Appeal from an order of the Superior Court of Riverside County, Eric G. Helgesen, Judge. (Retired judge of the former Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) (Super. Ct. No. RIC334384)
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
A petition filed in January 2008 alleged John McDonald was a sexually violent predator (SVP) within the meaning of the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA).*fn1 Following trial in January 2011, the trial court found the allegations of the petition to be true and committed McDonald for an indeterminate term to the custody of the State Department of Mental Health (DMH) for treatment in a secured facility. McDonald appeals from the commitment order.
In March 2012, we ordered further proceedings in this matter suspended until the finality of proceedings on remand in People v. McKee (2010) 47 Cal.4th 1172 (McKee I). Division One of the Fourth Appellate District of the Court of Appeal subsequently issued its opinion in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II). After the California Supreme Court denied review of McKee II, we vacated our order suspending further proceedings and invited the parties to submit supplemental letter briefs addressing the effect of McKee I and subsequent authority. Both McDonald and the Attorney General filed supplemental briefs.
McDonald argues that by making a commitment indeterminate and by placing the burden on the SVP to obtain release, the SVPA violates the constitutional right to equal protection. We disagree. We agree with the reasoning and conclusion in McKee II that the SVPA's provisions for indeterminate commitment and for placing the burden on the SVP to obtain release do not violate the equal protection rights of the person named in the SVPA petition. In reaching our decision, we join our colleagues in People v. Landau (Feb. 7, 2013, G042008) __ Cal.App.4th __ [2013 Cal.App. Lexis 158] (Landau) and the Courts of Appeal in People v. McCloud (2013) 213 Cal.App.4th 1076 (McCloud) and People v. McKnight (2012) 212 Cal.App.4th 860 (McKnight).
As to McDonald's other arguments, we conclude (1) McKee II's holdings extend to the entire class of suspected SVP's; (2) McKee II applied both the correct standard of appellate review and the equal protection strict scrutiny standard; (3) commitment to an indeterminate term under the SVPA does not violate due process, is not an ex post facto law, and does not constitute cruel and/or unusual punishment; (4) commitment under the SVPA does not constitute double jeopardy; (5) Proposition 83, the ballot initiative which amended the SVPA to provide for indeterminate periods of commitment, did not violate the single-subject rule; and (6) McDonald's waiver of his right to be present in person at trial was lawful. Accordingly, we affirm the commitment order.
PROCEDURAL HISTORY AND FACTS
The initial SVPA petition, which sought to commit McDonald for a two-year term, was filed in October 1999. Additional petitions for subsequent two-year commitment terms were filed in January of 2002, 2004, and 2006. Following a trial in August and September 2006, the trial court ordered McDonald's commitment as an SVP for a two-year term ending on February 28, 2008. We affirmed the commitment order in People v. McDonald (Apr. 30, 2009, G041020) (nonpub. opn.).
The commitment petition filed in January 2008 sought to commit McDonald for an indeterminate term under the SVPA. In January 2011, McDonald waived his right to a jury trial and his right to be present in person at trial.
The trial on the January 2008 commitment petition was conducted on January 21, 2011. Dawn Starr, Ph.D., and Michael J. Selby, Ph.D., were the only witnesses who testified at trial.
Dr. Starr testified she conducted evaluations of McDonald in 2001, 2009, and 2010. She was able to interview McDonald only for the 2009 evaluation. In preparing the evaluations, Dr. Starr considered McDonald's history of antisocial behavior and sex offenses, and she related that history at trial. In 1978, when he was 16 years of age, McDonald molested a six-year-old girl and was placed with the former California Youth Authority. Shortly after his release in 1982, McDonald met a 10-year-old boy and offered to pay him $15 if he would go to a boat dock with McDonald to help with some work. At the dock, the boy became suspicious and tried to run away. McDonald forced the boy into a shed, pulled down his own pants, and forced the boy to orally copulate him. McDonald told the boy he would not kill him if he promised not to tell. McDonald injected a clear substance into the boy's arm and told the boy, "[t]his will make your penis grow." McDonald released the boy, who was treated later for an infected hematoma of the left elbow.
McDonald had hired two brothers, aged 10 and eight, to work in McDonald's home. In January 1983, the eight-year-old boy overheard McDonald make a lewd comment to the 10-year-old boy about oral copulation. An investigation revealed that McDonald had engaged in oral copulation with the 10-year-old boy at least three times and had attempted anal penetration. McDonald later told the police he liked boys of 10 or 11 years of age and acknowledged he could not control himself sexually around children.
As a consequence of his actions in 1982 and 1983, McDonald was convicted of a total of 11 felony counts.
Dr. Starr used two actuarial tools, the Static-99R and the Static-2002R, to evaluate McDonald's risk of reoffending. McDonald fell within the highest risk category for both tools. Dr. Starr concluded that McDonald presented a serious and well-founded risk of reoffending in a sexually violent manner. She diagnosed him with "pedophilia, sexually attracted to males and females but noting that it's primarily been males." Dr. Starr also diagnosed McDonald as having antisocial personality disorder and borderline personality disorder. She explained the relevance of that diagnosis by testifying: "The antisocial personality disorder and . . . the borderline personality disorder [are] kind of like putting fuel on the fire of a paraphilic or a pedophilia diagnosis. Because if a person has these kinds of deviant inclinations but they don't have a personality disorder, they might try to keep them in check. But if you have a person who has, for example, difficulty making age-appropriate friendships or romantic relationships, who is immature and when he wants something acts out on it for immediate gratification, then it's going to create an increased likelihood of sexually acting out."
Dr. Selby conducted evaluations of McDonald in 2007 and 2010. Dr. Selby diagnosed McDonald as having "pedophilia, both sexes, nonexclusive type, as well as cognitive disorder not otherwise specified" and "[a]ntisocial personality disorder." Dr. Selby concluded McDonald has "a very strong genetic predisposition for being sexually attracted to children . . . and that because of . . . his limited ability to control the strong urges that come to him, that he has less ability to act to control them and, therefore, would act out much more impulsively without thinking."
McDonald, who was born in 1962, lost all of his hearing in one ear and half of his hearing in the other ear when he was young. He has a history of acting aggressively and of having "seizure disorders," and has been found to have developmental disabilities. Attempts to determine his level of cognitive functioning have been inconclusive.
The trial court found McDonald to be an SVP and, in an order entered on January 21, 2011, ordered him committed for an indeterminate term to the DMH for appropriate treatment in a secured facility. McDonald timely appealed.