Filed 12/10/14 P. v. Carrell CA4/1 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JOHN RAY CARRELL, 

 Defendant and Appellant. 

 D064480 

 (Super. Ct. No. MH107184) 

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

Shore, Judge. Affirmed. 

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

Appellant. 

 Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, 

Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and 

Respondent. 
2 

 Following a second jury trial, John Ray Carrell was found to be a sexually violent 

predator within the meaning of Welfare and Institutions Code1 sections 6600-6604. 

Carrell was committed to the Department of State Hospitals for an indeterminate term. 

 In an exhaustive brief, Carrell appeals contending the court erred in permitting the 

jury to hear the term "sexually violent predator" (SVP) and further contends this court's 

decision in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II) finding 

indeterminate commitments for sexually violent predators did not violate equal protection 

was wrongly decided. He also contends the state Supreme Court was wrong when it 

determined that indeterminate commitment did not violate due process or the ex post 

facto clause of the federal Constitution (People v McKee (2010) 47 Cal.4th 1172 

(McKee I)). 

 We will find the claim that a jury in a trial on whether a person is a SVP under the 

SVP Act cannot hear the term "sexually violent predator" is wholly without merit. We 

decline to revisit McKee II, supra, 207 Cal.App.4th 1325, and we will follow the decision 

of our Supreme Court in McKee I, supra, 47 Cal.4th 1172. Accordingly, we will affirm 

the judgment of the trial court. 

STATEMENT OF FACTS 

 Since Carrell does not challenge the sufficiency of the evidence, and does not 

actually challenge the admissibility of any evidence, except for his argument that juries 

should not be allowed to hear the actual term that is the basis of the commitment, we will 

 

1 All further statutory references are to the Welfare and Institutions Code unless 

otherwise specified. 
3 

adopt the respondent's brief summary of the facts as to the prosecution's case. We will 

separately summarize the defense case. 

Prosecution Case 

 At the start of trial, the parties stipulated that appellant had three prior convictions. 

In 1972, appellant was convicted of attempted rape and was sentenced to five years in 

prison. In 1987, he was convicted of rape by force and sentenced to 10 years in prison. 

In 1994, he was convicted of assault with intent to commit rape and was sentenced to 12 

years in prison. In 2004, appellant was charged with forced oral copulation and forcible 

rape. He was convicted of assault with a deadly weapon and sentenced to 10 years in 

prison. 

 Dr. Harry Goldberg and Dr. Mark Wolkenhauer testified as expert psychologists 

for the prosecution. In conducting their evaluations to determine whether appellant was a 

SVP, Goldberg and Wolkenhauer reviewed appellant's criminal records, which included 

police and probation reports; his institutional records, which included the numerous rule 

violations he received in prison; and his biographical records which included information 

regarding his prior mental health issues. Both experts agreed that the 1987 and 1994 

convictions were qualifying offenses. Goldberg stated that the 1972 conviction was also 

a qualifying offense. Appellant was also convicted of a number of nonsex related 

offenses and he committed a nonqualifying sex offense. In reviewing appellant's prison 

records, the experts noted that he had received numerous rule violations for displaying 

aggressive, sexually inappropriate, or violent behavior. 
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 Goldberg and Wolkenhauer diagnosed appellant with antisocial personality 

disorder and alcohol use disorder. Both experts agreed appellant's antisocial personality 

disorder predisposed him to committing sexually violent predatory acts. Goldberg 

additionally diagnosed appellant with paraphilia; more specifically, with an attraction to 

nonconsensual sex. Goldberg opined that appellant's paraphilia also predisposed him to 

committing sexually violent and predatory acts. 

 Both experts used the Static-99R to determine appellant's likelihood of committing 

a sex offense in the future. They each scored appellant with a six, which placed him in 

the high risk category. Based on their evaluations, their individual clinical assessments, 

and appellant's high risk scores, Goldberg and Wolkenhauer opined that appellant was 

likely to reoffend in a sexually violent predatory manner and that he met the criteria to be 

deemed a SVP. 

Defense Evidence 

 The defense presented evidence from Dr. Mary Jane Alumbaugh and Dr. Hy 

Malinek. Both doctors found that Carrell was not a SVP. 

 Defense witness Dr. Brian Abbott criticized the methodology used by the 

prosecution's experts. 

DISCUSSION 

I 

USE OF THE WORDS SEXUALLY VIOLENT PREDATOR 

 In this trial to determine if Carrell was a SVP, defense counsel objected to any use 

of the term "sexually violent predator." Counsel contended the term was too emotionally 
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charged and its mere mention would cause jury prejudice. Not surprisingly, the trial 

court overruled Carrell's objection. As the court noted, the entire purpose of the trial was 

to determine if Carrell was proved to be a SVP. Not only is that term used in the 

definition of what must be proved, but it is a term used by both prosecution and defense 

experts in evaluating whether Carrell comes within the definition in the statute. 

 The trial court did agree to admonish the jury that it should not draw any 

assumptions from the use of the term. Carrell does not challenge the sufficiency of the 

court's directions to the jury. 

 Trial courts have a duty to advise the jury of the relevant legal principles necessary 

for a proper evaluation of the case. (People v. Prettyman (1996) 14 Cal.4th 248.) Using 

the defining language from a statute is an appropriate way to inform the jury about the 

definition of the offense. (People v. Estrada (1995) 11 Cal.4th 568, 574; People v. Poggi

(1988) 45 Cal.3d 306, 327.) 

 We recognize the duty of appellate counsel to raise what she believes to be an 

arguable issue for reversal on appeal. However, we respectfully observe there is simply 

no merit to an argument that use of the defining term contained in the statute, and which 

term is the very definition of what must be proved, is inappropriate. We also find no 

abuse of discretion in overruling Carrell's objection. Thus, we find no error by the court 

in allowing the jury to hear and consider the language of the statute. 
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II 

EQUAL PROTECTION 

 Carrell contends the application of an indeterminate term of confinement to 

persons found to be SVPs violates equal protection because other persons under other 

forms of civil commitment are not subject to an indeterminate period of restraint. Carrell 

recognizes this issue has been before this court and resolved against him in our opinion in 

McKee II, supra, 207 Cal.App.4th 1325. Carrell argues McKee II was wrongly decided 

and that we should revisit the issue in this case. We respectfully decline to reconsider our 

McKee II opinion. We believe the opinion is soundly reasoned and properly analyzed the 

record of the lengthy hearing conducted by the trial court on remand. We note other 

courts have rejected the arguments made here by Carrell. (People v. McDonald (2013) 

214 Cal.App.4th 1367; People v. McKnight (2012) 212 Cal.App.4th 860.) 

 Applying our decision in McKee II, supra, 207 Cal.App.4th 1325, we reject 

Carrell's equal protection challenges to his indeterminate commitment. 

III 

DUE PROCESS AND EX POST FACTO ARGUMENTS 

 Carrell contends the imposition of an indeterminate commitment constitutes a 

violation of federal due process and violates the ex post facto clause of the federal 

constitution. Carrell recognizes his arguments have been expressly rejected by our 

Supreme Court. Carrell states he is raising these issues to preserve them for potential 

review. 
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 We will follow the direction of our high court and find no merit to these 

challenges to his commitment. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 

Cal.2d 450, 455.) 

DISPOSITION 

 The judgment is affirmed. 

 

HUFFMAN, J. 

WE CONCUR: 

 

 McCONNELL, P. J. 

 

 AARON, J.