Filed 9/17/13 P. v. Smith 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                         D063112

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. MH99951)

HERMAN J. SMITH,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, David M.

Gill, Judge. Affirmed.

         Laurel M. Nelson, under 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 A. Weinreb and

Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

         Herman J. Smith was committed for an indeterminate term to the custody of the

State Department of Mental Health (DMH), now the State Department of State Hospitals,
under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)

Smith appeals, contending that treating sexually violent predators (SVP's) differently

from mentally disordered offenders (MDO's) and persons found not guilty by reason of

insanity (NGI's) violates his constitutional right to equal protection, that we failed to

apply the correct standard of review and strict scrutiny requirements, and that his case is

distinguishable because his victims were adults. We have considered these arguments in

light of our Supreme Court's opinion in People v. McKee (2010) 47 Cal.4th 1172

(McKee I), and this court's final opinion on remand in the same case, People v. McKee

(2012) 207 Cal.App.4th 1325 (McKee II). Based on these opinions, we affirm the order.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In October 1993 Smith pleaded guilty to the crimes of rape by force or fear,

sodomy by force or fear, and oral copulation by force or fear. In addition, he admitted to

a prior felony conviction for rape in 1973. In September 2009 a jury found Smith to be

an SVP within the meaning of the SVPA and subject to involuntary commitment for an

indeterminate term.1 Smith appealed the 2009 commitment order on several grounds.

We rejected Smith's contentions, except for his challenge to the indeterminate



1       In November 2006 California voters passed Proposition 83, entitled "The Sexual
Predator Punishment and Control Act: Jessica's Law" amending the SVPA effective
November 8, 2006. (McKee I, supra, 47 Cal.4th at p. 1183.) Proposition 83 changed an
SVP commitment from a two-year term to an indefinite commitment and shifted the
burden of proof for release to the SVP (id. at pp. 1183-1184), unless the DMH authorizes
a petition for release (id. at p. 1187). In contrast, an MDO is committed for a one-year
period and thereafter has the right to be released unless the People prove beyond a
reasonable doubt that he or she should be recommitted for another year. (Pen. Code,
§ 2972.)
                                              2
commitment on equal protection grounds.2 Based on McKee I, which held that the 2006

amendments to the SVPA may violate equal protection (McKee I, supra, 47 Cal.4th at

p. 1184), we reversed in part and remanded to the trial court with directions to suspend

further proceedings pending finality of the proceedings on remand in McKee I.3 In July

2012 we issued our opinion in McKee II, upholding the constitutionality of the amended

SVPA on equal protection grounds. The Supreme Court denied review in McKee II,

rendering the opinion final (McKee II, supra, 207 Cal.App.4th 1325, review den. Oct. 10,

2012, S204503), and the trial court subsequently re-imposed the order for Smith to be

committed to an indeterminate term.

                                       DISCUSSION

       Smith's constitutional argument focuses primarily on whether the amended SVPA

violates equal protection. Smith challenges our decision in McKee II, arguing we

misunderstood and misapplied both the standard of review and the strict scrutiny test.

       In McKee I, the Supreme Court held the SVPA is subject to equal protection

analysis because it "treats SVP's significantly less favorably than those similarly situated

individuals civilly committed under other statutes" including MDO's and NGI's.



2      In Respondent's brief, we grant the People's unopposed request that this court take
judicial notice of its prior opinion in People v. Smith (D056391 April 14, 2011) [nonpub.
opn.]). (Evid. Code §§ 451, 452, 459.)
3      The Supreme Court remanded in McKee I for an evidentiary hearing on whether
disparate treatment for SVP's is justified. The court transferred "grant and hold" cases
under McKee I to the Courts of Appeal with directions to vacate their prior opinions and
reconsider in light of McKee I. The order expressed a desire to avoid unnecessary
multiplicity of proceedings and directed this court to suspend further proceedings
pending finality of the proceedings in McKee I.
                                             3
(McKee I, supra, 47 Cal.4th at pp. 1196, 1203, 1207.) Since individuals within each of

these categories "have the same interest at stake—the loss of liberty through involuntary

civil commitment—it must be the case that when society varies the standard and burden

of proof for SVP's . . . , it does so because of the belief that the risks involved with

erroneously freeing SVP's from their commitment are significantly greater than the risks

involved with freeing" other civil committees. (Id. at p. 1204.)

       The Supreme Court remanded the case for a hearing on whether the People could

justify disparate treatment for SVP's. The court instructed: "It must be shown that,

notwithstanding the similarities between SVP's and [other civil committees], the former

as a class bear a substantially greater risk to society, and that therefore imposing on them

a greater burden before they can be released from commitment is needed to protect

society. This can be shown in a variety of ways. For example, it may be demonstrated

that the inherent nature of the SVP's mental disorder makes recidivism as a class

significantly more likely. Or it may be that SVP's pose a greater risk to a particularly

vulnerable class of victims, such as children. Of course, this latter justification would not

apply to SVP's who have no history of victimizing children. But in the present case,

McKee's previous victims were children. Or the People may produce some other

justification." (McKee I, supra, 47 Cal.4th at p. 1208, fn. omitted.)

       After remand, the superior court conducted a 21-day evidentiary hearing on the

justification of disparate treatment for SVP's and concluded the People had met their

burden. On appeal, we reviewed the matter de novo, which was the correct standard of

review. (McKee II, supra, 207 Cal.App.4th at p. 1338.) Smith contends we applied the

                                               4
substantial evidence test instead of de novo review. He is mistaken. In McKee I, he

singles out the reference to " ' "reasonable inferences based on substantial evidence" ' "

without reading the context of the passage: "When a constitutional right, such as the

right to liberty from involuntary confinement, is at stake, the usual judicial deference to

legislative findings gives way to an exercise of independent judgment of the facts to

ascertain whether the legislative body ' "has drawn reasonable inferences based on

substantial evidence." ' " (McKee I, supra, 47 Cal.4th at p. 1206, italics added.) In

McKee II, we concluded "[t]he People have shown 'that the inherent nature of the SVP's

mental disorder makes recidivism as a class significantly more likely[;] . . . that SVP's

pose a greater risk [and unique dangers] to a particularly vulnerable class of victims, such

as children'; and that SVP's have diagnostic and treatment differences from MDO's and

NGI's, thereby supporting a reasonable perception by the electorate . . . that the disparate

treatment of SVP's under the amended [SVPA] is necessary to further the state's

compelling interests in public safety and humanely treating the mentally disordered."

(McKee II, supra, 207 Cal.App.4th at p. 1347.) The Supreme Court denied a petition for

review, making McKee II final. (McKee II, review den. Oct. 10, 2012, S204503.)

       This court has, of course, followed McKee II, and other Courts of Appeal have as

well. (See, e.g., People v. McDonald (2013) 214 Cal.App.4th 1367, 1376-1382; People

v. Landau (2013) 214 Cal.App.4th 1, 47-48; People v. McCloud (2013) 213 Cal.App.4th

1076, 1085-1086; People v. McKnight (2012) 212 Cal.App.4th 860, 863-864.) While it is

clear Smith believes the evidence relied on in McKee II is insufficient to justify disparate

treatment of SVP's, we have carefully evaluated it and conclude otherwise.

                                              5
       Smith argues the strict scrutiny test requires that only the least restrictive means

available to meet the state's compelling purpose will pass constitutional muster. He

ignores, however, that the Supreme Court in McKee I did not require such a finding to

justify disparate treatment of SVP's, and this court in McKee II expressly rejected that

argument, concluding the least restrictive means available requirement applies only to

disparate treatment of a suspect class. (McKee II, supra, 207 Cal.App.4th at p. 1349.)

Our colleagues in Division Three also rejected the claim that strict scrutiny requires the

least restrictive means: " '[I]n strict scrutiny cases, the government must show both a

compelling state interest justifying the disparate treatment and that the disparate

treatment is necessary to further that compelling state interest. [Citations.] We are

unpersuaded . . . that Proposition 83 . . . was required to adopt the least restrictive means

available.' " (People v. McDonald, supra, 214 Cal.App.4th at p. 1380, quoting McKee II,

supra, 207 Cal.App.4th at p. 1349.)

       Smith argues his case is distinguishable from McKee because McKee victimized

children and Smith victimized adults. While McKee had child victims, the People's

evidence was not limited to child sexual abuse statistics. "[T]here is substantial evidence

to support a reasonable perception by the electorate, as a legislative body, that the harm

caused by child sexual abuse and adult sexual assault is, in general, a greater harm than

the harm caused by other offenses and is therefore deserving of more protection."

(McKee II, supra, 207 Cal.App.4th at pp. 1343-1344, italics added.) Further, "'[i]t is plain

that McKee II is not to be restricted to Mr. McKee alone or only to those SVP's convicted

of crimes against children, like him, but rather its holding applies to the class of SVP's as

                                              6
a whole." (People v. McDonald, supra, 214 Cal.App.4th at p. 1378, quoting People v.

McKnight, supra, 212 Cal.App.4th at pp. 863-864.) Smith's arguments fail to establish

the current version of the SVPA violates equal protection of the law.4

                                     DISPOSITION

      The order is affirmed.


                                                                     MCCONNELL, P. J.

WE CONCUR:


HALLER, J.


O'ROURKE, J.




4       Smith also contends he should have an opportunity to litigate his case. He fails,
however, to explain how the facts in his case are so different from those presented in
McKee II as to warrant an individualized adjudication of his equal protection claim. "The
Supreme Court's emphasis on classwide proof, together with its suspension of activity in
grant-and-hold cases to avoid an unnecessary multiplicity of proceedings, demonstrates
to us the Supreme Court intended the equal protection challenge to the [SVPA] be
resolved on a classwide basis in a single case." (People v. McDonald, supra, 214
Cal.App.4th at p.1378.) The People's evidence in McKee II addressed the justifications
for treating SVP's differently from MDO's and NGI's; the evidence presented was not
specific to the particular facts of McKee's crimes.
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