Filed 8/7/13 P. v. Smeltzer CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062222

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. MH101395)

MATTHEW SMELTZER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Howard H.

Shore, Judge. Affirmed.

         Susan K. Shaler, on appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Bradley Weinreb and William M.

Wood, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found that Matthew Smeltzer was a sexually violent predator (SVP) for

purposes of his continued civil commitment at Coalinga State Hospital (Coalinga).

Challenging the judgment on appeal, Smeltzer argues the trial court erred by limiting his

presentation of expert testimony on the volitional impairment requirement, and declining

to modify an instruction on the volitional impairment requirement. He also asserts his

indeterminate commitment violates his constitutional rights. We find no reversible error

and affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Smeltzer's civil commitment arose from his repeated acts of molestation of young

children and his diagnosis of pedophilia. In 1985 when Smeltzer was 29 years old, the

10-year-old daughter of his first wife accused him of digitally penetrating her vagina;

these allegations were investigated but not pursued by the authorities.1 In 1991 when

Smeltzer was 34 years old, he sustained three convictions of lewd acts against a child

under age 14, which formed the predicate offenses for his SVP status.

       The 1991 offenses were committed on multiple occasions during a four- to six-

week period after Smeltzer distributed a letter at his apartment complex inviting children,

ages five to 10, to his apartment for "movie night." While his pregnant wife was at home

in another room, Smeltzer molested two seven-year-old girls and a four-year-old girl

while they were sitting on his lap covered with a blanket, including touching their genital



1      Later, after Smeltzer was arrested for child molestation in 1991, he told a mental
health evaluator that he was aroused when his stepdaughter would " 'squirm' " over his
groin area while sitting on his lap, but he denied that he digitally penetrated her.
                                             2
areas over or under their underwear. With one of the seven-year-old victims, he also

digitally penetrated her vagina and made her touch his penis while she was on his bed.

Three other girls at the apartment complex also reported that Smeltzer touched their

genital area over their clothing; these charges were not part of his guilty plea but he later

admitted to an interviewer that he molested four girls at his apartment. Smeltzer told the

probation officer that he would fantasize about these touchings while masturbating.

When asked how he felt about molesting the victims when his wife was at home,

Smeltzer told the probation officer that he was afraid of being caught, but his desire to

molest overcame his fear.

       Smeltzer was granted probation for the 1991 offenses, with a suspended 10-year

sentence. While released on probation, he at times participated in sex offender treatment.

In 1994, he violated probation by being with his children without supervision; this

occurred when his wife felt it was safe to leave him alone with their infant twin sons

because he had never molested boys and the boys were infants. After this violation, his

probation was modified and reinstated. A few months later he violated probation a

second time by possessing obscene material about sexual acts with "quasi human/animal

figures" that his therapist determined were "pedophilic in nature." Based on this second

violation, his probation was revoked and he was sent to prison to serve the 10-year term.

       Smeltzer commenced his prison term in 1995, and he was released on parole in

1999. In 2000, he was caught walking out of his residence with a VCR and cartoon

videos that would appeal to children, which was in violation of his parole. In this same

year, he was found in possession of a list of names of children from Kenya and their ages;

                                              3
he stated he had been corresponding with these children since 1997 through a pastor. He

was sent to prison for violating parole and released in December 2000.

      In 2002, he wrote letters to three 15-year-old girls using the name and address of a

friend (also a convicted sex offender) who lived in the same hotel where he was residing.

Also in 2002, he committed a child pornography offense by using a key to go into the

friend's room and going online on the friend's computer. He admitted that over a five- to

eight-month period he viewed 20 to 100 images of nude children in provocative poses

and engaging in sexual acts. He said that "he knows it was not good to do, but he

continued." After committing the child pornography offense, in 2003 he was determined

to be an SVP and committed to a state hospital.2 The case before us concerns a 2010

amended petition to commit him as an SVP for an indeterminate term.

      At trial, psychologists Robert Owen and Eric Simon testified on behalf of the

People.3 These experts opined that Smeltzer suffers from pedophilia, and his sexual

misconduct was predatory in nature because he engaged in a very methodical approach to

bring children to him whom he could molest. Further, his condition affected his

volitional control and he continued to pose a substantial risk of committing predatory sex

offenses if released into the community.




2      Smeltzer pled guilty to the child pornography offense. It appears that he entered
his guilty plea and was sentenced for this offense in 2005 (after he was committed to the
state hospital in 2003), and he received credit for time served on his prison sentence.

3     Drs. Owen and Simon reviewed Smeltzer's criminal and medical records but
Smeltzer declined to be interviewed by them.
                                            4
       In support, the People's experts relied on a variety of factors, including Smeltzer's

standardized testing results; his failure to complete an intensive sex offender treatment

program; his continued pedophilic behavior notwithstanding criminal punishment; and

his distorted cognitive thinking. In standardized testing (the Static-99R), Smeltzer scored

in the moderate to high risk range of reoffending based on such factors as reoffending

after a penal consequence; actual touching of the victims; unrelated victims; and female

victims.4

       The People's experts testified that Smeltzer could have decreased his risk of

reoffending if he had completed the "phase treatment program" at Coalinga, which is a

comprehensive, intensive sex offender treatment program that specifically addresses

sexual deviance and takes years to complete. Smeltzer attended an introduction to the

program, but then declined to participate in it. He was not a behavior problem at

Coalinga and he participated in groups and classes, including a sexual compulsivity

recovery group. These courses are considered "peripheral" to treatment and although

they can address some of the sex offender issues, they are not "anywhere near the level of




4      Factors that reduced Smeltzer's risk level under the Static-99R included his older
age, past long-term relationship with a partner, lack of violence, and lack of general
criminality. Smeltzer's moderate to high risk category meant there is a 20 percent
likelihood of reoffending over five years and a 30 percent likelihood of reoffending over
10 years.

                                             5
intensity and thoroughness" of the phase program.5

      Smeltzer's volitional impairment was shown by his pattern of continued pedophilic

behavior when released into the community, which indicated he was unlikely to be

deterred by the threat of future criminal punishment. He had police contact due to the

1985 accusation by his stepdaughter, and yet in 1991 he engaged in "considerable

pedophilic behavior" (the lewd act convictions). He was placed on probation, but he

continued to engage in pedophilic behavior (possessing the pedophilic-in-nature material

in 1994) that resulted in a 10-year prison sentence. Upon his release from prison, in 2000

he engaged in "potential pedophilic behavior" (possessing the children's cartoon videos)

which resulted in a parole violation and return to prison. Undeterred, in 2002 he again

violated parole by possessing child pornography, which led to another conviction and

prison sentence.

      Smeltzer exhibited cognitive distortions common in individuals with pedophilia

that can promote sexual reoffending. In 1991, he said he believed the girls liked the

touching because they did not protest; the manner in which he touched the girls was " 'not



5      At Coalinga, Smeltzer participated in such courses as sexual compulsivity
recovery; discharge planning; pet therapy; managing anxiety, and relationships.
       In contrast, the sex offender treatment program is a five-phased program,
consisting of: (1) an introduction; (2) intensive treatment involving examining the
offenses and precipitating factors, writing an autobiography and timeline of sexual
experience and victims, and taking a lie detector test and arousal test; (3) enacting what
has been learned and keeping a journal of sexual urges; (4) treatment readiness involving
preparing to return to the community and developing plans not to reoffend; and (5)
ongoing treatment in the community.
                                            6
that bad' " compared to other sexual offenders; and he engaged in the touching because of

such factors as his unhappy, sexless marriage, depression, anxiety, and loneliness. He

also sanitized his history of sexual deviance by saying he had actually touched only one

victim and he did not realize he was pleading guilty to touching three victims. After the

2002 child pornography offense, he continued to manifest cognitive distortions, for

example, blaming the offense on his friend who owned the computer, and saying the

offense was not " 'that bad' "; some of the images just "popped up" on the screen; he was

" 'only curious' "; and it was " 'not like [he was] out walking around schools or following

kids around.' " Dr. Owen testified that he did not see anything in Smeltzer's records

indicating he had addressed his cognitive distortions at Coalinga.

       The People's experts also rejected the notion that Smeltzer's risk of reoffending

was reduced because he had a low sex drive as shown by a history of sparse sexual

activity.6 The experts testified that Smeltzer's low sex drive claim was contradicted by

his 1994 probation violation showing a preoccupation with sexual material and his 2002

child pornography offense.

       The People's experts concluded Smeltzer continued to meet the SVP criteria

because his condition impaired his self-control and it was likely he would sexually

reoffend with children if released.




6       Smeltzer had reported to various interviewers that he was molested at age 8; he
first had sexual intercourse at age 19 or 20; and he rarely had intercourse with his first
wife.
                                              7
Defense

       To refute the People's claim that he still qualified as an SVP, Smeltzer presented

testimony from numerous Coalinga personnel, including two psychologists, two social

workers, a rehabilitation therapist, and four psychiatric technicians. He also presented

testimony from a psychiatrist who was retained by the defense to evaluate him.

       Defense witnesses testified that Smeltzer was not a "fixated" pedophile, but rather

was a "situational" child sexual offender who engaged in the 1991 molestation due to

environmental stressors. His sexual history showed he had a low sex drive, and he did

not suffer from volitional impairment but was "overly inhibited." Although the phase

program was designed to be the core sex offender treatment program at Coalinga, it was

not the only means of treatment. Other programs, including the sexual compulsivity

recovery group, could complement the phase program or serve as an alternative program.

Smeltzer had participated in the sexual compulsivity recovery group and other

therapeutic courses, and he had learned about such concepts as trauma as a cause of

sexual addiction, triggers for sexual behavior, empathy for victims, skills to manage

deviant thoughts, and establishing a support system in the community. He had also

addressed his depression and anxiety which can trigger sexual deviancy. He had no

difficulty controlling himself in the stressful hospital environment, and he had not

possessed pornography even though it is illegally available at the hospital.

       The defense witnesses opined that if he was released into the community, Smeltzer

would voluntarily seek treatment, and he had a very low risk of reoffending because the



                                             8
molestation occurred in isolated circumstances that were unlikely to be repeated; he was

not a fixated pedophile; and he was no longer anxious and depressed.

Jury Verdict

       The jury found that Smeltzer was an SVP, and the court committed him to an

indeterminate term with the California Department of Mental Health. (Welf. & Inst.

Code, § 6600 et seq.)

                                       DISCUSSION

            I. Claims of Error Related to the Volitional Impairment Standard

       Smeltzer argues the trial court violated his due process rights by (1) precluding his

expert witness from testifying regarding the legal standards applicable to volitional

impairment, and (2) refusing his request to modify the language in the standard jury

instruction to state that volitional control must be seriously affected.

       As a matter of federal constitutional due process, a person may not be subjected to

involuntary civil commitment unless the person, as a result of a mental abnormality, has

serious difficulty controlling his or her dangerous behavior. (In re Lemanuel C. (2007)

41 Cal.4th 33, 40-41; People v. Williams (2003) 31 Cal.4th 757, 759, 766.) This control

impairment requirement for civil commitment distinguishes those offenders whose

mental disorders impair their volitional control over their dangerousness from other

dangerous offenders who are more properly dealt with exclusively through criminal

proceedings. (People v. Williams, supra, at pp. 766-767.) The volitional impairment

need not involve total or complete lack of control; however, there must be a serious



                                              9
difficulty in controlling behavior. (In re Lemanuel C., supra, at p. 42; People v.

Williams, supra, 31 Cal.4th at p. 773.)

       With these general principles in mind, we evaluate Smeltzer's claims of error

concerning the volitional impairment requirement.

                                      A. Background

       The expert witnesses called by the People and the defense were questioned at

length, both on direct and cross-examination, about whether Smeltzer's mental disorder

affected his ability to control his urges to molest children. The People's witness Dr.

Owen testified that Smeltzer's pedophilia affected his "self-control, volitional control," as

shown by the fact that he has not been deterred by consequences but "just keeps going in

a deviant direction[,]" and the fact that he has been sanctioned and ignores the possible

consequences shows he is "driven by some underlying, unhealthy urges . . . ." Similarly,

the People's witness Dr. Simon testified that there was a "driven quality" to Smeltzer's

actions; his pattern of continued pedophilic activity notwithstanding repeated detection

and punishment shows he has "a certain amount of volitional impairment"; and his

complete lack of criminal behavior apart from pedophilic conduct shows that his trouble

"lies in controlling his [pedophilic] impulses."

       Both of the People's experts referred to an appellate court decision (People v.

Burris (2002) 102 Cal.App.4th 1096) as providing a useful definition of volitional

impairment. Dr. Owen testified the Burris decision "says that if a man has not been

deterred by a prior consequence such as going to prison, this is an example of volitional

impairment." Dr. Simon testified the Burris decision states "someone who evidences a

                                             10
pattern of detection followed by punishment followed by new sex offenses, . . . that the

person's not likely to be deterred by the threat of future criminal punishment and that that

would indicate volitional impairment."

       During this line of questioning, defense counsel sought to elicit testimony from the

People's experts that the SVP finding required a showing of serious impairment and that

mere recidivism did not necessarily establish this requirement. At one point Dr. Owen

testified there is a continuum of volitional impairment from "mild, moderate to severe,"

but in this case there was "ample evidence of a man here who just hasn't been deterred by

consequences and he just keeps going in a deviant direction." When queried specifically

on the issue of whether the volitional impairment needed to be serious, Dr. Owen initially

agreed the law requires serious volitional impairment. However, after the prosecutor

objected that the term "serious" was a misstatement of the law, Dr. Owen testified he did

not recall seeing the word "serious" in the case law, and he "misspoke" if he earlier

acknowledged seriousness as a requirement.

       Dr. Simon testified on cross-examination that there had "to be some but not

necessarily complete" volitional impairment to qualify as an SVP. He agreed that sex

offenders who have a "serious difficulty controlling" their deviant impulses posed a

greater risk than people who have a "degree of control"; in general the SVP law was

"looking for those higher risk offenders" who have "a diminished ability to control

themselves"; and persons who meet the SVP criteria have "a serious deficiency in their

ability to control themselves." Also, Dr. Simon generally agreed recidivism "is not

enough by itself to show someone can't control their behavior" and it was necessary "to

                                             11
look at a lifetime of experience to see if that person has had a history of having difficulty

controlling their behavior . . . ."

       At several points while pursuing the control impairment issue, defense counsel

asked the People's experts about the case law, including the Burris case. In response, the

court admonished counsel not to get into a discussion of the witness's interpretation of the

case law; however, the witness could state what standards he used to form his opinion,

and the jury could determine whether the standards used by the witness comported with

the court's instructions on the law. Based on this ruling, the court told defense counsel

not "to go any further into discussion of specific cases" while questioning Dr. Owen

about the seriousness requirement, and the court sustained an objection to defense

counsel's questioning of Dr. Simon about the factual details of the Burris case.

       During the defense case, the defense expert witness (psychiatrist Alan Abrams)

testified that SVP case law requires that the person have serious difficulty controlling his

or her sexual violence. When defense counsel sought to elicit testimony from Dr.

Abrams about the Burris case, the trial court reiterated that the expert witness could state

the definition he used and the jury could compare it with the definition given by the

court, but the questioning could not involve "a legal discussion."

       After an unreported sidebar discussion, defense counsel was permitted to ask

additional questions about Dr. Abrams's understanding of the volitional impairment

requirement. Dr. Abrams testified that reoffending after punishment was "one factor to

look at"; this factor was "the minimum criteria" for volitional impairment; the question

was whether the person was starting "a pattern of inability to control behavior"; and not

                                             12
all pedophiles suffer from inability to control themselves. Further, Dr. Abrams agreed

that to understand the volitional impairment requirement, typically it was not sufficient to

"just read one line from one case like Burris"; rather, it is usually necessary to read many

more cases.

       After this testimony was presented to the jury, defense counsel argued to the trial

court that People's expert Dr. Owens had given the jury a "false impression" regarding

the definition of volitional impairment set forth in the Burris case which he used in

formulating his opinion, and accordingly the trial court had improperly precluded defense

counsel from asking Dr. Abrams (who had a law degree) about his interpretation of the

Burris case. Defense counsel asserted that although he could argue the People's expert

had used a flawed definition of volitional impairment, it would be "a meaningless

argument" if there was no foundational support for the argument that the expert did not

properly understand the case. The prosecutor argued the court had not erred because

defense counsel was allowed to ask Dr. Abrams about his interpretation of the law that he

used to form his opinions, and the court had merely excluded a lengthy recitation and

interpretation of each case.

       The trial court ruled that additional questioning of Dr. Abrams on this point had

minimal relevance, and the relevance was substantially outweighed by the likelihood of

confusion under Evidence Code section 352. The court reasoned the important issue was

whether the expert used the proper standard on the lack of control requirement; the

parties could argue to the jury if an expert did not use the proper standard; and testimony



                                             13
by the experts explaining the case law would usurp the court's function and be irrelevant

and confusing.

                                        B. Analysis

                       1. Limitation on Defense Expert's Testimony

       Smeltzer argues the People's expert witnesses misstated the volitional impairment

requirement by reducing it "to simply nothing more than a history of offending more than

once," rather than the correct definition that the person must have a serious difficulty

controlling his or her behavior. He asserts the trial court's limitation on the defense

expert's testimony, including regarding the Burris decision cited by the People's experts,

precluded him from confronting the People's experts about their misstatements.

       Contrary to Smeltzer's contention, he was not precluded from challenging the

People's experts' reliance on recidivism as a factor showing control impairment. Defense

counsel elicited testimony from the defense expert that the correct standard was whether

the person had serious difficulty controlling sexual misbehavior, and recidivism was

simply one relevant factor to consider. Smeltzer has not explained how testimony from

the defense expert on the specifics of the Burris decision would have meaningfully

augmented the defense expert's testimony on this point.

       The record shows Smeltzer had a full opportunity to present testimony from his

expert witness on the definition of volitional impairment, and his due process rights were

not impeded by the trial court's ruling precluding both the People's and the defense

experts from expounding on the case law underlying the volitional impairment definition.



                                             14
                            2. Instruction on Volitional Impairment

       With respect to the volitional impairment requirement, the jury was instructed in

relevant part as follows:

       "To prove [the SVP] allegation, the People must prove beyond a reasonable doubt
       that . . . [¶] . . . [¶] [a]s a result of that diagnosed mental disorder, [Smeltzer] is a
       danger to the health and safety of others because it is likely he will engage in
       sexually violent predatory criminal behavior;

       "And . . . , it is necessary to keep him in custody in a secured facility to ensure the
       health and safety of others. [¶] The term diagnosed mental disorder includes
       conditions . . . that affect a person's ability to control emotions and behavior that
       predispose the person to commit criminal sexual acts to an extent that makes him
       a menace to the health and safety of others.

       "A person is likely to engage in sexually violent predatory criminal behavior if
       there is a substantial, serious and well-founded risk that the person will engage in
       such conduct if released in the community. The likelihood that the person will
       engage in such conduct does not have to be greater than 50 percent." (Italics
       added and omitted; see CALCRIM No. 3454.)

       During discussions with the trial court, Smeltzer's counsel requested that instead of

merely instructing the jury that the person's mental disorder must affect a person's ability

to control behavior, the jury should be told the disorder must seriously affect the person's

ability to control behavior. Defense counsel argued that without explicit language

requiring the jury to find a serious impairment, the jury might be confused because one of

the People's experts had misstated the standard and the standard had not been corrected in

any other fashion. The court rejected defense counsel's request, finding the use of the

term "serious" was not necessary because the instruction clearly defined the level of

impairment that must be shown.




                                              15
       On appeal, Smeltzer asserts it was essential to include the term "serious" because

the People's experts misstated the volitional impairment standard, and the instruction did

not contain any specific language informing the jury the control impairment must be

serious. He also asserts the evidence in his case warranted a pinpoint instruction on the

serious control impairment requirement based on the evidence that he did not lose control

in the stressful hospital environment; he had gained insight and tools for maintaining

control; and he had a low sex drive.

       In People v. Williams, the California Supreme Court held the serious control

impairment requirement is necessarily conveyed to the jury based on an instruction

following the SVP statutory language (i.e., a disorder affecting volitional capacity that

predisposes the person to commit sex crimes in a menacing degree and produces a

substantial, serious and well-founded risk of reoffense), and no additional instruction is

required. (People v. Williams, supra, 31 Cal.4th at pp. 759, 776-777.) Williams also

underscored that, under United States Supreme Court authority, the lack of control

element does not have a narrow or technical meaning amenable to an exact standard and

enforceable through rigid bright-line rules; rather, the standard can properly be articulated

by state legislatures as long it does not dispense with the requirement that there be proof

of serious difficulty in controlling behavior. (Id. at pp. 772-774.)

       Here, the record shows that at one point the jury was presented with information

that called into question the seriousness requirement. That is, during cross-examination

of People's expert Dr. Owen, defense counsel asked whether the volitional impairment

needed to be serious, and the prosecutor objected that the term "serious" was a

                                             16
misstatement of the law. Dr. Owen then testified he did not recall seeing the term

"serious" in the case law, and he misspoke if he had earlier agreed that seriousness was a

requirement under the case law.

       In appropriate circumstances a defendant is entitled upon request to an instruction

that clarifies the law. (See People v. Butler (2010) 187 Cal.App.4th 998, 1013.)

Assuming arguendo the court erred by declining to add the word "serious" to the

instruction, any error was harmless beyond a reasonable doubt. (People v. Williams,

supra, 31 Cal.4th at p. 778.) Viewing the record as a whole, we have no doubt the jury

understood the control impairment must be serious. The SVP instructions told the jury

that (1) the disorder must make it likely the person will engage in sexually violent

predatory behavior; (2) the disorder includes conditions affecting ability to control that

create a predisposition to commit sexual acts to such an extent that the person is a menace

to safety; and (3) there is a likelihood of sexually violent predatory behavior if there is a

substantial, serious, and well-founded risk of such conduct. An instruction requiring that

the person must constitute a menace to society and pose a substantial and serious risk of

misconduct undoubtedly conveyed to the jury that the control impairment must be

serious. (People v. Williams, supra, 31 Cal. 4th at pp. 774-777; In re Lemanuel C.,

supra, 41 Cal.4th at p. 42.)

       Further, the serious control impairment requirement was conceded during the

testimony of People's expert Dr. Simon, who acknowledged that persons who meet the

SVP criteria have a "serious deficiency" in their ability to control themselves. In closing

arguments, although counsel for both parties sought to define the term "serious" in the

                                              17
manner most favorable to their positions, there was no claim that seriousness was not a

requirement. The prosecutor argued that Smeltzer's control was impaired to such a

degree that he acted even though he knew he might suffer criminal consequences:

"Volitional capacity, he was able to override his fears that told him 'Don't do this

behavior. . . . You're going to get caught.' He did it anyways. So that shows the

volitional capacity that's impaired, that it's affected." Defense counsel emphasized that

an SVP finding requires a "serious impairment" of ability to control to "such an intensity

of urge and effect on the person that they lose control of their volition[,]"; an "inability to

control" such that the person poses a "serious, substantial and well-founded risk . . . .";

"[w]e're looking for those people that can't control themselves . . . ." In rebuttal the

prosecutor argued that Smeltzer's pedophilia affected his ability to control, he could not

control his behavior, and he posed a serious, nontrivial risk of reoffending: "Does he

have a disorder that affects his ability to control his behavior? Yes. Is he likely to

reoffend again? Yes. . . . [¶] . . . [¶] And what's the other bit of evidence that we have

that shows that he cannot control his behavior? We have the investigation in '85, arrest

in '91, crime-arrest, crime-arrest, crime-arrest cycle. . . . [¶] . . . [¶] . . . [I]s the risk

presented serious? Yes? What's the antonym? Trivial or meaningless. Are we talking

meaningless risk here? No. Even his own experts say he presents a risk. [¶] . . . [¶] [A]ll

the instruments . . . [place] him in either the moderate-high or the high-risk component."

(Italics added.)

       The record as a whole shows the jurors were presented with testimony,

instructions, and closing argument that repeatedly informed them that the control

                                                  18
impairment must be serious. There is no reasonable possibility the jury thought Smeltzer

could qualify as an SVP if he did not have serious difficulty controlling his pedophilia.

Accordingly, any error in failing to clarify the seriousness requirement in the jury

instructions was harmless.

                               II. Constitutional Challenges

       Smeltzer raises several constitutional challenges to his indeterminate commitment

that have been repeatedly rejected by the courts, including denial of equal protection,

denial of due process, ex post facto violation, cruel and unusual punishment, and double

jeopardy. (People v. McKee (2010) 47 Cal.4th 1172, 1193, 1195 (McKee I) [rejecting

due process and ex post facto challenges]; People v. McKee (2012) 207 Cal.App.4th

1325, 1347-1348 (McKee II) [rejecting equal protection challenge]; People v. McDonald

(2013) 214 Cal.App.4th 1367, 1383 [rejecting cruel and unusual punishment and double

jeopardy challenges]; accord People v. Landau (2013) 214 Cal.App.4th 1, 8, 44-45;

People v. McCloud (2013) 213 Cal.App.4th 1076, 1085-1086; People v. McKnight (2012)

212 Cal.App.4th 860, 863-864.) We agree with this case authority, and it is not necessary

for us to repeat the extensive analyses set forth in these decisions that respond to

Smeltzer's challenges. Based on this precedent, we reject Smeltzer's various

constitutional challenges.

       With respect to his equal protection challenge, Smeltzer argues he is entitled to an

individual assessment as to whether he should be subjected to an indeterminate term

when other civilly committed offenders are not, and the case should be remanded to the

trial court to make these findings in his specific case. Because Smeltzer did not raise this

                                             19
fact-based claim before the trial court, we deem it forfeited on appeal. (See In re Spencer

S. (2009) 176 Cal.App.4th 1315, 1323.)

       In any event, we also reject it on the merits. In McKee I, the California Supreme

Court stated that on remand the People would have an opportunity to prove that SVP's "as

a class" pose a greater risk than similarly-situated offenders so as to justify indefinite

commitment "at least as applied to McKee." (McKee I, supra, 47 Cal.4th at pp. 1208,

1210.) At the remand hearing, after an extensive evidentiary presentation, the trial court

found the People had made the requisite showing, and on appeal our court affirmed the

trial court's ruling. (McKee II, supra, 207 Cal.App.4th at pp. 1330-1331, 1348.) In our

decision on appeal, we concluded that the information presented by the People supported

that SVP's as a class pose distinct dangers that permit them to be treated differently from

other types of offenders, and our holding was not premised on McKee's particular

characteristics. (Id. at pp. 1340-1348.) Given the scope of our holding, we reject

Smeltzer's contention that he is entitled to an individualized determination of his equal

protection challenge. (Accord, People v. McKnight, supra, 212 Cal.App.4th at pp. 863-

864 [McKee II's equal protection holding applies to "class of SVP's as a whole," not to

Mr. McKee alone]; People v. McDonald, supra, 214 Cal.App.4th at pp. 1377-1378.)




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                                 DISPOSITION

     The judgment is affirmed.




                                               HALLER, J.

WE CONCUR:



HUFFMAN, Acting P. J.



MCINTYRE, J.




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