordered condition of parole. Pat Potter
McAndrews was defendant’s psychotherapist. She testified that she administered an
       2
         Defendant’s sister testified that she, her husband, and her children had moved to
her mother’s house after they were evicted. Defendant lived in a motel but visited two or
three times per week. He would collect empty cans, buy cigarettes, and drink. She never
saw him inappropriately touch her children.
        Defendant’s mother testified that defendant visited her every week after his release
on parole. She knew he was not supposed to drink or be in the house when children were
present, but he did so anyway, and she felt she could not stop him.
                                             4
assessment test (the Abel Assessment). Because of his limited intellectual abilities, she
carefully explained and rephrased some of the questions and helped record his answers.
Thereafter, defendant regularly attended his group sessions, and his participation was
good.
        McAndrews testified that during defendant’s initial interview, they discussed his
family, medical, social, and criminal history, including his sexual misconduct and his
convictions. He told her that he had been drinking alcohol regularly since he was 14
years old. She gave him an assessment test, and, in response to one of the questions,
defendant told her that between the ages of 14 and 37, he had touched 16 children
sexually. Defendant explained that he was very attracted to children, and when he was
drinking he could not really control himself and had an overwhelming desire to touch
them.
        During the treatment, McAndrews regularly asked defendant if he had been
drinking, and he said that he had not done so after his release on parole. McAndrews was
particularly concerned about this because alcohol lowers inhibitions and had played a part
in defendant’s prior sexual misconduct. Defendant never told McAndrews that he had
been drinking regularly, that his sister and her children had moved into his mother’s
house, or that he had been visiting his mother’s house. McAndrews said these facts
would have been very important to have known because they showed that defendant had
the opportunity to commit another offense. Had she known, she would have been highly
concerned because his drinking around children was a “recipe for a sex offense.”
        After defendant was arrested at his mother’s house, two state-appointed
psychologists, Jack Vognsen and Thomas MacSpeiden, evaluated him to determine
whether he posed a risk of danger. At the SVP trial, both MacSpeiden and Vognsen
testified that defendant met the statutory criteria for an SVP finding: (1) he had
previously been convicted of a sexually violent offense; and (2) he suffered from a


                                             5
diagnosed mental disorder that rendered him dangerous because of a likelihood that he
would commit similar offenses. (See § 6600, subd. (a)(1).)
       Specifically, both psychologists diagnosed defendant with pedophilia and opined
that it impaired his emotional and volitional capacity. MacSpeiden opined that defendant
also suffered from alcohol dependency and borderline intellectual functioning. Vognsen
opined that defendant suffered from alcohol abuse and mild mental retardation in addition
to his pedophilia.
       Both psychologists accepted the 2004 jury finding that defendant was not likely to
reoffend. However, they both felt that defendant’s subsequent parole violations reflected
a material change in circumstances after 2004 and demonstrated a decreasing ability to
control his behavior. MacSpeiden believed that since 2004 defendant’s alcohol misuse
had increased, and his presence in places where children were or might have been
manifested his diminished control. Vognsen explained that defendant’s parole violations
since 2004 showed “very impaired ability to control his behavior.” Vognsen noted that
defendant admitted that alcohol consumption caused him to commit offenses against
children, and “yet he began drinking and drank significantly while he was on parole.”
       Both psychologists administered a standardized risk assessment test designed to
evaluate the likelihood of reoffense (Static 99). The test results placed defendant in a
very high risk group, and both psychologists testified that in general the test
underestimated risk. The psychologists considered a number of other static and dynamic
risk factors. Both doctors found that defendant’s low intellectual functioning made it
difficult for him to learn how to control his impulses. Although defendant had engaged
in therapy sessions, the psychologists disagreed concerning whether he was amenable to
treatment and could understand how to avoid sexual misconduct. Defendant’s
pedophilia, combined with his alcohol dependence and low intellectual functioning, made
him dangerous.


                                              6
       Based on their evaluations of defendant, both psychologists concluded that he was
likely to engage in sexually violent predatory acts as a result of his pedophilia. Vognsen
was also concerned that defendant would stay with his mother if released. He noted that
when defendant was last arrested, his mother said, “I don’t see what the problem is. He
just comes here, has a few beers with us and watches the kids.” Vognsen considered it
dangerous for defendant to rely on his mother for support because “[S]he’s so protective
and, one might say, enabling of his bad habits.”
       Two psychologists, Timothy Joseph Derning and Brian Abbott, testified for the
defense.
       Derning explained that mental retardation is a disability and not an illness. He
opined that because of his disability, defendant was dependent on his family and his
routine of visiting his mother. Derning therefore believed that it would be very difficult
for defendant to alter his habits and develop alternatives to comply with his parole
conditions after his sister and her children moved in with defendant’s mother.
       Derning had previously evaluated defendant in 2004. In this case, he reviewed
defendant’s records, including police reports, probation and parole reports, the
evaluations by MacSpeiden and Vognsen, and the testing by McAndrews. Because of
defendant’s disabilities and reading difficulties, Derning did not think that defendant
could understand the test and did not believe its results were valid. Despite defendant’s
parole violations after 2004, he did not find that defendant’s ability to comply with rules
and regulations or control his behavior or sexual impulses had deteriorated. He criticized
the contrary conclusions by MacSpeiden and Vognsen for failing to adequately address
the impact of defendant’s mental retardation. He also believed that mental retardation
was a more accurate and appropriate diagnosis than pedophilia. According to Derning,
that defendant had on occasion explored sex with little girls could be attributed to the
impulsivity associated with his retardation and did not necessarily mean that he was a


                                             7
pedophile or had a sexual preference for children. Derning admitted, however, that
defendant’s mental retardation was not the cause of defendant’s sex crimes.
       Abbott also evaluated defendant in 2004 and reviewed defendant’s previous and
subsequent history and records. He testified that although defendant suffered from
mental retardation and alcohol dependence, defendant did not currently suffer from
pedophilia, and he faulted the contrary view because it was based on old behavior and
failed to consider mental retardation as a possible explanation for defendant’s prior
sexual behavior. Abbot characterized defendant’s inappropriate behavior with girls as
isolated incidents of sexual experimentation attributable to poor impulse control and bad
judgment, both of which are manifestations of his retardation. Apart from these
incidents, Abbott believed that defendant appeared to have adequate control over his
sexual impulses and feelings. Since his release on parole, defendant had properly
registered as a sex offender, attended counseling and individual therapy, complied with
room searches, and worn his tracking device. Thus, except for resuming his lifelong
habit of drinking beer, defendant had demonstrated his ability to comply with rules and
regulations. Consequently, Abbot did not believe that there had been a material change
in defendant’s circumstances after his release on parole.
       Given defendant’s limited verbal skills and retardation, Abbot questioned the
validity and reliability of the Abel Assessment, which was not designed to assess those
with mental disabilities. He also opined that the Static 99 had inherent design flaws, and
he believed the risk of reoffending posed by defendant to be much lower than
MacSpeiden or Vognsen had found.
Defendant’s Testimony
       Defendant recalled that his parole agent had explained the conditions of parole,
and he knew that he was not supposed to drink or be near children. He admitted drinking
beer. He recalled molesting the girl in 1994 and explained that he had been drunk. He
said he had similarly molested two other girls. He knew that doing so was wrong. He
                                             8
testified that if he were released on parole, he would register with the police department,
see his parole officer, and then see his mother.
                                        DISCUSSION
I. Sufficiency of the Evidence
       Defendant contends that we must reverse the commitment order because there was
insufficient evidence of materially changed circumstances since the 2004 determination
that defendant was not an SVP. In support of this argument, defendant cites Turner v.
Superior Court (2003) 105 Cal.App.4th 1046 (Turner). As set forth below, defendant’s
argument is unpersuasive.3
       To commit defendant as an SVP, “the jury had to find that [defendant] was
convicted of a violent sexual offense, he suffered from a mental disorder affecting his
volitional or emotional capacity, and the disorder rendered him a danger to others
because he was likely to engage in sexually violent criminal behavior.” (People v.
Poulsom (2013) 213 Cal.App.4th 501, 517-518.) Moreover, because the jury at
defendant’s 2004 SVP trial did not make those findings and he was released on parole,
the jury in the instant case also had to find that circumstances had materially changed
since the 2004 trial and made defendant likely to reoffend if released from custody. 4 (Id.
at p. 518; Turner, supra,105 Cal.App.4th at p. 1060.)
       “We review sufficiency of the evidence challenges under the SVP Act according
to the same standard pertinent to criminal convictions.” (People v. Fulcher (2006) 136

       3
         The Supreme Court agreed with our previous conclusion that the trial court erred
in permitting McAndrews to testify to the details of defendant’s therapy sessions. We
therefore will not rely on McAndrews’s testimony in evaluating the sufficiency of the
evidence.
       4
          To this end, the jurors were instructed that in 2004 defendant was found not
likely to commit a sexually violent crime, and that they had to accept that finding. They
were further advised that they could not find that defendant was likely to reoffend unless
the prosecution proved beyond a reasonable doubt that there were materially changed
circumstances since 2004 that rendered defendant likely to reoffend.
                                             9
Cal.App.4th 41, 52.) Under that standard, we “must review the whole record in the light
most favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
(People v. Johnson (1980) 26 Cal.3d 557, 578.) “In making this determination, we do not
reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of
witnesses.” (People v. Cortes (1999) 71 Cal.App.4th 62, 71.)
       Here, both MacSpeiden and Vognsen testified that they accepted the 2004 jury
determination that defendant was not likely to reoffend. However, both testified that
circumstances had materially changed since then. MacSpeiden and Vognsen both opined
that defendant’s post-2004 parole violations, which involved alcohol consumption and
presence near children, demonstrated defendant’s decreased ability to control his
behavior and his increased likelihood for reoffense. Vognsen expressed a specific
concern that defendant admitted that alcohol consumption caused him to molest children,
and “yet he began drinking and drank significantly while he was on parole.” MacSpeiden
specifically testified that defendant’s post-2004 alcohol consumption and contact with
children—actions which defendant undertook in violation of his express parole
conditions and under threat of incarceration—were “two manifestations of . . . diminished
volitional control.” The expert testimony of MacSpeiden and Vognsen thus constituted
substantial evidence of materially changed circumstances. (See Evid.Code, § 411;
People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508 [the testimony of one witness
may be sufficient to prove any fact].) Although defendant presented two experts who
disagreed with virtually all of MacSpeiden’s and Vognsen’s conclusions, “[t]he
credibility of the experts and their conclusions were matters resolved against defendant
by the jury,” and “[w]e are not free to reweigh or reinterpret the evidence.” (People v.
Mercer (1999) 70 Cal.App.4th 463, 466-467.) Accordingly, we conclude that sufficient


                                             10
evidence supported the jury’s determination that circumstances had materially changed
since 2004 and made defendant likely to reoffend.
       Defendant’s reliance on Turner, supra, 105 Cal.App.4th 1046 is misplaced.
Turner held that there was insufficient evidence of changed circumstances to support a
probable cause determination under the SVP Act. (Id. at pp. 1061-1063.) Specifically,
Turner concluded that expert opinion that the defendant was likely to reoffend—opinion
that was based on circumstances present at the time of a prior determination that the
defendant was not an SVP—was insufficient to establish changed circumstances. (Id. at
p. 1062.) Turner reasoned: “[W]here an individual has been found not to be an SVP and
a petition is properly filed after that finding, the professional cannot rely solely on
historical information. The professional must explain what has occurred in the interim to
justify the conclusion the individual currently qualifies as an SVP.” (Id. at p. 1060.)
       Defendant’s case is distinguishable from Turner. Both MacSpeiden and Vognsen
specifically testified that their conclusions regarding changed circumstances and
likelihood for reoffense were based on the parole violations defendant committed after
the 2004 SVP trial. Thus, unlike Turner, the expert testimony was not based solely on
historical facts that were present at the previous SVP trial. Turner therefore does not
require us to find insufficient evidence of materially changed circumstances.
II. Instruction Regarding Mental Retardation
       Defendant contends that mental retardation is not a diagnosed mental disorder
within the meaning of the SVP Act, and that the trial court therefore committed reversible
error in refusing to give a pinpoint instruction specifying that defendant’s mental
retardation was not a diagnosed mental disorder. As explained below, defendant’s
argument is unavailing because the evidence did not support his requested pinpoint
instruction.




                                              11
       A. Background
       The trial court instructed the jury on four necessary elements for an SVP finding:
“The petition alleges that [defendant] is a sexually violent predator. [¶] To prove this
allegation, the People must prove beyond a reasonable doubt that: [¶] 1) He has been
convicted of committing at least one sexually violent offense against one or more
victims; [¶] 2) He has a diagnosed mental disorder; [¶] 3) As a result of that diagnosed
mental disorder, he will be a danger to the health and safety of others because it is likely
he will engage in sexually violent predatory criminal behavior; AND [¶] 4) It is necessary
to keep him in custody in a secure facility to ensure the health and safety of others.”
       The instructions defined the term “diagnosed mental disorder,” as follows: “The
term diagnosed mental disorder includes congenital or acquired conditions affecting a
person’s emotional or volitional capacity and predisposing that person to commit
criminal sexual acts to an extent that makes him a menace to the health and safety of
others.”
       Defendant requested that the court give the following pinpoint instruction: “You
are hereby instructed that you may not use mental retardation as the required diagnosed
mental disorder for purposes of satisfying criteria 2 in the definition of sexually violent
predator.” The court refused to give the instruction, noting that the prosecutor would not
argue that defendant’s mental retardation constituted the requisite diagnosed mental
disorder.
       During his closing argument, the prosecutor argued: “The diagnosed mental
disorder. The definition in the law that you will be given is that the diagnosed mental
disorder has to be . . . the congenital or acquired condition, either born with it or you get
it, affects his emotional or volitional capacity, essentially his willpower, his ability to
control what he is doing, in such a way predisposes him to commit sexually criminal acts.
No one is suggesting that mild mental retardation does that. To do that would be to say
that all mildly mentally retarded people are sexually dangerous. . . . [¶] This man has
                                              12
this affliction. It’s sad. It’s broken. I wish it wasn’t true, but it is. And the affliction is
pedophilia.”
       Defense counsel’s closing argument emphasized that pedophilia was the
diagnosed mental disorder that the People had to prove. Specifically, defense counsel
argued, “[T]he question is, does [defendant] qualify for a current diagnosis of
pedophilia.” Defense counsel thereafter argued that the evidence did not support a
diagnosis of pedophilia.
       B. The Pinpoint Instruction was Not Required
       “[L]egally correct and factually warranted pinpoint instructions designed to
elaborate and clarify other instructions should be delivered upon request.” (People v.
Hughes (2002) 27 Cal.4th 825A, 362 (Hughes), italics omitted.) A trial court errs when it
refuses to give such an instruction. (See ibid.)
       “[A] claim that a court failed to properly instruct on the applicable principles of
law is reviewed de novo.” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) We
therefore review defendant’s claim de novo.
       We conclude that defendant’s requested pinpoint instruction was not factually
warranted. None of the evidence suggested that defendant’s mental retardation was a
diagnosed mental disorder that predisposed him to commit sex crimes. Rather, all four
psychologists testified that defendant’s mental retardation, by itself, was insufficient to
constitute the diagnosed mental disorder required by the SVP Act. Vognsen specifically
testified that mental retardation is “not . . . a mental condition which causes a person to
commit a sexually violent predatory offense.” MacSpeiden opined that if defendant
suffered only from a low IQ, he would not present a danger of committing sexual
offenses. Derning explained that defendant’s mental retardation was not the cause of his
sex crimes. Abbot noted that the second criteria under the SVP Act is a diagnosed mental
disorder, and he emphasized that defendant’s mental retardation was not such a
diagnosed mental disorder. Thus, the evidence in no way suggested that defendant’s
                                               13
mental retardation was a diagnosed mental disorder within the meaning of the SVP Act.
(See § 6600, subd. (c) [the diagnosed mental disorder required by the SVP Act is one that
“predisposes the person to the commission of criminal sexual acts”].) We accordingly
must conclude that the trial court did not err in refusing to give defendant’s requested
pinpoint instruction. (See Hughes, supra, 27 Cal.4th at p. 362 [only pinpoint instructions
that are factually warranted need to be given].)
       Moreover, even if we were to find error, it is not reasonably probable that the jury
would have come to any different conclusion if it had been given defendant’s pinpoint
instruction. (People v. Earp (1999) 20 Cal.4th 826, 887 [finding no prejudice in the trial
court’s failure to give the defendant’s pinpoint instruction where “it is not reasonably
probable that had the jury been given defendant’s proposed pinpoint instruction, it would
have come to any different conclusion in this case”].) During closing argument, the
prosecutor emphasized that defendant’s mental retardation was not a diagnosed mental
disorder within the meaning of the SVP Act. The prosecutor instead argued that
defendant’s pedophilia was a diagnosed mental disorder for purposes of the SVP Act, and
defense counsel’s closing argument confirmed that pedophilia was the diagnosed mental
disorder that the People had to prove. Thus, because the attorneys’ arguments
unequivocally conveyed the principle articulated in defendant’s pinpoint instruction, it is
unlikely that defendant would have achieved a different result had the pinpoint
instruction been given. (See Hughes, supra, 27 Cal.4th at p. 363 [finding no prejudice in
the trial court’s failure to give the defendant’s pinpoint instruction, in part, because
defense counsel’s closing argument articulated the substance of the omitted instruction].)
Indeed, given the dearth of evidence suggesting that defendant’s mental retardation was a
diagnosed mental disorder within the meaning of the SVP Act, it is highly improbable
that the jury would have reached a different conclusion if the pinpoint instruction had
been given. (See generally People v. Fudge (1994) 7 Cal.4th 1075, 1112 [considering the
strength of the evidence in determining that the defendant was not prejudiced by the trial
                                              14
court’s failure to give a pinpoint instruction].) We therefore must conclude that the trial
court’s refusal to give the pinpoint instruction is not grounds for reversal.
III. Constitutional Challenges to the SVP Act
       The SVP Act mandates indefinite commitment for an individual found to be an
SVP: “If the court or jury determines that the person is a sexually violent predator, the
person shall be committed for an indeterminate term to the custody of the State
Department of State Hospitals for appropriate treatment and confinement in a secure
facility designated by the Director of State Hospitals.” (§ 6604.) Defendant contends
that indeterminate commitment under the SVP Act violates several constitutional
guarantees, namely due process, ex post facto, double jeopardy, equal protection, and the
First Amendment right to petition for redress of grievances. As set forth below,
defendant’s claims are unpersuasive.
       A. Due Process and Ex Post Facto
       After defendant submitted his opening brief in this court, our Supreme Court
issued its opinion in People v. McKee (2010) 47 Cal.4th 1172 (McKee), which held that
indeterminate commitment under the SVP Act does not violate due process or ex post
facto principles. (Id. at pp. 1191-1195.) Defendant’s due process and ex post facto
arguments are equivalent to those presented by the defendant in McKee, and defendant’s
supplemental brief does not raise any new due process or ex post facto arguments that
were not considered in McKee. We are bound by the Supreme Court’s determination that
indeterminate commitment under the SVP Act does not violate due process or ex post
facto principles. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d. 450, 455.)
We accordingly conclude that defendant’s due process and ex post facto claims are
without merit.
       B. Double Jeopardy
       The double jeopardy clause of the Fifth Amendment provides that no person shall
“be subject for the same offence to be twice put in jeopardy of life or limb.” (U.S.
                                             15
Const., 5th Amend.) The clause “protects . . . against the imposition of multiple criminal
punishments for the same offense.” (Hudson v. U.S. (1997) 522 U.S. 93, 99, italics
omitted.) Defendant contends that his indeterminate commitment constitutes a second
punishment for his crime, that the SVP Act’s indeterminate commitment provision is thus
punitive in nature, and that we are accordingly required to conclude that the SVP Act’s
indeterminate commitment provision violates the double jeopardy clause.
       McKee did not consider whether indeterminate commitment violates the double
jeopardy clause. However, in rejecting the ex post facto claim, McKee concluded that the
indeterminate commitment provision of the SVP Act is not punitive. (McKee, supra, 47
Cal.4th at pp. 1194-1195.) McKee’s conclusion that indeterminate commitment under the
SVP Act is not punitive renders defendant’s double jeopardy claim meritless. (See
People v. McDonald (2013) 214 Cal.App.4th 1367, 1383 [citing McKee’s conclusion that
indeterminate commitment is not punitive and holding that indeterminate commitment
under the SVP Act does not violate the double jeopardy clause].)
       C. Equal Protection
       In McKee, the defendant argued that indeterminate commitment under the SVP
Act violates equal protection because other civilly committed individuals, such as
mentally disordered offenders (MDO’s) and those found not guilty by reason of insanity
(NGI’s), are subject to commitment for determinate periods with greater procedural
protections. (McKee, supra, 47 Cal.4th at pp. 1196, 1200-1202, 1207.) McKee held that
SVP’s are similarly situated to MDO’s and NGI’s for equal protection purposes, but it
concluded that the record was insufficient to determine whether a justification exists for
treating SVP’s differently from MDO’s and NGI’s. (Id. at pp. 1203-1207.) McKee
therefore remanded the case to the San Diego Superior Court with directions to hold an
evidentiary hearing and determine whether the disparate treatment of SVP’s is justified.
(Id. at pp. 1208-1209.) The superior court conducted an evidentiary hearing and ruled
that the People had demonstrated a constitutionally sufficient justification for treating
                                             16
SVP’s differently from MDO’s and NGI’s. (People v. McKee (2012) 207 Cal.App.4th
1325, 1331 (McKee II).) The superior court’s order was affirmed by the Fourth Appellate
District in McKee II, supra, 207 Cal.App.4th 1325, 1350. The Supreme Court denied
review of McKee II.
       Defendant contends that the Fourth Appellate District improperly evaluated the
evidence and erroneously concluded that indeterminate commitment under the SVP Act
does not violate equal protection. He therefore urges us to reevaluate the evidence
presented in the San Diego Superior Court, reject the McKee II holding, and conclude
that indeterminate commitment under the SVP Act does in fact violate equal protection.
As explained below, we decline defendant’s invitation to reject McKee II.
       Ordinarily the opinion of one Court of Appeal is not binding on another Court of
Appeal. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 498, p. 558.) “However,
there is a tendency for a Court of Appeal to follow decisions from . . . other districts or
divisions.” (9 Witkin, supra, Appeal, § 498, p. 560.) “Normally, a Court of Appeal will
follow prior decisions of . . . other districts or divisions.” (9 Witkin, supra, Appeal,
§ 499, p. 560) Given the peculiar nature of defendant’s claim—he asks us to reevaluate
evidence presented in a superior court over which we do not have jurisdiction—we are
inclined to adhere to the general tendency and follow the Fourth Appellate District’s
holding in McKee II. Indeed, we are aware of no procedural principle, and defendant
provides none, that permits us to evaluate the evidence presented in the San Diego
Superior Court and reach a contrary conclusion to that of the Fourth Appellate District.
       The Supreme Court’s denial of review in McKee II supports our inclination to
follow the McKee II holding. We construe the Supreme Court’s denial of review as an
endorsement of McKee II. The Supreme Court itself has stated that when it denies a
petition for review, that ruling is not “without significance.” (Di Genova v. State Board
of Education (1962) 57 Cal.2d 167, 178.) We therefore believe that the Supreme Court


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has impliedly directed us to abide by the Fourth Appellate District’s decision in McKee
II, and we decline defendant’s invitation to depart from the holding in McKee II.
          D. First Amendment
          Sections 6605 and 6608 describe the procedures by which an SVP may petition
the court for release. Under section 6605, an SVP may petition the court for release only
if the Department of State Hospitals (DSH) determines that he no longer meets the
criteria for SVP commitment. (§ 6605, subd. (b).) Under section 6608, an SVP may
petition the court for release without the concurrence of the DSH. (§ 6608, subd. (a).)
Defendant points out several limitations that are placed on section 6608 petitions: the
court may deny a frivolous petition without a hearing, the SVP bears the burden of
proving suitability for release by a preponderance of the evidence, and section 6608 has
no express provision for appointment of a medical expert for the SVP. (§ 6608,
subds. (a) & (i).) Defendant asserts that the “combined effect” of sections 6605 and 6608
is to subject SVP’s to indeterminate commitment without “meaningful access” to the
courts.
          The First Amendment guarantees the right “to petition the Government for a
redress of grievances.” (U.S. Const., 1st Amend.) This constitutional guarantee obligates
the government to “assure all prisoners meaningful access to the courts.” (Bounds v.
Smith (1977) 430 U.S. 817, 824.)
          Defendant has failed to show that the SVP Act unconstitutionally restricts his right
to meaningful access to the courts. Meaningful access to the courts does not include the
right to present frivolous claims. (See Lewis v. Casey (1996) 518 U.S. 343, 353, fn. 3
[“[d]epriving someone of a frivolous claim . . . deprives him of nothing at all”].)
Although section 6608 does not expressly provide for the appointment of a medical
expert for an SVP, our Supreme Court has concluded that “such appointment may be
reasonably inferred” from the language of the SVP Act. (McKee, supra, 47 Cal.4th at
p. 1192.) Defendant provides no authority that suggests that placing the burden of proof
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on the SVP violates the SVP’s right to meaningful access to the courts. Defendant
therefore has not established that the SVP Act conflicts with the First Amendment.
      Moreover, defendant’s argument ignores the fact that SVP’s are entitled to petition
for habeas relief. Section 7250 provides that any person committed to the DSH “is
entitled to a writ of habeas corpus, upon a proper application.” Defendant points to
nothing in the SVP Act that proscribes an SVP’s ability to seek habeas relief under
section 7250.
      Thus, we are compelled to conclude that the SVP Act does not deny SVP’s
meaningful access to the courts. We accordingly conclude that indeterminate
commitment under the SVP Act does not conflict with the First Amendment.
                                      DISPOSITION
      The order of commitment is affirmed.




                                         ______________________________________
                                                    RUSHING, P.J.


WE CONCUR:


____________________________________
           PREMO, J.


____________________________________
           ELIA, J.




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