Filed 6/24/13 P. v. Rose CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


THE PEOPLE,                                                                                  C067448

                   Plaintiff and Respondent,                                     (Super. Ct. No. 96F09863)

         v.

WARREN DAVID ROSE, JR.,

                   Defendant and Appellant.



         In the underlying civil commitment proceedings, the trial court allowed the
prosecution to relitigate the finding that Warren David Rose, Jr., was not a sexually
violent predator (SVP) at the time of his prior release and failed to instruct the jury it
must find changed circumstances to establish that he currently suffers from a diagnosed
mental disorder that makes him dangerous and likely to engage in sexually violent
predatory criminal behavior upon release. (Welf. & Inst. Code, § 6602; People v.
Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902.) The court disallowed evidence of
a 1999 court finding that he was not an SVP and a 2001 jury finding that he was, based
on an Evidence Code section 352 determination that the jury would be confused, misled,
or distracted.


                                                             1
       Fundamental principles of res judicata and collateral estoppel are not at the mercy
of Evidence Code section 352. By excluding the evidence and failing to instruct the jury
on the prosecution‟s burden of proof, the court relegated the collateral estoppel principles
embodied in Turner v. Superior Court (2003) 105 Cal.App.4th 1046 (Turner) and
People v. Munoz (2005) 129 Cal.App.4th 421 (Munoz) to the vagaries of a section 352
balancing act, an error that was not harmless beyond a reasonable doubt. We reject,
however, defendant‟s challenge to the constitutionality of the 2006 amendments to the
Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.)1 We reverse
the judgment of commitment and remand the matter to the trial court. Rose is entitled to
a jury trial in accordance with the views expressed herein.
                                          FACTS
       We extract the relevant facts from 1982 through 2003 from an earlier opinion.
(People v. Rose (Feb. 28, 2003, C039548) [nonpub. opn.] (Rose I).)
       “In 1982, defendant was 27 years old and serving in the United States Navy in
Guam when he committed violent sexual offenses against three eight-year-old girls. He
was court martialed for these offenses and sentenced to approximately seven years in
federal prison. He was paroled from federal custody in 1990.
       “Defendant violated the terms of his parole by contacting, hitting, and twice raping
his ex-girlfriend who had told him she was no longer interested in being involved with
him. He was returned to federal prison for five years and released in 1996.
       “Less than a year after defendant‟s release from prison, he reoffended by
committing a lewd act on a seven-year-old girl whom he was babysitting. He was
charged and convicted of violating Penal Code section 288, subdivision (a) and sentenced
to three year[s‟] imprisonment.



1 All further statutory references are to the Welfare and Institutions Code unless
otherwise designated.

                                             2
       “On June 8, 1999, prior to his completion of his three-year sentence, the
prosecution filed a petition to have him committed as an SVP, and attached two
psychological evaluations prepared by clinical psychologists Drs. Craig Updegrove and
Dana E. Putnam. After a court trial, the petition was found not true.
       “Defendant completed his term of imprisonment and was released from prison in
2000. He then promptly violated the terms of his parole by failing to keep a log of his
behavior and whereabouts, providing false information to his parole officer, and having
contact with minors. On July 26, 2000, the prosecution filed a second SVP petition,
attaching three psychological evaluations, the first evaluation prepared by Dr. Putnam
and two new evaluations also prepared by Drs. Putnam and Updegrove.
       “Drs. Putnam and Updegrove testified at defendant‟s jury trial and gave similar
diagnoses. They both opined that defendant was predatory within the meaning of the
SVPA and that he suffered from a diagnosed mental disorder of pedophilia as defined by
the American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 2000) (DSM-IV-TR) [fn. omitted] and section 6600. Dr. Updegrove
testified that defendant‟s disorder affects his emotional and volitional capacity and his
impulse control and predisposes him to commit criminal sexual acts, so that he is not able
to control himself from acting on his urges. Both doctors concluded defendant was likely
to commit sexually violent predatory acts in the future and that he fit the criteria of an
SVP. Dr. Putnam defined „likely‟ as greater than 50 percent. Both doctors estimated that
defendant‟s likelihood of reconviction was 33 percent at five years, 38 percent at
10 years, and 52 percent at 15 years.
       “The jury found defendant to be a sexually violent predator and the trial court
committed him to the custody of the [Department of Mental Health] for a period of two
years. (§§ 6604, 6604.1, subd. (a).)”
       Defendant‟s commitment expired on October 10, 2003. The record is quite
splotchy about the petitions filed and the continuances granted between 2003 and the jury

                                              3
trial in January 2011. An amended petition for an indeterminate extension of the
commitment of a sexually violent offender was filed in April 2007. Suffice it to say that
in 2010 defendant moved to dismiss the petition, arguing, “The prejudice to the
respondent here is plain; respondent has been incarcerated, based on this petition alone
for over seven years without going to trial after the expiration of his prior commitment.”
There were no new allegations of sexual misconduct or predatory behavior.
       Trial commenced in 2011. Relying on Turner, supra, 105 Cal.App.4th 1046,
defendant brought a motion in limine to introduce evidence that in 1999 the court found
he was not an SVP. The trial court, acknowledging that pursuant to Munoz, supra,
129 Cal.App.4th 421 evidence that a jury found he was an SVP in 2001 was not
admissible, concluded it would mislead the jury to admit the not-true finding without
apprising the jury of the subsequent true finding. The court balanced the probative value
of the not-true finding against the potential prejudice and, pursuant to Evidence Code
section 352, excluded the evidence of both findings.
       The prosecution‟s case was built on the facts we described in the appeal of the
2001 jury finding. Based on those facts, Dr. Jesus Padilla opined that defendant
remained an SVP likely to reoffend. A defense expert disputed the diagnosis and
prognosis for future dangerousness. Defendant testified that he did not participate in the
treatment program in which approximately 150 to 175 of the 1,000 patients at Coalinga
State Hospital participate because the doctors favored castration and masturbation
therapy; very few, if any, participants were ever released; and patient disclosures were
used against them in court. Employees at the hospital testified that defendant was a
model patient. He took advantage of educational programs, maintained friendships,
never used drugs or contraband, and avoided trouble.
       The jury found defendant was an SVP within the meaning of section 6600,
subdivision (a). The court committed defendant to the Department of Mental Health for
an indeterminate term. Defendant appeals.

                                             4
                                       DISCUSSION
                                               I
       An SVP is “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.” (§ 6600, subd. (a)(1).) If certain preliminary
requirements are met (§ 6601), a petition for commitment can be filed, and if a court
finds that there is “probable cause” to believe the named defendant is likely to engage in
sexually violent predatory criminal behavior upon release (§ 6602, subd. (a)), a trial is
conducted “to determine whether the person is, by reason of a diagnosed mental disorder,
a danger to the health and safety of others in that the person is likely to engage in acts of
sexual violence upon his or her release . . .” (ibid). The alleged SVP is entitled to a jury
trial, a unanimous verdict, the assistance of counsel, the right to retain experts to perform
further evaluations, and access to all relevant medical and psychological reports.
(§ 6603, subds. (a), (f).) If a jury finds the allegation true, the SVP is committed to the
Department of Mental Health for an indeterminate term of commitment from which the
individual can be released if he proves by a preponderance of the evidence that he no
longer is an SVP. (§ 6604; People v. McKee (2010) 47 Cal.4th 1172, 1186-1187
(McKee I).)
       Given the fluid and changing nature of mental health, the focus of any extension
or recommitment hearing is whether the individual has, at that moment in time, a
diagnosed mental disorder and whether he or she is currently dangerous. (Hubbart v.
Superior Court (1999) 19 Cal.4th 1138, 1162 (Hubbart).) But since many of these
individuals are subjected to multiple hearings and multiple findings, the question arose as
to whether any of the preceding findings collaterally estopped relitigation of the same
issues in subsequent proceedings. In two landmark cases from the Fourth Appellate
District, Division One, the court examined the nuances of applying well-established

                                               5
principles of collateral estoppel in civil commitment proceedings. We examine those
cases as a prelude to resolution of the issue now before us.
       Defendant relies, as he did in the trial court, upon the notable case of Turner,
supra, 105 Cal.App.4th 1046. Turner served 14 years of a combined 25-year sentence,
was found to be an SVP, and was committed to Atascadero State Hospital for treatment
for two years. The prosecution sought to recommit him for another two years, but a jury
found he was not a danger to the health and safety of others and was not likely to engage
in acts of sexual violence upon his release. (Id. at pp. 1051-1052.) He was released from
custody. (Ibid.)
       A mere three months later, Turner was rearrested for a curfew violation. His
parole was revoked and he was returned to custody for six months. While still in
custody, the prosecution filed a petition seeking again to commit Turner under the SVPA
for another two-year term. (Turner, supra, 105 Cal.App.4th at p. 1052.) “At the
February 2002 probable cause hearing, the district attorney submitted evidence of
Turner‟s 1984 and 1985 qualifying convictions, and reports authored by the two forensic
psychologists who had supported the 1998 SVPA petition, Dr. Zinik and Dr. Malinek.
These psychologists stated that Turner has a current mental disorder of paraphilia and
sexual sadism, and opined that Turner is likely to engage in future sexually violent
predatory behavior. Although both Dr. Zinik and Dr. Malinek prepared these reports in
connection with the February 2002 probable cause hearing, and referenced events that
took place after Turner was placed on parole (i.e., the curfew violation), they reached
these conclusions primarily based on facts that had been before the jury in the prior trial
when the jury found Turner was not a sexually violent predator.” (Id. at pp. 1052-1053.)
       Turner argued that the finding that he was not an SVP barred the district attorney
from filing a new petition at least until he was convicted and sentenced for the
commission of a new crime. (Turner, supra, 105 Cal.App.4th at p. 1056.) The district
attorney took the opposite position, that the not-true finding should have no effect

                                             6
whatsoever once Turner was released and subsequently returned to custody. Applying
basic principles of collateral estoppel, the Court of Appeal rejected both extreme
positions. (Id. at pp. 1057-1058.)
       We begin with a refresher on collateral estoppel. Collateral estoppel gives
conclusive effect to an issue decided in a prior proceeding if “ „(1) the issue necessarily
decided at the previous proceeding is identical to the one which is sought to be
relitigated; and (2) the previous proceeding resulted in a final judgment on the merits; and
(3) the party against whom collateral estoppel is asserted was a party or in privity with a
party at the prior proceeding.‟ ” (People v. Davis (1995) 10 Cal.4th 463, 514-515, fn. 10,
quoting People v. Meredith (1992) 11 Cal.App.4th 1548, 1556; see Lucido v. Superior
Court (1990) 51 Cal.3d 335, 341.)
       In Turner, the court concluded that collateral estoppel principles apply in SVPA
proceedings. The court reasoned, “If these principles did not apply, the integrity of the
first proceeding could be undermined and there would be serious questions about the
fundamental fairness of a scheme that would permit the government to file successive
petitions against an individual in the same forum and on the same facts in a proceeding
that could potentially result in a complete loss of liberty for that individual.” (Turner,
supra, 105 Cal.App.4th at p. 1057.) Although the court held that the district attorney was
not forever barred from filing a later petition to show current dangerousness at a later
time, the prior finding had “strong probative value as to the precise issue to be decided in
the current proceeding.” (Id. at p. 1059.) “Accordingly, to establish probable cause in
the subsequent proceeding, the district attorney must present evidence of a change of
circumstances, i.e., that despite the fact the individual did not possess the requisite
dangerousness in the earlier proceeding, the circumstances have materially changed so
that he now possesses that characteristic.” (Id. at p. 1060.)
       The court examined the sufficiency of the evidence of changed circumstances
following the prior jury determination that Turner was not an SVP. The court

                                              7
acknowledged that two psychologists referred to Turner‟s curfew violation but failed to
state in their reports whether or how the violation affected the determination that Turner
was currently dangerous and likely to reoffend. (Turner, supra, 105 Cal.App.4th at
p. 1062.) The court concluded the prosecution did not meet its burden to show that, in
light of the prior jury verdict, “there is a serious and well-founded risk that Turner will
engage in sexually violent criminal conduct upon his release.” (Id. at p. 1061.) The
psychologists appeared oblivious to the finding or, at a minimum, to the significance of
the finding that Turner was not an SVP. The court explained, “At the very least, the
prosecution‟s supporting reports must contain information showing the evaluating
professionals understood and accepted, for purposes of the current diagnosis, the prior
jury finding as true, and then explain why despite that prior finding, the facts are
sufficiently different so that the individual is now a dangerous person who is likely to
reoffend within the meaning of the SVPA.” (Id. at p. 1062.)
       Two years later the same court faced the opposite question. The district attorney
filed a petition seeking the continued involuntary treatment of Munoz as an SVP, relying
in part on evidence of his two prior commitments. (Munoz, supra, 129 Cal.App.4th at
p. 424.) Munoz objected to evidence and argument about his prior SVP commitments
based on the constitutional requirement that any SVP commitment must be based on a
currently diagnosed mental disorder that makes it likely the person will engage in
sexually violent criminal behavior. “The logical and constitutional necessity for an
independent finding of a current mental disorder rendering the defendant dangerous
arises not simply from the serious consequences that result from the finding but from the
variability of such disorders and their effect on predictions of behavior. While it is
certainly the case that the fact of a prior SVP commitment has some relevance in
determining whether a defendant has a currently diagnosed mental disorder, that
relevance is limited and great care must be taken in admitting evidence concerning the
prior commitment.” (Id. at p. 430.)

                                              8
       The court acknowledged that a past finding is relevant but it “has no res judicata
effect with regard to the issues of the defendant‟s mental condition or dangerousness
since, as noted above, it dealt with a different issue, i.e., whether the defendant then had a
currently diagnosed mental disorder rendering him dangerous.” (Munoz, supra,
129 Cal.App.4th at p. 431.) The court distinguished Turner, pointing out that it was
based on important due process considerations. “[U]nder some circumstances the fact of
a prior finding in an SVP proceeding favorable to a defendant was admissible, and indeed
affected the proof required to prove a defendant an SVP, in a later proceeding.” (Ibid.)
The court in Munoz, citing Turner, restated the basic principle that to establish probable
cause to support an SVP commitment, the prosecution had to establish a material change
of circumstances since the earlier proceeding such that the defendant was now dangerous.
(Id. at p. 432.) Nevertheless, the court stated: “This holding in Turner does not suggest
the converse, i.e., that prior factual findings in an SVP hearing unfavorable to the
defendant are admissible in a later SVP hearing. . . . The Turner opinion does not hold
that the mental condition finding was admissible in a subsequent SVP proceeding to
prove appellant still suffered from that condition.” (Ibid.)
       The court appreciated the danger of increasing the defendant‟s burden of proof.
Thus, the court stated that nothing can be done to even suggest that the defendant must
prove he was no longer an SVP or to effectively lessen the prosecution‟s burden of
proving he had a mental defect and was currently dangerous. (Munoz, supra,
129 Cal.App.4th at p. 432.) The court reversed the order committing Munoz as a
sexually violent predator because the evidence and argument “suggested that the issue
was whether anything had changed since [his] prior SVP commitment.” (Ibid.)
       The facts before us present a hybrid of Turner and Munoz. In 1999 the jury found
Rose was not an SVP. His next hearing to extend his commitment was held in 2001,
before either Turner or Munoz was decided. Evidence of the not-true finding in 1999 was
not admitted in the 2001 proceeding, and the jury was not instructed that it should

                                              9
consider whether there had been a change of circumstances since the not-true finding. In
2001 the jury found Rose was an SVP.
       On appeal from the order of commitment, Rose argued that the 2001 petition to
commit him to the Department of Mental Health as an SVP was barred under res judicata
and collateral estoppel because the issue whether he was an SVP was determined in a
trial nine months earlier on a prior petition. In an argument now reminiscent of Turner‟ s
argument, he contended the second petition was barred. We disagreed. We explained,
“While the legal criteria under the statute will necessarily be the same in any proceeding
under the SVPA, the ultimate factual issue to be determined under the two petitions is
different because each one looks to defendant‟s current mental condition and
dangerousness at the time he is nearing his release from prison. That condition may
change with the passage of time as will the evidence necessary to prove the changed
condition.” (Rose I, supra, C039548.)
       Our conclusion that the second petition was not barred by the related doctrines of
res judicata and collateral estoppel is consistent with Turner as far as it goes. In Turner,
the court also rejected the defendant‟s position that one not-true finding bars any
subsequent petitions. But the critical holding in Turner was whether the issues actually
litigated and decided by a jury in one proceeding could be relitigated in the next.
Because Turner had not yet been decided when Rose‟s 2001 order of commitment was
entered and appealed, the issue before us now was neither raised nor determined.
       The trial court believed that the only res judicata/collateral estoppel issues had
been resolved in our prior opinion. Applying Munoz, the court excluded evidence of the
jury‟s 2001 true finding. Rose argued that the 1999 not-true finding was relevant and
admissible under Turner. The court held, pursuant to Evidence Code section 352, that
the not-true finding also would be excluded. The court explained that it would be unfair
and misleading to allow the not-true finding into evidence without also admitting the



                                             10
subsequent true finding. The court erred by utilizing section 352 to dismiss the important
and genuine concerns protected by the doctrine of collateral estoppel.
       It is true that traditional notions of collateral estoppel are difficult to apply in SVP
commitment proceedings. Both Turner and Munoz recognized that historical information
is crucial to an expert‟s evaluation of a defendant‟s mental health and that often a jury
will learn that a defendant has been hospitalized. Moreover, a defendant‟s mental health
can, and often does, change. Given that a jury is charged with assessing a defendant‟s
current mental condition to predict the risk of his current dangerousness, collateral
estoppel seems unlikely to bar evidence pertinent to the jury‟s essential task.
       But Turner makes clear that facts involving any mental defect and dangerousness
existing at the time of a prior proceeding finding him not to be an SVP cannot be
relitigated. A defendant may become dangerous after a not-true finding due to a change
in his mental health or other factors, but a jury cannot simply reach a different conclusion
based on the same evidence presented to an earlier jury. Turner‟s holding is thus
consistent with time-honored principles of collateral estoppel designed to protect the
individual from “the fundamental [un]fairness of a scheme that would permit the
government to file successive petitions against an individual in the same forum and on
the same facts” and the justice system from repetitive litigation. (Turner, supra,
105 Cal.App.4th at p. 1057.)
       The court‟s Evidence Code section 352 analysis violated these basic principles.
By excluding evidence of the prior jury‟s not-true finding, the court allowed the
prosecution to relitigate the same issues, and by failing to instruct the jury to focus on
how the circumstances had changed since the prior finding, the court disregarded Turner.
We must determine whether the error was harmless beyond a reasonable doubt.
       Here again the factual similarity to Turner is striking. In both cases there was
little evidence of a change in the defendant‟s mental condition following the respective
jury‟s not-true finding. Turner violated his curfew; Rose failed to record his whereabouts

                                              11
for a short time in his log and was seen talking to two adolescent boys as he repaired a
car. Neither had committed another sexual offense or otherwise demonstrated dangerous
behavior. In Turner, the court concluded there was insufficient evidence to establish
probable cause the defendant was likely to engage in sexually violent conduct and
directed the trial court to dismiss the petition.
       Our case, unlike Turner, does not involve writ proceedings challenging a court‟s
determination of probable cause. And it is true that a considerable period of time has
passed since the not-true finding and the finding on appeal. Nevertheless, the
psychologist here, as in Turner, did not focus on any changed circumstances other than
the fact two adolescent boys were seen watching defendant repair a car. Given that none
of his prior offenses involved boys, he had not committed any offenses or demonstrated
dangerous behavior, and the jury was not instructed to focus on any changes since 1999,
we cannot say the error was harmless beyond a reasonable doubt.
                                               II
       In 2006 the SVPA was amended by Proposition 83, an initiative measure. Rose
contends the SVPA‟s provisions for indeterminate terms of commitment are closely
analogous to a prison sentence for life, and therefore, pursuant to section 231 of the Code
of Civil Procedure, he was entitled to 20, not 10, peremptory challenges. We reject the
analogy.
       In a criminal case, the defendant is entitled to 10 peremptory challenges unless the
offense with which he or she is charged is punishable by life in prison or death, in which
case the number of allowable peremptory challenges is increased to 20. (Code Civ. Proc.,
§ 231, subd. (a).) In civil cases or in criminal cases with a maximum term of
imprisonment of 90 days or less, the parties are entitled to six challenges. (Code Civ.
Proc., § 231, subds. (b), (c).) Rose was allowed 10 peremptory challenges.
       The question, simply put, is whether a commitment hearing under the SVPA is a
civil or criminal proceeding. The Legislature has been clear. In enacting the SVPA in

                                               12
1996, the Legislature expressed that no punitive purpose was intended. (Hubbart, supra,
19 Cal.4th at pp. 1143-1144 & fn. 5.) Rather, the stated purpose of the commitment is to
hold the person only so long as his or her mental abnormality creates a danger to others.
(§§ 6600, subd. (a), 6605, subd. (a), 6608, subds. (a), (d).) While the commitment may
be indeterminate, it is only potentially indefinite. Unlike a criminal defendant sentenced
to life in prison, an SVP is entitled to the Department of Mental Health‟s annual review
of his mental condition, and he retains the right to seek release from confinement based
on a showing that he no longer poses the requisite danger. (Ibid.)
        We conclude that the purpose of the SVPA meets neither of the primary objectives
of the criminal justice system, retribution nor deterrence. Nor is an indeterminate
commitment the functional equivalent of a life term in prison. Rather, a proceeding
under the SVPA remains civil in nature. Thus, Rose was not entitled to 20 peremptory
challenges pursuant to Code of Civil Procedure section 231 and, in fact, was the
beneficiary of four more challenges than he was entitled to.
                                            III
        Rose launches a multifaceted constitutional assault on the SVPA as amended in
2006. Of course, as even he acknowledges, the California Supreme Court rejected all but
his equal protection challenge in McKee, supra, 47 Cal.4th 1172. We are not at liberty to
revisit those issues. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
        Defendant contends that his equal protection rights were violated because SVP‟s
are treated less favorably than those committed under other statutes, such as those
addressing mentally disordered offenders (MDO) (Pen. Code, § 2960) and persons found
not guilty by reason of insanity (NGI) (Pen. Code, § 1026 et seq.). In McKee I, the
Supreme Court found that SVP‟s, MDO‟s, and NGI‟s are similarly situated for equal
protection purposes because each is involuntarily committed to protect the public from an
individual who is dangerously mentally ill. (McKee I, supra, 47 Cal.4th at pp. 1202-

                                            13
1203, 1207.) The court found no question that after the initial commitment SVP‟s were
treated less favorably because they were given indeterminate commitments with the
burden of proving they should be released, whereas MDO‟s and NGI‟s were committed
for a determinate term and had the right to be released unless the People proved beyond a
reasonable doubt that they should be recommitted. (Ibid.)
       To justify the disparate treatment of SVP‟s, the Supreme Court in McKee I
emphasized the People had to show on remand “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.)
Whether the People carried their burden under the equal protection clause for such
differential treatment was resolved in People v. McKee (2012) 207 Cal.App.4th 1325,
1339, 1347-1348 (McKee II).
       In McKee II, Division One of the Fourth Appellate District affirmed the trial
court‟s determination that “the People on remand met their burden to present substantial
evidence, including medical and scientific evidence, justifying the amended Act‟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).” (McKee II, supra,
207 Cal.App.4th at p. 1347.) The People showed “ „that the inherent nature of the SVP‟s
mental disorder makes recidivism as a class significantly more likely[;] . . . that SVP‟s
pose a greater risk [and unique dangers] to a particularly vulnerable class of victims, such
as children‟; and that SVP‟s have diagnostic and treatment differences from MDO‟s and
NGI‟s, thereby supporting a reasonable perception by the electorate that passed
Proposition 83 that the disparate treatment of SVP‟s under the amended Act is necessary
to further the state‟s compelling interests in public safety and humanely treating the
mentally disordered.” (Ibid.) Based on the above, the court concluded “the disparate
treatment of SVP‟s under the Act is reasonable and factually based and was adequately

                                             14
justified by the People at the evidentiary hearing on remand.” (Id. at p. 1348.) The
SVPA, therefore, did not violate equal protection. (Ibid.)
       As in McKee II, we agree that defendant‟s equal protection rights were not
violated by treating him differently from MDO‟s and NGI‟s for commitment purposes.
The indeterminate commitment procedures legitimately advance a compelling state
interest in protecting the public from an SVP like defendant who carries a substantial,
well-founded risk of reoffending and cannot control his behavior, and who poses a
greater risk to a particularly vulnerable class of victims, such as children. We therefore
reject defendant‟s equal protection challenge. (Accord, People v. McDonald (2013)
213 Cal.App.4th 1367, 1371; People v. Landau (2013) 214 Cal.App.4th 1, 47-48;
People v. McCloud (2013) 213 Cal.App.4th 1076, 1085-1086; People v. McKnight (2012)
212 Cal.App.4th 860, 863-864.)
                                      DISPOSITION
       The order of commitment is reversed and the case is remanded to the trial court; in
the event there is a subsequent jury trial, the trial court must, if asked, admit evidence of
the 1999 not true finding and instruct the jury it must determine whether the
circumstances since 1999 materially have changed so that Rose now has a mental
disorder making him currently dangerous.


                                                         RAYE                   , P. J.

We concur:


      NICHOLSON              , J.


      MAURO                  , J.




                                              15
