People v. McKee

• Decision Date: 10 October 2012
• Docket Number: No. D059843.,D059843.
• Citation: 144 Cal.Rptr.3d 308,207 Cal.App.4th 1325
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard McKEE, Defendant and Appellant.

207 Cal.App.4th 1325
144 Cal.Rptr.3d 308

The PEOPLE, Plaintiff and Respondent,
v.
Richard McKEE, Defendant and Appellant.

No. D059843.

Court of Appeal, Fourth District, Division 1, California.

July 24, 2012.
Review Denied Oct. 10, 2012.

See 8 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 704; 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 200; 3 Witkin & Epstein, Cal. Criminal Law (2011 supp.) Punishment, § 200A.

144 Cal.Rptr.3d 310]Stephen M. Hinkle, Oceanside, 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, William M. Wood and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

McDONALD, J.

[207 Cal.App.4th 1330

Richard McKee appeals an order entered by the trial court on remand after the California Supreme Court's decision in People v. McKee (2010) 47 Cal.4th 1172, 104 Cal.Rptr.3d 427, 223 P.3d 566( McKee ). Following an evidentiary hearing, the trial court confirmed McKee's indeterminate term civil commitment as a sexually violent predator (SVP) under the Sexually Violent Predators Act (Welf. & Inst.Code, § 6600 et seq., Act or SVP Act),¹ as amended by Proposition 83, which was passed by the electorate in 2006. “Proposition 83 ... modified the terms by which [SVP's] can be released from civil commitment under the [Act]. 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 of an SVP, to an indefinite commitment from which the individual can be released if he [or she] proves by a preponderance of the evidence that he [or she] no longer is an SVP.” ( McKee, supra, 47 Cal.4th at pp. 1183–1184, 104 Cal.Rptr.3d 427, 223 P.3d 566.)McKee affirmed in part and reversed in part McKee's civil commitment under the Act and directed us to remand the matter to the trial court for an evidentiary hearing to determine whether the People, applying constitutional equal protection principles, could demonstrate a constitutional justification for imposing on SVP's a greater burden to obtain release from commitment than on those persons committed under the Mentally Disordered Offenders Act ( Pen.Code, § 2960 et seq., MDO's) and those persons committed after being found not guilty by reason of insanity ( Pen.Code, § 1026.5, subd. (a), NGI's). ( McKee, at pp. 1208–1209, 104 Cal.Rptr.3d 427, 223 P.3d 566.)

Following a 21–day evidentiary hearing, the trial court concluded the People met their burden to justify the disparate treatment of SVP's under the standards set [144 Cal.Rptr.3d 311]forth in McKee. On appeal, McKee contends the trial court erred by finding the People met that burden. We conclude the trial court correctly found the People presented substantial evidence to support a

[207 Cal.App.4th 1331]

reasonable perception by the electorate that SVP's present a substantially greater danger to society than do MDO's or NGI's, and therefore the disparate treatment of SVP's under the Act is necessary to further the People's compelling interests of public safety and humane treatment of the mentally disordered.

FACTUAL AND PROCEDURAL BACKGROUND

On November 8, 2004, a petition was filed to establish 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.² 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 March 5, 2007, an amended petition was filed restating the original petition's factual allegations and requesting that McKee be committed to the DMH's custody for an indeterminate term pursuant to the Act (as amended on Nov. 7, 2006, by the electorate's passage of Prop. 83). Following a five-day trial, the jury returned a verdict finding McKee was an SVP within the meaning of the Act and the trial court issued an order committing him to the custody of the DMH for an indeterminate term pursuant to the Act. ( McKee, supra, 47 Cal.4th at pp. 1184–1185, 104 Cal.Rptr.3d 427, 223 P.3d 566.) McKee filed a notice of appeal challenging that order. ( Id. at p. 1185, 104 Cal.Rptr.3d 427, 223 P.3d 566.) On appeal, we rejected McKee's claims that the indeterminate commitment under Proposition 83 violated federal or state due process, ex post facto or equal protection provisions; we also rejected his challenges to the sufficiency of the evidence and adequacy of the jury instructions. ( Ibid.) The California Supreme Court granted review and 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. ( Ibid.)

In McKee, the California Supreme Court rejected McKee's due process and ex post facto claims. ( McKee, supra, 47 Cal.4th at pp. 1188–1195, 104 Cal.Rptr.3d 427, 223 P.3d 566.) However, the court disagreed with our conclusion that SVP's were not similarly

[207 Cal.App.4th 1332]

situated to MDO's and NGI's for purposes of the equal protection clause. ( Id. at pp. 1202–1203, 104 Cal.Rptr.3d 427, 223 P.3d 566.) Because the court believed neither we nor the trial court understood the proper standard for considering equal protection claims, McKee remanded the matter for an evidentiary hearing for the trial court to determine whether, applying the strict scrutiny standard, the People can justify their disparate treatment of SVP's under the Act by showing the disparate[144 Cal.Rptr.3d 312]treatment of SVP's was necessary to further compelling state interests. ( Id. at pp. 1184, 1197–1198, 1208–1209, 104 Cal.Rptr.3d 427, 223 P.3d 566.)McKee stated that on remand the People “will have an opportunity to justify Proposition 83's indefinite commitment provisions, at least as applied to McKee, 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.” ( Id. at p. 1210, 104 Cal.Rptr.3d 427, 223 P.3d 566, fn. omitted.)

After the case was remanded to the trial court following McKee, the trial court conducted an evidentiary hearing to determine whether the People could justify the Act's disparate treatment of SVP's under the strict scrutiny standard for equal protection claims. At the hearing, the People presented the testimony of eight witnesses and documentary evidence. The trial court also allowed McKee to present evidence; he presented the testimony of 11 witnesses and documentary evidence. The court issued a 35–page statement of decision summarizing the extensive testimonial and documentary evidence presented at the hearing and finding the People had met their burden to establish, by a preponderance of the evidence, that the disparate treatment of SVP's under the Act was based on a reasonable perception of the greater and unique dangers they pose compared to MDO's and NGI's. Accordingly, the court confirmed its March 13, 2007, order committing McKee to the custody of the DMH for an indeterminate term under the Act. McKee timely filed a notice of appeal.

DISCUSSION I
The SVP Act and Proposition 83

In McKee, the California Supreme Court summarized the SVP Act and Proposition 83's 2006 amendment of the Act ( McKee, supra, 47 Cal.4th at pp. 1185–1188, 104 Cal.Rptr.3d 427, 223 P.3d 566), which summary we quote in large part as follows:

“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 ( ... former §§ 6603, subd. (d), 6604), are found beyond a reasonable

[207 Cal.App.4th 1333]

doubt to be an SVP (former § 6604). [Citations.] 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. [Citations.] 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. [Citations.] ...

“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. [Citations.] 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.’ [Citation.] [¶] ... [¶]

“On November 7, 2006, California voters passed Proposition 83, entitled ‘The Sexual Predator Punishment and Control Act: [144 Cal.Rptr.3d 313]Jessica's Law’ amending the Act effective November 8, 2006.... Proposition 83 ... changes an SVP commitment from a two-year term to an indefinite commitment....

“Pursuant to Proposition 83, section 6604, which had prescribed a two-year term for SVP's, now provides in relevant part: ‘If the...