Filed 9/3/13 P. v. Flores CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039103
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 211288)

         v.

BERNARD FLORES,

         Defendant and Appellant.



         Appellant Bernard Flores appeals from the November 9, 2012 order committing
him as a sexually violent predator (SVP) to an indeterminate term pursuant to Welfare
and Institutions Code section 6604.1 He claims that his involuntary commitment violates
the equal protection guarantees provided by the state and federal Constitutions.
         In People v. McKee (2010) 47 Cal.4th 1172 (McKee), the California Supreme
Court recognized that persons who are civilly committed as Mentally Disordered
Offenders (MDO's) or whose commitments are extended after being found not guilty by
reason of insanity (NGI's) are subject to short, definite terms of commitment whereas
persons found to be SVP's are committed to an indeterminate term of commitment.
(McKee, supra, 47 Cal.4th at pp. 1202, 1207.) The court concluded that SVP's were
similarly situated to these other groups of committees. (Id. at pp. 1204, 1207.) It

1
         All further statutory references are to the Welfare and Institutions Code.
                                                             1
remanded the matter to the trial court "to determine whether the People . . . can
demonstrate the constitutional justification for imposing on SVP's a greater burden than
is imposed on MDO's and NGI's in order to obtain release from commitment." (Id. at pp.
1208-1209, fn. omitted.) The trial court resolved this question in favor of the People on
remand and its order was affirmed on appeal by the California Court of Appeal, Fourth
District, Division 1 in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II). On
October 10, 2012, the Supreme Court denied review in that case (S204503).
       Appellant maintains that the McKee II decision is fatally flawed. He asks this
court to remand this matter for further proceedings pursuant to the Supreme Court's
McKee decision. We are satisfied that no remand is necessary and affirm.
                                             I
                                    Procedural History
       In a previous appeal, appellant challenged an April 22, 2009 order committing him
as an SVP to an indeterminate term of commitment (H034199). (See Evid. Code, §§ 452,
subd. (d); 459.) In response to his equal protection challenges to the indeterminate term,
we reversed and remanded the matter for the limited purpose of further proceedings
consistent with our opinion and McKee, supra, 47 Cal.4th 1172.
       On November 9, 2012, after the denial of review in McKee II, the superior court
again ordered appellant committed to an indeterminate term. It is from this order that
appellant now appeals.
                                             II
                   Equal Protection and the Alleged Flaws in McKee II
       Appellant contends that his indeterminate commitment contravenes his rights to
equal protection under the law because "[h]e has a more difficult burden to regain
freedom than similarly situated persons committed under other civil commitment
schemes and no sufficient justification has been presented." He urges this court not to
accept the conclusions of McKee II.
                                             2
       Appellant maintains that McKee II is fatally flawed. He claims that the reviewing
court erred by (1) failing to conduct a de novo review and (2) misapplying the strict
scrutiny test. He also asserts that the evidence did not support the determinations in
McKee II. We address these claims sequentially.
A. De Novo Review
       Appellant argues that the appellate court in McKee II "should have independently
looked at the evidence presented by both parties and determined if the findings made by
the trial court were correct" but that court failed to do so.
       The McKee II opinion does not demonstrate that the appellate court failed to
conduct de novo review. It shows the opposite.
       The appellate court stated: "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.) The appellate court observed that "the trial court's statement of decision did not
make any express findings regarding disputed historical facts or the credibility of certain
witnesses." (Id. at p. 1338, fn. 3.) The appellate court believed 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.)
       The appellate court did state: "In 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. [Citations.]" (Id. at p. 1339,
italics added.) Its use of the phrase "substantial evidence" shows merely that it was
                                               3
following the Supreme Court's direction in McKee. In McKee, the Supreme Court stated:
"When a constitutional right, such as the right to liberty from involuntary confinement, is
at stake, the usual judicial deference to legislative findings gives way to an exercise of
independent judgment of the facts to ascertain whether the legislative body 'has drawn
reasonable inferences based on substantial evidence.' (Professional Engineers v.
Department of Transportation (1997) 15 Cal.4th 543, 569 . . . , citing Turner
Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622, 666, 114 S.Ct. 2445, 129 L.Ed.2d
497 (lead opn. of Kennedy, J.); see also Spiritual Psychic Science Church v. City of
Azusa (1985) 39 Cal.3d 501, 514 . . . .)" (McKee, supra, 47 Cal.4th at p. 1206.) The
McKee II opinion does not indicate that the appellate court erroneously applied the
deferential substantial evidence standard of review, under which courts review the
evidence in the light most favorable to the judgment below (see Jackson v. Virginia
(1979) 443 U.S. 307, 318-320 [99 S.Ct. 2781]; People v. Johnson (1980) 26 Cal.3d 557,
578).
B. Strict Scrutiny Standard of Review
        In McKee II, the appellate court concluded: "[T]he trial court correctly found the
People presented substantial evidence to support a reasonable perception by the electorate
that SVP's present a substantially greater danger to society than do MDO's or NGI's, and
therefore the disparate treatment of SVP's under the Act is necessary to further the
People's compelling interests of public safety and humane treatment of the mentally
disordered." (McKee II, supra, 207 Cal.App.4th at pp. 1330-1331.) Appellant maintains
that the appellate court "demonstrated a flawed understanding of the strict scrutiny test"
and its conclusion's "characterization [of the strict scrutiny test] more closely resembles
the rational basis test."2 He asserts that the appellate court in McKee II "looked only at

2
        The appellate court in McKee II clearly did not engage in rational basis review.
"[A] classification neither involving fundamental rights nor proceeding along suspect
lines is accorded a strong presumption of validity. [Citations.] Such a classification
                                              4
whether the perception of the voters was reasonable, and not at whether that perception
was accurate" and "wrongly assumed" that the People were required to show only that
SVP's are more dangerous than MDO's and NGI's and the People did not need to show
that the disparate treatment of SVP's was "necessary because of that greater danger."
       The appellate court description of the strict scrutiny standard of review shows that
it understood that the means must be necessary to promote the compelling state interest.
The court stated: " 'Strict scrutiny is the appropriate standard against which to measure
claims of disparate treatment in civil commitment.' (People v. Green (2000) 79
Cal.App.4th 921, 924 . . . .) Applying the strict scrutiny standard, the state has the burden
of establishing it has a compelling interest that justifies the law and that the distinctions,
or disparate treatment, made by that law are necessary to further its purpose. (Warden v.
State Bar (1999) 21 Cal.4th 628, 641 . . . .) Alternatively stated, applying the strict
scrutiny standard, a law 'is upheld only if it is necessary to further a compelling state




cannot run afoul of the Equal Protection Clause if there is a rational relationship between
the disparity of treatment and some legitimate governmental purpose. [Citations.]
Further, a legislature that creates these categories need not 'actually articulate at any time
the purpose or rationale supporting its classification.' [Citations.] Instead, a
classification 'must be upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a rational basis for the
classification.' [Citations.]" (Heller v. Doe by Doe (1993) 509 U.S. 312, 319-320 [113
S.Ct. 2637].) Under the rational basis test, a state "has no obligation to produce evidence
to sustain the rationality of a statutory classification." (Id. at p. 320.) In that situation,
" '[a] legislative choice is not subject to courtroom factfinding and may be based on
rational speculation unsupported by evidence or empirical data.' [Citations.]" (Ibid.)
Under rational basis review, "[a] statute is presumed constitutional [citation] and '[t]he
burden is on the one attacking the legislative arrangement to negative every conceivable
basis which might support it' [citation], whether or not the basis has a foundation in the
record." (Id. at pp. 320-321.) "Finally, courts are compelled under rational-basis review
to accept a legislature's generalizations even when there is an imperfect fit between
means and ends. A classification does not fail rational-basis review because it ' "is not
made with mathematical nicety or because in practice it results in some inequality." '
[Citations.]" (Id. at p. 321.)
                                               5
interest.' (People v. Buffington (1999) 74 Cal.App.4th 1149, 1156 . . . .)" (McKee II,
supra, 207 Cal.App.4th at p. 1335.)
       It is possible that, as appellant claims, the appellate court in McKee II believed that
the necessity requirement "meant something different than 'least restrictive means.' " The
court expressly stated that it was not persuaded that "the equal protection clause requires
that disparate treatment of similarly situated classes be not only necessary to further a
compelling state interest, but also accomplished through the least restrictive means
available." (Id. at pp. 1348-1349.) It did not believe that "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." (Id. at p. 1349.)
       While we agree that the availability of equally efficacious but less burdensome
means of accomplishing a compelling state interest is a consideration in strict scrutiny
analysis,3 the appellate court clearly understood that the strict scrutiny test required the


3
       See e.g. Citizens United v. Federal Election Com'n (2010) 558 U.S. 310, 340 [130
S.Ct. 876] ["Laws that burden political speech are 'subject to strict scrutiny,' which
requires the Government to prove that the restriction 'furthers a compelling interest and is
narrowly tailored to achieve that interest.' [Citation.]"]; Zablocki v. Redhail (1978) 434
U.S. 374, 388 [98 S.Ct. 673] ["When a statutory classification significantly interferes
with the exercise of a fundamental right, it cannot be upheld unless it is supported by
sufficiently important state interests and is closely tailored to effectuate only those
interests. [Citations.]"], 389 [statute precluding state resident with judicially imposed
child support obligations from marrying without court permission held unconstitutional
where "the State already ha[d] numerous other means for exacting compliance with
support obligations, means that are at least as effective as the instant statute's and yet do
not impinge upon the right to marry"]; Dunn v. Blumstein (1972) 405 U.S. 330, 342 [92
S.Ct. 995] ["durational residence laws [for voting] must be measured by a strict equal
protection test: they are unconstitutional unless the State can demonstrate that such laws
are 'necessary to promote a compelling governmental interest.' [Citations.]"], 343 ["It is
not sufficient for the State to show that durational residence requirements further a very
substantial state interest. In pursuing that important interest, the State cannot choose
                                               6
government to "show both a compelling state interest justifying the disparate treatment
and that the disparate treatment is necessary to further that compelling state interest.
[Citations.]" (McKee II, supra, 207 Cal.App.4th at p. 1349.) Narrow tailoring to serve a
compelling state interest does not require consideration of every conceivable alternative;
it requires only consideration of workable alternatives that will achieve that interest about
as well. (See Grutter v. Bollinger (2003) 539 U.S. 306, 339 [123 S.Ct. 2325].)
       Over a decade ago, the California Supreme Court recognized that "[t]he problem
targeted by the [SVPA] is acute, and the state interests — protection of the public and
mental health treatment — are compelling. [Citations.]" (Hubbart v. Superior Court
(1999) 19 Cal.4th 1138, 1153, fn. 20.) In McKee II, the People presented evidence that
the vast majority of SVP's suffered paraphilia disorders, such disorders are persistent and
pervasive, and most SVP committees are not amenable to treatment. This showing was
particularly significant with regard to the future dangerousness of SVP's and the SVPA's
provision for an indeterminate term of commitment subject to a committee's petition for
discharge in which the committee bears the burden of proof (§ 6608). Appellant has
suggested that, based on evidence in McKee II that SVP treatment could be completed in
five years, a five-year commitment term would be a less restrictive alternative and the
appellate court failed to consider that alternative.
       Not all the People's experts in McKee II agreed that SVP's ordinarily completed
treatment in five years. One psychologist indicated that "[t]reatment of paraphilia
patients takes longer than for other patients because paraphilia is so pervasive, affecting
their thoughts, beliefs, and interactions" and she "estimated that effective treatment of


means that unnecessarily burden or restrict constitutionally protected activity. Statutes
affecting constitutional rights must be drawn with 'precision,' [citations], and must be
'tailored' to serve their legitimate objectives. [Citation.] And if there are other,
reasonable ways to achieve those goals with a lesser burden on constitutionally protected
activity, a State may not choose the way of greater interference. If it acts at all, it must
choose 'less drastic means.' [Citation.].]"
                                               7
SVP's with paraphilia generally requires more than 10 years." (Id. at p. 1346.)
Moreover, there was also evidence that "nearly 90 percent of SVP's are diagnosed with
pedophilia or other paraphilias" (id. at p. 1344), paraphilia typically persists throughout a
patient's lifetime (id. at p 1345), treatment of SVP's is not "based on medications, but
rather on giving them the tools to limit their risk of sexually reoffending" (ibid.), and
"only about 25 percent of SVP's participate in treatment" (ibid.). Given the totality of the
People's showing disclosed in McKee II, appellant has not convinced us that a five-year
term of commitment was shown to be a less restrictive alternative that would equally
accomplish the compelling state's interests of protecting the public and treating dangerous
SVP's or that any such alternative exists.
C. Application of Strict Scrutiny Standard
       Appellant argues that the People's evidence in McKee II did not satisfy the strict
scrutiny standard. In McKee II, the appellate court examined evidence in three areas:
recidivism, the greater trauma of victims of sexual offenses, and the diagnostic and
treatment differences. (McKee II, supra, 207 Cal.App.4th at pp. 1340-1347.) Appellant
attacks the evidence in each category.
       With respect to recidivism, the appellate court in McKee II acknowledged the
People's evidence did not "show SVP's have, in fact, a higher sexual recidivism rate than
MDO's and NGI's" as classes. (Id. at p. 1342.) But the court concluded that the Static-99
evidence supported "by itself, a reasonable inference or perception that SVP's pose a
higher risk of sexual reoffending than do MDO's or NGI's." (Ibid.)
       With respect to victim trauma, the appellate court in McKee II found that the
People had "presented evidence that the victims of sex offenses suffer unique and, in
general, greater trauma than victims of nonsex offenses." (Ibid.) There was testimony
that "[s]exual abuse causes the greatest trauma of adverse childhood experiences." (Ibid.)
The court concluded that "there is substantial evidence to support a reasonable perception
by the electorate, as a legislative body, that the harm caused by child sexual abuse and
                                              8
adult sexual assault is, in general, a greater harm than the harm caused by other offenses
and is therefore deserving of more protection." (Id. at pp. 1343-1344.)
       Appellant suggests that "the proper comparison," which the appellate court in
McKee II did not make, was between the general reoffense rates of the three groups of
committees rather than between their sexual reoffense rates. Appellant complains that
the appellate court did not cite any "evidence regarding the effects of other types of
crimes and the trauma suffered by victims of those crimes" and there was no evidence
that victims of MDO's or NGI's suffered comparatively less trauma.
       Appellant has not established that McKee II's analysis is fatally defective because
it did not compare the general danger presented by MDO's and NGI's with the general
danger presented by SVP's or discuss the trauma experienced by victims of those former
groups. The SVPA targets the danger of sexual reoffense due to a mental disorder.
There was a factual basis for the legislative body believing that SVP's pose a special
danger of sexual reoffense and the victims of these offenses suffered an especially acute
injury. "[A]n equal protection violation does not occur merely because different statutory
procedures have been included in different civil commitment schemes. (See Hofferber,
supra, 28 Cal.3d 161, 172 . . . [Legislature 'may adopt more than one procedure for
isolating, treating, and restraining dangerous persons'].) Nothing compels the state 'to
choose between attacking every aspect of a problem or not attacking the problem at all.'
(People v. Jennings (2000) 81 Cal.App.4th 1301, 1312-1313 . . . .) Far from having to
'solve all related ills at once' (People v. Cooper (1996) 43 Cal.App.4th 815, 829. . . ), the
Legislature has 'broad discretion' to proceed in an incremental and uneven manner
without necessarily engaging in arbitrary and unlawful discrimination. (People v. Ward
(2005) 36 Cal.4th 186, 217 . . . .)" (People v. Barrett (2012) 54 Cal.4th 1081, 1110.)
       Appellant maintains that the appellate court's analysis of the differences in
diagnoses and treatment was also defective. He reiterates his allegation that the appellate
court in McKee II erroneously conducted a substantial evidence review rather than a de
                                              9
novo review. We have already rejected this contention. He also repeats his argument
that the appellate court failed to consider the least restrictive means. As already
explained, appellant has not persuaded us that there is a less restrictive but efficacious
alternative to an indeterminate term of commitment.
         Appellant also asserts that "treatment is not actually required before an SVP is
eligible for release." While this may be true in the abstract, the evidence of the
persistence of paraphilias suggests that individual committees will ordinarily require
treatment to reduce their risk of sexual reoffending sufficiently to no longer qualify as
SVP's.
         The persistence and pervasiveness of the paraphilia disorders usually suffered by
SVP's and their general lack of amenability to treatment must be regarded as particularly
relevant to whether they pose a greater danger to society that necessitates an
indeterminate term of commitment and the concomitant shifting of the burden of proof
for discharge. As indicated, the People adduced evidence that the vast majority of SVP's
are diagnosed with pedophilia or other paraphilias, a paraphilia is pervasive and
ordinarily persists throughout a patient's lifetime, medication does not decrease the
deviant sexual interests of SVP's, treatment is not focused on medication but on tools to
limit the risk of reoffense, and most SVP's do not participate in treatment. (See McKee
II, supra, 207 Cal.App.4th at pp. 1344-1346.) In contrast, only a very small percentage
of MDO's and NGI's suffer from pedophilia or other paraphilias, patients with severe
mental illnesses are treated with psychotropic medications and then psychosocial therapy
and their amenability to and compliance with treatment usually is very good, and two-
thirds of MDO's and NGI's comply with their treatment programs and are typically
decertified after about three years. (Ibid.) In light of this contrasting evidence, we
discern no defect in the court's conclusion that "the disparate treatment of SVP's under
the Act is necessary to further the People's compelling interests of public safety and
humane treatment of the mentally disordered." (Id. at p. 1331.)
                                              10
       We reject appellant's suggestion that the People were required to prove that SVP's
are actually more dangerous as a class than MDO's and NGI's by producing evidence
allowing a comparison of recidivism rates and the harm suffered by victims of each
group. For purposes of strict scrutiny, it is enough that SVP's as a group differ materially
from MDO's and NGI's in terms of their diagnosis and treatment and, consequently, their
need for ongoing commitment.
       It appears from our examination of McKee II that the state's showing was
sufficient to survive strict scrutiny. Moreover, while legislative distinctions among
SVP's, MDO's, and NGI's must be "factually based," they need not be "incontrovertible
or uncontroversial." (McKee, supra, 47 Cal.4th at pp. 1210-1211.) "[M]ere disagreement
among experts will not suffice to overturn the Proposition 83 amendments." (Id. at p.
1210.) Appellant has not demonstrated that further adjudication of the equal protection
issue is warranted.
D. Conclusion
       In light of the Supreme Court's clearly expressed intent to avoid an unnecessary
multiplicity of proceedings with respect to equal protection challenges in SVP cases (see
People v. McDonald (2013) 214 Cal.App.4th 1367, 1378; People v. McKnight (2012) 212
Cal.App.4th 860, 863-864), the Supreme Court's denial of review in McKee II, and our
conclusions regarding the asserted flaws in McKee II, we find the equal protection
arguments advanced in this appeal are without merit and do not require a remand for a
further evidentiary hearing.
                                      DISPOSITION
       The November 9, 2012 order of commitment is affirmed.




                                            11
                                   _______________________________
                                   ELIA, J.


WE CONCUR:




________________________________
RUSHING, P. J.




________________________________
PREMO, J.




                                     12
