Filed 9/18/13 P. v. Shamon CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. SIMON SHAMON, Defendant and Appellant. D062137

(Super. Ct. No. MH105983)

APPEAL from an order of the Superior Court of Sa n Diego County, Charles G. Rogers, Judge. Affirmed. Chris Truax, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent. Simon Shamon appeals from an order under the Sexually Violent Predator Act (Act) (Welf. & Inst. Code, § 6600 et seq.) co mmitting him to the State Department of2 Mental Health, now State Department of St ate Hospitals, for treatment and confinement in a secured facility for an indeterminate term . He contends the court prejudicially erred by permitting the People's experts to testify he was "likely" to engage in "sexually violent predatory offenses" in the future as these are legal issues and th e experts' testimony invaded the jury's province. He add itionally contends, like the appellant in People v.
McKee (2010) 47 Cal.4th 1172 ( McKee I ), his indeterminate commitment violates equal protection principles. We conclude these co ntentions lack merit and affirm the order.
BACKGROUND To establish Shamon was a sexually violen t predator under the Act, the People had to prove Shamon had been convicted of a sexu ally violent offense against one or more victims. The parties stipulated Shamon prev iously pleaded guilty to and was imprisoned for forcible rape (Pen. Code , § 261, subd. (a)(2)) and forc ible rape by a foreign object (Pen. Code, § 289, subd. (a)(1)). The partie s do not dispute these crimes were sexually violent offenses and the cour t so instructed the jury. The People also had to prove Shamon wa s dangerous because he had a diagnosed mental disorder that made him "likely" to en gage in "sexually viol ent predatory offenses" in the future. Finally, the Peop le had to prove Shamon needed to be confined in a secure facility to ensure the health and safety of others. (Welf. & Inst . Code, § 6600, subd. (a)(1); Cooley v. Superior Court (2002) 29 Cal.4th 228, 24 3; CALCRIM No. 3454.) To meet their burden, the People offe red the testimony of tw o psychologists who evaluated Shamon. One diagnosed Shamon with schizoaffective disorder, exhibitionism, and polysubstance dependence. The other diagnosed Shamon with schizophrenia and3 methamphetamine abuse. Both opined Shamon met the statutory criteria for classification as a sexua lly violent predator. The doctors testified at length about th e bases for their opinions. These bases included: the nature of Shamon's mental illne ss as well as his relate d auditory and visual hallucinations and his unwillingness to voluntarily take medication; the details of his rape offenses; the details of his other assaultive c onduct before and during his incarceration; the fact his victims were strangers or casu al acquaintances; his hypersexuality or sexual preoccupation, lack of impulse control, an d disregard for consequences, as partially evidenced by his repeated viol ations of prison rules pros cribing indecent exposure and public masturbation; his past drug abuse and stated desire to resume abusing drugs upon his release; his history of superficial rela tionships; lack of age- or health-related impediments to reoffending; and the results of multiple actuarial assessments. Shamon countered with te stimony from three other psychologists who evaluated him. The first psychologist initially diagno sed Shamon with a para philic disorder not otherwise specified (NOS), nonconsenting female ; schizoaffective disorder, bipolar type; exhibitionism; methamphetamine dependence; and cannabis dependence. She also initially believed Shamon was a se xually violent predator. Sh e later reevaluated him and decided he did not have a para philic disorder and, therefor e, was not a sexually violent predator. The second psychologist also diagnosed Shamon with schizoaffective disorder, bipolar type as well as amphetamine depend ence. Although the second psychologist believed Shamon's disorder predisposed him to commit sexual offenses, she did not4 believe he was likely to commit another sexua lly violent predatory o ffense in the future because the information in Sh amon's records did not show Shamon preferred to have sex using force and violence. The third, independently retained psyc hologist likewise diagnosed Shamon with schizoaffective disorder and methamphetami ne dependence. She also diagnosed him with a cognitive disorder NOS and substa nce abuse NOS. However, she believed Shamon's mental disorder did not predispo se him to commit criminal sexual acts and, consequently, he was not likely to engage in sexual violent predatory behavior in the future.
DISCUSSION
I Expert Witness Testimony Claim Before trial, Shamon moved to prec lude the People from introducing expert testimony on whether Shamon's prior offenses were "predatory." The court denied the motion. On appeal, Shamon contends the court e rred by allowing the People's experts to testify he was "likely" to engage in "sexua lly violent predatory o ffenses" in the future because these are legal issues and the expe rts' testimony invaded the jury's province. 1

1 For the same reasons, he also contends a court should not allow an expert to testify a past offense is a "sexually violent offense. " He acknowledges, however, this is not an issue in this case because of the parties' stipula tion and the court's in struction regarding his prior offenses.5 We recently rejected this same contention in People v. Lowe (2012) 211 Ca l.App.4th 678 ( Lowe ). In reaching our conclusion in Lowe , we first noted "[e]xp ert opinion testimony is generally admissible if it relates to a subjec t sufficiently beyond common experience that the expert's opinion would assist the trier of fact. (Evid. Co de, § 801, subd. (a).) Expert opinion testimony is not inadmissible merely 'because it embraces the ultimate issue to be decided by the trier of fact.' (Evid. Co de, § 805.) As the California Supreme Court explained, 'There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issu e in the case. "We think the true rule is that admissibility depends on the nature of the issue and the ci rcumstances of the case, there being a large element of judicial discretion involved. . . . Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a pers on; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in." ' " ( Lowe , supra , 211 Cal.App.4th at p. 684, citing People v. Wilson (1944) 25 Cal.2d 341, 349.) We then acknowledged that expert opinion may not invade the jury's province and an expert may not express a general belief as to how the jury shou ld decide a case. ( Lowe , supra , 211 Cal.App.4th at p. 684.) Howe ver, we explained th is limitation does not "categorically preclude a qualified mental health expert from gi ving an opinion and explaining why a person meets or does not meet statutory criteria for classification as a sexually violent predator. [Citations.] The Act specifically contemplates the trier of fact6 will have the benefit of expert opinion and analysis. [Citation.] Such opinion and analysis is unquestionably help ful to the trier of fact as the diagnosis, treatment, and prognosis of people suffering from mental and personality disorders is well beyond common experience. Moreover, as we prev iously recognized, 'In civil commitment cases, where the trier of fact is required by statute to determine whether a person is dangerous or likely to be dangerous, expe rt prediction may be the only evidence available.' [Citations.]" ( Id . at pp. 684-685.) As in Lowe , the People's experts in this cas e did not merely express a general belief the jury should find Shamon to be a sexually violen t predator. They explained in extensive detail why they believed Shamon met the statutory criteria for this classification. Their explanations include references to Shamon's personal and social history, his substance abuse hi story, the circumstances of his prior rapes and assaults, his postincarceration conduct, actuarial assessme nt results, and other information gleaned during their interviews with him. In additi on, the People's expert s formed their opinions independently and, while they reached the same general c onclusion for the same general reasons, the specifics of their opinions varied. This variance, along with the contrasting opinions of Shamon's experts, required the jury to carefully evaluate the expert testimony and not, as Shamon suggests, mindlessly adopt the opinions of the People's experts. Accordingly, we conclude the court did not err by allowing the People's experts to testify7 why they believed Shamon was "likely" to engage in "sexually violent predatory
offenses" in the future. 2
II Equal Protection Claim Like the appellant in McKee I , supra , 47 Cal.4th 1172, Shamon contends his indefinite commitment under the Act violates equal protection principles because he is subject to a greater burden to obtain releas e than persons committe d under the Mentally Disordered Offenders Act (Pen . Code, § 2960 et seq.) or af ter being found not guilty by reason of insanity (Pen. Code, § 1026.5, su bd. (a)). The California Supreme Court did not decide this issue in McKee I . Instead, it remanded the matter to us and directed us to remand the matter to the trial court for an ev identiary hearing to determine whether the People could demonstrate a constitutionally su fficient basis for the disparate treatment of people committed as sexually violent predators. ( McKee I , supra , 47 Cal.4th at pp. 1208- 1209.) The trial court conducted the required he aring and determined the People met their burden of justifying the disparate treatment. We recently affirmed the trial court's decision on appeal. ( People v. McKee (2012) 207 Cal.App.4th 1325, 1330-1331 ( McKee II ).) Specifically, we stated "the disp arate treatment of [sexually violent predators] under the Act is reasonable and fa ctually based and was adequately justified by the People at the evidentiary hearing on remand. Accord ingly, we conclude the Act

2 Given our conclusion, we need not a ddress the People's assertion that Shamon forfeited portions of his arguments by failing to raise them below.8 does not violate McKee's constituti onal equal protection rights." ( Id. at p. 1348.) We based our conclusion on the People's evidence showing: (1) sexually violent predators bear a substantially greater risk to society than mentally di sordered offenders and people found not guilty by reason of insanity; (2) sexually violent predators are significantly more likely to recidivate; (3) sexually violen t predators pose a greater risk and unique dangers to particularly vulnerable victims, such as children; and (4) the diagnoses and treatment needs of sexually violent predator s differ from mentally disordered offenders and people found not guilty by reason of insanity. ( Id. at p. 1347.) Shamon contends we wrongly decided McKee II because we did not require the state to show commitment under the Act was th e least restrictive means of achieving the state's compelling interest. However, as we explained in McKee II , "We are unaware of any case applying the 'least restri ctive means available' require ment to all cases involving disparate treatment of similarly situated clas ses. On the contrary, our review of equal protection case law shows [the prevailing standard is a two-part test requiring the state to establish] both a compelling state interest ju stifying the disparate treatment and that the disparate treatment is necessary to further that compelling st ate interest. [Citations.]" ( McKee II , supra , 207 Cal.App.4th at pp. 1349-1350.) Shamon has not persuaded us that our analysis was flawed, and at least one ot her appellate court has agreed with it. ( People v. McDonald (2013) 214 Cal.App.4th 1367, 1380.) As our holding and reasoning in9 McKee II applies to this case as well, we conc lude Shamon's indeterminate commitment under the Act does not violate equal protection principles.
DISPOSITION The order is affirmed.

M C CONNELL, P. J.
WE CONCUR:

M C DONALD, J.

O'ROURKE, J.