Filed 9/18/13 P. v. Shamon CA4/1 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

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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 San Diego County, Charles G. 

Rogers, Judge. Affirmed. 

 Chris Truax, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane 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.) committing him to the State Department of 
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Mental Health, now State Department of State 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 the experts' testimony 

invaded the jury's province. He additionally 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 contentions lack merit and affirm the order. 

BACKGROUND 

 To establish Shamon was a sexually violent predator under the Act, the People had 

to prove Shamon had been convicted of a sexually violent offense against one or more 

victims. The parties stipulated Shamon previously pleaded guilty to and was imprisoned 

for forcible rape (Pen. Code, § 261, subd. (a)(2)) and forcible rape by a foreign object 

(Pen. Code, § 289, subd. (a)(1)). The parties do not dispute these crimes were sexually 

violent offenses and the court so instructed the jury. 

 The People also had to prove Shamon was dangerous because he had a diagnosed 

mental disorder that made him "likely" to engage in "sexually violent predatory offenses" 

in the future. Finally, the People 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, 243; CALCRIM No. 3454.) 

 To meet their burden, the People offered the testimony of two psychologists who 

evaluated Shamon. One diagnosed Shamon with schizoaffective disorder, exhibitionism, 

and polysubstance dependence. The other diagnosed Shamon with schizophrenia and 
3 

methamphetamine abuse. Both opined Shamon met the statutory criteria for 

classification as a sexually violent predator. 

 The doctors testified at length about the bases for their opinions. These bases 

included: the nature of Shamon's mental illness as well as his related auditory and visual 

hallucinations and his unwillingness to voluntarily take medication; the details of his rape 

offenses; the details of his other assaultive conduct before and during his incarceration; 

the fact his victims were strangers or casual acquaintances; his hypersexuality or sexual 

preoccupation, lack of impulse control, and disregard for consequences, as partially 

evidenced by his repeated violations of prison rules proscribing indecent exposure and 

public masturbation; his past drug abuse and stated desire to resume abusing drugs upon 

his release; his history of superficial relationships; lack of age- or health-related 

impediments to reoffending; and the results of multiple actuarial assessments. 

Shamon countered with testimony from three other psychologists who evaluated 

him. The first psychologist initially diagnosed Shamon with a paraphilic disorder not 

otherwise specified (NOS), nonconsenting female; schizoaffective disorder, bipolar type; 

exhibitionism; methamphetamine dependence; and cannabis dependence. She also 

initially believed Shamon was a sexually violent predator. She later reevaluated him and 

decided he did not have a paraphilic disorder and, therefore, was not a sexually violent 

predator. 

The second psychologist also diagnosed Shamon with schizoaffective disorder, 

bipolar type as well as amphetamine dependence. Although the second psychologist 

believed Shamon's disorder predisposed him to commit sexual offenses, she did not 
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believe he was likely to commit another sexually violent predatory offense in the future 

because the information in Shamon's records did not show Shamon preferred to have sex 

using force and violence. 

The third, independently retained psychologist likewise diagnosed Shamon with 

schizoaffective disorder and methamphetamine dependence. She also diagnosed him 

with a cognitive disorder NOS and substance abuse NOS. However, she believed 

Shamon's mental disorder did not predispose 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 preclude 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 erred by allowing the People's experts to 

testify he was "likely" to engage in "sexually violent predatory offenses" in the future 

because these are legal issues and the experts' 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' stipulation and the court's instruction regarding 

his prior offenses. 
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We recently rejected this same contention in People v. Lowe (2012) 211 Cal.App.4th 678 

(Lowe). 

In reaching our conclusion in Lowe, we first noted "[e]xpert opinion testimony is 

generally admissible if it relates to a subject sufficiently beyond common experience that 

the expert's opinion would assist the trier of fact. (Evid. Code, § 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. Code, § 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 issue in the case. "We think the true rule is that admissibility 

depends on the nature of the issue and the circumstances 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 person; 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 should decide a case. 

(Lowe, supra, 211 Cal.App.4th at p. 684.) However, we explained this limitation does 

not "categorically preclude a qualified mental health expert from giving 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 fact 
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will have the benefit of expert opinion and analysis. [Citation.] Such opinion and 

analysis is unquestionably helpful 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 previously 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, expert prediction may be the only evidence 

available.' [Citations.]" (Id. at pp. 684-685.) 

As in Lowe, the People's experts in this case did not merely express a general 

belief the jury should find Shamon to be a sexually violent 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 history, the circumstances of his prior rapes and assaults, his 

postincarceration conduct, actuarial assessment results, and other information gleaned 

during their interviews with him. In addition, the People's experts formed their opinions 

independently and, while they reached the same general conclusion 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 testify 
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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 release than persons committed under the Mentally 

Disordered Offenders Act (Pen. Code, § 2960 et seq.) or after being found not guilty by 

reason of insanity (Pen. Code, § 1026.5, subd. (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 evidentiary hearing to determine whether the 

People could demonstrate a constitutionally sufficient 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 hearing 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 disparate treatment of [sexually violent 

predators] under the Act is reasonable and factually based and was adequately justified 

by the People at the evidentiary hearing on remand. Accordingly, we conclude the Act 

 

2 Given our conclusion, we need not address the People's assertion that Shamon 

forfeited portions of his arguments by failing to raise them below. 
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does not violate McKee's constitutional 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 disordered offenders and people 

found not guilty by reason of insanity; (2) sexually violent predators are significantly 

more likely to recidivate; (3) sexually violent 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 predators 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 the 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 restrictive means available' requirement to all cases involving 

disparate treatment of similarly situated classes. 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 justifying the disparate treatment and that the 

disparate treatment is necessary to further that compelling state 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 other appellate court has agreed with it. (People 

v. McDonald (2013) 214 Cal.App.4th 1367, 1380.) As our holding and reasoning in 
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McKee II applies to this case as well, we conclude Shamon's indeterminate commitment 

under the Act does not violate equal protection principles. 

DISPOSITION 

 The order is affirmed. 

MCCONNELL, P. J. 

WE CONCUR: 

MCDONALD, J. 

O'ROURKE, J.