(Super. Ct. No. CM021188)
The opinion of the court was delivered by: Duarte, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Jeffery Lee Fisher timely appeals from an order indefinitely committing him under the Sexually Violent Predator (SVP) Act.*fn1 Defendant contends the trial court denied him the right of allocution, and that the SVP Act is unconstitutional in several respects. The People concede the case must be reversed and remanded for consideration of defendant's equal protection claim, under the authority of People v. McKee (2010) 47 Cal.4th 1172 (McKee).
We shall reverse and remand in accordance with McKee, but direct the trial court to suspend further proceedings until another court decides the equal protection issue.
FACTUAL AND PROCEDURAL BACKGROUND
An SVP is a person previously convicted of a sexually violent offense "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." (Welf. & Inst. Code, § 6600, subd. (a)(1).) A sexually violent offense can be a forcible sexual act or any lewd act with a child under 14, whether forcible or not. (Id., subd. (b); see Pen. Code, § 288.)
At a court trial, the parties stipulated defendant had two qualifying offenses and a qualifying mental disorder. Three psychologists testified at trial.
Doctors Nancy Webber and George Grosso had filed reports concluding defendant met all the SVP criteria, in that he was a pedophile, and his history showed sexual assaults against children (girls aged 6 and 7) and teenagers (a boy aged 16, and, as Dr. Webber noted, a girl aged 16), and they opined defendant was likely to reoffend. Dr. Douglas Korpi's report conceded defendant was likely to sexually reoffend against adolescents, but opined that such acts would not meet the definition of "violent" offenses; therefore defendant was not an SVP.
Dr. Webber testified defendant was sexually attracted to children and to adolescents. She found him to be "at high risk" for reoffense, in part based on the persistence of his actions over time. Dr. Grosso testified defendant was a pedophile "primarily attracted to females" but with a "possibility of attraction to males[.]" Dr. Grosso found defendant to be "a substantial danger" with "a serious, well founded risk" of reoffense.
Dr. Korpi testified defendant had various issues including impulsivity and a borderline personality disorder, but he did not concur in the diagnosis of pedophilia, though he conceded reasonable minds could differ on that question. Dr. Korpi testified defendant may have had "a mild case [of pedophilia] that was transient. And the record would suggest that he's shifted his focus later to teenagers and adults." Dr. Korpi testified "we can predict with some reasonable assurance that he's going to act out sexually again. He's got too much sexual energy and too little impulse control." But, "he's probably moved away from children, and he's more focused towards age appropriate people, and mid to late adolescents. And so it will probably be a grope, something more the way with Angela [age 16] or Joseph [age 16], something more along those lines." However, in Dr. Korpi's opinion, such reoffense would not be violent.
The trial court found beyond a reasonable doubt that defendant was an SVP. Defendant timely filed this appeal ...