Filed 10/2/14 P. v. Rose 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H038704
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 195814)

         v.

MARC BERNARD ROSE,

         Defendant and Appellant.


         Marc Bernard Rose appeals from the August 17, 2012 order for commitment as a
sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA) (Welf.
& Inst. Code, § 6600 et seq.).1 Rose raises multiple claims but we find no prejudicial
errors. Accordingly, we will affirm the judgment.
                                                             I
                                                          Trial
         At trial in 2012, two psychologists testifying on behalf of the People, Drs. Harry
Goldberg and Jack Vognsen, reported that they diagnosed Rose with a current mental
disorder of pedophilia with an attraction to prepubescent boys. As defined by the
DSM-IV-TR,2 a diagnosis of pedophilia requires (1) a person to have recurrent, intense
sexually arousing urges, fantasies or behaviors involving prepubescent children,

1
       All further references are to the Welfare and Institutions Code unless otherwise
specified.
2
  .    We assume the reference was to the Diagnostic and Statistical Manual of Mental
Disorders (4th ed.) Text Revisions.

                                                             1
generally 13 years of age or younger, (2) the person to have acted upon those sexual
urges or the sexual urges to have caused interpersonal difficulty and (3) the person to be
at least 16 years of age and five years older than the children. A person may be
diagnosed as a pedophile even if the person had some adult partners. Dr. Goldberg
indicated that Rose’s pedophilia was the nonexclusive type. Pedophilia is a chronic,
lifelong disorder for which there is no cure.
       Rose, who had married a woman in 1986, came to the attention of law
enforcement because he was soliciting pornography of prepubescent children in 1987.
The police discovered Rose had sexually molested Jaime 20 to 30 times while Jaime was
between the ages of 11 and 14. Rose had met Jaime when Jaime was visiting his brother
who lived in the apartment building where Rose lived. Rose photographed Jaime when
he was 11 years old and again when Jaime was 14 years old. Rose shared photographs of
Jaime with others. When Jaime was 15 or 16 years old, after Jaime’s parents had
committed suicide, Jaime briefly lived with Rose, during which time Rose engaged in an
act of oral copulation and sodomy with him. In 1987, Rose told a sergeant that he was
sexually interested in children and he had fantasies about them.
       Rose was convicted of one count of lewd conduct with a child, one count of oral
copulation with a child, and one count of using obscene material with a child. He was
sentenced to a prison term of three years eight months. Rose was released on parole
sometime around 1990 and he received treatment through parole.
       In 1992, while living with his wife, Rose was discovered to be in possession of
child pornography, including pictures of children clothed and unclothed, two video tapes
showing sexual acts between children, a picture of his prior victim, a movie of a young
adolescent masturbating, and an album of pictures of Perry, a nine-year-old boy. Rose
had met Perry while Perry was visiting his grandmother at the apartment complex where
Rose lived. Perry eventually disclosed that Rose had touched him on his genitals while
Perry was nude and Rose had taken pictures of Perry in the nude.
                                                2
       In preparation for sentencing after conviction, Rose admitted to the probation
officer that he had showed his penis to Perry and touched Perry’s penis multiple times
over several weeks. Rose blamed Perry for pestering him to watch dirty movies.
       While in prison, Rose was found in possession of photographs of nude adult
females and received an “institutional violation.” After his release from prison, Rose was
sent to Atascadero State Hospital. Rose was found with drawings he had made of a
young man in a sexually aroused state. Rose did not see anything wrong with it. On
May 27, 1999, Rose received pictures of clothed adult and child television actors, which
he had ordered in the mail. On June 2, 1999, Rose was found with five books containing
sexually provocative images of children. In August 27, 1999, Rose was found with
material containing sadomasochistic images. On about March 13, 2001, Rose was found
with magazines containing nude pictures of children.
       In January 2006, Rose was transferred to Coalinga State Hospital. Rose declined
treatment there from January 2006 to October 2009. He subsequently began phased
treatment. At the time of trial, Rose was in phase two of five phases of treatment at
Coalinga State Hospital and he had not yet taken the test to graduate to phase three.
Treatment is aimed at the person’s management of their urges and behaviors. Research
indicates that pedophiles who complete treatment have lower recidivism rates.
       In the opinion of Drs. Goldberg and Vognsen, Rose’s pedophilia caused him to
have volitional and emotional impairment and predisposed him to commit sexual acts.
Rose had groomed both Jaime and Perry for sexual molestation. Rose had sexually
offended with Perry while on parole and in treatment. Rose admitted to having three to
five male victims during his life and molesting each of them 11 to 20 times. In 1997,
Rose admitted to Dr. Goldberg that he previously had urges toward and fantasies about
children. Rose had been found with pornographic materials on three occasions during his
stay at Atascadero State Hospital. Rose had a long history of collecting and soliciting
child pornographic material, which Dr. Goldberg testified was one of the risk factors for
                                             3
reoffense. Although Rose had not committed child molestation since molesting Perry, he
had been in prison or a hospital since that time.
       Both Dr. Goldberg and Dr. Vognsen administered several actuarial risk
assessment instruments. Both gave Rose a score of four on the static 99-R and a seven
on Static 2002-R. Those scores placed Rose in the “moderate-high risk category.”
Dr. Goldberg estimated that Rose’s overall risk of being detected for a new offense after
10 years was “somewhere between 29 and 39 percent.” Dr. Vognsen indicated that Rose
had an approximately 30 to 40 percent chance of being caught for committing or
convicted of a sexual reoffense over a 10-year period. In Dr. Goldberg’s opinion, there
was a well-founded and serious risk that Rose would reoffend in a predatory manner.
Dr. Vognsen concluded that Rose was likely to reoffend in a predatory manner
       Dr. Goldberg acknowledged that when Rose was 59.9 years old, his score on the
Static 99-R would drop to one due to his age. That would be one factor that he would
consider if he assessed Rose’s risk at that time. Dr. Vognsen acknowledged that, in
general, the risk of reoffending drops significantly at the age of 60.
       The People called Rose as a witness. Rose testified that he had recently turned
54 years old. He admitted that he was still a pedophile, but he asserted that he was in
remission and maintaining his abstinence. Rose admitted that he still had pedophiliac
urges but he claimed that he could control them and he was going to try to avoid children.
Rose described his sexual molesting and photographing of Jaime and Perry.
       Two defense experts, Drs. Raymond Anderson and James Park, both licensed
psychologists, testified that Rose did not meet the criteria for a current diagnosis of
pedophilia. Dr. Anderson believed that Rose’s fantasies were not sufficiently intense and
persistent to meet the diagnosis criteria. In addition, it was unusual for a pedophile to be
married or have sex with adults. Dr. Anderson conceded that Rose had been collecting
child pornography since before 1980. Dr. Anderson acknowledged that Rose had


                                              4
admitted he had sexual fantasies or urges involving children, he was sexually attracted to
children, and he was sexually aroused by some children and child pornography.
       Dr. Park had previously diagnosed Rose with pedophilia, sexually attracted to
males, nonexclusive type, in remission. Dr. Park no longer gave Rose that diagnosis.
Dr. Park’s current opinion was based partially on the fact that Rose’s sexual interest in
children was not exclusive and he could respond sexually to adults but Dr. Park
acknowledged that there was an nonexclusive type of pedophilia. Rose had admitted to
Dr. Park that he had been sexually interested in and attracted to his victims.
       Dr. Carvajal testified on behalf of the defense. He worked at Coalinga State
Hospital as a unit psychologist and as a group therapist. Rose had been part of a
treatment group facilitated by Dr. Carvajal. Rose had acknowledged that he had a
problem and he needed to learn how to manage it. In Dr. Carvajal’s opinion, Rose had
done very well in treatment during the approximately 16 months that Carvajal had been
his facilitator. Rose had admitted his disorder, he had been open to treatment, he had
finished assignments, and he had shown empathy for past victims. Dr. Carvajal indicated
that there is not a curative treatment for pedophilia. Rather, treatment is aimed at
managing the disorder.
                                             II
                                        Discussion
A. Alleged Trial Error
1. Instruction Regarding an “Admission”
       Rose’s counsel objected to the proposed jury instruction defining “admission.”
While counsel acknowledged that Rose had admitted in testimony that he was a
pedophile, counsel was concerned that the instruction improperly suggested that his
admission proved the SVP petition. Counsel contended that the instruction made the
requirement of a currently diagnosed mental disorder seem more important than the
requisite likelihood of reoffense.
                                             5
       The trial court gave an instruction, modeled on CALJIC No. 2.71, which directed
the jury to view with caution any unrecorded, out-of-court statement made by Rose. The
jury was instructed: “An admission is a statement made by the respondent which does
not by itself acknowledge the truth of the petition for which the respondent is on trial, but
which statement tends to prove the truth of the petition when considered with the rest of
the evidence. [¶] You are the exclusive judges as to whether the respondent made an
admission, and if so, whether that statement is true in whole or in part. [¶] Evidence of
an oral admission of the respondent not contained in an audio or video recording and not
made in court should be viewed with caution.”
       Rose argues that this instruction impermissibly lowered the prosecution’s burden
of proof in violation of his rights to due process and a fair trial.3 The challenged
instruction made clear that an admission did not in itself prove the petition. It reminded
jurors that they were the exclusive judges of the truth of any part of any statement made
by Rose. The cautionary part of the instruction was to Rose’s benefit. The instruction
did not directly or indirectly address the burden of proof or relieve the People of its
burden of proof. In other instructions, the jury was fully instructed regarding the
meaning of “sexually violent predator” and the People’s burden of proving beyond a
reasonable doubt that Rose was an SVP. The jurors were told to “[c]onsider the
instructions as a whole and each in light of all the others.” The challenged instruction did
not lower the People’s burden of proof.
2. Refusal to Give Requested Instruction as to Likelihood of Reoffense
       In a written in limine motion, the defense requested an instruction regarding the
meaning of “likely,” which term is used in the definition of an SVP. The proposed

3
       To the extent that Rose is also attacking the prosecutor’s closing argument related
to Rose’s admission that he is a pedophile, those claims were forfeited by failing to
timely and specifically object below. (See People v. Shazier (2014) 60 Cal.4th 109,145;
People v. Clark (2011) 52 Cal.4th 856, 960.)

                                              6
instruction read: “The word ‘likely’ as used in this definition means the person presents a
substantial danger, that is, a serious and well-founded risk that he will commit sexually
violent predatory crimes if free in the community. It does not mean that it must be more
probable than not that there will be an instance of reoffending. However, you may not
find the respondent to be a sexually violent predator unless you find that the respondent
does in fact present a high risk of reoffense.” (Emphasis omitted.) When it addressed the
request, the trial court stated the issue would be revisited if necessary when the court and
the parties discussed the jury instructions.
       The trial court instructed the jury regarding the definition of an SVP, including
element three, namely that a currently diagnosed mental disorder “makes [defendant] a
danger to the health and safety of others in that it is likely that he will engage in sexually
violent predatory criminal behavior unless confined within a secure facility.” (Italics
added.) The court also gave the following definition: “The word ‘likely’ as used in
this definition means the person presents a substantial danger, that is, a serious and
well-founded risk that he will commit sexually violent predatory crimes if free in the
community. The term ‘likely’ as used in this definition means much more than a mere
possibility, but it does not mean ‘more likely than not.’ In other words, the likelihood
that the person will engage in such conduct does not have to be greater than 50 percent.”
(Italics added.) The italicized portion of the instruction differs from the language
requested by Rose.
       Rose now claims that the trial court erred by not giving the requested instruction,
pointing to language in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888
(Ghilotti). The People assert that Ghilotti’s definition of “likely” did not require the trier
of fact to find a “high risk” of reoffense.4

4
        Although the People have not raised the forfeiture rule, it appears that Rose
forfeited any claim of error by failing to renew, on the record, his request for the
(continued)
                                               7
       In Ghilotti, the California Supreme Court considered the standard set forth in
section 6600, subdivision (d). (Ghilotti, supra, 27 Cal.4th at pp. 915-923.) Under that
provision, two mental health professionals must concur that the “ ‘person has a diagnosed
mental disorder so that he or she is likely to engage in acts of sexual violence without
appropriate treatment and custody’ ” before an SVP petition can be filed. (§ 6600,
subd. (d), italics added.) The California Supreme Court stated: “[T]he word ‘likely,”
when used in this context, must be given a meaning consistent with the statute’s clear
overall purpose. That purpose is to protect the public from that limited group of persons
who were previously convicted and imprisoned for violent sex offenses, and whose terms
of incarceration have ended, but whose current mental disorders so impair their ability to
control their violent sexual impulses that they do in fact present a high risk of reoffense if
they are not treated in a confined setting.” (Ghilotti, supra, at p. 921.) This is the
language relied upon by Rose.
       But the Supreme Court ultimately held: “[T]he phrase ‘likely to engage in acts of
sexual violence’ (italics added), as used in section 6601, subdivision (d), connotes much
more than the mere possibility that the person will reoffend as a result of a predisposing
mental disorder that seriously impairs volitional control. On the other hand, the statute
does not require a precise determination that the chance of reoffense is better than even.
Instead, an evaluator applying this standard must conclude that the person is ‘likely’ to
reoffend if, because of a current mental disorder which makes it difficult or impossible to
restrain violent sexual behavior, the person presents a substantial danger, that is, a
serious and well-founded risk, that he or she will commit such crimes if free in the
community.” (Ghilotti, supra, 27 Cal.4th at p. 922.)




proposed instruction when the parties went over the instructions with the court. (See
People v. Davis (2009) 46 Cal.4th 539, 616-617.)

                                              8
       The Supreme Court also rejected in Ghilotti the argument that “constitutional
principles of substantive due process, as applicable to involuntary civil commitment
statutes, require a limitation of such commitments to persons who are ‘highly likely’
to reoffend.” (Ghilotti, supra, 27 Cal.4th at p. 923.) The court was unpersuaded that
“a valid involuntary commitment law requires proof that the person is more likely than
not to reoffend.” (Ibid.) It determined that “the state has a compelling protective interest
in the confinement and treatment of persons who have already been convicted of violent
sex offenses, and who, as the result of current mental disorders that make it difficult or
impossible to control their violent sexual impulses, represent a substantial danger of
committing similar new crimes [citations], even if that risk cannot be assessed at greater
than 50 percent.” (Id. at p. 924.)
       In People v. Roberge (2003) 29 Cal.4th 979, the Supreme Court addressed
statutory definition of a sexually violent predator (§ 6600, subd. (a)), which applies at
trial. (People v. Roberge, supra, at p. 982.) The Supreme Court held that “the phrase
‘likely [to] engage in sexually violent behavior’ in section 6600, subdivision (a), should
be given the same meaning as the phrase ‘likely to engage in acts of sexual violence
without appropriate treatment and custody’ in section 6601, subdivision (d), the provision
at issue in Ghilotti.” (Id. at p. 987.)
       Rose’s proposed instruction was likely to confuse and mislead the jury regarding
the meaning of “likely” as used in the definition of “sexually violent predator.” On the
other hand, the trial court’s instruction adequately and accurately defined the term
“likely.” A trial court may properly refuse a special instruction offered to highlight a
defense theory “if it incorrectly states the law, is argumentative, duplicative, or
potentially confusing (People v. Gurule (2002) 28 Cal.4th 557, 659) . . . .” (People v.
Moon (2005) 37 Cal.4th 1, 30.) The court did not err in refusing to give the defendant’s
proposed instruction.


                                              9
3. Repeated Use of Phrase “Sexually Violent Predator”
       The trial court denied Rose’s written in limine motion to prohibit the use of the
phrases “sexually violent predator” or “Sexually Violent Predator Act,” which he argued
were unnecessarily inflammatory. During trial, Rose unsuccessfully objected to the use
of “sexually violent predator” in the jury instructions and asked the court to use the
abbreviation “SVP.”
       Rose now claims that the phrase “sexually violent predator” is a “highly
inflammatory epithet” and the repeated use of that phrase before the jury was “grossly
prejudicial” and a violation of his rights to due process and a fair trial. “It is, of course,
improper to make arguments to the jury that give it the impression that ‘emotion may
reign over reason,’ and to present ‘irrelevant information or inflammatory rhetoric that
diverts the jury's attention from its proper role, or invites an irrational, purely subjective
response.’ [Citation.]” (People v. Padilla (1995) 11 Cal.4th 891, 956-957, overruled on
another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The phrases
“sexually violent predator” and “Sexually Violent Predator Act” did not constitute,
however, inflammatory rhetoric that diverted the jury's attention from its proper role or
invited an irrational response.
       The trial’s purpose was to determine whether or not Rose was a “sexually violent
predator” under the proper legal standard. From the outset, the trial court made clear that
Rose was presumed not to be an SVP unless the People presented proof beyond a
reasonable doubt.5 The jury received the legal definition of “sexually violent predator.”

5
       During voir dire of the jury, the court instructed: “I want you to presume that for
the purposes of this voir dire that as Mr. Rose sits here he is not a sexually violent
predator. He is to be clothed with his presumption that the petition is not true. This
presumption stays with him through the taking of testimony and other evidence
presented, the arguments of counsel, the jury instructions given by me, indeed, it goes
with the jury into the jury deliberation room. It applies unless all 12 jurors unanimously
find that the People have met their burden of proof beyond a reasonable doubt and dispel
(continued)
                                               10
In its final instructions, the court again instructed the jury that the People had the burden
of proving beyond a reasonable doubt that Rose is a “sexually violent predator.” The
court directed the jurors to find the allegation untrue, if after considering all the evidence,
they had a reasonable doubt that Rose was a sexually violent predator. There has been no
showing that the use of the phrases “sexually violent predator” or “Sexually Violent
Predator Act” at trial inflamed the jurors’ emotions and caused undue prejudice against
Rose. The use of those phrases did not deprive Rose of a fundamentally fair trial or due
process.
4. Compulsory Testimony
        Rose brought a motion in limine to establish that he had the right, on equal
protection grounds, to not be compelled to testify for the People. He cited In re Luis
(2004) 116 Cal.App.4th 1397 (Luis). The trial court denied the motion. The People
called Rose to testify.
        Rose now argues that his right to equal protection was violated. He cites People v.
Haynie (2004) 116 Cal.App.4th 1224 (Haynie) as well as Luis, supra, 116 Cal.App.4th
1397.
        In Haynie, the Fifth District concluded that a person who was committed after
being found not guilty by reason of insanity (NGI) and who is the subject of a petition to
extend a commitment under Penal Code section 1026.5, subdivision (b), has the right
under that section’s subdivision (b)(7) to refuse to testify at the extended commitment
trial.6 (Haynie, supra, 116 Cal.App.4th at p. 1228, but see People v. Superior Court


the presumption that the petition is not true. [¶] The mere fact of the petition alleging
such a phrase as sexually violent predator will no doubt elicit a visceral reaction in you.
It is an accusation. It is not the truth. It is a petition. You’re going to decide whether it’s
true or not. . . . The jury is going to objectively decide whether or not the People proved
those elements beyond a reasonable doubt.”
6
        Penal Code section 1026.5, subdivision (b)(7), provides in pertinent part: “The
person shall be entitled to the rights guaranteed under the federal and State Constitutions
(continued)
                                              11
(Williams) (1991) 233 Cal.App.3d 477, 488.) In Luis, the Fifth District concluded a
potential committee under the extended detention scheme for dangerous youthful
offenders set forth in section 1800 et seq. has the right under section 1801.5 to refuse to
testify at the extended commitment trial.7 (Luis, supra, 116 Cal.App.4th at p. 1403;
accord Joshua D. v. Superior Court (2007) 157 Cal.App.4th 549, 558, 565; but see
People v. Lopez (2006) 137 Cal.App.4th 1099, 1116; but cf. Conservatorship of Bones
(1987) 189 Cal.App.3d 1010, 1015-1017 [§ 5303]; People v. Henderson (1981) 117
Cal.App.3d 740, 748 [former § 6316.2, subd. (e)].) The SVPA contains no provision,
analogous to those considered in Haynie and Luis, granting an alleged SVP the
constitutional rights guaranteed in criminal proceedings.
       “[E]qual protection principles are often invoked in civil commitment cases to
ensure that the statutory scheme applicable to a particular class of persons has not treated
them unfairly in comparison with other groups with similar characteristics. [Citation.]”
(People v. Barrett (2012) 54 Cal.4th 1081, 1107.) “[E]qual protection safeguards against
the arbitrary denial of benefits to a certain defined class of individuals . . . .” (People v.
McKee (2010) 47 Cal.4th 1172, 1207 (McKee I).) “[W]hen certain due process
protections for those civilly committed are guaranteed by statute, even if not
constitutionally required, the denial of those protections to one group must be reasonably
justified in order to pass muster under the equal protection clause.” (Ibid.)


for criminal proceedings.” Hudec v. Superior Court, S213003 (pet. review granted Oct.
2, 2013) is pending before the California Supreme Court. That case presents the
following issue on review: “Does Penal Code section 1026.5, subdivision (b)(7), give a
person who was committed after being found not guilty of criminal charges by reason of
insanity the right to refuse to testify in a proceeding to extend that civil commitment?”
(California Supreme Court
http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=
2054905&doc_no=S213003 [as of Aug. 27, 2014].)
7
        Section 1801.5 provides in part: “The person shall be entitled to all rights
guaranteed under the federal and state constitutions in criminal proceedings.”

                                              12
       “ ‘ “The first prerequisite to a meritorious claim under the equal protection clause
is a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.” [Citations.] This initial inquiry is not whether
persons are similarly situated for all purposes, but “whether they are similarly situated for
purposes of the law challenged.” ’ (Cooley v. Superior Court (2002) 29 Cal.4th [228,]
253.) In other words, we ask at the threshold whether two classes that are different in
some respects are sufficiently similar with respect to the laws in question to require the
government to justify its differential treatment of these classes under those laws.”
(McKee I, supra, 47 Cal.4th at p. 1202.) “Where two or more groups are properly
distinguishable for purposes of the challenged law, it is immaterial if they are
indistinguishable in other respects. (Cooley, supra, at p. 253.)” (People v. Barrett,
supra, 54 Cal.4th at p. 1107.)
       The California Supreme Court determined in McKee I that SVP’s and NGI’s are
similarly situated with respect to an equal protection claim focusing on differences in the
duration of commitment. (McKee I, supra, 47 Cal.4th at p. 1207; see id. at p. 1203
[mentally disordered offenders (MDO’s) and SVP’s also similarly situated for “present
purposes”].) The court’s reasoning is applicable to Rose’s present equal protection claim.
       Dangerous youthful offenders whose detentions are extended under section 1800
et seq. and SVP’s are not similarly situated for all purposes. (Compare In re Lemanuel C.
(2007) 41 Cal.4th 33, 47-49 with In re Howard N. (2005) 35 Cal.4th 117, 131, 135.)
With respect to a statutorily provided privilege against self-incrimination, however, the
People have not identified any principled basis for concluding that SVP’s and dangerous
youthful offenders are not similarly situated. The same policy considerations appear to
be equally applicable to both groups. (See Joshua D. v. Superior Court, supra, 157
Cal.App.4th at p. 565; cf. Malloy v. Hogan (1964) 378 U.S. 1, 8.) As the California
Supreme Court has recognized, potential committees under civil commitment schemes


                                             13
have the same interest at stake, namely “the loss of liberty through involuntary civil
commitment.” (McKee I, supra, 47 Cal.4th at p. 1204.)
       We conclude that SVP’s are similarly situated with respect to both NGI’s and
dangerous youthful offenders for purposes of a statutory privilege of not testifying in the
People’s case at a commitment trial.8 We assume, for purposes of this appeal, that both
the latter groups are statutorily entitled to that right since a contrary conclusion would be
at odds with the broad statutory language of those commitment schemes, which appears
to incorporate at least the trial rights of criminal defendants. (See Pen. Code, § 1026.5,
subd. (b)(7); § 1801.5; Luis, supra, 116 Cal.App.4th at p. 1403; Haynie, supra, 116
Cal.App.4th at p. 1228; see also In re D.B. (2014) 58 Cal.4th 941, 945-946.) Since the
People have not satisfied the strict scrutiny standard of review (see McKee I, supra, 47
Cal.4th at pp. 1197-1198, 1208-1209), we assume the trial court should have likewise
afforded Rose such statutory privilege.
       We nevertheless conclude that the remedy is not reversal. “When a court
concludes that a statutory classification violates the constitutional guarantee of equal
protection of the laws, it has a choice of remedies. (See Califano v. Westcott (1979) 443
U.S. 76, 89-91 [61 L. Ed. 2d 382, 99 S.Ct. 2655] [court may either withdraw benefits of
welfare statute from favored class or extend those benefits to excluded class]; Heckler v.
Mathews (1984) 465 U.S. 728, 740 [79 L. Ed. 2d 646, 104 S.Ct. 1387] [same]; People v.
Liberta (1984) 64 N.Y.2d 152 [474 N.E.2d 567, 578, 485 N.Y.S.2d 207] [court can either
invalidate rape statute or expand it to include spousal rape].)” (People v. Hofsheier
(2006) 37 Cal.4th 1185, 1207.) “In choosing the proper remedy for an equal protection


8
        Of course, under the self-incrimination clause of the Fifth Amendment, which
applies to the states through the Fourteenth Amendment (Malloy v. Hogan, supra, 378
U.S. at p. 6), a person has the constitutional right, in any proceeding, not to answer
official questions that might incriminate him in future criminal proceedings. (See Allen
v. Illinois (1986) 478 U.S. 364, 368.)

                                             14
violation, [the courts’] primary concern is to ascertain, as best we can, which alternative
the Legislature would prefer. [Citations.]” (Id. at pp. 1207-1208.)
        Rose had no independent due process right to refuse to testify at his SVP trial.
(See Allen v. Illinois, supra, 478 U.S. at p. 375; People v. Leonard (2000) 78 Cal.App.4th
776, 792-793; see also Cramer v. Tyars (1979) 23 Cal.3d 131, 137-138.) The
constitutional right invoked by Rose is equal treatment. Assuming the trial court should
have extended to Rose a statutory privilege against testifying at his SVP trial under equal
protection principles, the Watson standard of review is applicable to the denial of that
right as would be the case for other potential committees expressly afforded that statutory
right but erroneously denied it. (See People v. Barrett, supra, 54 Cal.4th at p. 1151
(conc. & dis. opn. of Liu, J.); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); cf.
People v. Epps (2001) 25 Cal.4th 19, 28-29 [Watson test applied to denial of statutory
right to jury trial].)
        Under the Watson standard of review, “a ‘miscarriage of justice’ should be
declared only when the court, ‘after an examination of the entire cause, including the
evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error.” (Watson,
supra, 46 Cal.2d at p. 834; see Cal. Const., art. VI, § 13 [“No judgment shall be set
aside . . . unless, after an examination of the entire cause, including the evidence, the
court shall be of the opinion that the error complained of has resulted in a miscarriage of
justice”].) The Watson test is “based upon reasonable probabilities rather than upon mere
possibilities.” (Watson, supra, p. 837.)
        In this case, Rose has not established that there is a reasonable probability that a
result more favorable to him would have been reached if he had not been compelled to
testify. The evidence showed that he had been convicted of offenses related to sexually
molesting two boys. He admitted to having three to five victims, all of whom he
molested multiple times. Despite the penal consequences of sexual offending, he had
                                              15
reoffended with Perry. He had groomed both identified victims. Rose had a long history
of collecting and soliciting child pornography, which was a risk factor for reoffense.
Despite being confined in Atascadero State Hospital, Rose still possessed pornographic
materials on several occasions. The People’s experts concurred that Rose had a
pedophilia disorder, which could not be cured, and he was an SVP. The testimony of
Drs. Anderson and Park was not strong. Both failed to accept the nonexclusive type of
pedophilia. Dr. Park had previously diagnosed Rose with having pedophilia,
nonexclusive type, in remission. Rose had admitted having sexual fantasies or urges
involving children to Dr. Anderson and he had expressed his sexual attraction to children
or the victims to both psychologists. While Dr. Carvajal believed that Rose had done
very well in early treatment, Dr. Carvajal agreed that pedophilia had no cure. At the time
of trial, Rose had not yet completed phase two of the five phases of treatment, which was
focused on learning to manage the disorder.
5. No Reversal for Cumulative Errors
       Rose maintains that the judgment must be reversed due to the cumulative effect of
multiple errors. Since we have not found multiple errors, this argument is without merit.
B. Constitutional Challenges to Indeterminate Term of Commitment
1. Indeterminate Term does not Violate Equal Protection
       Rose asserts that the indeterminate commitment under the SVPA violates equal
protection because persons who are civilly committed under other laws have limited
terms of commitment and the burden is on the government to justify extending a
commitment. On appeal, he focuses on the reasons this court should reject People v.
McKee (2012) 207 Cal.App.4th 1325 (McKee II).
a. McKee I and McKee II
       In McKee I, supra, 47 Cal.4th 1172, the California Supreme Court recognized that
persons civilly committed as MDO’s or NGI’s are subject to short, definite terms of
commitment whereas persons found to be SVP’s are committed to an indeterminate term
                                            16
of commitment. (Id. at pp. 1202, 1207.) The court concluded that SVP’s were similarly
situated to these other groups of committees. (Id. at pp. 1204, 1207.) It remanded the
matter to the trial court “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.” (Id. at pp. 1208-1209,
fn. omitted.) The trial court resolved this question in favor of the People on remand and
its order was affirmed on appeal in McKee II. (McKee II, supra, 207 Cal.App. 4th at
p. 1350.) The Supreme Court denied review of McKee II ( review den. Oct. 10, 2012,
S204503).
b. Challenges to McKee II
       Rose first challenges the application of the McKee II decision to his own case. He
claims he is entitled to challenge the constitutionality of the SVPA’s indeterminate
commitment scheme on equal protection grounds and have an evidentiary hearing on the
issue. He argues that McKee II binds only defendant McKee and does not constitute
binding authority under the doctrine of collateral estoppel.
       The People do not assert that the collateral estoppel doctrine applies here and are
not suggesting that Rose is the same party as, or in privity with, defendant McKee, which
is a requirement for applying the doctrine. (See Lucido v. Superior Court (1990) 51
Cal.3d 335, 341.) While we acknowledge that an appellate opinion does not ordinarily
bind another court of appeal (see Auto Equity Sales, Inc. v. Superior Court of Santa Clara
County (1962) 57 Cal.2d 450, 455), it can serve as persuasive authority. (See Bradley v.
Gilbert (2009) 172 Cal.App.4th 1058, 1070.)
       The California Supreme Court clearly intended to avoid an unnecessary
multiplicity of proceedings when it remanded the matter in McKee I. (See People v.
Kisling (2014) 223 Cal.App.4th 544, 548, review den. Apr. 23, 2014, S216859.) Its
remand was to allow the government an opportunity to “demonstrate the constitutional
justification for imposing on SVP’s a greater burden than is imposed on MDO’s and
                                             17
NGI’s in order to obtain release from commitment.” (McKee I, supra, 47 Cal.4th at
pp. 1208-1209, fn. omitted.) The court stated “[i]t must be shown that notwithstanding
the similarities between SVP’s and MDO’s, the former as a class bear a substantially
greater risk to society, and that therefore imposing on them a greater burden before they
can be released from commitment is needed to protect society.” (Id. at p. 1208, italics
added.) It explained that this showing could be made “in a variety of ways,” including
demonstrating that the “inherent nature of the SVP’s mental disorder makes recidivism as
a class significantly more likely.” (Ibid., italics added.) “The Supreme Court’s emphasis
on classwide proof, together with its suspension of activity in grant-and-hold cases to
avoid an unnecessary multiplicity of proceedings, demonstrates to us the Supreme Court
intended the equal protection challenge to the Amended SVPA be resolved on a
classwide basis in a single case.” (People v. McDonald (2013) 214 Cal.App.4th 1367,
1378, review den. Jul. 10, 2013, S210418.) The constitutional inquiry in McKee II was
not dependent upon the circumstances or characteristics of an individual person found to
be an SVP.
       Rose next maintains that McKee II incorrectly reviewed the equal protection claim
by (1) using a deferential rather than an independent standard of review, (2) applying the
rational basis test rather than the strict scrutiny test, (3) considering evidence not actually
considered by the electorate in enacting Proposition 83, (4) not requiring the SVPA to be
narrowly tailored, and (5) failing to address or distinguish In re Calhoun (2004) 121
Cal.App.4th 1315. We reject each of these claims.
       “The Court of Appeal in McKee II applied the correct standard of review. The
court stated, ‘[a]lthough the trial court heard the testimony of many witnesses and
received in evidence many exhibits, the instant constitutional question involved mixed
questions of law and fact that are predominantly legal, if not purely legal questions,
which are subject to de novo review.’ (McKee II, supra, 207 Cal.App.4th at p. 1338.)
The court then explained that its independent review of the evidence required it to
                                              18
determine ‘whether the People presented substantial evidence to support a reasonable
inference or perception that the [SVPA]’s disparate treatment of SVP’s is necessary to
further compelling state interests.’ (Id. at p. 1339.) That standard is consistent with the
applicable standard of review the Supreme Court articulated in McKee I: ‘When a
constitutional right, such as the right to liberty from involuntary confinement, is at stake,
the usual judicial deference to legislative findings gives way to an exercise of
independent judgment of the facts to ascertain whether the legislative body “ ‘has drawn
reasonable inferences based on substantial evidence.’ ” ’ (McKee I, supra, 47 Cal.4th at
p. 1206.)” (People v. McDonald, supra, 214 Cal.App.4th at p. 1379.)
       Rose nevertheless asserts that the appellate court in McKee II did not apply a de
novo standard, pointing to the opinion’s references to “substantial evidence.” McKee II
concluded “the trial court correctly found the People presented substantial evidence to
support a reasonable perception by the electorate that SVP’s present a substantially
greater danger to society than do MDO’s or NGI’s, and therefore the disparate treatment
of SVP’s under the Act is necessary to further the People’s compelling interests of public
safety and humane treatment of the mentally disordered.” (McKee II, supra, 207
Cal.App.4th at pp. 1330-1331.) Nothing in McKee II suggests that the appellate court
used the word “substantial” to refer to the substantial evidence test rather than to
constitutional sufficiency of the evidence. The court understood that the burden was on
the government to present sufficient evidence to satisfy the strict scrutiny standard. (See
id. at pp. 1335, 1338, fn. 3.)
       Rose insists that the reviewing court in McKee II applied the rational basis test.
Reasonable speculation establishing the rationality of a legislative classification,
unsupported by evidence or empirical data in the record, meets the rational basis test.
(See Heller v. Doe by Doe (1993) 509 U.S. 312, 319-321.) The court clearly understood
the strict scrutiny test applied and it required the government to present evidence showing
“both a compelling state interest justifying the disparate treatment and that the disparate
                                             19
treatment is necessary to further that compelling state interest. [Citations.]” (McKee II,
supra, 207 Cal.App.4th at p. 1349.)
       Citing a number of United States Supreme Court cases, Rose argues that the
appellate court in McKee II improperly considered evidence not before the electorate that
approved Proposition 83. The cases cited by Rose stand for the principle that an
after-the-fact rationalization for a challenged classification does not satisfy the strict
scrutiny standard of review. (See, e.g., U.S. v. Virginia (1996) 518 U.S. 515, 533 [a
state’s justification for a challenged gender classification “must be genuine, not
hypothesized or invented post hoc in response to litigation”], 535-536 [“a tenable
justification” for gender classification “must describe actual state purposes, not
rationalizations for actions in fact differently grounded”]; Shaw v. Hunt (1996) 517 U.S.
899, 908, fn. 4 [“[A] racial classification cannot withstand strict scrutiny based upon
speculation about what ‘may have motivated’ the legislature. To be a compelling
interest, the State must show that the alleged objective was the legislature's ‘actual
purpose’ for the discriminatory classification [citation], and the legislature must have had
a strong basis in evidence to support that justification before it implements the
classification.”].)
       We do not think McKee I departs from that principle. The higher recidivism rate
of sex offenders was a central concern declared in Proposition 83 itself, which was set
forth in the official voter’s guide. (Official Voter’s Information Guide, Gen. Elec. (Nov.
7, 2006), text of Prop. 83, § 2, subd. (b), p. 127.) The Supreme Court determined that
Proposition 83’s “legislative findings recited in the ballot initiative do not by themselves
justify the differential treatment of SVP’s.” (McKee I, supra, 47 Cal.4th at p. 1207.)
“When a constitutional right, such as the right to liberty from involuntary confinement, is
at stake, the usual judicial deference to legislative findings gives way to an exercise of
independent judgment of the facts to ascertain whether the legislative body ‘has drawn
reasonable inferences based on substantial evidence.’ [Citations.]” (Id. at p. 1206.)
                                              20
Since “the government ha[d] not yet shown that the special treatment of SVP’s is validly
based on the degree of danger reasonably perceived as to that group, nor whether it arises
from any medical or scientific evidence” (id. at p. 1210), McKee I gave the People “an
opportunity to make the appropriate showing on remand.” (Id. at p. 1208; see id. at
p. 1210 [“legislative distinctions in classes of persons subject to civil commitment” must
be “factually based”].) We are, of course, bound by the California Supreme Court’s
decision. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
       Rose also contends that the McKee II’s equal protection analysis was flawed
because it did not evaluate whether the challenged provisions of the SVPA were narrowly
tailored. (See McKee II, supra, 207 Cal.App.4th at pp. 1348-1349.) We agree that the
strict scrutiny test is not satisfied if there is an equally efficacious but less constitutionally
burdensome means (i.e., less restrictive alternative) of accomplishing a compelling state
interest. (See, e.g., Citizens United v. FEC (2010) 558 U.S. 310, 340; Zablocki v. Redhail
(1978) 434 U.S. 374, 388-389 ; Dunn v. Blumstein (1972) 405 U.S. 330, 342-342.)
However, as stated, the McKee II court understood that the strict scrutiny test required
the government to “show both a compelling state interest justifying the disparate
treatment and that the disparate treatment is necessary to further that compelling state
interest. [Citations.]” (McKee II, supra, at p. 1349.) Given the evidence produced in
McKee II by the People that many SVP’s do not participate in treatment and paraphilia
disorders are pervasive, persist for a lifetime, and are not treatable with medication (id. at
pp. 1345-1346), it appears McKee II reached the correct result. Rose has not suggested
any less drastic means of protecting the compelling state interests at stake. Narrow
tailoring to serve a compelling state interest does not require exhaustion of every
conceivable alternative. (See Grutter v. Bollinger (2003) 539 U.S. 306, 339.)
       Rose also complains that McKee II failed to address or distinguish In re Calhoun
(2004) 121 Cal.App.4th 1315 (Calhoun). Calhoun found that “[f]or purposes of the law
concerning the right to refuse antipsychotic medication, MDO’s and SVP’s are similarly
                                               21
situated.” (Id. at p. 1351; see McKee I, supra, 47 Cal.4th at p. 1203 [citing Calhoun to
support conclusion SVP’s and MDO’s are similarly situated].) Calhoun held that, under
equal protection principles, SVP’s had the same right as MDO’s to refuse antipsychotic
medication. (Calhoun, supra, at pp. 1322, 1350-1354.)
        Calhoun focused on whether there were any differences between SVP’s and
MDO’s regarding the need for and effectiveness of antipsychotic medication and it found
the government “failed to demonstrate a compelling state interest that justifies the
distinction between MDO’s and SVP’s concerning the [committee’s] right to refuse
antipsychotic medication.” (Calhoun, supra, 121 Cal.App.4th at pp. 1353-1354.) In
contrast, McKee II found significant differences in SVP’s and MDO’s recidivism rates,
dangerousness, and diagnosis and treatment. (McKee II, supra, 207 Cal.App.4th at
pp. 1340-1347.) Calhoun does not, as Rose claims, reveal a defect in McKee II’s logic.
As Justice Chin has observed, “[t] he exact criteria for medicating mentally disordered
offenders is an entirely different matter from the procedures adopted for releasing them
into society.” (McKee I, supra, 47 Cal.4th at p. 1220, fn. 4 (conc. & dis. opn. of Chin,
J.).)
        We find the equal protection arguments advanced in this appeal are without merit
and do not require a remand for a further evidentiary hearing.
2. Indeterminate Commitment Does Not Violate Due Process
        Rose argues that the indeterminate term of commitment violates due process. He
acknowledges, however, that McKee I rejected a due process challenge to the SVPA.
(See McKee I, supra, 47 Cal.4th at pp. 1188-1193.) In reaching that conclusion, the
California Supreme Court partially relied on Jones v. United States (1983) 463 U.S. 354,
an NGI case. (See McKee I, supra, at p. 1191.) The court stated in part: “Although
McKee was not found not guilty by reason of insanity, he has been found beyond a
reasonable doubt in his initial commitment to meet the definition of an SVP. That
finding is, for present constitutional purposes, the functional equivalent of the NGI
                                            22
acquittal in Jones.” (Ibid.) It concluded that “as in Jones, the requirement that McKee,
after his initial commitment, must prove by a preponderance of the evidence that he is no
longer an SVP does not violate due process.” (Ibid.) Rose insists that his case is
different from McKee I because the evidence suggests that his actuarial prediction of
future recidivism will soon be reduced to zero and, therefore, his commitment is not the
functional equivalent of an NGI commitment.
       In McKee I, the Supreme Court determined with respect to the due process
challenge: “After Proposition 83, it is still the case that an individual may not be held in
civil commitment when he or she no longer meets the requisites of such commitment.
An SVP may be held, as the United States Supreme Court stated under similar
circumstances, ‘as long as he is both mentally ill and dangerous, but no longer.’
(Foucha v. Louisiana (1992) 504 U.S. 71, 77, 112 S.Ct. 1780.) Given that the denial of
access to expert opinion when an indigent individual petitions on his or her own to be
released may pose a significant obstacle to ensuring that only those meeting SVP
commitment criteria remain committed, we construe section 6608, subdivision (a), read
in conjunction with section 6605, subdivision (a), to mandate appointment of an expert
for an indigent SVP who petitions the court for release.” (McKee I, supra, 47 Cal.4th at
p. 1193.) The court then held that the SVPA, as construed, “does not violate the due
process clause.” (Ibid.)
       We are bound by McKee I (Auto Equity Sales, Inc. v. Superior Court, supra, 57
Cal.2d at p. 455) and must reject Rose’s due process contention.
3. No Violation of the Ex Post Facto or Double Jeopardy Clause
       A judicial determination that a law is not punitive “removes an essential
prerequisite” for both double jeopardy and ex post facto claims. (Kansas v. Hendricks
(1997) 521 U.S. 346, 369.) In McKee I, the Supreme Court concluded: “[T]he
nonpunitive objectives of the [SVP] Act—treatment for the individual committed and
protection of the public—remain the same after Proposition 83. Moreover, under the Act
                                             23
after Proposition 83, as before, a person is committed only for as long as he meets the
SVP criteria of mental abnormality and dangerousness. As such, the Proposition 83
amendments at issue here cannot be regarded to have changed the essentially nonpunitive
purpose of the Act.” (McKee I, supra, 47 Cal.4th at p. 1194.)
       After considering “the seven-factor test articulated in Kennedy v.
Mendoza-Martinez (1963) 372 U.S. 144, 168-169” (McKee I, supra, 47 Cal.4th at
p. 1195), the Supreme Court held that “the Proposition 83 amendments do not make the
Act punitive and accordingly do not violate the ex post facto clause.” (Ibid.) Again, we
are bound by McKee I. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at
p. 455.) The Supreme Court’s determination that the SVPA is not punitive is also
dispositive of Rose’s double jeopardy claim. (See Kansas v. Hendricks, supra, 521 U.S.
at p. 369.)
                                     DISPOSITION
       The August 17, 2012 order of commitment is affirmed.




                                            24
                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
PREMO, J.
