Filed 8/27/14

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LAWRENCE GRAY,

Defendant and Appellant.

F065957

(Super. Ct. No. VCF149623)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Edward M. 

Lacy, Jr., Judge. (Retired Judge of the Stanislaus Sup. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.)

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Louis M. 

Vasquez, Rebecca L. Whitfield, Leanne Le Mon, and Lewis A. Martinez, Deputy 

Attorneys General, for Plaintiff and Respondent.

 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the 

Introduction, Procedural History, part II of the Discussion, and the Disposition are 

certified for publication.
2.

-ooOooINTRODUCTION

Appellant Lawrence Gray challenges his commitment as a sexually violent 

predator (SVP). In the published portion of this opinion, we hold that the version of the 

Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.) under which 

appellant was committed is constitutional.1 We decline to address changes to the SVPA 

that did not go into effect until after the date of appellant’s commitment. In the 

unpublished portion of this opinion, we conclude appellant is not entitled to reversal 

based on admission of evidence concerning his HIV and hepatitis C status. We affirm the 

judgment.

PROCEDURAL HISTORY

Appellant was born in 1966. On August 26, 2005, he pled guilty to assault with 

intent to commit oral copulation, in the commission of which he used a knife (Pen. Code, 

§§ 220, 12022, subd. (b)(1)), and assault with a deadly weapon and by means of force 

likely to produce great bodily injury (id., § 245, subd. (a)(1)), and admitted having served 

a prior prison term (id., § 667.5, subd. (b)). He was sentenced to five years in prison. 

On August 23, 2010, the Tulare County District Attorney filed a petition to 

commit appellant under the SVPA. On August 22, 2011, the trial court found probable 

cause to believe appellant was an SVP. On September 19, 2012, following a jury trial, 

appellant was found to be an SVP. That same day, he was committed to the Department 

of State Hospitals (DSH) for an indeterminate term. (§ 6604.)2

 

1 Further statutory references are to the Welfare and Institutions Code unless 

otherwise stated.

2 DSH was formerly known as the Department of Mental Health (DMH).
3.

FACTS*

I

PEOPLE’S EVIDENCE

Aaron M.

On July 14, 2005, Aaron M., then age 15, was walking down a street in Tulare 

when he encountered appellant, a stranger. Aaron asked if appellant had a cigarette. 

Appellant asked Aaron to go to the gas station with him, as there would be a man there 

who would orally copulate Aaron and pay Aaron money. When Aaron refused, appellant 

pulled out a small pocketknife, put it toward Aaron’s back, walked Aaron to some 

bushes, and told Aaron to sit in them. Aaron obeyed, and appellant then instructed him to 

pull his penis out of his pants. Appellant said he wanted to suck it. When Aaron refused, 

appellant again demanded that he pull out his penis. 

An ambulance went by with its siren blaring. Appellant turned to look, and Aaron 

reached for the knife. The two wrestled for it; the knife cut Aaron’s hand. Aaron got 

appellant in a headlock and threw the knife through a nearby fence. Appellant 

apologized and said he did not mean to do that, whereupon Aaron threatened to beat him, 

and then ran down the street to his house. Once there, he told his mother what had 

happened and she called the police. 

Dr. Craig Teofilo

Dr. Craig Teofilo, a licensed psychologist, with extensive experience and expertise

in working with sex offenders and in conducting SVP evaluations, was asked by the 

DMH to evaluate appellant. Teofilo received and reviewed: the abstract of judgment 

listing the conviction and sentence; the probation officer’s report detailing the crime, 

criminal record, and personal background; and police investigation reports. Teofilo also

 

* See footnote, ante, page 1.
4.

reviewed appellant’s prison records, as well as his “rap sheet.” He then interviewed 

appellant for almost three and a half hours. 

Teofilo’s SVP evaluation analysis focused on the three criterion for commitment 

as an SVP: (1) whether appellant had committed an offense that qualified under the 

SVPA, meaning an offense that was sexual in nature and had elements of violence; (2) 

whether appellant had a diagnosed mental disorder that specifically predisposed him to 

commit sexual crimes; and (3) whether appellant was likely to reoffend in a violent 

predatory criminal manner. Teofilo explained that “a diagnosed mental disorder” was 

defined as a congenital or acquired condition affecting the emotional or volitional 

capacity that predisposes a person to the commission of criminal sexual acts in a degree 

constituting the person a menace to the health and safety of others. Diagnoses are 

contained in the Diagnostic and Statistical Manual of Mental Disorders (DSM, with the 

current version referred to as the DSM-IV-TR), although the SVPA does not specifically 

require a diagnosis from the DSM. He clarified that “likely” means the person represents 

a serious and well-founded risk. 

Teofilo found appellant to meet the first criterion. The records Teofilo reviewed

showed appellant was in prison for sexually assaulting a male in 2005, when appellant

was 39 years old. It was Teofilo’s understanding that appellant came upon the victim 

(whose age Teofilo did not know) on the streets. Appellant told the victim that if he 

wanted to go down to a different corner, someone would pay the victim to suck the 

victim’s penis. When the victim refused, appellant pulled out a knife, put it to the 

victim’s back, escorted him to some bushes near a freeway where appellant had an 

encampment, took him into the bushes, covered the bushes with some mattresses so they 

could not be seen from the street, and told the victim to take out his penis so appellant 

could orally copulate him. The victim complied, and, as appellant went down onto his 

knees, the victim put him into a choke hold and they started fighting. The victim got the 

knife, threw it away, and fled. Appellant was convicted of violating Penal Code 
5.

section 220, assault with intent to commit oral copulation. The conviction constituted a 

qualifying offense under the SVPA. 

The records also showed that in 1998, when appellant was 32 years old, he 

sexually assaulted a 15-year-old boy. Appellant and the victim had gone to a 

convenience store, where appellant bought the victim some cigars. On the way back, 

appellant wanted to get high smoking crack. He went into an abandoned house and 

smoked, while the victim waited outside. Appellant then had the victim come into the 

house. Appellant grabbed the victim, pulled off the victim’s clothing, covered his mouth 

so he could not scream for help, and attempted to sodomize the victim. Because the 

victim struggled, appellant was unable to achieve penetration, so he attempted to orally 

copulate the victim. The victim continued to struggle, and appellant stopped the assault. 

The victim got dressed and they left. Appellant held the victim’s arm, controlling the 

victim’s movement, all the way back to the victim’s residence. Appellant was convicted 

of violating Penal Code section 288, subdivision (c), lewd and lascivious act on a child 

15 years of age. This was also a qualifying offense under the SVPA. 

Teofilo also found appellant to meet the second criterion, he had a mental disorder 

that predisposed him specifically to commit a sex crime. Based on Teofilo’s review of 

records and on his interview with appellant, he diagnosed appellant with: antisocial 

personality disorder, with borderline features; two substance-related disorders, cocaine 

dependence and alcohol abuse; and with sexual disorder, not otherwise specified (NOS), 

sexual compulsivity. 

The diagnosis of antisocial personality disorder was based on 13 pieces of data: 

(1) appellant had five arrests between the ages of 11 and 14, resulting in a Youth 

Authority commitment;3(2) appellant admitted that, beginning around age 10, he 

 

3 Teofilo acknowledged that people who suffer from antisocial personality disorder 

generally are criminals, and antisocial personality disorder can be diagnosed in a person 

with no sexual offenses in his or her history. However, he found it notable that appellant
6.

burglarized 20 to 25 homes, making friends first so that he could case the houses ahead of 

time; (3) appellant admitted having set 10 to 15 houses or structures on fire; (4) at age 13, 

appellant was arrested for carrying a loaded .357 magnum to school; (5) appellant 

admitted being a bully at school, and said he fought perhaps one time a week and loved 

fighting; (6) appellant frequently argued with teachers, physically assaulted two teachers 

during his schooling, and was suspended and expelled; (7) appellant had 10 separate 

arrests as an adult that included sex offenses, drugs, and weapons; (8) appellant had five 

parole violations and both of his sex offenses occurred while he was on probation, 

indicating he was not complying with community supervision; (9) appellant had 19 rule 

violation reports in prison, six of which were for violence; (10) appellant admitted 

making money through illegal means, by stealing and selling drugs, with this representing 

about 30 percent of his income between ages 25 and 39; (11) appellant admitted acting, 

between ages 25 and 39, as a pimp to about 200 women, although he said he “never made

it a habit”; (12) appellant admitted cashing bad checks for friends; and (13) appellant was 

described, in his medical chart, as being “med seeking,” meaning he was looking for 

medication, and there was a concern he was selling his medication to other inmates. 

Teofilo also used the “Robert Hare psychopathy test” to determine whether 

appellant had characteristics consistent with a psychopath or sociopath.

4 A psychopath is 

likable and manipulative, can be quite forceful, is not affected or motivated by guilt or 

shame, tends not to experience anxiety in the way most people do, and does not form 

strong attachments or relationships with people. Appellant’s score on the checklist 

 

had a sex offense as a juvenile. Research has shown that most juveniles who commit 

sexual crimes do not go on to reoffend as adults. Appellant did not suffer from antisocial 

personality disorder at age 14; he did, however, suffer from conduct disorder, the 

precursor to antisocial personality disorder. 

4 Teofilo explained that psychopathy is an extreme form of antisocial personality 

disorder. 
7.

exceeded the cut-off at which someone can be said to have a psychopathic personality, 

indicating he had a lot of characteristics similar to those characterized as psychopaths.

Research suggests a psychopath designation has strong relationship with criminal 

recidivism, including violent crime. There is also “some evidence that supports its 

relationship with future sexual offending.” 

As for the borderline features to the antisocial personality disorder diagnosis, 

Teofilo explained that borderline personality disorder “has to do with a ... pervasive 

pattern of unstable self-image [and] impulsivity.” In Teofilo’s opinion, appellant did not 

meet “the full threshold” for borderline personality disorder, but had some characteristics 

of it. 

Teofilo considered appellant’s relationship and sexual histories in arriving at his 

opinion appellant had antisocial personality disorder. Appellant recounted that he was 

homosexual, had never married, and had never lived with a romantic partner, and so had 

never been able to develop and maintain a long-term romantic relationship with someone

in the community. He also related that his first recollection of a sexual encounter was at 

age nine and involved mutual genital fondling with a neighbor boy the same age. At age 

10, he orally copulated his male cousin. Appellant estimated having had 1,000 sexual 

partners, 600 of which were one-night stands. There was a period of time, while he was 

in prison, when he would masturbate five times a day. Also while he was in prison, there 

was a period of time when he had sex with another inmate five times a day, although this 

decreased to once a day.5 Appellant’s sexual partner in prison was his cellmate; 

appellant let this person urinate on him and tie him up. Appellant related that he loved to 

“mess around” with married men when he was in the community, and said it was “a 

high” for him. He also related he had two children with his brother’s girlfriend; the 

 

5 Sex inside prison is against prison policy. 
8.

brother thought he, not appellant, was the father. Teofilo concluded appellant was “very 

sexually preoccupied.”

Teofilo asked appellant about the crimes he committed when he was 14.6 

Appellant related the conduct involved sex play with a student peer in the bathroom; they 

entered the bathroom together, put their penises between each other’s legs, and fondled 

each other. When other boys came into the bathroom, they quickly separated. Appellant 

said he was accused of rape when the other boy’s mother found out. Contrary to 

appellant’s version of events, documentation indicated there were four different victims. 

Three were brothers, ages five, six, and eight, who were neighbors of appellant. The 

child at school was 12. Appellant was first charged with molesting two of the brothers, 

then with sexually assaulting the 12-year-old. Ultimately, he was found to have molested 

the eight-year-old brother and to have sexually assaulted the 12-year-old boy in the 

bathroom. All the brothers told the police that appellant made them orally copulate him 

and sodomized them. The eight-year-old said appellant threw rocks at the eight-year-old 

and the five-year-old to separate them from the six-year-old. When the eight-year-old 

saw appellant again, appellant was naked and on top of the younger brother. With 

respect to the school incident, the 12-year-old said appellant twisted his arm behind his 

back and punched him in the stomach, then pulled down his pants. Appellant exposed his 

own penis and had simulated sex with the boy “from behind.” Appellant threatened to 

beat him up if he told anyone. 

The diagnosis of substance-related disorder, both cocaine dependence and alcohol 

abuse, was based on appellant’s admissions regarding his historical use of both 

substances. Although appellant admitted trying several drugs, he labeled crack cocaine 

 

6

In 1980, when appellant was 14, he was found to have violated Penal Code 

section 288, subdivision (a), a lewd act on a child, and Penal Code section 288a, 

subdivision (b)(1), oral copulation on a person under the age of 18. These offenses 

resulted in a Youth Authority commitment. 
9.

his “drug of choice.” Teofilo deemed appellant in remission, however, because he was in 

a controlled environment. 

The diagnosis of sexual disorder, not otherwise specified (NOS), sexual 

compulsivity, was based on appellant’s history. Teofilo stated there were elements of 

appellant’s sexuality that were “highly compulsive”; he had “a really profound sexual 

preoccupation.” Teofilo believed that having 1,000 different partners, of whom 600 were 

strangers, having group sex 25 to 35 times, cross dressing, the frequency of masturbation,

and the frequency of sex while in custody, were all components that indicated the 

presence of a sexual disorder. Teofilo did not, however, diagnose appellant with 

paraphilia. Paraphilia is a sexual deviance, like sexual interest in children or 

nonconsenting people or nonhuman objects. 

Finally, Teofilo found appellant met the third criterion; he was likely to engage in 

sexually violent predatory criminal behavior. Teofilo explained that someone could have 

a mental disorder that predisposed him or her to commit sex crimes, but, if he or she was

not likely to reoffend in the future, that person did not meet the criteria for being an SVP; 

appellant, however, was likely to reoffend. Teofilo used three different measures to 

assess appellant’s risk of committing future sexual crimes: the Static 99-R risk 

assessment, which measures “static factors” — factors that do not change, and the SVR20 and the SRA-FV, both of which look at “dynamic factors” — such as substance abuse 

or a sexual preoccupation — which can be changed and addressed in treatment.

The Static 99-R, a 10-item instrument is, according to Teofilo, the “gold standard 

in sex offender evaluation and treatment,” it is “the best there is at predicting, but it only 

is a moderate predictor.”

7 Teofilo scored appellant as a seven during the first evaluation 

 

7 The Static 99-R does not say whether a specific individual will reoffend. Rather, 

it says that a group of people with the same score as the individual have gone on to 

reoffend at a particular rate. 
10.

done in 2010, then, after receiving further information about appellant’s criminal record, 

rescored him as a nine. A score of six or higher is considered high risk. 

Teofilo also utilized instruments in his evaluation that considered dynamic factors.

Taking all the factors and instrument scores together, Teofilo determined appellant was 

similar to the high risk, high needs group. Groups of individuals from that group with a 

score of nine reoffended at a rate of around 52.4 percent in five years, and 61.9 percent in 

10 years. Because not all sex criminals are arrested or convicted, Teofilo believed the 

numbers were an underestimation. 

In addition, Teofilo opined that appellant needed to be treated in a secure facility. 

With respect to treatment, appellant told Teofilo he participated in phase one treatment at 

Coalinga State Hospital, but did not start phase two. Teofilo confirmed appellant in fact 

completed phase one of Coalinga’s five-phase program. Phase one was tantamount to 

pretreatment, and was not sex-offender-specific. Appellant did not begin phase two, 

which was sex-offender-specific. Appellant said he would not do phase two because he 

would be made to sign a treatment contract. Appellant told Teofilo, “I am not signing a 

contract to nobody. That’s like making a deal with Satan.” 

Teofilo spoke to appellant about appellant’s plans if he were to be released. 

Appellant said he was going to go to AA groups, join a drug program, go home and take 

care of his mother, get a job, and go back to church. He made no mention of having to 

abide by conditions of parole or participate in treatment. 

Teofilo explained, that in assessing risk of reoffending, there are three main 

factors considered to be protective, meaning they make someone less likely to reoffend. 

The first is having lived in the community for 10 or more years with no new sex offense. 

This shows the person has some capacity to control impulses. The second is age and 

physical health. Older offenders and those who are infirm (for example, someone with 

late-stage cancer) are not as likely to commit a sex offense. The third is having 
11.

completed — not just started — a sex-offender-specific treatment program. Appellant 

had none of those protective factors. 

Appellant’s belief he had not committed a sex offense and did not need sex 

offender treatment; the fact appellant declined to participate in sex offender treatment 

when made available to him at Coalinga State Hospital; and the fact appellant had five 

parole violations and committed two sex offenses while on probation, suggested appellant 

did not perform well while on community supervision and so, Teofilo concluded, would 

be a risk to the community. 

Appellant

Appellant testified he was 46 years old at the time of trial. When he was 13, he 

put his “thing” between someone’s legs. It was consensual. He never attempted 

penetration. He did not hit the person in the stomach or threaten him. He did not have 

sex with any of the neighbor children or hit them with a rock.

The 1998 incident involved someone named Richard. Appellant was on probation 

or parole at the time. He was drinking and doing drugs with some people that day. 

Although Richard went with appellant to the store, appellant did not do anything sexual 

with him. As for the incident with Aaron M., appellant was on his way to the house of a 

married friend with whom he had “messed around” for about two years. Aaron 

approached and asked for a cigarette. Appellant gave him one. Aaron then asked if 

appellant knew where he could get some heroin. Appellant said he did not do heroin, 

only cocaine. Aaron asked if appellant had any. Appellant said yes. Aaron asked if he 

could have some, but appellant said he did not give his drugs away. Aaron then took 

appellant to the bushes, and Aaron showed appellant “his thing.” Appellant did not put a 

knife to Aaron’s back and did not know Aaron was only 15. Had appellant known, he 

would not have given Aaron drugs or gone into the bushes with him. Appellant pled 

guilty because he was offered a good deal. 
12.

Appellant did not think he had a problem with regard to sex. He admitted having 

around 1,000 sex partners, but did not believe there was a problem unless a person was 

underage. He did not know Aaron was underage. If appellant was released, he would 

sign up for treatment, because when he was under the influence of alcohol and drugs, he 

had made wrong decisions. He was not still having drug issues, however. Appellant was 

on his way to getting into a program at Coalinga State Hospital that dealt with sex, when 

he was sent to the Fresno County Jail. He did not enter a program when he was first sent 

to the hospital because he was angry at the time. He refused to get into any of the classes 

because he was supposed to go home, not to a state hospital. He did go to phase one of a 

five-phase program, but did not go farther because he refused to go to classes that had 

contracts. If a person joined those classes and decided he wanted to leave because he did 

not agree with them, he would not be allowed to leave. 

Appellant admitted getting into a lot of trouble when he was in prison. Sometimes 

it was because he did not want to be roommates with certain individuals, but the 

authorities refused to move him. Sometimes it was because he got in arguments with 

staff. Out in the community, he could walk away from a lot of things. In prison, he did 

not have that option. 

Appellant explained that he chose not to be paroled when he was most recently 

eligible, and instead did his entire five-year sentence. He met and fell in love with 

someone in prison, and did not want to leave him at that time. To stay in prison, he got 

disciplinary write-ups for getting tattoos and sometimes for fights. None were for sexual 

conduct. After his 1998 offense, he also did his full time. This was because he kept 

getting into arguments with staff, and the disciplinary write-ups resulted in time credits

being taken from him. Appellant had been at Coalinga State Hospital for the last two 

years. He had received disciplinary sanctions there, as well. They were for fights. 
13.

Dr. Dale Arnold

Dr. Dale Arnold, a licensed psychologist, with extensive experience and expertise 

in sex offender evaluation and treatment, and extensive experience in conducting SVP 

evaluations, was asked by the DMH to conduct an SVP evaluation on appellant. Arnold 

reviewed various documents, including appellant’s criminal history, and, on August 17, 

2010, he interviewed appellant. 

Arnold spoke with appellant about appellant’s sexual history. Appellant related 

that he became knowledgeable of sexual issues when he was about 10 years old. He first 

engaged in intercourse when he was around 12. He said he was convicted of a juvenile 

sexual offense when he was 14, although he said it involved consensual sexual contact 

with someone in the bathroom at school. Appellant told Arnold he had had well over 

1,000 partners, and was extremely sexually preoccupied. Appellant said he and one of 

his partners in confinement would have sex as many as five times a day. When they were 

not having sex that often, appellant would masturbate when he was by himself. 

Appellant never had a committed relationship when he was in the community, but instead 

had lots of casual sex with individuals who may or may not have been married or openly 

homosexual. Appellant said this could happen with two or three men in the same day. 

He described himself as walking down the street and having people approach him for 

sexual contact. Sometimes he would agree to it in exchange for cocaine. Appellant saw 

no problem with it; it was something he enjoyed, and he was not distressed about the 

frequency or shallowness of his sexual contacts.

Arnold found appellant had been convicted of two sexually violent offenses. With 

respect to the 1998 offense, appellant denied committing any offense. He claimed the 

victim “made up the crime” in an effort to keep some money that was found in an 

eyeglass case. According to what appellant told the probation officer, however, he saw 

the victim having sexual contact with another individual. Appellant fondled the boy’s 

penis and tried to initiate sexual contact, but denied using any force. Appellant told the 
14.

probation officer he did it because he was high, and that had he not been using cocaine, 

he would not have committed the offense. 

Arnold did a comprehensive review of appellant’s records and examined his 

mental status. He also used the Hare psychopathy test. He diagnosed appellant with 

antisocial personality disorder and with cocaine dependence in remission in a controlled 

environment. Regarding the diagnosis of antisocial personality disorder, Arnold

explained that 40 to 80 percent of inmates could be diagnosed with antisocial personality 

disorder, but psychopathy is a higher level of antisocial personality disorder, and 

appellant scored in the severe range on the Hare test. Such a score correlates to a rate of 

recidivism, although it is “a complicated relationship.” Arnold explained that antisocial 

personality disorder is a chronic disorder that often “remits in the middle years of life,” 

usually in the person’s 40’s. In individuals with psychopathy, however, the disorder

tends to be a much more chronic condition. Individuals rated in the severe range tend to 

demonstrate antisocial personality traits and behaviors far longer than individuals not so 

rated, and may be chronically antisocial into their 50’s or 60’s. Antisocial personality 

disorder is a diagnosed mental disorder for purposes of the SVPA. 

Regarding the issue of the likelihood of reoffending in a sexually violent predatory 

manner, Arnold explained that not all sex offenders pose the same level of risk. Risk 

assessment tools, “structured instruments,” are used to determine the likelihood of 

reoffending. Certain factors are associated with people who reoffend; those factors were 

used in the instruments. Those with higher scores on such instruments tended to reoffend 

more often and more quickly than those with low scores. In addition, dynamic risk 

factors — external factors that are not completely accounted for in the instruments — are 

considered in forming an opinion as to the degree of risk. 

In assessing appellant’s risk, Arnold started with the Static 99 instrument. 

Initially, Arnold gave appellant a score of eight. After obtaining more detailed 

information about appellant’s juvenile adjudications, however, he gave appellant a score 
15.

of nine. People who receive a score of six or above are in the high risk category. 

Appellant’s cumulative percentile rating was in the 99th percentile, meaning if there were 

100 sex offenders in the room, 99 of them would have gotten lower scores than appellant. 

In Arnold’s opinion, it was most accurate to compare appellant to the “high risk high 

need sample type.” Compared to that sample type, of those individuals who received a 

score of eight, 45 percent were charged or convicted of a new sex crime after five years 

in the community. After 10 years, 55 percent were charged or convicted of a new sex 

crime. In Arnold’s opinion, this actually underestimated the risk of reoffending, because 

not all sex offenses are reported to the police or result in arrests or charges. Arnold also 

used the Static 2002 Revised. Appellant still received a score of nine, but for different 

reasons compared to the Static 99. In addition, Arnold performed testing with respect to 

dynamic risk factors. 

Based on his evaluation of appellant and his risk assessment, Arnold opined 

appellant, if released, was likely to reoffend in a sexually violent predatory manner. 

Arnold also believed it was necessary to keep appellant in a custodial setting for 

treatment purposes. He believed it was highly unlikely appellant would voluntarily 

participate in treatment on his own in the community, or even be able to cooperate with 

parole supervision in the community. Arnold found it “absolutely necessary” that 

appellant both remain in custody and receive treatment in order to reduce his risk of 

reoffending.

II

DEFENSE EVIDENCE

Dr. Allen Frances

Dr. Allen Frances, a medical doctor who was board certified in psychiatry, was the 

chair of the task force that created the DSM, and coauthor of the DSM-IV. He also wrote 
16.

the final draft of the section of the DSM-III concerning antisocial personality disorder.

He has lectured and written articles concerning SVP laws.8In the present case, he was 

retained to evaluate Teofilo’s and Arnold’s diagnoses of appellant. He did not interview 

appellant. 

Frances found Teofilo’s and Arnold’s diagnoses of antisocial personality disorder 

to “make[] good sense.” However, he found it “an open question” whether that disorder 

was a qualifying mental disorder under the SVPA. He explained that until recently in 

California, the intent was to use paraphilia NOS as the main diagnosis in SVP cases. 

That diagnosis having been somewhat discredited, there was now an attempt to use 

antisocial personality disorder as the qualifying diagnosis, even though it was not 

considered an appropriate qualifying diagnosis by the state evaluators or the DMH.

Frances did not object to use of the diagnosis, as it was in the DSM and he believed it 

was within the jury’s and legal system’s right to use it, although his personal belief was 

that it did not make sense. He also believed paraphilia NOS was a “silly” diagnosis.

Frances explained that the purpose of the SVPA was to distinguish between simple 

criminality and mental disorder. People with mental disorders can be civilly detained 

against their will; people without mental disorders — even if criminals — cannot be. 

Most people who are convicted of sex offenses do not have a mental illness. Thus, the 

purpose of the diagnosis of mental disorder in the SVPA is to separate or narrow the large 

group of criminals who cannot be committed from the special few who have mental 

disorders and can be committed. It is those few sex offenders with a mental disorder who 

have a higher risk of reoffending in a sexually violent predatory manner. 

According to Frances, antisocial personality disorder is “very common” among 

prisoners, with 50 to 90 percent of those in prisons or jails meeting the criteria therefor. 

 

8 Although Francis had evaluated SVP evaluators, he had never performed an actual 

SVP evaluation. 
17.

Frances’s main objection to the diagnosis in SVP cases is that it does not distinguish 

criminals from people with mental disorders. Antisocial personality disorder is not 

something that can be treated, other than with time. People grow out of it — become 

much less antisocial — as they get older. Extended psychotherapy is “a complete waste 

of time” where antisocial personality disorder is concerned. Accordingly, hospitalizing 

someone for it “[m]akes no sense.” 

Frances read Teofilo’s and Arnold’s reports concerning the number of appellant’s 

sexual partners. In Frances’s opinion, having 1,000 such partners does not constitute a 

mental disorder. Neither does sex addiction, and in fact, there is no diagnosis in the DSM 

for compulsive sexuality. Compulsive sexuality is “an incompetent diagnosis in a 

forensic case,” and a psychologist who would offer such a diagnosis as an expert opinion 

should not be taken seriously. A diagnosis of sexual disorder NOS is “silly” because, 

although it is found in the DSM, compulsive sexuality is not. The “NOS” category is in 

the DSM so clinicians seeing patients have the freedom to use their own judgment in 

deciding whether someone has a diagnosis. No two raters will ever agree on an NOS 

diagnosis because there are no criteria. Such diagnoses have no forensic standing 

because they are inherently unreliable.9 Moreover, compulsive sexuality has been 

considered for inclusion in the DSM, but rejected. 

In Frances’s opinion, it is a crime, but not a mental disorder, to have sex with 

teenagers. Similarly, it would be a crime for a 14-year-old to have sex with young 

children. Unless the person had a long-standing pattern of preferring young children and 

could be a diagnosed pedophile, however, a couple of actions by a teenager would not 

constitute a mental disorder.

 

9 Frances explained that the standards of diagnosis are radically different for a 

clinician as opposed to a person testifying in court. 
18.

Frances related that until recently, DMH instructed its evaluators that SVP cases 

required a diagnosis of paraphilia, and that antisocial personality disorder was not 

considered a qualifying diagnosis. In September 2011, DMH cautioned evaluators to not 

be careless in making a diagnosis of paraphilia, and advised them to consider other 

possible diagnoses if they could not diagnose paraphilia. 

Frances did not consider himself an expert on prediction of reoffense or risk 

assessment. He felt the best predictor of what crimes a person might commit in the future 

would be the most recent crimes. If someone had 15 arrests and only three were for sex 

offenses, it was likely his or her next crime would not be a sex offense. Taking into 

account appellant’s rules violations in prison and most recent parole violation, which was 

for a nonsexual assault, Frances believed the odds were that appellant’s immediate future 

might involve more assaults that had nothing to do with sex. 

DISCUSSION

I

*

ADMISSION OF EVIDENCE CONCERNING APPELLANT’S HIV AND HEPATITIS C STATUS

Appellant contends the trial court erred by permitting the prosecutor to present 

irrelevant and highly prejudicial evidence concerning appellant’s HIV and hepatitis C 

status. He says the trial court’s ruling in this regard violated both California’s evidentiary 

rules and appellant’s federal and state constitutional rights to due process and a fair trial. 

We find no cause for reversal.

A. Background

During the hearing on in limine motions, the following occurred:

“[DEFENSE COUNSEL]: Your Honor, I had one other issue, and 

that is my client’s HIV and hepatitis status. I don’t think that is relevant. I 

think it would be highly prejudicial for the jury to learn of his HIV and 

hepatitis status, and I ask there be no mention of that.

 

* See footnote, ante, page 1.
19.

“[PROSECUTOR]: Your Honor, part of the finding in SVP is the 

dangerousness of the defendant, and the defendant being in the condition 

that he is poses a greater danger than -- than he would otherwise.

“I believe that his condition goes to the legality [sic] of his possible 

reoffending. In that regard, it’s relevant and ask that it be admitted.

“[DEFENSE COUNSEL]: I don’t think it’s dangerousness is an 

issue, your Honor. It’s his likelihood to reoffend in a sexually violent 

predatory manner and whether he is likely to reoffend in a sexually violent 

and predatory manner has nothing to do with his HIV or hepatitis status. 

[¶] ... [¶]

“THE COURT: I’m gonna [sic] ... deny [defense counsel’s] 

request. I’ve looked at [CALCRIM No.] 3454. [¶] ... [¶]

“As a result of that diagnosed mental disorder he is a danger to the 

health and safety of others because it is likely he will engage in sexually 

violent predatory criminal behavior, and the disease can be transmitted by 

HIV or hepatitis the court feels is relevant to the danger to the health.” 

During the course of his testimony, Teofilo talked about his finding appellant had 

a “profound sexual preoccupation ....” Teofilo noted appellant had contracted multiple 

sexually transmitted diseases, and had experienced a lot of negative side effects and 

distress from his sexual behavior. Over appellant’s continuing relevance objection, the 

prosecutor elicited that one of those diseases was HIV, the virus that causes AIDS, and 

that appellant told Teofilo he contracted it from his partner in prison. 

Arnold testified in part concerning so-called protective factors, which are factors 

that lower a person’s future risk of reoffending. One of those factors was health issues. 

When the prosecutor asked if Arnold found anything with regard to appellant’s health 

condition that increased his risk of danger to the community, Arnold testified, over 

defense counsel’s relevance objections, that appellant was hepatitis C positive and HIV 

positive. Arnold stated: “For those reasons, I think the danger that he poses is 

substantially higher than your typical sex offending, because it’s not only if he reoffends, 

but it’s the chance that another person could be given a life threatening disease if he 
20.

reoffends. So those two things combined, in my opinion, make him extremely 

dangerous.” 

Pursuant to CALCRIM No. 3454, the jury was subsequently instructed that, in 

order to prove the allegation appellant was an SVP, the People had to prove beyond a 

reasonable doubt:

“One, he has been convicted of committing sexually violent offenses 

against one or more victims;

“Two, he has a diagnosed mental disorder;

“And three, as a result of that diagnosed mental disorder, he is a 

danger to the health and safety of others because it is likely that he will 

engage in sexually violent predatory criminal behavior.”

In his opening argument to the jury, the prosecutor asserted the consequences of 

appellant’s actions did not deter him, his lack of control predisposed him to commit a 

sexually violent crime, and his predisposition to commit sexually violent acts made him a 

danger to the community. The prosecutor further argued the People had to prove that as a 

result of the mental disorder, appellant was a danger to the health and safety of others; 

that it was likely appellant would engage in sexually violent predatory behavior. The 

prosecutor noted “likely” was defined by the jury instruction as meaning a substantial, 

serious, and well-founded risk the person would reoffend. The prosecutor argued “[i]t is 

a serious risk when you have a sex offender who’s kind of like a loose can[n]on walking 

on the streets.”

In her argument to the jury, defense counsel observed that her role in the 

courtroom was to ensure her client received a fair trial. In part, she argued that a fair trial 

was one in which only relevant evidence was admitted, and she defined relevance for the 

jury. She stated:

“A fair trial, ladies and gentlemen, is not one that excites the 

prejudices and the emotions of the jurors. What is the purpose of eliciting 

testimony about my client’s HIV status or the fact that he has hepatitis C? 
21.

What element does that go to prove here? According to [Dr.] Arnold, that 

makes ... him even more dangerous because if he were to commit another 

sexual offense in the future, then the party that he offended against could 

contract HIV or hepatitis C.

“What is it about his HIV or hepatitis C status that makes it more 

likely that he will engage in a sexually violent predatory criminal act? 

Nothing at all.

“The only reason, the only purpose that that testimony has at this 

trial is to prejudice you against [appellant], and it is highly prejudicial 

information.”

In his closing comments, the prosecutor argued appellant’s “antisocial personality 

disorder pushes that sexual compulsion, his hypersexuality, and makes him likely to 

reoffend in a sexually violent predatory manner, that’s what we are saying.” The 

prosecutor subsequently noted he did not bring up the subject of HIV, but it did go to 

appellant’s dangerousness. Defense counsel objected saying the prosecutor raised the 

subject in his direct examination of his experts. The prosecutor responded that he did not 

mention it in his argument. When the court told the prosecutor he could continue, the 

prosecutor stated: “Is he a danger to health and safety? Now that she brings it up, it is, 

you know.” 

B. Analysis

The rules concerning the admission of evidence are settled. “‘“Only relevant 

evidence is admissible [citations], and, except as otherwise provided by statute, all 

relevant evidence is admissible [citations].” [Citation.] “Relevant evidence is defined in 

Evidence Code section 210 as evidence ‘having any tendency in reason to prove or 

disprove any disputed fact that is of consequence to the determination of the action.’ The 

test of relevance is whether the evidence tends ‘logically, naturally, and by reasonable 

inference’ to establish material facts such as identity, intent, or motive. [Citations.]” 

[Citation.]’” (People v. Tully (2012) 54 Cal.4th 952, 1010.)
22.

“‘[T]he trial court has broad discretion to determine the relevance of evidence.’ 

[Citation.]” (People v. Tully, supra, 54 Cal.4th at p. 1010.) “[D]iscretion is abused 

whenever the court exceeds the bounds of reason, all of the circumstances being 

considered. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68, 72.)

“This discretion extends to evidentiary rulings made pursuant to Evidence Code 

section 352. [Citation.]” (People v. Tully, supra, 54 Cal.4th at p. 1010.) That statute 

provides: “The court in its discretion may exclude evidence if its probative value is 

substantially outweighed by the probability that its admission will (a) necessitate undue 

consumption of time or (b) create substantial danger of undue prejudice, of confusing the 

issues, or of misleading the jury.” “... Evidence Code section 352 requires the exclusion 

of evidence only when its probative value is substantially outweighed by its prejudicial 

effect.” (People v. Tran (2011) 51 Cal.4th 1040, 1047.) “‘The prejudice which exclusion 

of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or 

damage to a defense that naturally flows from relevant, highly probative evidence.... 

“The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which 

uniquely tends to evoke an emotional bias against the defendant as an individual and 

which has very little effect on the issues. In applying [Evidence Code] section 352, 

‘prejudicial’ is not synonymous with ‘damaging.’” [Citation.]’ [Citation.]” (People v. 

Lopez (2013) 56 Cal.4th 1028, 1059.) Stated another way, “‘[e]vidence is substantially 

more prejudicial than probative ... [only] if ... it poses an intolerable “risk to the fairness 

of the proceedings or the reliability of the outcome” [citation].’ [Citation.]” (People v. 

Tran, supra, 51 Cal.4th at p. 1047.)

The SVPA defines an SVP as “a person who has been convicted of a sexually 

violent offense against one or more victims 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.” (§ 6600, subd. (a)(1).) “[L]ikely” 

in this context means the person presents “a substantial danger, that is, a serious and well-
23.

founded risk, of committing such crimes if released from custody.” (People v. Roberge

(2003) 29 Cal.4th 979, 988, italics omitted.) A diagnosed mental disorder “includes a 

congenital or acquired condition affecting the emotional or volitional capacity that 

predisposes the person to the commission of criminal sexual acts in a degree constituting 

the person a menace to the health and safety of others.” (§ 6600, subd. (c).) A finding 

the person is dangerously disordered is not enough; there must also be “a volitional 

impairment rendering [the person] dangerous beyond [his or her] control.” (Kansas v. 

Hendricks (1997) 521 U.S. 346, 358; see Hubbart v. Superior Court (1999) 19 Cal.4th 

1138, 1157-1158.) In other words, there must be proof the person has “serious difficulty 

in controlling” his or her dangerous behavior. (Kansas v. Crane (2002) 534 U.S. 407, 

413; accord, People v. Williams (2003) 31 Cal.4th 757, 759.)

The trial court and prosecutor appear to have misunderstood the criteria for an 

SVP finding, as set out in CALCRIM No. 3454. The issue before the jury was not 

whether appellant was dangerous because of the potential consequences to his victim(s) if 

he reoffended, but whether he was dangerous because it was likely he would reoffend in a 

sexually violent predatory manner.

Appellant’s HIV/hepatitis C status was not wholly irrelevant, however. As the 

People now argue, Teofilo relied in part on this information in forming his opinion 

appellant was sexually preoccupied and suffered from sexual compulsivity. The evidence 

was relevant on this point: It showed appellant engaged in repeated sexual activity 

despite the consequences, which in turn had some tendency in reason to support Teofilo’s 

diagnosis. Although the People did not argue this theory of relevance in the trial court, 

“[i]f a judgment rests on admissible evidence it will not be reversed because the trial 

court admitted that evidence upon a different theory, a mistaken theory, or one not raised 

below. [Citations.]” (People v. Brown (2004) 33 Cal.4th 892, 901.) “‘“‘[A] ruling or 

decision, itself correct in law, will not be disturbed on appeal merely because given for a 

wrong reason. If right upon any theory of the law applicable to the case, it must be 
24.

sustained regardless of the considerations which may have moved the trial court to its 

conclusion.’ [Citation.]” [Citation.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 

936, 972.) “[W]hether evidence was erroneously admitted does not depend on counsel’s 

later argument to the jury.” (People v. Harrison (2005) 35 Cal.4th 208, 230.)

Appellant says, however, that even if his HIV/hepatitis C status had some 

probative value, it should have been excluded under Evidence Code section 352. He also 

says the trial court failed to engage in the mandatory weighing process under that statute. 

(See People v. Prince (2007) 40 Cal.4th 1179, 1237.)

“[A] party may not complain of the erroneous admission of evidence unless 

‘[t]here appears of record an objection to or a motion to exclude or to strike the evidence 

that was timely made and so stated as to make clear the specific ground of the objection 

or motion ....’” (People v. Richardson (2008) 43 Cal.4th 959, 1001, quoting Evid. Code, 

§ 353, subd. (a).) In accord with Evidence Code section 353, subdivision (a), the 

California Supreme Court has “‘“‘consistently held that the “defendant’s failure to make 

a timely and specific objection” on the ground asserted on appeal makes that ground not 

cognizable.’”’ [Citation.]” (People v. Tully, supra, 54 Cal.4th at p. 1010.)

We do not believe appellant’s Evidence Code section 352 claim has been 

preserved for appellate review. Although defense counsel made a single reference to the 

evidence being “highly prejudicial,” “counsel neither mentioned Evidence Code 

section 352 nor argued that the probative value of the evidence was substantially 

outweighed by a risk of undue prejudice. Instead, counsel argued consistently and 

exclusively that the evidence was entirely irrelevant .... This was insufficient to preserve 

a claim of error under Evidence Code section 352. [Citations.]” (People v. Kipp (2001) 

26 Cal.4th 1100, 1124.) 

In any event, any error in admitting the evidence — whether because it was 

irrelevant to the issue of dangerousness or because it was substantially more prejudicial 

than probative under Evidence Code section 352 — was harmless, even if we assume the
25.

prosecutor’s argument, which was in accord with the trial court’s reasoning in admitting 

the evidence, invited the jury to use the evidence for an improper purpose. “[T]he 

erroneous admission ... of evidence does not require reversal except where the error ... 

caused a miscarriage of justice. [Citations.]” (People v. Richardson, supra, 43 Cal.4th at 

p. 1001; Evid. Code, § 353, subd. (b).) “[A] ‘miscarriage of justice’ should be declared 

only when the court, ‘after an examination of the entire cause, including the evidence,’ is 

of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of the error.” (People v. Watson (1956) 46 

Cal.2d 818, 836; see, e.g., People v. Benavides (2005) 35 Cal.4th 69, 91.)

Evidence appellant presented a substantial danger (a serious and well-founded 

risk) of reoffending in a sexually violent predatory manner was overwhelming — indeed, 

virtually uncontradicted. (Compare People v. Paniagua (2012) 209 Cal.App.4th 499, 

520.) Evidence of appellant’s HIV and hepatitis C status was no more inflammatory than 

evidence concerning appellant’s prior misdeeds and sexual activities. (See People v. 

Ewoldt (1994) 7 Cal.4th 380, 405.) It is simply not reasonably probable the jury would 

have found appellant to not be an SVP had evidence concerning his HIV/hepatitis C 

status been excluded. (See People v. Benavides, supra, 35 Cal.4th at p. 91; People v. 

Whitson (1998) 17 Cal.4th 229, 251.)10

In the introductory paragraph to this claim of error in his opening brief, appellant 

says the error violated not only California’s evidentiary rules, but also his due process 

 

10 In light of this conclusion, we need not address, at length, appellant’s assertion he 

received ineffective assistance of counsel if his Evidence Code section 352 claim was not 

adequately preserved. To prove ineffective assistance of counsel, appellant must show 

both deficient performance and prejudice, i.e., that there is a reasonable probability he 

would have obtained a more favorable result absent counsel’s shortcomings. (People v. 

Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 

466 U.S. 668, 687-694.) Appellant has failed to establish prejudice; hence, we need not 

decide whether trial counsel’s performance was deficient. (See In re Fields (1990) 51 

Cal.3d 1063, 1079.)
26.

right to a fair trial under the federal and state Constitutions. He does not mention the 

point further. Although appellant’s failure to object on constitutional grounds in the trial 

court is not, under the circumstances, fatal to his assertion of such a claim on appeal 

(People v. Zamudio (2008) 43 Cal.4th 327, 353; People v. Partida (2005) 37 Cal.4th 428, 

435), appellant’s presentation of the matter is. “‘Where a point is merely asserted by 

counsel without any argument of or authority for its proposition, it is deemed to be 

without foundation and requires no discussion.’” (People v. Dougherty (1982) 138 

Cal.App.3d 278, 282; see People v. Hardy (1992) 2 Cal.4th 86, 150; People v. Wharton 

(1991) 53 Cal.3d 522, 563.) Accordingly, we decline to discuss appellant’s due process 

claim.11

II

CONSTITUTIONALITY OF SVPA

Appellant contends the version of the SVPA under which he received an 

indeterminate commitment violates the ex post facto and double jeopardy provisions of 

the federal and state Constitutions, as well as his rights to due process and equal 

protection of law. He concedes the California Supreme Court has ruled against him on 

his due process, ex post facto, and double jeopardy claims. (People v. McKee (2010) 47 

Cal.4th 1172 (McKee I).) We are thus required to reject these assertions. (Auto Equity 

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)12 He further concedes that 

upon remand in McKee I, the Court of Appeal in People v. McKee (2012) 207 

 

11 We would not find a constitutional violation in any event.

12 In reality, although McKee I rejected the due process and ex post facto arguments 

made by appellant (McKee I, supra, 47 Cal.4th at pp. 1193, 1195), the case did not 

directly address a claim the SVPA violates double jeopardy principles. It did, however, 

find the SVPA not punitive. (McKee I, at p. 1195; see Hubbart v. Superior Court, supra,

19 Cal.4th at p. 1175.) In light of this determination, we agree with those cases that have 

rejected double jeopardy contentions. (E.g., People v. McDonald (2013) 214 Cal.App.4th 

1367, 1383; People v. Landau (2013) 214 Cal.App.4th 1, 44-45.)
27.

Cal.App.4th 1325 (McKee II) ruled against his position on the equal protection issue. He 

says, however, that McKee II was wrongly decided and so should not be followed.

In McKee I, the California Supreme Court observed that under the SVPA, as 

amended by Proposition 83 (“The Sexual Predator Punishment and Control Act: 

Jessica’s Law”) effective November 8, 2006 (the version under which appellant was 

committed), SVP’s receive indeterminate commitments and, generally speaking, bear the 

burden of proving they should be released, while mentally disordered offenders (MDO’s) 

are committed for one year and thereafter have the right to be released unless the People 

prove beyond a reasonable doubt that the person should be recommitted for another year. 

(McKee I, supra, 47 Cal.4th at pp. 1186-1187, 1202.) The Supreme Court found that 

SVP’s and MDO’s are similarly situated for purposes of determining whether equal 

protection is violated by the fact one class bears a substantially greater burden in 

obtaining release from commitment than the other. (Id. at p. 1203.) The court stated: 

“Because MDO’s and SVP’s 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 in the manner in which Proposition 83 did, 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 MDO’s. 

[Citation.] A substantial question is raised about the basis for this belief.” (Id. at p. 1204, 

fn. omitted.) The court did not hold, as a matter of law, that there was no justification for 

the different treatment, but rather remanded the matter to give the People the opportunity 

to demonstrate a constitutional justification for the disparate treatment of SVP’s and 

MDO’s. (Id. at pp. 1207-1209.) It emphasized “that different classes of individuals 

civilly committed need not be treated identically” (id. at p. 1210), and that “mere 

disagreement among experts will not suffice to overturn the Proposition 83 amendments. 

The trial court must determine whether the legislative distinctions in classes of persons 
28.

subject to civil commitment are reasonable and factually based — not whether they are 

incontrovertible or uncontroversial” (id. at pp. 1210-1211).

Upon remand, the trial court held a 21-day evidentiary hearing and concluded the 

People had met their burden of justifying the disparate treatment of SVP’s. (McKee II, 

supra, 207 Cal.App.4th at p. 1330.) Division One of the Fourth District Court of Appeal 

affirmed, concluding “the trial court correctly found the People presented substantial 

evidence to support a reasonable perception by the electorate that SVP’s present a 

substantially greater danger to society than do MDO’s ....” (Id. at pp. 1330-1331.)

The appellate court set out the strict scrutiny standard applicable, observed that the 

trial court employed that standard in holding the evidentiary hearing, and noted that the 

trial court, in its 35-page statement of decision, found the People had met their burden of 

establishing, by a preponderance of the evidence, that the disparate treatment of SVP’s 

was based on a reasonable perception they posed greater and unique dangers. (McKee II, 

supra, 207 Cal.App.4th at pp. 1332, 1335.) It then explained:

“McKee asserts, and we agree, that we review de novo the trial 

court’s determination whether the [SVPA], as amended by Proposition 83, 

violates his equal protection rights. We independently determine whether 

the People presented substantial, factual evidence to support a reasonable 

perception that SVP’s pose a unique and/or greater danger to society than 

do MDO’s ..., thereby justifying the disparate treatment of SVP’s under the 

[SVPA]. Although the trial court heard the testimony of many witnesses 

and received in evidence many exhibits, the instant constitutional question 

involved mixed questions of law and fact that are predominantly legal, if 

not purely legal questions, which are subject to de novo review. 

[Citations.] Furthermore, because in this case the trial court presumably 

did not decide any disputed historical facts, but determined only whether 

the People presented sufficient evidence to support a reasonable perception 

that SVP’s pose a greater danger to society, we are in as good a position as 

the trial court to make that determination. Therefore, we apply an 

independent standard in reviewing the trial court’s order rejecting McKee’s 

equal protection claim.

“In independently reviewing the evidence admitted at the remand 

hearing, we must determine whether the People presented substantial
29.

evidence to support a reasonable inference or perception that the [SVPA’s] 

disparate treatment of SVP’s is necessary to further compelling state 

interests. [Citations.] ... ‘[W]hen 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 on 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.) For evidence to be ‘substantial,’ it 

cannot be just ‘any’ evidence, but must be of ponderable legal significance, 

reasonable, credible, and of solid value. [Citation.] Furthermore, our 

power begins and ends with the determination whether there is substantial 

evidence, contradicted or uncontradicted, to support the legislative 

determination, and when two or more inferences can reasonably be deduced 

from the evidence, we are without power to substitute our deductions for 

those of the electorate or other legislative body. [Citation.]” (McKee II, 

supra, 207 Cal.App.4th at pp. 1338-1339, fn. omitted.)

The Court of Appeal found the People had presented evidence (1) “showing the 

inherent nature of the SVP’s mental disorder makes recidivism significantly more likely 

for SVP’s as a class than for MDO’s” (McKee II, supra, 207 Cal.App.4th at p. 1340); 

(2) “that the victims of sex offenses suffer unique and, in general, greater trauma than 

victims of nonsex offenses” (id. at p. 1342); and (3) “showing SVP’s are significantly 

different from MDO’s ... diagnostically and in treatment” (id. at p. 1344).

The appellate court also rejected the defendant’s argument the SVPA was 

unconstitutional unless it adopted the least restrictive means available to further the 

state’s compelling interests. (McKee II, supra, 207 Cal.App.4th at pp. 1348-1349.) The 

court reviewed the pertinent authorities — including McKee I — and concluded: “[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 the electorate that passed 

Proposition 83 in 2006 was required to adopt the least restrictive means available (e.g., a 

two-year or other determinate term of civil commitment) in disparately treating SVP’s

and furthering the compelling state interests of public safety and humane treatment of the 

mentally disordered.” (McKee II, at p. 1349.)
30.

The California Supreme Court denied review of McKee II on October 10, 2012 

(S204503).

Appellant now says McKee II was wrongly decided because (1) the McKee II

court only addressed the problem arising out of the indeterminate commitment and did 

not address the equal protection issues arising out of the shifting of the burden of proof in 

section 6608 petitions, as well as the lack of a right to a jury trial in such proceedings;

(2) the McKee II court failed to properly apply strict scrutiny in its analysis; (3) the 

McKee II court’s factual analysis was “badly flawed”; and (4) the McKee II court never 

explained how disparate treatment was necessary to serve the compelling governmental 

interests of protecting society and providing treatment to mentally ill sex offenders. 

Appellant urges us to conduct our own analysis of the law, and either rule the SVPA 

violated appellant’s equal protection rights or remand the matter for an evidentiary 

hearing on the issue. 

Every published opinion to consider the issue has concluded the applicable version 

of the SVPA passes constitutional muster under the strict scrutiny test, and has found 

McKee II persuasive. (People v. Kisling (2014) 223 Cal.App.4th 544, 547-548 [Third 

Dist. Court of Appeal]13; People v. McDonald, supra, 214 Cal.App.4th at pp. 1371, 

1376-1382 [Fourth Dist. Court of Appeal, Div. 3]14; People v. Landau, supra, 214 

Cal.App.4th at pp. 47-48 [Fourth Dist. Court of Appeal, Div. 3]; People v. McCloud 

 

13 Kisling expressly found that to not follow McKee II would be contrary to the 

California Supreme Court’s “clear intent” in remanding McKee I to the trial court for an 

evidentiary hearing. (People v. Kisling, supra, 223 Cal.App.4th at p. 548.)

14 McDonald expressly found the equal protection challenge was to be resolved on a 

classwide basis, rather than affording each potential SVP the right to present his or her 

own evidence on the matter. (People v. McDonald, supra, 214 Cal.App.4th at pp. 1377-

1378.) The court further rejected the arguments that the Court of Appeal in McKee II

failed to conduct the required de novo review (People v. McDonald, at pp. 1378-1379), 

did not apply a true strict scrutiny standard (id. at pp. 1379-1380), and incorrectly 

assessed the evidence (id. at pp. 1380-1382).
31.

(2013) 213 Cal.App.4th 1076, 1078-1079, 1085-1086 [First Dist. Court of Appeal, 

Div. 2]; People v. McKnight (2012) 212 Cal.App.4th 860, 862-864 [First Dist. Court of 

Appeal, Div. 3].) We agree with these opinions. We recognize we are not bound to 

follow McKee II.

15

 Nevertheless, we reject appellant’s claim his federal and state equal 

protection rights were violated by the version of the SVPA pursuant to which he was 

committed.

Appellant seeks to have us consider recent amendments to the SVPA, which, he 

claims, cause the law now to violate his due process rights under McKee I’s analysis, and 

require that we either reverse his indeterminate commitment or find the amendments 

unconstitutional.

16 We decline to do so. We are concerned with the constitutionality of 

the SVPA as it existed when appellant was adjudged an SVP, not the statutory scheme as 

it may or may not be applied to appellant in the future. (Cf. People v. Carroll (2007) 158 

Cal.App.4th 503, 508, fn. 2.)17

 

15 In arguing this point in his opening brief, appellate counsel notes a conclusion 

reached by this court in an unpublished opinion. It is improper to cite or rely upon 

unpublished opinions except in limited circumstances not present here. (Cal. Rules of 

Court, rule 8.1115(a) & (b).)

16 Senate Bill No. 295 (2013-2014 Reg. Sess.) added section 6604.9 and amended 

sections 6605 and 6608, all of which concern conditional release and/or unconditional 

discharge.

17 We are not persuaded by appellant’s argument the issue is ripe for review because 

of the reliance placed by McKee I on the availability of relief under section 6608 as it 

then stood. The fact remains appellant was adjudged an SVP before Senate Bill 

No. 295’s amendments took effect. Those amendments may or may not be applied to 

appellant in the future. 
32.

DISPOSITION

The judgment (order of commitment) is affirmed.

_____________________

DETJEN, J.

WE CONCUR:

_____________________

 GOMES, Acting P. J.

_____________________

 KANE, J.