Filed 9/6/13 P. v. Dixon CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PAUL CURTIS DIXON,

Defendant and Appellant.

 H039083

 (Santa Clara County

 Super. Ct. No. 211212)

Appellant Paul Curtis Dixon was committed to the custody of the Department of 

State Hospitals1for an indeterminate term in April 2011, after a jury found him to be a 

“sexually violent predator” (SVP) within the meaning of the Sexually Violent Predator 

Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.).2 We rejected all but one of his 

challenges to the order of commitment and remanded the case “for the limited purpose of 

reconsidering [his] equal protection claim in light of [People v.] McKee [(2010) 47 

Cal.4th 1172 (McKee I)]” once the proceedings in that case became final. (People v. 

Dixon (Apr. 11, 2012, H036874) [nonpub. opn.] (Dixon I).) The California Supreme 

 

1

The SVPA was amended effective June 27, 2012, to reflect that the Department of 

Mental Health is now the Department of State Hospitals (DSH). (Stats. 2012, ch. 24, 

§§ 63, 65, 138-146, pp. 85, 117-124.)

2

Further statutory references are to the Welfare and Institutions Code unless 

otherwise noted.
2

Court denied Dixon‟s petition for review. (Dixon I, review den. June 20, 2012, 

S202569.) 

Meanwhile, the trial court on remand in McKee I held an evidentiary hearing on 

McKee‟s equal protection claim, rejected it, and committed him as an SVP. The Fourth 

District Court of Appeal affirmed, and the California Supreme Court denied review. 

(People v. McKee (2012) 207 Cal.App.4th 1325, 1347-1348, review den. Oct. 10, 2012, 

(McKee II).)

With the decision in McKee II final, the trial court committed Dixon to the custody 

of the DSH “as previously ordered.” Dixon filed a timely notice of appeal from the trial 

court‟s November 9, 2012 order. He contends that the amended SPVA violates his state 

and federal equal protection rights, and he urges us “not to accept the conclusions of 

McKee II.” We affirm. 

I. Background

Since the facts of Dixon‟s crimes are irrelevant to the issues he raises on appeal, 

we do not repeat them. 

II. Discussion

A. The SVPA and Proposition 83

The SVPA provides for the involuntary civil commitment of persons found to be 

SVP‟s beyond a reasonable doubt at trial. (People v. Williams (2003) 31 Cal.4th 757, 

764.) An SVP is “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).)

The SVPA as originally enacted provided for a two-year commitment, renewable 

for successive terms if the People proved beyond a reasonable doubt at a new trial that 
3

the committed person remained an SVP. (Former § 6604; Stats. 1995, ch. 763, § 3.) 

There were two ways an SVP could obtain review of his or her current mental condition 

to determine if civil confinement was still necessary. (People v. Cheek (2001) 25 Cal.4th 

894, 898 (Cheek).) Former section 6608 permitted the SVP to petition, without the 

concurrence of the DSH, for conditional release to a community treatment program. 

(Cheek, at p. 898.) Former section 6605, which called for an annual review of a 

committed SVP‟s mental status, provided a procedure that, with the concurrence of the 

DSH, could lead to unconditional release. (Cheek, at p. 898.)

The SVPA was amended in 2006 by Proposition 83. (McKee I, supra, 47 Cal.4th 

at p. 1183.) Among other modifications, “Proposition 83 . . . change[d] an SVP 

commitment from a two-year term to an indefinite commitment.” (McKee I, at p. 1186.) 

Under the amended SVPA, “[a]n SVP can only be released conditionally or 

unconditionally if the [DSH] authorizes a petition for release and the state does not 

oppose it or fails to prove beyond a reasonable doubt that the individual still meets the 

definition of an SVP, or if the individual, petitioning the court on his own, is able to bear 

the burden of proving by a preponderance of the evidence that he is no longer an SVP. In 

other words, the method of petitioning the court for release and proving fitness to be 

released, which under the former Act had been the way an SVP could cut short his twoyear commitment, now becomes the only means of being released from an indefinite 

commitment when the [DSH] does not support release.” (McKee I, at pp. 1187-1188.)

B. Equal Protection

Dixon claims the amended SVPA violates equal protection because it treats 

persons committed as SVP‟s more harshly than persons committed as mentally 

disordered offenders (MDO‟s) or found not guilty by reason of insanity (NGI‟s) are 

treated. He believes McKee II was wrongly decided, and he urges us not to accept its 

conclusions. We find his arguments unpersuasive.
4

Both the federal and state Constitutions guarantee the right to equal protection of 

the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) “ „ “ „The concept of the 

equal protection of the laws compels recognition of the proposition that persons similarly 

situated with respect to the legitimate purpose of the law receive like treatment.‟ ” 

[Citation.] “The first prerequisite to a meritorious claim under the equal protection clause 

is a showing that the state has adopted a classification that affects two or more similarly 

situated groups in an unequal manner.” [Citations.]‟ ” (McKee I, supra, 47 Cal.4th at 

p. 1218.) In McKee I, the California Supreme Court held that SVP‟s, MDO‟s (Pen. Code, 

§ 2960 et seq.), and NGI‟s (Pen. Code, § 1026 et seq.) are similarly situated. (McKee I,

at pp. 1203, 1207.) The court also concluded that McKee‟s disparate treatment claim 

required application of the strict scrutiny standard. (Id. at pp. 1197-1198.) “Because 

neither the People nor the court below properly understood this burden,” the McKee I

court decided, the People would have an opportunity to make the appropriate showing on 

remand. (Id. at pp. 1207-1208.) “It must be shown that, notwithstanding the similarities 

between SVP‟s and MDO‟s, the former as a class bear a substantially greater risk to 

society, and that therefore imposing on them a greater burden before they can be released 

from commitment is needed to protect society.” (Id. at p. 1208.) This could be shown in 

a variety of ways, the court explained, including by demonstrating that the “inherent 

nature of the SVP‟s mental disorder” makes recidivism by SVP‟s “significantly more 

likely,” or that “SVP‟s pose a greater risk to a particularly vulnerable class of victims.” 

(Ibid.) The court directed the People on remand “to justify Proposition 83‟s indefinite 

commitment provisions . . . 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.” (McKee I, at p. 1210.)

On remand, the trial court conducted a 21-day evidentiary hearing. (See McKee II,

supra, 207 Cal.App.4th at p. 1330.) Experts testified that SVP‟s have a higher risk of 

recidivism, that victims of sexual offenses suffer “unique and, in general, greater trauma” 
5

than victims of nonsex offenses, and that SVP‟s “are significantly different from MDO‟s 

and NGI‟s diagnostically and in treatment.” (Id. at pp. 1340-1347.) Concluding that this 

justified the disparate treatment of SVP‟s, the trial court rejected McKee‟s equal 

protection claim. (Id. at p. 1330.)

Applying the de novo standard of review, the Court of Appeal reviewed the 

evidence. (McKee II, supra, 207 Cal.App.4th at pp. 1340-1347.) The court concluded 

that “the People on remand met their burden to present substantial evidence, including 

medical and scientific evidence, justifying the amended Act‟s disparate treatment of 

SVP‟s (e.g., by imposing indeterminate terms of civil commitment and placing on them 

the burden to prove they should be released). (McKee [I], supra, 47 Cal.4th at p. 1207.) 

The People have shown that, „notwithstanding the similarities between SVP‟s and 

MDO‟s [and NGI‟s], the former as a class bear a substantially greater risk to society, and 

that therefore imposing on them a greater burden before they can be released from 

commitment is needed to protect society.‟ (Id. at p. 1208.) The People have shown „that 

the inherent nature of the SVP‟s mental disorder makes recidivism as a class significantly 

more likely[;] . . . that SVP‟s pose a greater risk [and unique dangers] to a particularly 

vulnerable class of victims, such as children‟; and that SVP‟s have diagnostic and 

treatment differences from MDO‟s and NGI‟s, thereby supporting a reasonable 

perception by the electorate that passed Proposition 83 that the disparate treatment of 

SVP‟s under the amended Act is necessary to further the state‟s compelling interests in 

public safety and humanely treating the mentally disordered. [Citation.]” (McKee II, at 

p. 1347.)

Dixon contends that the McKee II court failed to conduct a proper de novo review. 

He faults the court for discussing the prosecution‟s evidence only, “without any 

discussion of credibility or reliability.” 

Other courts have rejected this argument, and properly so. (E.g., People v. 

McKnight (2012) 212 Cal.App.4th 860, 864 [“McKnight‟s claim that the appellate court 
6

failed to independently review the trial court‟s determination is frivolous.”]; People v. 

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

1367, 1378, 1381.) The McKee I court remanded the case to allow the People to meet 

their burden of proving that the amended SVPA‟s disparate treatment of SVP‟s furthered 

a compelling state interest. (McKee I, supra, 47 Cal.4th at pp. 1197-1198.) After 

independently reviewing all of the evidence, the McKee II court concluded that “the 

disparate treatment of SVP‟s under the Act is reasonable and factually based and was 

adequately justified by the People at the evidentiary hearing on remand.” (McKee II,

supra, 207 Cal.App.4th at pp. 1339-1348.) We discern no error. 

Dixon next argues that the McKee II court misapplied the strict scrutiny test. He 

argues that “[i]t was not enough to simply show that the legislature or the voters could 

reasonably believe that SVPs were more dangerous as a class. The prosecution had to 

show that SVPs actually were more dangerous as a class.” We cannot agree. 

In remanding the case to the trial court, the high court stated that “the government 

has not yet shown that the special treatment of SVP‟s is validly based on the degree of 

danger reasonably perceived as to that group, nor whether it arises from any medical or 

scientific evidence. On remand, the government will have an opportunity to justify 

Proposition 83‟s indefinite commitment provisions, . . . 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.” (McKee I,

supra, 47 Cal.4th at p. 1210, italics added.) The McKee II court applied the strict 

scrutiny standard that the high court articulated in McKee I. (McKee II, supra, 207 

Cal.App.4th at pp. 1339-1348.)

Dixon next contends that “[t]he prosecution also had to show that the disparate 

treatment between SVPs, MDOs and NGIs was necessary to protect society.” Relying on 

Bernal v. Fainter (1984) 467 U.S. 216 (Bernal), he argues that “[t]he element of 
7

necessity under the strict scrutiny standard required that the prosecution show that the 

disparate treatment of SVPs constituted the least restrictive means possible.” 

McKee made the same argument, and the McKee II court rejected it. (McKee II,

supra, 207 Cal.App.4th at p. 1349.) In Bernal, the United States Supreme Court stated 

that “[i]n order to withstand strict scrutiny, the law must advance a compelling state 

interest by the least restrictive means available.” (Bernal, supra, 467 U.S. at p. 219.) The 

McKee II court described the quoted sentence from Bernal as “probable dictum,” 

distinguishing Bernal because it involved a suspect class, alienage. (McKee II, supra,

207 Cal.App.4th at p. 1349.) “We are unaware of any case applying the „least restrictive 

means available‟ requirement to all cases involving disparate treatment of similarly 

situated classes,” the McKee II court wrote. (Ibid.) “On the contrary, our review of equal

protection case law shows the two-part test, as discussed in [In re] Moye [(1978) 22 

Cal.3d 457 (Moye)] and McKee [I], is the prevailing standard. . . . Therefore, in 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.) 

We agree with the McKee II court‟s analysis of this issue. We note that Moye, like 

McKee II and like this case, involved an equal protection challenge to a civil commitment 

statute. The high court in McKee I specifically instructed the trial court, on remand, to 

“determine whether the People, applying the equal protection principles articulated in 

Moye and related cases discussed in the [McKee I court‟s] opinion,” could demonstrate 

that imposing a greater burden on SVP‟s than on MDO‟s or NGI‟s to obtain release from 
8

confinement was necessary to promote the state‟s compelling interest in public safety and 

humane treatment of the mentally ill. (McKee I, supra, 47 Cal.4th at p. 1208.) 

Dixon next contends that the evidence presented in McKee II did not support the 

court‟s determination that SVP‟s are more dangerous than MDO‟s or NGI‟s. He argues 

that the McKee II court “acknowledged that the prosecution had failed to show that SVPs 

had a higher sexual recidivism rate than MDOs or NGIs, but nevertheless concluded that 

the evidence „supports, by itself, a reasonable inference or perception that SVP‟s pose a 

higher risk of sexual reoffending than do MDO‟s or NGI‟s.‟ (McKee II, supra, at 

p. 1342, [e]mphasis in original.)” 

We reject the contention. The People were not required to show that SVP‟s are 

actually more dangerous as a class. In remanding the case, the McKee I court stated that 

“the government will have an opportunity to justify Proposition 83‟s indefinite 

commitment provisions . . . , 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. [¶] Moreover, we emphasize 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 

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

incontrovertible or uncontroversial.” (McKee I, supra, 47 Cal.4th at pp. 1210-1211, fn. 

omitted, italics added.) The McKee II court relied on evidence that scores on the Static99 test, which assesses the risk that a sex offender will commit sex offenses, were 

significantly higher for SVP‟s than for MDO‟s and NGI‟s. (McKee II, supra, 207 

Cal.App.4th at pp. 1340-1342.) It complied with the high court‟s directions.

Dixon next argues that the McKee II court arrived at the conclusion that victims of 

sexual abuse suffer greater trauma than victims of nonsex offenses “without any evidence 

regarding the trauma caused by non-sex offenses.” We cannot agree. The court relied on 

evidence that “[s]exual trauma differs qualitatively from other traumas because of its 
9

intrusiveness and long-lasting effects,” and that “[d]ysfunction, disassociation and 

avoidance problems after sexual trauma are unique to sexual abuse and are not seen in 

victims of physical or other types of abuse.” (McKee II, supra, 207 Cal.App.4th at 

pp. 1342-1343.)

Dixon next contends that there were three aspects of the amended SVPA under 

attack in McKee—indeterminate commitments, the elimination of periodic jury trials, and 

the shifting of the burden of proof to the committed person to prove that he or she is no 

longer an SVP. He complains that “[t]he evidence presented in McKee II addressed only 

the issue of indeterminate commitments.” This argument has no merit. The McKee II

court concluded, after independently reviewing all of the evidence, that “the disparate 

treatment of SVP‟s under the Act is reasonable and factually based and was adequately 

justified by the People at the evidentiary hearing on remand.” (McKee II, supra, 207 

Cal.App.4th at p. 1348.) The court‟s language is indisputably broad enough to 

encompass all of McKee‟s equal protection challenges. 

III. Disposition

The November 9, 2012 order committing Dixon to the custody of the DSH for an 

indeterminate term is affirmed.
10

___________________________

Mihara, J.

WE CONCUR:

_____________________________

Premo, Acting P. J.

_____________________________

Grover, J.