1 

Filed 10/2/14 P. v. Rose 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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. 

MARC BERNARD ROSE, 

Defendant and Appellant. 

 H038704 

 (Santa Clara County 

 Super. Ct. No. 195814) 

 Marc Bernard Rose appeals from the August 17, 2012 order for commitment as a 

sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA) (Welf. 

& Inst. Code, § 6600 et seq.).1

 Rose raises multiple claims but we find no prejudicial 

errors. Accordingly, we will affirm the judgment. 

I 

Trial 

 At trial in 2012, two psychologists testifying on behalf of the People, Drs. Harry 

Goldberg and Jack Vognsen, reported that they diagnosed Rose with a current mental 

disorder of pedophilia with an attraction to prepubescent boys. As defined by the 

DSM-IV-TR,2

 a diagnosis of pedophilia requires (1) a person to have recurrent, intense 

sexually arousing urges, fantasies or behaviors involving prepubescent children, 

 

1

 All further references are to the Welfare and Institutions Code unless otherwise 

specified. 

2

. We assume the reference was to the Diagnostic and Statistical Manual of Mental 

Disorders (4th ed.) Text Revisions. 
2 

generally 13 years of age or younger, (2) the person to have acted upon those sexual 

urges or the sexual urges to have caused interpersonal difficulty and (3) the person to be 

at least 16 years of age and five years older than the children. A person may be 

diagnosed as a pedophile even if the person had some adult partners. Dr. Goldberg 

indicated that Rose’s pedophilia was the nonexclusive type. Pedophilia is a chronic, 

lifelong disorder for which there is no cure. 

 Rose, who had married a woman in 1986, came to the attention of law 

enforcement because he was soliciting pornography of prepubescent children in 1987. 

The police discovered Rose had sexually molested Jaime 20 to 30 times while Jaime was 

between the ages of 11 and 14. Rose had met Jaime when Jaime was visiting his brother 

who lived in the apartment building where Rose lived. Rose photographed Jaime when 

he was 11 years old and again when Jaime was 14 years old. Rose shared photographs of 

Jaime with others. When Jaime was 15 or 16 years old, after Jaime’s parents had 

committed suicide, Jaime briefly lived with Rose, during which time Rose engaged in an 

act of oral copulation and sodomy with him. In 1987, Rose told a sergeant that he was 

sexually interested in children and he had fantasies about them. 

 Rose was convicted of one count of lewd conduct with a child, one count of oral 

copulation with a child, and one count of using obscene material with a child. He was 

sentenced to a prison term of three years eight months. Rose was released on parole 

sometime around 1990 and he received treatment through parole. 

 In 1992, while living with his wife, Rose was discovered to be in possession of 

child pornography, including pictures of children clothed and unclothed, two video tapes 

showing sexual acts between children, a picture of his prior victim, a movie of a young 

adolescent masturbating, and an album of pictures of Perry, a nine-year-old boy. Rose 

had met Perry while Perry was visiting his grandmother at the apartment complex where 

Rose lived. Perry eventually disclosed that Rose had touched him on his genitals while 

Perry was nude and Rose had taken pictures of Perry in the nude. 
3 

 In preparation for sentencing after conviction, Rose admitted to the probation 

officer that he had showed his penis to Perry and touched Perry’s penis multiple times 

over several weeks. Rose blamed Perry for pestering him to watch dirty movies. 

 While in prison, Rose was found in possession of photographs of nude adult 

females and received an “institutional violation.” After his release from prison, Rose was 

sent to Atascadero State Hospital. Rose was found with drawings he had made of a 

young man in a sexually aroused state. Rose did not see anything wrong with it. On 

May 27, 1999, Rose received pictures of clothed adult and child television actors, which 

he had ordered in the mail. On June 2, 1999, Rose was found with five books containing 

sexually provocative images of children. In August 27, 1999, Rose was found with 

material containing sadomasochistic images. On about March 13, 2001, Rose was found 

with magazines containing nude pictures of children. 

 In January 2006, Rose was transferred to Coalinga State Hospital. Rose declined 

treatment there from January 2006 to October 2009. He subsequently began phased 

treatment. At the time of trial, Rose was in phase two of five phases of treatment at 

Coalinga State Hospital and he had not yet taken the test to graduate to phase three. 

Treatment is aimed at the person’s management of their urges and behaviors. Research 

indicates that pedophiles who complete treatment have lower recidivism rates. 

 In the opinion of Drs. Goldberg and Vognsen, Rose’s pedophilia caused him to 

have volitional and emotional impairment and predisposed him to commit sexual acts. 

Rose had groomed both Jaime and Perry for sexual molestation. Rose had sexually 

offended with Perry while on parole and in treatment. Rose admitted to having three to 

five male victims during his life and molesting each of them 11 to 20 times. In 1997, 

Rose admitted to Dr. Goldberg that he previously had urges toward and fantasies about 

children. Rose had been found with pornographic materials on three occasions during his 

stay at Atascadero State Hospital. Rose had a long history of collecting and soliciting 

child pornographic material, which Dr. Goldberg testified was one of the risk factors for 
4 

reoffense. Although Rose had not committed child molestation since molesting Perry, he 

had been in prison or a hospital since that time. 

 Both Dr. Goldberg and Dr. Vognsen administered several actuarial risk 

assessment instruments. Both gave Rose a score of four on the static 99-R and a seven 

on Static 2002-R. Those scores placed Rose in the “moderate-high risk category.” 

Dr. Goldberg estimated that Rose’s overall risk of being detected for a new offense after 

10 years was “somewhere between 29 and 39 percent.” Dr. Vognsen indicated that Rose 

had an approximately 30 to 40 percent chance of being caught for committing or 

convicted of a sexual reoffense over a 10-year period. In Dr. Goldberg’s opinion, there 

was a well-founded and serious risk that Rose would reoffend in a predatory manner. 

Dr. Vognsen concluded that Rose was likely to reoffend in a predatory manner 

 Dr. Goldberg acknowledged that when Rose was 59.9 years old, his score on the 

Static 99-R would drop to one due to his age. That would be one factor that he would 

consider if he assessed Rose’s risk at that time. Dr. Vognsen acknowledged that, in 

general, the risk of reoffending drops significantly at the age of 60. 

 The People called Rose as a witness. Rose testified that he had recently turned 

54 years old. He admitted that he was still a pedophile, but he asserted that he was in 

remission and maintaining his abstinence. Rose admitted that he still had pedophiliac 

urges but he claimed that he could control them and he was going to try to avoid children. 

Rose described his sexual molesting and photographing of Jaime and Perry. 

 Two defense experts, Drs. Raymond Anderson and James Park, both licensed 

psychologists, testified that Rose did not meet the criteria for a current diagnosis of 

pedophilia. Dr. Anderson believed that Rose’s fantasies were not sufficiently intense and 

persistent to meet the diagnosis criteria. In addition, it was unusual for a pedophile to be 

married or have sex with adults. Dr. Anderson conceded that Rose had been collecting 

child pornography since before 1980. Dr. Anderson acknowledged that Rose had 
5 

admitted he had sexual fantasies or urges involving children, he was sexually attracted to 

children, and he was sexually aroused by some children and child pornography. 

 Dr. Park had previously diagnosed Rose with pedophilia, sexually attracted to 

males, nonexclusive type, in remission. Dr. Park no longer gave Rose that diagnosis. 

Dr. Park’s current opinion was based partially on the fact that Rose’s sexual interest in 

children was not exclusive and he could respond sexually to adults but Dr. Park 

acknowledged that there was an nonexclusive type of pedophilia. Rose had admitted to 

Dr. Park that he had been sexually interested in and attracted to his victims. 

 Dr. Carvajal testified on behalf of the defense. He worked at Coalinga State 

Hospital as a unit psychologist and as a group therapist. Rose had been part of a 

treatment group facilitated by Dr. Carvajal. Rose had acknowledged that he had a 

problem and he needed to learn how to manage it. In Dr. Carvajal’s opinion, Rose had 

done very well in treatment during the approximately 16 months that Carvajal had been 

his facilitator. Rose had admitted his disorder, he had been open to treatment, he had 

finished assignments, and he had shown empathy for past victims. Dr. Carvajal indicated 

that there is not a curative treatment for pedophilia. Rather, treatment is aimed at 

managing the disorder. 

II 

Discussion 

A. Alleged Trial Error 

1. Instruction Regarding an “Admission” 

 Rose’s counsel objected to the proposed jury instruction defining “admission.” 

While counsel acknowledged that Rose had admitted in testimony that he was a 

pedophile, counsel was concerned that the instruction improperly suggested that his 

admission proved the SVP petition. Counsel contended that the instruction made the 

requirement of a currently diagnosed mental disorder seem more important than the 

requisite likelihood of reoffense. 
6 

 The trial court gave an instruction, modeled on CALJIC No. 2.71, which directed 

the jury to view with caution any unrecorded, out-of-court statement made by Rose. The 

jury was instructed: “An admission is a statement made by the respondent which does 

not by itself acknowledge the truth of the petition for which the respondent is on trial, but 

which statement tends to prove the truth of the petition when considered with the rest of 

the evidence. [¶] You are the exclusive judges as to whether the respondent made an 

admission, and if so, whether that statement is true in whole or in part. [¶] Evidence of 

an oral admission of the respondent not contained in an audio or video recording and not 

made in court should be viewed with caution.” 

 Rose argues that this instruction impermissibly lowered the prosecution’s burden 

of proof in violation of his rights to due process and a fair trial.3

 The challenged 

instruction made clear that an admission did not in itself prove the petition. It reminded 

jurors that they were the exclusive judges of the truth of any part of any statement made 

by Rose. The cautionary part of the instruction was to Rose’s benefit. The instruction 

did not directly or indirectly address the burden of proof or relieve the People of its 

burden of proof. In other instructions, the jury was fully instructed regarding the 

meaning of “sexually violent predator” and the People’s burden of proving beyond a 

reasonable doubt that Rose was an SVP. The jurors were told to “[c]onsider the 

instructions as a whole and each in light of all the others.” The challenged instruction did 

not lower the People’s burden of proof. 

2. Refusal to Give Requested Instruction as to Likelihood of Reoffense 

 In a written in limine motion, the defense requested an instruction regarding the 

meaning of “likely,” which term is used in the definition of an SVP. The proposed 

 

3

 To the extent that Rose is also attacking the prosecutor’s closing argument related 

to Rose’s admission that he is a pedophile, those claims were forfeited by failing to 

timely and specifically object below. (See People v. Shazier (2014) 60 Cal.4th 109,145; 

People v. Clark (2011) 52 Cal.4th 856, 960.) 
7 

instruction read: “The word ‘likely’ as used in this definition means the person presents a 

substantial danger, that is, a serious and well-founded risk that he will commit sexually 

violent predatory crimes if free in the community. It does not mean that it must be more 

probable than not that there will be an instance of reoffending. However, you may not 

find the respondent to be a sexually violent predator unless you find that the respondent 

does in fact present a high risk of reoffense.” (Emphasis omitted.) When it addressed the 

request, the trial court stated the issue would be revisited if necessary when the court and 

the parties discussed the jury instructions. 

 The trial court instructed the jury regarding the definition of an SVP, including 

element three, namely that a currently diagnosed mental disorder “makes [defendant] a 

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

violent predatory criminal behavior unless confined within a secure facility.” (Italics 

added.) The court also gave the following definition: “The word ‘likely’ as used in 

this definition means the person presents a substantial danger, that is, a serious and 

well-founded risk that he will commit sexually violent predatory crimes if free in the 

community. The term ‘likely’ as used in this definition means much more than a mere 

possibility, but it does not mean ‘more likely than not.’ In other words, the likelihood 

that the person will engage in such conduct does not have to be greater than 50 percent.” 

(Italics added.) The italicized portion of the instruction differs from the language 

requested by Rose. 

 Rose now claims that the trial court erred by not giving the requested instruction, 

pointing to language in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888 

(Ghilotti). The People assert that Ghilotti’s definition of “likely” did not require the trier 

of fact to find a “high risk” of reoffense.4

 

 

4

 Although the People have not raised the forfeiture rule, it appears that Rose 

forfeited any claim of error by failing to renew, on the record, his request for the 

(continued) 
8 

 In Ghilotti, the California Supreme Court considered the standard set forth in 

section 6600, subdivision (d). (Ghilotti, supra, 27 Cal.4th at pp. 915-923.) Under that 

provision, two mental health professionals must concur that the “ ‘person has a diagnosed 

mental disorder so that he or she is likely to engage in acts of sexual violence without 

appropriate treatment and custody’ ” before an SVP petition can be filed. (§ 6600, 

subd. (d), italics added.) The California Supreme Court stated: “[T]he word ‘likely,” 

when used in this context, must be given a meaning consistent with the statute’s clear 

overall purpose. That purpose is to protect the public from that limited group of persons 

who were previously convicted and imprisoned for violent sex offenses, and whose terms 

of incarceration have ended, but whose current mental disorders so impair their ability to 

control their violent sexual impulses that they do in fact present a high risk of reoffense if 

they are not treated in a confined setting.” (Ghilotti, supra, at p. 921.) This is the 

language relied upon by Rose. 

 But the Supreme Court ultimately held: “[T]he phrase ‘likely to engage in acts of 

sexual violence’ (italics added), as used in section 6601, subdivision (d), connotes much 

more than the mere possibility that the person will reoffend as a result of a predisposing 

mental disorder that seriously impairs volitional control. On the other hand, the statute 

does not require a precise determination that the chance of reoffense is better than even. 

Instead, an evaluator applying this standard must conclude that the person is ‘likely’ to 

reoffend if, because of a current mental disorder which makes it difficult or impossible to 

restrain violent sexual behavior, the person presents a substantial danger, that is, a 

serious and well-founded risk, that he or she will commit such crimes if free in the 

community.” (Ghilotti, supra, 27 Cal.4th at p. 922.) 

 

proposed instruction when the parties went over the instructions with the court. (See 

People v. Davis (2009) 46 Cal.4th 539, 616-617.) 
9 

 The Supreme Court also rejected in Ghilotti the argument that “constitutional 

principles of substantive due process, as applicable to involuntary civil commitment 

statutes, require a limitation of such commitments to persons who are ‘highly likely’ 

to reoffend.” (Ghilotti, supra, 27 Cal.4th at p. 923.) The court was unpersuaded that 

“a valid involuntary commitment law requires proof that the person is more likely than 

not to reoffend.” (Ibid.) It determined that “the state has a compelling protective interest 

in the confinement and treatment of persons who have already been convicted of violent 

sex offenses, and who, as the result of current mental disorders that make it difficult or 

impossible to control their violent sexual impulses, represent a substantial danger of 

committing similar new crimes [citations], even if that risk cannot be assessed at greater 

than 50 percent.” (Id. at p. 924.) 

 In People v. Roberge (2003) 29 Cal.4th 979, the Supreme Court addressed 

statutory definition of a sexually violent predator (§ 6600, subd. (a)), which applies at 

trial. (People v. Roberge, supra, at p. 982.) The Supreme Court held that “the phrase 

‘likely [to] engage in sexually violent behavior’ in section 6600, subdivision (a), should 

be given the same meaning as the phrase ‘likely to engage in acts of sexual violence 

without appropriate treatment and custody’ in section 6601, subdivision (d), the provision 

at issue in Ghilotti.” (Id. at p. 987.) 

 Rose’s proposed instruction was likely to confuse and mislead the jury regarding 

the meaning of “likely” as used in the definition of “sexually violent predator.” On the 

other hand, the trial court’s instruction adequately and accurately defined the term 

“likely.” A trial court may properly refuse a special instruction offered to highlight a 

defense theory “if it incorrectly states the law, is argumentative, duplicative, or 

potentially confusing (People v. Gurule (2002) 28 Cal.4th 557, 659) . . . .” (People v.

Moon (2005) 37 Cal.4th 1, 30.) The court did not err in refusing to give the defendant’s 

proposed instruction. 
10 

3. Repeated Use of Phrase “Sexually Violent Predator”

 The trial court denied Rose’s written in limine motion to prohibit the use of the 

phrases “sexually violent predator” or “Sexually Violent Predator Act,” which he argued 

were unnecessarily inflammatory. During trial, Rose unsuccessfully objected to the use 

of “sexually violent predator” in the jury instructions and asked the court to use the 

abbreviation “SVP.” 

 Rose now claims that the phrase “sexually violent predator” is a “highly 

inflammatory epithet” and the repeated use of that phrase before the jury was “grossly 

prejudicial” and a violation of his rights to due process and a fair trial. “It is, of course, 

improper to make arguments to the jury that give it the impression that ‘emotion may 

reign over reason,’ and to present ‘irrelevant information or inflammatory rhetoric that 

diverts the jury's attention from its proper role, or invites an irrational, purely subjective 

response.’ [Citation.]” (People v. Padilla (1995) 11 Cal.4th 891, 956-957, overruled on 

another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The phrases 

“sexually violent predator” and “Sexually Violent Predator Act” did not constitute, 

however, inflammatory rhetoric that diverted the jury's attention from its proper role or 

invited an irrational response. 

 The trial’s purpose was to determine whether or not Rose was a “sexually violent 

predator” under the proper legal standard. From the outset, the trial court made clear that 

Rose was presumed not to be an SVP unless the People presented proof beyond a 

reasonable doubt.5

 The jury received the legal definition of “sexually violent predator.” 

 

5

 During voir dire of the jury, the court instructed: “I want you to presume that for 

the purposes of this voir dire that as Mr. Rose sits here he is not a sexually violent 

predator. He is to be clothed with his presumption that the petition is not true. This 

presumption stays with him through the taking of testimony and other evidence 

presented, the arguments of counsel, the jury instructions given by me, indeed, it goes 

with the jury into the jury deliberation room. It applies unless all 12 jurors unanimously 

find that the People have met their burden of proof beyond a reasonable doubt and dispel 

(continued) 
11 

In its final instructions, the court again instructed the jury that the People had the burden 

of proving beyond a reasonable doubt that Rose is a “sexually violent predator.” The 

court directed the jurors to find the allegation untrue, if after considering all the evidence, 

they had a reasonable doubt that Rose was a sexually violent predator. There has been no 

showing that the use of the phrases “sexually violent predator” or “Sexually Violent 

Predator Act” at trial inflamed the jurors’ emotions and caused undue prejudice against 

Rose. The use of those phrases did not deprive Rose of a fundamentally fair trial or due 

process. 

4. Compulsory Testimony 

 Rose brought a motion in limine to establish that he had the right, on equal 

protection grounds, to not be compelled to testify for the People. He cited In re Luis

(2004) 116 Cal.App.4th 1397 (Luis). The trial court denied the motion. The People 

called Rose to testify. 

 Rose now argues that his right to equal protection was violated. He cites People v.

Haynie (2004) 116 Cal.App.4th 1224 (Haynie) as well as Luis, supra, 116 Cal.App.4th 

1397. 

 In Haynie, the Fifth District concluded that a person who was committed after 

being found not guilty by reason of insanity (NGI) and who is the subject of a petition to 

extend a commitment under Penal Code section 1026.5, subdivision (b), has the right 

under that section’s subdivision (b)(7) to refuse to testify at the extended commitment 

trial.6

 (Haynie, supra, 116 Cal.App.4th at p. 1228, but see People v. Superior Court 

 

the presumption that the petition is not true. [¶] The mere fact of the petition alleging 

such a phrase as sexually violent predator will no doubt elicit a visceral reaction in you. 

It is an accusation. It is not the truth. It is a petition. You’re going to decide whether it’s 

true or not. . . . The jury is going to objectively decide whether or not the People proved 

those elements beyond a reasonable doubt.” 

6

 Penal Code section 1026.5, subdivision (b)(7), provides in pertinent part: “The 

person shall be entitled to the rights guaranteed under the federal and State Constitutions 

(continued) 
12 

(Williams) (1991) 233 Cal.App.3d 477, 488.) In Luis, the Fifth District concluded a 

potential committee under the extended detention scheme for dangerous youthful 

offenders set forth in section 1800 et seq. has the right under section 1801.5 to refuse to 

testify at the extended commitment trial.7

 (Luis, supra, 116 Cal.App.4th at p. 1403; 

accord Joshua D. v. Superior Court (2007) 157 Cal.App.4th 549, 558, 565; but see 

People v. Lopez (2006) 137 Cal.App.4th 1099, 1116; but cf. Conservatorship of Bones

(1987) 189 Cal.App.3d 1010, 1015-1017 [§ 5303]; People v. Henderson (1981) 117 

Cal.App.3d 740, 748 [former § 6316.2, subd. (e)].) The SVPA contains no provision, 

analogous to those considered in Haynie and Luis, granting an alleged SVP the 

constitutional rights guaranteed in criminal proceedings. 

 “[E]qual protection principles are often invoked in civil commitment cases to 

ensure that the statutory scheme applicable to a particular class of persons has not treated 

them unfairly in comparison with other groups with similar characteristics. [Citation.]” 

(People v. Barrett (2012) 54 Cal.4th 1081, 1107.) “[E]qual protection safeguards against 

the arbitrary denial of benefits to a certain defined class of individuals . . . .” (People v.

McKee (2010) 47 Cal.4th 1172, 1207 (McKee I).) “[W]hen certain due process 

protections for those civilly committed are guaranteed by statute, even if not 

constitutionally required, the denial of those protections to one group must be reasonably 

justified in order to pass muster under the equal protection clause.” (Ibid.) 

 

for criminal proceedings.” Hudec v. Superior Court, S213003 (pet. review granted Oct. 

2, 2013) is pending before the California Supreme Court. That case presents the 

following issue on review: “Does Penal Code section 1026.5, subdivision (b)(7), give a 

person who was committed after being found not guilty of criminal charges by reason of 

insanity the right to refuse to testify in a proceeding to extend that civil commitment?” 

(California Supreme Court 

http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=

2054905&doc_no=S213003 [as of Aug. 27, 2014].) 

7

 Section 1801.5 provides in part: “The person shall be entitled to all rights 

guaranteed under the federal and state constitutions in criminal proceedings.” 
13 

 “ ‘ “The first prerequisite to a meritorious claim under the equal protection clause 

is a showing that the state has adopted a classification that affects two or more similarly 

situated groups in an unequal manner.” [Citations.] This initial inquiry is not whether 

persons are similarly situated for all purposes, but “whether they are similarly situated for 

purposes of the law challenged.” ’ (Cooley v. Superior Court (2002) 29 Cal.4th [228,] 

253.) In other words, we ask at the threshold whether two classes that are different in 

some respects are sufficiently similar with respect to the laws in question to require the 

government to justify its differential treatment of these classes under those laws.” 

(McKee I, supra, 47 Cal.4th at p. 1202.) “Where two or more groups are properly 

distinguishable for purposes of the challenged law, it is immaterial if they are 

indistinguishable in other respects. (Cooley, supra, at p. 253.)” (People v. Barrett, 

supra, 54 Cal.4th at p. 1107.) 

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

similarly situated with respect to an equal protection claim focusing on differences in the 

duration of commitment. (McKee I, supra, 47 Cal.4th at p. 1207; see id. at p. 1203 

[mentally disordered offenders (MDO’s) and SVP’s also similarly situated for “present 

purposes”].) The court’s reasoning is applicable to Rose’s present equal protection claim. 

 Dangerous youthful offenders whose detentions are extended under section 1800 

et seq. and SVP’s are not similarly situated for all purposes. (Compare In re Lemanuel C. 

(2007) 41 Cal.4th 33, 47-49 with In re Howard N. (2005) 35 Cal.4th 117, 131, 135.) 

With respect to a statutorily provided privilege against self-incrimination, however, the 

People have not identified any principled basis for concluding that SVP’s and dangerous 

youthful offenders are not similarly situated. The same policy considerations appear to 

be equally applicable to both groups. (See Joshua D. v. Superior Court, supra, 157 

Cal.App.4th at p. 565; cf. Malloy v. Hogan (1964) 378 U.S. 1, 8.) As the California 

Supreme Court has recognized, potential committees under civil commitment schemes 
14 

have the same interest at stake, namely “the loss of liberty through involuntary civil 

commitment.” (McKee I, supra, 47 Cal.4th at p. 1204.) 

 We conclude that SVP’s are similarly situated with respect to both NGI’s and 

dangerous youthful offenders for purposes of a statutory privilege of not testifying in the 

People’s case at a commitment trial.8

 We assume, for purposes of this appeal, that both 

the latter groups are statutorily entitled to that right since a contrary conclusion would be 

at odds with the broad statutory language of those commitment schemes, which appears 

to incorporate at least the trial rights of criminal defendants. (See Pen. Code, § 1026.5, 

subd. (b)(7); § 1801.5; Luis, supra, 116 Cal.App.4th at p. 1403; Haynie, supra, 116 

Cal.App.4th at p. 1228; see also In re D.B. (2014) 58 Cal.4th 941, 945-946.) Since the 

People have not satisfied the strict scrutiny standard of review (see McKee I, supra, 47 

Cal.4th at pp. 1197-1198, 1208-1209), we assume the trial court should have likewise 

afforded Rose such statutory privilege. 

 We nevertheless conclude that the remedy is not reversal. “When a court 

concludes that a statutory classification violates the constitutional guarantee of equal 

protection of the laws, it has a choice of remedies. (See Califano v. Westcott (1979) 443 

U.S. 76, 89-91 [61 L. Ed. 2d 382, 99 S.Ct. 2655] [court may either withdraw benefits of 

welfare statute from favored class or extend those benefits to excluded class]; Heckler v.

Mathews (1984) 465 U.S. 728, 740 [79 L. Ed. 2d 646, 104 S.Ct. 1387] [same]; People v.

Liberta (1984) 64 N.Y.2d 152 [474 N.E.2d 567, 578, 485 N.Y.S.2d 207] [court can either 

invalidate rape statute or expand it to include spousal rape].)” (People v. Hofsheier

(2006) 37 Cal.4th 1185, 1207.) “In choosing the proper remedy for an equal protection 

 

8

 Of course, under the self-incrimination clause of the Fifth Amendment, which 

applies to the states through the Fourteenth Amendment (Malloy v. Hogan, supra, 378 

U.S. at p. 6), a person has the constitutional right, in any proceeding, not to answer 

official questions that might incriminate him in future criminal proceedings. (See Allen 

v. Illinois (1986) 478 U.S. 364, 368.) 
15 

violation, [the courts’] primary concern is to ascertain, as best we can, which alternative 

the Legislature would prefer. [Citations.]” (Id. at pp. 1207-1208.) 

 Rose had no independent due process right to refuse to testify at his SVP trial. 

(See Allen v. Illinois, supra, 478 U.S. at p. 375; People v. Leonard (2000) 78 Cal.App.4th 

776, 792-793; see also Cramer v. Tyars (1979) 23 Cal.3d 131, 137-138.) The 

constitutional right invoked by Rose is equal treatment. Assuming the trial court should 

have extended to Rose a statutory privilege against testifying at his SVP trial under equal 

protection principles, the Watson standard of review is applicable to the denial of that 

right as would be the case for other potential committees expressly afforded that statutory 

right but erroneously denied it. (See People v. Barrett, supra, 54 Cal.4th at p. 1151 

(conc. & dis. opn. of Liu, J.); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); cf. 

People v. Epps (2001) 25 Cal.4th 19, 28-29 [Watson test applied to denial of statutory 

right to jury trial].) 

 Under the Watson standard of review, “a ‘miscarriage of justice’ should be 

declared only when the court, ‘after an examination of the entire cause, including the 

evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to 

the appealing party would have been reached in the absence of the error.” (Watson, 

supra, 46 Cal.2d at p. 834; see Cal. Const., art. VI, § 13 [“No judgment shall be set 

aside . . . unless, after an examination of the entire cause, including the evidence, the 

court shall be of the opinion that the error complained of has resulted in a miscarriage of 

justice”].) The Watson test is “based upon reasonable probabilities rather than upon mere 

possibilities.” (Watson, supra, p. 837.) 

 In this case, Rose has not established that there is a reasonable probability that a 

result more favorable to him would have been reached if he had not been compelled to 

testify. The evidence showed that he had been convicted of offenses related to sexually 

molesting two boys. He admitted to having three to five victims, all of whom he 

molested multiple times. Despite the penal consequences of sexual offending, he had 
16 

reoffended with Perry. He had groomed both identified victims. Rose had a long history 

of collecting and soliciting child pornography, which was a risk factor for reoffense. 

Despite being confined in Atascadero State Hospital, Rose still possessed pornographic 

materials on several occasions. The People’s experts concurred that Rose had a 

pedophilia disorder, which could not be cured, and he was an SVP. The testimony of 

Drs. Anderson and Park was not strong. Both failed to accept the nonexclusive type of 

pedophilia. Dr. Park had previously diagnosed Rose with having pedophilia, 

nonexclusive type, in remission. Rose had admitted having sexual fantasies or urges 

involving children to Dr. Anderson and he had expressed his sexual attraction to children 

or the victims to both psychologists. While Dr. Carvajal believed that Rose had done 

very well in early treatment, Dr. Carvajal agreed that pedophilia had no cure. At the time 

of trial, Rose had not yet completed phase two of the five phases of treatment, which was 

focused on learning to manage the disorder. 

5. No Reversal for Cumulative Errors 

 Rose maintains that the judgment must be reversed due to the cumulative effect of 

multiple errors. Since we have not found multiple errors, this argument is without merit. 

B. Constitutional Challenges to Indeterminate Term of Commitment 

1. Indeterminate Term does not Violate Equal Protection

 Rose asserts that the indeterminate commitment under the SVPA violates equal 

protection because persons who are civilly committed under other laws have limited 

terms of commitment and the burden is on the government to justify extending a 

commitment. On appeal, he focuses on the reasons this court should reject People v.

McKee (2012) 207 Cal.App.4th 1325 (McKee II). 

a. McKee I and McKee II 

 In McKee I, supra, 47 Cal.4th 1172, the California Supreme Court recognized that 

persons civilly committed as MDO’s or NGI’s are subject to short, definite terms of 

commitment whereas persons found to be SVP’s are committed to an indeterminate term 
17 

of commitment. (Id. at pp. 1202, 1207.) The court concluded that SVP’s were similarly 

situated to these other groups of committees. (Id. at pp. 1204, 1207.) It remanded the 

matter to the trial court “to determine whether the People . . . can demonstrate the 

constitutional justification for imposing on SVP’s a greater burden than is imposed on 

MDO’s and NGI’s in order to obtain release from commitment.” (Id. at pp. 1208-1209, 

fn. omitted.) The trial court resolved this question in favor of the People on remand and 

its order was affirmed on appeal in McKee II. (McKee II, supra, 207 Cal.App. 4th at 

p. 1350.) The Supreme Court denied review of McKee II ( review den. Oct. 10, 2012, 

S204503). 

b. Challenges to McKee II 

 Rose first challenges the application of the McKee II decision to his own case. He 

claims he is entitled to challenge the constitutionality of the SVPA’s indeterminate 

commitment scheme on equal protection grounds and have an evidentiary hearing on the 

issue. He argues that McKee II binds only defendant McKee and does not constitute 

binding authority under the doctrine of collateral estoppel. 

 The People do not assert that the collateral estoppel doctrine applies here and are 

not suggesting that Rose is the same party as, or in privity with, defendant McKee, which 

is a requirement for applying the doctrine. (See Lucido v. Superior Court (1990) 51 

Cal.3d 335, 341.) While we acknowledge that an appellate opinion does not ordinarily 

bind another court of appeal (see Auto Equity Sales, Inc. v. Superior Court of Santa Clara 

County (1962) 57 Cal.2d 450, 455), it can serve as persuasive authority. (See Bradley v.

Gilbert (2009) 172 Cal.App.4th 1058, 1070.) 

 The California Supreme Court clearly intended to avoid an unnecessary 

multiplicity of proceedings when it remanded the matter in McKee I. (See People v.

Kisling (2014) 223 Cal.App.4th 544, 548, review den. Apr. 23, 2014, S216859.) Its 

remand was to allow the government an opportunity to “demonstrate the constitutional 

justification for imposing on SVP’s a greater burden than is imposed on MDO’s and 
18 

NGI’s in order to obtain release from commitment.” (McKee I, supra, 47 Cal.4th at 

pp. 1208-1209, fn. omitted.) The court stated “[i]t must be shown 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, italics 

added.) It explained that this showing could be made “in a variety of ways,” including 

demonstrating that the “inherent nature of the SVP’s mental disorder makes recidivism as 

a class significantly more likely.” (Ibid., italics added.) “The Supreme Court’s emphasis 

on classwide proof, together with its suspension of activity in grant-and-hold cases to 

avoid an unnecessary multiplicity of proceedings, demonstrates to us the Supreme Court 

intended the equal protection challenge to the Amended SVPA be resolved on a 

classwide basis in a single case.” (People v. McDonald (2013) 214 Cal.App.4th 1367, 

1378, review den. Jul. 10, 2013, S210418.) The constitutional inquiry in McKee II was 

not dependent upon the circumstances or characteristics of an individual person found to 

be an SVP. 

 Rose next maintains that McKee II incorrectly reviewed the equal protection claim 

by (1) using a deferential rather than an independent standard of review, (2) applying the 

rational basis test rather than the strict scrutiny test, (3) considering evidence not actually 

considered by the electorate in enacting Proposition 83, (4) not requiring the SVPA to be 

narrowly tailored, and (5) failing to address or distinguish In re Calhoun (2004) 121 

Cal.App.4th 1315. We reject each of these claims. 

 “The Court of Appeal in McKee II applied the correct standard of review. The 

court stated, ‘[a]lthough the trial court heard the testimony of many witnesses and 

received in evidence many exhibits, the instant constitutional question involved mixed 

questions of law and fact that are predominantly legal, if not purely legal questions, 

which are subject to de novo review.’ (McKee II, supra, 207 Cal.App.4th at p. 1338.) 

The court then explained that its independent review of the evidence required it to 
19 

determine ‘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.’ (Id. at p. 1339.) That standard is consistent with the 

applicable standard of review the Supreme Court articulated in McKee I: ‘When a 

constitutional right, such as the right to liberty from involuntary confinement, is at stake, 

the usual judicial deference to legislative findings gives way to an exercise of 

independent judgment of the facts to ascertain whether the legislative body “ ‘has drawn 

reasonable inferences based on substantial evidence.’ ” ’ (McKee I, supra, 47 Cal.4th at 

p. 1206.)” (People v. McDonald, supra, 214 Cal.App.4th at p. 1379.) 

 Rose nevertheless asserts that the appellate court in McKee II did not apply a de 

novo standard, pointing to the opinion’s references to “substantial evidence.” McKee II

concluded “the trial court correctly found the People presented substantial evidence to 

support a reasonable perception by the electorate that SVP’s present a substantially 

greater danger to society than do MDO’s or NGI’s, and therefore the disparate treatment 

of SVP’s under the Act is necessary to further the People’s compelling interests of public 

safety and humane treatment of the mentally disordered.” (McKee II, supra, 207 

Cal.App.4th at pp. 1330-1331.) Nothing in McKee II suggests that the appellate court 

used the word “substantial” to refer to the substantial evidence test rather than to 

constitutional sufficiency of the evidence. The court understood that the burden was on 

the government to present sufficient evidence to satisfy the strict scrutiny standard. (See 

id. at pp. 1335, 1338, fn. 3.) 

 Rose insists that the reviewing court in McKee II applied the rational basis test. 

Reasonable speculation establishing the rationality of a legislative classification, 

unsupported by evidence or empirical data in the record, meets the rational basis test. 

(See Heller v. Doe by Doe (1993) 509 U.S. 312, 319-321.) The court clearly understood 

the strict scrutiny test applied and it required the government to present evidence showing 

“both a compelling state interest justifying the disparate treatment and that the disparate 
20 

treatment is necessary to further that compelling state interest. [Citations.]” (McKee II, 

supra, 207 Cal.App.4th at p. 1349.) 

 Citing a number of United States Supreme Court cases, Rose argues that the 

appellate court in McKee II improperly considered evidence not before the electorate that 

approved Proposition 83. The cases cited by Rose stand for the principle that an 

after-the-fact rationalization for a challenged classification does not satisfy the strict 

scrutiny standard of review. (See, e.g., U.S. v. Virginia (1996) 518 U.S. 515, 533 [a 

state’s justification for a challenged gender classification “must be genuine, not 

hypothesized or invented post hoc in response to litigation”], 535-536 [“a tenable 

justification” for gender classification “must describe actual state purposes, not 

rationalizations for actions in fact differently grounded”]; Shaw v. Hunt (1996) 517 U.S. 

899, 908, fn. 4 [“[A] racial classification cannot withstand strict scrutiny based upon 

speculation about what ‘may have motivated’ the legislature. To be a compelling 

interest, the State must show that the alleged objective was the legislature's ‘actual 

purpose’ for the discriminatory classification [citation], and the legislature must have had 

a strong basis in evidence to support that justification before it implements the 

classification.”].) 

 We do not think McKee I departs from that principle. The higher recidivism rate 

of sex offenders was a central concern declared in Proposition 83 itself, which was set 

forth in the official voter’s guide. (Official Voter’s Information Guide, Gen. Elec. (Nov. 

7, 2006), text of Prop. 83, § 2, subd. (b), p. 127.) The Supreme Court determined that 

Proposition 83’s “legislative findings recited in the ballot initiative do not by themselves 

justify the differential treatment of SVP’s.” (McKee I, supra, 47 Cal.4th at p. 1207.) 

“When a constitutional right, such as the right to liberty from involuntary confinement, is 

at stake, the usual judicial deference to legislative findings gives way to an exercise of 

independent judgment of the facts to ascertain whether the legislative body ‘has drawn 

reasonable inferences based on substantial evidence.’ [Citations.]” (Id. at p. 1206.) 
21 

Since “the government ha[d] not yet shown that the special treatment of SVP’s is validly 

based on the degree of danger reasonably perceived as to that group, nor whether it arises 

from any medical or scientific evidence” (id. at p. 1210), McKee I gave the People “an 

opportunity to make the appropriate showing on remand.” (Id. at p. 1208; see id. at 

p. 1210 [“legislative distinctions in classes of persons subject to civil commitment” must 

be “factually based”].) We are, of course, bound by the California Supreme Court’s 

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

 Rose also contends that the McKee II’s equal protection analysis was flawed 

because it did not evaluate whether the challenged provisions of the SVPA were narrowly 

tailored. (See McKee II, supra, 207 Cal.App.4th at pp. 1348-1349.) We agree that the 

strict scrutiny test is not satisfied if there is an equally efficacious but less constitutionally 

burdensome means (i.e., less restrictive alternative) of accomplishing a compelling state 

interest. (See, e.g., Citizens United v. FEC (2010) 558 U.S. 310, 340; Zablocki v. Redhail

(1978) 434 U.S. 374, 388-389 ; Dunn v. Blumstein (1972) 405 U.S. 330, 342-342.) 

However, as stated, the McKee II court understood that the strict scrutiny test required 

the government to “show 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, at p. 1349.) Given the evidence produced in 

McKee II by the People that many SVP’s do not participate in treatment and paraphilia 

disorders are pervasive, persist for a lifetime, and are not treatable with medication (id. at 

pp. 1345-1346), it appears McKee II reached the correct result. Rose has not suggested 

any less drastic means of protecting the compelling state interests at stake. Narrow 

tailoring to serve a compelling state interest does not require exhaustion of every 

conceivable alternative. (See Grutter v. Bollinger (2003) 539 U.S. 306, 339.) 

 Rose also complains that McKee II failed to address or distinguish In re Calhoun

(2004) 121 Cal.App.4th 1315 (Calhoun). Calhoun found that “[f]or purposes of the law 

concerning the right to refuse antipsychotic medication, MDO’s and SVP’s are similarly 
22 

situated.” (Id. at p. 1351; see McKee I, supra, 47 Cal.4th at p. 1203 [citing Calhoun to 

support conclusion SVP’s and MDO’s are similarly situated].) Calhoun held that, under 

equal protection principles, SVP’s had the same right as MDO’s to refuse antipsychotic 

medication. (Calhoun, supra, at pp. 1322, 1350-1354.) 

Calhoun focused on whether there were any differences between SVP’s and 

MDO’s regarding the need for and effectiveness of antipsychotic medication and it found 

the government “failed to demonstrate a compelling state interest that justifies the 

distinction between MDO’s and SVP’s concerning the [committee’s] right to refuse 

antipsychotic medication.” (Calhoun, supra, 121 Cal.App.4th at pp. 1353-1354.) In 

contrast, McKee II found significant differences in SVP’s and MDO’s recidivism rates, 

dangerousness, and diagnosis and treatment. (McKee II, supra, 207 Cal.App.4th at 

pp. 1340-1347.) Calhoun does not, as Rose claims, reveal a defect in McKee II’s logic. 

As Justice Chin has observed, “[t] he exact criteria for medicating mentally disordered 

offenders is an entirely different matter from the procedures adopted for releasing them 

into society.” (McKee I, supra, 47 Cal.4th at p. 1220, fn. 4 (conc. & dis. opn. of Chin, 

J.).) 

 We find the equal protection arguments advanced in this appeal are without merit 

and do not require a remand for a further evidentiary hearing. 

2. Indeterminate Commitment Does Not Violate Due Process 

 Rose argues that the indeterminate term of commitment violates due process. He 

acknowledges, however, that McKee I rejected a due process challenge to the SVPA. 

(See McKee I, supra, 47 Cal.4th at pp. 1188-1193.) In reaching that conclusion, the 

California Supreme Court partially relied on Jones v. United States (1983) 463 U.S. 354, 

an NGI case. (See McKee I, supra, at p. 1191.) The court stated in part: “Although 

McKee was not found not guilty by reason of insanity, he has been found beyond a 

reasonable doubt in his initial commitment to meet the definition of an SVP. That 

finding is, for present constitutional purposes, the functional equivalent of the NGI 
23 

acquittal in Jones.” (Ibid.) It concluded that “as in Jones, the requirement that McKee, 

after his initial commitment, must prove by a preponderance of the evidence that he is no 

longer an SVP does not violate due process.” (Ibid.) Rose insists that his case is 

different from McKee I because the evidence suggests that his actuarial prediction of 

future recidivism will soon be reduced to zero and, therefore, his commitment is not the 

functional equivalent of an NGI commitment. 

 In McKee I, the Supreme Court determined with respect to the due process 

challenge: “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.’ 

(Foucha v. Louisiana (1992) 504 U.S. 71, 77, 112 S.Ct. 1780.) Given that the denial of 

access to expert opinion when an indigent individual petitions on his or her own to be 

released may pose a significant obstacle to ensuring that only those meeting SVP 

commitment criteria remain committed, we construe section 6608, subdivision (a), read 

in conjunction with section 6605, subdivision (a), to mandate appointment of an expert 

for an indigent SVP who petitions the court for release.” (McKee I, supra, 47 Cal.4th at 

p. 1193.) The court then held that the SVPA, as construed, “does not violate the due 

process clause.” (Ibid.) 

 We are bound by McKee I (Auto Equity Sales, Inc. v. Superior Court, supra, 57 

Cal.2d at p. 455) and must reject Rose’s due process contention. 

3. No Violation of the Ex Post Facto or Double Jeopardy Clause 

 A judicial determination that a law is not punitive “removes an essential 

prerequisite” for both double jeopardy and ex post facto claims. (Kansas v. Hendricks

(1997) 521 U.S. 346, 369.) In McKee I, the Supreme Court concluded: “[T]he 

nonpunitive objectives of the [SVP] Act—treatment for the individual committed and 

protection of the public—remain the same after Proposition 83. Moreover, under the Act 
24 

after Proposition 83, as before, a person is committed only for as long as he meets the 

SVP criteria of mental abnormality and dangerousness. As such, the Proposition 83 

amendments at issue here cannot be regarded to have changed the essentially nonpunitive 

purpose of the Act.” (McKee I, supra, 47 Cal.4th at p. 1194.) 

 After considering “the seven-factor test articulated in Kennedy v.

Mendoza-Martinez (1963) 372 U.S. 144, 168-169” (McKee I, supra, 47 Cal.4th at 

p. 1195), the Supreme Court held that “the Proposition 83 amendments do not make the 

Act punitive and accordingly do not violate the ex post facto clause.” (Ibid.) Again, we 

are bound by McKee I. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at 

p. 455.) The Supreme Court’s determination that the SVPA is not punitive is also 

dispositive of Rose’s double jeopardy claim. (See Kansas v. Hendricks, supra, 521 U.S. 

at p. 369.) 

DISPOSITION 

 The August 17, 2012 order of commitment is affirmed.
 _________________________________ 

 ELIA, J. 

WE CONCUR: 

_______________________________ 

RUSHING, P. J. 

_______________________________ 

PREMO, J.