Filed 4/15/13 P. v. Philips CA4/1
                             NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                          D060912

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. MH102766)

JOHN CAREY PHILIPS,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of San Diego County, Edward P.

Allard III, Judge. Affirmed.



         John Carey Philips appeals an order involuntarily committing him for an

indeterminate term to the custody of the California Department of Mental Health (DMH)

after a jury found him to be a sexually violent predator (SVP) under the amended

Sexually Violent Predators Act (SVPA) within the meaning of Welfare and Institutions
Code1 section 6600 et seq. Philips contends the order must be reversed because the

SVPA violates: (1) state and federal due process guarantees by imposing an

indeterminate term on SVP's and requiring them to prove they no longer qualify as

SVP's; (2) equal protection under the state and federal Constitutions; and (3) ex post facto

and double jeopardy state and federal constitutional prohibitions. Having considered

Philips's constitutional contentions in light of People v. McKee (2010) 47 Cal.4th 1172

(McKee I) and People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II), we affirm the

order of commitment.

                                     BACKGROUND

       We omit a discussion of the facts of the underlying convictions as well as the

evidence provided at the recommitment trial because Philips does not challenge either the

admissibility or the sufficiency of the evidence to support his current commitment.

Rather, this appeal presents questions of law.

       In May 2010, the People filed an amended petition seeking to commit Philips as

an SVP for an indeterminate term, alleging he was "convicted of a sexually violent

offense against one or more victims for which he was sentenced and who has a diagnosed

mental disorder that makes him a danger to the health and safety of others, in that it is

likely he will engage in sexually violent predatory criminal behavior." In October 2011,

a jury found Philips qualified as an SVP and the court committed him to the DMH for an

indeterminate term.


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

                                              I.

                Due Process, Ex Post Facto, and Double Jeopardy Claims

       In his opening brief, Philips contends the amended SVPA violates due process by

"replacing the two-year term with an indeterminate term and shifting the burden of proof

onto the defendant to prove his entitlement to release." He further contends that the

SVPA violates the constitutional prohibitions against ex post facto laws and double

jeopardy. Philips makes the claims to preserve them for federal review, but

acknowledges the California Supreme Court has rejected those arguments in McKee I,

supra, 47 Cal.4th 1172, and we are bound by that case. (Auto Equity Sales, Inc. v.

Superior Court (1962) 57 Cal.2d 450, 455.)

                                             II.

                                    Equal Protection Claim2

       Philips contends the indeterminate commitment term in the amended SVPA

violates state and federal guarantees of equal protection because SVP's are treated

differently from those offenders civilly committed under the mentally disordered offender

(MDO) statute (Pen. Code, § 2960 et seq.) and the scheme for those found not guilty by

reason of insanity (NGI). (Pen. Code, § 1620 et seq.) Specifically, Philips challenges

McKee II, supra, 207 Cal.App.4th 1325, arguing this court "misunderstood and

misapplied the strict scrutiny test." (Emphasis and capitalization omitted.) Philips


2      We grant Philips's request to take judicial notice of the trial court's statement of
decision following remand proceedings.
                                               3
contends this court "put itself in the position where it would find that McKee's equal

protection rights had not been violated, notwithstanding the strict scrutiny test, if there

was substantial evidence to support any reasonable inference that SVPs are in some way

more dangerous than MDOs or NGIs even if the inferences are ones that are unlikely to

be true. In effect, this Court applied the rational basis test, not strict scrutiny." Philips

argues it is not enough to show that the Legislature or the voters could reasonably believe

that SVP's are more dangerous as a class, than MDO's and NGI's. The disparate

treatment must still be necessary to protect society. Philips further argues that "under the

facts as presented in the McKee II opinion, this court reached the wrong conclusion with

respect to its equal protection analysis." Philips argues we "basically ignored all the

evidence presented by McKee and acted as if all the evidence presented by prosecution

was indisputably true and believable."3



3        Philips criticizes our equal protection analysis in McKee II, claiming: "There are
three elements that are under attack in this equal protection challenge. First, the
indeterminate commitment; second, the shifting of the burden of proof of the Welfare and
Institutions Code section 6608 proceeding; and third, the elimination of the right to a jury
trial at the Section 6608 hearing. In order for the California SVP Law to withstand equal
protection strict scrutiny analysis, each of these three elements must separately be found
to be necessary to serve a compelling governmental interest." With no supporting
citation, Philips elaborates on these points. We treat these claims as forfeited. "Appellate
briefs must provide argument and legal authority for the positions taken. 'When an
appellant fails to raise a point, or asserts it but fails to support it with reasoned argument
and citations to authority, we treat the point as waived.' " (Nelson v. Avondale
Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.)
         In any event, a court recently rejected this claim. " '[I]n 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 . . . that Proposition 83. . . was required to adopt the
least restrictive means available.' " (People v. McDonald (March 28, 2013, No.
                                               4
A. Applicable Law

       In McKee I, the California Supreme Court decided that SVP's are similarly

situated to other civilly committed persons, including MDO's and NGI's. The court

recognized the amended SVPA was potentially unconstitutional in that similarly situated

involuntary civilly committed persons under other statutory commitment regimes are not

treated the same way as SVP's with regard to commitment terms and burdens of proof for

release. (McKee I, supra, 47 Cal.4th at p. 1207.) The case was remanded to the trial

court for an evidentiary hearing to allow the People an opportunity to justify the disparate

treatment. (Id. at pp. 1207-1211.)

       During the pendency of this appeal, we decided McKee II, and affirmed the trial

court's finding that the People had met their burden to justify the disparate treatment of

SVP's. We concluded the People had 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.' " (McKee II, supra, 207

Cal.App.4th at p. 1347.) "Regardless of the shortcomings or inadequacy of the evidence

on actual sexual recidivism rates," the evidence "support[ed], by itself, a reasonable

inference or perception that SVP's pose a higher risk of sexual reoffending than do

MDO's or NGI's." (Id. at p. 1342.) The California Supreme Court denied review of

McKee II, making our ruling final.

G044963) ___ Cal.Rptr.3d ___ [2013 WL 1246831 *7], citing McKee II, supra, 207
Cal.App.4th at p. 1349.)

                                             5
B. Analysis

        We conclude we applied the correct standard of review in McKee II, where we

stated: "[W]e 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.) Philips fails to explain how the facts in his case are

so different from those presented in McKee II as to warrant an individualized

adjudication of his equal protection claim. His unsupported arguments do not persuade

us to revisit our holding; therefore, we decline his request to remand the matter for an

evidentiary hearing.




                                             6
                               DISPOSITION

      The order is affirmed.




                                             O'ROURKE, J.

WE CONCUR:


McINTYRE, Acting P. J.


IRION, J.




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