Filed 5/29/13 P. v. Dannenberg CA1/2
Opinion following 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION TWO



THE PEOPLE,
         Plaintiff and Respondent,                                   A123194
v.
ERIC DANNENBERG,                                                     (Alameda County
                                                                     Super. Ct. No. C132302)
         Defendant and Appellant.



         In 2008, a jury found defendant to be a sexually violent predator (SVP), as defined
in the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) (SVPA).1
Defendant appealed from the order committing him to the Department of Mental Health
(DMH) for an indeterminate term pursuant to section 6604. The petition to commit
defendant as an SVP was filed prior to the passage of Proposition 83. Proposition 83
passed in November 2006, and the SVPA was amended. The petition against defendant
was amended to reflect an indeterminate commitment pursuant to the amended SVPA.
         Defendant appealed the commitment order and argued that committing him
pursuant to the amended SVPA was an improper retroactive application of the statute and
that the amended SVPA violated the due process, equal protection, ex post facto, and
double jeopardy clauses of the state and federal Constitution. In our nonpublished

         1   All unspecified code sections refer to the Welfare and Institutions Code.


                                                           1
opinion filed on June 3, 2010, we rejected all of defendant’s contentions except for his
challenge to the SVP statute on equal protection grounds. As to that issue, we directed a
remand for further proceedings consistent with People v. McKee (2010) 47 Cal.4th 1172
(McKee I).
       The California Supreme Court granted review and transferred the matter to us with
directions to vacate our decision and to suspend further proceedings pending finality of
the proceedings on remand in McKee I, supra, 47 Cal.4th 1172. The San Diego County
Superior Court conducted the evidentiary hearing required by McKee I, and concluded
that the People had met their burden of justifying the disparate treatment of SVP’s, and
confirmed the indeterminate commitment. The Court of Appeal affirmed. (People v.
McKee (2012) 207 Cal.App.4th 1325 (McKee II).) The Supreme Court denied Richard
McKee’s petition for review and thus this case is now final. Accordingly, we now
reconsider defendant’s equal protection argument in light of McKee II.
       We reiterate our previous opinion on all issues except as to our remand based on
defendant’s equal protection claim. Having considered defendant’s equal protection
contention in light of McKee I and McKee II, we affirm the order of commitment.
                                     BACKGROUND
       The facts of the predicate offenses are only briefly summarized since these facts
are not relevant to the legal issues raised on appeal. On September 6, 1981, when
defendant was 19 years old, defendant had a knife and forced a 15-year-old boy to orally
copulate him. Defendant was convicted of violating Penal Code section 288, subdivision
(a), and sentenced to three years in prison.
       In 1985, defendant forced a 14-year-old boy to orally copulate him. Defendant
was convicted of violating Penal Code section 288, subdivision (c), and sentenced to six
years in prison.
       In 1988, defendant met two teenage boys and bound one of the boys, before
threatening him with scissors, sodomizing him, and orally copulating him. Defendant
was convicted of violating Penal Code section 286, subdivision (c), and section 288,
subdivision (a)(c). He received a 10-year prison commitment.


                                               2
       While in prison, defendant had multiple rule violations.
       On March 5, 1998, a petition was filed seeking to commit defendant as an SVP
pursuant to the SVPA. Proposition 83 passed in November of 2006, and the petition was
amended to reflect an indeterminate commitment.
       Defendant had a jury trial, which began on September 18, 2008. The jury
considered the evaluations of defendant by Dr. Dawn Starr and Dr. Jack Vognsen. Both
Starr and Vognsen found that defendant met the criteria of an SVP.
       Dr. Starr diagnosed defendant with paraphilia not otherwise specified, personality
disorder not otherwise specified with antisocial and narcissistic features, and sexual
sadism. She stated that true paraphilia is chronic and lifelong. She assessed defendant’s
risk to reoffend, if not kept in a locked facility, as high.
       Dr. Vognsen diagnosed defendant with paraphilia not otherwise specified, sexual
sadism, and anti-social personality disorder. Using a number of tests, he concluded that
defendant scored in the high-risk category.
       On October 15, 2008, the jury found the petition to be true. The court ordered
defendant committed for an indeterminate amount of time.
       Defendant filed a timely notice of appeal, and we requested supplemental briefing
to discuss the effect of McKee I, supra, 47 Cal.4th 1172. We issued a nonpublished
opinion on June 3, 2010. We remanded for a hearing on defendant’s equal protection
claim, but otherwise affirmed the lower court’s judgment and order.
       On August 18, 2010, the California Supreme Court granted the People’s petition
for review. The court transferred the matter to this court “with directions to vacate [our]
decision and, in order to avoid an unnecessary multiplicity of proceedings, to suspend
further proceedings pending finality of the proceedings on remand” in McKee I. The
order specified, “ ‘Finality of the proceedings’ shall include the finality of any subsequent
appeal and any proceedings in this court.”
       On August 20, 2010, pursuant to the Supreme Court’s order, we vacated our
decision and suspended further proceedings pending finality of the proceedings on
remand in McKee I.


                                              3
       The San Diego County Superior Court conducted the evidentiary hearing required
by McKee I, and concluded that the People had met their burden of justifying the
disparate treatment of SVP’s, and confirmed the indeterminate commitment. The Court
of Appeal affirmed. (McKee II, supra, 207 Cal.App.4th 1325.) The Supreme Court
denied McKee’s petition for review and thus this case became final. On April 16, 2013,
we issued an order requesting the parties to file a brief to address the effect of McKee II
on defendant’s equal protection claim.
                                       DISCUSSION
                             I. The SVPA and Proposition 83
       At the time the petition was filed seeking to commit defendant as an SVP, the
SVPA (Stats. 1995, ch. 763, § 3, p. 5922) provided for the involuntary civil commitment
for a two-year term of confinement and treatment of persons who, by a unanimous jury
verdict after trial (former §§ 6603, subd. (d), 6604), are found beyond a reasonable doubt
to be an SVP (former § 6604). (People v. Williams (2003) 31 Cal.4th 757, 764.) A
person’s commitment could not be extended beyond that two-year term 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 filing of a
recommitment petition, a new jury trial would be conducted at which the People again
had the burden to prove beyond a reasonable doubt that the person was currently an SVP.
(Former §§ 6604, 6605, subds. (d), (e).) As originally enacted, an SVP was defined as “a
person who has been convicted of a sexually violent offense against two or more victims
for which he or she received a determinate sentence 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.” (Former § 6600,
subd. (a).)
       On November 7, 2006, voters approved Proposition 83, “The Sexual Predator
Punishment and Control Act: Jessica’s Law.” It amended the SVPA effective November
8, 2006. In addition to other modifications, Proposition 83 changed an SVP commitment
from a two-year term to an indefinite commitment. (§ 6604.) Proposition 83 did not


                                            4
change section 6604’s requirement that a person’s initial commitment as an SVP be
proved at trial beyond a reasonable doubt and section 6605’s requirement that current
examinations of a committed SVP occur at least once every year (§ 6605, subd. (a)).
       Under Proposition 83, the DMH now files an annual report in conjunction with its
examination of an SVP, which “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).) Subdivision (b) of section 6605 now provides that
“[i]f the [DMH] determines that either: (1) the person’s condition has so changed that the
person no longer meets the definition of a sexually violent predator, or (2) conditional
release to a less restrictive alternative is in the best interest of the person and conditions
can be imposed that adequately protect the community, the director shall authorize the
person to petition the court for conditional release to a less restrictive alternative or for an
unconditional discharge.” (§ 6605, subd. (b).) If the state opposes the director’s petition,
then it must prove beyond a reasonable doubt that the person still meets the definition of
an SVP.
       If DMH does not authorize the committed person to file a petition for release
pursuant to section 6605, the person may file a petition for conditional release for one
year and subsequent unconditional discharge pursuant to section 6608. (§ 6608, subd.
(a).) Section 6608, subdivision (i), provides: “In any hearing authorized by this section,
the petitioner shall have the burden of proof by a preponderance of the evidence.” After
a trial court denies a section 6608 petition, “the person may not file a new application
until one year has elapsed from the date of the denial.” (§ 6608, subd. (h).)
       Our Supreme Court summarized the effect of Proposition 83: “[U]nder
Proposition 83, an individual SVP’s commitment term is indeterminate, rather than for a
two-year term as in the previous version of the Act. 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


                                             5
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 [SVPA] 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, fn. omitted.)
                II. The Amended SVPA is Not a Retroactive Application
       Defendant contends that applying Proposition 83 to him, years after the filing of
the petition, was a retroactive application of the law. As defendant recognizes, this issue
has been decided against him. (People v. Carroll (2007) 158 Cal.App.4th 503, 510
(Carroll); Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1288-1289; see also
People v. Taylor (2009) 174 Cal.App.4th 920, 932-933.)
       The Fifth District in Carroll held that imposing an indeterminate term on SVP
adjudications made after passage of the amendments from Proposition 83 is not a
retroactive application of the law. (Carroll, supra, 158 Cal.App.4th at pp. 513-514.) “In
order for a law to be retrospective, it must apply to events occurring before it was
enacted. (In re Ramirez (1985) 39 Cal.3d 931, 936.) Stated another way, ‘[a] statute has
retrospective effect when it substantially changes the legal consequences of past events.
[Citation.]’ (Western Security Bank v. Superior Court [(1997)] 15 Cal.4th [232,] 243,
italics added.) ‘Thus, the critical question for determining retroactivity usually is whether
the last act or event necessary to trigger application of the statute occurred before or
after the statute’s effective date. [Citations.] A law is not retroactive “merely because
some of the facts or conditions upon which its application depends came into existence
prior to its enactment.” [Citation.]’ (People v. Grant (1999) 20 Cal.4th 150, 157, italics
added.)” (Carroll, at p. 513.)
       As Carroll explained, because an extension hearing is a new proceeding requiring
a new determination of sexually violent predator status based on the person’s current
mental condition, application of the amendments to a case in which a sexually violent


                                            6
predator determination had not yet been made does not “change the legal consequences
of past events or conduct.” (Carroll, supra, 158 Cal.App.4th at p. 513.) The “significant
point with respect to retroactivity is not the filing of the petition, but trial and
adjudication under the SVPA. (Garcetti v. Superior Court (1999) 76 Cal.App.4th 685,
694.) The conduct or event (for want of a better term) to which the SVPA attaches legal
consequences is the person’s mental condition at the time of adjudication, not at the time
the . . . petition is filed.” (Carroll, at p. 514, fn. omitted.)
       Thus, defendant “was subject to recommitment for an indeterminate term because
of the status of his mental condition after [the] amendments became effective” (Carroll,
supra, 158 Cal.App.4th at p. 514) and the amendments were not retroactively applied to
him.
                                    III. Due Process Claim
       Defendant argues that the amended SVPA violated his due process rights. The
People respond that defendant never objected to the constitutionality of the indeterminate
term provision in the trial court and therefore did not preserve the issue for appeal.
       We disagree that the issue was waived. Challenges to the amended SVPA raise
issues regarding defendant’s substantial rights and, if he had objected, the court could not
have cured them. (See People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5.) “A
defendant is not precluded from raising for the first time on appeal a claim asserting the
deprivation of certain fundamental, constitutional rights.” (People v. Vera (1997) 15
Cal.4th 269, 276-277.)
       The issues raised in defendant’s challenge on due process grounds were decided
against him in McKee I, supra, 47 Cal.4th 1172. In McKee I, the defendant asserted that
his due process rights were violated by the fact that his commitment was indefinite under
the amended statute and that it was now his burden to show by a preponderance of the
evidence that he no longer was an SVP. (Id. at p. 1188.) The court in McKee I
concluded that an indefinite commitment did not violate the defendant’s due process
rights. (Id. at p. 1193.) The court explained that the defendant had already been found to
have previously committed the requisite criminal acts and was found beyond a reasonable


                                               7
doubt to have “ ‘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.’ ” (Id. at p. 1186.) Thus, the requirement that the defendant, after his
initial commitment, “must prove by a preponderance of the evidence that he is no longer
an SVP does not violate due process.” (Id. at p. 1191.)
       Defendant also challenges the amended SVPA to the extent it permits the court to
deny his petition without a hearing. Under section 6608, an SVP may unilaterally
petition for release and the court may deny the petition without a hearing only if it finds
the petition frivolous. (§ 6608, subd. (a).) The court in McKee I held that providing the
court with discretion to deny a petition without a hearing as frivolous did not deny the
defendant due process because the defendant had no right to a hearing when the issue
“ ‘indisputably has no merit.’ ” (McKee I, supra, 47 Cal.4th at p. 1192.)
       Defendant also complains that the amended SVPA reduces his access to the court
because he is not entitled to the assistance of an expert. In support of this contention he
raises the same points and cites the same authority considered by the Supreme Court in
McKee I, supra, 47 Cal.4th at pages 1192-1193. Section 6605, subdivision (d) mandates
the appointment of experts when the DMH authorizes an indigent inmate to petition for
release, but section 6608, subdivision (a) merely provides that petitioner has the right to
counsel, with no mention of experts, when he petitions without the DMH’s approval.
The Supreme Court agreed that expert testimony is critical in an SVP commitment
proceeding. (McKee I, at p. 1192.) The court observed: “If the state involuntarily
commits someone on the basis of expert opinion about future dangerousness, places the
burden on that person to disprove future dangerousness, and then makes it difficult for
him to access his own expert because of his indigence to challenge his continuing
commitment, that schema would indeed raise a serious due process concern.” (Ibid.)
The court, however, rejected this interpretation of the statute and construed section 6608,
subdivision (a), to be read in conjunction with section 6605, subdivision (a), and as
mandating appointment of an expert for an indigent SVP who petitions the court for
release. (McKee I, at pp. 1192-1193.) Under this interpretation of the statute, the


                                             8
Supreme Court held that the amended SVPA did not violate the due process clause.
(McKee I, at p. 1193.)
       Accordingly, under the holding of McKee I, we conclude that defendant’s claim of
a due process violation has no merit.
                     IV. Double Jeopardy and Ex-Post Facto Claim
       Defendant contends that the 2006 amended SVPA is punitive and violates the
double jeopardy and ex-post facto clauses of the federal Constitution.
       Article I, section 10 of the United States Constitution provides: “No state shall . . .
pass any . . . ex post facto law. . . .” The ex post facto clause prohibits only those laws
that “retroactively alter the definition of crimes or increase the punishment for criminal
acts.” (Collins v. Youngblood (1990) 497 U.S. 37, 43.)
       The Supreme Court in McKee I, supra, 47 Cal.4th 1172, explained that it had
already made it clear in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, “in
considering an ex post facto challenge to the pre-Proposition 83 version of the [SVPA],
that the Legislature had ‘disavowed any “punitive purpose[ ],” and declared its intent to
establish “civil commitment” proceedings in order to provide “treatment” to mentally
disordered individuals who cannot control sexually violent criminal behavior. [Citations.]
The Legislature also made clear that, despite their criminal record, persons eligible for
commitment and treatment as SVP’s are to be viewed “not as criminals, but as sick
persons.” [Citation.] Consistent with these remarks, the [SVPA] was placed in the
Welfare and Institutions Code, surrounded on each side by other schemes concerned with
the care and treatment of various mentally ill and disabled groups.’ (Hubbart, at
p. 1171.)” (McKee I, at pp. 1193-1194.) The court in McKee I explained that the
“nonpunitive objectives of the [SVPA]––treatment for the individual committed and
protection of the public––remain the same after Proposition 83. Moreover, under the Act
after Proposition 83, as before, a person is committed only for as long as he meets the
SVP criteria of mental abnormality and dangerousness. As such, the Proposition 83
amendments at issue here cannot be regarded to have changed the essentially nonpunitive
purpose of the [SVPA].” (Id. at p. 1194.)


                                            9
         With regard to the portion of Proposition 83 concerning increased punishment for
sex offenses, the court in McKee I stated, “But the fact that the amendments to the civil
commitment statute are part of the same legislative enactment as amendments to the Penal
Code does not render the former amendments punitive.” (McKee I, supra, 47 Cal.4th at
pp. 1194-1195.) Defendant, here, as the defendant in McKee I, argues the seven-factor
test articulated in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169, applies to
make Proposition 83 punitive. Our Supreme Court considered the factors and concluded
that the “Proposition 83 amendments do not make the [SVPA] punitive and accordingly
do not violate the ex post facto clause.” (McKee I, at p. 1195.)
         As noted above, defendant also asserts that the amended SVPA violates the double
jeopardy clause of the federal Constitution. He argues that he has already been punished
for the crimes underlying his commitment as an SVP and therefore any further
punishment for these offenses constitutes double jeopardy. Since the Supreme Court has
held that the amended SVPA is not punitive, defendant’s double jeopardy argument also
fails.
                                V. Equal Protection Claim
         Defendant contends his involuntary commitment as an SVP under the SVPA, as
amended by Proposition 83 in 2006, violated his federal constitutional right to equal
protection under the law because it treats SVP’s significantly less favorably than those
similarly situated individuals civilly committed under other statutes. Specifically, he
claims that SVP’s receive treatment disparate from mentally disordered offenders (MDO)
subject to commitment under the Mentally Disordered Offenders Act (Pen. Code, § 2960
et seq.) or those civilly committed because they were not guilty of a crime by reason of
insanity (NGI) (Pen. Code, § 1026 et. seq.).
         The court in McKee I, supra, 47 Cal.4th 1172 held that the SVPA, as amended,
potentially violates the equal protection clause of the federal Constitution because SVP’s
are similarly situated to MDO’s and NGI’s for purposes of the term of commitment and
burden of proof for release. (Id. at pp. 1202-1203.) The court concluded that the People
must show, “notwithstanding the similarities between SVP’s and MDO’s, the former as a


                                           10
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 Supreme Court remanded the matter before it 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.)
       On remand from McKee I, the trial court conducted a 21-day evidentiary hearing
and the People presented the testimony of eight witnesses and documentary evidence.
McKee presented the testimony of 11 witnesses and documentary evidence. (McKee II,
supra, 207 Cal.App.4th at pp. 1330, 1332.) The trial court issued a 35-page statement of
decision summarizing the testimony and documentary evidence presented at the hearing.
(Id. at p. 1332.) The trial court found that “the People had met their burden to establish,
by a preponderance of the evidence, that the disparate treatment of SVP’s under the
[amended SVPA] was based on a reasonable perception of the greater and unique dangers
they pose compared to MDO’s and NGI’s.” (Ibid.) The court confirmed its prior order
committing McKee to an indeterminate term. (Ibid.)
       McKee appealed and the Fourth Appellate District in McKee II applied a de novo
standard of review and “independently” determined “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 [amended SVPA].” (McKee II, supra, 207
Cal.App.4th at p. 1338.) The appellate court concluded that the People showed “ ‘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.” (Id. at p. 1347.) Based on


                                           11
the above, the appellate court 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.” (Id at p. 1348.) The SVPA, therefore, did not violate
equal protection. (Ibid.)
       As already noted, the California Supreme Court denied review of McKee II and
this opinion is final.
       As in McKee II, we agree that defendant’s equal protection rights were not
violated by treating him differently than MDO’s and NGI’s for commitment purposes,
because the indeterminate commitment procedures legitimately advance a compelling
state interest in protecting the public from an SVP, like defendant, who carries a
substantial, well-founded risk of reoffending and cannot control his behavior and who
poses a greater risk to a particularly vulnerable class of victims such, as here, children.
We therefore reject defendant’s equal protection challenge.
       Defendant contends that McKee II was wrongly decided and that we should not
follow it. He maintains that the Supreme Court’s refusal to grant review does not amount
to approval of McKee II or preclude other Courts of Appeal from issuing a different
opinion.
       We agree that ordinarily the opinion of one Court of Appeal is not binding on
another Court of Appeal. (See, e.g., Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th
1187, 1193.) However, the Supreme Court’s denial of review is significant. (DiGenova
v. State Board of Education (1962) 57 Cal.2d 167, 178.) “Although [the Supreme
Court’s] denial of a hearing is not to be regarded as expressing approval of the
propositions of law set forth in an opinion of the District Court of Appeal or as having the
same authoritative effect as an earlier decision of this court [citations], it does not follow
that such a denial is without significance as to our views [citations].” (Ibid.)
       In the present situation, the Supreme Court in its order to this and other Courts of
Appeal strongly implied that the determination on remand in McKee II should, once final,
be given considerable weight to “avoid an unnecessary multiplicity of proceedings[.]”
The Supreme Court also specified that “ ‘[f]inality of the proceedings’ shall include the


                                            12
finality of any subsequent appeal and any proceedings in this court.” Thus, in the present
case, the Supreme Court’s denial of review in McKee II signifies its conclusion that the
case was correctly decided and that the holding has statewide significance. Moreover, we
agree with the equal protection analysis in McKee II.
       Defendant’s contention that McKee II was wrongly decided lacks merit.
Defendant argues that the appellate court in McKee II did not conduct de novo review.
He asserts that the reviewing court deferred to the lower court’s ruling because it
accepted as accurate the evidence presented by the prosecution without discussing its
reliability or credibility. (McKee II, supra, 207 Cal.App.4th at p. 1338 & fn. 3.) We
agree with Division Three of our court that stated, when addressing the exact same
argument as the one presented here, that this contention is “frivolous.” (People v.
McKnight (2012) 212 Cal.App.4th 860, 864; see also People v. McDonald (2013) 214
Cal.App.4th 1367, 1378; People v. Landau (2013) 214 Cal.App.4th 1, 47-48.) The
appellate court in McKee II met its obligation by independently reviewing the evidence
and concluding 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, at pp. 1339-1348.)
       Defendant also claims that the appellate court in McKee II misapplied the strict
scrutiny test and that the evidence did not support the ruling that SVP’s are more
dangerous than MDO’s and NGI’s. His arguments are essentially identical to those
raised and rejected in People v. McDonald, supra, 214 Cal.App.4th 1367. We agree with
the reasoning and conclusions in McDonald (id. at pp. 1379-1382), and reject defendant’s
arguments.
       Accordingly, we conclude that defendant’s equal protection claim lacks merit.




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                                  DISPOSITION
     The court’s judgment and order are affirmed.


                                             _________________________
                                             Lambden, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




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