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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 violent 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 mandated by section 6601, subdivision (c) and that the SVPA’s 

indeterminate commitment violates principles of equal protection. We hold that neither 

of Sanchez’s claims is meritorious, 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 procedural 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 1982. He was initially 

committed as a sexually violent predator in 2000. Thereafter, Sanchez was recommitted 

for additional two-year terms, with the most 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 period, the People filed a ‘motion to retroactively apply an 

indeterminate term to respondent’ under the 2006 amendments to the SVPA.[2]

 The trial 

court granted the motion on July 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 order imposing an indeterminate term of 

commitment in an opinion filed on July 10, 2008. [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 commitment 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 committed to the custody of the Department for 

a two-year term, which could 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 term of commitment, and the references to twoyear commitment terms and extended commitments in sections 6604 and 6604.1 were 

eliminated. (Stats. 2006, ch. 337, §§ 55, 56; see Cal. Const., art. II, § 10, subd. (a); 

§§ 6604, 6604.1.) 

3

 In 2012, “State Department of State 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 and former Department. 
Steven R. Jenkins, Ph.D. and C. Mark Patterson, Ph.D.; the evaluations had been 

performed in March and April of 2008. 

 A probable cause hearing was held on January 7, 2010 and January 21, 2010. At 

the hearing, the prosecution submitted updated evaluations from Drs. Patterson and 

Jenkins; these evaluations had been performed in May of 2009. Drs. Patterson and 

Jenkins both testified at the probable cause hearing. At the end of the hearing, the trial 

court found probable cause to believe Sanchez was an SVP. 

 In May 2010, Sanchez moved to dismiss the petition on the basis that the 

evaluators had not used a “standardized assessment protocol” as mandated by section 

6601, subdivision (c).4

 The trial court denied the motion 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 both believed that due to these 

disorders, Sanchez had difficulty controlling his behavior and that he was predisposed to 

commit sexually violent criminal acts. 

 Dr. Patterson reviewed Sanchez’s history of sexually violent crimes, which began 

in 1965 when, at age 15, he sodomized or attempted to sodomize his six-year-old brother. 

In 1979, Sanchez admitted having molested at least 12 children. Following his 

conviction for digitally penetrating a six-year-old 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 for that offense, he violated parole by 

possessing cocaine and failing to register as a sex offender. 

 4

 Below, Sanchez’s motion was heard collectively with similar motions filed by 

other SVP’s facing recommitment, and Sanchez 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 would 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 assessed 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 Offender 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 personality traits.” On the 

Structured Risk Assessment, Sanchez scored high in several categories. 

 Sanchez was age 62 at the time of trial, and he suffered from some medical 

problems. Dr. Patterson acknowledged that there 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 commitment, for treatment and 

confinement, of an individual who is found by a unanimous jury verdict (§ 6603, 

subds. (e) & (f)), and beyond a reasonable doubt (§ 6604), to be a “sexually violent 

predator” (ibid.). The definition of an SVP is set forth 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 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.” 

 The SVP commitment process “begins when the secretary of the Department of 

Corrections and Rehabilitation (DCR) determines that a person 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 secretary 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 practicing psychiatrists or psychologists, or by 

one of each profession. (§ 6601, subd. (d).) If one evaluator concludes the inmate meets 

the SVP criteria, but the other evaluator disagrees, two more independent evaluators are 

appointed. (§ 6601, subd. (e).) A petition for commitment may not be requested unless 

the initial two evaluators appointed under subdivision (d), or the two independent 

evaluators appointed under subdivision (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 that a petition for commitment be filed by the 

district attorney or the county counsel of the county where the inmate was convicted. If 

upon review that official concurs, a petition for 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, provided: “The State 

Department of Mental Health shall evaluate the person in accordance with a standardized 

assessment protocol, developed and updated by the State Department of Mental Health, 
to determine whether the person is a sexually violent predator as defined in this article. 

The standardized assessment protocol shall 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, degree, 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 supporting the SVPA petition. [Citation.]” (Id. at p. 247.) “. . . If the 

judge determines that there is probable cause, the judge shall 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 “determine 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 person is committed for an indeterminate term. 

(Ibid.; see fn. 2, supra.) 

B. 2009 Assessment Protocol 

 Sanchez contends the trial court erred by denying his motion to dismiss the 

petition, in which he argued that the evaluators did not use a “standardized assessment 

protocol” as mandated by section 6601, subdivision (c). 

1. The 2009 Protocol 

 On February 11, 2009, the Department issued the “Standardized Assessment 

Protocol for Sexually Violent Predator Evaluations” (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 performing SVP evaluations. Since the exercise 
of independent, professional clinical judgment is required, this evaluation protocol is not, 

and cannot be, a detailed, precise step-by-step procedure like the kind of procedure that 

might apply to the chemical analysis of an unknown substance.” 

 Part I of the 2009 Protocol contains statutory definitions of the terms “Sexually 

Violent Predator,” “Sexually violent offense,” “Diagnosed mental disorder,” and 

“Predatory.” 

 Part II of the 2009 Protocol 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 psychiatrists, two practicing psychologists, or one practicing 

psychiatrist and one practicing psychologist] and section 6601, subdivision (g) 

[specifying that if only one evaluator determines the person meets the SVP definition, a 

further examination must be conducted by two independent professionals meeting certain 

criteria]. 

 Part IV-A of the 2009 Protocol specifies the information that evaluators 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 pursuant to section 6601, subdivision (c) – that is, 

criminal history, psychosexual history, type of sexual deviance, degree of sexual 

deviance, duration of sexual deviance, and severity of mental disorder. Part IV-C states 

the inquiry that must be answered by each evaluator: “Does 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 evaluator, according to his or her professional 

judgment, shall apply tests or instruments along with other static and dynamic risk factors 

when making the assessment. Such tests, instruments and risk factors must have gained 
professional recognition or acceptance in the field of diagnosing, evaluating or treating 

sexual offenders and be appropriate to the particular patient and applied on a case-bycase basis. The term ‘professional 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 professional organization in the fields of psychology or 

psychiatry, including, but not limited to, the American Psychological Association, the 

American Psychiatric Association, and the Association for the Treatment of Sexual 

Abusers.” 

 Part IV-E of the 2009 Protocol specifies the process for updated evaluations as 

provided in section 6603, subdivision (c)(1). Part IV-F discusses several judicial 

opinions, including the United States 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 bear 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, Sanchez argued that the 2009 Protocol was 

not a “standardized assessment protocol” as required by section 6601, subdivision (c) 

because it “expressly eschews any specific procedures to be followed 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 tests and instruments to use, and which static 
and dynamic risk factors to consider.” Sanchez argued that the 2009 Protocol was 

invalid, that its use violated his right to due process, and that the appropriate remedy was 

dismissal of the petition. 

 Sanchez’s motion to dismiss was supported by declarations from Robert L. Halon, 

Ph.D. and Richard Wollert, Ph.D. Dr. Halon expressed his opinion that the 2009 Protocol 

“does not describe a ‘standardized assessment protocol,’ as that term is understood in the 

scientific and psychological community because adhering to the instructions contained 

therein cannot produce a reliable assessment, i.e., one which, using the same database, 

methods and procedures, always achieves objective results, whatever they might be, with 

each individual being assessed.” Dr. Wollert expressed a similar opinion in his 

declaration. 

 The prosecution submitted opposition to the motion to dismiss. The prosecution 

noted that the term “standardized assessment protocol” (§ 6601, subd. (c)) is not defined 

in the statute. The prosecution argued that by requiring a “standardized assessment 

protocol,” the Legislature “wanted evaluations and assessments to follow the same 

general outline” but did not intend each evaluator to follow “an identical routine.” The 

prosecution further argued that “[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 prosecution attached the transcript of a May 11, 

2009 regulatory hearing held by the Department. The topic of the hearing was the 

proposed adoption of section 4005 of the California Code of Regulations, title 9, which is 
part of the 2009 Protocol and is quoted above. At the hearing, several speakers argued 

that the protocol should not be adopted because it did not give specific guidance to the 

evaluators and would not ensure a uniform evaluation system. In its opposition to 

Sanchez’s motion, the prosecution argued that the hearing transcript showed that 

Sanchez’s arguments had been considered but rejected. 

 The prosecution’s opposition was further supported by a declaration from Amy 

Phenix, Ph.D. Dr. Phenix had been “tasked with developing 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 various 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 “that the 2009 protocol 

comports with the intention of the [L]egislature and comports with the accepted 

definition of the words, standardized assessment protocol. The 2009 protocol recognizes 

that individuals differ in psychological functioning, issues of mental health and level of 

risk for sexual reoffense. In short the protocol acknowledges psychological complexities 

of each human being. As Dr. Phenix 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 valid, it also found Sanchez had not “suffered 

any due process violation.” 

3. Analysis 

 As he did below, Sanchez argues that the 2009 Protocol is not a “standardized 

assessment protocol” as required 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 declarations, Sanchez contends that the 2009 

Protocol is not a “standardized assessment protocol” as required by 6001, subdivision (c) 

because it does not specify a detailed or uniform procedure for evaluators to follow when 

performing SVP evaluations. According to Sanchez, a “standardized assessment 

protocol” for performing SVP evaluations would list the types of records that are 

relevant, require each evaluator to collect and 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 determining a person’s 

volitional control, but he claims the protocol is biased because all of the listed factors 

would only support a finding that a person has serious difficulty in controlling his or her 

behavior. Sanchez also asserts that Dr. Phenix’s declaration does not support a finding 

that the 2009 Protocol is a valid “standardized assessment protocol” because she had a 

clear bias due to her work developing protocols for the Department. 

 The Attorney General notes that the phrase “standardized assessment protocol” is 

not defined in section 6601 and 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 evaluators the legal requirements for SVP 

evaluations, requiring them to use risk assessment instruments that are accepted in the 

field, recommending that evaluators be knowledgeable and familiar with developments in 

the field, and recommending that evaluators obtain and consider all relevant information. 

The Attorney General contends deference is due to the Department’s determination that 

the need for evaluators to exercise independent professional judgment necessarily means 

that a detailed, step-by-step procedure cannot be prescribed. 

 We agree with the trial court that Sanchez has not established that the 2009 

Protocol is invalid. Sanchez has cited, and we have found, no legislative history 

supporting his assertion that the Legislature intended the phrase “standardized assessment 
protocol” to convey any specific degree of standardization. (§ 6601, subd. (c).) By 

specifying that the “standardized 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 standardization 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 always best enforced through precise brightline rules,” and “the science of psychiatry, which informs but does not control ultimate 

legal determinations, is an ever-advancing science . . . .” (Crane, supra, 534 U.S. at p. 

413.) And, as the California Supreme Court has 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 intent, the 2009 Protocol ensures that the evaluators have a 

“legally accurate understanding of the statutory 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 show 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 defendant 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 ultimate 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 cause to believe Sanchez was an SVP, and it 

ultimately found him to be an SVP at trial, after hearing testimony about his sexually 

violent offenses, his diagnosed mental disorders, his participation in treatment, and his 

high scores on numerous risk assessment tools. Sanchez presented no evidence to 
contradict the testimony of the two evaluators, 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 Protocol, “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 indeterminate commitment scheme violates 

principles of equal protection. In his reply brief, he suggests that he is entitled to a 

remand so he can have his equal protection 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 because 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 that 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 [Department] authorizes a petition for release). In contrast, an MDO 

is committed for a one-year period and thereafter has the right to be released unless the 

People prove beyond a reasonable doubt that he or she should be recommitted for another 

year.” (Id. at p. 1202.) The court rejected the appellate court’s finding that “the 

legislative findings recited in the [Proposition 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 situated 
and “a comparison of the two commitment regimes raises similar equal protection 

problems . . . .” (McKee I, supra, 47 Cal.4th at p. 1207.) Consequently, the court agreed 

with the Sanchez “that, as with MDO’s, the People have not yet carried 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 showing 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 showing 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 commitment 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 demonstrate 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 protection claims. At the hearing, the People 

presented the testimony of eight witnesses and documentary evidence. The trial court 

also allowed McKee to present evidence; he presented the testimony of 11 witnesses and 

documentary evidence. The court issued a 35-page statement of decision summarizing 

the extensive testimonial and documentary evidence presented at the hearing and finding 

the People had met their burden to establish, by a preponderance of the evidence, that the 

disparate treatment of SVP’s under the [SVPA] was based on a reasonable perception of 
the 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 evidence 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 presented 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 determined that the expert witness testimony of 

three psychologists, as well several studies and the Static-99 data comparing recidivism 

rates, was sufficient to show that “the inherent nature of the SVP’s mental disorder makes 

recidivism as a class significantly 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. . . . Regardless of the shortcomings or inadequacy of the evidence on actual 

sexual recidivism rates, the Static-99 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, 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 suffer 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 concluded 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 “substantial evidence to support a 

reasonable perception by the electorate that SVP’s have significantly different diagnoses 

from those of MDO’s and NGI’s, and that their respective treatment plans, compliance, 

and success rates are likewise significantly different. That evidence and the evidence on 

recidivism . . . , as the trial court found, ‘supports 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 less likely to participate in treatment, less 

likely to acknowledge there is anything wrong with them, and more likely to be deceptive 

and manipulative. . . . Furthermore, there is substantial evidence to support a reasonable 

inference that an indeterminate, 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 present substantial evidence, including medical and scientific 

evidence, justifying the amended [SVPA’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). [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 review; it failed to properly apply the strict 

scrutiny test; and the facts it relied upon did not justify a disparate 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 court 
also stated that it was determining “ ‘whether the People presented substantial evidence 

to support a reasonable inference or perception that the Act’s disparate treatment of 

SVP's is necessary to further compelling 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 review 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 scrutiny test in reviewing the evidence presented at 

the hearing. He claims that the court failed to properly analyze whether 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 “actually” 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 the 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.) Moreover, 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 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, fn. omitted.) Thus, in applying the 

strict scrutiny test, McKee II followed the language set forth in McKee I. 

 Third, we do not agree with Sanchez’s claim that the evidence at the McKee II trial 

did not support the appellate court’s ruling. Sanchez makes several different contentions 

in this regard. 

 For example, Sanchez claims that the McKee II court erroneously concluded that 

“[t]he People presented evidence showing the inherent nature of the SVP’s mental 

disorder makes recidivism as a class significantly 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-SVP sex offenders. 

(McKee II, supra, at pp. 1340-1342.) 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 significantly 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 that the goal of the SVPA is specifically 

to protect society from particularly serious sexual 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 SVP’s was one type of 

evidence that the People might present 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 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 evidence regarding the trauma caused by non-sex 

offenses. We disagree. The evidence relied on by the McKee II court included testimony 

that “[s]exual trauma differs qualitatively from other traumas because of its 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.) 

 Sanchez further claims that the evidence concerning differences in diagnoses, 

treatment, compliance, and success rates between 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 reasonable 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 without 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 scientific evidence, justifying the [SVPA’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),” and 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. 1347, 1348.) 

 In light of the Supreme Court’s clearly expressed intent to avoid an unnecessary 

multiplicity of proceedings, the Supreme 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 not require a remand for a further evidentiary 

hearing. 

DISPOSITION 

 The judgment is affirmed. 

 ___________________________________________ 

 BAMATTRE-MANOUKIAN, J. 

WE CONCUR: 

__________________________ 

ELIA, ACTING P.J. 

__________________________ 

MÁRQUEZ, J.