Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. MH101251 David M. Gill, Judge.
NARES, Acting P. J.
Michael Martinez appeals from a judgment committing him to the custody of the California Department of Mental Health (DMH) for an indeterminate term under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) (hereafter the SVPA or the Act) after a jury found him be a sexually violent predator (SVP). He contends (1) the trial court illegally committed him as an SVP, in violation of his due process rights, based on a petition filed in 2007 as a result of the DMH's use of an "illegal underground regulation[]"─specifically, a standardized assessment protocol that it developed and updated in 2007─that in August 2008 the Office of Administrative Law (OAL) determined to be a void regulation that was not adopted in accordance with the California Administrative Procedures Act (APA) (Gov. Code, § 11340.5); (2) if his trial counsel's failure to challenge prior to trial the DMH's use of the illegal underground regulation constituted a forfeiture of the issue on appeal, then such failure constituted prejudicial ineffective assistance of counsel; (3) the current version of California's SVPA is unconstitutional because it violates an SVP's equal protection rights under both the California and federal Constitutions; and (4) the current version of California's SVPA is also unconstitutional because it caused him to be committed in violation of his due process, ex post facto, and double jeopardy rights.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
See In re Ronje (2009) 179 Cal.App.4th 509, 515 (Ronje).
The People assert Martinez forfeited his claims regarding the DMH's use of "underground" regulations by not raising them in the trial court, and his ineffective assistance of counsel claim fails because he cannot demonstrate he suffered resulting prejudice. The People also contend that, if this court determines Martinez did not forfeit his claims, reversal of the judgment is not required because (1) the court had jurisdiction to hear and decide the SVP petition in this case notwithstanding the OAL's determination that the 2007 protocol is a void regulation; and (2) he has failed to show he was prejudiced by the DMH's use of that protocol. Regarding Martinez's constitutional claims, the People also argue the California Supreme Court in People v. McKee (2010) 47 Cal.4th 1172 (McKee) held the amended SVPA does not violate due process principles, constitute an ex post facto law, or place the defendant in double jeopardy. However, regarding Martinez's claim the amended SVPA violates an SVP's equal protection rights under both the California and federal Constitutions, the People assert this court "should suspend further proceedings pending finality of the proceedings in [McKee] that will resolve this issue."
Although an SVPA proceeding is civil in nature, we follow the common practice of characterizing the parties to the action as the "prosecution" and the "defendant" or "defense." (People v. Allen (2008) 44 Cal.4th 843, 860; People v. Hurtado (2002) 28 Cal.4th 1179, 1192.)
The Supreme Court remanded the case to the trial court to determine whether the People 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.)
As we explain, we conclude only Martinez's equal protection claim has potential merit under McKee, supra, 47 Cal.4th 1172. Accordingly, we reverse the judgment (order of civil commitment) and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
A. Conviction and Probable Cause Hearing
In 1993 Martinez was convicted of committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), and the court sentenced him to eight years in prison.
In August 2007 the San Diego County District Attorney filed an amended petition (hereafter the petition) to commence proceedings under the SVPA to determine whether Martinez is an SVP and should be committed for an indeterminate term to the custody of the DMH for involuntary treatment and confinement.
After a probable cause hearing held in December 2007, the trial court found, based upon expert testimony presented at that hearing, that there was probable cause to believe Martinez was then currently an SVP. The court set the matter for a jury trial to determine whether Martinez (as alleged in the petition) was "[an SVP] in that [he] was convicted of a sexually violent offense against one or more victims, and 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."
B. Trial
1. The prosecution's case
At trial, which commenced on July 28, 2009, the parties stipulated that Martinez pleaded guilty in June 1993 to the crime of committing a lewd and lascivious act upon a child under the age of 14 in violation of Penal Code section 288, subdivision (a), and he was sentenced to eight years in prison.
Charles Patterson, Ph.D., a licensed psychologist who met twice with Martinez, testified for the prosecution. Patterson was appointed by the DMH to conduct an SVP evaluation of Martinez, and he diagnosed Martinez with two mental disorders: (1) pedophilia; and (2) a personality disorder not otherwise specified, with antisocial, borderline, and avoidant personality traits. Although Martinez was charged with offenses against three victims, the qualifying offense to which he pleaded guilty involved a seven-year-old girl.
Patterson testified Martinez spoke to him about his fixation with childrens' buttocks. Patterson indicated he used (among other things) four actuarial tools in assessing the degree of risk that Martinez might reoffend if released from custody: the STATIC-99, the STATIC-2002, the Minnesota Sex Offenders' Screening Tools-Revised (MnSOST-R), and the Sex Offender Risk Appraisal Guide (SORAG). The STATIC-99 and STATIC-2002 results indicated Martinez presented a high risk for reoffense. Patterson scored Martinez with a 5 on the MnSOST-R, which placed Martinez in the moderate range of sexual recidivism. Martinez's SORAG score put him in the range of an estimated 45 percent likelihood of violent recidivism within seven years of release and a 59 percent risk in 10 years. Martinez's age of 56 years at the time of trial is not considered a protective factor for him. However, dynamic recidivism risk factors for Martinez are his emotional identification with children, which is a common trait among pedophiles, and the fact he never had a significant relationship with an age-appropriate partner. Martinez also had one documented violation of probation, and he failed to tell the parents of the children with whom he was associating that he was a registered sex offender.
Patterson concluded that Martinez fit the definition of an SVP.
James Barker, a clinical psychologist, also assessed Martinez on behalf of the DMH and concluded he is an SVP. Barker diagnosed Martinez with two mental disorders: pedophilia; and paraphilia not otherwise specified, partialism, which is a diagnosis for paraphilia where the person focuses on a specific body part. Martinez focuses on the buttocks. Barker opined that Martinez's pedophilia was a mental disorder that affected his ability to control his emotions and behavior, and predisposed him to the commission of criminal sexual acts to an extent that made him a menace to the health and safety of others.
2. The defense case
Matthew Tsunoda, a lead medical deputy sheriff at the George Bailey Detention Facility in San Diego, indicated Martinez was confined there in a special ward for SVP's, and he had known Martinez for two years. Tsunoda had not written up Martinez for any rule violations and was not aware of any other staff members writing him up.
Brian Abbott, Ph.D., a licensed psychologist and clinical social worker, provided critiques of the STATIC-99, the STATIC-2002, the MnSOST-R, and the SORAG. Abbott testified that Martinez's STATIC-99 score reflected an estimated recidivism rate of between nine and 12 percent over five years.
Martinez testified in his own defense. He indicated he was ashamed and disgusted by what he had done. His initial treatment before he violated probation did not work because he engaged in lying, and he started being around young people two to three years after his probation ended and he was no longer in treatment. He stated he was "being hit" with his "little situation where it was more comfortable to be around kids than it was to do the things [he] was taught." He believed he would be able to fully disclose what he had done because he had "an awakening" when he received the evaluators' reports, which told him for the first time what he was. Martinez stated he considered himself to be at "high risk" of sexual recidivism, and he "will keep an alarm up, keep my red flags up, and that way I will lower my possibility of molesting anybody or reoffending in any way." He also indicated he thinks he is a pedophile.
3. Jury's verdict and court's order
After considering the above evidence in light of instructions and closing arguments, the jury returned a verdict finding Martinez an SVP within the meaning of section 6600. The court ordered Martinez committed to the custody of the DMH "for appropriate treatment and confinement in a secure facility" for an indeterminate term pursuant to sections 6600-6604.
DISCUSSION
I
OVERVIEW OF THE SVPA
The SVPA as originally enacted (Stats. 1995, ch. 763, § 3, p. 5922) provided for a two-year involuntary civil commitment of certain persons following the completion of their prison terms if they were found after a jury trial to be an SVP. (McKee, supra, 47 Cal.4th at p. 1185.) That commitment could not be extended beyond the two-year term unless a new petition was filed requesting a successive two-year commitment and a new jury found beyond a reasonable doubt that the person was currently an SVP. (Ibid.)
In 2006 the SVPA was amended, first by the Legislature (Stats. 2006, ch. 337, §§ 55, 57) and then by the electorate with the passage of Proposition 83 to provide for an indeterminate term of commitment, "rather than for a two-year term as in the previous version of the Act. An SVP can [now] only be released conditionally or unconditionally if the DMH authorizes a petition for release and the state does not oppose it or fails to prove beyond a reasonable doubt that the individual still meets the definition of an SVP, or if the individual, petitioning the court on his own, is able to bear the burden of proving by a preponderance of the evidence that he is no longer an SVP." (McKee, supra, 47 Cal.4th at p. 1187.)
" '[A]n SVPA commitment proceeding is a special proceeding of a civil nature... commenced by petition independently of a pending action' " (People v. Yartz (2005) 37 Cal.4th 529, 536) for the purpose of confining and treating persons identified as SVP's until they are no longer a threat to society. (People v. Allen, supra, 44 Cal.4th at p. 857.) An SVP 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).) A "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).)
The commencement of a proceeding under the SVPA occurs when the secretary of the Department of Corrections and Rehabilitation determines that an inmate appears to meet the SVP criteria and refers the inmate to the DMH for a more thorough assessment. (§ 6601, subd. (b).) The DMH " shall evaluate the person in accordance with a standardized assessment protocol, developed and updated by the [DMH]" and must involve an evaluation by two practicing psychiatrists or psychologists "to determine whether the person is [an SVP]." (§ 6601, subds. (c), (d).) If both professionals 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 shall 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).) If the county's designated counsel concurs with the recommendation, he or she files the petition for commitment accordingly. (§ 6601, subd. (i).)
Once filed, the superior court holds an adversarial hearing on the petition 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 the court finds probable cause within the meaning of the Act, it orders a trial to determine whether the person is an SVP and retains the person in a secure facility until the trial is completed. (§ 6602, subd. (a).) At trial, the fact finder "shall determine whether, beyond a reasonable doubt, the person is [an SVP]." (§ 6604.) "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 [DMH ]." (§ 6604; see generally People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.)
The alleged SVP is entitled to the assistance of counsel for both the probable cause hearing and the trial (§§ 6602, subd. (a), 6603, subd. (a)), as well as the right to have a jury at trial, "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).)
Because the Act was " 'designed to ensure that the committed person does not "remain confined any longer than he [or she] suffers from a mental abnormality rendering him [or her] unable to control his [or her] dangerousness" ' " (McKee, supra, 47 Cal.4th at p. 1186), the Act provides " 'two ways a defendant can obtain review of his or her current mental condition to determine if civil confinement is still necessary. [First, ] [s]ection 6608 permits a defendant to petition for conditional release to a community treatment program.... [Second, ] [s]ection 6605 [requires] an annual review of a defendant's mental status that may lead to unconditional release.' " (Ibid., italics omitted.)
In other words, once committed, the 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 that the committed person can safely be released to a less restrictive treatment setting, it shall file a section 6605 petition with the superior court to that effect which triggers a probable cause hearing and possible subsequent trial at which the committed person is "entitled to the benefit of all constitutional protections that are afforded him or her at the initial commitment proceeding" (§ 6605, subd. (d)), including the state having to 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).)
Alternatively, the SVP, with the assistance of counsel, may, within one year of the initial commitment and at yearly intervals thereafter, petition for release without the concurrence of the DMH. (§ 6608.) Unless the court deems the petition to be frivolous or substantially identical to a previously denied petition (see ibid.), a hearing is held with the court acting as finder of fact. (§ 6608, subd. (d).) At such hearing, 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 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 then will hold a hearing to determine whether the (former) SVP should be unconditionally released. (Ibid.)
II
DMH'S USE OF THE "UNDERGROUND REGULATIONS
Prior to filing the petition to commit Martinez under the SVPA, the DMH evaluated him to determine whether he was an SVP. (§ 6601, subd. (c).) The parties acknowledge the DMH used the "Clinical Evaluator Handbook and Standardized Assessment Protocol (2007)" (2007 Protocol) to conduct the evaluation.
In early 2008 a petition was filed with the OAL challenging as "underground regulations" various provisions of the 2007 Protocol. (People v. Medina (2009) 171 Cal.App.4th 805, 814 (Medina).) On August 15, 2008, the OAL declared the 2007 Protocol used by the DMH to be a "regulation" not adopted in accordance with the APA (Gov. Code, § 11340 et seq.) and therefore void. (Medina, supra, 171 Cal.App.4th at pp. 810-811, 814.) 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.)
"The term 'underground regulation' refers to statutorily mandated protocols that have not been formally adopted." (People v. Taylor (2009) 174 Cal.App.4th 920, 937 (Taylor).)
On appeal, Martinez contends the 2007 Protocol used by the DMH evaluators to assess whether he was an SVP is an illegally adopted and void "regulation, " not a qualified standardized assessment protocol within the meaning of the SVPA, which rendered their evaluations invalid and in turn made his current commitment illegal. While acknowledging that several court decisions─i.e., Taylor, supra, 174 Cal.App.4th 920, Medina, supra, 171 Cal.App.4th 805, and Ronje, supra, 179 Cal.App.4th 509─have recently addressed the issue of the illegality of so-called "underground regulations" that do not comply with the statutory requirements of the APA and were determined by the OAL to be invalid with regard to SVP cases, Martinez claims that those cases, in "reject[ing] the claim that the failure to use a properly adopted protocol deprived the trial court of fundamental jurisdiction to hear the case, " reached "the wrong result" and should not be followed. In essence, Martinez claims that absent legally conducted evaluations by the DMH as required by statute, the San Diego County District Attorney lacked the statutory authority to file the petition, and thus the court "lacked fundamental jurisdiction over [Martinez's] case so that his commitment as an SVP is, and was, illegal and void from before its inception." We reject Martinez's various arguments that the DMH's reliance on an invalid protocol requires reversal of his commitment or remand for new evaluations under a revised assessment protocol in this case.
A. Forfeiture
Martinez acknowledges that his "trial counsel failed to challenge the DMH's use of illegal underground regulations in the [SVPA] evaluation process." By failing to raise in the trial court his claim that his commitment under the SVPA was illegal because it derived from the DMH's reliance on a protocol that was invalidated as an underground regulation by the OAL, Martinez has forfeited this claim on appeal. (Medina, supra, 171 Cal.App.4th at p. 817; Taylor, supra, 174 Cal.App.4th at p. 937.)
B. Merits
Were it necessary to reach the merits of Martinez's claim and supporting arguments, and accepting without deciding his assertion that the 2007 Protocol is a void underground regulation, we would reject them. As we discuss, post, we agree, consistent with the reasoning and holdings in Ronje, supra, 179 Cal.App.4th 509, Taylor, supra, 174 Cal.App.4th 920, and Medina, supra, 171 Cal.App.4th 805, that the trial court had fundamental jurisdiction or power to decide Martinez's SVPA commitment petition.
The Attorney General does not dispute Martinez's contention as to the ruling of the OAL regarding the 2007 Protocol. We therefore proceed on the assumption the OAL's conclusion that the 2007 Protocol is an underground regulation in violation of the APA is correct.
1. Jurisdiction to decide Martinez's SVPA petition
It is well established that 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.) "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.) When a court lacks fundamental jurisdiction, the judgment is void and vulnerable to attack at any time. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.)
Martinez does not claim the trial court lacked subject matter jurisdiction, nor does he claim the court lacked personal jurisdiction over his SVP commitment proceeding for want of minimum contacts with the State of California. Nor has he offered any authority to support his claim that the DMH's use of the invalid protocol or underground regulation during the prepetition administrative proceedings under the SVPA somehow deprived the trial court of fundamental jurisdiction to hear or decide the commitment proceeding. By suggesting that the use of the invalid 2007 Protocol renders the proceedings void and subject to per se reversal for lack of jurisdiction, Martinez fails to appreciate the limited role that the protocol plays in the preliminary phase of an SVP proceeding.
Although the DMH is statutorily required to use the protocol for the purpose of administrative actions that lead up to the filing of an SVP petition (§ 6601, subds. (c), (d)), " 'the requirement for evaluations is not one affecting disposition of the merits; rather, it is a collateral procedural condition plainly designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.' [Citation.] 'After the petition is filed, rather than demonstrating the existence of the two evaluations, the People are required to show the more essential fact that the alleged SVP is a person likely to engage in sexually violent predatory criminal behavior.' " (People v. Scott (2002) 100 Cal.App.4th 1060, 1063.) Because the probable cause hearing under the Act is designed to protect the accused from having to face trial on groundless or otherwise unsupported allegations, it is analogous to a preliminary hearing in a criminal case. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 247; Medina, supra, 171 Cal.App.4th at pp. 818-819.)
As this court commented in People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1128-1130, while holding the failure to obtain two mental health professional evaluations as required under the Act did not deprive the trial court of fundamental jurisdiction to act on an SVP petition, "once the petition is filed a new round of proceedings is triggered." (Id. at p. 1130.) Specifically, after an SVP petition is filed, the court holds a probable cause hearing at which the court's focus shifts away from assessing formal conformance with procedural requirements to evaluating the probative value of the evaluations on the substantive SVP criteria. Thus, we agree with the reasoning in Ronje, supra, 179 Cal.App.4th at page 518, that the use of evaluations 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 that does not deprive the court of fundamental jurisdiction over the SVPA petition.
In similar circumstances in the context of a criminal prosecution, the California Supreme Court has concluded that defects in the preliminary hearing phase of a criminal proceeding do not automatically invalidate a subsequent conviction; rather, the defendant must show that he or she was prejudiced by the challenged defect. (See People v. Pompa-Ortiz, supra, 27 Cal.3d at pp. 529-530.) This Pompa-Ortiz rule "applies to SVP proceedings" (People v. Hayes (2006) 137 Cal.App.4th 34, 51 (Hayes)) in addition to applying to the "denial of substantial rights as well as to technical irregularities, " including claims of the denial of counsel and ineffective assistance of counsel at a preliminary hearing. (Id. at pp. 50-51.) Therefore, the fact that the protocol used by the DMH to evaluate Martinez may have been adopted in violation of the APA is a matter that is collateral to the merits of his SVP commitment petition, which does not require its per se dismissal. Rather, any 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 [probable cause hearing].' " (Pompa-Ortiz, supra, 27 Cal.3d at p. 529, followed by Ronje, supra, 179 Cal.App.4th at p. 517.)
Only if Martinez had challenged the invalid 2007 Protocol before the probable cause hearing or first trial, would he have the " '[t]he right to relief without any showing of prejudice....' [Citation.] 'In other words, a defendant who feels he has suffered error at his [probable cause] hearing can seek to correct that error by filing a pretrial writ petition. If he does not, and elects to go to trial, the [alleged] error... can only lead to reversal of the conviction if the error created actual prejudice.' " (Ronje, supra, 179 Cal.App.4th at p. 517.)
In other words, Martinez, who did not raise the issue of the invalid protocol before trial, must now demonstrate prejudice for reversal of the judgment. (Medina, supra, 171 Cal.App.4th at p. 819.) Because the purported error is one of state law, we apply the test of People v. Watson (1956) 46 Cal.2d 818, 836-837, under which an error warrants reversal only if it is reasonably probable the error altered the outcome of the proceedings. (People v. Epps (2001) 25 Cal.4th 19, 29.) Consequently, Martinez must show he was deprived of a fair trial or otherwise suffered prejudice as a result of the assessment protocol used for his evaluations leading to the challenged commitment. On this record, he has not done so.
Relying on Ronje, supra, 179 Cal.App.4th 509, Martinez essentially argues he has shown 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. Martinez bases his argument on new evidence, introduced for the first time on appeal, which we may not consider. Also, his argument presents mere conjecture of what might have been, which 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. (People v. Watson, supra, 46 Cal.2d at pp. 836-837; Medina, supra, 171 Cal.App.4th at p. 820.)
In connection with this argument and his related ineffective assistance of counsel claim, Martinez seeks judicial notice of the revised "STATIC-99R Evaluators' Workbook" and the "STATIC-99R Coding Form, " which he uses to assert that "people [like Martinez] are considered to be less likely to reoffend when evaluated under the STATIC-99R than when evaluated under the STATIC-99." As the documents were not part of the record before the trial court, and we could not, in any event, accept the truth of the assertion for which Martinez attempts to submit the documents, we decline to take judicial notice of them. (People v. Castillo (2010) 49 Cal.4th 145, 157 [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 the truth of assertions not reflected in the record].)
Here, Martinez was represented by counsel during the commitment proceedings, he presented his own witnesses at trial and cross-examined the prosecution's witnesses, and the People made the required showing, through expert opinion based on a review of numerous factors and actuarial tools, that by reason of a diagnosed mental disorder, pedophilia, Martinez presented a danger to the health and safety of others and was likely to engage in acts of predatory sexual violence upon his release. Martinez does not contend the evidence was insufficient to establish that he continues to meet SVP commitment criteria.
On this record, Martinez has not shown, and nothing 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 his disorder and likely risk of reoffense. It is therefore not reasonably probable the ultimate result, i.e., recommitment to an indefinite term, would have changed had the DMH not used the 2007 Protocol to evaluate Martinez. (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 led to a more favorable outcome where there was no indication commitment proceedings would have been abandoned or trier of fact would not have made the SVP finding].)
Because Martinez fails to demonstrate actual prejudice, we reject his contention the DMH's reliance on the 2007 Protocol, an "underground regulation, " in evaluating him under the SVPA requires reversal of his recommitment or remand for a new evaluation under a revised assessment protocol.
2. Due process
As to Martinez's claim that the evaluations conducted by DMH using the invalid 2007 Protocol to initiate his commitment petition violated his due process rights because the DMH failed to follow the statutory requirements of the SVPA, such claim has been raised and rejected in Ronje, supra, 179 Cal.App.4th at pages 519-520. We agree with the reasoning in Ronje that the procedures of a probable cause hearing and a trial under the SVPA "provide adequate protection against erroneous deprivation from the invalid assessment protocol." (Id. at p. 520.) No due process violation is shown.
III
INEFFECTIVE ASSISTANCE OF COUNSEL
Alternatively, Martinez contends his counsel provided him ineffective assistance in "fail[ing] to challenge the DMH's use of illegal underground regulations in the [SVPA] evaluation process." We reject this contention.
Generally, in order to show that defense counsel has provided ineffective assistance at trial, the burden is on the defendant to show both " 'that [ his] counsel's representation fell below an objective standard of reasonableness; and... that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, " 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' " ' " (People v. Holt (1997) 15 Cal.4th 619, 703.)
Thus, even if we were to assume defense counsel provided deficient representation by failing to both obtain a ruling before trial and to seek writ review of the eventual ruling, no prejudice is shown on this record to establish a prima facie case of ineffective assistance of counsel. As we have already determined, there is absolutely no showing that the use of valid DMH protocols for the prepetition evaluations under the SVPA would have produced a different result or the use of the invalid protocols caused any actual prejudice to Martinez. Accordingly, similar to the situation in Medina, supra, 171 Cal.App.4th at pages 819 through 820, Martinez cannot prevail on a claim of ineffective assistance of counsel. "[I]t is 'completely impossible to predict whether [he] will be found to qualify as [an SVP] under the new protocol.' [Such an assertion] is simply insufficient to carry his burden of demonstrating the reasonable probability, rather than the mere possibility, of a different outcome." (Id. at p. 820.) No ineffective assistance of counsel is shown.
IV
CONSTITUTIONALITY OF THE SVPA AND POTENTIAL
EQUAL PROTECTION VIOLATIONS
Because McKee was pending review in our Supreme Court when Martinez filed this appeal in August 2009, he has only briefly argued, to preserve for review, the issues that the current SVPA violates constitutional due process, ex post facto and double jeopardy principles, as well as also violating his equal protection rights. On January 28, 2010, the McKee decision issued, rejecting claims that the SVPA, as amended, violates the due process and ex post facto clauses of the United States Constitution. (McKee, supra, 47 Cal.4th at pp. 1193, 1195.) Although the McKee court did not address the double jeopardy issue, inasmuch as it found the amended SVPA is civil in nature and not punitive (id. at pp. 1194-1195), any double jeopardy claim also necessarily fails. (See Kansas v. Hendricks (1997) 521 U.S. 346, 369; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1226.)
Acknowledging this, and that we are bound to follow Supreme Court precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), Martinez nonetheless stands by his original arguments that the amended SVPA is unconstitutional. We reject his renewed due process, ex post facto and double jeopardy claims. (McKee, supra, 47 Cal.4th at pp. 1193, 1195.)
A. Equal Protection Challenge
With respect to his equal protection challenge, Martinez contends we are required to follow McKee's holding that an indefinite commitment under the SVPA potentially violates an SVP's right to equal protection and to remand the matter to the trial court for reconsideration of this argument in light of McKee. We agree.
After discussing the law and standards applicable to an equal protection claim, the Supreme Court addressed McKee's challenge to the indefinite commitment and release procedures of the amended SVPA in comparison to other civil commitment schemes and concluded that SVP's are similarly situated to persons deemed mentally disordered offenders (MDO's) under the MDO Act (Pen. Code, § 2960 et seq.) and those found not guilty by reason of insanity (NGI's) (Pen. Code, § 1026 et seq.). (McKee, supra, 47 Cal.4th at pp. 1196-1203, 1207.) The court in McKee thus held that absent a showing by the People of a compelling state interest in treating SVP's significantly less favorably than MDO's and NGI's regarding the term of commitment and the burden of proof for release, the SVPA may violate the equal protection clause of the United States Constitution. (McKee, supra, at pp. 1203, 1207-1209.)
In remanding 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 legitimate state interests, the McKee court explained that "the government [had] 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, supra, 47 Cal.4th at p. 1210.)
The court in McKee observed that even though fundamental distinctions between classes of persons subject to civil commitment are subject to strict scrutiny, the government may nonetheless make reasonable distinctions, " 'depending on degrees of danger reasonably perceived as to special classes of persons.' " (McKee, supra, 47 Cal.4th at p. 1210, quoting Conservatorship of Hofferber (1980) 28 Cal.3d 161, 171-172.)
Because McKee is binding upon this court (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), we conclude that Martinez'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 in justifying its disparate treatment of SVP's, including Martinez. (Id. at p. 1210.) We therefore remand this case to the trial court to conduct a hearing consistent with McKee 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." (Id. at pp. 1208-1209, fn. omitted..) The admission of evidence at the hearing on remand appropriately rests in the first instance within the sound discretion of the trial court.
DISPOSITION
The judgment is reversed, and the case is remanded to the trial court for reconsideration of defendant's equal protection argument in light of McKee, supra, 47 Cal.4th 1172, and the final resolution of the proceedings on remand in McKee (see id. at pp. 1208-1210). In this regard, the trial court shall suspend further proceedings in this case pending finality of the proceedings on remand in McKee, including any proceeding
in the Superior Court of San Diego County in which McKee may be consolidated with related matters, any subsequent appeal, and any proceedings in the California Supreme Court.
WE CONCUR: McINTYRE, J. AARON, J.