Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of No. MH102146 San Diego County, Howard H. Shore, Judge.
IRION, J.
Gary Wayne Gillispie appeals from a judgment committing him to the custody of the State Department of Mental Health (DMH) for an indeterminate term under the Sexually Violent Predators Act ("SVPA"). (Welf. & Inst. Code, § 6600 et seq.) Gillispie contends that the judgment must be reversed because his commitment: (i) was initiated after DMH evaluated him in accordance with a standardized assessment protocol which was a void "underground regulation"; (ii) violates his constitutional right to due process because the SVPA places the burden to demonstrate that a person no longer requires confinement on the committed individual, not the state; (iii) imposes duplicative and retroactive punishment on him in violation of the state and federal constitutional guarantees against ex post facto laws and double jeopardy; and (iv) violates his constitutional right to equal protection because the SVPA treats a sexually violent predator ("SVP") different from other similarly situated civilly committed persons without adequate justification.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
We conclude Gillispie's equal protection claim has potential merit under our Supreme Court's recent decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee). Accordingly, we reverse the judgment and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background
In 1991 Gillispie was convicted of six counts of committing lewd and lascivious acts upon a minor under the age of 14 (Pen. Code, § 288, subd. (a)). In 1992 he was again convicted on four counts of committing lewd and lascivious acts upon a minor under the age of 14 (§ 288, subd. (a)), and three counts of oral copulation with a minor (§ 288a, subd. (c)). The cases involved four male victims who were ages 11 to 14 at the time of the offenses. Gillispie was sentenced to 22 years in prison and has been confined in state hospitals since 1991.
In 2000 Gillispie was initially found to be an SVP within the meaning of the SVPA and was committed to the DMH for a two-year term. His term was extended for successive two-year terms until 2008. In January 2008 the San Diego County District Attorney filed a petition seeking Gillispie's indefinite commitment under the SVPA.
A probable cause hearing was held on April 23, 2008. Based upon expert testimony and documentary evidence presented at that hearing, the trial court found probable cause to believe Gillispie was then currently an SVP. Gillispie was bound over for trial. Gillispie waived his right to a jury trial.
B. The Evidence at Trial
At trial DMH psychologists Dale Arnold and Douglas Korpi testified for the prosecution and opined that Gillispie had a current mental disorder, pedophilia, which affected his emotions and volition, and predisposed him to the commission of criminal sexual acts. Both psychologists opined that as a result of his mental condition, Gillispie was likely, upon release from custody, to engage in future sexually violent predatory behavior.
While an SVP proceeding is civil in nature (see People v. Allen (2008) 44 Cal.4th 843, 860), we follow the common practice of characterizing the parties to the action as the "prosecution" and "defense." (Id. at p. 866; People v. Hurtado (2002) 28 Cal.4th 1179, 1192 (Hurtado) ["Although the SVPA is a civil proceeding, its procedures have many of the trappings of a criminal proceeding."].)
Both experts testified that they used various actuarial instruments to measure Gillispie's risk of reoffense. Arnold's test of Gillispie using three different actuarial instruments, one of which was the STATIC-99, indicated Gillispie presented a high risk for reoffense. Using the same actuarial instruments, Korpi opined Gillispie's overall risk of reoffense was 15 percent to 28 percent over five years, which was a serious and well-founded risk.
Psychologist Christopher Heard testified for the defense, opining that Gillispie did not currently suffer from the type of mental disorder that would qualify him as an SVP. According to Heard, Gillispie suffered from an affective or mood disorder, which may have contributed to his past substance abuse. Absent Gillispie's substance abuse pattern and underlying psychiatric disturbance, his pedophilia alone was not sufficient to constitute a mental disorder predisposing him to sexually violent predatory acts. Heard testified pedophilia is not necessarily a chronic condition, nor does it create a risk for reoffense, because the condition fades with age.
Gillispie testified that he believes he has pedophilia but has benefited from treatment and has learned techniques to avoid developing sexual fantasies about children.
C. The Trial Court's Ruling
On March 2, 2009, the trial court found that although Gillispie was "headed in the right direction and very close to looking at a conditional release program, " he met the SVP criteria beyond a reasonable doubt. The trial court issued a written order finding that Gillispie "still has a diagnosed mental disorder that makes him a danger to the health and safety of others, in that it is likely he will engage in sexually violent predatory criminal behavior." The court committed Gillispie for an indeterminate term to the custody of the DMH for appropriate treatment and confinement in a secure facility designated by the DMH.
DISCUSSION
We discuss Gillispie's various appellate challenges after providing a general overview of the SVPA.
I.
Overview of the SVPA
The SVPA provides for the involuntary civil commitment of certain criminal offenders following the completion of their prison terms. To be eligible for commitment under the Act, an offender must be classified as an SVP, which is defined as "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) " 'Diagnosed mental disorder' includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).)
SVPA proceedings are initiated by the Secretary of the Department of Corrections and Rehabilitation (the Secretary). When the Secretary determines that an inmate appears to meet the SVP criteria, the inmate is referred to the DMH for assessment. (§ 6601, subd. (b).) The DMH "shall evaluate the person in accordance with a standardized assessment protocol, developed and updated by the [DMH]." (§ 6601, subd. (c).) The protocol must involve an evaluation by two doctors "to determine whether the person is [an SVP]." (§ 6601, subds. (d), (c).)
If both doctors concur that "the person has a diagnosed mental disorder such that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, " the DMH must request the filing of a commitment petition in the superior court in the county where the offender was convicted of the crime for which he or she is currently imprisoned. (§ 6601, subds. (d), (i).)
Once the petition is filed, the superior court holds a hearing to determine whether there is "probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6602, subd. (a).) If no probable cause is found, the petition is dismissed. However, if the court finds probable cause within the meaning of this section, the court orders a trial to determine whether the person is an SVP. (§ 6602, subd. (a).) At trial, the fact finder must determine "whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release from the jurisdiction of the Department of Corrections or other secure facility." (§ 6602, subd. (a); see also § 6600, subd. (a)(1).)
The alleged SVP is entitled "to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports." (§ 6603, subd. (a).)
Sexual violence is predatory when it is " 'directed "toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." ' " (Hurtado, supra, 28 Cal.4th at p. 1182; § 6600, subd. (e).)
At the conclusion of the trial, the trier of fact "shall determine whether, beyond a reasonable doubt, the person is [an SVP]." (§ 6604.) "If the court or jury is not satisfied beyond a reasonable doubt that the person is [an SVP], the court shall direct that the person be released at the conclusion of the term for which he or she was initially sentenced, or that the person be unconditionally released at the end of parole, whichever is applicable. If the court or jury determines that the person is [an SVP], the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health." (§ 6604; see generally People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.)
A person found to be an SVP is entitled to an annual review to determine whether he or she is entitled to release or conditional release. (§ 6605, subd. (a).)
If the DMH determines that the committed person is no longer an SVP or, alternatively, can safely be released to a less restrictive treatment setting, it shall file a petition ("section 6605 petition") with the superior court to that effect. (§ 6605, subd. (b).) A probable cause hearing and subsequent trial follow at which the state must prove "beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged." (§ 6605, subd. (d).) If the fact finder determines that the state has not met its burden, the committed person must be released. (§ 6605, subd. (e).)
A parallel provision permits the DMH to seek judicial review through habeas corpus proceedings of a commitment if it determines that the committed person is no longer an SVP. If in such proceedings "the superior court determines that the person is no longer [an SVP], he or she shall be unconditionally released and unconditionally discharged." (§ 6605, subd. (f); see generally People v. Allen, supra, 44 Cal.4th at p. 873.)
If the DMH does not file a section 6605 petition, the SVP may, within one year of the initial commitment and at yearly intervals thereafter, petition for release without the concurrence of the DMH. (§ 6608.) The SVP is entitled to the assistance of counsel. (§ 6608, subd. (a).) Unless the court deems the petition to be frivolous, or substantially identical to a previously denied petition (see ibid.), a trial is held with the court acting as finder of fact. (§ 6608, subd. (d).) At trial, the committed person must demonstrate that he or she is no longer an SVP by a preponderance of the evidence. (§ 6608, subd. (i).) If the trial court rules in favor of the committed person, "the court shall order the committed person placed with an appropriate forensic conditional release program operated by the state for one year." (§ 6608, subd. (d).) At the end of the year, the court holds a hearing to determine whether the (former) SVP should be unconditionally released. (Ibid.)
Section 7250 also states that "[a]ny person who has been committed is entitled to a writ of habeas corpus..." and subsequent judicial review of his or her confinement.
II.
DMH's Use of the 2007 Clinical Evaluator Handbook and Standardized Assessment Protocol to Evaluate Gillispie Under Section 6601 Does Not Require Reversal
Prior to the filing of the petition to commit Gillispie under the SVPA, he was evaluated by DMH to determine if he was an SVP. (§ 6601, subd. (c).) To conduct the evaluation, DMH used the "Clinical Evaluator Handbook and Standardized Assessment Protocol (2007)" (the 2007 Protocol). In early 2008 a petition was filed with the Office of Administrative Law (OAL) challenging as underground regulations various provisions of the 2007 Protocol. On August 15, 2008, the OAL declared the 2007 Protocol used by the DMH to be a "regulation" not adopted in accordance with the California Administrative Procedures Act ("APA") and therefore void. (People v. Medina (2009) 171 Cal.App.4th 805, 814 (Medina).) Although the OAL specifically restricted its inquiry to 10 provisions within the 2007 Protocol, its decision effectively invalidated the operative content of the protocol. (Medina, at p. 814.)
On February 24, 2009, Gillispie filed a motion to dismiss the petition, based on the DMH's use of the 2007 Protocol to evaluate him as a potential SVP. The trial court denied the motion. Gillespie did not challenge this ruling by filing an application for an extraordinary writ or petition for habeas corpus.
On appeal, Gillispie contends because the 2007 Protocol was an illegally adopted "regulation, " it cannot qualify as a standardized assessment protocol within the meaning of the SVPA. From this, he reasons that he was not found to qualify as an SVP by two evaluators as required by statute and, absent a legally conducted evaluation, the district attorney lacked the authority to file a petition seeking his commitment under the SVPA. He contends the petition was unauthorized and deprived the court of the fundamental jurisdiction to commit him under the SVPA, requiring that the judgment be reversed. He also contends we are required to order that he be released because the petition was void ab initio, and the filing of a new petition would be time-barred. (People v. Allen (2007) 42 Cal.4th 91, 104.) We disagree.
Accepting, without deciding, Gillispie's argument that the 2007 Protocol is a void underground regulation, we nevertheless determine that reversal on this basis is not required. As we discuss below, the trial court had the fundamental jurisdiction or power to decide Gillispie's SVPA commitment petition, and, as Gillispie did not seek writ relief after the court denied his pretrial motion to dismiss the petition, he is required on appeal to demonstrate that he was prejudiced by DMH's use of the 2007 Protocol, which he fails to do.
The Attorney General does not dispute Gillispie's contention as to the ruling of the OAL regarding the 2007 Protocol. We therefore proceed on the assumption that the conclusion of the OAL is correct. (See Grier v. Kizer (1990) 219 Cal.App.3d 422, 428 [recognizing that the OAL's determination in this regard is entitled to due deference].) Given our resolution of the appeal, we need not resolve the legal question whether the 2007 Protocol is a void underground regulation.
A. The Trial Court Had the Power to Decide Gillispie's SVPA Petition
The term "jurisdiction in the fundamental sense" means the "legal power to hear and determine a cause." (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 (Pompa-Ortiz).) "Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.)
Because the use of an evaluation based on an invalid assessment protocol, though erroneous, is not a defect going to the validity of the commitment petition, but rather a procedural defect, it does not deprive the court of fundamental jurisdiction or the power to hear or determine an SVPA case. (In re Ronje (2009) 179 Cal.App.4th 509, 518 (Ronje) ["Use of the evaluations based on the invalid assessment protocol, though erroneous, does not deprive the trial court of fundamental jurisdiction over the SVPA commitment petition."]; People v. Whaley (2008) 160 Cal.App.4th 779, 804 ["In general, the only act that may deprive a court of jurisdiction is the People's failure to file a petition for recommitment before the expiration of the prior commitment."]); cf. People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1128-1130 [the failure to obtain the evaluations of two mental health professionals, as required under § 6601, subd. (d), did not deprive the court of fundamental jurisdiction to act on an SVP petition].)
Therefore, the fact that the 2007 Protocol used by the DMH to evaluate Gillispie was adopted in violation of the APA does not require the per se dismissal of Gillispie's petition. Rather, such illegalities must be reviewed "under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination." (Pompa-Ortiz, supra, 27 Cal.3d at p. 529, followed by Ronje, supra, 179 Cal.App.4th at p. 517.)
The probable cause hearing under the SVPA is analogous to a preliminary hearing in a criminal case as both are designed to protect the accused from having to face trial on groundless or otherwise unsupported charges. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 247 (Cooley); People v. Hayes (2006) 137 Cal.App.4th 34, 43 (Hayes).)
Under Pompa-Ortiz, as appliedto SVPA proceedings in Ronje, " '[t]he right to relief without any showing of prejudice will be limited to pretrial challenges of irregularities. At that time, by application for extraordinary writ, the matter can be expeditiously returned to the magistrate for proceedings free of the charged defects.' [Citation omitted.] 'In other words, a defendant who feels he has suffered error at his preliminary hearing can seek to correct that error by filing a pretrial writ petition. If he does not, and elects to go to trial, the error at the preliminary hearing can only lead to reversal of the conviction if the error created actual prejudice.' " (Ronje, supra, 179 Cal.App.4th at p. 517.)
We reject Gillispie's argument that because he filed a motion to dismiss the petition in the trial court he is not required to demonstrate actual prejudice. (Ronje, supra, 179 Cal.App.4th at p. 519; Medina, supra, 171 Cal.App.4th at p. 819; Hayes, supra, 137 Cal.App.4th at p. 50.)
B. Gillispie Fails to Demonstrate Actual Prejudice
As Gillispie failed to apply for extraordinary writ relief after the trial court denied his motion to dismiss the commitment petition, but instead elected to go to trial, he must demonstrate actual prejudice for reversal of the judgment. (Medina, supra, 171 Cal.App.4th at p. 819.) The purported error is one of state law, and we apply the test of People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson), which states an error warrants reversal only if it is reasonably probable that the error altered the outcome of the proceedings. (People v. Epps (2001) 25 Cal.4th 19, 29; People v. Munoz (2005) 129 Cal.App.4th 421, 432 [applying Watson test to evidentiary challenge based on the SVPA's standard for recommitment].) As we will explain, Gillispie has not made such a showing.
Gillispie argues that he has demonstrated actual prejudice because had he been reevaluated using revised and more accurate actuarial instruments, it is reasonably probable he would have received a more favorable outcome. We disagree, for two reasons. First, Gillispie bases this argument on new evidence, introduced for the first time on appeal, which we may not consider. Second, this type of conjecture is insufficient to show a reasonable probability that the result of the trial (rather than the result of any evaluation) would have been different in the absence of the use by DMH of the 2007 Protocol. (Watson, supra, 46 Cal.2d at pp. 836-837.)
In connection with this argument, Gillispie seeks judicial notice of a revised STATIC-99 coding form, which he uses to argue that the "people like [Gillispie], who are over 50, are now viewed as less likely to reoffend, " under revised criteria. Because the document was not part of the record before the trial court, we decline to take judicial notice of the document, and could not, in any event, accept the truth of the assertion for which Gillispie attempts to submit the document. (People v. Castillo (May 24, 2010, S171163) __ Cal.4th ___ [2010 Cal. LEXIS 4883, *26] [noting the general rule that "an appellate court generally is not the forum in which to develop an additional factual record, " and holding the court is without authority to augment the record on appeal by accepting truth of assertions not reflected in the record].)
In fact, Gillispie suggests that the DMH adopted unchanged final regulations in September of 2009.
Here, the People made the required showing at trial, through expert opinion based on a review of numerous factors and actuarial tools, that by reason of a diagnosed mental disorder, pedophilia, Gillispie presented a danger to the health and safety of others and was likely to engage in acts of predatory sexual violence upon his release. The evidence was sufficient to establish that Gillispie was an SVP and could be indefinitely committed under the SVPA.
Gillispie has not shown, and nothing in the record suggests, that the procedural invalidity of the 2007 Protocol affected the evidence or findings, or that a compliant protocol would change the testimony of the prosecution experts regarding Gillispie's disorder and likely risk of reoffense. It is therefore not reasonably probable the ultimate result, i.e., indefinite commitment, would have changed had the DMH not used the 2007 Protocol to evaluate Gillispie. (Medina, supra, 171 Cal.App.4th at p. 820 [rejecting contention that dismissal of petition based on use of invalid protocol or reevaluations would have lead to a different outcome where there was no indication commitment proceedings would have been abandoned].)
As Gillispie fails to demonstrate actual prejudice, we reject his contention that the DMH's purported reliance on the 2007 Protocol requires reversal of Gillispie's commitment or remand for a new evaluation under a revised assessment protocol.
III.
California Precedent Establishes That the SVPA Does Not Violate Due Process, Place Gillispie in Double Jeopardy or Punish Him for Previous Crimes
In McKee, supra, 47 Cal.4th 1172, 1193, our Supreme Court held the SVPA does not violate due process principles, constitute a prohibited ex post facto law, or place a defendant in double jeopardy. Acknowledging this, and that we are bound to follow Supreme Court precedent, Gillispie makes three constitutional claims "to preserve [them] for federal review": (1) the SVPA, as amended in November 2006, violates due process principles because it requires a defendant, not the state, to prove that a person no longer qualifies as an SVP; (2) the SVPA, as amended, is a criminal statue which places a defendant in double jeopardy; and (3) the SVPA, as amended, punishes a defendant for crimes committed before its enactment. We reject the claims. (McKee, supra, 47 Cal.4th at p. 1193; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
"The SVPA was amended in various respects by Proposition 83, The Sexual Predator Punishment and Control Act: Jessica's Law (hereinafter, Proposition 83), which was approved by the voters at the General Election in November 2006. Among the changes made by this enactment was an amendment to section 6604 providing a commitment for an indeterminate term rather than for two years." (People v. Allen, supra, 44 Cal.4th at p. 849, fn. 4.)
IV.
Gillispie's Equal Protection Claim Requires Remand
Gillispie contends that the SVPA violates his constitutional rights to equal protection because SVP's are treated differently from other civilly-committed groups under California law.
"The initial inquiry in any equal protection analysis is whether persons are 'similarly situated for purposes of the law challenged.' " (In re Lemanuel C. (2007) 41 Cal.4th 33, 47, italics omitted; Cooley, supra, 29 Cal.4th at p. 253.) The pertinent question is whether the state has adopted a classification that affects similarly situated groups in an unequal manner. (Cooley, at p. 253.) "A statute does not violate equal protection when it recognizes real distinctions that are pertinent to the law's legitimate aims." (In re Marriage Cases (2008) 43 Cal.4th 757, 873; Baxtrom v. Herold (1966) 383 U.S. 107, 111 ["Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made."].) A state legitimately " 'may adopt more than one procedure for isolating, treating, and restraining dangerous persons' " depending upon the " 'degrees of danger reasonably perceived as to special classes of persons.' " (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217, quoting Conservatorship of Hofferber (1980) 28 Cal.3d 161, 172 (Hofferber).) Thus, "the Legislature may make reasonable distinctions between its civil commitment statutes based on a showing that the persons are not similarly situated, meaning that those who are reasonably determined to represent a greater danger may be treated differently from the general population." (In re Smith (2008) 42 Cal.4th 1251, 1266; McKee, supra, 47 Cal.4th at pp. 1199-1200.)
"Strict scrutiny is the appropriate standard against which to measure claims of disparate treatment in civil commitment." (People v. Green (2000) 79 Cal.App.4th 921, 924; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1153, fn. 20; Hofferber, supra, 28 Cal.3d at p. 171, fn. 8.) In applying this standard, the state has the burden of establishing that it has a compelling interest that justifies the law and that the distinctions made by the law are necessary to further its legitimate purposes. (Warden v. State Bar (1999) 21 Cal.4th 628, 641.)
In McKee, our Supreme Court held that SVP's are similarly situated to other civilly committed persons, including persons deemed mentally disordered offenders (MDO's) and those found not guilty by reason of insanity (NGI's), but that they bear a substantially greater burden in obtaining release from involuntary confinement. (McKee, supra, 47 Cal.4th at p. 1203.) Therefore, absent a showing by the People of a compelling state interest in treating SVP's significantly less favorably than MDO's and NGI's, the SVPA may violate the equal protection clause of the United States Constitution. (McKee, at pp. 1203, 1207.) According to McKee, the People had not yet carried their burden to justifying the difference between the SVP and the MDO and NGI commitment statutes. (Ibid.)
The McKee court remanded the case to the trial court to determine whether the state could establish a compelling interest justifying its disparate treatment of SVP's and whether such treatment was necessary to further its legitimate state interests. (McKee, supra, 47 Cal.4th at pp. 1207, 1210.) Our high court explained, "the government has 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. On remand, the government will have an opportunity to justify Proposition 83's indefinite commitment provisions, at least as applied to McKee, and demonstrate that they are based on a reasonable perception of the unique dangers that SVP's pose rather than a special stigma that SVP's may bear in the eyes of California's electorate." (McKee, at p. 1210.)
McKee is binding upon this court, and we therefore hold that Gillispie's indefinite commitment under the SVPA potentially violates his right to equal protection. (McKee, supra, 47 Cal.4th at pp. 1207, 1210.) As in McKee, the record in this case is inadequate to determine whether the state has a compelling interest justifying its disparate treatment of SVP's, including Gillispie. (Id.at p. 1210.) We therefore remand this case to the trial court to conduct a hearing to determine whether the government can "demonstrate the constitutional justification for imposing on SVP's a greater burden than is imposed on MDO's and NGI's in order to obtain release from commitment." (McKee, supra, 47 Cal.4th at pp. 1208-1209.)
The People must show that "notwithstanding the similarities between SVP's and MDO's, the former as a class bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society." (McKee, supra, 47 Cal.4th at p. 1208.)
Gillispie and the Attorney General agree the case should be remanded, but disagree over the scope of the hearing to be held on remand. The Attorney General takes the position that "[a]ffirmative evidence proffered by the defense should be excluded, " and that any defense evidence would be unnecessary because of the McKee court's caution that a "mere disagreement among experts will not suffice to overturn the Proposition 83 amendments." (McKee, supra, 47 Cal.4th at p. 1210.) In contrast, Gillispie argues he, as the defendant, must be able to cross-examine the People's witnesses and put on affirmative evidence challenging their viewpoints.
We do not read the McKee passage cited by the Attorney General as setting forth a limitation on the evidence to be admitted by the trial court on remand. The Attorney General provides no authority for limiting the presentation of evidence, and we are aware of none. Moreover, McKee suggests there may be justifications for indeterminate confinement proffered by the People, such as whether SVP's "pose a greater risk to a particularly vulnerable class of victims, such as children" (McKee, supra, 47 Cal.4th at p. 1208), which might require presentation of evidence relating to an individual SVP. We therefore determine that the admission of evidence on remand appropriately rests in the first instance within the sound discretion of the trial court.
As stated in McKee, "... it may be that SVP's pose a greater risk to a particularly vulnerable class of victims, such as children. Of course, this latter justification would not apply to SVP's who have no history of victimizing children. But in the present case, McKee's previous victims were children." (McKee, supra, 47 Cal.4th at p. 1208.)
DISPOSITION
The judgment is reversed and the case is remanded with directions 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.
WE CONCUR: McCONNELL, P.J., McINTYRE, J.