People v. McKee, S162823.

CourtUnited States State Supreme Court (California)
Writing for the CourtMoreno
Citation223 P.3d 566,47 Cal.4th 1172,104 Cal. Rptr. 3d 427
PartiesTHE PEOPLE, Plaintiff and Respondent, v. RICHARD McKEE, Defendant and Appellant.
Docket NumberNo. S162823.,S162823.
Decision Date28 January 2010
47 Cal.4th 1172
104 Cal. Rptr. 3d 427
223 P.3d 566
THE PEOPLE, Plaintiff and Respondent,
RICHARD McKEE, Defendant and Appellant.
No. S162823.
Supreme Court of California.
January 28, 2010.

[47 Cal.4th 1183]

Stephen M. Hinkle, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Steve Oetting and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.



Proposition 83, passed by the voters in November of 2006, modified the terms by which sexually violent predators (SVP's) can be released from civil commitment under the Sexually Violent Predators Act (SVP Act or Act; Welf. & Inst. Code, § 6600 et seq.). In essence, it changes the commitment from a two-year term, renewable only if the People prove to a jury beyond a reasonable doubt that the individual still meets the definition

47 Cal.4th 1184

of an SVP, to an indefinite commitment from which the individual can be released if he proves by a preponderance of the evidence that he no longer is an SVP.

Defendant, who is subject to indeterminate commitment pursuant to Proposition 83, challenges the law on several constitutional grounds: that it violates the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution and that it violates the ex post facto clause, article I, section 10 of the United States Constitution. Like the Court of Appeal, we conclude that defendant's due process and ex post facto challenges are without merit. As for the equal protection challenge, we conclude that the state has not yet carried its burden of demonstrating why SVP's, but not any other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment. As explained below, we remand to the trial court to permit the People the opportunity to justify the differential treatment in accord with established equal protection principles. (See In re Moye (1978) 22 Cal.3d 457 [149 Cal.Rptr. 491, 584 P.2d 1097].)


On November 8, 2004, a petition was filed to establish Richard McKee as an SVP within the meaning of the Act. The petition alleged McKee was "a person who has been convicted of a sexually violent offense against two or more victims for which he was sentenced and who has a diagnosed mental disorder that makes him a danger to the health and safety of others, in that it is likely he will engage in sexually violent predatory criminal behavior." It alleged he had been convicted of two counts of committing lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)). One victim was an 11-year-old girl and the other was an eight-year-old girl.1 The petition requested that McKee be committed to the custody of the State Department of Mental Health (DMH) for a period of two years.

On February 16, 2007, McKee demurred to the petition on the ground that the Act, as amended on November 7, 2006, by the voters' passage of Proposition 83, was unconstitutional. The trial court overruled the demurrer.

On March 5, 2007, an amended petition was filed restating the original petition's factual allegations and requesting that McKee be committed to an indeterminate term pursuant to the amended Act. On March 12, following a five-day trial, the jury returned a verdict finding McKee was an SVP within

47 Cal.4th 1185

the meaning of the Act. On March 13, the trial court issued an order committing McKee to the custody of the DMH for an indeterminate term pursuant to the Act.

McKee timely filed a notice of appeal. The court rejected McKee's claims that the indeterminate commitment instituted by Proposition 83 violated federal or state due process, ex post facto or equal protection provisions. The court also rejected McKee's challenge to the sufficiency of the evidence and to the adequacy of the jury instructions. We granted review, and subsequently limited the issues to whether the Act as amended by Proposition 83 violated McKee's constitutional rights under the due process, equal protection, and ex post facto clauses.2


The Act, as originally enacted (Stats. 1995, ch. 763, § 3, p. 5922), provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, by a unanimous jury verdict after trial (Welf. & Inst. Code, former §§ 6603, subd. (d), 6604),3 are found beyond a reasonable doubt to be an SVP (former § 6604). (People v. Williams (2003) 31 Cal.4th 757, 764 [3 Cal.Rptr.3d 684, 74 P.3d 779]; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143, 1147 [81 Cal.Rptr.2d 492, 969 P.2d 584] (Hubbart).) A person's commitment could not be extended beyond that two-year term unless a new petition was filed requesting a successive two-year commitment.4 (Former §§ 6604, 6604.1; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243, fn. 5 [127 Cal.Rptr.2d 177, 57 P.3d 654].) On filing of a recommitment petition, a new jury trial would be conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. (Former §§ 6604, 6605, subds. (d), (e).) As was stated in People v. Munoz (2005) 129 Cal.App.4th 421, 429 [28 Cal.Rptr.3d 295]: "[A]n SVP extension hearing is not a review hearing. . . . An SVP extension hearing is a new and independent proceeding at which . . . the [People] must prove the [committed person] meets the [SVP] criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous."

47 Cal.4th 1186

As originally enacted, an SVP was defined as "a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Former § 6600, subd. (a).) A "sexually violent offense" included a Penal Code section 288 lewd act on a child under age 14. (Former § 6600, subd. (b); Hubbart, supra, 19 Cal.4th at p. 1145.) Under the Act, a person is "likely" to engage in sexually violent criminal behavior (i.e., reoffend) if he or she "presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922 [119 Cal.Rptr.2d 1, 44 P.3d 949], italics omitted.)

The Act was "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.' [Citation.]" (Hubbart, supra, 19 Cal.4th at p. 1177.) The Act therefore provides "two ways a defendant can obtain review of his or her current mental condition to determine if civil confinement is still necessary. [First,] [s]ection 6608 permits a defendant to petition for conditional release to a community treatment program. . . . [Second,] [s]ection 6605 [requires] an annual review of a defendant's mental status that may lead to unconditional release." (People v. Cheek (2001) 25 Cal.4th 894, 898 [108 Cal.Rptr.2d 181, 24 P.3d 1204], fn. omitted.)

On November 7, 2006, California voters passed Proposition 83, entitled "The Sexual Predator Punishment and Control Act: Jessica's Law" amending the Act effective November 8, 2006. Proposition 83 is a wide-ranging initiative that seeks to address the problems posed by sex offenders. It increases penalties for sex offenses, both by altering the definition of some sex offenses and by providing longer penalties for some offenses as well as modifying probation and parole provisions: it requires a GPS tracking device for felons subject to such registration for the remainder of their lives; it prohibits a registered sex offender from living within 2,000 feet of schools and parks; and it changes the SVP Act by reducing the number of sexually violent offenses that qualify an offender for SVP status from two to one. (See Voter Information Guide, Gen. Elec. (Nov. 7, 2006) analysis of Prop. 83 by Legis. Analyst, pp. 43-44.) Proposition 83 also changes an SVP commitment from a two-year term to an indefinite commitment. It is this latter provision with which this case is concerned and which will be described in more detail below.

(1) Pursuant to Proposition 83, section 6604, which had prescribed a two-year term for SVP's, now provides in relevant part: "If the court or jury

47 Cal.4th 1187

determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement . . . ." (Italics added.) Proposition 83 did not change section 6604's requirement that a person's initial commitment as an SVP be proved at trial beyond a reasonable doubt. Under Proposition 83, section 6605 continues to require current examinations of a committed SVP at least once every year. (§ 6605, subd. (a).) However, Proposition 83 added new provisions to section 6605 regarding the DMH's obligations: Pursuant to section 6605, subdivision (a), the DMH now files an annual report in conjunction with its examination of SVP's that "shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community." Subdivision (b) now provides that "[i]f the [DMH] determines that either: (1) the person's condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2)...

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