Filed 9/18/13 P. v. Shamon CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062137

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. MH105983)

SIMON SHAMON,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Charles G.

Rogers, Judge. Affirmed.

         Chris Truax, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Heather M.

Clark, Deputy Attorneys General, for Plaintiff and Respondent.

         Simon Shamon appeals from an order under the Sexually Violent Predator Act

(Act) (Welf. & Inst. Code, § 6600 et seq.) committing him to the State Department of
Mental Health, now State Department of State Hospitals, for treatment and confinement

in a secured facility for an indeterminate term. He contends the court prejudicially erred

by permitting the People's experts to testify he was "likely" to engage in "sexually violent

predatory offenses" in the future as these are legal issues and the experts' testimony

invaded the jury's province. He additionally contends, like the appellant in People v.

McKee (2010) 47 Cal.4th 1172 (McKee I), his indeterminate commitment violates equal

protection principles. We conclude these contentions lack merit and affirm the order.

                                     BACKGROUND

       To establish Shamon was a sexually violent predator under the Act, the People had

to prove Shamon had been convicted of a sexually violent offense against one or more

victims. The parties stipulated Shamon previously pleaded guilty to and was imprisoned

for forcible rape (Pen. Code, § 261, subd. (a)(2)) and forcible rape by a foreign object

(Pen. Code, § 289, subd. (a)(1)). The parties do not dispute these crimes were sexually

violent offenses and the court so instructed the jury.

       The People also had to prove Shamon was dangerous because he had a diagnosed

mental disorder that made him "likely" to engage in "sexually violent predatory offenses"

in the future. Finally, the People had to prove Shamon needed to be confined in a secure

facility to ensure the health and safety of others. (Welf. & Inst. Code, § 6600, subd.

(a)(1); Cooley v. Superior Court (2002) 29 Cal.4th 228, 243; CALCRIM No. 3454.)

       To meet their burden, the People offered the testimony of two psychologists who

evaluated Shamon. One diagnosed Shamon with schizoaffective disorder, exhibitionism,

and polysubstance dependence. The other diagnosed Shamon with schizophrenia and

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methamphetamine abuse. Both opined Shamon met the statutory criteria for

classification as a sexually violent predator.

       The doctors testified at length about the bases for their opinions. These bases

included: the nature of Shamon's mental illness as well as his related auditory and visual

hallucinations and his unwillingness to voluntarily take medication; the details of his rape

offenses; the details of his other assaultive conduct before and during his incarceration;

the fact his victims were strangers or casual acquaintances; his hypersexuality or sexual

preoccupation, lack of impulse control, and disregard for consequences, as partially

evidenced by his repeated violations of prison rules proscribing indecent exposure and

public masturbation; his past drug abuse and stated desire to resume abusing drugs upon

his release; his history of superficial relationships; lack of age- or health-related

impediments to reoffending; and the results of multiple actuarial assessments.

       Shamon countered with testimony from three other psychologists who evaluated

him. The first psychologist initially diagnosed Shamon with a paraphilic disorder not

otherwise specified (NOS), nonconsenting female; schizoaffective disorder, bipolar type;

exhibitionism; methamphetamine dependence; and cannabis dependence. She also

initially believed Shamon was a sexually violent predator. She later reevaluated him and

decided he did not have a paraphilic disorder and, therefore, was not a sexually violent

predator.

       The second psychologist also diagnosed Shamon with schizoaffective disorder,

bipolar type as well as amphetamine dependence. Although the second psychologist

believed Shamon's disorder predisposed him to commit sexual offenses, she did not

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believe he was likely to commit another sexually violent predatory offense in the future

because the information in Shamon's records did not show Shamon preferred to have sex

using force and violence.

          The third, independently retained psychologist likewise diagnosed Shamon with

schizoaffective disorder and methamphetamine dependence. She also diagnosed him

with a cognitive disorder NOS and substance abuse NOS. However, she believed

Shamon's mental disorder did not predispose him to commit criminal sexual acts and,

consequently, he was not likely to engage in sexual violent predatory behavior in the

future.

                                        DISCUSSION

                                              I

                               Expert Witness Testimony Claim

          Before trial, Shamon moved to preclude the People from introducing expert

testimony on whether Shamon's prior offenses were "predatory." The court denied the

motion.

          On appeal, Shamon contends the court erred by allowing the People's experts to

testify he was "likely" to engage in "sexually violent predatory offenses" in the future

because these are legal issues and the experts' testimony invaded the jury's province.1




1      For the same reasons, he also contends a court should not allow an expert to testify
a past offense is a "sexually violent offense." He acknowledges, however, this is not an
issue in this case because of the parties' stipulation and the court's instruction regarding
his prior offenses.
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We recently rejected this same contention in People v. Lowe (2012) 211 Cal.App.4th 678

(Lowe).

       In reaching our conclusion in Lowe, we first noted "[e]xpert opinion testimony is

generally admissible if it relates to a subject sufficiently beyond common experience that

the expert's opinion would assist the trier of fact. (Evid. Code, § 801, subd. (a).) Expert

opinion testimony is not inadmissible merely 'because it embraces the ultimate issue to be

decided by the trier of fact.' (Evid. Code, § 805.) As the California Supreme Court

explained, 'There is no hard and fast rule that the expert cannot be asked a question that

coincides with the ultimate issue in the case. "We think the true rule is that admissibility

depends on the nature of the issue and the circumstances of the case, there being a large

element of judicial discretion involved. . . . Oftentimes an opinion may be received on a

simple ultimate issue, even when it is the sole one, as for example where the issue is the

value of an article, or the sanity of a person; because it cannot be further simplified and

cannot be fully tried without hearing opinions from those in better position to form them

than the jury can be placed in." ' " (Lowe, supra, 211 Cal.App.4th at p. 684, citing People

v. Wilson (1944) 25 Cal.2d 341, 349.)

       We then acknowledged that expert opinion may not invade the jury's province and

an expert may not express a general belief as to how the jury should decide a case.

(Lowe, supra, 211 Cal.App.4th at p. 684.) However, we explained this limitation does

not "categorically preclude a qualified mental health expert from giving an opinion and

explaining why a person meets or does not meet statutory criteria for classification as a

sexually violent predator. [Citations.] The Act specifically contemplates the trier of fact

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will have the benefit of expert opinion and analysis. [Citation.] Such opinion and

analysis is unquestionably helpful to the trier of fact as the diagnosis, treatment, and

prognosis of people suffering from mental and personality disorders is well beyond

common experience. Moreover, as we previously recognized, 'In civil commitment

cases, where the trier of fact is required by statute to determine whether a person is

dangerous or likely to be dangerous, expert prediction may be the only evidence

available.' [Citations.]" (Id. at pp. 684-685.)

       As in Lowe, the People's experts in this case did not merely express a general

belief the jury should find Shamon to be a sexually violent predator. They explained in

extensive detail why they believed Shamon met the statutory criteria for this

classification. Their explanations include references to Shamon's personal and social

history, his substance abuse history, the circumstances of his prior rapes and assaults, his

postincarceration conduct, actuarial assessment results, and other information gleaned

during their interviews with him. In addition, the People's experts formed their opinions

independently and, while they reached the same general conclusion for the same general

reasons, the specifics of their opinions varied. This variance, along with the contrasting

opinions of Shamon's experts, required the jury to carefully evaluate the expert testimony

and not, as Shamon suggests, mindlessly adopt the opinions of the People's experts.

Accordingly, we conclude the court did not err by allowing the People's experts to testify




                                              6
why they believed Shamon was "likely" to engage in "sexually violent predatory

offenses" in the future.2

                                             II

                                  Equal Protection Claim

         Like the appellant in McKee I, supra, 47 Cal.4th 1172, Shamon contends his

indefinite commitment under the Act violates equal protection principles because he is

subject to a greater burden to obtain release than persons committed under the Mentally

Disordered Offenders Act (Pen. Code, § 2960 et seq.) or after being found not guilty by

reason of insanity (Pen. Code, § 1026.5, subd. (a)). The California Supreme Court did

not decide this issue in McKee I. Instead, it remanded the matter to us and directed us to

remand the matter to the trial court for an evidentiary hearing to determine whether the

People could demonstrate a constitutionally sufficient basis for the disparate treatment of

people committed as sexually violent predators. (McKee I, supra, 47 Cal.4th at pp. 1208-

1209.)

         The trial court conducted the required hearing and determined the People met their

burden of justifying the disparate treatment. We recently affirmed the trial court's

decision on appeal. (People v. McKee (2012) 207 Cal.App.4th 1325, 1330-1331

(McKee II).) Specifically, we stated "the disparate treatment of [sexually violent

predators] under the Act is reasonable and factually based and was adequately justified

by the People at the evidentiary hearing on remand. Accordingly, we conclude the Act


2       Given our conclusion, we need not address the People's assertion that Shamon
forfeited portions of his arguments by failing to raise them below.
                                              7
does not violate McKee's constitutional equal protection rights." (Id. at p. 1348.) We

based our conclusion on the People's evidence showing: (1) sexually violent predators

bear a substantially greater risk to society than mentally disordered offenders and people

found not guilty by reason of insanity; (2) sexually violent predators are significantly

more likely to recidivate; (3) sexually violent predators pose a greater risk and unique

dangers to particularly vulnerable victims, such as children; and (4) the diagnoses and

treatment needs of sexually violent predators differ from mentally disordered offenders

and people found not guilty by reason of insanity. (Id. at p. 1347.)

       Shamon contends we wrongly decided McKee II because we did not require the

state to show commitment under the Act was the least restrictive means of achieving the

state's compelling interest. However, as we explained in McKee II, "We are unaware of

any case applying the 'least restrictive means available' requirement to all cases involving

disparate treatment of similarly situated classes. On the contrary, our review of equal

protection case law shows [the prevailing standard is a two-part test requiring the state to

establish] 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, 207 Cal.App.4th at pp. 1349-1350.) Shamon has not persuaded us that

our analysis was flawed, and at least one other appellate court has agreed with it. (People

v. McDonald (2013) 214 Cal.App.4th 1367, 1380.) As our holding and reasoning in




                                              8
McKee II applies to this case as well, we conclude Shamon's indeterminate commitment

under the Act does not violate equal protection principles.

                                     DISPOSITION

       The order is affirmed.


                                                                  MCCONNELL, P. J.

WE CONCUR:


MCDONALD, J.


O'ROURKE, J.




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