Filed 5/24/13 P. v. Cefalu 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H037736
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 211284)

         v.

SALVATORE JOHN CEFALU,

         Defendant and Appellant.


         Salvatore John Cefalu appeals from an order committing him for an indeterminate
term to the custody of the Department of Mental Health (DMH) after a court trial wherein
he was found to be a “sexually violent predator” (SVP) within the meaning of the
Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.).1 He claims
the denial of his motion to dismiss the petition was reversible error requiring his
immediate release, because both the 2007 and 2009 protocols used by the evaluators were
invalid. He relies on In re Ronje (2009) 179 Cal.App.4th 509 (Ronje) to challenge the
evaluators‟ use of the 2007 protocol as an “underground” regulation. He also asserts that
the 2009 protocol is invalid because it is not a “standardized assessment protocol” within
the meaning of section 6601, subdivision (c). Defendant contends that the use of those
protocols violated his statutory and constitutional rights, and deprived the trial court of



1
      Further statutory references are to the Welfare and Institutions Code unless
otherwise noted.
fundamental jurisdiction. For reasons explained below, we find both of defendant‟s
challenges to the 2007 and 2009 protocols lack merit.
         Defendant also challenges the constitutionality of the SVPA on equal protection,
due process, ex post facto, and double jeopardy grounds. We conclude that those claims
are foreclosed by People v. McKee (2010) 47 Cal.4th 1172 (McKee I). Further, based on
the reasoning of People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II) (review den.
Oct. 10, 2012, S204503), we find no constitutional infirmity in the SVPA‟s provisions for
indeterminate commitments. We will therefore affirm the trial court‟s commitment
order.
                               I. The SVP Commitment Process
         Under the SVPA, an individual determined to be an SVP may be civilly
committed to DMH for treatment and confinement for an indeterminate term. (§ 6604.)
In order to classify a person as an SVP, it must be shown beyond a reasonable doubt that
(1) the person has been convicted of a sexually violent offense against one or more
victims; (2) the person has a diagnosed mental disorder; and (3) the person‟s mental
diagnosis makes the person likely to engage in sexually violent criminal behavior. (§
6600, subd. (a)(1).)
         Section 6601, subdivision (c), requires DMH to develop and update a
“standardized assessment protocol” for evaluating potential SVP‟s. The protocol “shall
require assessment of diagnosable mental disorders, as well as various factors known to
be associated with the risk of reoffense among sex offenders.” (§ 6601, subd. (c).) Only
after two independent mental health professionals agree under the protocol that a person
meets SVP criteria does DMH request the filing of a petition for involuntary
commitment. (§ 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.” ‟ [Citation.] The legal determination that a particular person is
an SVP is made during the subsequent judicial proceedings, rather than during the
screening process. [Citation.]” (People v. Medina (2009) 171 Cal.App.4th 805, 814
(Medina).) Those proceedings include a probable cause hearing (§ 6602) and a trial (§§
6603, 6604).
       At the probable cause hearing, the People must show that the alleged SVP is likely
to engage in sexually violent predatory criminal behavior. (People v. Superior Court
(Preciado) (2001) 87 Cal.App.4th 1122, 1130.) After such a showing, the matter may
proceed to trial, where the People have the burden of proving beyond a reasonable doubt
that the person meets all SVP criteria. (§§ 6603, 6604.) If the person is found at trial to
be an SVP, he or she is involuntarily committed to DMH for treatment and confinement
for an indeterminate term. (§ 6604.)
       We note that the SVPA was twice amended in 2006, first by Senate Bill No. 1128
(Stats. 2006, ch. 337, § 55), and then by Proposition 83 (see Cal. Const., art. II, § 10,
subd. (a)). Before those amendments, an individual determined to be an SVP was
committed to DMH for a two-year term, which could be extended for additional two-year
periods. (Former § 6604, as amended by Stats. 2000, ch. 420, § 3; former § 6604.1, as
amended by Stats. 2000, ch. 420, § 4.) With the 2006 amendments, the SVPA now
provides for an indeterminate commitment. (Stats. 2006, ch. 337, § 55; § 6604; see Cal.
Const., art. II, § 10, subd. (a).)
                                     II. Procedural History
       Because defendant does not challenge the sufficiency of the evidence supporting
the trial court‟s commitment order, we do not discuss in detail defendant‟s criminal
history of qualifying sex offenses. We focus on the petition to commit defendant as an
SVP filed by the Santa Clara County District Attorney on April 30, 2008. The petition
was supported by evaluations from Drs. Karlsson and Cassidy on behalf of DMH, as
required by section 6601. Both doctors, licensed and practicing psychologists, met with
defendant in person and reviewed all available records pertaining to defendant‟s criminal
and psychiatric history. The commitment petition alleged defendant was convicted of
three qualifying sex offenses identified in section 6600, one in 1981 and two in 1983.
The petition also alleged that defendant has a diagnosed mental disorder, which makes
him a danger to the health and safety of others in that he is likely to engage in acts of
predatory sexual violence without appropriate treatment and custody.
       Dr. Karlsson‟s first evaluation under section 6601 was prepared on April 4, 2008;
Dr. Cassidy‟s first evaluation, also under section 6601, was prepared on April 16, 2008.
Both used DMH‟s 2007 protocol. A probable cause hearing was held on May 9, May 14,
July 15, and July 16, 2008. At the conclusion of that hearing, the court found probable
cause to believe that defendant met SVP criteria within the meaning of section 6600.
       On January 19, 2010, defendant filed a motion for new section 6601 evaluations
and a new probable cause hearing based on the decision in Ronje, supra, 179 Cal.App.4th
509. Also based on Ronje, the People had requested updated evaluations from DMH
pursuant to section 6603, subdivision (c)(1), and Drs. Karlsson and Cassidy completed
the updated evaluations on April 30, 2009 and May 5, 2009, respectively. On January 21,
2010, the court granted defendant‟s motion for a new probable cause hearing and denied
defendant‟s motion for new section 6601 evaluations, without prejudice to renew the
request after the new probable cause hearing.
       Before the new probable cause hearing took place, defendant filed a motion to
dismiss on the grounds that the updated evaluations, which were prepared under DMH‟s
2009 protocol, were invalid because the 2009 protocol is not a “standardized assessment
protocol” as called for in section 6601, subdivision (c). Defendant‟s motion was
supported by declarations from Drs. Wollert and Halon, both licensed psychologists. Dr.
Wollert opined that DMH‟s 2009 protocol is not a “standardized assessment protocol, as
that term is understood in the scientific and psychological community.”
       The People argued in opposition that (1) the 2009 protocol is a “standardized
assessment protocol” within the meaning of section 6601, subdivision (c); (2) even if the
2009 protocol is not a “standardized assessment protocol,” defendant‟s constitutional
right to due process is not violated by the use of the 2009 protocol; and (3) even if the
court were to find in favor of defendant, the proper remedy would be to order new section
6601, subdivision (c) evaluations and a new probable cause hearing, not to dismiss the
petition. The People also filed the declaration of Dr. Phenix, a licensed psychologist
who, according to her declaration, “was tasked with developing the first Standardized
Assessment Protocol and provided the DMH with six updated versions as the science of
risk assessment evolved and the protocol required updating.” In discussing the meaning
of the term “standardized assessment protocol” relative to DMH‟s 2009 protocol, Dr.
Phenix declared that “a „one size fits all‟ protocol would miss the psychological
complexities of each individual evaluated.”
       Using DMH‟s 2009 protocol, both Drs. Karlsson and Cassidy reevaluated
defendant for trial, pursuant to section 6603. Dr. Karlsson‟s report was completed on
April 18, 2010, and Dr. Cassidy‟s report was completed on May 29, 2010. The new
probable cause hearing, ordered as a result of defendant‟s Ronje motion, was held on
June 22, July 1, and July 7, 2010. At the conclusion of evidence, the court allowed
defendant time to renew his motion for new section 6601 evaluations under Ronje, supra,
179 Cal.App.4th 509.
       During that time, the court conducted a hearing on defendant‟s motion to dismiss
on July 9, 2010. Both parties agreed the court could consider DMH‟s 2009 protocol and
the declarations of Drs. Wollert, Halon, and Phenix as evidence. In its July 15, 2010,
ruling on the motion to dismiss, the trial court found “the 2009 protocol comports with
the intention of the [L]egislature and comports with the accepted definition of the words,
standardized assessment protocol. The 2009 protocol recognizes that individuals differ in
psychological functioning, issues of mental health and level of risk for sexual reoffense. .
. . [¶] . . . Therefore, the Court rules that the 2009 Standardized Assessment Protocol
meets the requirements of the statute, is valid, and therefore [defendant has not] suffered
any due process violation.” After denial of the motion to dismiss, defendant sought and
was denied writ relief from this court. (Cefalu v. Superior Court (The People) (Aug. 18,
2010) H035870 [nonpub.].) The California Supreme Court denied defendant‟s associated
petition for review. (Cefalu v. Superior Court (The People) review denied Oct. 27, 2010,
S185791.)
       On August 17, 2010, the trial court denied the motion for new section 6601
evaluations and found probable cause to hold defendant over for trial on his SVP status.
Defendant waived jury and waived his appearance for trial, which was held on December
5, 7, and 8, 2011. The trial court found true beyond a reasonable doubt that defendant
was an SVP within the meaning of section 6600, and committed defendant to DMH for
treatment and confinement for an indeterminate term. The December 8, 2011,
commitment order was made “subject to the ultimate decision” in People v. McKee
(2010) 47 Cal.4th 1172. On December 12, 2011, defendant filed a timely notice of
appeal.
                                      III.   Discussion
       A. Challenges to the 2007 and 2009 protocols
       i.     Jurisdictional Challenge
       Defendant argues that since he was never evaluated under a “valid” section 6601,
subdivision (c) protocol, the trial court lacked fundamental jurisdiction to commit him as
an SVP. Defendant contends that since “[t]he initial evaluations by both of the state‟s
doctors were performed using the 2007 „underground‟ protocol and the updates, not new
evaluations, were performed using the scientifically inadequate 2009 protocol,” dismissal
is required “because until an evaluation is conducted under a bona fide standardized
assessment protocol, there is no [jurisdictional] basis upon which to make a lawful
involuntary commitment under the SVPA.” He further argues that “[t]he same expert
opinions which sprang from the 2007 unlawful protocol propelled the case through the
judicial process.”
       “A lack of fundamental jurisdiction „ “means an entire absence of power to hear or
determine the case, an absence of authority over the subject matter or the parties.”
[Citation.]‟ ([People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653,
660].)” (People v. Landau (2013) 214 Cal.App.4th 1, 17 (Landau).) It has been
determined, however, that any “failure to use properly enacted regulations in the initial
evaluation of a suspected SVP does not result in a lack of fundamental jurisdiction,
depriving the court of jurisdiction over the subject matter or appellant. ([Ronje, supra,
179 Cal.App.4th at p. 518]; [Medina, supra, 171 Cal.App.4th at pp. 815-817].)” (Ibid.)
We follow these authorities and reject defendant‟s jurisdictional challenge.
       ii. Challenge to the 2007 Protocol
       DMH published the Clinical Evaluator Handbook and Standardized Assessment
Protocol (2007), the 2007 protocol, to evaluate persons who may be SVP‟s. (Medina,
supra, 171 Cal.App.4th at p. 814.) In 2008, the Office of Administrative Law (OAL)
concluded that certain provisions of the 2007 protocol met the definition of a “regulation”
and should have been adopted pursuant to the Administrative Procedure Act (the APA)
(Gov. Code, § 11340 et seq.). (2008 OAL Determination No. 19 (Aug. 15, 2008) p. 13.)
While OAL determinations are not binding on this court, they are 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.)
       Regulations adopted in violation of the APA are termed “underground” (Cal. Code
Regs., tit. 1, § 250) and may be declared invalid by a court. (Morning Star Co. v. State
Bd. of Equalization (2006) 38 Cal.4th 324, 333.) In Ronje, the court concluded that “[a]s
an underground regulation, the 2007 standardized assessment protocol [was] invalid” and
its use constituted “an error or irregularity in the SVPA proceedings.” (Ronje, supra, 179
Cal.App.4th at p. 517.) However, the Ronje court also found the error could be cured by
a writ of habeas corpus directing the trial court to order new evaluations under a valid
protocol and to conduct a new probable cause hearing based on those evaluations. (Id. at
pp. 517-518, 520.)
       Relying on Ronje, defendant argues that he, too, is entitled to new evaluations and
a new probable cause hearing. But, because Ronje‟s challenge to the protocol was a
pretrial one, Ronje was entitled to habeas corpus relief without a showing of prejudice.
(People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 (Pompa-Ortiz).) Here, defendant‟s
challenge is presented posttrial; therefore, he must demonstrate that he was prejudiced at
trial by the evaluators‟ use of the 2007 protocol. (Ibid.; Ronje, supra, 179 Cal.App.4th at
p. 517.) “When a criminal defendant claims a procedural irregularity occurred prior to a
determination of probable cause, the defendant must demonstrate prejudice to prevail on
the issue in a postconviction setting unless the claimed error denied the court jurisdiction
„in the fundamental sense.‟ [Citation]. The same is true in SVP proceedings when it is
claimed that an underground regulation was used in the prisoner‟s initial DMH
evaluation. ([Medina, supra, 171 Cal.App.4th at pp. 818–819].)” (Landau, supra, 214
Cal.App.4th at p. 16.)
       Defendant has made no showing of prejudice, nor can he. As the Medina court
noted, the purpose of the evaluations is “to screen out those who are not SVP‟s.”
(Medina, supra, 171 Cal.App.4th at p. 814.) “The legal determination that a particular
person is an SVP is made during the subsequent judicial proceedings.” (Ibid.) Those
proceedings include a probable cause hearing (§ 6602) and a trial (§§ 6603, 6604).
       Here, the trial court found there was probable cause to believe that defendant met
SVP criteria, and after a court trial defendant was found beyond a reasonable doubt to
meet those criteria. Defendant has not challenged the sufficiency of the evidence. Nor
has he shown that dismissal of the petition because the protocol was invalid would have
resulted in an abandonment of the commitment proceedings. He has not shown it
reasonably probable that he would have been found not to be an SVP had he been
evaluated under a different protocol. Defendant has not carried his burden to show
prejudice. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105.) Therefore,
reversal based on use of the 2007 protocol is not warranted.
       iii.   Challenge to the 2009 Protocol
       Defendant contends that the 2009 protocol is not a valid “standardized assessment
protocol” within the meaning of section 6601, subdivision (c), because it fails to provide
“any suggestion of direction or uniformity in the evaluation process.”2 Defendant argues
that the 2009 protocol is not “standardized” since “each step in the evaluation process is
left to the „exercise of independent professional clinical judgment.‟ ” He states that,
unlike under the 2007 protocol, “the assessments by evaluators [under the 2009 protocol]
are completely discretionary and can lead to unchecked abuse and arbitrary results.”
       The People maintain that although the 2009 protocol does not provide a step -by -
step procedure for evaluators to follow,3 it achieves standardization by “informing the


2
        The 2009 protocol is partly codified in the California Code of Regulations, title 9,
section 4005. Section 4005 entitled “Evaluator Requirements” provides: “The evaluator,
according to his or her professional judgment, shall apply tests or instruments along with
other static and dynamic risk factors when making the assessment. Such tests,
instruments and risk factors must have gained professional recognition or acceptance in
the field of diagnosing, evaluating or treating sexual offenders and be appropriate to the
particular patient and applied on a case-by-case basis. The term „professional recognition
or acceptance‟ as used in this section means that the test, instrument or risk factor has
undergone peer review by a conference, committee or journal of a professional
organization in the fields of psychology or psychiatry, including, but not limited to, the
American Psychological Association, the American Psychiatric Association, and the
Association for the Treatment of Sexual Abusers.”
3
        The 2009 Standardized Assessment Protocol states in part: “This protocol cannot
prescribe in detail how the clinician exercises his or her independent professional
judgment in the course of performing SVP evaluations. Since the exercise of
independent, professional clinical judgment is required, this evaluation protocol is not,
(continued)
evaluators of the requirements of the law, the precise issue on which they are being asked
to render an opinion, and risk factors they are required to consider. It requires the use of
tests, instruments, and unenumerated risk factors that have gained acceptance in the field
of sex offender evaluation,” and requires evaluators “to conform to peer-reviewed,
professional norms.” The People also point out that defendant is not entitled to dismissal
because he has not shown prejudice. We agree.
       “Where a statute empowers an administrative agency to adopt regulations, such
regulations „must be consistent, not in conflict with the statute, and reasonably necessary
to effectuate its purpose.‟ (Mooney v. Pickett (1971) 4 Cal.3d 669, 679; Gov. Code, §
11342.2.) The task of the reviewing court in such a case „is to decide whether the
[agency] reasonably interpreted the legislative mandate. [Citation.]‟ ” (Woods v.
Superior Court (1981) 28 Cal.3d 668, 679; see Gov. Code, § 11342.2.)
       “The court, not the agency, has „final responsibility for the interpretation of the
law‟ under which the regulation was issued. [Citations.]” (Yamaha Corp. of America v.
State Bd. of Equalization (1998) 19 Cal.4th 1, 11, fn. 4.) When a court reviews an
agency‟s interpretation of a statute, however, the court “accords great weight and respect
to the administrative construction.” (Id. at p. 12.) By adopting the 2009 protocol and
section 4005 of the regulations pursuant to section 6601, DMH impliedly construed the
statutory meaning of the term “standardized.” When “an agency has adopted an
interpretative rule in accordance with Administrative Procedure Act provisions-which
include procedures (e.g., notice to the public of the proposed rule and opportunity for
public comment) that enhance the accuracy and reliability of the resulting administrative
„product‟-that circumstance weighs in favor of judicial deference.” (Id. at p. 13.)




and cannot be, a detailed, precise step-by-step procedure like the kind of procedure that
might apply to the chemical analysis of an unknown substance.”
       Defendant neither claims nor demonstrates that DMH failed to comply with the
APA when it adopted section 4005. Defendant also offers no legislative history
suggesting the Legislature intended any particular manner of standardization. Section
6601 does not expressly define “standardized,” and it appears the Legislature left
standardization to the expertise of DMH.
       While defendant suggests that DMH‟s 2009 protocol is inconsistent with the
California Supreme Court‟s decision in People v. Superior Court (Ghilotti) (2002) 27
Cal.4th 888, defendant does not explain how this is so. In Ghilotti, the court stated that
“an evaluator‟s recommendation for or against commitment or recommitment is invalid if
there appears a reasonable probability it was influenced by the evaluator‟s legal error.”
(Id. at p. 895.) “An evaluator‟s report is infected with legal error if, on its face, it reflects
an inaccurate understanding of the statutory criteria governing the evaluation.” (Id. at. p.
913.) Ghilotti requires that any legal error by the evaluator must also be material. “An
evaluator‟s legal error shall be deemed material if, and only if, (1) there appears a
reasonable probability, sufficient to undermine confidence in the outcome, that the error
affected the evaluator‟s ultimate conclusion, and (2) a change in the evaluator‟s
conclusion would either supply, or dissolve, the necessary concurrence of two designated
evaluators.” (Id at p. 913.) Defendant does not make any of these showings. Defendant
does not argue or present evidence demonstrating a reasonable probability that the
evaluations were influenced by any legal error committed by the evaluators.
       Defendant asserts that the evaluators‟ use of the 2009 protocol violates both his
substantive and procedural Constitutional right to due process under the 14th Amendment
to the United States Constitution. Assuming, arguendo, that the 2009 protocol does not
meet the requirements of section 6601, violations of state law do not necessarily amount
to violations of the federal Constitution. “[The U.S. Supreme Court has] long recognized
that a „mere error of state law‟ is not a denial of due process. [Citation.] If the contrary
were true, then „every erroneous decision by a state court on state law would come [to
this Court] as a federal constitutional question.‟ [Citations.]” (Engle v. Isaac (1982) 456
U.S. 107, 121, fn. 21.) Defendant cites no authority applying federal due process
protections to an alleged failure to adopt a “standardized assessment protocol” within the
meaning of section 6601.
       Even if defendant‟s evaluations under the 2009 protocol amounted to error for lack
of standardization under section 6601, defendant fails to demonstrate that he was
prejudiced by the error. As explained in Ronje, supra, 179 Cal.App.4th at pages 517-518,
the Pompa-Ortiz rule, which applies to judicial review of irregularities in preliminary
hearing procedures, also applies to judicial review of an evaluator‟s use of an invalid
standardized assessment protocol in SVP proceedings. (Pompa-Ortiz, supra, 27 Cal.3d
519; see People v. Hayes (2006) 137 Cal.App.4th 34, 50-51 [Pompa-Ortiz rule applies to
denial of substantive rights and technical irregularities in SVP proceedings].)
Accordingly, since defendant‟s claim is presented posttrial, under Pompa-Ortiz, it “shall
be reviewed under the appropriate standard of prejudicial error and shall require reversal
only if [defendant] can show that he was deprived of a fair trial or otherwise suffered
prejudice as a result of the error.” (Pompa-Ortiz, supra, at p. 529.)
       The record does not establish a reasonable probability that defendant would not
have been found to be an SVP had he been evaluated under an assessment protocol
meeting defendant‟s definition of “standardized,” and defendant has not challenged the
sufficiency of the evidence supporting the finding that he is an SVP.
       B. Constitutional Challenges to Indeterminate SVP Commitment
       Before the 2006 amendments to the SVPA, a person determined to be an SVP was
committed to DMH for a period of two years. (Stats.1995, ch. 763, § 3, p. 5922; former
§§ 6603, subd. (d), 6604.) The commitment could not be extended beyond two years
unless a new petition was filed requesting a successive two-year commitment. (Former
§§ 6604, 6604.1; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243, fn. 5.) On the
filing of a recommitment petition, a new jury trial would be conducted at which the
People would again have the burden to prove beyond a reasonable doubt that the person
remained an SVP. (Former §§ 6604, 6605, subds. (d), (e).) (McKee I, supra, 47Cal.4th
at p. 1185.)
       The 2006 amendments to the SVPA changed the length of SVP commitments
from two years to an indefinite term. “An SVP can only be released conditionally or
unconditionally if the DMH 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 DMH does not support release.” (McKee I, supra, 47 Cal.4th at
pp. 1187-1188.)
       i.      Equal Protection
       Relying on McKee I, defendant contends his indeterminate SVP commitment
violates his federal constitutional right to equal protection because it treats SVP‟s
significantly less favorably than individuals civilly committed under different statutory
schemes.
       In McKee I, the California Supreme Court found that SVP‟s, Mentally Disordered
Offenders (MDO‟s), and defendants found not guilty by reason of insanity (NGI‟s) are
similarly situated for purposes of an equal protection analysis of the length of their
respective commitments. (McKee I, supra, 47 Cal.4th at pp. 1203, 1207.) Based on the
liberty interests at stake, the McKee I court applied a strict scrutiny standard in its equal
protection analysis. (Id. at pp. 1207-1211.) Finding that the People had not initially
demonstrated a compelling state interest to justify differential treatment, the majority
returned the case to the trial court to permit an evidentiary hearing on that issue. (Id. at
pp. 1208-1211.) After a 21-day evidentiary hearing, the trial court found that SVP‟s
present a substantially greater danger to society than do MDO‟s and NGI‟s. (McKee II,
supra, 207 Cal.App.4th at p. 1330.)
       On appeal in McKee II, the Fourth District Court of Appeal 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). [Citation.] 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.‟ [Citation.] 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.) The
Supreme Court denied further review.
       We find the reasoning and conclusion of McKee II persuasive. Defendant has not
shown that he would be able to introduce new evidence to support a result different from
that reached in McKee II. (See Landau, supra, 214 Cal.App.4th 1; People v. McCloud
(2013) 213 Cal.App.4th 1076; People v. McDonald (2013) 214 Cal.App.4th 1367; People
v. McKnight (2012) 212 Cal.App.4th 860, 863-864 [“It is plain that McKee II is not to be
restricted to Mr. McKee alone or only to those SVP‟s convicted of crimes against
children, like him, but rather its holding applies to the class of SVP‟s as a whole.”].)
       ii.    Other Constitutional Challenges
       To preserve federal review, defendant contends that indeterminate commitment
under the SVPA, as amended in 2006, (1) violates due process placing the burden on him
to show he no longer qualifies as an SVP; (2) is punitive in nature and violates the ex post
facto clause by punishing him for crimes committed before its enactment; and (3) places
him in double jeopardy because it constitutes additional punishment for the crimes for
which he has already been punished. He concedes that the California Supreme Court
rejected similar claims in McKee I, and he acknowledges, as he must, that we are bound
by the holding in McKee I. (McKee I, supra, 47 Cal.4th at pp. 1193, 1195; Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject
defendant‟s claims.
       iii.   Ineffective Assistance of Counsel
       Defendant argues that if he is found to have forfeited constitutional challenges to
his indeterminate commitment for failing to reassert objections below, then he was
denied due process in his civil commitment proceeding due to ineffective assistance of
counsel. As the issue was raised in the alternative, and we have not found any forfeiture,
we do not reach the issue of counsel‟s effectiveness.
                                III.   Disposition
      The December 8, 2011 commitment order is affirmed.
      ____________________________________
                                       Grover, J.




WE CONCUR:




____________________________
Premo, Acting, P.J.




____________________________
Mihara, J.
