(Super. Ct. No. MH97752) APPEAL from an order of the Superior Court of San Diego County, Michael D. Wellington, Judge.
The opinion of the court was delivered by: McDONALD, J.
CERTIFIED FOR PUBLICATION
Richard McKee appeals an order entered by the trial court on remand after the California Supreme Court's decision in People v. McKee (2011) 47 Cal.4th 1172 (McKee). Following an evidentiary hearing, the trial court confirmed McKee's indeterminate term civil commitment as a sexually violent predator (SVP) under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq., Act or SVP Act),*fn1 as amended by Proposition 83, which was passed by the electorate in 2006. "Proposition 83 . . . modified the terms by which [SVP's] can be released from civil commitment under the [Act]. In essence, it changes the commitment from a two-year term, renewable only if the People prove to a jury beyond a reasonable doubt that the individual still meets the definition of an SVP, to an indefinite commitment from which the individual can be released if he [or she] proves by a preponderance of the evidence that he [or she] no longer is an SVP." (McKee, supra, 47 Cal.4th at pp. 1183-1184.) McKee affirmed in part and reversed in part McKee's civil commitment under the Act and directed us to remand the matter to the trial court for an evidentiary hearing to determine whether the People, applying constitutional equal protection principles, could demonstrate a constitutional justification for imposing on SVP's a greater burden to obtain release from commitment than on those persons committed under the Mentally Disordered Offenders Act (Pen. Code, § 2960 et seq., MDO's) and those persons committed after being found not guilty by reason of insanity (Pen. Code, § 1026.5, subd. (a), NGI's). (McKee, at pp. 1208-1209.)
Following a 21-day evidentiary hearing, the trial court concluded the People met their burden to justify the disparate treatment of SVP's under the standards set forth in McKee. On appeal, McKee contends the trial court erred by finding the People met that burden. We conclude the trial court correctly found the People presented substantial evidence to support a reasonable perception by the electorate that SVP's present a substantially greater danger to society than do MDO's or NGI's, and therefore the disparate treatment of SVP's under the Act is necessary to further the People's compelling interests of public safety and humane treatment of the mentally disordered.
FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2004, a petition was filed to establish McKee as an SVP within the meaning of the Act. The petition alleged McKee was "a person who has been convicted of a sexually violent offense against two or more victims for which he was sentenced and who 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." It alleged he had been convicted of two counts of committing lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)). One victim was an 11-year-old girl and the other was an eight-year-old girl.*fn2 The petition requested that McKee be committed to the custody of the State Department of Mental Health (DMH) for a period of two years.
On March 5, 2007, an amended petition was filed restating the original petition's factual allegations and requesting that McKee be committed to the DMH's custody for an indeterminate term pursuant to the Act (as amended on Nov. 7, 2006, by the electorate's passage of Prop. 83). Following a five-day trial, the jury returned a verdict finding McKee was an SVP within the meaning of the Act and the trial court issued an order committing him to the custody of the DMH for an indeterminate term pursuant to the Act. (McKee, supra, 47 Cal.4th at pp. 1184-1185.) McKee filed a notice of appeal challenging that order. (Id. at p. 1185.) On appeal, we rejected McKee's claims that the indeterminate commitment under Proposition 83 violated federal or state due process, ex post facto or equal protection provisions; we also rejected his challenges to the sufficiency of the evidence and adequacy of the jury instructions. (Ibid.) The California Supreme Court granted review and limited the issues to whether the Act, as amended by Proposition 83, violated McKee's constitutional rights under the due process, equal protection, and ex post facto clauses. (Ibid.)
In McKee, the California Supreme Court rejected McKee's due process and ex post facto claims. (McKee, supra, 47 Cal.4th at pp. 1188-1195.) However, the court disagreed with our conclusion that SVP's were not similarly situated to MDO's and NGI's for purposes of the equal protection clause. (Id. at pp. 1202-1203.) Because the court believed neither we nor the trial court understood the proper standard for considering equal protection claims, McKee remanded the matter for an evidentiary hearing for the trial court to determine whether, applying the strict scrutiny standard, the People can justify their disparate treatment of SVP's under the Act by showing the disparate treatment of SVP's was necessary to further compelling state interests. (Id. at pp. 1184, 1197-1198, 1208-1209.) McKee stated that on remand the People "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." (Id. at p. 1210, fn. omitted.)
After the case was remanded to the trial court following McKee, the trial court conducted an evidentiary hearing to determine whether the People could justify the Act's disparate treatment of SVP's under the strict scrutiny standard for equal protection claims. At the hearing, the People presented the testimony of eight witnesses and documentary evidence. The trial court also allowed McKee to present evidence; he presented the testimony of 11 witnesses and documentary evidence. The court issued a 35-page statement of decision summarizing the extensive testimonial and documentary evidence presented at the hearing and finding the People had met their burden to establish, by a preponderance of the evidence, that the disparate treatment of SVP's under the Act was based on a reasonable perception of the greater and unique dangers they pose compared to MDO's and NGI's. Accordingly, the court confirmed its March 13, 2007, order committing McKee to the custody of the DMH for an indeterminate term under the Act. McKee timely filed a notice of appeal.
The SVP Act and Proposition 83
In McKee, the California Supreme Court summarized the SVP Act and Proposition 83's 2006 amendment of the Act (McKee, supra, 47 Cal.4th at pp. 1185-1188), which summary we quote in large part as follows:
"The Act, as originally enacted (Stats. 1995, ch. 763, § 3, p. 5922), provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, by a unanimous jury verdict after trial ( . . . former §§ 6603, subd. (d), 6604), are found beyond a reasonable doubt to be an SVP (former § 6604). [Citations.] A person's commitment could not be extended beyond that two-year term unless a new petition was filed requesting a successive two-year commitment. [Citations.] On filing of a recommitment petition, a new jury trial would be conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. [Citations.] . .
"As originally enacted, an SVP was defined as 'a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence 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.' (Former § 6600, subd. (a).) A 'sexually violent offense' included a Penal Code section 288 lewd act on a child under age 14. [Citations.] Under the Act, a person is 'likely' to engage in sexually violent criminal behavior (i.e., reoffend) if he or she '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.' [Citation.] [¶] . . . [¶]
"On November 7, 2006, California voters passed Proposition 83, entitled 'The Sexual Predator Punishment and Control Act: Jessica's Law' amending the Act effective November 8, 2006. . . . Proposition 83 . . . changes an SVP commitment from a two-year term to an indefinite commitment. . . .
"Pursuant to Proposition 83, section 6604, which had prescribed a two-year term for SVP's, now provides in relevant part: 'If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement . . . .' (Italics added.) Proposition 83 did not change section 6604's requirement that a person's initial commitment as an SVP be proved at trial beyond a reasonable doubt. Under Proposition 83, section 6605 continues to require current examinations of a committed SVP at least once every year. (§ 6605, subd. (a).) However, Proposition 83 added new provisions to section 6605 regarding the DMH's obligations: Pursuant to section 6605, subdivision (a), the DMH now files an annual report in conjunction with its examination of SVP's that 'shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community.' Subdivision (b) now provides that '[i]f the [DMH] determines that either: (1) the person's condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the director shall authorize the person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge.' (§ 6605, subd. (b).) If the state opposes the director's petition, then, as under the pre-Proposition 83 statute, it must prove beyond a reasonable doubt that the person still meets the definition of an SVP.
"In the event the DMH does not authorize the committed person to file a petition for release pursuant to section 6605, the person nevertheless may file, as was the case with the pre-Proposition 83 Act, a petition for conditional release for one year and subsequent unconditional discharge pursuant to section 6608. (§ 6608, subd. (a).) Section 6608, subdivision (i), which was also unamended by the Act, provides: 'In any hearing authorized by this section, the petitioner shall have the burden of proof by a preponderance of the evidence.' (Italics added.) After a trial court denies a section 6608 petition, 'the person may not file a new application until one year has elapsed from the date of the denial.' (§ 6608, subd. (h).)
"In short, under Proposition 83, an individual SVP's commitment term is indeterminate, rather than for a two-year term as in the previous version of the Act. An SVP can 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 [or her] own, is able to bear the burden of proving by a preponderance of the evidence that he [or she] is no longer an SVP. In other words, the method of petitioning the court for release and proving fitness to be released, which under the former Act had been the way an SVP could cut short his [or her] two-year commitment, now becomes the only means of being released from an indefinite commitment when the DMH does not support release." (McKee, supra, 47 Cal.4th at pp. 1185-1188, fns. omitted.)
Equal Protection Clause and McKee
Equal Protection Clause. "The right to equal protection of the laws is guaranteed by the Fourteenth Amendment to the federal Constitution and article I, section 7 of the California Constitution. The 'first prerequisite' to an equal protection claim is ' "a showing that 'the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' " . . . ' [Citation.] [¶] 'Equal protection applies to ensure that persons similarly situated with respect to the legitimate purpose of the law receive like treatment; equal protection does not require identical treatment. [Citation.]' [Citation.] The state 'may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] Variation of the length ...