(Super. Ct. Nos. 95F7001, 93F3391)
The opinion of the court was delivered by: Raye , P. J.
Opinion on remand from Supreme Court
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In April 2007 a jury found defendant Glenn Arthur Johndrow was a sexually violent predator (SVP) within the meaning of the Sexually Violent Predator Act (SVPA; Welf. and Inst. Code, § 6600 et seq.), and the court committed him to the Department of Mental Health (DMH) for an indeterminate term.*fn1
Defendant appealed, contending that (1) he had a due process right to testify over his counsel's objection, and (2) recent amendments to the SVPA permitting indeterminate commitments were unconstitutional pursuant to principles of federal and state due process and equal protection.
In July 2009 we filed our opinion rejecting defendant's contentions and affirming the commitment.
In September 2009 the California Supreme Court granted review in this case and deferred further proceedings pending disposition of related issues in People v. McKee, review granted July 9, 2008, S162823. In January 2010 the Supreme Court issued its opinion in People v. McKee (2010) 47 Cal.4th 1172 (McKee I), concluding, contrary to several Court of Appeal decisions, that SVP's were similarly situated to mentally disordered offenders (MDO; Pen. Code, § 2960 et seq.) and to persons found not guilty of a criminal offense by reason of insanity (NGI; Pen. Code, § 1026 et seq.) for purposes of the SVPA. (McKee I, at p. 1207.) McKee I remanded the matter to the San Diego County Superior Court to permit the People the opportunity to show that under equal protection principles there existed "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.)
In May 2010 the Supreme Court transferred the instant case back to this court with directions to reconsider our decision in light of McKee I and to suspend consideration of defendant's equal protection argument pending "finality of the proceedings on remand in McKee."
In June 2010 we reconsidered and reaffirmed our rejection of the issues raised by defendant, except for the equal protection argument preserved by the Supreme Court in McKee I, for which we suspended further proceedings.
The San Diego Superior Court conducted the evidentiary hearing required by McKee I, concluded the People had met their burden of justifying the disparate treatment of SVP's, and affirmed the indeterminate commitment. (People v. McKee (2012) 207 Cal.App.4th 1325, 1332 (McKee II).) In October 2012 the Supreme Court denied review and McKee II became final. We now address in part III the equal protection issue reserved by the Supreme Court.*fn2
Dr. Jeffrey Davis, a psychologist who conducted SVP evaluations for DMH and the only witness at defendant's trial, testified that on May 25, 2006, he interviewed defendant to determine whether defendant was an SVP. Prior to the interview, Dr. Davis reviewed materials prepared by the probation department, DMH, and the Department of Corrections as well as progress reports prepared by various medical staff, technicians, and the manager of the conditional release program.
Dr. Davis also reviewed defendant's three prior sex-related convictions that qualified as predatory sex offenses. These were as follows.
In 1986 defendant was convicted of lewd conduct with a child under 14 years of age. Defendant "volunteered" to take a developmentally disabled 12-year-old boy who was attending the Special Olympics to the bathroom. Once in the bathroom, defendant fondled and orally copulated the boy. Defendant admitted the conduct and stated that prior to taking the boy into the bathroom he had been thinking of finding a child and having sex as soon as the situation presented itself. Defendant said that he enjoyed what he had done and that "he sucks penises every chance he gets."
In 1994 defendant was convicted of sodomy with an incompetent person. Defendant forced a 22-year-old developmentally disabled male onto a bed and "forcibly penetrated his anus with [defendant's] penis" and threatened to send the "Hell's Angels" after the victim if he told anyone what had happened. Defendant admitted the sodomy as well as fondling and orally copulating the victim's penis, but claimed that the acts were consensual and the comment about the Hell's Angels was a joke.
In 1995 defendant was convicted of lewd conduct with a child under 14 years of age. Defendant admitted twice fondling the penis of, and was caught kissing, the five-year-old son of a woman ...