1

Filed 10/26/15 P. v. Nelson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVE CLEMENT NELSON,

Defendant and Appellant.

 A138885

 (Sonoma County

 Super. Ct. No. SCR34147)

Steve Clement Nelson appeals from an order of commitment upon a jury verdict 

finding him to be a sexually violent predator (SVP) under the Sexually Violent Predators 

Act (SVPA), Welfare and Institutions Code1section 6600 et seq. The trial court 

committed defendant to the Coalinga State Hospital for an indeterminate term. 

Defendant contends that his SVP commitment must be reversed because he was 

unlawfully in custody due to the negligence or bad faith on the part of the court and the 

California Department of Corrections and Rehabilitation (CDCR). He also argues that: 

(1) his indefinite commitment violates his due process rights because his diagnoses are 

insufficient to support an SVP commitment; (2) the court erred in instructing the jury

pursuant to CALCRIM No. 3454 on the People’s burden of proof and in refusing to 

instruct on circumstantial evidence; and (3) the SVPA violates the equal protection, ex 

post facto, double jeopardy, and cruel and unusual punishment clauses of the state and 

 

1 Unless otherwise indicated, all further statutory references are to the Welfare and 

Institutions Code.
2

federal constitutions because SVP’s are not treated until the expiration of their prison 

terms. We affirm.

I. FACTUAL BACKGROUND

The following evidence was adduced at trial: Dr. Nancy Webber, a psychologist, 

testified that she conducted an SVP evaluation of defendant. She reviewed defendant’s 

criminal sexual history, which began on March 3, 1977. Defendant was then 26 years 

old; Janis, the victim, was 52 years old. Defendant went to Janis’s house and when she 

responded to the door, he asked if her daughter was there. Janis knew defendant because 

her daughter had dated him several days earlier. Defendant told Janis that his mother was 

ill and that he needed a ride to her house.

At approximately 1:15 a.m., Janis drove defendant in her car and followed his 

directions. He directed her to a remote area where he pulled out a knife and sexually 

assaulted her. He digitally penetrated her and forced her to orally copulate him. He then 

directed her to drive him to his trailer where he shaved her pubic area. He again forced 

her to orally copulate him and placed his fingers in her vagina. 

Janis then told defendant that she was worried about her son, who was home alone 

and would soon be waking up to go to school. Defendant initially lied and told her an 

accomplice had picked up her son. He subsequently admitted that he had lied and 

allowed her to return home. She reported the incident to the police. Defendant was 

convicted of kidnapping and perversion while armed and sentenced to prison. 

Defendant served about two years in prison and was released on December 31, 

1979. Approximately five months later, defendant reoffended. He convinced an 18-yearold woman whom he met at a party to go out to his van. There, he brandished a knife, 

bound and gagged her, digitally penetrated her, and forced her to orally copulate him. 

The woman managed to escape. 

That same evening, defendant drove several blocks away to the home of Aida, a 

65-year-old woman. Aida had been a neighbor to defendant and his parents when he was 

growing up and took care of him when his parents fought. Aida was at home with her 
3

28-year-old daughter. Defendant asked the daughter to be the maid of honor at his 

wedding and made some phone calls. 

At some point, defendant got Aida to the bathroom with him to check on what he 

reported was a leak in the faucet. There, defendant threatened her with a knife and 

demanded money and a car, which Aida refused. Defendant then separated Aida from 

her daughter and tied them up in separate rooms. 

Defendant shaved Aida’s pubic hair and kissed her breasts. Meanwhile, Aida’s 

daughter was yelling, so defendant returned to her and taped over her eyes. During these 

incidents, another member of the household returned home and called the police.

Defendant was charged with the sex offenses involving the 18-year-old woman 

and false imprisonment and assault against the other two women. He was convicted of 

oral copulation by force, found to be a mentally disordered sex offender, and was placed 

in the Atascadero State Hospital. He was released from Atascadero in 1985. 

While still on parole, defendant committed another sexual offense on February 15, 

1998. He knew the victim through his job as a chemical dependency counselor. He went 

to her home one evening and told her that he had been in a motorcycle accident. She let 

him into her home and he took out a knife and ordered her to take off her clothes. When 

she refused, he removed her blouse and ordered her to lie face down on the bed and put 

her hands behind her back. She resisted and managed to flee from her home, screaming 

for help. A neighbor heard her and called the police. Defendant was convicted of 

attempted rape by force and sentenced to 10 years in prison. 

Defendant was released on May 14, 1993, and committed another offense 

approximately seven months later in December 1993. He was acquainted with the victim 

through a recovering addicts group. He appeared at the victim’s house at about 

11:30 p.m. in the evening and told her that he had car trouble. He asked to use her 

telephone. She let him in her home and while he was supposedly waiting for assistance 

with his car, she fell asleep. She awoke to find defendant threatening her with a knife. 

Defendant tied her up and forced her to orally copulate him. He also attempted to rape 

her but was unable to achieve penetration. When defendant finally released her after 
4

several hours, he begged her not to report him. Because defendant was on parole, the 

offenses were charged as parole violations and defendant was returned to prison. 

Defendant was in prison for about two years and released on parole, but 

subsequently committed a number of parole violations and was in and out of prison until 

June 1997. 

After being paroled in 1997, defendant again reoffended. The offense occurred on 

April 22, 2004; defendant was then 53 years old. The victim was a 70-year-old woman

who lived across the street from defendant’s girlfriend’s home. Defendant had separated 

from his girlfriend but was housesitting for her. He went to the victim’s house and 

smoked cigarettes with her. At some point, he talked about bedroom furniture and asked 

to see hers. She refused to go to the bedroom with him and became nervous. Defendant 

went to her bathroom and told her that water was leaking onto the floor. The victim 

became suspicious and tried to get defendant to leave her home. At one point, defendant

got a large kitchen knife, held it to her neck, and told her to lie down on the floor. He 

also demanded her car keys. She refused and told him to get out of her house or she was 

going to kill him. Defendant left. As a result of the incident, defendant was convicted of 

attempted robbery and sentenced to five years in prison. 

Webber also testified about defendant’s developmental history, which she 

considered in her evaluation of whether defendant is a mentally disordered sex offender. 

She testified that defendant, an only child, grew up in a dysfunctional family. His parents 

were severe alcoholics and there was domestic violence in the household. Between the 

ages of 13 and 24, defendant had a sexual relationship with his mother. He initially just 

fondled her, but eventually, when she was passed out drunk, he tried to have sexual 

intercourse with her. She initially protested but then allowed him to have intercourse 

with her. His mother continued to allow him to have sex with her if he bought liquor for 

her. Even after defendant had girlfriends and was married, he had sex with his mother 

until he was about 24 years old. The sexual activity stopped when his mother became 

sober. 
5

Defendant also reported that he masturbated to nude photographs of his mother 

and that he became sexually aroused when she showed him that his father had shaved her 

pubic area. He told the staff at Atascadero that he found older women attractive and was 

often attracted to women who looked like his mother. 

Defendant was committed to the Coalinga State Hospital in April 2011. While he 

has engaged in self-help and coping related groups, he has not participated in the sex 

offender treatment program. He told Webber that he did not need sex offender treatment 

but would participate in treatment on an outpatient basis. 

Webber diagnosed defendant with paraphilia not otherwise specified (NOS) with a 

focus of sexual arousal with non-consenting females, sexual sadism, methamphetamine 

and alcohol dependence in a controlled environment, and antisocial personality disorder

(ASPD). Webber opined that the paraphilia diagnosis was still current despite the last 

offense having occurred in 2004 because it is a chronic condition. Based on the 

diagnoses, she concluded that defendant was predisposed to commit criminal sexual acts 

and that defendant’s ASPD and alcohol and methamphetamine dependence exacerbated 

and worsened the severity of his conditions. She testified that defendant’s institutional 

behavior was not a good predictor of his risk of reoffending, as defendant had repeatedly 

reoffended upon release. She opined that defendant was at risk of reoffending and that he 

met the criteria for an SVP. 

Dr. Roger Karlsson, a psychologist, also testified that defendant met the criteria of 

an SVP. He opined that defendant, despite his age, was still at risk of reoffending, 

particularly due to his preference for older women. Based on testing using several 

actuarial measures, Karlsson quantified defendant’s risk of reoffending as being 

moderately high. Karlsson diagnosed defendant with paraphilia NOS nonconsensual and 

sexual sadism. He opined that the diagnosis was current and that it was a chronic 

condition. The fact that defendant was institutionalized was not significant in 

determining his risk of reoffending as he was under surveillance. He also diagnosed 

defendant as having polysubstance dependence, with physiological dependence in a 

controlled environment, and ASPD. 
6

The People called defendant as a witness. He did not deny the sex offenses of 

which he was convicted, but testified that he did not have a mental disorder. Due to the 

passage of time, however, defendant could not recall each of the sex offenses he 

committed and claimed that he was under the influence of methamphetamine. He 

attributed some of the offenses to his drug use and his incestuous relationship with his 

mother. At the time of trial in May 2013, defendant was almost 63 years old. He 

testified that he no longer had as strong a sex drive as when he was younger and was not 

preoccupied with sex. Defendant also testified about several health issues. He had neck 

surgery in 2008 and experiences numbness in his hands and legs. He uses a walker. He 

also had a back operation in 2012 to correct stenosis in the lower back, which helped with 

some of his pain issues. 

Dr. Brian Abbott, a psychologist, testified on behalf of defendant. He opined that 

there was no scientific evidence that a diagnosis of paraphilia NOS nonconsensual was 

chronic or long-lasting. He also opined that without recent objective indications of the 

symptoms of paraphilia, such as words or behavior reflecting difficulty controlling 

sexually violent behavior, a diagnosed individual is no longer suffering from the 

condition. Finally, he concluded that the People’s psychologists had not adequately 

accounted for the mitigating effects of defendant’s advancing age. 

Dr. Mary Jane Adams, a clinical psychologist, also testified on behalf of 

defendant. She disagreed with the diagnoses of the People’s psychologists. She testified 

that it could not be inferred that a person had deviant sexual arousal simply from the 

number of offenses committed. Adams opined that defendant’s offenses appeared 

opportunistic and impulsive rather than paraphilic and that the assaults resulted from his 

abuse of methamphetamine. She diagnosed defendant with ASPD, the symptoms of 

which she opined would decrease with age. She also testified that there was no evidence 

that defendant was currently showing symptoms of antisocial behavior. Defendant, 

however, did have several mental disorders, a pattern of low level depression, 

methamphetamine dependence, and alcohol abuse which were in institutional remission. 
7

Adams concluded that defendant did not pose a risk of reoffending primarily due to his 

age, physical health, and limited mobility. 

II. DISCUSSION

A. Lawful custody

Defendant contends that the order committing him as an SVP must be reversed 

because he was not in lawful custody at the time the People filed their SVP commitment

petition due to the negligence or bad faith of the trial court and the CDCR. 

1. Background:

On October 28, 2004, defendant pled guilty to the April 2004 attempted first 

degree robbery with the use of a knife. He also admitted having suffered two prior strike 

convictions. On December 6, 2004, the court dismissed one of the strike convictions,

sentenced defendant to three years on the attempted robbery, and doubled the one-year 

enhancement for use of the knife to two years for a total term of five years in state prison. 

The court erred in the sentencing as it incorrectly calculated the term for the attempted 

robbery offense and doubled an enhancement, which is not permitted by the Three Strikes 

law. (See § 213(a)(1)(B); People v. Martin (1995) 32 Cal.App.4th 656, 666, overruled on 

other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10 [law does not 

permit doubling of an enhancement].) 

Defendant did not appeal the sentence, but the CDCR discovered the error in May 

2008, and requested that the court modify the abstract of judgment. The CDCR, 

however, incorrectly advised the court that defendant was convicted of attempted second 

degree robbery. 

On May 28, 2008, the court filed an amended abstract of judgment, imposing a 

term of four years for the robbery and a one-year term for the enhancement. The 

amended abstract incorrectly listed the crime as a second degree robbery (Pen. Code, 

§ 212.5, subd. (c)) rather than an attempted first degree robbery (Pen. Code, 

§§ 664/212.5, subd. (a)). On June 2, 2008, the court again amended the abstract of 

judgment and imposed a five-year upper term for second degree robbery and stayed the 

sentence on the enhancement. 
8

The People filed the present petition to commit defendant as an SVP on June 26, 

2008. The petition alleged that defendant was then an inmate at the CDCR and that he 

had three qualifying sexually violent offenses: (1) an August 12, 1977 oral copulation 

(Pen. Code, § 288a) conviction; (2) an October 9, 1980 oral copulation conviction; and

(3) a July 14, 1998 attempted rape conviction (Pen. Code, §§ 664/261, subd. (a)(2)).

Defendant moved to dismiss the petition, contending that due to the trial court’s 

sentencing errors, he was unlawfully in custody at the time that the CDCR referred him 

for an SVP evaluation.2 He argued that the trial court should have imposed the mitigated 

term of three years for the first degree attempted robbery conviction with an additional 

year for the enhancement for a total term of four years in state prison. Thus, he claimed 

that as a result of the trial court’s sentencing errors, his sentence was unlawfully 

prolonged by at least one year. 

The People opposed the petition, arguing that defendant’s earliest release date was 

initially August 8, 2007, but that it was extended to July 12, 2008, and later to October 2, 

2008, based in part on defendant’s behavior in prison. While the People conceded that 

the extension to October 2008 was “likely the result of the erroneous amendment of 

petitioner’s conviction,” they asserted that there was nothing in the record indicating that 

the initial extension of the sentence to July 12, 2008 was based on any error committed 

by the court or a mistake by CDCR. 

The trial court denied the petition, finding that the trial court’s sentencing error 

was not negligent or intentional wrongdoing, and that the CDCR’s reliance on the release 

date of October 2, 2008 was in good faith. The court cited section 6601, 

subdivision (a)(2), which provides that “[a] petition [for commitment of a sexually 

violent predator] shall not be dismissed on the basis of a later judicial or administrative 

determination that the individual’s custody was unlawful, if the unlawful custody was the 

result of a good faith mistake of fact or law.” We review the trial court’s determination 

 

2

The CDCR referred defendant for an SVP evaluation pursuant to section 6601, 

subdivision (a) on December 18, 2007.
9

of good faith under the substantial evidence standard of review. (Langhorne v. Superior 

Court (2009) 179 Cal.App.4th 225, 238.) 

2. Analysis

The court’s sentencing error was not made in bad faith. Defendant did not object 

to the sentence at the sentencing hearing and did not appeal it. The record of the 

sentencing hearing reflects that the court spent considerable time considering defendant’s

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530 motion3and expressed 

some uncertainty about whether to double the sentence on the enhancement. Neither 

defendant’s counsel nor the deputy district attorney enlightened the court on this issue. 

And, the CDCR did not discover the sentencing error until May 2008, when it informed 

the court.4 The court immediately attempted to correct the error upon receipt of the 

CDCR’s letter informing it of the error. 

While the trial court found that defendant should have been released on 

September 17, 2007, and thus the People’s June 2008 petition was untimely, in 

accordance with section 6601, subdivision (a)(2), the People’s petition was lawfully filed

because the court’s subsequent determination that defendant should have been released 

sooner was the result of a good faith mistake of fact or law.5

Relying on People v. Superior Court (Small) (2008) 159 Cal.App.4th 301, 

defendant argues that his unlawful custody was the result of the court’s or CDCR’s 

negligence or bad faith. In Small, the petitioner was scheduled to be released from prison 

 

3

The court granted defendant’s motion to strike his 1973 prior strike conviction. 

4 A copy of the letter was sent to defendant, the district attorney, and the public 

defender, but none of these parties received the letter. 

5 Defendant argues that his release date should have been August 10, 2007 because 

the trial court should have applied a 20 percent credit limitation rather than a 15 percent 

credit limitation due to the prior strike. The Attorney General concedes that defendant 

was subject to the 20 percent credit limitation of Penal Code section 667, 

subdivision (c)(5) because defendant’s offense of attempted robbery is a serious felony 

under Penal Code section 1192.7, subdivision (c)(39), not a violent felony. In any event, 

the fact that the People’s petition was filed after the date defendant should have been 

released was not due to the trial court’s or the CDCR’s negligence or bad faith.
10

but the CDCR kept the defendant in prison an extra day in order to allow the People to 

file a petition to commit him as an SVP. (Id. at p. 304.) The court of appeal upheld the 

trial court’s dismissal of the petition, concluding that the petitioner was unlawfully in 

custody because the People failed to show that the delay in filing the petition resulted 

from a good faith mistake of fact or law. (Ibid.) Rather, the court determined that delay 

in filing the petition was due to the Department of Mental Health’s (DMH) increased 

workload of SVP evaluations following the passage of Jessica’s Law (§ 6604), which was 

not from a legal or factual mistake but instead was something that the CDCR and DMH 

could have anticipated. (Id. at pp. 305, 310.)

Here, defendant remained in custody due to the trial court’s legal mistake in 

sentencing defendant; the court was mistaken on the application of the Three Strikes law 

to enhancements. There is nothing in the record to demonstrate that the court’s error was 

in bad faith or the result of negligence. At the time, defendant faced a sentence of 

25 years to life, yet with the court’s dismissal of one of his strike priors, the court 

sentenced defendant to a term of just five years. It is thus understandable that defense 

counsel did not object or appeal the sentence, and hence the court’s error did not come to 

light until the CDCR discovered it in 2008. While, in hindsight, the sentencing court’s 

error might have easily been determined, there is no showing that the court’s action was 

the result of intentional wrongdoing or negligence.6 Substantial evidence supports the 

 

6 Defendant points out that the sentencing court should have known that under the 

Three Strikes law, Penal Code section 667, subdivision (e)(1) provides for the doubling 

of the base term, which does not include enhancements for prior convictions (see People 

v. Ramirez (1995) 33 Cal.App.4th 559, 574 [under Penal Code section 667, subdivision 

(e)(1), the phrase, “term otherwise provided as punishment for the current felony 

conviction” does not include enhancements for prior convictions]; People v. Martin, 

supra, 32 Cal.App.4th at p. 666 [law does not allow doubling of an enhancement].). 

While we agree that the court should have been aware of the law, we are also cognizant 

that the Three Strikes law resulted in numerous sentencing errors long after its enactment. 

In this case, the court also appears to have been confused about the sentencing triad for 

attempted first degree robbery. (Compare Pen. Code, § 664, subd. (a) [attempts 

punishable by imprisonment for one-half the term prescribed for conviction of the offense 

attempted] with Pen. Code, § 18 [felony punishable by imprisonment for 16 months, two, 
11

court’s finding that the sentencing court did not act in bad faith. (Langhorne v. Superior 

Court, supra, 179 Cal.App.4th at pp. 238–239 [question on appeal is whether evidence 

supports court’s finding on the good faith issue].) 

B. Sufficiency of the evidence

Defendant contends that the diagnoses of paraphilia NOS and ASPS are 

insufficient to support the SVP commitment. He also argues that the People failed to 

present any evidence that he was currently suffering from a mental disorder rendering 

him likely to reoffend.

As in criminal proceedings, we review the record in the light most favorable to the 

judgment to determine whether substantial evidence supports the verdict. (People v. 

Johnson (1980) 26 Cal.3d 557, 576–578; People v. Mercer (1999) 70 Cal.App.4th 463, 

466 [applying substantial evidence standard of review to SVP proceedings].) 

Defendant recognizes that Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 

1150, 1158 (Hubbart) has rejected his claim that the mental disorders of paraphilia NOS 

and ASPD are insufficient to support an SVP commitment, but argues that the decision 

was wrongly decided. In Hubbart, our Supreme Court upheld the defendant’s SVP 

commitment on the basis of a paraphilia NOS diagnosis and rejected the defendant’s due 

process challenge “that the SVPA must be struck down because the definition of a 

‘diagnosed mental disorder’ does not expressly exclude antisocial personality disorders or 

other conditions characterized by an inability to control violent antisocial behavior, such 

as paraphilia.” (Id. at p. 1158.) The Court held “due process requires an inability to 

control dangerous conduct, and does not restrict the manner in which the underlying 

impairment is statutorily defined,” and that the SVPA meets this standard. (Ibid.) The 

court explained that Foucha v. Louisiana (1992) 504 U.S. 71, 74–79 was distinguishable 

because there, the defendant, who had been found not guilty by reason of insanity and 

was committed to a psychiatric facility, could no longer be confined in light of new 

 

or three years in prison unless a different punishment is prescribed by law].) Although 

the court committed several errors in the course of its attempts to correct its earlier 

sentencing errors, we cannot conclude that the court’s mistakes were made in bad faith. 
12

evidence that he was no longer insane or mentally ill and posed no danger to himself or to 

the public. (Hubbart, supra, at pp. 1158–1159.) The Foucha court did not “state or 

imply that antisocial personality conditions and past criminal conduct play no proper role 

in the commitment determination.” (Id. at p. 1161.)

Other courts have upheld SVP commitments on the bases of a paraphilia NOS or 

ASPD diagnosis. (See, e.g., People v. Williams (2003) 31 Cal.4th 757, 762 [paraphilia 

NOS]; People v. Felix (2008) 169 Cal.App.4th 607, 615–617 [paraphilia NOS]; People v. 

Burris (2002) 102 Cal.App.4th 1096, 1109 [personality disorder qualifies as a mental 

disorder under the SVPA].) We are bound by our Supreme Court’s pronouncements on 

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

Defendant argues, however, that paraphilia NOS and ASPD cannot support an 

SVP commitment because the disorders are not specifically identified in the American 

Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM)

(4th rev. ed. 2013).7 This argument has been rejected by the courts. “The federal 

Constitution does not require an SVP’s commitment to be based on a disorder that is 

uniformly recognized by the mental health community.” (Johnson, 235 Cal.App.4th at

p. 89; Hubbart, supra, 19 Cal.4th at p. 1156 [range of disorders that may support an SVP 

commitment not limited to those the psychiatric community defines as mental illnesses]; 

McGee v. Bartow (7th Cir. 2010) 593 F.3d 556, 576, 580 [“[C]ivil commitment upon a 

finding of a ‘mental disorder’ does not violate due process even though the predicate 

diagnosis [of rape paraphilia] is not found within the four corners of the DSM”].) 

Defendant further contends that the SVP commitment violates his due process 

rights because the People failed to present substantial evidence that he currently suffers 

 

7

The fifth edition of the DSM was published in May 2013 and was not before the 

trial court. (People v. Johnson (2015) 235 Cal.App.4th 80, 87.) The Johnson court noted 

that “[t]he fifth edition of the DSM still references a residual category of paraphilias, 

noting that ‘[m]any dozens of distinct paraphilias have been identified and named, and 

almost any of them could, by virtue of its negative consequences for the individual and 

for others, rise to the level of a paraphilic disorder.’ ” (Id. at p. 89, fn. 13.) 
13

from a mental disorder rendering him likely to reoffend. Substantial evidence supports 

the jury’s verdict. 

Both Drs. Webber and Karlsson testified that defendant’s diagnoses of paraphilia 

and ASPD were current and chronic, and that he was at risk of reoffending. The 

evidence, summarized more fully above, was sufficient to demonstrate that defendant 

currently suffers from a mental condition that predisposes him to commit criminal sexual 

acts. That defendant had not recently committed a sexually overt act was immaterial 

inasmuch as he had been institutionalized. Drs. Webber and Karlsson opined that 

defendant’s institutional behavior was not significant because he was in a controlled 

environment. Webber also noted that defendant had not previously acted out sexually 

while in prison yet reoffended upon release. While defendant’s experts disagreed with 

the People’s experts and opined that his risk of reoffending was mitigated by the effects 

of his advancing age, the resolution of the conflict in the evidence was for the jury. 

(People v. Mercer, supra, 70 Cal.App.4th at pp. 466–467 [credibility of the experts was a 

matter within the province of the jury].)

C. CALCRIM NO. 3454

Defendant contends that the court erred in instructing the jury pursuant to 

CALCRIM No. 3454 because the instruction confused the jury regarding the People’s 

burden of proof. He failed to object to the instruction in the trial court and thus forfeited 

the issue. (People v. Campos (2007) 156 Cal.App.4th 1228, 1236.) We consider the 

argument on appeal to obviate defendant’s claim that his trial counsel provided

ineffective assistance by failing to object to the instruction below. 

The court instructed the jury in the language of CALCRIM No. 3454 that the 

People must prove beyond a reasonable doubt several elements, including that defendant 

has a diagnosed mental disorder and, “as a result of that diagnosed mental disorder, he is 

a danger to the health and safety of others because it is likely that he will engage in 
14

sexually violent predatory behavior.”8 The instruction further provides that “[a] person is 

likely to engage in sexually violent predatory criminal behavior if there is a substantial 

danger, that is, a serious and well-founded risk that the person will engage in such 

conduct if released into the community. [¶] The likelihood that the person will engage in 

such conduct does not have to be greater than 50 percent.”

Defendant argues that the latter language designating a 50 percent likelihood of 

reoffending reflects a standard of proof that falls below a preponderance of the evidence 

and confuses the jury on the burden of proof. Defendant misreads the instruction.

CALCRIM No. 3454 specifically prefaces the elements that the jury is required to 

find to determine that a defendant is an SVP with the instruction that the People must 

prove the elements beyond a reasonable doubt. The language of the instruction is not 

confusing. As explained in People v. Hubbart (2001) 88 Cal.App.4th 1202, in addressing 

similar language in CALJIC No. 4.19, the instruction “does not state or imply that the 

phrase ‘likely that he will engage in sexually violent criminal behavior’ is the standard of 

proof for the ultimate SVPA determination. [Citation.] The instruction specifies that

‘[p]etitioner must prove beyond a reasonable doubt that respondent currently suffers from 

a currently diagnosed mental disorder which prevents him from controlling his sexually 

violent behavior thereby making him dangerous and likely to reoffend.’ Thus, the 

instruction makes it clear that the jury must find beyond a reasonable doubt that the 

person is dangerous due to his or her mental disorder and lack of volitional control. . . . 

Under this instruction, any reasonable jury would be entirely capable of separating the 

criteria of finding it ‘likely’ that the person will engage in sexually violent criminal 

behavior from the standard of proof of ‘beyond a reasonable doubt.’ ” (Id. at p. 1233.) 

Here, the court also gave two additional instructions on the meaning of reasonable doubt 

which included the language that, “[u]nless the evidence proves each and every element 

of the charge beyond a reasonable doubt, you must find that the Petition is not true and 

 

8

The parties stipulated that the first element was met—that defendant was 

convicted of committing sexually violent offenses against one or more victims. 
15

that Mr. Nelson does not meet the criteria of a sexually violent predator.” (CALCRIM 

No. 103; see CALCRIM No. 2199.) We must presume that the jury understood and 

correlated all of the instructions given to it. (People v. Martin (2000) 78 Cal.App.4th 

1107, 1111.) The court’s instructions were a correct statement of the law on the burden 

of proof for commitment of an SVP. (See People v. Hubbart, supra, 88 Cal.App.4th at 

pp. 1231–1233; People v. Roberge (2003) 29 Cal.4th 979, 985–988.) No additional 

instructions were warranted.

D. Circumstantial Evidence Instructions

Defendant also argues that the court was required to instruct the jury on how to 

evaluate circumstantial evidence because the jury was required to rely on that evidence in 

determining whether the qualifying offenses occurred. The court declined to give 

circumstantial evidence instructions, reasoning that the jury’s role was not to determine 

the underlying facts of the qualifying sexually violent offenses.10

Defense counsel conceded below that circumstantial evidence instructions need 

not be given, accepting the court’s explanation that the case did not involve relitigation of 

the underlying facts of defendant’s offenses, and that the role of the jury was to evaluate 

and weigh the credibility and testimony of the experts. Defendant has thus forfeited the 

issue on appeal. 

In any event, the jury was fully instructed on evaluating expert testimony 

(CALCRIM No. 332), evaluating defendant’s statements to an expert (CALCRIM 

No. 360), and evaluating conflicting evidence (CALCRIM No. 302). As the court 

explained, CALCRIM No. 332 specifically informed the jury that it was “to follow all the 

 

9 CALCRIM No. 219 provides in pertinent part: “The fact that a petition to 

declare respondent a sexually violent predator has been filed is not evidence that the 

petition is true. . . . The Petitioner is required to prove the allegations of the petition are 

true beyond a reasonable doubt. . . . [¶] In deciding whether the Petitioner has proved the 

allegations of the petition are true beyond a reasonable doubt, you must impartially 

compare and consider all the evidence that was received throughout the entire trial. 

Unless the evidence proves the Respondent is a sexually violent predator beyond a 

reasonable doubt, you must find the petition is not true.” 

10 As noted, ante, fn. 8, the parties stipulated that these offenses occurred.
16

rules relating to a witness in general, but in addition, to consider the expert’s knowledge, 

skill, experience, training, education, and the reasons the expert gave for any opinion, and 

the facts or information on which the expert relied in reaching that opinion. [And, that it] 

must decide whether information on which the expert relied was true and accurate, which 

really goes to the underlying basis of [his or her] testimony.” On this record, the court 

did not err in its instructions.

E. Equal Protection

Defendant further contends that his indeterminate commitment and the 

requirement that he prove eligibility for release by a preponderance of the evidence 

violates equal protection. He recognizes that our Supreme Court in People v. McKee

(2010) 47 Cal.4th 1172 (McKee I) held that the SVPA does not contravene due process, 

ex post facto restrictions, or double jeopardy principles, and that we are bound by that 

ruling. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) He raises 

these arguments here to preserve the issues for federal review.

As to the equal protection challenge, the McKee I court held that the state “has not 

yet carried its burden of demonstrating why SVP’s, but not any other ex-felons subject to 

civil commitment, such as mentally disordered offenders, are subject to indefinite 

commitment,” and remanded the case to the trial court to determine whether the People 

can demonstrate constitutional justification for indefinite commitments imposed on 

SVP’s under the SVPA. (McKee I, supra, 47 Cal.4th at p. 1184.) Upon remand, the trial 

court found that the People met their burden of justifying the disparate treatment of 

SVP’s. The court of appeal agreed. (People v. McKee (2012) 207 Cal.App.4th 1325, 

1347 (McKee II).) It concluded that disparate treatment for SVP’s was warranted to 

further compelling state interests. (Id. at pp. 1347–1348.) “The People have shown that 

‘notwithstanding the similarities between SVP’s and MDO’s [and NGI’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.’ [Citation.]” (Id. at p. 1347.) Our Supreme Court denied review in McKee II 
17

and that decision is now final. (McKee II, 207 Cal.App.4th 1325, rev. denied Oct. 10, 

2012, S204503.)

Defendant urges us not to follow McKee II, arguing that the decision is flawed 

because the court did not conduct a de novo review and that it misapplied the strict 

scrutiny standard. As the court explained in People v. McKnight (2012) 212 Cal.App.4th 

860, 862–864 (McKnight), however, McKee II is dispositive. “On remand, McKee 

concluded that differences between SVP’s as a class and other offenders justify their 

different treatment under the Act. It is plain that McKee II is not to be restricted to 

Mr. McKee alone or only to those SVP’s convicted of crimes against children, like him, 

but rather its holding applies to the class of SVP’s as a whole.” (Id. at pp. 863–864.) The 

Supreme Court denied review in McKnight on March 13, 2013 (S208182) and has since 

denied review in other cases raising the equal protection issue. (See, e.g. People v. 

Landau (2013) 214 Cal.App.4th 1, 48, rev. denied May 22, 2013, S209450; People v. 

McCloud (2013) 213 Cal.App.4th 1076, 1079, rev. denied May 22, 2013, S208845; 

People v. McDonald (2013) 214 Cal.App.4th 1367, 1371–1372, rev. denied July 10, 

2013, S210418.) We agree with the McKnight court’s analysis of McKee II and reject 

defendant’s equal protection challenge to the SVPA. Defendant’s commitment under the 

SVPA does not violate his equal protection rights. (McKnight, supra, 212 Cal.App.4th at 

p. 864.) 

III. DISPOSITION

The judgment is affirmed. 
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_________________________

Rivera, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Reardon, J.