Opinion
B231144
01-10-2012
THE PEOPLE, Plaintiff and Respondent, v. CHARLES JONES, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. ZM012518)
APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth A. Lippitt, Judge. Affirmed in part; reversed in part and remanded.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Charles Jones appeals from a judgment following a court trial committing him to the Department of Mental Health (DMH) for an indeterminate period as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.). Appellant contends that the evidence was insufficient to support a finding he was an SVP. He also contends that an indeterminate commitment under the revised commitment statute violates the equal protection clause as all other civilly committed persons in California are entitled to limited confinement and periodic jury trial under which the government would bear the burden of justifying extended commitment. He additionally contends that an indeterminate commitment under the revised statute violates his rights of due process. We affirm the judgment in part and remand the matter to the trial court for further proceedings.
On November 27, 2007, the district attorney filed a petition for appellant's commitment as an SVP. The trial court found the allegations of the petition, if found true, presented probable cause to believe appellant was likely to engage in sexually violent predatory criminal conduct if released. Appellant denied the allegations of the petition, and both parties then waived a jury trial. The court found that appellant was an SVP beyond a reasonable doubt. The court committed appellant to the DMH for treatment and confinement in a secure facility for an indeterminate term. Appellant timely appealed from the judgment.
FACTS
1. Predicate Offenses
The facts of the two predicate offenses are essentially undisputed.
In 1991, appellant was at an apartment complex soliciting work for his window blind cleaning business when he came across three young children, two girls ages four and seven, and a boy age three. Appellant exposed his penis to the children, the children exposed their genitals to appellant and appellant touched the four-year-old girl's vaginal area. This resulted in a Penal Code section 288, subdivision (a) conviction of appellant as to the four-year-old girl and two additional charges involving the other children. Appellant was given jail time, placed on probation, and ordered to participate in therapy.
All statutory references are to the Penal Code unless otherwise stated.
In 1996, while still on probation from the 1991 offense, appellant pleaded guilty to another qualifying offense for lewd and lascivious conduct under section 288, subdivision (a). Appellant was cleaning mini blinds at a residence where a five-year-old girl was living with her mother. Appellant engaged the child in conversation and used a mirror to look under her clothing; he used the mirror to touch her in the genital area and also touched her with his hand in the "potty spot." These actions occurred when the girl's mother was in the next room. Appellant was sent to prison for a total of six years for this offense.
All of the children in these incidents were strangers to appellant.
2. Prosecution Evidence
A. Dr. Schwartz's Testimony
Dr. Mark A. Schwartz, a psychologist, evaluated appellant on the People's behalf. He interviewed appellant twice: a 90-minute interview on August 22, 2007, and a 70-minute interview on November 24, 2009. Dr. Schwartz had conducted upwards of 700 SVP evaluations in the course of his career. In 90 percent of those cases he concluded the person did not fall within the SVPA, and in 10 percent of the cases he concluded the person was an SVP.
Dr. Schwartz opined that appellant qualified as an SVP. At the time of the 1996 offense, appellant had been involved for several years with counseling but had not completed the program. Dr. Schwartz diagnosed appellant's mental disorder as pedophilia, a condition consisting of at least six months of sexual urges, fantasies or behaviors with prepubescent children. His diagnosis was based on the 1991 and 1996 predicate offenses as well as appellant's admission to Dr. Schwartz that there generally were opportunities to touch children if appellant went to a swimming pool and he had done so before. Dr. Schwartz also relied on statements appellant made in 1991 to his probation officer, to the effect that he had touched children every four to six months. The doctor found that appellant suffered from volitional impairment because after the 1991 offense he had attended therapy for five to six years yet had committed another offense while still on probation. Committing a second offense in face of knowledge of the consequences indicated a lack of volitional control to Dr. Schwartz.
Dr. Schwartz opined that appellant was likely to engage in sexually violent behavior without appropriate treatment in custody because of his mental disorder and that appellant presented a substantial danger of committing future sexual criminal offenses. Dr. Schwartz used two actuarial tools in evaluating appellant, the Static-99R and the Static-2002R. He scored appellant with a 4 on the Static-99R actuarial tool, which placed appellant in a preselected high risk group and indicated a 20 percent chance appellant would reoffend in five years and a 30 percent chance he would commit sex offenses in 10 years. Dr. Schwartz scored appellant a 6 using the Static-2002R actuarial tool, a moderate risk level and indicating that appellant had a 24 percent chance of recidivism in five years and a 34 percent chance of recidivism in 10 years. Dr. Schwartz testified that actuarial tools only indicate probabilities and underestimate occurrences because both tools have only a 10-year time frame.
Dr. Schwartz opined as a result of his mental disorder appellant is in substantial danger of engaging in violent sexual criminal behavior or a serious and well-founded risk of reoffending without appropriate treatment in custody. It was Dr. Schwartz's opinion that appellant does not believe he is a pedophile. In their interview, appellant blamed his conduct on other people rather than acknowledge he had an uncontrollable compulsion. Appellant was directed inward to himself and viewed his contacts with the children as having fun playing with them. He failed to acknowledge the children were harmed.
Appellant, Dr. Schwartz indicated, was only at the beginning of phase 2 of the five-phase sexual offender treatment program at Coalinga State Hospital (CSH). In phase 2, appellant still needed to address long term items such as a behavior chain, an autobiography, looking at triggers, learning about one's triggers, looking at where one has been and perhaps one's history. These efforts take years, not the few months that appellant had been in the program.
The Sex Offender Commitment Program at CSH involves cognitive behavior therapy and consists of five phases. Phase 1 is the orientation or lecture part of treatment. Phase 2 involves skills acquisition, requiring patients to identify significant events that have led to past offending, identify the thinking errors involved in their pattern of offending, delineate the consequences of sexual offending on their victims, and review their personal autobiography as a way of identifying situations that may lead to reoffending. A patient also must take and pass a polygraph test in phase 2 to encourage the patient to be more open about his or her past. Phase 3 consists of skills application, in which the patient applies and practices necessary coping skills to high risk situations and elaborates on cognitive errors and the consequences of sexual offending on victims to increase victim awareness and empathy. In phase 4, the patient prepares for transition into the community in a monitored supervised context. In phase 5, the patient begins to integrate into the outside world under supervision.
B. Dr. Walsh's Testimony
Psychologist Dr. David Walsh also testified for the prosecution. Dr. Walsh had conducted more than 500 "level 2" examinations, which is a review of records for the DMH to determine if there is enough to move forward to determine a person is an SVP. He had performed 60 to 65 "level 3" examinations, which are full evaluations similar to the one he conducted of appellant. In only a "stark minority," less than 15 percent, of those evaluations did Dr. Walsh conclude the person was an SVP. Dr. Walsh met with appellant four times and interviewed him on three of those occasions. He met with appellant for two to three hours for the first interview and about two hours for the second and third interviews.
Dr. Walsh diagnosed appellant with pedophilia, which requires fantasies, urges or behaviors of sexual attraction of prepubescent children occurring over a period of at least six months. Dr. Walsh concluded from his review of the incidents that appellant lacked volitional control. In both instances, appellant happened across young children and offended against them in a very short period of time. The rapidity of appellant's conduct indicated that his wish for sexual contact overwhelmed all of the restraints inherent in the environment in which the offenses occurred.
In his interviews with Dr. Walsh, appellant admitted that interactions with the children occurred but claimed the children were devoting attention to him and he was only responding to their attention. During Dr. Walsh's interviews with appellant, avoidance became a central issue as appellant attempted to shift the focus away from his actual crimes or his sexual behavior. At CSH, appellant also avoided discussion of the incidents so his problem had not been addressed. Appellant had been at CSH since March 2006, yet as of January 2010 he had not progressed beyond the introductory nonparticipatory stage of treatment.
It was Dr. Walsh's opinion there was a substantial danger and serious well-founded risk that appellant would commit another sexually violent offense if released. Dr. Walsh employed the Static-99, Static-2002 and Minnesota Sex Offender Screening Tool (MnSOST), which the DMH uses to predict sexual recidivism. On the Static-99, appellant's overall score was 5, which represents a medium-to-high risk for reoffense, i.e., there was a 10.2 to 23 percent chance of a reoffense within five years and an 11.8 to 32.1 percent chance of reoffense within 10 years. Under the Static-2002, which is a similar instrument to the Static-99 but which takes into account additional variables such as the client's juvenile years and rate of offending, appellant scored a 6, in the moderate-high range, which equates to an 8.4 to 20.5 percent likelihood of offending within five years and a 9.7 to 28.1 percent likelihood of reoffending within 10 years. Under the MnSOST, appellant scored a nine or high, which corresponds to a 52 percent likelihood of reoffense within six years. Dr. Walsh concluded appellant posed a substantial danger and a serious and well-founded risk of reoffending in a sexually violent predatory manner if appellant were released unconditionally.
C. Appellant's Testimony
Appellant was called as an adverse witness by the People. He admitted that on September 16, 1996, he was convicted of a violation of section 288, subdivision (a), a lewd act with children under age 14. He was sentenced to six years in state prison for that offense, and the time was served concurrently with a sentence for another violation of section 288, subdivision (a) that occurred in 1991. For the 1991 offense, appellant was initially sentenced to probation, one year in jail and mandatory counseling. He served his time in jail and, upon release, began receiving counseling until the new offense in 1996. He knew in 2001 that he had an option of staying in county jail or being transferred to CSH or Atascadero State Hospital to begin treatment, but he chose to remain in county jail. Appellant testified he did not go to counseling between 2006 and 2010 because he felt the doctors at CSH were not accountable and their reports were not accurate. Appellant completed phase 1, orientation, in 2006. At the time, he was still working on phase 2, which requires that one build a timeline, prepare an events chain and then do a behavior chain. He had finished his timeline only up to his first offense in 1991.
Appellant testified he did not need treatment for a mental disorder because his problems were with communication, expressing intimacy and dealing with his ex-wife. In the 1991 incident, he at first was just trying to communicate with the three children, he did not plan on sexual contact with them but he took the opportunity when it presented itself. He had a rush of adrenaline from the excitement of having the children accept him and being able to communicate with them without their objecting to his being there. They were playing a game of touching, and he took his penis out and asked them to touch it because it was ticklish. He asked the children to touch his penis because he wanted to see if they would do it, but they would not.
In the 1996 incident, the girl was watching appellant cleaning mini blinds, and she was left alone with appellant several times while her mother was elsewhere. Appellant invited the girl to get into his truck to look at his equipment, but she refused. Appellant testified he took a mirror and placed it between the girl's legs so he could see the crotch area of her panties. He also rubbed her vagina with his thumb to see how she would react. He stated that he knew his actions were inappropriate, but he did it anyway because he was under stress due to cumulated problems with his wife. Appellant denied that looking at the girl's vagina was a sexual outlet; he asserted it was more akin to emotional acceptance to see if the girl would accept him by playing the game.
Appellant stated he has been engaged with the Jehovah's Witness church since 1980, and he considers the church very important in his life. His wife did not attend meetings, and he was mentally distraught over his marriage. The church was aware of his 1991 offense, but he was "disfellowshipped" at that time because of his conduct with prostitutes. Although he became associated again with the church in 1994, his marital problems continued, and he was still spiritually weak when he committed the 1996 offense. He last went house to house to share his belief in 1994 or 1995, and he does not think he would reoffend if he did so in the future because the brother he would do this with would be informed of his offending against children in the past.
Appellant testified he would not go back into the mini blind cleaning and repair business if he were released because it would put him into the same situation as previously and might act as a trigger.
3. Defense Evidence
A. Dr. Anderson's Testimony
Clinical psychologist Raymond E. Anderson testified he evaluated appellant in 2001 and again in 2010. Dr. Anderson opined that appellant is a sexually normal male whose sexual preference is for consenting relations with age-appropriate females. He disagreed with the diagnosis of pedophilia noting there was no evidence to support that conclusion. Dr. Anderson found no sexual disorder that would "strongly predispose" appellant to sexually violent behavior. According to Dr. Anderson, the core of appellant's case involved his dissatisfaction with his wife. They were not having normal marital sex, and appellant engaged in a number of behaviors to compensate for a real or perceived deprivation. This included soliciting prostitutes, a deep involvement with pornography and the contacts with children. Appellant was very religious and a member of the Jehovah Witness sect; although it was clear what he needed was a divorce, his religion discouraged divorce. Dr. Anderson thought a reasonably accurate estimate of appellant's potential to reoffend was in the low single digits, around three percent, using a method developed by the federal Department of Justice that focused on the likelihood of sexually violent behavior. Dr. Anderson also relied on a Washington State study showing that the repeat felony sex offense rate in that state was two percent in 1996.
B. Dr. Castellano's Testimony
Forensic psychologist Vianne Castellano testified she was appointed by the court in 2008 to evaluate appellant to determine if he was an SVP. She interviewed appellant over the course of two-and-a-half years from April 2008 to September 2010, encompassing 26 interviews and a total of 118 hours. Dr. Castellano opined that appellant did not meet the criteria of an SVP. Rather, she diagnosed appellant as having a posttraumatic battered spouse syndrome, delayed, which is a mood disorder. She opined that the 1991 and 1996 offenses were simply aberrant impulse control situations in which appellant responded in a criminal manner. She believed that appellant was emotionally frozen at age five or six as a result of childhood trauma. She testified that appellant had made significant improvement over the course of the two-and-a-half-year period she had seen him. Appellant had started the five-phase treatment program while at CHS, which is a form of cognitive behavioral therapy. He advised Dr. Castellano that if released he planned to reside with a member of his church in Coalinga and had arranged for a circle of support in Fresno, where he planned to work. Dr. Castellano indicated that appellant would receive cognitive behavioral therapy from private practitioners connected with Fresno State University.
DISCUSSION
1. Substantial Evidence
Appellant contends the evidence was insufficient to support the trial court's determination he qualified as an SVP within the meaning of the statute, in particular that he was a danger to the health and safety of others in that he would likely engage in sexually violent behavior in the future.
We review challenges to the sufficiency of the evidence under the SVPA under the same standard as criminal convictions. (People v. Fulcher (2006) 136 Cal.App.4th 41, 52.) Accordingly, "'[w]e review the whole record most favorably to the judgment to determine whether there is substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.'" (People v. Flores (2006) 144 Cal.App.4th 625, 632 (Flores).) We do not redetermine the credibility of witnesses or reweigh the evidence, and we must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. (People v. Poe (1999) 74 Cal.App.4th 826, 830.) The credibility and weight of expert testimony is for the trier of fact to determine, not the reviewing court. (People v. Mercer (1999) 70 Cal.App.4th 463, 466-467.)
A person may be civilly committed as an SVP upon proof beyond a reasonable doubt that (1) the person has been convicted of a predicate offense as defined in the statute, (2) he or she currently has a diagnosed mental disorder, and (3) the "diagnosed mental disorder . . . 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." (Welf. & Inst. Code, § 6600, subd. (a)(1); Flores, supra, 144 Cal.App.4th at p. 632.) The trier of fact "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." (People v. Superior Court (Ghilotti)(2002) 27 Cal.4th 888, 922 (Ghilotti); see also People v. Roberge (2003) 29 Cal.4th 979, 982.)
Effective November 8, 2006, Welfare and Institutions Code section 6600, subdivision (a) was amended by Proposition 83 to require that the individual be convicted of a sexually violent offense against one or more victims.
In the case at bar, the prosecution presented sufficient evidence from which the trial court could properly find beyond a reasonable doubt that appellant was likely to engage in sexually violent criminal behavior if released from CSH. Dr. Walsh and Dr. Schwartz relied in part on appellant's criminal history in reaching their diagnoses of appellant. Although the SVPA precludes commitment based solely on evidence of prior crimes, use of prior dangerous behavior to establish both present mental impairment and the likelihood of future harm is appropriate when there is other evidence to support such a diagnosis. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1163-1164 (Hubbart) ["the United States Supreme Court has consistently upheld commitment schemes authorizing the use of prior dangerous behavior to establish both present mental impairment and the likelihood of future harm"]; see People v. Otto (2001) 26 Cal.4th 200, 206 [trier of fact may not find person is SVP based on prior offenses absent relevant evidence of currently diagnosed mental disorder making person a danger to health and safety of others].)
Dr. Walsh and Dr. Schwartz diagnosed appellant as currently suffering from pedophilia. Dr. Walsh based his diagnosis on appellant's two convictions over a time span exceeding six months, as well as data he acquired during his evaluations of appellant. Dr. Walsh noted that appellant was in counseling at the time he reoffended in 1996 and admitted to his probation officer that he engaged in inappropriate conduct with children every few months. Dr. Walsh testified it was common for a pedophile to begin with benign activities as appellant did in his predicate offenses. With respect to the likelihood appellant would reoffend, Dr. Walsh found that appellant lacked volitional control. He noted that appellant's behavior evidenced little concern with being caught in the act and that appellant reoffended in 1996 despite being on probation. The rapidity of appellant's conduct soon after coming upon his victims, Dr. Walsh opined, also demonstrated his lack of volitional control. Dr. Walsh testified that appellant avoided treatment for his pedophilia and any discussion of his misconduct. His problems were going unaddressed as a result despite encouragement from CSH to participate in its treatment program. As of January 2010, appellant had only just started phase 2, and he was not in treatment at the time Dr. Walsh saw him.
Dr. Schwartz also diagnosed appellant as having pedophilia and interpersonal problems due to his incarceration and hospitalization. The doctor's diagnosis was based on appellant's history of inappropriate sexual conduct with children, including the predicate offenses, as well as appellant's admission that in 1985 he went to a public pool to sexually touch a child and did so. The diagnosis was also based on appellant's admission to a probation officer that he inappropriately touched children every four to six months. Dr. Schwartz found appellant's behavior to be compulsive and demonstrative of a lack of volitional control in that he reoffended in 1996 even though he had been arrested, convicted, given jail time, placed on probation and ordered to participate in therapy. This indicated to Dr. Schwartz that appellant was resistant to the counseling, which he had received from 1991 to 1996 and that there were persistent, ongoing problematic volitional control issues for appellant.
In determining the likelihood a person will reoffend, mental health evaluators may consider a person's amenability to voluntary treatment. (Ghilotti, supra, 27 Cal.4th at pp. 921, fn. 12, 927.) The trial court below could consider appellant's failure to participate adequately in treatment for his diagnosed disorder to reflect an increased risk of reoffending. (People v. Sumahit (2005) 128 Cal.App.4th 347, 353-354 (Sumahit).)"A patient's refusal to cooperate in any phase of treatment may . . . support a finding that he 'is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community.'" (Id. at pp. 354-355, quoting Ghilotti, at p. 929.) Dr. Walsh and Dr. Schwartz testified that outpatient counseling from 1991 to 1996 did not stop appellant from reoffending. More importantly, both doctors testified that appellant was not fully and sufficiently participating in treatment and had not accepted that his conduct with children was inappropriate or involved anything more than play.
Appellant's behavior while in custody was also probative of whether appellant was likely to reoffend if released into the community. (Sumahit, supra, 128 Cal.App.4th at pp. 354-355.) Dr. Schwartz testified that appellant suffered from interpersonal problems while he was incarcerated and hospitalized. Appellant had lost his temper multiple times at CSH, such that he had to be restrained and placed in seclusion. He also had kicked a door on one occasion and acted up regarding his medication. Dr. Schwartz also stated appellant had yet to explore his triggers in therapy, and he at times failed to attend the program. Dr. Walsh noted that appellant avoided conversation regarding his 1991 and 1996 offenses. Rather than discuss his sexual misconduct with children, appellant would shift the conversation to other topics, including his marriage and his marriage difficulties. Dr. Walsh testified that appellant for years had been encouraged to participate in CSH's program, but he had not taken advantage of it until 2010. Appellant blamed his problems on everyone but himself, including his ex-wife and CSH. Appellant's failure to recognize and take responsibility for his offending conduct provided further support for the court's finding he was likely to reoffend if released.
Additionally, Dr. Walsh and Dr. Schwartz appropriately considered appellant's scores on several actuarial tools to predict the probability of sexual and violent recidivism. (See People v. Allen (2008) 44 Cal.4th 843, 852-853.) Dr. Walsh placed appellant in the medium-high risk category based on the Static-99 and the moderate-high risk category based on the Static-2002. He also placed appellant in the high risk category based on the MnSOST. Dr. Schwartz placed appellant in the moderate to high risk category based on the Static-99R and the moderate risk level based on the Static-2002R. Both used the actuarial tools in combination with dynamic risk factors to evaluate the risk of appellant reoffending. The rule is settled that an expert may consider static factors and use statistical actuarial tools such as the Static-99, in combination with dynamic factors, to support an opinion that an individual is likely to reoffend. (See, e.g., Flores, supra, 144 Cal.App.4th at pp. 629-630, 633; People v. Therrian (2003) 113 Cal.App.4th 609, 615-616.)
That appellant has not committed an offense since 1996 is not dispositive to the issue of the likelihood of his reoffending. "No restriction is placed on the time at which a prior qualifying crime must have occurred." (Hubbart, supra, 19 Cal.4th at p. 1145 [definition of "sexually violent offense" includes acts "'committed on, before, or after the effective date' of the [SVPA]"]; People v. Felix (2008) 169 Cal.App.4th 607, 618 [lack of "recent" overt act immaterial because appellant was in custody during time of trial and for approximately 10 years before]; see also Welf. & Inst. Code, § 6600, subd. (d) ["'Danger to the health and safety of others' does not require proof of a recent overt act while the offender is in custody"].) That appellant has not committed sexual crimes in the controlled hospital environment does not prove he no longer suffers from a mental disorder that poses a danger to others. (Sumahit, supra, 128 Cal.App.4th at p. 353.)
We find sufficient evidence to support the trial court's determination that appellant was an SVP.
2. Equal Protection
Appellant contends that an indeterminate commitment under the revised SVPA violates equal protection because all other civilly committed persons in California are entitled to limited confinement and periodic jury trials in which the government bears the burden of justifying an extended commitment.
In People v. McKee (2010) 47 Cal.4th 1172 (McKee), the California Supreme Court held that the SVPA, as amended by Proposition 83, potentially violates the equal protection clause of the federal Constitution. (Id. at pp. 1196-1211.) The court concluded that, for purposes of the term of commitment and burden of proof for release, SVP's are similarly situated with persons committed under the Mentally Disordered Offender (MDO) Act (§ 2960 et seq.) and those persons adjudged not guilty by reason of insanity (NGI) (§ 1026 et seq.). (McKee, at pp. 1200-1203, 1207.) However, the court determined 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 [MDO's], are subject to indefinite commitment." (Id. at p. 1184.) The court thus remanded the matter to the trial court to allow the People the opportunity to show "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.) The court made clear that differential treatment for SVP's is constitutional if the People can show that such treatment is "based on a reasonable perception of the unique dangers that SVP's pose." (Id. at p. 1210.)
Both parties acknowledge the matter should be remanded to the trial court to allow the People the opportunity to show the differential treatment of SVP's is justified. We therefore, pursuant to McKee, remand this case 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. (McKee, supra, 47 Cal.4th at pp. 1208-1209; see People v. Kisling (2011) 199 Cal.App.4th 687, 695.)
The court noted that "[f]or example, it may be demonstrated that the inherent nature of the SVP's mental disorder makes recidivism as a class significantly more likely. Or it may be that SVP's pose a greater risk to a particularly vulnerable class of victims, such as children." (McKee, supra, 47 Cal.4th at p. 1208.)
3. Due Process
Appellant contends that the SVPA, as amended by Proposition 83, violates the due process clause of the Fourteenth Amendment to the United States Constitution. As appellant acknowledges, our Supreme Court in McKee, supra, 47 Cal.4th 1172 upheld the amended SVPA against a due process challenge. (Id. at pp. 1188-1193.) We are bound by the decision in McKee. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The order for commitment finding appellant to be an SVP and committing him to the custody of the DMH is affirmed, except as to the commitment for an indeterminate term. The matter is remanded to the trial court for reconsideration of appellant's equal protection argument in light of McKee, supra, 47 Cal.4th at pages 1208-1211, and the resolution of the proceedings on remand in McKee, including any proceeding in the San Diego County Superior Court in which McKee may be consolidated with related matters. The trial court shall suspend further proceedings in this case pending finality of the proceedings on remand in McKee. "Finality of the proceedings" shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.
FLIER, J. WE CONCUR:
RUBIN, ACTING P. J.
GRIMES, J.