Filed 2/9/15 P. v. Whaley 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

GEORGE WHALEY,

Defendant and Appellant.

 H040068

 (Santa Clara County

 Super. Ct. No. 204226)

I. INTRODUCTION

Since 1999, defendant George Whaley has been committed as a sexually violent 

predator under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.;1

SVPA). (People v. Whaley (2008) 160 Cal.App.4th 779, 784 (Whaley).) The present 

appeal arises from the August 5, 2013 order finding true the allegation in the People’s 

most recent recommitment petition that he is a sexually violent predator within the 

meaning of section 6600 and directing that Whaley be committed to the Department of 

Mental Health for an indeterminate term.

On appeal, Whaley contends that (1) the 2013 amendments to section 6608, which 

provide that a committed person may not petition for unconditional discharge prior to a 

 

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

otherwise indicated.
2

minimum of one year on conditional release (former § 6608, subd. (k), now § 6608, 

subd. (m)), violate his constitutional rights to due process and equal protection; (2) this 

court should not follow the decision in People v. McKee (2012) 207 Cal.App.4th 1325 

(McKee II) that the SVPA does not violate a committed person’s constitutional right to 

equal protection; and (3) the current version of the SVPA violates the due process, ex 

post facto, and double jeopardy provisions of the California and United States 

Constitutions.

As we will further explain, we decline to address the issue of whether the 2013 

amendments to section 6608 violate defendant’s constitutional rights to due process and 

equal protection since those constitutional issues are not ripe for review. We find no 

merit in the remaining contentions on appeal and therefore we will affirm the August 5, 

2013 order.

II. FACTUAL AND PROCEDURAL BACKGROUND

The initial petition to commit Whaley as a sexually violent predator was filed in 

1998. (Whaley, supra, 160 Cal.App.4th at p. 788.) The petition was based on two 

qualifying convictions, the 1981 rape of a 16-year-old girl and forcible oral copulation on 

another inmate while Whaley was in jail for the rape conviction. (Ibid.) After a court 

trial, Whaley was found to be a sexually violent predator. He was committed to the 

custody of the Department of Mental Health for a period of two years. (Ibid.)

The People subsequently filed several petitions to extend Whaley’s commitment. 

As a result, Whaley was recommitted for additional two-year terms from January 28, 

2001 to January 28, 2003; January 28, 2003 to January 28, 2005; and January 28, 2005 to 

January 28, 2007. (Whaley, supra, 160 Cal.App.4th at p. 788.)

On January 2, 2007 the People filed a petition to extend Whaley’s commitment. 

(Whaley, supra, 160 Cal.App.4th at p. 788.) In May 2007, the People filed a motion 

seeking to retroactively convert Whaley’s initial commitment as a sexually violent 

predator from a two-year term to an indeterminate term, pursuant to the 2006 
3

amendments to sections 6604 and 6604.1 of the SPVA by Senate Bill No. 1128 (2005-

2006 Reg. Sess.) and by Proposition 83. (Whaley, supra, at p. 788.) The trial court 

granted the motion and on May 24, 2007, ordered that Whaley’s term of commitment be 

indeterminate retroactive to the initial commitment order. (Id. at p. 790.) Whaley 

appealed and this court reversed the order after determining that the 2006 amendments to 

sections 6604 and 6604.1 providing for an indeterminate term of commitment applied 

prospectively. (Whaley, supra, 160 Cal.App.4th at pp. 803-805.)

In April 2012 the People filed an amended January 2, 2007 petition to recommit 

Whaley as a sexually violent predator from January 28, 2007, to the term prescribed by 

law. After a court trial, the trial court issued its August 5, 2013 order finding true the 

allegations in the petition that Whaley was a sexually violent predator within the meaning 

of section 6600 and directing that Whaley be committed to the Department of Mental 

Health for an indeterminate term.

Whaley subsequently filed a timely notice of appeal from the August 5, 2013 

commitment order. In this appeal Whaley does not challenge the trial court’s finding that 

he meets the statutory criteria for commitment as a sexually violent predator. For that 

reason, we have not provided a summary of the evidence presented at the court trial.

III. DISCUSSION

A. Due Process Challenge to 2013 Amendments to Section 6608

Defendant contends that his constitutional rights to due process and equal 

protection are violated by the 2013 amendments to section 6608 because now “the only 

way for [a committed] person to be unconditionally discharged is to successfully be 

placed in a conditional release program, and remain in that program for a full year.”

1. Unconditional Discharge under the SVPA

In 2013, the SVPA “specifie[d] two different procedures, in sections 6605 and 

6608, for determining whether the mental condition of a person committed as an SVP has 

improved sufficiently to entitle the person to either conditional release in a community-
4

based facility or unconditional release.” (People v. Smith (2013) 212 Cal.App.4th 1394, 

1399 (Smith).)

Former section 6605 (now § 6604.9) applied when the State Department of Mental

Health (now, State Department of State Hospitals; hereafter the Department) had 

determined, in conjunction with its annual report, that the committed person no longer 

met the definition of a sexually violent predator or conditional release was in the best 

interests of the person. (People v. McKee (2010) 47 Cal.4th 1172, 1187 (McKee I). 

When either determination was made by the Department, former section 6605, 

subdivision (b) mandated that “ ‘the director shall authorize the person to petition the 

court for conditional release to a less restrictive alternative or for an unconditional 

discharge.’ ” (McKee I, supra, at p. 1187.)

The SVPA previously provided that where the Department did not authorize the 

committed person to apply for conditional release, the committed person could file a 

petition for conditional release without Department authorization. (former § 6608, 

subd. (a);2see Smith, supra, 212 Cal.App.4th at pp. 1400-1401.)

The Legislature amended section 6608 in 2013. (Stats. 2013, ch. 182, § 3.) 

Effective January 1, 2014, former section 6608, subdivision (k) (now § 6608, subd. (m)) 

provided: “After a minimum of one year on conditional release, the committed person, 

with or without the recommendation or concurrence of the Director of State Hospitals, 

may petition the court for unconditional discharge. The court shall use the procedures 

described in subdivisions (a) and (b) of Section 6605 to determine if the person should be 

unconditionally discharged from commitment on the basis that, by reason of a diagnosed 

 

2

Former section 6608, subdivision (a) provided in part: “Nothing in this article 

shall prohibit the person who has been committed as a sexually violent predator from 

petitioning the court for conditional release or an unconditional discharge without the 

recommendation or concurrence of the Director of State Hospitals.”
5

mental disorder, he or she is no longer a danger to the health and safety of others in that it 

is not likely that he or she will engage in sexually violent criminal behavior.”

2. Analysis

The People ask that we decline to address these constitutional issues because 

defendant’s appeal is from the August 5, 2013 commitment order, and not from any 

determination under the SVPA’s post-commitment release procedures as set forth in 

sections 6605 and 6608, and therefore the issues are not ripe.

According to defendant, the issues are ripe for review because his constitutional 

rights to due process and equal protection are violated under the 2013 amendments to 

section 6608 since no committed person may petition for unconditional discharge without 

Department authorization before undergoing one year on conditional release. He asserts 

that any petition for unconditional discharge that is filed before the committed person has 

been on conditional release for one year will be dismissed. Defendant also argues that 

the constitutional issues should be decided now because future litigation of a petition for 

unconditional discharge will result in an extension of his time in custody although he is 

not a sexually violent predator.

Additionally, defendant asserts that because the California Supreme Court’s ruling

in McKee I, supra, 47 Cal.4th 1172 that an indeterminate term of commitment under the 

SVPA did not violate process was based on a prior version of section 6608, the reasoning 

of McKee I does not apply to the current issue of whether the 2013 amendments to 

section 6608 violate due process.

We agree with the People that the issue is not ripe for review. “The ripeness 

requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely 

advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role 

of the judiciary does not extend to the resolution of abstract differences of legal opinion. 

It is in part designed to regulate the workload of courts by preventing judicial 

consideration of lawsuits that seek only to obtain general guidance, rather than to resolve 
6

specific legal disputes. However, the ripeness doctrine is primarily bottomed on the 

recognition that judicial decisionmaking is best conducted in the context of an actual set 

of facts so that the issues will be framed with sufficient definiteness to enable the court to 

make a decree finally disposing of the controversy.” (Pacific Legal Foundation v. 

California Coastal Com. (1982) 33 Cal.3d 158, 170.)

The ripeness requirement applies to constitutional issues. “A fundamental and 

longstanding principle of judicial restraint requires that courts avoid reaching 

constitutional questions in advance of the necessity of deciding them. [Citations.]” 

(Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439, 445-446; Santa 

Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230-

231 [same].) Under “our constitutional system courts are not roving commissions 

assigned to pass judgment on the validity of the Nation’s laws. [Citation.] Constitutional 

judgments . . . are justified only out of the necessity of adjudicating rights in particular 

cases between the litigants brought before the Court.” (Broadrick v. Oklahoma (1973)

413 U.S. 601, 610-611.)

Thus, “[i]t is well-settled law that the courts will not give their consideration to 

questions as to the constitutionality of a statute unless such consideration is necessary to 

the determination of a real and vital controversy between the litigants in the particular 

case before it.” (People v. Perry (1931) 212 Cal. 186, 193 (Perry).) In other words, 

“[o]ne who seeks to raise a constitutional question must show that his rights are affected 

injuriously by the law which he [or she] attacks and that he [or she] is actually aggrieved 

by its operation. [Citations.]” (People v. Williams (1966) 247 Cal.App.2d 169, 170; see 

also People v. Carroll (2007) 158 Cal.App.4th 503, 508, fn. 2 [declining to issue advisory 

opinion on the constitutionality of § 6605, subd. (d) of the SVPA].)

In the present case, defendant has appealed from the August 5, 2013 order finding 

him to be a sexually violent predator within the meaning of section 6600 and directing 

that he be committed to the Department of Mental Health for an indeterminate term. 
7

Defendant has not appealed from an order or judgment arising from a petition for 

unconditional discharge under former section 6608, subdivision (k) (now § 6608, 

subd. (m)). Accordingly, defendant has not shown that he has been aggrieved by the 

operation of section 6608 or that consideration of the constitutionality of section 6608 is 

necessary to the determination of a real and vital controversy arising from the August 5, 

2013 order. (See Perry, supra, 212 Cal. at p. 193.) We therefore decline to issue an 

advisory opinion on the issue of whether the provision of former section 6608, 

subdivision (k) (now § 6608, subd. (m)) requiring a committed person to undergo one 

year of conditional release before filing a petition for conditional release without 

Department authorization violates defendant’s constitutional rights to due process and 

equal protection.

B. Equal Protection Challenge to the SVPA

Defendant contends that a commitment for an indeterminate term under the SVPA 

violates the equal protection clauses of the federal and state Constitutions. Defendant 

acknowledges that his equal protection argument was rejected in McKee II, supra, 207 

Cal.App.4th 1325 and also rejected in subsequent appellate court decisions, including: 

People v. McDonald (2013) 214 Cal.App.4th 1367 (McDonald), People v. Landau (2013) 

214 Cal.App.4th 1 (Landau), People v. McCloud (2013) 213 Cal.App.4th 1076, and 

People v. McKnight (2012) 212 Cal.App.4th 860 (McKnight). He states that he wishes to 

preserve his equal protection claim for federal review and therefore makes an abbreviated 

argument on the issue. Our analysis of the issue will be similarly brief in light of 

defendant’s statement that he has raised the issue solely for purposes of federal review.

1. 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 a sexually violent predator (SVP) is set forth in 
8

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 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. The individual’s term of commitment 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.)

On September 20, 2006, the Governor signed into law Senate Bill No. 1128, 

which amended the SVPA effective immediately. (Stats. 2006, ch. 337, § 62.) Among 

other changes, the amended SVPA provided for an indeterminate term of commitment, 

and the references to two-year commitment terms and extended commitments in 

sections 6604 and 6604.1 were eliminated. (Stats. 2006, ch. 337, §§ 55, 56.)

Less than two months later, voters approved Proposition 83, which amended the 

SVPA effective November 8, 2006. (See Cal. Const., art. II, § 10, subd. (a).) Like 

Senate Bill No. 1128, Proposition 83 amended the SVPA to provide that an SVP’s

commitment term is “indeterminate.” (§ 6604; see § 6604.1.) Proposition 83 also 

eliminated all references to a two-year term of commitment and most references to an 

extended commitment in sections 6604 and 6604.1. Thus, a person found to be an SVP 

under the SVPA is now subject to an indeterminate term of involuntary civil 

commitment. (Whaley, supra, at pp. 785-787.)

2. McKee I

In McKee I, the California Supreme Court considered the defendant’s argument 

that his indeterminate commitment under the SVPA violated his equal protection rights 

because the SVPA treats SVP’s significantly less favorably than similarly situated 
9

individuals who are civilly committed under other statutes. (McKee I, supra, 47 Cal.4th 

at p. 1196.)

The California Supreme Court first determined in McKee I that SVP’s and 

mentally disordered offenders (MDO’s) 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 found that SVP’s and those who had been adjudged not guilty by reason of 

insanity (NGI’s) are similarly situated and “a comparison of the two commitment regimes 

raises similar equal protection problems . . . .” (Id. at p. 1207.) Consequently, the court 

agreed with the defendant “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, the California Supreme Court did “not conclude that the People could 

not meet [their] burden of showing the differential treatment of SVP’s is justified.” 

(Ibid.) 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 remanded the case to the trial court with instructions to, among 

other things, “determine whether the People, applying the equal protection principles 

articulated in [In re Moye (1978) 22 Cal.3d 457] and related cases . . . 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.)

3. McKee II

On remand from McKee I, “the trial court conducted an evidentiary hearing to 

determine whether the People could justify the [SVPA’s] disparate treatment of SVP’s 
10

under the strict scrutiny standard for equal protection claims. . . . 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 (McKee II, supra, 207 Cal.App.4th at p. 1330), 

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 

sexually violent predators posed a higher risk of recidivism than MDO’s or NGI’s. (Id. at 

p. 1342.)

Second, the McKee II 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.” 

(McKee II, supra, 207 Cal.App.4th 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, 
11

and success rates are likewise significantly different. . . . 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.) Accordingly, the trial court’s order rejecting the defendant’s equal protection 

claim and affirming his indeterminate commitment under the SVPA was upheld. (Id. at 

p. 1350.) The California Supreme Court denied review of McKee II on October 10, 2012, 

and therefore the proceedings on remand from McKee I are now final.

4. Analysis

Defendant urges this court not to follow McKee II and to undertake an 

independent analysis of the equal protection issue because (1) the McKee II court failed 

to properly conduct a de novo review, (2) the McKee II court misapplied the strict 

scrutiny test, (3) the McKee II court’s factual analysis was flawed; and (4) the McKee II 

court did not analyze “the electorate’s real reasons for changing the SVP law.”

First, defendant claims that the McKee II court applied a deferential standard of 

review rather than an independent standard of review. Defendant 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 asserts that the court actually performed a substantial 

evidence review.

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. After the McKee I court 
12

remanded the case, the McKee II court independently reviewed all of the evidence and 

concluded that “the disparate treatment of SVP’s under the [SVPA] 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.) We discern no error. 

Additionally, we note that other courts have rejected a similar challenge to McKee II.

(See McKnight, supra, 212 Cal.App.4th at p. 864 [finding that the “claim that the 

appellate court failed to independently review the trial court’s determination is 

frivolous”]; Landau, supra, 214 Cal.App.4th at pp. 47-48; McDonald, supra, 214 

Cal.App.4th at pp. 1378, 1381.)

Second, we reject defendant’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 criticizes McKee II for analyzing only whether “the electorate may have 

reasonably believed that SVPs were more dangerous.”

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 [SVPA’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.

Moreover, we agree with the McKee II court’s statement that “[w]e are 

unpersuaded the electorate that passed Proposition 83 in 2006 was required to adopt the 
13

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, supra, 

207 Cal.App.4th at p. 1349.) Given the evidence presented in McKee II – that the vast 

majority of SVP’s are diagnosed with pedophilia or other paraphilias, that a paraphilia 

ordinarily persists throughout a patient’s lifetime, that treatment is not focused on 

medication, and that most SVP’s do not participate in treatment (id. at pp. 1344-1345) –

we have no basis for concluding that an indeterminate term is not necessary to further the 

compelling state interest in providing treatment to SVP’s and protecting the public or that 

there is any less burdensome alternative to effectuate those interests.

Third, we disagree with defendant’s contention that “[t]he McKee II court’s factual 

analysis was also flawed because it did not show how the factual findings connected to 

the necessity for the indeterminate commitment.” As we have discussed, the McKee II 

court conducted a proper de novo review, which followed the Supreme Court’s opinion 

and direction in McKee I. The court determined whether there was substantial evidence 

that “ ‘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.’ ” (McKee II, supra, 

207 Cal.App.4th at p. 1347; see also McKnight, supra, 212 Cal.App.4th at p. 863.) 

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 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),” and that “the disparate treatment of SVP’s under the 

[SVPA] 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.)
14

Finally, defendant contends that the McKee II court erred in failing to “analyze the 

electorate’s real reasons for changing the SVP law.” He explains that “[a] review of the 

arguments in favor of Proposition 83 in the Voter’s Guide shows that none of the alleged 

facts upon which the McKee II court relied were placed in front of the voters as reasons 

for adopting the law.” We find no merit in this contention, since, as we have discussed, 

the McKee II court’s analysis was consistent with the remand instructions of the 

California Supreme Court in McKee I: “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.)

Therefore, 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 

defendant’s equal protection claims are without merit.

C. Other Constitutional Challenges

Lastly, defendant contends that the SVPA, as amended in 20063to provide for an 

indeterminate term of commitment and as amended in 2013 regarding the procedure for 

unconditional release (Stats. 2013, ch. 182, § 3), violates the due process, ex post facto

and double jeopardy clauses. He acknowledges that the California Supreme Court has 

rejected due process, ex post factor and double jeopardy challenges to the SVPA in 

McKee I, supra, 47 Cal.4th 1172, but states that our Supreme Court erred and he wishes 

to preserve these issues for federal review.

 

3 As we have noted, the SVPA was amended twice in 2006, by Senate Bill 1128 

(Stats. 2006, ch. 337), and by Proposition 83 (see Cal. Const., art. II, § 10, subd. (a)).
15

1. Due Process

In McKee I, the Supreme Court determined that a person subject to an indefinite

commitment under the amended SVPA is not deprived of due process because he or she 

has the burden, after the initial commitment, to show by a preponderance of the evidence 

that he or she no longer meets the statutory criteria for commitment as an SVP. 

(McKee I, supra, 47 Cal.4th at p. 1191.) The McKee I court also found no merit in the 

contention that the trial court’s discretion to deny as frivolous a committed person’s 

petition for conditional release pursuant to section 6608, subdivision (a) violates due 

process. (McKee I, supra, at p. 1192.) Finally, the McKee I court construed the amended 

SVPA to implicitly provide for the appointment of a state-funded mental health expert 

when a committed person petitions for release under section 6608, subdivision (a), and 

that as so construed, “it does not violate the due process clause.” (McKee I, supra, at 

p. 1193.)

Defendant contends that the ability of a committed person to petition for 

unconditional release under section 6608 is not an adequate remedy for a due process 

violation. However, in McKee I the Supreme Court stated, “We construe statutes when 

reasonable to avoid difficult constitutional issues. [Citation.] After Proposition 83, it is 

still the case that an individual may not be held in civil commitment when he or she no 

longer meets the requisites of such commitment. An SVP may be held, as the United 

States Supreme Court stated under similar circumstances, ‘as long as he is both mentally 

ill and dangerous, but no longer.’ [Citation.]” (McKee I, supra, 47 Cal.4th at p. 1193.)

Accordingly, based on the decision in McKee I, supra, 47 Cal. 4th 1172, we 

conclude that the current version of the SVPA does not violate the due process clause.

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity 

Sales).)
16

2. Ex Post Facto and Double Jeopardy

Defendant contends that the amended SVPA violates the ex post facto and double 

jeopardy clauses of the California and United States Constitution because he “has already 

been convicted and sentenced for his crimes.” This contention has no merit.

In McKee I, the California Supreme court reiterated its decision in Hubbart v. 

Superior Court (1999) 19 Cal.4th 1138 that the SVPA was not punitive because it had 

two nonpunitive objectives, “treatment for the individual committed and protection of the 

public.” (McKee I, supra, 47 Cal.4th at p. 1194.) After examining the amended SVPA, 

the McKee I court determined that “the Proposition 83 amendments at issue here cannot 

be regarded to have changed the essentially nonpunitive purpose of the [SVPA],” and 

therefore that the amended SVPA does not violate the ex post facto clause. (Ibid.)

In light of the California Supreme Court’s holding in McKee I that the amended 

SVPA is not punitive in nature, defendant’s double jeopardy claim is likewise without 

merit. (See People v. Carlin (2007) 150 Cal.App.4th 322, 348, italics omitted [California 

Supreme Court’s determination that SVPA is not punitive “ ‘removes an essential 

prerequisite for both . . . double jeopardy and ex post facto claims’ ”].)

We therefore find that the SVPA does not violate the ex post facto or double 

jeopardy clauses of the United States Constitution. (Auto Equity Sales, supra, 57 Cal.2d 

at p. 455.)

IV. DISPOSITION

The judgment is affirmed.
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BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

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MIHARA, J.

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MÁRQUEZ, J.