Filed 6/5/15 P. v. Carlin 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038403
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 210536)

         v.

ANTHONY WAYNE CARLIN,

         Defendant and Appellant.



         Anthony Wayne Carlin appeals from an order committing him for an
indeterminate term to the custody of the Department of Mental Health (now, the State
Department of State Hospitals (DSH)). The order was entered after a bench trial in which
the trial court found him to be a “sexually violent predator” (SVP) within the meaning of
the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) (SVPA).1 Carlin
contends (1) that the indeterminate commitment provisions of the SVPA violate the due
process, ex post facto, and equal protection clauses of the federal constitution, (2) that
section 6608, subdivision (a) violates his right to equal protection, (3) that the trial court
erred by failing to consider placing him in a conditional release program, and (4) that



1
      Further statutory references are to the Welfare and Institutions Code unless
otherwise noted.
section 6604 violates due process because it does not include conditional release as an
option at the initial SVP commitment proceeding. We affirm the order.


                                       I. Background
       Carlin was serving a 16-year sentence for molesting 10-year-old Ethan F. when
the petition to commit him as an SVP was filed in 2000. (People v. Carlin (2007) 150
Cal.App.4th 322, 329, 336 (Carlin I).) His first trial resulted in a mistrial. (Id. at p. 329.)
He was retried in 2005, and a jury found the petition true. (Ibid.) This court reversed the
commitment order, concluding that the prosecution’s reliance on multiple hearsay to
prove qualifying sexually violent offenses violated Carlin’s right to due process.
(Carlin I, at pp. 339-345.)
       Carlin was retried in 2012. He waived his right to a jury trial and stipulated that
he had suffered two qualifying convictions. The parties also stipulated that “although
we’re reverting to the 2000 petition, the state of the law currently is going to apply to the
case. And that would mean that a commitment under the statute would be for the term
prescribed by law, which is life with options for hearings after that . . . .”
       Clinical psychologist Dr. Robert Owen and psychologist Dr. Douglas Korpi
testified as experts for the prosecution at trial. Dr. Owen evaluated Carlin in 1999 and
provided updated evaluations in 2000, 2003, 2004, 2006, and 2012. He diagnosed Carlin
with pedophilia, sexual attraction to males, nonexclusive type. He explained that the
DSM2 states that pedophilia is a “chronic and lifelong” condition. He opined that
Carlin’s pedophilia was “a current mental disorder” that affected Carlin’s volitional
control. “I think he struggles with self-control and is overwhelmed by his deviant urges
2
        “Known by the acronym ‘DSM,’ the ‘Diagnostic and Statistical Manual of Mental
Disorders [is published] by the American Psychiatric Association. “The DSM-IV is
recognized by the courts as a standard reference work containing a comprehensive
classification and terminology of mental disorders.” ’ [Citation.]” (People v. Jones
(2013) 57 Cal.4th 899, 945, fn. 16.)

                                               2
at times.” He noted that Carlin was also diagnosed with a personality disorder with
narcissistic traits. He described Carlin as “an oppositional guy” who “doesn’t like rules.”
       Dr. Owen testified that Carlin had an essentially “lifelong” history of molesting
young boys. In 1961, he molested a 12-year-old boy on a Little League team that he
coached. Carlin was 19. The next known molestation occurred in 1980, when Carlin had
a sexual relationship with a 13-year-old boy with whom he “fell in love.” In 1981, Carlin
fondled a 12-year-old boy on a YMCA camping trip. Dr. Owen testified that “like almost
every single offense, there was quite a bit of grooming going on, getting to know the
boys, spending time with them, befriending them, being a trusted friend to them and to
the parents . . . . He is focused on boys, and he is engaged in very predatory grooming,
predatory in the sense that he’s establishing this relationship and promoting it in order to
have contact with the boys, ultimately sexual.”
       Carlin was charged with fondling another 13-year-old boy in 1982. Later that
year, he was convicted for committing a lewd act on an 11-year-old boy on a camping
trip. He was placed on probation, which he violated by having contact with young boys.
In 1987, Carlin molested two preteen boys at a jet ski tournament. He pleaded guilty to
one count of child molestation, declined sex offender treatment at the state hospital, and
was sentenced to three years in prison. He was paroled in 1988. He repeatedly violated
his parole and was returned to prison several times. Dr. Owen noted that “[j]ust about
every . . . parole violation has a boy in it.” “[H]e’s out on parole, and yet he cannot stay
away from boys.” Carlin was paroled again in January 1990. Five months later, he was
charged with molesting 10-year-old Ethan F. during an overnight trip to Great America.
Carlin posted bail, failed to report to his parole officer, and absconded to Oregon. He
was later arrested, convicted, and sentenced to 16 years in prison.
       Carlin received a serious rules violation in prison for possessing pictures of
children, books describing adults engaged in sexual activities with young boys, and a list
of children’s names, addresses, and physical attributes. Dr. Owen found it of “grave
                                              3
concern” that Carlin had suffered arrests, convictions, and parole violations but still
continued to offend. “He’s in prison where it’s really dangerous to be a pedophile . . .
and yet he’s cutting out pictures of children in underwear.”
        Around 2000, Carlin was transferred to Atascadero State Hospital (Atascadero),
where he refused to participate in the sex offender treatment program for many years. At
Atascadero and later at Coalinga State Hospital (Coalinga), he was volatile and
confrontational. He received a number of rules violations, including a 2004 violation for
possessing folders with pictures of nude and partially dressed boys. In 2008, staff found
470 child pornography images on Carlin’s personal computer. Carlin told Dr. Owen that
he looked at the images and found them arousing. He told psychologist and defense
expert Dr. Brian Abbott that he had the pornography on a flash drive and on his laptop for
about two months and that he masturbated to it. Dr. Owen found this incident “highly
significant.” “[W]e know that age is a big issue in reducing risk and sexuality in general,
but here he is, a 65-year-old man, and he’s looking at child pornography.” “He’s able to
achieve an erection and masturbate while looking at illegal child pornography. . . . [¶]
[I]nstead of doing the treatment, he’s looking at child porn.” “It’s only a few years
ago . . . .”
        On multiple occasions in 2009 and again in 2011, hospital staff confiscated
contraband from Carlin or intercepted contraband intended for him. The prohibited items
included 10-inch hacksaw blades, cell phones and cell phone adapters, cash, and personal
checks concealed in a “boom box.” In 2011, Carlin became “very angry” when hospital
staff deemed it inappropriate for his “business partner” to bring a 16-year-old boy and 8-
year-old twin boys for a visit. Dr. Owen testified that Carlin “resists rules, which makes
me question how he would do in the community. Would he really follow rules? Because
he sure doesn’t like to follow them in the state hospital.”
        Dr. Owen used several actuarial tools (the Static-99R, the Structured Risk
Assessment, and the Psychopathy Checklist) that compared Carlin to similar offenders to
                                              4
evaluate the statistical risk of sexually violent recidivism. Although Carlin’s scores
placed him in the “low” risk category, Dr. Owen opined that he posed a “substantial risk”
of reoffending. He described Carlin’s case as “highly unusual.” He explained that the
predictive accuracy of the Static-99R is limited because “it doesn’t necessarily have
normative groups . . . identical to the individuals we’re looking at.” It does not consider
all known risk factors, and it scores only those incidents that resulted in convictions.
Thus, it did not consider Carlin’s possession of books describing adults engaging in
sexual activities with young boys, his possession of child pornography, or his possession
of contraband in violation of hospital rules.
       Dr. Owen further explained that while age is generally viewed as a protective
factor, he did not believe it reduced the risk of reoffense in Carlin’s case. He found
Carlin (who walked six to seven miles a day and engaged in stretching and isometrics)
“pretty spry” for a 69-year-old man. He noted that the way in which Carlin committed
his crimes did not require “physical virility.” “He doesn’t have to chase down his
victims, hold them down . . . [or] anything like that. He simply has to convince them that
he is a trustworthy, caring guy who has an interest in them personally and then build
upon that until the sexual offense occurs.” Carlin had a “very troubling history” that
Dr. Owen said he could not ignore. The child pornography was “a big issue . . . , seeing
the recency of that . . . .” The pornography evidenced Carlin’s poor volitional control.
       Dr. Owen described Coalinga’s five-phase treatment program. Phase I is an
introduction. Treatment begins in Phase II, where patients write their autobiographies
and create time lines and behavior chains. Phase II is “an extensive phase” that “takes
quite a while.” In Phase III, patients practice what they learned in Phase II; they journal
and begin developing a release plan. Phase IV involves continued journaling and further
planning for release. Phase V requires a hearing before an offender can be released for
treatment in the community under intense supervision.


                                                5
       Dr. Owen observed that if Carlin had been interested in confronting his pedophila
and learning to manage it, he could have begun treatment 12 years earlier. Carlin did not
begin treatment until 2010. He had been in Phase II for about two years but that was only
“a start.” Dr. Owen opined that “it would be reckless to interfere with the rest of the
treatment, particularly since he’s writing ‘I’m zero risk.’ ” He opined that Carlin would
have serious difficulty controlling his pedophilia if he were released into the community.
“He’s a guy who can easily put himself in high-risk situations because he believes he’s
not at risk.” Dr. Owen commended Carlin’s progress but said it was “not enough.” “I
think he needs to continue in the phases and continue with this whole process so he
reduces his risk for reoffending.”
       Dr. Korpi evaluated Carlin in 2006 and updated his evaluation in 2012. He
diagnosed Carlin with pedophilia, commenting that “everybody is going to agree on
that.” “The issue is does his . . . pedophilia create volitional disturbance.” Dr. Korpi
believed that it did. It was “a pretty straightforward matter” to conclude that Carlin had
had trouble controlling his pedophilia “for many, many years.” His volitional impairment
had begun “quite early on” and had persisted through repeated arrests, treatment, and
probation violations. “And whether in or out of custody, he gets in trouble with respect
to his sexual impulses as recently as 2008.” Dr. Korpi thus found it reasonable to
conclude that Carlin’s volitional impairment was “chronic,” as demonstrated in 2004
when he was found in possession of pictures of young boys in their underwear, in 2008
when he was found in possession of child pornography, and in 2011 when he became
angry at the denial of his request for a visit from the young boys his business partner
wanted to bring to the hospital. Dr. Korpi considered Carlin’s 2008 possession of child
pornography particularly significant because Carlin had by then engaged in various forms
of treatment. Carlin had “promised himself on countless occasions not to do such things”
but nevertheless “gave in to the impulse” when the images were available.


                                             6
       Dr. Korpi gave Carlin “all five of the major actuarial measures” but considered
only the Static-2002R and the Static-99 (which include age corrections) relevant in
Carlin’s case. Dr. Korpi testified that even those tests were “quickly becoming obsolete
for this case” because there are so few 69-year-old men in the samples. Dr. Korpi
testified that Carlin’s “risk per actuarial measures, when we take into account age, is low
to low-moderate.” He overrode the actuarial instruments for five reasons: (1) because
Carlin had sexually problematic behavior after age 60, (2) because his volitional
incapacity was “late onset,” having manifested in his 40s, (3) because “the unexpected
2008 event, pornography,” demonstrated impulsivity and recklessness, (4) because “all
the cognitive distortion” that was not apparent in Carlin’s writings became evident when
Dr. Korpi spoke to him, and (5) because the March 2011 “wheelings and dealings, the
hacksaw blades and the boom box, cell phones, [and] all” indicated that Carlin was still
“bucking the system.” Dr. Korpi was “confident” in his opinion that Carlin posed a
serious and well-founded risk of sexually reoffending. He opined that voluntary
treatment or unconditional release “at this point would not be prudent, especially
given . . . the two 8-year old boys and him getting angry. . . . [H]e’s too . . . new to
treatment to act with prudence upon being released, and he’s as much risk now as he was
when he began treatment.”
       Psychologists Dr. Richard Wollert and Dr. Brian Abbott testified as experts for the
defense. Dr. Wollert reviewed Carlin’s records and interviewed him. He diagnosed
Carlin with pedophilia. He opined that Carlin did not fall within the statutory definition
of an SVP because he had not exhibited volitional impairment for four years. Dr. Wollert
did not consider possessing and masturbating to child pornography evidence of volitional
impairment. He testified that Carlin’s act of deleting the images weeks later showed
“volitional control.” Dr. Wollert also did not believe that Carlin’s anger when his request
to visit with his business partner’s teenaged and eight-year-old twin boys manifested
sexual volitional impairment. He characterized the visit as a business meeting that was
                                              7
“derailed in a way that was not timely . . . [s]o [Carlin] got angry.” Dr. Wollert conceded
that he relied entirely on Carlin’s version of events, that he did not ask Carlin pertinent
questions, and that he did not talk to members of Carlin’s treatment team about the
incident. He also conceded that “it wouldn’t be appropriate” if Carlin’s motivation for
having his treatment team approve the visit was (as Carlin told Dr. Abbott) that he
wanted to show the team that he was no longer interested in boys.
       Dr. Wollert scored Carlin on the revised version of the psychopathy checklist and
on the Static-99R. He also used the MATS-1, an actuarial tool that he developed. He
opined that Carlin did not present a serious and well-founded risk of reoffending. He
criticized Drs. Owen and Korpi for considering factors not included in the Static-99R.
He conceded that the most recent version of the Static-99R coding rules state that since
the instrument does not address all relevant risk factors for sexual reoffense, a prudent
evaluator will always consider other external factors that may influence risk in either
direction.
       Dr. Abbott interviewed Carlin, reviewed his hospital records, and spoke with some
of his treatment providers. He opined that the Static-99R was the most accurate predictor
of an SVP’s risk of sexually reoffending. He admitted having frequently criticized the
Static-99 and Static-99R instruments in previous testimony for, among other things,
including only a small percentage of the factors that are relevant to sexually violent
recidivism. He acknowledged that the Static-99R coding rules permit examiners to
override the actuarial score. He also acknowledged that some SVP’s with a Static-99R
score of one reoffend and that some SVP’s over 70 continue to molest children.
       Dr. Abbott opined that Carlin did not meet the statutory definition of an SVP
because his currently diagnosed mental illness did not affect his emotional or volitional
capacity in a way that predisposed him to commit sexually violent offenses. He had
“insufficient evidence” to indicate that Carlin’s 2008 possession of child pornography
reflected volitional impairment. He had “no firm evidence” that Carlin’s 2011 wish to
                                              8
visit with his business partner’s 16- and eight-year-old boys showed volitional
impairment. He was “not able to make a definitive opinion” about whether Carlin’s
“obvious interests” or “behavior that’s reflecting his pedophilic interest” reflected serious
difficulty controlling his behavior. He conceded that none of the treatment providers that
he spoke with thought that Carlin should be unconditionally released.
       The trial court found the petition true and ordered Carlin committed to the custody
of the DSH for appropriate treatment and confinement in a secure facility. At that point
in the proceedings, Carlin’s counsel stated, “Your Honor, based upon the evidence that’s
been presented to the court I’m going to ask that this Court order Mr. Carlin into
CONREP [Conditional Release Program] at this point based upon the fact of his age
makes him a lower risk, that he can be safely monitored in the community, this would be
a perfect time for Mr. Carlin to undergo that. [¶] The Court has also heard testimony
with regard to how long this treatment program is: five to ten years. And Mr. Carlin . . .
could be in his eighties by the time that happens. [¶] I think CONREP is a perfect
opportunity for him and this Court can clearly order that.”
       The court responded: “[W]ith all due respect, I disagree with that. I don’t
disagree with your reasoning, but I checked the statute . . . section 6604, I think it’s pretty
clear that once I designate Mr. Carlin here as a sexual[ly] violent predator, the statute
requires that I commit him to the [DSH] for their direction on how that is. [¶] . . . [A]nd
so I am not going to order him into CONREP. I will order him to Coalinga [for] the
[DSH] to make the distinction. [¶] I will say based on the testimony of several of the
witnesses, including the People’s witnesses, now Mr. Carlin does have testimony on the
record by at least two doctors for the petitioner that basically said that had he been in
treatment a couple years prior or if he is to continue that[,] in a very short order of time
he should be returned to the court. I think that’s very realistic. [¶] I encourage
Mr. Carlin to continue with what he’s doing because he’s been doing a good job. And I
would rely on that testimony, yourself and Mr. Carlin, in the future, if you want to, I
                                              9
think it’s an appropriate case that it should be returned fairly shortly based on the
testimony of the petitioner’s own experts. . . . [¶] But I’m going to leave it to the experts
there to determine when it’s feasible and when it’s ready to happen there.”
       Carlin filed a timely notice of appeal.


                                       II. Discussion
                           A. Due Process and Ex Post Facto
       Carlin contends that the SVPA violates due process because it permits
indeterminate commitment and puts the burden on him to show that he no longer
qualifies as an SVP. He further contends that the SVPA is punitive in nature because it
extends the period of confinement and increases his punishment, “of which parole is a
form, by delaying it.” He concedes that the California Supreme Court rejected similar
claims in People v. McKee (2010) 47 Cal.4th 1172 (McKee I), and he acknowledges that
we are bound by that holding. (McKee I, at pp. 1193, 1195; Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) We decline to address these arguments,
which Carlin raises only “so that he may seek further review of the issue in the California
Supreme Court and federal courts.”


                                   B. Equal Protection
       Carlin contends that the indeterminate commitment provisions of the SVPA
violate his right to equal protection. He concedes that the Court of Appeal rejected that
argument in People v. McKee (2012) 207 Cal.App.4th 1327 (McKee II) but claims the
case was “wrongly decided.” He argues that the decision contains “three significant
flaws.” First, Carlin asserts that the McKee II court “characterized its duty as
determining ‘whether the People presented substantial evidence to support a reasonable
inference or perception that the [SVPA’s] disparate treatment of SVP’s is necessary to
further compelling state interest.’ ” He complains that “[t]his does not describe de novo
                                             10
review. Nor did the actual review the Court undertook satisfy the de novo standard.” We
reject the argument, as many other courts have done. (E.g., People v. McKnight (2012)
212 Cal.App.4th 860, 864 [“McKnight’s claim that the appellate court failed to
independently review the trial court’s determination is frivolous.”]; People v. Landau
(2013) 214 Cal.App.4th 1, 47; People v. McDonald (2013) 214 Cal.App.4th 1367, 1379,
1381.)
         A court applying the deferential substantial evidence standard of review “ ‘must
view the evidence in a light most favorable to [the judgment] and presume in support of
the judgment the existence of every fact the trier could reasonably deduce from the
evidence.’ [Citations.]” (People v. Johnson (1980) 26 Cal.3d 557, 576; see Jackson v.
Virginia (1979) 443 U.S. 307, 318-320.) That is not what the McKee II court did. The
court expressly stated that “McKee asserts, and we agree, that we review de novo the trial
court’s determination whether the Act, as amended by Proposition 83, violates his equal
protection rights. We independently determine whether the People presented substantial,
factual evidence to support a reasonable perception that SVP’s pose a unique and/or
greater danger to society than do MDO’s [mentally disordered offenders] and NGI’s
[persons found not guilty by reason of insanity], thereby justifying the disparate treatment
of SVP’s under the Act.” (McKee II, supra, 207 Cal.App.4th at p. 1338, italics added.)
The court rejected the prosecution’s argument that it should defer to the trial court’s
findings of historical fact and credibility determinations. (Id. at p. 1338, fn. 3.)
Observing that “the trial court’s statement of decision did not make any express findings
regarding disputed historical facts or the credibility of certain witnesses,” the court
declared that it was “in as good a position as the trial court to decide whether the
evidence presented by the People during the remand hearing satisfied their burden to
justify the disparate treatment of SVP’s under the Act.” (Ibid., italics added) The court
ultimately agreed with the trial court that the prosecution had produced substantial


                                              11
evidence to justify the disparate treatment. (Id. at pp. 1330-1331.) The McKee II court’s
review was plainly de novo.
       The statement that Carlin quotes from McKee II does not compel a contrary
conclusion. (McKee II, supra, 207 Cal.App.4th at p. 1339.) The court’s reference to
“substantial evidence” reflects nothing more than the court’s adherence to the standard
the high court directed it to follow. In McKee I, the high court explained that “[w]hen a
constitutional right, such as the right to liberty from involuntary confinement, is at stake,
the usual judicial deference to legislative findings gives way to an exercise of
independent judgment of the facts to ascertain whether the legislative body ‘ “has drawn
reasonable inferences based on substantial evidence.” ’ [Citations.]” (McKee I, supra, 47
Cal.4th at pp. 1206-1207.) The McKee II court followed this standard.
       Carlin next challenges the McKee II court’s application of the strict scrutiny test.
He argues that court’s description of the test “more closely resembles the rational basis
test.” We disagree.
       The McKee II court stated that “ ‘[s]trict scrutiny is the appropriate standard
against which to measure claims of disparate treatment in civil commitment.’ [Citation.]
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. [Citation.] Alternatively stated,
applying the strict scrutiny standard, a law ‘is upheld only if it is necessary to further a
compelling state interest.’ [Citation.]” (McKee II, supra, 207 Cal.App.4th at p. 1335.)
The McKee II court plainly understood that the strict scrutiny test required the
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.]” (Id. at p. 1349.)
       Carlin contends that the McKee II court applied the wrong test. He faults the court
for failing to analyze whether disparate treatment was necessary. He further faults the
                                              12
court for analyzing only “whether the perception of the voters was reasonable” and not
whether it was accurate. These arguments lack merit.
       In McKee I, the high court directed the trial court to apply the equal protection
principles articulated in In re Moye (1978) 22 Cal.3d 457 (Moye) and related cases to
determine whether the prosecution “can demonstrate the constitutional justification for
imposing on SVP’s a greater burden than is imposed on MDO’s and NGI’s in order to
obtain release from commitment.” (McKee I, supra, 47 Cal.4th at pp. 1208-1209.) In
Moye, which like this case involved an equal protection challenge to a civil commitment
statute, the high court articulated the strict scrutiny standard as follows: “[T]he state
must establish both that it has a ‘compelling interest’ which justifies the challenged
procedure and that the distinctions drawn by the procedure are necessary to further that
interest.” (Moye, at p. 465.)
       The McKee II court applied that standard. It independently reviewed the evidence
and concluded that the prosecution had shown that the legislative distinctions between
classes of persons subject to civil commitment were both reasonable and factually based.
(McKee II, supra, 207 Cal.App.4th at p. 1347.) Specifically, the prosecution had shown
that recidivism among SVP’s as a class is more likely than among either MDO’s or
NGI’s, that SVP’s pose a greater risk to a particularly vulnerable class of victims, and
that SVP’s have “significantly different diagnoses” and significantly different treatment
plans, compliance, and success rates than MDO’s and NGI’s. (McKee II, at p. 1347.)
The court concluded that these distinctions justified the disparate treatment of SVP’s,
which was “necessary to further the state’s compelling interests in public safety and
humanely treating the mentally disordered.” (Ibid.) This satisfied the strict scrutiny
standard.
       To the extent Carlin contends that the prosecution had to show that SVP’s are
actually more dangerous as a class, we reject the contention. In remanding the case, the
McKee I court stated that “the government will have an opportunity to justify Proposition
                                              13
83’s indefinite commitment provisions . . . , and demonstrate that they are based on a
reasonable perception of the unique dangers that SVP’s pose rather than a special stigma
that SVP’s may bear in the eyes of California’s electorate. [¶] Moreover, we emphasize
that mere disagreement among experts will not suffice to overturn the Proposition 83
amendments. The trial court must determine whether the legislative distinctions in
classes of persons subject to civil commitment are reasonable and factually based—not
whether they are incontrovertible or uncontroversial.” (McKee I, supra, 47 Cal.4th at
pp. 1210-1211, fn. omitted.) The McKee II court relied on evidence that scores on the
Static-99 test, which assesses the risk that a sex offender will commit sex offenses, were
significantly higher for SVP’s than for MDO’s and NGI’s. (McKee II, supra, 207
Cal.App.4th at pp. 1340-1342.) It complied with the high court’s directions.
       Relying on Bernal v. Fainter (1984) 467 U.S. 216 (Bernal), Carlin next argues
that “[t]he element of necessity under the strict scrutiny standard required that the
prosecution show that the disparate treatment of SVPs constituted the least restrictive
means possible.” He contends that the McKee II court misapplied the strict scrutiny test
by improperly “reject[ing] the need for the prosecution to make such a showing.”
       McKee made a similar argument and the McKee II court rejected it. (McKee II,
supra, 207 Cal.App.4th at p. 1349.) In Bernal, the United States Supreme Court stated
that “[i]n order to withstand strict scrutiny, the law must advance a compelling state
interest by the least restrictive means available.” (Bernal, supra, 467 U.S. at p. 219.) The
McKee II court described the quoted sentence as “probable dictum” and distinguished
Bernal because it involved a suspect class, alienage. (McKee II, at p. 1349.) The McKee
II court stated, “We are unaware of any case applying the ‘least restrictive means
available’ requirement to all cases involving disparate treatment of similarly situated
classes.” (Ibid.) “On the contrary, our review of equal protection case law shows the
two-part test, as discussed in Moye and McKee [I], is the prevailing standard. . . .
Therefore, in strict scrutiny cases, the government must show both a compelling state
                                             14
interest justifying the disparate treatment and that the disparate treatment is necessary to
further that compelling state interest. [Citations.] We are unpersuaded the electorate that
passed Proposition 83 in 2006 was required to adopt the least restrictive means available
(e.g., a two-year or other determinate term of civil commitment) in disparately treating
SVP’s and furthering the compelling state interests of public safety and humane treatment
of the mentally disordered.” (McKee II, at p. 1349.)
       We agree with the McKee II court’s analysis. Given the evidence presented in
McKee II (that the vast majority of SVP’s are diagnosed with pedophilia or other
paraphilias, that a paraphilia ordinarily persists throughout a patient’s lifetime, that
treatment of SVP’s is not focused on medication, and that most SVP’s do not participate
in treatment), we have no basis for concluding that an indeterminate term is not necessary
to further the compelling state interest in providing treatment to SVP’s and protecting the
public or that there is any less burdensome alternative to effectuate those interests.
(McKee II, at pp. 1344-1346.)
       Dunn v. Blumstein (1972) 405 U.S. 330 (Dunn) and the other cases Carlin cites do
not compel a different conclusion. Those cases merely illustrate what Carlin expressly
acknowledges: that “[t]he strict scrutiny test has been phrased in a number of different
ways including ‘the least restrictive means available,’ ‘narrowly tailored,’ and ‘necessary
to further.’ ” As the Dunn court explained, using particular language to articulate the test
is less important than applying the proper level of scrutiny to a challenged law. (Dunn, at
pp. 342-343.) In Dunn, the court held that durational residence laws restricting voting
rights “are unconstitutional unless the State can demonstrate that such laws are
‘necessary to promote a compelling governmental interest.’ [Citations.] Thus phrased,
the constitutional question may sound like a mathematical formula. But legal ‘tests’ do
not have the precision of mathematical formulas. The key words emphasize a matter of
degree: that a heavy burden of justification is on the State, and that the statute will be


                                              15
closely scrutinized in light of its asserted purposes.” (Ibid.) The McKee II court applied
the proper level of scrutiny.
       Carlin challenges the McKee II court’s conclusion that “ ‘[t]he People presented
evidence showing [that] the inherent nature of the SVP’s mental disorder makes
recidivism significantly more likely for SVP’s as a class than for MDO’s and NGI’s.’ ”
He complains that the court did not examine any evidence comparing the sexual
recidivism rate of SVP’s with the sexual recidivism rate of MDO’s and NGI’s, who are
similarly situated. Instead, it compared the SVP recidivism rates with those of “other
types of criminals,” which was “neither useful, nor relevant.” We cannot agree.
       In McKee II, the prosecution presented studies, Static-99 data comparing
recidivism rates, and the testimony of three expert witnesses. (McKee II, supra, 207
Cal.App.4th at pp. 1340-1342.) The court acknowledged that the evidence showed that
“the inherent nature of the SVP’s mental disorder makes recidivism as a class
significantly more likely than recidivism of sex offenders generally” but “d[id] not show
SVP’s have, in fact, a higher sexual recidivism rate than MDO’s and NGI’s.” (Id. at
p. 1342.) Nonetheless, the court found the recidivism rate evidence “ ‘significant, given
that the goal of the [SVPA] is specifically to protect society from particularly serious
sexual offenses.’ ” (Ibid.) The court also relied on evidence that scores on the Static-99
test, which assesses the risk that a sex offender will commit new sex offenses, were
higher for SVP’s than for non-SVP sex offenders. (Ibid.) The court held that
“[r]egardless of the shortcomings or inadequacy of the evidence on actual sexual
recidivism rates, the Static-99 evidence . . . supports, 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.) The McKee II court’s conclusion was consistent with the McKee I court’s
suggestion that evidence of a greater risk of recidivism by SVP’s was one type of
evidence that the prosecution might present to show that “notwithstanding the similarities
between SVP’s and MDO’s, the former as a class bear a substantially greater risk to
                                              16
society, and that therefore imposing on them a greater burden before they can be released
from commitment is needed to protect society.” (McKee I, supra, 47 Cal.4th at p. 1208.)
       Carlin next complains that the McKee II court reached its conclusion that victims
of sex offenses suffer greater trauma than victims of non-sex offenses “without any
evidence regarding the trauma caused by non-sex offenses.” He claims it is “unclear”
whether the medical experts’ testimony, which focused on child sexual abuse, “is
properly extrapolated to adult victims of sexual offenses” and that the court “cited no
evidence regarding the effects of other types of crimes and the trauma suffered by victims
of those crimes.” The argument lacks merit. First, although one of the medical experts
testified specifically about child sexual abuse, the other two testified generally about
victims of sexual abuse. (McKee II, supra, 207 Cal.App.4th at pp. 1342-1343.) Second,
the evidence that the McKee II court relied on included testimony that “[s]exual trauma
differs qualitatively from other traumas because of its intrusiveness and long-lasting
effects,” and that “[d]ysfunction, disassociation and avoidance problems after sexual
trauma are unique to sexual abuse and are not seen in victims of physical or other types
of abuse.” (Ibid.)
       Carlin next complains that the evidence in McKee II concerning differences in
diagnoses, treatment, compliance, and success rates between SVP’s as opposed to
MDO’s and NGI’s did not support “the need to eliminate periodic jury trials, the need to
shift the burden of proof, or the need to impose indeterminate commitments.” He argues
that (1) the McKee II court conducted a substantial evidence rather than a de novo review,
(2) that treatment is not actually required before an SVP may be eligible for release, and
(3) that the court failed to consider whether indeterminate commitments (as opposed to
less restrictive five-year commitments) were necessary. We find these arguments
unpersuasive. We have already determined that the McKee II court conducted a proper
de novo review in accordance with the McKee I court’s directions. (Ante, pp. 10-12.)
The court concluded that there was substantial evidence to “ ‘support[] the conclusion
                                             17
that, as a class, SVP’s are clinically distinct from MDO’s and NGI’s and that those
distinctions make SVP’s more difficult to treat and more likely to commit additional
sexual offenses than are MDO’s and NGI’s.’ ” (McKee II, supra, 207 Cal.App.4th at p.
1347.)
         With respect to Carlin’s assertion that treatment is not a requirement for an SVP’s
release and to the extent conflicting evidence on that question was introduced at trial in
McKee, the prosecution’s burden was to show that “the legislative distinctions in classes
of persons subject to civil commitment are reasonable and factually based—not [that]
they are incontrovertible or uncontroversial.” (McKee I, supra, 47 Cal.4th at pp. 1210-
1211; accord, McKee II, supra, 207 Cal.App.4th at p. 1348.) The prosecution satisfied
that burden by presenting expert testimony and studies supporting the McKee II court’s
finding that the treatment of SVP’s differs significantly from the treatment of MDO’s and
NGI’s and that SVP’s are less likely to participate in treatment.
         Finally, we are not persuaded by Carlin’s argument that indeterminate
commitment is not necessary to further the state’s compelling interest in protecting the
public and providing treatment to SVP’s because a five-year term would equally
effectuate those interests. The McKee II court concluded after a proper strict scrutiny
analysis that the state’s disparate treatment of SVP’s (specifically, an indeterminate-term
commitment with a greater burden to obtain release than that imposed on MDO’s and
NGI’s) was necessary to further the state’s compelling interests. Narrow tailoring to
serve a compelling state interest does not require exhaustion of every conceivable
alternative. (See Grutter v. Bollinger (2003) 539 U.S. 306, 339.)


                              C. Section 6608, Subdivision (a)
         Relying on People v. McCloud (2013) 213 Cal.App.4th 1076 (McCloud), Carlin
contends that section 6608, subdivision (a) violates his right to equal protection. Section
6608 governs petitions for conditional release or unconditional discharge that are filed
                                              18
without the recommendation or concurrence of the Director of State Hospitals. It
provides that the trial court “shall endeavor whenever possible to review the petition and
determine if it is based upon frivolous grounds and, if so, shall deny the petition without a
hearing.” (§ 6608, subd. (a).) Carlin argues that this provision violates equal protection
because similarly-situated individuals (specifically, MDO’s and NGI’s) “are not
subjected to having a court deny their petition for release without a hearing.” The
Attorney General responds that Carlin’s challenge is not ripe for review and in any event,
section 6608 does not violate equal protection principles. We agree that Carlin’s
challenge is not ripe for decision.
       It is a “well-settled rule that courts should ‘avoid advisory opinions on abstract
propositions of law. [Citations.]’ ” (People v. Ybarra (1988) 206 Cal.App.3d 546, 549;
People v. Gonzales (1994) 29 Cal.App.4th 1684, 1700.) To avoid advisory opinions,
courts must wait until a case “ ‘has reached, but has not passed, the point that the facts
have sufficiently congealed to permit an intelligent and useful decision to be made.’ ”
(Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171.)
       Carlin’s appeal in this case is from a determination made under the SVPA’s initial
commitment procedures (§§ 6601-6604), not from a determination made under section
6608’s post-commitment release procedure. Nothing in the record suggests that Carlin
ever filed a petition pursuant to section 6608 for conditional release or unconditional
discharge. His equal protection challenge to section 6608 is premature.
       McCloud does not change our analysis. In McCloud, the court remanded an
SVP’s appeal from a commitment determination “so that both parties may fully brief and
argue McCloud’s claim that section 6608, subdivision (a), violates the equal protection
clause.” (McCloud, supra, 213 Cal.App.4th at p. 1088.) Carlin’s reliance on McCloud is
misplaced for two reasons. First, the decision contains no discussion of ripeness, which
suggests that the issue was not before the court. Second, the decision is not on the merits.
The court wrote only that it could not say “as the People would have us do” that
                                             19
McCloud’s argument was “wholly without merit.” (Id. at p. 1088.) It remanded the
question for further briefing. (Ibid.) Thus, even if we were bound by another appellate
court’s decision, McCloud would not control the outcome of this case.


    D. Claimed Due Process Error in Refusing to Consider Conditional Release
       Carlin contends that the trial court erred by failing to consider whether he should
be placed in a conditional release program. He further contends that the trial court’s error
violated his right to due process. We disagree.
       Carlin’s argument is based on his assertion that the court’s statements “indicate”
that it “failed to make the required finding that confinement was necessary instead of
conditional release . . . .” The record does not support his claim.
       During colloquy toward the end of trial, Carlin’s counsel informed the trial court
that the parties had agreed “early on” to use CALJIC No. 4.19 instead of the relevant
CALCRIM instruction. The court responded that it would “definitely look at the
instructions.” The court noted that CALJIC No. 4.19 had been cited with approval in
other cases as an adequate description of the law. Before announcing its ruling, the court
told the parties that it “was guided, of course, by CALJIC 4.19 because it is good law.”
       The version of CALJIC No. 4.19 in effect at Carlin’s 2012 trial provided in
pertinent part that “[t]he term ‘sexually violent predator’ means a person who, (1) has
been convicted of a sexually violent offense against two or more victims, and (2) has a
diagnosed mental disorder, (3) the disorder makes him or her 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 [unless confined within a secure facility] . . . . [¶] The word ‘likely’ as used in
this definition means the person presents a substantial danger, that is, a serious and well-
founded risk that he or she will commit sexually violent predatory crimes if free in the
community. However, it does not mean that it must be more probable than not that there
will be an instance of re-offending.” (CALJIC No. 4.19 (Spring 2012 ed.), italics added.)
                                              20
The use notes characterize the italicized language as requiring a determination that
custody in a secure facility is “necessary” to ensure that the SVP is not a danger to the
health and safety of others. (Use Note to CALJIC No. 4.19, p. 249.)
         Here, the trial court found that Carlin qualified as an SVP. On the record before
us, that finding included an implied finding that Carlin’s confinement “within a secure
facility” was necessary. (CALJIC No. 4.19.) We reject Carlin’s contention that the trial
court failed to make that finding.
         In ordering Carlin committed to the custody of the DSH, the trial court followed
the SVPA’s mandate. Section 6604 provides in pertinent part that “[i]f the court or jury
determines that the person is a sexually violent predator, the person shall be committed
for an indeterminate term to the custody of the [DSH] for appropriate treatment and
confinement in a secure facility . . . .” (§ 6604, italics added.) “Absent any indicia of a
contrary legislative intent, the word ‘shall’ is ordinarily construed as mandatory . . . .”
(People v. Hardacre (2001) 90 Cal.App.4th 1392, 1398.) Construing the word “shall” in
section 6604 as mandatory is consistent with the Legislature’s intent because the SVPA’s
“primary purpose is to protect the public from ‘a small but extremely dangerous group of
sexually violent predators that have diagnosable mental disorders [that] can be identified
while they are incarcerated.’ [Citation.]” (People v. Hurtado (2002) 28 Cal.4th 1179,
1192.)
         Here, having found beyond a reasonable doubt that Carlin qualified as an SVP, the
trial court properly ordered him committed to the custody of the DSH. The statute did
not give the court discretion to grant Carlin’s impromptu petition for conditional release.
(§ 6604.) Thus, the court did not err in rejecting it. It follows that there was no due
process violation. (People v. Osband (1996) 13 Cal.4th 622, 675 [“Because there was no
state law error, neither was there any predicate for a constitutional violation.”].)




                                              21
                       E. Due Process Challenge to Section 6604
       Carlin contends that “the application of section 6604 violates due process”
because it gives the trier of fact only two options at the initial SVP commitment
proceedings, confinement in the state hospital or unconditional release. He argues that
there is no compelling state reason why conditional release (which is an option at
recommitment proceedings under section 6608) should not also be an option at initial
commitment proceedings under section 6604. We disagree.
       A similar argument was rejected in People v. Grassini (2003) 113 Cal.App.4th
765 (Grassini).) After the trial court found probable cause to believe that Grassini
qualified as an SVP, his counsel told the court that Grassini would admit the petition if he
could be placed immediately into CONREP. (Id. at p. 779.) Counsel asserted that the
trial court had the inherent authority to achieve justice by providing for the least
restrictive alternative appropriate to Grassini’s and the community’s needs. (Ibid.) The
trial court ruled that it had no authority to order Grassini into CONREP because the
SVPA required that SVP’s be confined in a secure facility for at least one year before
conditional release could be considered. (Ibid.) Grassini appealed.
       The Court of Appeal found Grassini’s contention “without merit.” (Grassini,
supra, 113 Cal.App.4th at p. 779.) It refused to “read into [section 6604] the provision
that confinement and treatment for two years in a secure facility are required only for an
SVP ‘who is likely to engage in sexually violent criminal predatory acts while [under]
supervision and treatment in the community.’ ” (Grassini, at p. 780.) It relied in part on
People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888 (Ghilotti), which rejected the
notion that due process limited involuntary confinements to persons found “ ‘more likely
than not’ ” to reoffend. It quoted the California Supreme Court’s statement in Ghilotti
that “[i]n our view, the state has a compelling protective interest in the confinement and
treatment of persons who have already been convicted of violent sex offenses, and who,
as the result of current mental disorders that make it difficult or impossible to control
                                             22
their violent sexual impulses, represent a substantial danger of committing similar new
crimes [citations], even if that risk cannot be assessed at greater than 50 percent. The
SVPA is narrowly tailored to achieve this compelling purpose. [Citation.]” (Grassini, at
p. 780, quoting Ghilotti, at p. 924.)
       The Grassini court also relied on People v. Hubbart (1999) 19 Cal.4th 1138
(Hubbart), noting that in that case, “the [California] Supreme Court pointed out that
‘[t]he Legislature . . . evidently determined that because SVP’s have committed sexually
violent offenses in the past and are dangerous at the time of commitment, they should
receive treatment in a secure psychiatric facility suited to addressing the special risks they
present. [Citations.]’ [Citation.] ‘In describing the underlying purpose [of the SVPA],
the Legislature expressed concern over a select group of criminal offenders who are
extremely dangerous as the result of mental impairment, and who are likely to continue
committing acts of sexual violence even after they have been punished for such crimes.
The Legislature indicated that to the extent such persons are currently incarcerated and
readily identifiable, commitment under the SVPA is warranted immediately upon their
release from prison. The Act provides treatment for mental disorders from which they
currently suffer and reduces the threat of harm otherwise posed to the public. . . .
[Citation.]’ ” (Grassini, supra, 113 Cal.app.4th at pp. 780-781, quoting Hubbart, at
pp. 1143-1144.)
       The Grassini court noted that “[t]o this end, the statutory scheme provides for
confinement of SVP’s until they no longer pose a threat to society, thereby employing the
least drastic method of attaining its purpose of the protection of society. (See Hubbart,
supra, 19 Cal.4th at pp. 1177-1178, fn. 36 [conditional release provisions constitute less
restrictive alternatives]; see also People v. Cheek (2001) 25 Cal.4th 894, 898 [‘The
[SVPA] is . . . “designed to ensure that the committed person does not ‘remain confined
any longer than he suffers from a mental abnormality rendering him unable to control his
dangerousness.’ ” ’].) As the Supreme Court observed in Hubbart, ‘Various provisions
                                             23
seek to ensure that any commitment ordered under section 6604 does not continue in the
event the SVP’s condition materially improves. . . . [A]t any time the [DSH] has reason
to believe that a person committed under the [SVPA] “is no longer a sexually violent
predator,” judicial review of the commitment must be sought. [Citation.] If the court
accepts this recommendation, the person is entitled to unconditional release and
discharge.’ In addition, under section 6605, an SVP ‘shall have a current examination of
his or her mental condition made at least once every year’ [citation], and, after a finding
by the court of probable cause to believe that the mental disorder has changed, the SVP
shall be unconditionally released and discharged if the state fails to prove beyond a
reasonable doubt at a trial that the SVP’s diagnosed mental disorder ‘remains such that he
or she is a danger to the health and safety of others and is likely to engage in sexually
violent criminal behavior if discharged.’ [Citations]” (Grassini, supra, 113 Cal.App.4th
at p. 781.) The Grassini court additionally noted that section 6608 allows an SVP to
petition for conditional release from confinement even without the concurrence of the
DSH, “and this may be followed by unconditional release after a year in such program.
[Citation.]” (Grassini, at p. 781.) The court concluded that there was “no due process
violation in the trial court’s rejection, under the statutory scheme, of [Grassini’s]
proposed plea bargain involving immediate outpatient commitment.” (Id. at p. 782.)
       We find the Grassini court’s reasoning persuasive. The state has a compelling
interest in protecting the public by confining persons who, like Carlin, “have already
been convicted of violent sex offenses, and . . . as the result of current mental disorders
that make it difficult or impossible to control their violent sexual impulses, represent a
substantial danger of committing similar new crimes . . . .” (Grassini, supra, 113
Cal.App.4th at p. 780.) Although the SVPA has been amended since Grassini was
decided, it remains narrowly tailored to achieve that end, with numerous provisions that
ensure that the SVP remains committed only so long as his or her diagnosed mental
disorder creates a danger to the community. (E.g., § 6605, subd. (c) [requiring DSH to
                                              24
seek judicial review of an SVP’s commitment “[i]f the [DSH] has reason to believe that
[the] person committed to it as a sexually violent predator is no longer a sexually violent
predator . . . .”], § 6607 [requiring DSH to forward report and recommendation for
conditional release to the court and others if the Director determines “that the person’s
mental disorder has so changed that the person is not likely to commit acts of predatory
sexual violence while under supervision and treatment in the community” and requiring
the court to set a hearing], § 6608 [allowing an SVP to petition for conditional release
even without the concurrence of the DSH].) We reject Carlin’s argument that the
application of section 6604 violated his due process rights.
       Carlin maintains that Grassini is inapposite “because of the different factual
circumstances” between that case and this one. He emphasizes that he had been in the
custody of the DSH “for over twelve years by the time the trial court found the [SVP]
petition true.” This argument overlooks the fact that he refused treatment for most of
those 12 years. He did not begin treatment until 2010. He had not yet completed Phase
II when the trial court found the petition true. Thus, his circumstances were not
materially different from Grassini’s.
       Carlin argues that Grassini is distinguishable because it involved a plea bargain.
This is a distinction without a difference. The issue was the same in both cases: whether
the failure to consider initial placement in a conditional release program in the
community, rather than commitment to the state hospital, violated due process.
       Carlin next asserts that “[t]he California Supreme Court has found that treatment
does not necessarily require confinement.” The high court’s observation does not
advance his argument. The statement comes from Ghilotti, which involved a petition to
recommit an SVP despite the formal recommendations of two DMS-designated
psychologists that he should be unconditionally released because he no longer met the
statutory definition of an SVP. (Ghilotti, supra, 27 Cal.4th at p. 926.) The prosecution
argued that the statute did not permit the evaluators to recommend Ghilotti’s
                                             25
unconditional release without finding that he was “ ‘safe in the absence of any treatment
and custody.’ ” (Id. at pp. 925-926.) The court rejected that argument, holding that
“insofar as the protocol permits, the evaluators may consider any factor which, in their
professional judgment, is relevant to the ultimate issue whether the person is a substantial
danger to reoffend if free in the community without any conditions, supervision,
monitoring, or mandatory treatment in the Director’s custody.” (Id. at p. 927.)
“Particularly when one, like Ghilotti, has previously been committed as an SVP, and thus
has already been subject, while in hospital confinement, to the SVPA’s mandated
treatment program [citation], the evaluators may obviously assess his or her progress, if
any, as a factor in determining whether he or she represents a substantial danger if
unconditionally released at the end of a commitment term. Theoretically this might
include an assessment that while a continuing mental disorder makes it dangerously
difficult for the person to control his or her violent sexual impulses without continuing
treatment, there is practicable treatment, readily available in the community, which would
eliminate or control the impulses, and the person's current mental condition is such that
he or she can be, and is, willing and able to pursue such treatment as long as it is needed.
There appears no statutory reason why the evaluators may not consider these factors as
bearing on the overall assessment of the person’s risk of reoffending if free of custody.”
(Ghilotti, at p. 927.)
       Carlin’s circumstances are different. He was not before the court on a petition for
recommitment. Neither of the designated DHS evaluators recommended his
unconditional release. Neither evaluator suggested that he could be safely treated in the
community. On the contrary, Dr. Korpi testified that voluntary treatment “at this point
would not be prudent” because Carlin was “too new to treatment.” Dr. Owen testified
that Carlin needed “to continue in the phases . . . so he reduces his risk for reoffending.”
Carlin’s reliance on the high court’s observation in Ghilotti is misplaced. His reliance on
a statement that the court made in People v. Superior Court (George) (2008) 164
                                             26
Cal.App.4th 183 (which Carlin also quotes out of context) is misplaced for the same
reasons.


                                    III. Disposition
       The order committing Carlin to the custody of the DSH for an indeterminate term
is affirmed.




                                           27
                                ___________________________
                                Mihara, J.



WE CONCUR:




_____________________________
Elia, Acting P. J.




_____________________________
Bamattre-Manoukian, J.




                                 28
