Filed 11/25/13 P. v. Welch CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039086
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 211349)

         v.

KENDYL WELCH,

         Defendant and Appellant.



         Appellant Kendyl Welch was committed to the custody of the Department of State
Hospitals1 for an indeterminate term in 2010, 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.).2 This court rejected all but one of his challenges to
the order of commitment and remanded the case “for the limited purpose of reconsidering
Welch’s equal protection claim in light of [People v.] McKee [(2010) 47 Cal.4th 1172
(McKee I)”] once the proceedings in that case became final. (People v. Welch
(Apr. 3, 2012, H035567) [nonpub. opn.] (Welch I).) The California Supreme Court


1
       The SVPA was amended effective June 27, 2012 to reflect that the Department of
Mental Health is now the Department of State Hospitals (DSH). (Stats. 2012, ch. 24,
§§ 63, 65, 138-146, pp. 85, 117-124.)
2
      Further statutory references are to the Welfare and Institutions Code unless
otherwise noted.
denied Welch’s petition for review. (Welch I, supra, review den. June 27, 2012,
S202473.)
       Meanwhile, the trial court on remand in McKee I held an evidentiary hearing on
McKee’s equal protection claim, rejected it, and committed him as an SVP. The Fourth
District Court of Appeal affirmed, and the California Supreme Court denied review.
(People v. McKee (2012) 207 Cal.App.4th 1325, 1347-1348 (McKee II), review den.
Oct. 10, 2012, S204503.)
       With the decision in McKee II final, the trial court committed Welch to the
custody of the DSH “as previously ordered.” Welch filed a timely notice of appeal from
the trial court’s November 9, 2012 order. He contends that (1) “McKee II is not binding
on [him] because he is dissimilarly situated from McKee and is entitled to his own
evidentiary hearing” and that (2) “the McKee II court incorrectly applied the law
regarding the alleged equal protection violation.” We affirm.


                                       I. Background
       Since the facts of Welch’s crimes are irrelevant to the issues he raises on appeal,
we do not repeat them.


                                       II. Discussion
                            A. The SVPA and Proposition 83
       The SVPA provides for the involuntary civil commitment of persons found to be
SVP’s beyond a reasonable doubt at trial. (People v. Williams (2003) 31 Cal.4th 757,
764.) An SVP is “a person who has been convicted of a sexually violent offense against
one or more victims and who has a diagnosed mental disorder that makes the person a
danger to the health and safety of others in that it is likely that he or she will engage in
sexually violent criminal behavior.” (§ 6600, subd. (a)(1).)


                                               2
       The SVPA as originally enacted provided for a two-year commitment, renewable
for successive terms if the People proved beyond a reasonable doubt at a new trial that
the committed person remained an SVP. (Former § 6604, Stats. 1995, ch. 763, § 3.)
There were two ways an SVP could obtain review of his or her current mental condition
to determine if civil confinement was still necessary. (People v. Cheek (2001) 25 Cal.4th
894, 898 (Cheek).) Former section 6608 permitted the SVP to petition, without the
concurrence of the DSH, for conditional release to a community treatment program.
(Cheek, at p. 898.) Former section 6605, which called for an annual review of a
committed SVP’s mental status, provided a procedure that, with the concurrence of the
DSH, could lead to unconditional release. (Cheek, at p. 898.)
       The SVPA was amended in 2006 by Proposition 83. (McKee I, supra, 47 Cal.4th
at p. 1183.) Among other modifications, “Proposition 83 also change[d] an SVP
commitment from a two-year term to an indefinite commitment.” (McKee I, at p. 1186.)
Under the amended SVPA, “[a]n SVP can only be released conditionally or
unconditionally if the [DSH] authorizes a petition for release and the state does not
oppose it or fails to prove beyond a reasonable doubt that the individual still meets the
definition of an SVP, or if the individual, petitioning the court on his own, is able to bear
the burden of proving by a preponderance of the evidence that he is no longer an SVP. In
other words, the method of petitioning the court for release and proving fitness to be
released, which under the former Act had been the way an SVP could cut short his two-
year commitment, now becomes the only means of being released from an indefinite
commitment when the [DSH] does not support release.” (McKee I, at pp. 1187-1188.)


            B. Equal Protection and the McKee I and McKee II Decisions
       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
                                              3
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.” [Citations.]’ ” (McKee I, supra, 47 Cal.4th at
pp. 1218-1219.)
       In McKee I, the California Supreme Court held that SVP’s, MDO’s (Pen. Code,
§ 2960 et seq.), and NGI’s (Pen. Code, § 1026 et seq.) are similarly situated. (McKee I,
supra, 47 Cal.4th at pp. 1203, 1207.) The court also concluded that McKee’s disparate
treatment claim required application of the strict scrutiny standard. (Id. at pp. 1197-
1198.) “Because neither the People nor the court below properly understood this
burden,” the McKee I court decided, the People would have an opportunity to make the
appropriate showing on remand. (Id. at pp. 1207-1208.) “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.” (Id. at
p. 1208.) This could be shown in a variety of ways, the court explained, including by
demonstrating that the “inherent nature of the SVP’s mental disorder” makes recidivism
by SVP’s “significantly more likely” or that “SVP’s pose a greater risk to a particularly
vulnerable class of victims.” (Ibid.) The court 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 California’s electorate.” (Id. at
p. 1210.)
       On remand, the trial court conducted a 21-day evidentiary hearing. (See McKee II,
supra, 207 Cal.App.4th at p. 1330.) Experts testified that SVP’s have a higher risk of
recidivism, that victims of sexual offenses suffer “unique and, in general, greater trauma”
than victims of nonsex offenses, and that SVP’s “are significantly different from MDO’s
                                              4
and NGI’s diagnostically and in treatment.” (Id. at pp. 1340-1347.) Concluding that this
justified the disparate treatment of SVP’s, the trial court rejected McKee’s equal
protection claim. (McKee II, at p. 1330.)
       The Court of Appeal reviewed the evidence de novo. (McKee II, supra, 207
Cal.App.4th at pp. 1340-1347.) The court concluded that “the People on remand met
their burden to present substantial evidence, including medical and scientific evidence,
justifying the amended Act’s disparate treatment of SVP’s (e.g., by imposing
indeterminate terms of civil commitment and placing on them the burden to prove they
should be released). (McKee [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, at p. 1347.)


                                 C. Welch’s Contentions
       Welch contends that the McKee II court’s findings and conclusions bind only
McKee. He maintains that he has a due process right to present evidence and to argue at
trial that a life commitment cannot validly be imposed on him. We disagree.
       Welch first argues that he and McKee are “dissimilarly situated” because his
victims were adult women while McKee’s victims were children. An argument based on
                                              5
the same distinction was rejected in People v. McKnight (2012) 212 Cal.App.4th 860
(McKnight). We agree with the McKnight court that the analysis and holding in McKee II
do not turn on concerns specific to child predators. (McKnight, at p. 863; see McKee II,
supra, 207 Cal.App.4th at p. 1347 [stating multiple bases for the court’s finding that
SVP’s as a class bear a substantially greater risk to society, which warrants imposing a
greater burden on them before they can be released from commitment].)
       Welch next argues that the California Supreme Court “did not purport to resolve
definitively the constitutionality of the SVP law” but on the contrary “implicitly
determined” in McKee I that an equal protection judgment must be made in each case on
an as applied rather than a class basis. We disagree.
       Other courts have rejected this argument, and properly so. (E.g., McKnight, supra,
212 Cal.App.4th at pp. 863-864; People v. McDonald (2013) 214 Cal.App.4th 1367,
1378 (McDonald).) As the McKnight court explained, the McKee I court “recognized
that the People could attempt to justify the Act’s disparate impact in a variety of ways,
and that these included showing that SVP’s as a class are significantly more likely to
reoffend than MDO’s or NGI’s, showing they pose a greater risk to children (in which
case the equal protection analysis would apply only to child predators), or by other,
unspecified means. [Citation.] In light of that recognition, the Court transferred the
multiple ‘grant and hold’ cases under McKee I, including this one, to the Courts of
Appeal with directions to vacate their prior opinions and suspend further proceedings
until the McKee I remand proceedings were final, ‘in order to avoid an unnecessary
multiplicity of proceedings.’ [Citations.] On remand, McKee [II] concluded that
differences between SVP’s as a class and other offenders justify their different treatment
under the Act. It is plain that McKee II is not to be restricted to [McKee] alone or only to
those SVP’s convicted of crimes against children . . . , but rather its holding applies to the
class of SVP’s as a whole.” (McKnight, at pp. 863-864; accord, McDonald, at p. 1378.)
We agree with the McKnight and McDonald courts’ conclusion that the high court’s
                                              6
emphasis on classwide proof, together with its suspension of activity in grant-and-hold
cases to avoid an unnecessary multiplicity of proceedings, demonstrates that it intended
the equal protection challenge to the amended SVPA be resolved on a class basis in
McKee II. (McKnight, at pp. 863-864; McDonald, at p. 1378.)
       Welch next argues that the McKee II court improperly applied a deferential rather
than a de novo standard of review, as evidenced by its discussion of the applicable
standard, which “referred . . . three times to the ‘substantial evidence’ standard.” We
disagree.
       A court applying the deferential substantial evidence standard of review “ ‘must
view the evidence in a light most favorable to [the judgment] and presume in support of
the judgment the existence of every fact the trier could reasonably deduce from the
evidence.’ [Citation.]” (People v. Johnson (1980) 26 Cal.3d 557, 576; see Jackson v.
Virginia (1979) 443 U.S. 307, 318-320.) That is not what the McKee II court did here.
       Addressing the standard of review, McKee II court stated that “McKee asserts, and
we agree, that we review de novo the trial court’s determination whether the Act, as
amended by Proposition 83, violates his equal protection rights. We independently
determine whether the People presented substantial, factual evidence to support a
reasonable perception that SVP’s pose a unique and/or greater danger to society than do
MDO’s and NGI’s, thereby justifying the disparate treatment of SVP’s under the Act.”
(McKee II, supra, 207 Cal.App.4th at p. 1338, italics added.) The court rejected the
People’s argument that it should defer to the trial court’s findings of historical fact and
credibility determinations. (Id. at p. 1338, fn. 3.) Observing that “the trial court’s
statement of decision did not make any express findings regarding disputed historical
facts or the credibility of certain witnesses,” the court declared that it was “in as good a
position as the trial court to decide whether the evidence presented by the People during
the remand hearing satisfied their burden to justify the disparate treatment of SVP’s
under the Act.” (Ibid., italics added.) The court ultimately agreed with the trial court that
                                              7
the People had produced substantial evidence to justify the disparate treatment. (Id. at
pp. 1330-1331.) The McKee II court’s review was plainly de novo.
       The McKee II court’s statement that “[i]n independently reviewing the evidence
admitted at the remand hearing, we must determine whether the People presented
substantial evidence to support a reasonable inference or perception that the Act’s
disparate treatment of SVP’s is necessary to further compelling state interests” does not
compel a contrary conclusion. (McKee II, supra, 207 Cal.App.4th at p. 1339.) The
quoted statement’s reference to “substantial evidence” reflects nothing more than the
McKee II court’s adherence to the standard the high court directed it to follow. In McKee
I, the high court explained that “[w]hen 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.]” (McKee I, supra, 47 Cal.4th at pp. 1206-1207.) The McKee II
court followed this standard.
       Welch next complains that the McKee II court applied a rational basis rather than a
strict scrutiny test. We disagree.
       In McKee I, the high court directed the trial court to apply the equal protection
principles articulated in In re Moye (1978) 22 Cal.3d 457 (Moye) and related cases
discussed in McKee I 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.” (McKee I, supra, 47
Cal.4th at pp. 1208-1209.) In Moye, which involved an equal protection challenge to a
civil commitment statute, the high court articulated the strict scrutiny standard as follows:
“[T]he state must establish both that it has a ‘compelling interest’ which justifies the
challenged procedure and that the distinctions drawn by the procedure are necessary to
further that interest.” (Moye, at p. 465.)
                                              8
       The McKee II court applied that standard. It independently reviewed the evidence
and concluded that the People had shown that the legislative distinctions between classes
of persons subject to civil commitment were reasonable and factually based. (McKee II,
supra, 207 Cal.App.4th at p. 1347.) Specifically, the People had shown that recidivism
among SVP’s as a class is more likely than among either MDO’s or NGI’s, that SVP’s
pose a greater risk to a particularly vulnerable class of victims, and that they have
“significantly different diagnoses” and significantly different treatment plans,
compliance, and success rates than MDO’s and NGI’s have. (McKee II, at p. 1347.) The
court concluded that these distinctions justified disparate treatment, which was
“necessary to further the state’s compelling interests in public safety and humanely
treating the mentally disordered.” (Ibid.) This satisfied the strict scrutiny standard.
       Welch argues, however, that “[t]he portion of the opinion addressing the [trial
court’s] three factual findings does not use language indicating [that] ‘the state has a
compelling interest in treating the three classes differently.’ ” The argument lacks merit.
The McKee II court expressly stated that the significant differences between the three
classes “support[ed] a reasonable perception by the electorate . . . 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.” (McKee II,
supra, 207 Cal.App.4th at p. 1347, italics added.)
       Welch also argues that strict scrutiny “requires an analysis of whether the different
treatment of the classes is actually necessary.” We disagree.
       The People were not required to show that SVP’s are actually more dangerous as a
class. In remanding the case, the McKee I court stated that “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. [¶] Moreover, we emphasize that mere disagreement among experts will not
                                              9
suffice to overturn the Proposition 83 amendments. The trial court must determine
whether the legislative distinctions in classes of persons subject to civil commitment are
reasonable and factually based—not whether they are incontrovertible or
uncontroversial.” (McKee I, supra, 47 Cal.4th at pp. 1210-1211, fn. omitted, italics
added.) The McKee II court relied on evidence that scores on the Static-99 test, which
assesses the risk that a sex offender will commit sex offenses, were significantly higher
for SVP’s than for MDO’s and NGI’s. (McKee II, supra, 207 Cal.App.4th at pp. 1340-
1342.) It complied with the high court’s directions.
       Welch next complains that the evidentiary hearing in McKee II improperly
focused on evidence that was “irrelevant to a correct strict scrutiny analysis”—i.e., on
evidence that lawmakers might have considered before enacting Proposition 83 and the
amended SVPA. “The only evidence any court should have been reviewing,” Welch
asserts, “was that showing the actual intent of the voters who passed Proposition 83 and
the [L]egislature that passed S.B. 1128.” We disagree.
       Welch’s reliance on Mississippi University for Women v. Hogan (1982) 458 U.S.
718 (MUW) and United States v. Virginia (1996) 518 U.S. 515 (Virginia) is misplaced.
Those cases stand for the proposition that parties seeking to defend gender-based
government action must demonstrate an “exceedingly persuasive justification” for that
action. (MUW, at pp. 728-730 [holding that university’s female-only admissions policy,
as applied to males seeking admission to the university’s school of nursing, violated
equal protection where, “although the State recited a ‘benign, compensatory purpose,’ it
failed to establish that the alleged objective [wa]s the actual purpose underlying the
discriminatory classification,” italics added]; Virginia, at pp. 534-536 [noting that “[i]n
cases of this genre, our precedent instructs that ‘benign’ justifications proffered in
defense of categorical exclusions will not be accepted automatically; a tenable
justification must describe actual state purposes, not rationalizations for actions in fact
differently grounded,” and holding that the state had shown “no ‘exceedingly persuasive
                                             10
justification’ for excluding all women from the citizen-soldier training afforded by VMI.”
(Italics added)].) MUW and Virginia are inapposite because the government action
challenged in McKee II (and here) is not based on gender or any other suspect
classification.3
        Welch next contends that the McKee II court “should have required that the
SVPA amendments be narrowly tailored to serve their purported purpose.” Asserting
that “authority for that proposition is abundant,” he criticizes the McKee II court for
stating “that McKee failed to cite any authority requiring that such a law be narrowly
tailored.”
       McKee cited Bernal v. Fainter (1984) 467 U.S. 216 to support his argument.
(McKee II, supra, 207 Cal.App.4th at p. 1349.) In Bernal, the United States Supreme
Court stated that “[i]n order to withstand strict scrutiny, the law must advance a
compelling state interest by the least restrictive means available.” (Bernal, at p. 219.)
The McKee II court described the quoted sentence from Bernal as “probable dictum,”
distinguishing Bernal because it involved a suspect class, alienage. (McKee II, at
p. 1349.) “We are unaware of any case applying the ‘least restrictive means available’
requirement to all cases involving disparate treatment of similarly situated classes,” the
McKee II court wrote. (Ibid.) “On the contrary, our review of equal protection case law
shows the two-part test, as discussed in Moye and McKee [I], is the prevailing


3
       Shaw v. Hunt (1996) 517 U.S. 899 (Shaw), Hampton v. Mow Sun Wong (1976)
426 U.S. 88 (Wong), and Weinberger v. Wiesenfeld (1975) 420 U.S. 636 (Wiesenfeld), on
which Welch also relies, are inapposite for the same reason. (Shaw, at pp. 902, 915
[North Carolina redistricting scheme, which segregated voters into “separate and bizarre-
looking districts on the basis of race,” violated equal protection where “the remedy . . .
[wa]s not narrowly tailored to the asserted end.”]; Wong, at pp. 115-116 [invalidating, as
violative of equal protection, Civil Service Commission regulations excluding most
noncitizens from most federal employment positions]; Wiesenfeld, at pp. 638-639, 645,
648 [invalidating, as violative of equal protection, gender-based distinction granting
Social Security survivor’s benefits to widows but not to widowers].)

                                             11
standard. . . . Therefore, in strict scrutiny cases, the government must show both a
compelling state interest justifying the disparate treatment and that the disparate
treatment is necessary to further that compelling state interest. [Citations.] We are
unpersuaded the electorate that passed Proposition 83 in 2006 was required to adopt the
least restrictive means available (e.g., a two-year or other determinate term of civil
commitment) in disparately treating SVP’s and furthering the compelling state interests
of public safety and humane treatment of the mentally disordered.” (McKee II, at
p. 1349.)
       We agree with the McKee II court’s analysis of this issue. We note that Moye, like
McKee II and like this case, involved an equal protection challenge to a civil commitment
statute. The high court in McKee I specifically instructed the trial court, on remand, to
“determine whether the People, applying the equal protection principles articulated in
Moye and related cases discussed in the [McKee I court’s] opinion,” could demonstrate
that imposing a greater burden on SVP’s than on MDO’s or NGI’s to obtain release from
confinement was necessary to promote the state’s compelling interest in public safety and
humane treatment of the mentally ill. (McKee I, supra, 47 Cal.4th at p. 1208, italics
added.)
       The cases Welch cites are inapposite. In Skinner v. Oklahoma (1942) 316 U.S.
535 (Skinner), the United States Supreme Court reversed a judgment directing that the
defendant be sterilized under Oklahoma’s Habitual Criminal Sterilization Act, holding
that the statute violated equal protection. “[S]trict scrutiny of the classification which a
State makes in a sterilization law is essential,” the court declared. (Skinner, at p. 541.)
“When the law lays an unequal hand on those who have committed intrinsically the same
quality of offense [e.g. grand larceny and embezzlement] and sterilizes one and not the
other, it has made as invidious a discrimination as if it had selected a particular race or
nationality for oppressive treatment.” (Ibid.) In United States v. Brandon (6th Cir. 1998)
158 F.3d 947, 956 (Brandon), a nondangerous pretrial detainee challenged a district court
                                              12
order denying him a judicial hearing on whether he could be forcibly medicated with
antipsychotic drugs to render him competent to stand trial. (Brandon, at p. 949.) Noting
that the issue involved the inmate’s First Amendment interest in avoiding forced
medication that could interfere with his ability to communicate ideas, his Fifth
Amendment liberty interest in being free from bodily intrusion, and his Sixth
Amendment right to a fair trial, the court concluded that due process considerations
required a judicial hearing and that the district court should apply the strict scrutiny
standard on remand. (Brandon, at pp. 953-955, 957.) In Sanchez v. City of Modesto
(2006) 145 Cal.App.4th 660, 678 (Sanchez), the court rejected a facial challenge to the
California Voting Rights Act, holding that because the statute is nondiscriminatory, it is
subject to rational basis review, not strict scrutiny. (Sanchez, at p. 680.) None of these
decisions involved an equal protection challenge to a civil commitment statute. Moye
did, and the California Supreme Court specifically instructed that it be followed on
remand in McKee. (McKee I, supra, 47 Cal.4th at p. 1208.) The McKee II court did not
err in following the high court’s directive to apply the equal protection principles
articulated in Moye.
       Welch next contends that the McKee II court’s failure to distinguish In re Calhoun
(2004) 121 Cal.App.4th 1315 (Calhoun) “demonstrates [that] its equal protection analysis
is flawed and should be rejected.” We disagree.
       In Calhoun, the court held that “[e]qual protection principles require that an SVP
be provided with the same right as an MDO to refuse antipsychotic medication.”
(Calhoun, supra, 121 Cal.App.4th at p. 1351.) The two groups were similarly situated
“for purposes of the law concerning the right to refuse antipsychotic medication,” the
court explained, and the People had failed to demonstrate a compelling state interest that
justified a distinction between them in that regard. (Id. at pp. 1352-1354.)
       Calhoun is easily distinguished. The equal protection issue in Calhoun turned on
the absence of differences between SVP’s and MDO’s with respect to the need for, and
                                              13
the effectiveness of, antipsychotic medication. (McKee II, supra, 207 Cal.App.4th at
p. 1352.) The equal protection issue in McKee II, by contrast, turned on the differences
between the two groups with respect to recidivism rates, dangerousness, and diagnoses
and treatment. (Id. at pp. 1340-1347.) That the Calhoun court found no justification for
treating SVP’s and MDO’s differently with respect to forced medication does not mean
there can be no justification for treating them differently with respect to their release into
society. The inquiries are entirely different.


                                      III. Disposition
       The November 9, 2012 order committing Welch to the custody of the DSH for an
indeterminate term is affirmed.




                                           ___________________________
                                           Mihara, J.



WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Grover, J.


                                              14
