Filed 9/24/13 P. v. Sanchez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MIKE SANCHEZ, Defendant and Appellant. H038849 (Santa Clara County Super. Ct. No. 210255)

Following a court trial, the court found true beyond a reasonable doubt that defendant Mike Sanchez was a sexually vi olent predator (SVP) under the Sexually Violent Predator Act (SVPA). (See Welf. & Inst. Code, § 6600 et seq.) 1 By order filed September 25, 2012, the court ordered him committed for an indeterminate term to the custody of the State Department of State Hospitals (Department). On appeal, Sanchez argues that he was not evaluated with a valid “standardized assessment protocol” as manda ted by section 6601, subdivisi on (c) and that the SVPA’s indeterminate commitment violates principles of equal protection. We hold that neither

of Sanchez’s claims is me ritorious, and we will therefore affirm the judgment.

1 All further statutory references are to the Welfare and Institutions Code unless otherwise specified.BACKGROUND This court summarized some of the proc edural background of Sanchez’s case in Langhorne v. Superior Court (2009) 179 Cal.App.4th 225, as follows: “Sanchez was

convicted of one count of lewd act on a child in both 1979 and 19 82. He was initially committed as a sexually violent predator in 2000. Thereafter, Sanchez was recommitted for additional two-year terms, with the mo st recent two-year commitment term extending to January 19, 2008. [Citation.] [¶] On June 8, 2007, before the expiration of the most recent two-year commitment peri od, the People filed a ‘moti on to retroactively apply an

indeterminate term to re spondent’ under the 2006 amendments to the SVPA. [ 2 ] The trial court granted the motion on Ju ly 19, 2007, and ordered that Sanchez be committed to the custody of the State Department of Mental Health [ 3 ] for an indeterminate term. Sanchez appealed, and this court reversed the or der imposing an indeterminate term of commitment in an opinion filed on July 10, 20 08. [Citation.]” ( Id. at pp. 230-231; see People v. Sanchez (July 10, 2008, H031856) [nonpub. opn.].) On June 4, 2008, while Sanchez’s appeal in case No. H031856 was pending, the People filed a petition to extend his commitm ent from the date his prior two-year term expired to “the term prescribed by law.” The petition was supported by evaluations from

2 The SVPA was amended twice in 2006 . Prior to those amendments, an individual determined to be an SVP was commi tted to the custody of the Department for a two-year term, which coul d be extended for additional two-year periods. (Former § 6604, as amended by Stats. 2000, ch. 420, § 3; former § 6604.1, as amended by Stats. 2000, ch. 420, § 4.) Pursuant to Senate Bill 1128 and Proposition 83, the SVPA was amended to provide for an indeterminate termof commitment, and the references to twoyear commitment terms and ex tended commitments in sections 6604 and 6604.1 were eliminated. (Stats. 2006, ch . 337, §§ 55, 56; see Cal. Cons t., art. II, § 10, subd. (a); §§ 6604, 6604.1.) 3 In 2012, “State Department of Stat e Hospitals” was substituted for “State Department of Mental Health” throughout the SVPA. (Stats. 2012, ch. 24, §§ 137-146.) We will use the term “Department” to refer to both the current a nd former Department.Steven R. Jenkins, Ph.D. a nd C. Mark Patterson, Ph.D.; the evaluations had been performed in March and April of 2008. A probable cause hearing was held on Janu ary 7, 2010 and January 21, 2010. At the hearing, the prosecutio n submitted updated evaluatio ns from Drs. Patterson and Jenkins; these evaluations ha d been performed in May of 2009. Drs. Patterson and Jenkins both testified at the probable cause hear ing. At the end of the hearing, the trial court found probable cause to believe Sanchez was an SVP. In May 2010, Sanchez moved to dism iss the petition on the basis that the

evaluators had not used a “s tandardized assessment protoc ol” as mandated by section 6601, subdivision (c). 4 The trial court denied the moti on to dismiss on July 15, 2010. A court trial began on September 14, 2012. Drs. Patterson and Jenkins both

testified at trial.

Drs. Patterson and Jenkins both diagnosed Sanchez with pedophilia, schizophrenia, and antisocial personality disorder. They bot h believed that due to these disorders, Sanchez had difficulty controlling hi s behavior and that he was predisposed to commit sexually violen t criminal acts. Dr. Patterson reviewed Sanchez’s history of sexually violent crimes, which began in 1965 when, at age 15, he so domized or attempted to sodomize his six-year-old brother. In 1979, Sanchez admitted ha ving molested at least 12 children. Following his conviction for digitally penetrating a six-year-o ld girl in 1978, Sanchez was sentenced to four years in prison. One year after his release from prison, he was rearrested for fondling and orally copulating a five-year-old boy, and he was sentenced to 11 years in prison. Following his release from prison fo r that offense, he violated parole by possessing cocaine and failing to re gister as a sex offender.

4 Below, Sanchez’s motion was heard colle ctively with similar motions filed by other SVP’s facing recommitment, and Sa nchez relied on declarations filed in one of those cases. We granted Sanchez’s motion for judicial notice of the declarations.Sanchez had acknowledged that he wo uld seek out locations where children congregated and select potential victims. He had reported having sexual fantasies about

children. Sanchez had only intermittently participated in sex offender treatment, and he

could not answer when he was asked how he would keep himself from reoffending if

released.

Drs. Patterson and Jenkins a ssessed Sanchez’s risk of reoffense using a number of different instruments. On the Static 99-R, a “widely used” actuarial tool, Sanchez scored in the group with the highest risk of reoffense. On the Static 2002-R, he again scored in the high risk group. On the Sex Offe nder Risk Appraisal Guide (SORAG), Sanchez scored in the “relatively high risk range.” On the Psychopathy Checklist (PCL-R), Sanchez scored with a “high degree of psychopathic pe rsonality traits.” On the Structured Risk Assessment, Sanchez sc ored high in several categories. Sanchez was age 62 at the time of tria l, and he suffered from some medical problems. Dr. Patterson acknowledged that ther e is a drop in recidivism after age 61. On September 25, 2012, the court found the petition true and ordered Sanchez committed to the custody of the Department for an indeterminate term. The order specified that it was “subject to the ultimate decision in” People v. McKee (2010) 47 Cal.4th 1172 ( McKee I ) and People v. McKee (2012) 207 Cal.App.4th 1325 ( McKee II ).

DISCUSSION A. Brief Overview of the SVPA The SVPA provides for the involuntary civil comm itment, for treatment and confinement, of an individual who is f ound by a unanimous jury verdict (§ 6603, subds. (e) & (f)), and beyond a reasonable doub t (§ 6604), to be a “sexually violent predator” ( ibid. ). The definition of an SVP is set fo rth in section 6600, subdivision (a)(1) as follows: “ ‘Sexually violent predator’ means a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mentaldisorder that makes the person a danger to the health and safe ty of others in that it is likely that he or she will engage in sexually violent criminal behavior.” The SVP commitment process “begins when the secretary of the Department of Corrections and Rehabilitation (D CR) determines that a pers on in custody because of a determinate prison sentence or parole revocation may be a sexually violent predator. If such an initial determination is made, the secr etary refers the inmate for an evaluation.” ( In re Lucas (2012) 53 Cal.4th 839, 845 ( Lucas ).) “After the secretary’s referral, the inmate is screened by the DCR and the Board [of Parole Hearings (Board)] to determine whether the person is likely to be an SVP. If the DCR and the Board conclude that is the case, the inmate is referred for full evaluation by the [Department]. (§ 6601, subd. (b).)” ( Ibid .) “A full evaluation is done by two practici ng psychiatrists or ps ychologists, or by one of each profession. (§ 6 601, subd. (d).) If one evaluato r concludes the inmate meets the SVP criteria, but the other evaluator disa grees, two more independent evaluators are appointed. (§ 6601, subd. (e).) A petition for commitment may not be requested unless the initial two evaluators appointed unde r subdivision (d), or the two independent evaluators appointed under s ubdivision (e), agree that the inmate meets the commitment criteria. (§ 6601 , subds. (d), (f).)” ( Lucas, supra, 53 Cal.4th at p. 845

. ) “If, after the full evaluation is completed, the [Department] concludes that the inmate is an SVP, the director of the [Department] requests th at a petition for commitment be filed by the district attorney or the county counsel of the coun ty where the inmate was convicted. If upon review that official concurs, a petition fo r commitment is filed in the superior court. (§ 6601, subds. (h), (i).)” ( Id . at p. 846.) With regard to the full evaluation prior to the filing of a petition, former section 6601, subdivision (c), as amended by section 26 of Proposition 83, pr ovided: “The State Department of Mental Health shall evaluate th e person in accordance with a standardized assessment protocol, develope d and updated by the State Depa rtment of Mental Health,to determine whether the person is a sexually violent predator as de fined in this article. The standardized assessment protocol sha ll require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, de gree, and duration of sexual deviance, and severity of

mental disorder.” A commitment petition proceeds to trial only if the requisite findings are made at a probable cause hearing. (See § 6602, subd. (a); Cooley v. Superior Court (2002) 29 Cal.4th 228.) “[T]he only purpose of the probable cause hearing is to test the sufficiency of the evidence suppor ting the SVPA petition. [Citation.]” ( Id . at p. 247.) “. . . If the judge determines that there is probable cause, the judge sha ll order that the person remain in custody in a secure facility until a trial is completed . . . .” (§ 6602, subd. (a).) At trial, the court or jury must “deter mine whether, beyond a reasonable doubt, the person is a sexually violent predator.” (§ 6604 .) If the court or jury determines that the person is a sexually violent predator, the pers on is committed for an indeterminate term. ( Ibid .; see fn. 2, supra. )

B. 2009 Assessment Protocol

Sanchez contends the trial court erre d by denying his motion to dismiss the petition, in which he ar gued that the evaluators did not use a “standardized assessment protocol” as mandated by sec tion 6601, subdivision (c).

1. The 2009 Protocol On February 11, 2009, the Department issued the “Standardized Assessment Protocol for Sexually Violent Predator Evalua tions” (2009 Protocol). The 2009 Protocol had been adopted at the time of Sanchez’s probable cause hearing in January 2010. The 2009 Protocol is six pages long. The protocol states in its introduction: “This protocol cannot prescribe in detail how the clinician exercises his or her independent professional judgment in the course of perfo rming SVP evaluations. Since the exerciseof independent, professional clinical judgment is required, this eval uation protocol is not, and cannot be, a detailed, precise step-by-step procedure like the kind of procedure that might apply to the chemical analys is of an unknown substance.”

Part I of the 2009 Protocol contains st atutory definitions of the terms “Sexually Violent Predator,” “Sexually violent offe nse,” “Diagnosed mental disorder,” and “Predatory.”

Part II of the 2009 Protoc ol is entitled “Referral Source,” and it describes the Department’s screening process. Part III of the 2009 Protocol is entitled, “Evaluator Prerequisites,” and it contains the requirements of section 6601, subdivision (d) [specifying that evaluations are to be performed by two practicing psyc hiatrists, two practicing psyc hologists, or one practicing psychiatrist and one practic ing psychologist] and sec tion 6601, subdivision (g) [specifying that if only one evaluator determ ines the person meets the SVP definition, a further examination must be conducted by tw o independent professi onals meeting certain criteria]. Part IV-A of the 2009 Protocol specifies the information that ev aluators must give to the potential SVP, as required by section 6601, subdivision (f). Part IV-B lists the risk factors that must be taken into account pursua nt to section 6601, subdivision (c) – that is, criminal history, psychosexual history, ty pe of sexual deviance, degree of sexual deviance, duration of sexual devi ance, and severity of mental disorder. Part IV-C states the inquiry that must be answ ered by each evaluator: “D oes the person being evaluated have a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody?” Part IV-D of the 2009 Protocol (codified in section 4005 of the California Code of Regulations, title 9) provides: “The evalua tor, according to his or her professional judgment, shall apply tests or instruments along with other static and dynamic risk factors when making the assessment. Su ch tests, instruments and risk factors must have gainedprofessional recognition or acce ptance in the field of diagno sing, evaluating or treating sexual offenders and be appropriate to the particular patient and applied on a case-bycase basis. The term ‘profe ssional recognition or acceptance’ as used in this Section means that the test, instrument or risk factor has undergone peer review by a conference, committee or journal of a pr ofessional organization in th e fields of psychology or psychiatry, including, but not limited to, the American Psychological Association, the American Psychiatric Association, and th e Association for the Treatment of Sexual

Abusers.” Part IV-E of the 2009 Protocol specif ies the process for updated evaluations as provided in section 6603, subdivision (c)(1 ). Part IV-F discusses several judicial opinions, including the United Stat es Supreme Court’s decision in Kansas v. Crane (2001) 534 U.S. 407 ( Crane ).

Part V of the 2009 Protocol explains what happens if the evaluation process results in agreement that the person is an SVP. In Part VI, the 2009 Protocol recommends that evaluators be “knowledgeable and familiar with literature, studies, and tests or instruments used in the field of evaluation and diagnosis of sex offenders, as well as the latest developments in these areas.” It also advises evaluators to, among other things, “ obtain, review, and consider all relevant

information and records that b ear upon the case and be prepared to testify and undergo cross examination regarding these sources of information and how they contributed to the

conclusions reached in the evaluation.” 2. Proceedings Below In his motion to dismiss the petition, Sa nchez argued that th e 2009 Protocol was not a “standardized assessment protocol” as required by section 6601, subdivision (c) because it “expressly eschews any specific pro cedures to be followe d or any designated

risk assessments or tests to be used.” He asserted the 2009 Protocol improperly “leave[s]

to the discretion of each evaluator which test s and instruments to use, and which staticand dynamic risk factors to consider.” Sanchez argued that the 2009 Protocol was invalid, that its use violated his right to du e process, and that the appropriate remedy was dismissal of the petition.

Sanchez’s motion to dismiss was supported by declarati ons from Robert L. Halon, Ph.D. and Richard Wollert, Ph.D. Dr. Halon expressed his opinion th at the 2009 Protocol

“does not describe a ‘standardized assessment protocol,’ as that term is understood in the scientific and psychological community becaus e adhering to the instructions contained therein cannot produce a reliable assessment, i.e., one which, using the same database, methods and procedur es, always achieves objective results, whatever th ey might be, with each individual being a ssessed.” Dr. Wollert expressed a similar opinion in his

declaration. The prosecution submitted op position to the motion to di smiss. The prosecution

noted that the term “standardiz ed assessment protocol” (§ 66 01, subd. (c)) is not defined in the statute. The prosecution argued th at by requiring a “standardized assessment protocol,” the Legislature “wanted evalua tions and assessments to follow the same general outline” but did not intend each evalua tor to follow “an iden tical routine.” The prosecution further argued th at “[b]ecause determination of SVP and mental disposition is a social science and not a hard science, the protocol must allow for professional judgment and discretion” and that a more detailed protocol would “likely create difficulties by improperly restricting the critical role professional judgment plays in any psychological forensic evaluation.” The prosecution further argued that even if the 2009 Protocol was invalid, the proper remedy was not dismissal of the petition. Instead, the proper remedy would be to order new evaluations under a valid protocol. In support of its opposition, the prosecutio n attached the transcript of a May 11, 2009 regulatory hearing held by the Department. The t opic of the hearing was the proposed adoption of section 4005 of the California Code of Regulations, title 9, which ispart of the 2009 Protocol and is quoted above. At the hearing, several speakers argued that the protocol should not be adopted beca use it did not give specific guidance to the

evaluators and would not en sure a uniform evaluation system. In its opposition to Sanchez’s motion, the prosecution argued th at the hearing transcript showed that Sanchez’s arguments had been considered but rejected. The prosecution’s opposition was furthe r supported by a declaration from Amy Phenix, Ph.D. Dr. Ph enix had been “tasked with de veloping the first Standardized Assessment Protocol,” and she had provided the Department with updates to the protocol. She opined that the 2009 Protocol “comports with the generally accepted definition of a ‘standardized assessment protocol.’ ” Her declaration described the training that SVP evaluators must go through, and she cited vari ous papers and guidelines for the principle

that SVP evaluators should use their professional judgment in selecting the tests or instruments for assessing a particular individual’s risk of reoffense.

The trial court denied Sanchez’s motion to dismiss, finding “t hat the 2009 protocol comports with the intentio n of the [L]egislature and comports with the accepted definition of the words, standardized assessme nt protocol. The 2009 protocol recognizes that individuals differ in psychological functi oning, issues of mental health and level of risk for sexual reoffense. In short the pr otocol acknowledges ps ychological complexities of each human being. As Dr. Ph enix says in her declaration, ‘. . . a rigid protocol would be to the detriment of good clinical judgment and accurate risk assessment.’ ” Because

the trial court found the 2009 Protocol was va lid, it also found Sanchez had not “suffered any due process violation.” 3. Analysis As he did below, Sanchez argues that th e 2009 Protocol is not a “standardized assessment protocol” as require d by section 6601, subdivision (c). He contends that use of the invalid protocol was a violation of due process.Citing to the Halon and Wollert declar ations, Sanchez contends that the 2009 Protocol is not a “standardized assessment pr otocol” as required by 6001, subdivision (c) because it does not specify a detailed or unif orm procedure for evalua tors to follow when performing SVP evaluations. According to Sanchez, a “standardized assessment protocol” for performing SVP evaluations wo uld list the types of records that are relevant, require each evaluator to collect a nd assess the same data , provide guidance on performing interviews, recommend particular actuarial instruments, and explain how to select comparison groups. Sanchez acknowledges that the 2009 Protocol does list specific risk factors that must be taken into account when de termining a person’s volitional control, but he claims the protocol is biased because all of the listed factors would only support a finding th at a person has serious difficu lty in controlling his or her

behavior. Sanchez also assert s that Dr. Phenix’s declarati on does not support a finding

that the 2009 Protocol is a valid “standard ized assessment protoc ol” because she had a clear bias due to her work developi ng protocols for the Department. The Attorney General notes that the phrase “standardized assessment protocol” is

not defined in section 6601 an d that nothing in that phrase “mandates a required level of detail.” The Attorney General argues that the 2009 Protocol does require “basic uniformity” in evaluations, by telling eval uators the legal requirements for SVP evaluations, requiring them to use risk asse ssment instruments that are accepted in the field, recommending that evaluators be knowle dgeable and familiar with developments in the field, and recommending that evaluators obtai n and consider all relevant information. The Attorney General contends deference is due to the Depa rtment’s determination that the need for evaluators to exercise indepe ndent professional judgment necessarily means that a detailed, step-by-step pr ocedure cannot be prescribed. We agree with the trial court that Sa nchez has not established that the 2009 Protocol is invalid. Sanchez has cited, a nd we have found, no legislative history supporting his assertion that the Legislature intended the phrase “sta ndardized assessmentprotocol” to conve y any specific degree of standardiz ation. (§ 6601 , subd. (c).) By specifying that the “standardi zed assessment protocol” be “developed and updated by the State Department of [State Hospitals]” ( ibid. ), the Legislature indicated that it was leaving the determination of detail and standa rdization to the Department. As the United States Supreme Court has recognized, “the Constitution’s safeguards of human liberty in

the area of mental illness and the law are not al ways best enforced through precise brightline rules,” and “the science of psychiatry, which informs but does not control ultimate legal determinations, is an eve r-advancing science . . . .” ( Crane, supra, 534 U.S. at p. 413.) And, as the California Supreme Court ha s recognized, the statutory scheme is designed to allow the evaluators to exercise their “ professional judgment . . . within a specified legal framework.” ( People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 910.) In line with that inte nt, the 2009 Protocol ensures that the evaluators have a “legally accurate understanding of the statut ory criteria,” which “is crucial to the Act’s proper operation.” ( Ibid .) Even assuming that the 2009 Protocol is not valid as a “standardized assessment protocol” (§ 6601, subd. (c)), Sanchez must sh ow that he was prejudiced in order to obtain relief. (See Reilly v. Superior Court (2013) 57 Cal.4th 641, 653 ( Reilly ).) In Reilly , the Supreme Court clarified that a defenda nt may obtain “relief arising from use of an invalid protocol in an SVP evaluation” only if he or she demonstrates that “the error was material.” ( Id. at p. 655.) That is, Sanchez can show prejudice only if there is “ ‘a reasonable probability, sufficient to undermine confidence in the outcome, that the error

affected the evaluator’s ultimat e conclusion’ ” or that the error “ ‘reasonably might have affected the outcome’ ” of the proceedings. (See id. at p. 656.) Here, the trial court found probable caus e to believe Sanchez was an SVP, and it ultimately found him to be an SVP at tria l, after hearing test imony about his sexually violent offenses, his diagnosed mental disorder s, his participation in treatment, and his high scores on numerous risk assessment tool s. Sanchez presente d no evidence tocontradict the testimony of the two evaluato rs, and he “does not contend the evidence was insufficient to support [the trial court’s] finding.” ( People v. Landau (2013) 214 Cal.App.4th 1, 17.) Under the circumstances, “[ t]here is no indication in this record” that the initial evaluations, conducted pursuant to the 2009 Prot ocol, “affected [Sanchez’s] trial.” (See People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 530.) In short, Sanchez has

failed to show that the use of the 2009 Protocol resulted in a material error ( Reilly, supra, 57 Cal.4th at p. 655), and thus we conclude he is not entitled to any relief. C. Equal Protection

Sanchez contends that the SVPA’s i ndeterminate commitment scheme violates principles of equal protection. In his repl y brief, he suggests th at he is entitled to a remand so he can have his equal protec tion claim “adjudicated on the merits.”

In McKee I, our Supreme Court addressed a claim that the indeterminate commitment scheme violated equal protection. The court determined that SVP’s and mentally disordered offenders (MDO’s; see Pen. Code, § 2960 et seq.) are similarly situated for equal protection purposes beca use they have been involuntarily committed with the objectives of treatment and protection of the public. ( McKee I, supra, 47 Cal.4th at p. 1203.) The court also determined th at SVP’s have “different and less favorable procedural protections” than MDO’s because “SVP’s under the amended [SVPA] are given indeterminate commitments and thereafter have the burden to prove they should be released (unless the [Departmen t] authorizes a petition for rele ase). In contrast, an MDO is committed for a one-year peri od and thereafter has the right to be released unless the People prove beyond a reasonabl e doubt that he or she shou ld be recommitted for another year.” ( Id . at p. 1202.) The court rejected the appellate court’s finding that “the legislative findings recited in the [Propositi on 83] ballot initiative” were sufficient to justify the disparate treatment of SVP’s and MDO’s. ( Id. at p. 1207.) The California Supreme Court found that SVP’s and individuals found not guilty by reason of insanity (NGI’s; see Pen. Code, § 1026 et seq.) are also similarly situatedand “a comparison of the two commitment re gimes raises similar equal protection problems . . . .” ( McKee I, supra, 47 Cal.4th at p. 1207.) Co nsequently, the court agreed with the Sanchez “that, as with MDO’s, the People have not yet carri ed their burden of justifying the differences between the SVP and NGI commitment statutes.” ( Ibid. ) However, in McKee I, the California Supreme Court did “not conclude that the People could not meet its burden of showi ng the differential treatment of SVP’s is justified.” ( McKee I, supra, 47 Cal.4th at p. 1207.) The court gave the People “an opportunity to make the appropriate showi ng on remand,” noting that the People would have to show 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 commitm ent is needed to protect society.” ( Id . at p. 1208.)

The McKee I court then remanded the case to the trial court with instructions “to determine whether the People . . . can dem onstrate the constitutional justification for imposing on SVP’s a greater burden than is imposed on MDO’s and NGI’s in order to obtain release from commitment.” ( McKee I, supra, 47 Cal.4th at pp. 1208-1209, fn. omitted.)

On remand in McKee I, “the trial court conducted an evidentiary hearing to determine whether the People could justify the [SVPA’s] disparate treatment of SVP’s under the strict scrutiny standard for equal pr otection claims. At the hearing, the People presented the testimony of eight witnesses a nd documentary evidence. The trial court also allowed McKee to present evidence; he presented the testimony of 11 witnesses and documentary evidence. The court issued a 35-page statement of decision summarizing the extensive testimonial and documentary ev idence presented at the hearing and finding the People had met their burden to establish, by a preponderance of the evidence, that the disparate treatment of SVP’s under the [SVP A] was based on a reasonable perception ofthe greater and unique dangers they pose compared to MDO’s and NGI’s.” ( McKee II,

supra, 207 Cal.App.4th at p. 1332.) McKee appealed, and Division One of the Fourth Appellate District affirmed the trial court’s order. ( McKee II, supra, 207 Cal.App.4th at pp. 1330-1331, 1350.) In McKee II, the appellate court explained that it would “independently determine whether the People presented substantial, factual evid ence to support a reasonable perception that SVP’s pose a unique and/or greater danger to society than do MDO’s and NGI’s, thereby justifying the disparate treatment of SVP’s under the [SVPA].” ( Id. at p. 1338.) After performing its independent review of the evidence presen ted in the 21-day evidentiary hearing held in the trial court, the McKee II court made several findings. First, with respect to recidivism, the court de termined that the expe rt witness testimony of three psychologists, as well several studies and the Static-99 data comparing recidivism rates, was sufficient to show th at “the inherent nature of the SVP’s mental disorder makes recidivism as a class significan tly more likely than recidivism of sex offenders generally, but does not show SVP’s have, in fact, a hi gher sexual recidivism rate than MDO’s and NGI’s. . . . Regardless of th e shortcomings or inadequacy of the evidence on actual sexual recidivism rates, the Static-99 evid ence . . . 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, 207 Cal.App.4th at p. 1342.) Second, the McKee II court considered whether the People had “presented

evidence that the victims of sex offenses suff er unique and, in general, greater trauma than victims of nonsex offenses.” ( McKee II, supra, 207 Cal.App.4th at p. 1342.) Based on the expert witness testimony, the court conclu ded that “there is substantial evidence to support a reasonable perception by the electorate, as a legislative body, that the harm caused by child sexual abuse and adult sexual assault is, in general, a greater harm than the harm caused by other offenses and is therefore deserving of more protection.” ( Id. at pp. 1343-1344.)Third, the McKee II court found that there was “subs tantial evidence to support a reasonable perception by the electorate that SV P’s have significantly different diagnoses from those of MDO’s and NGI’s, and that thei r respective treatment plans, compliance, and success rates are likewise significantly di fferent. That evidence and the evidence on recidivism . . . , as the trial court found, ‘s upports the conclusion that, as a class, SVP’s are clinically distinct from MDO’s and NGI’s and that those distinctions make SVP’s more difficult to treat and more likely to commit additional sexual offenses than are MDO’s and NGI’s.’ In particular, SVP’s are le ss likely to participate in treatment, less likely to acknowledge there is anything wrong with them, and more likely to be deceptive and manipulative. . . . Furthe rmore, there is substantial ev idence to support a reasonable

inference that an indeterminat e, rather than a determinate (e.g., two-year), term of civil commitment supports, rather than detracts from, the treatment plans for SVP’s.” ( McKee II, supra, 207 Cal.App.4th at p. 1347.) The appellate court therefore concluded in McKee II that “the People on remand met their burden to presen t substantial evidence, incl uding medical and scientific evidence, justifying the amended [SVPA’s] disparate treatment of SVP’s (e.g., by imposing indeterminate terms of civil comm itment and placing on them the burden to prove they should be released). [Citation.]” ( McKee II, supra, 207 Cal.App.4th at p. 1347.) The California Supreme Court denied review of McKee II on October 10, 2012, and therefore the proceedings on remand in McKee I are now final. Sanchez contends that “[t]he McKee II opinion contains three significant flaws”: it failed to properly conduct a de novo re view; it failed to properly apply the strict scrutiny test; and the facts it relied upon did not justify a disp arate treatment of SVP’s. First, we disagree with Sanchez’s claim that the McKee II court applied a

deferential standard of review rather than an independent standard of review. Sanchez acknowledges that the appellate court stated that it was conducting a de novo review ( McKee II, supra, 207 Cal.App.4th at p. 1338), but he points out that the appellate courtalso stated that it was determining “ ‘whetherthe People presented substantial evidence to support a reasonable inference or percep tion that the Act’s disparate treatment of SVP's is necessary to further compelli ng state interests.’ [Citations.]” ( Id. at p. 1338.) Having reviewed the opinion, we believe the McKee II court’s description of its review is consistent with an independent, de novo re view of the evidence, as well as with the Supreme Court’s opinion and directions in McKee I. We also note that the First District Court of Appeal rejected a similar challenge to McKee II, stating that the “claim that the appellate court failed to independently review the trial court’s determination is frivolous.” ( People v. McKnight (2012) 212 Cal.App.4th 860, 864.) Second, we reject Sanchez’s claim that the McKee II court in effect applied a

rational basis test rather than a strict scruti ny test in reviewing the evidence presented at the hearing. He claims that the court failed to properly analyze wh ether the distinctions between the SVPA and other involuntary commitment schemes were “necessary” to protect society, and he criticizes McKee II for analyzing only whether there was “a reasonable inference or perception” that SVP’s are more dangerous than MDO’s or NGI’s, rather than whether SVP’s are “actua lly” more dangerous than those groups. ( McKee II, supra, 207 Cal.App.4th at p. 1342.) We disagree that McKee II failed to apply strict scrutiny. The McKee II court referred to the issue as “whether the People presented substantial evidence to support a reasonable inference or perception that th e Act’s disparate treatment of SVP’s is

necessary to further compelling state interests. [Citations.]” ( McKee II, supra, 207 Cal.App.4th at p. 1339, italics added.) More over, the appellate court’s use of the phrase “reasonable inference or perception” ( ibid. ) reflects the California Supreme Court’s

remand instructions: in McKee I, the court stated, “On remand, the government will have an opportunity to justify Pr oposition 83’s indefinite co mmitment provisions . . . and demonstrate that they are based on a reasona ble perception of the unique dangers that SVP’s pose rather than a special stigma that SVP’s may bear in the eyes of California’selectorate.” ( McKee I, supra, 47 Cal.4th at p. 1210, fn. om itted.) Thus, in applying the strict scrutiny test, McKee II followed the language set forth in McKee I. Third, we do not agree with Sanch ez’s claim that the evidence at the McKee II trial did not support the appellate c ourt’s ruling. Sanchez makes several different contentions in this regard. For example, Sanch ez claims that the McKee II court erroneously concluded that “[t]he People presented evid ence showing the inherent nature of the SVP’s mental disorder makes recidivism as a class signifi cantly more likely for SVP’s than for MDO’s and NGI’s.” ( McKee II, supra, 207 Cal.App.4th at p. 1340.) He contends the appellate court did not examine any evidence comparing the sexual recidivism rate of SVP’s with the sexual recidivism rate of MDO’s and NGI’s. However, McKee II did rely in part on

evidence that the scores on the Static 99 test , which assesses the risk that a sex offender will commit new sex offenses, was higher for SVP’s than for non-S VP sex offenders. ( McKee II, supra, at pp. 1340-13 42.) Moreover, the McKee II court acknowledged that the evidence presented only showed that “the inherent nature of the SVP’s mental disorder makes recidivism as a class signifi cantly more likely than recidivism of sex offenders generally, but does not show SVP’s have, in fact, a higher sexual recidivism rate than MDO’s and NGI’s.” ( Id. at p. 1342.) The court found that the recidivism rate evidence was nevertheless “ ‘significant, given th at the goal of the SVPA is specifically to protect society from particularly serious se xual offenses,’ ” and that in any event, the Static 99 evidence did support “a reasonable inference or perception that SVP’s pose a higher risk of sexual reoffending than do MDO’s or NGI’s.” ( Ibid. ) In so concluding,

McKee II thus followed McKee I, where the California Supreme Court in McKee I suggested that evidence concerning a greater risk of recidivism by SV P’s was one type of evidence that the People might present to sh ow that “notwithsta nding the similarities between SVP’s and MDO’s, the former as a cl ass bear a substantially greater risk tosociety, and that therefore im posing on them a greater burden before they can be released

from commitment is needed to protect society.” ( McKee I, supra, 47 Cal.4th at p. 1208.)

Sanchez also claims that McKee II reached its conclusion that victims of sexual abuse suffer greater trauma without any eviden ce regarding the trau ma caused by non-sex offenses. We disagree. Th e evidence relied on by the McKee II court included testimony that “[s]exual trauma differs qualitatively fro m other traumas because of its intrusiveness and long-lasting effects,” and that “[d]ysfunc tion, 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.)

Sanchez further claims that the evidence concerning differences in diagnoses, treatment, compliance, and success rates be tween SVP’s and MDO’s or NGI’s did not support the conclusion in McKee II that harsher treatment of SVP’s was necessary. We are not persuaded by this argument. To the extent conflicting evidence was introduced at the trial, the People’s burden was to show that “the legislative distinctions in classes of persons subject to civil commitment are reas onable and factually based—not [that] they are incontrovertible or uncontroversial.” ( McKee I, supra, 47 Cal.4th at pp. 1210-1211; accord, McKee II, supra, 207 Cal.App.4th at p. 1348.) Lastly, Sanchez asserts that “there were three separate but related elements that were under attack in McKee’s equal protection challenge,” that is, the indeterminate term of commitment, the elimination of the right to a periodic jury trial, and the shifting of the burden of proof. Sanchez argues that the evidence presented in McKee II did not address the latter two issues. This argument is with out merit. Following independent review of the evidence, McKee II concluded that “the People on remand met their burden to present substantial evidence, including medical and sc ientific evidence, ju stifying the [SVPA’s] disparate treatment of SVP’s (e.g., by imposi ng indeterminate terms of civil commitment and placing on them the burden to prove they should be released ),” and that “the disparate treatment of SVP’s under the Act is reasonable and fact ually based and wasadequately justified by the People at the evidentiary hear ing on remand.” ( McKee II,

supra, 207 Cal.App.4th at pp. 1347, 1348.) In light of the Supreme Court’s clearly expressed intent to avoid an unnecessary multiplicity of proceedings, the Suprem e Court’s denial of review in McKee II, and our conclusions regarding the asserted flaws in McKee II, we find that Sanchez’s equal protection claims are without merit and do no t require a remand for a further evidentiary hearing.

DISPOSITION The judgment is affirmed.

_____________ _______________ _______________ BAMATTRE-MANOUKIAN, J.

WE CONCUR:

_____________ _____________ ELIA, ACTING P.J.

_____________ _____________ MÁRQUEZ, J.