Filed 3/1/13 P. v. Purcell CA6
Opinion on remand from Supreme Court
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H033795
                                                                    (San Benito County
         Plaintiff and Respondent,                                   Super. Ct. No. CU0127684)

         v.

LANCE DUANE PURCELL,

         Defendant and Appellant.



         Lance Duane Purcell appeals from an order involuntarily committing him for an
indeterminate term to the custody of the Department of Mental Health (Department) after
a jury found him to be a sexually violent predator (SVP) within the meaning of the
Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)1 Appellant
contends: (1) the trial court erred in allowing evidence of prior SVP commitments to be
the focus of the trial, which shifted the burden of proof to him to prove he was no longer
an SVP; (2) the trial court lacked jurisdiction because the Department failed to evaluate
appellant pursuant to a valid protocol; and (3) an indeterminate SVP commitment violates
due process, equal protection, ex post facto and double jeopardy provisions of the state
and federal Constitutions.


1
       All further statutory references are to the Welfare and Institutions Code unless
stated otherwise.
                                                                                             2



       In August 2010, we rejected most of appellant‟s challenges to the petition to
extend his commitment under the SVPA (People v. Purcell (Aug. 30, 2010, H033795)
[nonpub. opn.]). However, we remanded the case for proceedings solely on the equal
protection claim consistent with People v. McKee (2010) 47 Cal.4th 1172 (McKee I). In
December 2010, the California Supreme Court granted appellant‟s petition for review and
transferred the case back to our court with directions to vacate our decision and to
suspend further proceedings pending finality of the proceedings on remand in McKee I,
including any appeal and proceedings in the California Supreme Court. As directed, we
vacated our decision and suspended further proceedings.
       After the trial court in McKee I conducted further proceedings on McKee‟s equal
protection claim, it issued an order committing him as an SVP. McKee appealed, and the
Fourth Appellate District affirmed the commitment order. (People v. McKee (2012) 207
Cal.App.4th 1325 (McKee II).) Accordingly, we have lifted the suspension.
       Having considered appellant‟s constitutional contentions in light of McKee I and
McKee II as well as his other contentions, we affirm the order of commitment.


                                  I. Statement of Facts
       At trial, appellant stipulated that he had suffered qualifying convictions that are
predicate offenses under the SVPA. He raped 18-year-old Barbara and 14-year-old
Caroline in 1976, and was sentenced to prison. After his release, he attempted to rape
two other women, Diane and Sally, and he was convicted of assault with a deadly
weapon, false imprisonment and attempted rape in 1983.
       Dr. Nancy Rueschenberg testified as a prosecution expert. She interviewed
appellant in May 2007 and reviewed his criminal and institutional records. At that time,
he was 60 years old.
                                                                                           3

       Dr. Rueschenberg testified regarding appellant‟s developmental history. This
history included: his mother was sexually abused by her father and she beat her three
sons; appellant saw his older brother rape his younger brother; his mother
institutionalized his older brother; his brother taught appellant to masturbate; and a
minister attempted to fondle appellant. Appellant was married at age 22 to Nona. During
that relationship, he exposed himself every two to three days. In 1971, he married Arlane
and they lived together for five years. The marriage ended when he went to prison.
During this marriage, he talked about fantasies regarding rape, illicit sex, and child
molestation. He subsequently lived with another woman for two years. According to
Dr. Rueschenberg, appellant‟s difficulty in a relationship was a precursor to his
committing sexual offenses.
       Dr. Rueschenberg also testified regarding appellant‟s nonqualifying offenses. At
age 14, appellant was arrested for indecent exposure, but the case was closed at intake.
In May 1962, at age 15, appellant was arrested for child molestation and placed in a boys
ranch. In November 1963, he was arrested for child molestation and committed to the
California Youth Authority. After being paroled for one week, he violated parole,
including victimizing a three-year-old girl. In 1965, at age 18, appellant approached a
nine-year-old girl, told her he was a police officer, and asked her to pull down her
underwear or he would report her to the police department. Appellant then pulled down
his own pants and began masturbating. Appellant was committed as a mentally
disordered offender and sent to Atascadero State Hospital (Atascadero).
       After his release from the hospital at the age of 22, appellant was arrested four
times for indecent exposure. In 1976, he approached an 11-year-old girl and a 10-year-
old girl and made them looked at a magazine depicting sexual acts. He was also charged
with the attempted kidnappings of a nine-year-old girl and an 11-year-old girl, both of
whom he attempted to force into his car at gunpoint. In addition, he approached a four-
year-old girl and was charged with annoying and molesting a child based on his attempt
                                                                                               4

to get her into his car so they could play “nasty.” The attempted kidnapping and
molestation charges were dismissed as part of the plea agreement for the qualifying
offenses.
       In 1982, appellant was released from prison, and he attempted to rape Diane and
Sally. After his release from prison in 1989, he violated his parole less than six months
later when he approached a seven-year-old child and a nine-year-old child as they were
walking home from school and showed them photos of naked men and women. He also
approached a 14-year-old child and a 15-year-old child and showed them an obscene
photo. Following his release for the parole violations, appellant was not in custody for
two and one-half years. He then attempted to kidnap a five-year-old girl at gunpoint.
Earlier that day, he had attempted to kidnap an eight-year-old girl. Appellant had also
put masking tape over the license plate of his van and had a wig and glasses.
       According to Dr. Rueschenberg, it was significant that appellant‟s sexual offenses
began prior to age 15, he committed offenses as both a juvenile and an adult, he had four
qualifying offenses, he had several other offenses that could have been qualifying
offenses, and he had at least 22 victims. She also noted that he continued to commit
sexual offenses despite repeated incarcerations.
       Dr. Rueschenberg concluded that appellant had a diagnosable mental disorder that
predisposed him to committing criminal sex acts. She diagnosed him with paraphilia not
otherwise specified, pedophilia, exhibitionism, alcohol abuse, personality disorder with
antisocial and narcissistic traits. The paraphilia diagnosis referred to “recurrent, intense
sexually arousing thoughts, fantasies, urges or behaviors involving . . . the suffering or
humiliation of one‟s self or one‟s partner, or children or other non-consenting persons.”
According to Dr. Rueschenberg, paraphilia and pedophilia are considered chronic,
lifelong conditions. She also noted that “[t]here was some indication that it goes down
with age. There‟s no specific age cut-off. It has more to do with whether the person is
healthy or not, whether or not they have completed treatment, if they‟re cooperative with
                                                                                              5

supervision, if they have a stable romantic relationship, things like that.” Based on these
risk factors, Dr. Rueschenberg did not “adjust downward for [appellant‟s] age.”
       Dr. Rueschenberg evaluated appellant, using the Static-99, which is an actuarial
tool that estimates an individual‟s risk for sexual reoffense. Appellant‟s score of 9 placed
him at high risk to reoffend. His score was the highest of any patient that she had ever
evaluated. A patient who scores 6 or above has a 27 percent chance of reoffense within
five years, and a 33.5 percent of reoffense within 10 years. Dr. Rueschenberg conceded
that the Static-99 is historical and not predictive. However, she considered other static
and dynamic factors relating to appellant to confirm the risk assessment of the Static-99.
Appellant also scored 15 on the MnSOST-R, which is considered very high risk.
       Dr. Rueschenberg believed that appellant was likely to reoffend in a sexually
violent predatory manner if released from custody. Though Dr. Rueschenberg
acknowledged that appellant had not committed an offense in 15 years, she pointed out
that the “fact that someone hasn‟t acted out in a strictly controlled environment is not
proof that they no longer suffer from a paraphilic disorder.” She also noted that appellant
has reoffended every time that he has been released into the community and has failed to
complete treatment.
       Appellant told Dr. Rueschenberg that “he used to be the SVP poster boy,” but that
was no longer true. He also reported that his sex drive had diminished because he
stopped masturbating. According to Dr. Rueschenberg, appellant was found not
amenable to treatment while he was at Atascadero in 1960. After his crimes in 1976,
appellant received no treatment in prison. However, appellant enrolled in the five-phase
treatment program at Atascadero following his most recent commitment. He completed
Phase I, entered Phase II, and was recommended to Phase III. However, appellant did
not enter Phase III because he declined to participate in covert sensitization. Covert
sensitization involves creating and writing detailed deviant sexual fantasies. Appellant
told Dr. Rueschenberg that he had refused to participate in covert sensitization because he
                                                                                            6

was no longer having deviant sexual fantasies. His view was that if he was forced to
have deviant sexual fantasies, it would be “going backwards.”
       Appellant testified that he admitted the SVP petition and was committed to
Atascadero in 2002. He participated in Phase I of the treatment program and assumed
responsibility for the harm he inflicted on others. In July 2000, he stopped his deviant
fantasies and his obsessive preoccupation with sex. He stopped masturbating for six
months to a year. When appellant was first incarcerated in the 1960‟s, he did not believe
that he would be successful upon release. He believed that he would not reoffend upon
his release in 1982, but he was wrong. Appellant explained that he was still having
deviant sexual fantasies at that time. When he was released in 1989, he was not as
certain that he would not reoffend as he had been in 1982. According to appellant, he
had no “paraphilia to trigger at this point.” He believed that he had completely changed
over the last eight years and he will not reoffend if released.
       Two expert witnesses testified for the defense. Dr. Jay Adams interviewed
appellant and reviewed his records. She diagnosed him with paraphilia not otherwise
specified and exhibitionism “by history,” that is, his disorder was no longer active. She
noted that there was no evidence in the last 15 years that appellant had exhibited anything
relating to paraphilia or exhibitionism. She also testified that there was very little
research that paraphilia is a life-long condition. The chance of reoffending after age 60 is
“probably less than 5 percent.”
       Dr. Adams reviewed appellant‟s treatment history. She noted that he began
treatment as soon as he could, which was unusual, and completed three years of
treatment. In Dr. Adams‟s opinion, appellant‟s reasons for refusing to participate in
covert sensitization were “very well-founded,” because research has shown that its
effectiveness is “minimal to none.” She also testified that the staff at Coalinga State
Hospital attempted to drop covert sensitization from the program, but were not authorized
to do so. According to Dr. Adams, appellant understood his treatment, was committed to
                                                                                            7

treatment, and his understanding had helped him to deal with his issues. She also
testified that there is no research to support a requirement that sex offenders must
complete all five phases of the state hospital treatment program to ensure that they are
capable of functioning in the community. Based on appellant‟s age and his participation
in treatment, Dr. Adams found that he was not likely to reoffend if released from custody.
Thus, she concluded that he did not meet the SVP criteria.
       Dr. Charlene Steen also interviewed and evaluated appellant. In addition to
reviewing his developmental and criminal history, Dr. Steen noted that she had worked
with appellant in 1983 and remembered him as a “very troubled young man.” According
to Dr. Steen, appellant had “done a lot of work” on relapse prevention, that is, he
identified his risk factors and learned how to “handle them more appropriately.”
       Dr. Steen administered a variety of psychological tests to appellant. He scored in
the normal range on tests of his cognitive ability, had no anger issues, and scored very
low on the Hare Psychopathy Checklist. His score on the Millon Clinical Multiaxial
Inventory reinforced her conclusion that appellant did not have a personality disorder,
and he “barely qualified” as a having a substance abuse disorder on the Substance Abuse
Subtle Screening Inventory. Regarding substance abuse, Dr. Steen noted that appellant
had not used alcohol or drugs since 1995 despite their availability.
       Dr. Steen diagnosed appellant with mental disorders “by history” because they
were “not active now.” They are: paraphilia not otherwise specified for sex with
nonconsenting adults; pedophilia; alcohol abuse; and exhibitionism. According to
Dr. Steen, the Static-99 is not accurate for individuals over age 60. She also testified that
the rate of reoffense is lower with age and treatment. The likelihood of reoffense after
age 60 is “very, very small” or about 3 percent.
       Dr. Steen concluded that appellant was not likely to reoffend based on his age, his
completion of various programs, including Father Miskella‟s Thinking Skills for Offense
Prevention, and Phases I and II treatment, participation in AA for three years, and family
                                                                                             8

support. Dr. Steen acknowledged that appellant dropped out of Phase III treatment, but
noted that he continued to participate in other treatment programs. In her view, covert
sensitization programs have not proven to be very effective. She testified that appellant
has developed strategies to not have deviant sexual fantasies and has not had these
fantasies for eight years. In her opinion, it would be “foolish” for him to participate in
covert sensitization.
       Dr. Jesus Padilla, a clinical psychologist and co-chair of the “SVP design team,”
conducted a study to assess the effectiveness of the SVP treatment program. The study
compared those released with treatment and those who had been released without
treatment. There were 93 individuals who had not received treatment. In this group,
there was a 6 percent recidivism rate for sex crimes, and of that 6 percent, there was a
4 percent recidivism rate for sexually violent crimes. There were seven individuals who
completed Phase IV in the hospital and Phase V in the community. None of these
individuals reoffended.


                                      II. Discussion
                          A. Evidence of Prior SVP Commitments
       Appellant contends that the trial court erred in allowing evidence of his prior SVP
commitments to become the focus of the trial, thereby shifting the burden of proof to him
to prove he was no longer an SVP. Relying on People v. Munoz (2005) 129 Cal.App.4th
421 (Munoz), appellant argues that the jury “was repeatedly asked to compare [his]
present mental status with earlier findings that he was an SVP,” and “the complete focus
of this case was proving that [he] had not changed.” Appellant also argues that he was
deprived of his federal constitutional right to due process.
       In Munoz, the appellant filed a pretrial motion to exclude evidence of his two prior
SVP commitments, arguing that “a danger existed the jury would not address the core
elements of his SVP status, e.g., whether he suffered from a mental disorder, and would
                                                                                             9

simply consider whether there had been any change in his mental status and level of
dangerousness since his last commitment.” (Munoz, supra, 129 Cal.App.4th at p. 426.)
The trial court admitted the evidence, “but only for the purpose of showing such history.”
(Ibid.)
          During the examination of the expert witness in Munoz, the prosecutor noted that
the appellant was committed to the state hospital in 1998 and 2000. The expert witness
agreed that her assignment was “ „to evaluate essentially [appellant‟s] progress and to
determine whether or not he continues to meet that criteria under the SVP law.‟ ”
(Munoz, supra, 129 Cal.App.4th at p. 427.) The appellant testified that he did not suffer
from a mental disorder and that his prior sex offenses were the result of substance abuse.
(Ibid.) On cross-examination, the prosecutor asked the appellant whether he held that
belief in 1992 and why he did not contest the experts‟ findings in 1998. (Ibid.) When the
appellant stated that he did not remember the case, he was shown the minute order in
which he waived his right to trial and submitted the matter. The minute order, which was
admitted into evidence, reflected that the trial court committed the appellant as an SVP.
(Munoz, at pp. 427-428.) The prosecutor also questioned the appellant about the 2000
recommitment proceeding. (Munoz, at p. 428.)
          During opening argument, the prosecutor in Munoz argued that the appellant was
an SVP and that “there had been no change in him during his two years at the state
hospital.” (Munoz, supra, 129 Cal.App.4th at p. 428.) In closing argument, the
prosecutor told the jury that it had previously petitioned for the appellant to be committed
as an SVP and that the appellant did not contest the claim in 1998. (Ibid.)
          Munoz reasoned that “[i]t is tempting in the SVP recommitment context to
characterize the issue as whether anything has changed since the last determination such
that the defendant is no longer an SVP. This, however, is a potentially prejudicial
mischaracterization. [The prosecutor] is required in a recommitment proceeding to prove
beyond a reasonable doubt that the defendant is an SVP, not that he is still an SVP. The
                                                                                              10

danger in this mischaracterization is that it may suggest to a jury that the defendant must
prove he is no longer an SVP; in any case it certainly lessens [the prosecutor‟s] burden by
improperly establishing a datum of mental disorder and dangerousness. As we have
concluded, each recommitment requires [the prosecutor] independently to prove that the
defendant has a currently diagnosed mental disorder making him or her a danger. The
task is not simply to judge changes in the defendant's mental state. [¶] . . . [¶] While it is
proper, when relevant, to take judicial notice of the prior finding, it is improper to take
notice of the truth of that finding. [Citations.] Thus, if there is some legal consequence
to the fact of a prior SVP finding, a trier of fact may take judicial notice of it. However,
the factual truth of any prior determination that the defendant then had a mental disorder
and was as a result dangerous are not the proper subject of judicial notice. [¶] The prior
finding 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. [Citations.]” (Munoz, supra, 129 Cal.App.4th at pp. 430- 431.) Based on the
“manner in which the prosecutor questioned witnesses, the evidence the trial court
admitted, and the manner in which [the prosecutor] argued the case suggested that the
issue was whether anything had changed since appellant‟s prior SVP commitment,” the
court reversed the order. (Munoz, at p. 432.)
       In claiming that Munoz compels reversal in the present case, appellant focuses on
the prosecutor‟s arguments, Dr. Rueschenberg‟s testimony, and the prosecutor‟s
questioning of him.
       At the end of opening argument, the prosecutor stated: “And what is known in
this case is that Mr. Purcell has been committing sex crimes since he was 14 years
old. . . . You‟ll also hear that he committed those type of acts -- as the judge said, you‟re
going to hear atrocious acts that he‟s committed. The only time he didn‟t is when he got
locked up. He got locked up, he didn‟t commit any more acts, was released, committed
                                                                                             11

those acts again, got locked up, was released, committed those acts again, and was locked
up.” The prosecutor continued: “The other thing that Dr. Rueschenberg is going to
explain for you is something you‟re probably feeling as a general premise, as something
intuitive, which is the best indicator for future action is past action. And something we
know in this case is that Mr. Purcell has repeatedly committed these types of crimes, then
been repeatedly locked up, and repeatedly reoffended when he was released. We know
that. No dispute with respect to that.” After summarizing the various crimes that
appellant committed between 1965 and 1989, the prosecutor stated: “And what we have
is a man who has committed all those different acts after repeated convictions and
releases. . . . The best predictor of future action is past action. And that‟s what we have
in front of us. No dispute there. As I said, given all you can consider and you will
consider and that you will hear from Dr. Rueschenberg, her opinion is that [appellant] is
in fact likely to reoffend without continued treatment and supervision.”
       Appellant also points out that Dr. Rueschenberg referred to his past behavior. She
testified that “the staff at Atascadero had noted that he tends to get very religious when
he‟s in prison, and that when he‟s out in the community seems not to be able to adhere to
those things.” She also testified that appellant “wasn‟t out of prison very long before he
committed offenses again.” She testified that his primary diagnosis at Coalinga State
Hospital was paraphilia, not otherwise specified, pedophilia, exhibitionism, and alcohol
abuse. She further testified: “So when he was in prison in the „70s, he didn‟t expose
himself. He didn‟t molest children. He didn‟t rape women. And he got out and did so.
When he was in prison in the „80s, he didn‟t do any of those things, and when he got out,
he did so. Now he‟s back in prison, was in prison in the „90s, and he hasn‟t been able to
get out.”
       In questioning appellant, the prosecutor asked: “[W]hen you were first locked up
back in the „60s, a very young man, and you were incarcerated, and you were about to be
released, did you believe then that you wouldn‟t recommit [sexual offenses]?” The
                                                                                               12

prosecutor next asked: “And after you were arrested again, after you did those crimes to
those young girls, and you were incarcerated, and you received some treatment . . . did
you at the time of your release in that instance believe that you were good to go . . . ?”
The prosecutor clarified that he was referring to appellant‟s release in 1968. The
prosecutor then asked: “And after your convictions in 1976, when you were ultimately
released -- [¶] . . . [¶] in 1982, did you believe that you were not going to reoffend?”
Appellant replied that he believed that, but he was wrong. The prosecutor asked:
“What‟s the difference between then and now?” The prosecutor also asked whether
appellant believed that he would reoffend when he was released in 1989. Appellant
responded that he “felt [he] would give it a good shot.” The prosecutor then asked:
“What was the difference between 1982 and 1989?” The prosecutor next asked whether
appellant had expressed his reservations about his ability to not reoffend to anyone in
1989. Later, the prosecutor asked: “Can you point to anything tangible that should make
anyone believe that you‟re likely to act differently than you have acted every other time
you have had the opportunity to be out in society?”
       In his closing argument, the prosecutor argued: “What I think it comes down to in
this case is that Mr. Purcell is saying, „Trust me. I‟m better now. And my doctors trust
me. So you should believe what they say and you should find that I‟m not a sexually
violent predator.‟ But I think all of you would agree with me there‟s no reason
whatsoever to trust Lance Purcell.” He also argued: “But the fact is that the best
indicator that we have, especially with respect to Lance Purcell, is the fact that he has
reoffended over and over and over and over and over. He committed these awful crimes.
[¶] Early on he didn‟t really seek treatment, he was found unamenable to treatment, but
later on he said, yeah, when he was ready to get out, he thought that this was it. He got
locked up again, after not thinking he was going to reoffend. He was in prison for a very
long time. Got out again thinking he was okay, he was going to meet up with his ex-wife
and start to get in re-touch with his family, but when that fell through, he did it again. I
                                                                                             13

can‟t stress that enough. We have got a long track history.” The prosecutor later argued
that appellant “just wants the opportunity to show that he‟s a cured man. All those awful
things that you saw, the man who did those awful things, that‟s not him anymore.” The
prosecutor‟s final statement was: “He hasn‟t changed. The only thing that‟s changed is
he‟s been locked up longer than the last couple times. That‟s all. He hasn‟t had the
chance to reoffend. Don‟t give him that opportunity.”
       In contrast to Munoz, here, the prosecutor‟s focus was not whether appellant had
changed between his prior SVP commitments and the trial. None of the questions or
comments by the prosecutor or Dr. Rueschenberg‟s testimony referred to the prior SVP
commitment findings. Instead, the prosecutor and Dr. Rueschenberg referred to
appellant‟s past criminal offenses and behavior. Through argument and the introduction
of evidence of appellant‟s actions and beliefs when he committed the sexual offenses and
his current actions and beliefs, the prosecutor sought to focus the jury‟s attention on an
assessment of appellant‟s credibility as well as a determination as to whether he was
currently an SVP. None of these arguments or the evidence suggested that the jury‟s task
was “to compare [appellant‟s] present mental status with an earlier finding that he or she
is an SVP.” (Munoz, supra, 129 Cal.App.4th at p. 432.)
       Appellant also refers to the prosecutor‟s questions regarding why he admitted the
original SVP petition and a portion of the prosecutor‟s closing argument that referred to
the findings by prior juries that he was an SVP.
       When appellant testified, the prosecutor asked: “Now, in January of 2002, when
you first came up for commitment, if you will, under the SVP law, you at that time
waived and admitted the initial petition; is that correct?” After appellant explained why
he admitted the original petition, the prosecutor impeached him with testimony from his
subsequent recommitment trial regarding his reasons for admitting the first petition.
Unlike in Munoz, this questioning was not designed to suggest that appellant‟s previous
admissions to being an SVP tended to prove that he was still an SVP. Instead, the
                                                                                            14

prosecutor was eliciting evidence relevant to an assessment of appellant‟s credibility
since his defense was that he had stopped having sexual fantasies, and thus was not likely
to reoffend.
       During closing argument, the prosecutor referred to various studies produced by
the defense that indicated extremely low rates of reoffense by individuals over age 60.
He stated: “But my point was those numbers they threw out are irrelevant. None of
those cases talks about a sexually violent predator who was found to be a sexually violent
predator. Why? Because if you find he‟s a sexually violent predator, he‟s not getting
out. The people in those studies, all of them, were released because they were found not
be to sexually violent predators. [¶] Two other juries have found him to be a sexually
violent predator. At least four other doctors, five other doctors, including this case, have
found him to be a sexually violent predator. That‟s what he is.” Taken in context, the
prosecutor‟s reference to the prior juries‟ and doctors‟ SVP findings did not suggest to
the jury that appellant was required to “prove that he is no longer an SVP.” (Munoz,
supra, 129 Cal.App.4th at p. 430.) Rather, the prosecutor was emphasizing that the
studies were irrelevant because the participants in those studies were not SVP‟s while
appellant had been found to be an SVP.
       In sum, we disagree with appellant‟s claim that the prosecutor “based his entire
case on the fact that appellant had been committed before, released before, and
reoffended.” Here, appellant‟s extensive history of sexual offenses was relevant to a
determination of his current mental disorder. However, the admission of this evidence
did not render the trial fundamentally unfair. Nor did it effectively shift the burden of
proof to him to prove that he was no longer an SVP.


                                  B. Motion to Dismiss
       Appellant next contends that the trial court erred in denying his motion to dismiss
the petition to recommit him as an SVP on the ground that his evaluation by mental
                                                                                               15

health professionals was conducted pursuant to an invalid protocol or “underground
regulation.”
       Section 6601, subdivision (c) requires that the Department develop and update a
“standardized assessment protocol” (protocol) by which to evaluate individuals who may
be SVP‟s. The protocol must “require assessment of diagnosable mental disorders, as
well as various factors known to be associated with the risk of reoffense among sex
offenders. Risk factors to be considered shall include criminal and psychosexual history,
type, degree, and duration of sexual deviance, and severity of mental disorder.” Only
after two professional mental health evaluators agree that an individual meets the criteria
for being an SVP based on the protocol does the Department file a petition for
involuntary commitment under the SVPA. (§ 6601, subds. (c)-(f), (h).)
       “The purpose of this evaluation is not to identify SVP‟s but, rather, to screen out
those who are not SVP‟s. „The Legislature has imposed procedural safeguards to prevent
meritless petitions from reaching trial. “[T]he requirement for evaluations is not one
affecting disposition of the merits; rather, it is a collateral procedural condition plainly
designed to ensure that SVP proceedings are initiated only when there is a substantial
factual basis for doing so.” ‟ (People v. Scott (2002) 100 Cal.App.4th 1060, 1063.) The
legal determination that a particular person is an SVP is made during the subsequent
judicial proceedings, rather than during the screening process. (Ibid.)” (People v.
Medina (2009) 171 Cal.App.4th 805, 814 (Medina).)
       The Department published the Clinical Evaluator Handbook and Standardized
Assessment Protocol (2007) for the purpose of conducting the SVP evaluations
prescribed under section 6601. In August 2008, the Office of Administrative Law (OAL)
concluded that certain provisions of this handbook met the definition of a regulation and
that these provisions should have been adopted pursuant to the Administrative Procedures
Act (APA) (Gov. Code, § 11340 et seq.). (2008 OAL Determination No. 19, p. 13.) A
regulation that is adopted in violation of the APA is invalid and is called an
                                                                                           16

“ „[u]nderground regulation.‟ ” (Cal. Code Regs., tit. 1, § 250.) While an OAL
determination is not binding on this court, it is entitled to deference. (Grier v. Kizer
(1990) 219 Cal.App.3d 422, 431, disapproved on another ground in Tidewater Marine
Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 577 (Tidewater).)
       Appellant claims that the Department‟s failure to evaluate him pursuant to a valid
protocol deprived the trial court of fundamental jurisdiction.
       In In re Ronje (2009) 179 Cal.App.4th 509 (Ronje), the petitioner brought a
petition for writ of habeas corpus, arguing that the assessment protocol used to evaluate
him as an SVP was invalid as an underground regulation. (Ronje, at p. 513.) In
determining whether the protocol was subject to the APA, Ronje relied on the test
articulated in Tidewater, supra, 14 Cal.4th 557. Tidewater stated: “ „A regulation subject
to the APA thus has two principal identifying characteristics. [Citation.] First, the
agency must intend its rule to apply generally, rather than in a specific case. The rule
need not, however, apply universally; a rule applies generally so long as it declares how a
certain class of cases will be decided. [Citation.] Second, the rule must “implement,
interpret, or make specific the law enforced or administered by [the agency], or . . .
govern [the agency‟s] procedure.” [Citation.]‟ ” (Ronje, at p. 516.) Ronje concluded that
the protocol met both prongs of the Tidewater test. (Ronje, at p. 516.)
       The People argue, however, that the challenged portions of the protocol do not
meet the second portion of the first Tidewater prong. They assert that the “protocol left
up to the evaluators‟ independent professional judgment whether or not an individual
meets the SVP criteria. The protocol did not declare how all SVP evaluations, or „class
of cases‟ should be decided. Instead, it provided a guide for the independent evaluators
to use in making their decisions.” We need not address this argument because we agree
with the People‟s position that, even assuming the protocol was invalid, the trial court
was not deprived of fundamental jurisdiction and appellant has failed to demonstrate
prejudice.
                                                                                             17

       In Ronje, the reviewing court held that the use of an invalid assessment protocol
did not deprive the trial court of fundamental jurisdiction. (Ronje, supra, 179
Cal.App.4th at p. 517.) Appellant argues that Ronje was wrongly decided. We disagree.
       Ronje reasoned: “The term „jurisdictional in the fundamental sense‟ means the
„legal power to hear and determine a cause.‟ ([People v.] Pompa-Ortiz [(1980)] 27
Cal.3d [519,] 529.) „Lack of jurisdiction in its most fundamental or strict sense means an
entire absence of power to hear or determine the case, an absence of authority over the
subject matter or the parties.‟ (Abelleira v. District Court of Appeal (1941) 17 Cal.2d
280, 288 [Abelleira].)” (Ronje, supra, 179 Cal.App.4th at p. 518.) Lack of jurisdiction
may also be applied more broadly to cases in which, “though the court has jurisdiction
over the subject matter and the parties in the fundamental sense, it has no „jurisdiction‟
(or power) to act except in a particular manner, or to give certain kinds of relief, or to act
without the occurrence of certain procedural prerequisites.” (Abelleira, at p. 288.)
“Issues relating to jurisdiction in its fundamental sense indeed may be raised at any time.
[Citations.] By contrast, issues relating to jurisdiction in its less fundamental sense may
be subject to bars including waiver . . . and forfeiture . . . .” (People v. Mower (2002) 28
Cal.4th 457, 474, fn. 6.)
       Medina, supra, 171 Cal.App.4th 805 is instructive. In that case, the defendant
argued that the Department had failed to evaluate him pursuant to a valid protocol, and
thus the trial court lacked jurisdiction to proceed. (Medina, at p. 811.) The Medina court
reasoned: “As to personal jurisdiction, there is no evidence to suggest, and Medina does
not contend, that he lacked minimum contacts with the State of California [citations] or
that he was not served with the documents necessary to initiate proceedings. [Citations.]
As to subject matter jurisdiction, the superior court was undoubtedly the appropriate
court to hear the commitment petition (Welf. & Inst. Code, §§ 6602, 6604), and there is
no claim of untimeliness. (See Litmon v. Superior Court (2004) 123 Cal.App.4th 1156,
1171.)” (Medina, at p. 816.) Thus, the court concluded that the issue was whether “the
                                                                                              18

court acted in excess of its jurisdiction, rather than without fundamental jurisdiction.”
(Ibid.) The court then held that the defendant forfeited his challenge to the procedures
that occurred before the petition was filed because he admitted the allegations in the
petition. (Medina, at p. 817.)
       In an analogous case, the court in In re Wright (2005) 128 Cal.App.4th 663
(Wright) reached the same conclusion regarding the trial court‟s jurisdiction. In Wright,
the two initial evaluators did not agree on whether the defendant should be committed as
an SVP. (Wright, at p. 667.) Pursuant to section 6601, subdivision (e), two “independent
professionals” were then appointed, and the defendant was found to be an SVP following
trial. (Wright, at pp. 667-669.) The defendant appealed, and the reviewing court rejected
his sufficiency of the evidence challenge. (Wright, at p. 669.) The defendant then
brought a petition for writ of habeas corpus. (Ibid.)
       In Wright, the court assumed that one of the mental health professionals did not
meet the criteria of section 6601, subdivision (g), which required that he have a doctoral
degree in psychology. (Wright, supra, 128 Cal.App.4th at p. 672.) The court next
discussed the effect of the error. (Wright, at pp. 672-675.) Noting that the SVPA does
not require that the evaluations be alleged or appended to the petition, and the People are
not required to prove their existence at either the probable cause hearing or at trial, the
court stated the issue before it: “whether [the defendant] was deprived of due
process . . . where one of two evaluations supporting a petition was defective, but a trial
court found probable cause to proceed to trial on the petition and the individual was
committed after receiving a trial on the merits.” (Wright, at pp. 672-673.)
       Wright concluded that the trial court was not without fundamental jurisdiction.
“Illegalities in pretrial commitment proceedings that are not „jurisdictional in the
fundamental sense,‟ are not reversible error per se on an appeal from the subsequent trial.
Rather, the „defendant [must] show that he was deprived of a fair trial or otherwise
suffered prejudice as a result of the error at the preliminary examination.‟ (People v.
                                                                                             19

Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) . . . [¶] Irregularities in the preliminary
hearing under the Act are not jurisdictional in the fundamental sense and are similarly
subject to harmless error review. (People v. Talhelm [2000] 85 Cal.App.4th [400], 405.)
Thus, reversal is not necessary unless the individual can show that he or she was denied a
fair trial or had otherwise suffered prejudice. (Ibid.)” (Wright, supra, 128 Cal.App.4th at
p. 673.)
       For the reasons outlined in Ronje, Medina and Wright, any error in the present
case was not jurisdictional in the fundamental sense.
       We turn now to the issue of prejudice. As the Medina court noted, the purpose of
the evaluations is “to screen out those who are not SVP‟s . . . [and] [t]he legal
determination that a particular person is an SVP is made during the subsequent judicial
proceedings.” (Medina, supra, 171 Cal.App.4th at p. 814.) These proceedings include a
probable cause hearing (§ 6602) and a trial (§§ 6603, 6604). At the probable cause
hearing the People are required to show “the more essential fact that the alleged SVP is a
person likely to engage in sexually violent predatory criminal behavior. [Citation.]”
(People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1130.) After that
determination is made, the matter proceeds to trial where the prosecution has the burden
of proving beyond a reasonable doubt that the individual meets the criteria of the SVPA.
(§§ 6603, 6604.)
       In the present case, the trial court found that there was probable cause to believe
that appellant met the criteria of the SVPA. Following trial, a jury found him to be an
SVP. Appellant has not challenged the sufficiency of the evidence at either the probable
cause hearing or trial. Instead, he argues that “[b]ecause the procedure itself was a
flawed instrument, there is no way of knowing that the evaluations that were ultimately
the basis of [his] case were valid.” However, it is appellant‟s burden to show prejudice.
(Medina, supra, 171 Cal.App.4th at p. 819.) He has not shown that dismissal of the
petition on the ground that the protocol did not comply with the APA would have
                                                                                            20

resulted in an abandonment of the commitment proceedings. Nor has he shown that if he
had been evaluated under a valid protocol, there was a reasonable probability that he
would have been found not to be an SVP. Accordingly, appellant‟s challenge to the
evaluations supporting the petition does not justify reversal of his commitment.


                               C. Constitutional Challenges
                                 1. Statutory Background
       When the SVPA was enacted, it provided for a two-year civil commitment for
individuals who were found to be SVP‟s beyond a reasonable doubt after a trial. (People
v. Williams (2003) 31 Cal.4th 757, 764.) The two-year commitment could then be
extended after a trial in which the prosecutor carried the same burden of proof. (Former
§§ 6604, 6604.1, 6605, subds. (d), (e).)
       On November 7, 2006, the voters enacted Proposition 83. This initiative went into
effect the following day, and it amended the SVPA to extend the commitment term from
two years to indeterminate. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83,
§ 27, p. 137.)
       Under the amended SVPA, when a court or jury determines beyond a reasonable
doubt that a person is an SVP, “the person shall be committed for an indeterminate term
to the custody of the State Department of State Hospitals for appropriate treatment and
confinement . . . .” (§ 6604.) The committed person then “shall have a current
examination of his or her mental condition made at least once every year. The annual
report shall include consideration of whether the committed person currently meets the
definition of a sexually violent predator and whether conditional release to a less
restrictive alternative or an unconditional release is in the best interest of the person and
conditions can be imposed that would adequately protect the community.” (§ 6605,
subd. (a).) The Department must file this report with the court and serve it on both
parties. (Ibid.) The committed person may retain an expert to examine him or her or
                                                                                            21

have one appointed by the court if the person is indigent. (Ibid.) This expert shall have
access to the committed person‟s records. (Ibid.)
          When the Department determines that the committed person is no longer an SVP,
it authorizes him or her to file a petition for conditional release or unconditional
discharge. (§ 6605, subd. (b).) After the court receives a petition for conditional release
or unconditional discharge, it must order a show cause hearing. (Ibid.) “If the court at
the show cause hearing determines that probable cause exists to believe that the
committed person‟s diagnosed mental disorder has so changed that he or she is not a
danger to the health and safety of others and is not likely to engage in sexually violent
criminal behavior if discharged, then the court shall set a hearing on the issue.” (§ 6605,
subd. (c).) Each party has the right to experts and a jury at this hearing, and the
committed person is “entitled to the benefit of all constitutional protections that were
afforded to him or her at the initial commitment proceeding.” (§ 6605, subd. (d).) The
state bears the burden of proving beyond a reasonable doubt “that the committed person‟s
diagnosed mental disorder remains such that he or she is a danger to the health and safety
of others and is likely to engage in sexually violent criminal behavior if discharged.”
(Ibid.)
          Even if the Department does not authorize a petition, a committed person may
petition for conditional release or unconditional discharge under section 6608. In
bringing this petition, the committed person is entitled to the assistance of counsel.
(§ 6608, subd. (a).) The court may summarily deny this petition if it determines that the
petition is frivolous. (Ibid.) When the court holds a hearing on the petition, the
committed person has the burden of proof to show that he or she is no longer an SVP
based on a preponderance of evidence. (§ 6608, subd. (i).) If the trial court finds that the
committed person would not be “a danger to others due to his or her diagnosed medical
disorder while under supervision and treatment in the community, the court shall order
the committed person placed with an appropriate forensic conditional release program
                                                                                              22

. . . for one year.” (§ 6608, subd. (d).) After one year, the trial court shall hold a second
hearing to determine if the committed person should be unconditionally released. (Ibid.)
If the trial court denies the petition, the committed person must wait one year to file
another petition. (§ 6608, subd. (h).) After a section 6608 petition has been denied,
either as frivolous or after a hearing, the trial court shall deny any subsequent petitions
under section 6608 “unless it contains facts upon which a court could find that the
condition of the committed person had so changed that a hearing was warranted.”
(§ 6608, subd. (a).)
                 2. Due Process, Ex Post Facto, and Double Jeopardy
       In his opening brief, appellant argues that his indeterminate commitment under the
SVPA, as amended in 2006, violated the due process, equal protection, ex post facto, and
double jeopardy clauses of the state and federal Constitutions. In his reply brief,
appellant concedes that the California Supreme Court rejected similar due process and ex
post facto claims. (McKee I, supra, 47 Cal.4th at pp. 1193, 1195.) We are bound by this
holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)2
                                    3. Equal Protection
       Appellant contends that the SVPA violates the equal protection clause because it
makes it more difficult for those committed under the SVPA to be released than those
committed under the Mentally Disordered Offender Act (MDOA). In a supplemental
letter brief, appellant urges this court not to follow McKee II.




2
       Appellant does not refer to his double jeopardy challenge in his reply brief. We
construe his silence as a concession that the claim has no merit under McKee I, supra, 47
Cal.4th 1172. A civil commitment procedure does not constitute a second prosecution
for purposes of the double jeopardy clause. (Kansas v. Hendricks (1997) 521 U.S. 346,
369.) Since McKee I held that the amended SVPA is not punitive in nature, appellant‟s
double jeopardy contention has no merit. (McKee I, at pp. 1194-1195.)
                                                                                          23

       Both the federal and state Constitutions guarantee the right to equal protection of
the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) “ „ “The concept of the
equal protection of the laws compels recognition of the proposition that persons similarly
situated with respect to the legitimate purpose of the law receive like treatment.” ‟
[Citation.] „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.‟ ” (Cooley v. Superior Court (2002) 29 Cal.4th
228, 253.) McKee I concluded that SVP‟s are similarly situated to persons committed as
mentally disordered offenders (MDO‟s) (Pen. Code, § 2960 et seq.) and individuals
found not guilty by reason of insanity (NGI‟s) (Pen. Code, § 1026 et seq.). (McKee I,
supra, 47 Cal.4th at pp. 1203, 1207.) McKee I also held that the claim of disparate
treatment would be reviewed under the strict scrutiny standard. (McKee I, at pp. 1197-
1198.) However, McKee I concluded that “[b]ecause neither the People nor the court
below properly understood this burden, the People will have an opportunity to make the
appropriate showing on remand. It 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.” (McKee I, at pp. 1207-1208.) McKee I
suggested ways in which the People might carry this burden, including presentation of
evidence that due to the “inherent nature of the SVP‟s mental disorder” there is a greater
risk of recidivism by SVP‟s or that the “SVP‟s pose a greater risk to a particularly
vulnerable class of victims.” (McKee I, at p. 1208.) Thus, McKee I directed the People
on remand “to justify Proposition 83‟s indefinite commitment provisions . . . and
demonstrate that they are based on a reasonable perception of the unique dangers that
SVP‟s pose rather than a special stigma that SVP‟s may bear in the eyes of the
California‟s electorate.” (McKee I, at p. 1210.)
                                                                                           24

       On remand, the trial court held a 21-day evidentiary hearing. (McKee II, supra,
207 Cal.App.4th at p. 1330.) Experts testified that SVP‟s pose a higher risk of
recidivism, that victims of sexual offenses suffer greater trauma than victims of nonsex
offenses, and that SVP‟s pose significant diagnostic and treatment differences from
MDO‟s and NGI‟s. (McKee II, at pp. 1340-1347.) Based on this evidence, the trial court
rejected McKee‟s equal protection claim. (McKee II, at p. 1330.)
       Applying the de novo standard of review, the Court of Appeal reviewed the
evidence and reached the following conclusion: “[T]he 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 [I], supra, 47 Cal. 4th at p. 1207.) The People have shown
that, „notwithstanding the similarities between SVP‟s and MDO‟s [and NGI‟s], the
former as a class bear a substantially greater risk to society, and that therefore imposing
on them a greater burden before they can be released from commitment is needed to
protect society.‟ (Id. at p. 1208.) The People have shown „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. [Citation.]” (McKee II, supra, 207 Cal.App.4th at
p. 1347.)
       Appellant contends that McKee II did not properly conduct de novo review. He
asserts that the Court of Appeal was “required to independently look at the evidence
presented by both parties and determine if the findings made by the trial court were
                                                                                            25

correct,” but it did not do this. He notes that though both parties presented documentary
evidence, McKee II discussed only the prosecution‟s evidence without discussing its
credibility or reliability. No such requirement is imposed on an appellate court. McKee I
remanded the matter to allow the People to meet their burden that the SVPA‟s disparate
treatment of SVP‟s furthered a compelling state interest. (McKee I, supra, 47 Cal.4th at
pp. 1197-1198.) After independently reviewing the evidence, McKee II concluded “the
disparate treatment of SVP‟s under the Act is reasonable and factually based and was
adequately justified by the People at the evidentiary hearing on remand.” (McKee II,
supra, 207 Cal.App.4th at pp. 1339-1348.) There was no error. We also note that the
First District Court of Appeal rejected a similar challenge to McKee II, stating that the
appellant‟s “claim that the appellate court failed to independently review the trial court‟s
determination is frivolous.” (People v. McKnight (2012) 212 Cal.App.4th 860, 864.)
       Appellant next contends that McKee II misapplied the strict scrutiny test. He
argues that “[i]t was not enough to simply show that the legislature or voters could
reasonably believe that SVPs were more dangerous as a class. The prosecution had to
show that SVPs actually were more dangerous as a class. The prosecution also had to
show that the disparate treatment between SVPs, MDOs and NGIs was necessary to
protect society.” However, in remanding the case to the trial court, McKee I stated: “But
the government has 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. On remand, the government will have an opportunity to
justify Proposition 83‟s indefinite commitment provisions, . . . and demonstrate that they
are based on a reasonable perception of the unique dangers that SVP‟s pose rather than a
special stigma that SVP‟s may bear in the eyes of California‟s electorate.” (McKee I,
supra, 47 Cal.4th at p. 1210, italics added.) Thus, in applying the strict scrutiny test,
McKee II followed the language set forth in McKee I.
                                                                                               26

       Appellant also contends that the evidence presented in McKee II did not support
the ruling that SVP‟s were more dangerous than MDO‟s and NGI‟s, and thus harsher
treatment was necessary. He claims that “McKee II acknowledged that the prosecution
failed to show that SVPs had a higher sexual recidivism rate than MDOs or NGIs, but
nevertheless concluded that the evidence „supports, by itself, a reasonable inference or
perception that SVP‟s pose a higher risk of sexual reoffending than do MDO‟s or NGI‟s.‟
(McKee II, supra, at p. 1342, emphasis in original.)” McKee II relied on evidence that
the scores on the Static-99 test, which assesses the risk that a sex offender will commit
sex offenses, was higher for SVP‟s than for non-SVP sex offenders. (McKee II, supra,
207 Cal.App.4th at pp. 1340-1342.) As previously stated, McKee II followed McKee I.
       Appellant next contends that McKee II reached its conclusion that victims of
sexual abuse suffer greater trauma without any evidence regarding the trauma caused by
non-sex offenses. We disagree. McKee II relied on evidence that “[s]exual trauma
differs qualitatively from other traumas because of its intrusiveness and long-lasting
effects,” and that “[d]ysfunction, disassociation and avoidance problems after sexual
trauma are unique to sexual abuse and are not seen in victims of physical or other types
of abuse.” (McKee II, supra, 207 Cal.App.4th at pp. 1342-1343.)
       Noting that there were three separate elements under attack in McKee‟s equal
protection challenge, that is, the indeterminate commitment, the elimination of the right
to a jury trial periodically, and the shifting of the burden of proof, appellant argues that
„[t]he evidence in McKee II addressed only the issue of indeterminate commitments.”
This argument has no merit. Following independent review of the evidence, McKee II
concluded that “the disparate treatment of SVP‟s under the Act is reasonable and
factually based and was adequately justified by the People at the evidentiary hearing on
remand.” (McKee II, supra, 207 Cal.App.4th at p. 1348.)
                                                                     27

                               III. Disposition
     The order is affirmed.




                                   _______________________________
                                   Mihara, J.



WE CONCUR:




______________________________
Bamattre-Manoukian, Acting P. J.




______________________________
Márquez, J.
