People v. Snavely CA4/1 ( 2014 )

Filed 5/15/14 P. v. Snavely CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063684
Plaintiff and Respondent,
v. (Super. Ct. No. MH102461)
GARY GENE SNAVELY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Melinda J.
Lasater, Judge. Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Lynne
G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Gary Gene Snavely appeals an order denying his Welfare and Institutions Code1
section 6608 petition for conditional release from his civil commitment as a sexually
violent predator. On appeal, he contends his constitutional right to equal protection was
violated because the Sexually Violent Predators Act (§ 6600 et seq.) (the SVP Act or the
Act) placed on him the burden to prove he was suitable for conditional release. He
asserts that neither People v. McKee (2010) 47 Cal. 4th 1172 (McKee I) nor People v.
McKee (2012) 207 Cal. App. 4th 1325 (McKee II) decided this issue. Because, as
discussed below, in McKee II we decided the Act does not violate the equal protection
right of a sexually violent predator (SVP) by placing on him or her the burden to prove
entitlement to release, whether conditional or unconditional, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND2
In September 2012, Snavely filed the instant section 6608 petition for conditional
release and/or unconditional discharge from his civil commitment as an SVP. Snavely
did not allege, and the record does not show, the Department of Mental Health (DMH)
authorized his petition. His petition alleged he was first civilly committed as an SVP in
1997 and, after showing consistent progress in sex offender therapy and relapse
prevention offender therapy, he was conditionally released in June 2008. In September
1 All statutory references are to the Welfare and Institutions Code unless otherwise
specified.
2 Because the evidence presented at the hearing on Snavely's section 6608 petition
for conditional release is immaterial to our disposition of his facial challenge to the Act,
we only briefly discuss it in this opinion.
2
2008, his conditional release was revoked based on his abuse of one of his psychotropic
medications and his fantasy involving women's feces. Snavely alleged he had since made
sufficient progress in his therapy and was entitled to placement in a conditional release
program for one year or unconditional discharge from civil commitment.
During a five-day trial, the trial court heard the testimony of Snavely's therapists
and other treatment providers, who generally described his progress during commitment
and/or their belief he was ready for conditional release, followed by the testimony of the
State of California's forensic psychologist who concluded Snavely was not ready for
conditional release. On February 15, 2013, the trial court issued a statement of decision
denying the petition. The court concluded Snavely had not met his burden to prove by a
preponderance of the evidence he would not be a danger to others because of his
diagnosed mental state while under supervision and treatment in the community. Snavely
timely filed a notice of appeal challenging the order denying his petition.
DISCUSSION
I
The SVP Act and Proposition 83
In McKee I, the California Supreme Court summarized the SVP Act and
Proposition 83's 2006 amendment of the Act (McKee I, 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
3
persons who, by a unanimous jury verdict after trial (Welf. & Inst. Code, 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 Predators 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. . . .
4
"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
5
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 own, is able to bear the burden of proving by a preponderance
of the evidence that he 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 two-year commitment, now becomes the only means
6
of being released from an indefinite commitment when the DMH does not support
release."3 (McKee I, supra, 47 Cal.4th at pp. 1185-1188, fns. omitted.)
II
Equal Protection Clause
In McKee II, we discussed the right to equal protection under the federal and
California Constitutions and repeat that discussion here. (McKee II, supra, 207
Cal.App.4th at pp. 1334-1335.) "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 and conditions of confinement, depending on degrees of danger
reasonably perceived as to special classes of persons, is a valid exercise of power.' "
(People v. Hubbart (2001) 88 Cal. App. 4th 1202, 1216-1217.)
3 Effective as of June 27, 2012, the Act was amended to replace references to the
Department of Mental Health (DMH) with the Director of State Hospitals (DSH). (See
e.g., §§ 6605, 6608, as amended by Stats. 2012, ch. 24, §§ 144, 146.)
7
"Strict scrutiny is the appropriate standard against which to measure claims of
disparate treatment in civil commitment." (People v. Green (2000) 79 Cal. App. 4th 921,
924.) Applying the strict scrutiny standard, the state has the burden of establishing it has
a compelling interest that justifies the law and that the distinctions, or disparate treatment,
made by that law are necessary to further its purpose. (Warden v. State Bar (1999) 21
Cal. 4th 628, 641.) Alternatively stated, applying the strict scrutiny standard, a law "is
upheld only if it is necessary to further a compelling state interest." (People v. Buffington
(1999) 74 Cal. App. 4th 1149, 1156.)
III
McKee I
In McKee I, supra, 47 Cal. 4th 1172, the California Supreme Court addressed
McKee's claim that his equal protection right was violated because SVP's are treated
disparately from mentally disordered offenders (MDO's) and persons found not guilty by
reason of insanity (NGI's). Regarding SVP's and MDO's, McKee I stated:
"SVP's under the amended Act are given indeterminate
commitments and thereafter have the burden to prove they should be
released (unless the DMH authorizes a petition for release). In
contrast, an MDO is committed for a one-year period and thereafter
has the right to be released unless the People prove beyond a
reasonable doubt that he or she should be recommitted for another
year. There is therefore no question that, after the initial
commitment, an SVP is afforded different and less favorable
procedural protections than an MDO." (McKee I, supra, 47 Cal.4th
at p. 1202.)
8
McKee I concluded SVP's and MDO's are similarly situated for equal protection
purposes. (McKee I, supra, 47 Cal.4th at pp. 1202-1203.) The court also concluded
SVP's and NGI's are similarly situated for equal protection purposes. (Id. at p. 1207.)
However, because the People had not yet carried their burden to justify the
disparate treatment of SVP's, the court remanded the matter to the trial court for an
evidentiary hearing to determine whether, applying the strict scrutiny standard, the
People could justify the disparate treatment of SVP's under the Act by showing the
disparate treatment of SVP's was necessary to further compelling state interests.
(McKee I, supra, 47 Cal.4th at pp. 1184, 1197-1198.) The court described that disparate
treatment as the imposition on SVP's of a greater burden than is imposed on MDO's and
NGI's to obtain release from commitment. (Id. at pp. 1208-1209.) The court described
the burden the People would have on remand, stating:
"It must be shown that, notwithstanding the similarities between
SVP's and MDO's, the former as a class bear a substantially greater
risk to society, and that therefore imposing on them a greater burden
before they can be released from commitment is needed to protect
society. This can be shown in a variety of ways. For example, it
may be demonstrated that the inherent nature of the SVP's mental
disorder makes recidivism as a class significantly more likely. Or it
may be that SVP's pose a greater risk to a particularly vulnerable
class of victims, such as children. . . . Or the People may produce
some other justification." (McKee I, supra, 47 Cal.4th at p. 1208,
italics added, fn. omitted.)
9
IV
McKee II
On remand after McKee I, the trial court conducted a 21-day evidentiary hearing to
determine whether the People met their burden to justify the disparate treatment of SVP's.
(McKee II, supra, 207 Cal.App.4th at p. 1330.) Following that hearing, the trial court
concluded the People met that burden and confirmed McKee's civil commitment as an
SVP. (Ibid.) On appeal, McKee asserted the trial court erred. (Ibid.)
In McKee II, we independently reviewed the evidence presented at the evidentiary
hearing and concluded "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." (McKee II,
supra, 207 Cal.App.4th at pp. 1330-1331.) In so concluding, we discussed the testimony
of the People's witnesses regarding the recidivism rates of SVP's and MDO's/NGI's, the
greater trauma of victims of sexual offenses, and diagnostic and treatment differences
between SVP's and MDO's/NGI's. (Id. at pp. 1340-1347.) We concluded "the People on
remand met their burden to present substantial evidence . . . justifying the amended Act's
disparate treatment of SVP's (e.g., by imposing indeterminate terms of civil commitment
and placing on them the burden to prove they should be released)." (Id. at p. 1347, italics
added.) We further concluded the People showed SVP's as a class bear a substantially
10
greater risk to society than do MDO's and NGI's as a class, and therefore imposing on
SVP's " 'a greater burden before they can be released from commitment is needed to
protect society.' " (Ibid., italics added.)
V
Snavely's Equal Protection Claim
Snavely contends the trial court erred by denying his section 6608 petition for
conditional release because his constitutional right to equal protection of the law was
violated. He claims that, pursuant to the Act, the burden was placed on him to prove, by
a preponderance of the evidence, he is suitable for conditional release under section 6608.
He asserts, and the People disagree, that neither McKee I nor McKee II decided this issue
and therefore the trial court's judgment must be reversed and the matter remanded for
either a new hearing with application of the appropriate burden of proof or, in the
alternative, an evidentiary hearing to allow the People to present evidence justifying the
disparate treatment of SVP's.
A
Snavely first asserts he did not waive or forfeit his equal protection claim when his
counsel did not raise that claim below or, if he did, he was denied his right to effective
assistance of counsel. To prove ineffective assistance of counsel, Snavely must show, by
a preponderance of the evidence, that (1) his counsel's representation was deficient (i.e.,
was below prevailing professional standards of reasonableness); and (2) he was
prejudiced by that deficient performance (i.e., it is reasonably probable that, but for his
11
counsel's deficient performance, he would have obtained a more favorable result).
(Strickland v. Washington (1984) 466 U.S. 668, 687, 691-692; People v. Ledesma (1987)
43 Cal. 3d 171, 215-218; People v. Pope (1979) 23 Cal. 3d 412, 425.)
For purposes of this opinion, we assume arguendo that Snavely waived or
forfeited his equal protection claim by not raising it below and his counsel performed
deficiently by not raising that claim, and therefore address only the issue of prejudice
from that assumed deficient performance. Because, as we conclude below, his equal
protection right was not violated by application of section 6608's burden of proof
provision, we conclude Snavely has not carried his burden to show he was prejudiced by
his counsel's assumed deficient performance. (Strickland v. Washington, supra, 466 U.S.
at pp. 687, 691-692; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218; People v. Pope,
supra, 23 Cal.3d at p. 425.)
B
Under the Act, an SVP's commitment term is indeterminate, and an individual so
committed can only be released conditionally or unconditionally (1) if the DSH
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 (2) 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 and is entitled to
conditional or unconditional release. (§§ 6604, 6605, 6608; McKee I, supra, 47 Cal.4th
at pp. 1185-1188, fns. omitted.) If the DSH does not, as in this case, authorize the
12
committed person to file a petition for release pursuant to section 6605, the person
nevertheless may file a petition for conditional release for one year and subsequent
unconditional discharge pursuant to section 6608. (§ 6608, subd. (a).)4
Section 6608, subdivision (e), provides the procedure for the hearing on an SVP's
petition for conditional release, stating:
"The court shall hold a hearing to determine whether the person
committed would be 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 due to his or her diagnosed mental disorder if under
supervision and treatment in the community. . . . If the court at the
hearing determines that the committed person would not be a danger
to others due to his or her diagnosed mental disorder while under
supervision and treatment in the community, the court shall order the
committed person placed with an appropriate forensic conditional
release program operated by the state for one year. . . ."
Section 6608, subdivision (i), provides: "In a hearing authorized by this section, the
committed person shall have the burden of proof by a preponderance of the
evidence . . . ."5 (Italics added.) Therefore, in a section 6608 hearing on a petition for
4 Section 6608, subdivision (a), provides in pertinent part: "A person who has been
committed as a sexually violent predator shall be permitted to petition the court for
conditional release with or without the recommendation or concurrence of the Director of
State Hospitals. . . ."
5 After amendments that were effective as of January 1, 2014, section 6608,
subdivision (i), now provides: "In a hearing authorized by this section, the committed
person shall have the burden of proof by a preponderance of the evidence, unless the
report required by Section 6604.9 determines that conditional release to a less restrictive
alternative is in the best interest of the person and that conditions can be imposed that
would adequately protect the community, in which case the burden of proof shall be on
the state to show, by a preponderance of the evidence, that conditional release is not
appropriate."
13
conditional release, the committed person (i.e., the SVP) has the burden to prove, by a
preponderance of the evidence, he or she would not be a danger to others due to his or her
diagnosed mental disorder while under supervision and treatment in the community.
(§ 6608, subds. (e), (i).)
Effective as of January 1, 2014, section 6608, subdivision (k), was added,
providing:
"After a minimum of one year on conditional release, the committed
person, with or without the recommendation or concurrence of the
Director of State Hospitals, may petition the court for unconditional
discharge. The court shall use the procedures described in
subdivisions (a) and (b) of Section 6605 to determine if the person
should be unconditionally discharged from commitment on the basis
that, by reason of a diagnosed mental disorder, he or she is no longer
a danger to the health and safety of others in that it is not likely that
he or she will engage in sexually violent criminal behavior."
C
Snavely asserts his equal protection rights were violated because the Act placed
the burden of proof on him to show by a preponderance of the evidence that he is suitable
for conditional release under section 6608. However, based on our review of McKee I
and McKee II, we conclude that question has been decided adversely to the class of SVP's
that includes Snavely.
In McKee I, the California Supreme Court noted the disparate treatment of SVP's
under the Act included their indeterminate commitments and burden thereafter to prove
they should be released (unless the DSH authorizes a petition for release). (McKee I,
supra, 47 Cal.4th at p. 1202.) The court described that disparate treatment as the
14
imposition on SVP's of a greater burden than is imposed on MDO's and NGI's to obtain
release from commitment. (Id. at pp. 1208-1209.) In remanding the matter for an
evidentiary hearing to allow the People to justify that disparate treatment of SVP's, the
court described the burden the People would have, stating:
"It must be shown that, notwithstanding the similarities between
SVP's and MDO's, the former as a class bear a substantially greater
risk to society, and that therefore imposing on them a greater burden
before they can be released from commitment is needed to protect
society. This can be shown in a variety of ways. For example, it
may be demonstrated that the inherent nature of the SVP's mental
disorder makes recidivism as a class significantly more likely. Or it
may be that SVP's pose a greater risk to a particularly vulnerable
class of victims, such as children. . . . Or the People may produce
some other justification." (McKee I, supra, 47 Cal.4th at p. 1208,
italics added, fn. omitted.)
In McKee II, we independently reviewed the evidence presented at that evidentiary
hearing after remand and concluded the People had met their burden to justify that
disparate treatment of SVP's. (McKee II, supra, 207 Cal.App.4th at pp. 1330, 1347.) We
concluded 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. (Id. at p. 1331.) Importantly for this case, we
concluded "the People on remand met their burden to present substantial evidence . . .
justifying the amended Act's disparate treatment of SVP's (e.g., by imposing
indeterminate terms of civil commitment and placing on them the burden to prove they
15
should be released)." (Id. at p. 1347, italics added.) We further concluded the People
showed SVP's as a class bear a substantially greater risk to society than do MDO's and
NGI's as a class, and therefore imposing on SVP's " 'a greater burden before they can be
released from commitment is needed to protect society.' " (Ibid., italics added.)
Therefore, both McKee I and McKee II considered in their equal protection
analyses disparate treatment of SVP's that included the Act's placement on SVP's of the
burden of proof to obtain release. In using the term "release," both decisions showed an
intent to include both conditional and unconditional releases within that term. Both
decisions recognized the Act's framework that sets forth procedures for an SVP to file a
petition, without the authorization or concurrence of the DMH/DSH, for conditional
release under section 6608. Under the statutory framework, presuming the DMH/DSH
does not authorize most petitions by SVP's for release (which presumption is not
contradicted by the records in McKee II and this case), a section 6608 petition for
conditional release is the most common procedure by which SVP's can obtain release
from their civil commitments. Absent authorization or concurrence of the DMH/DSH, an
SVP can obtain unconditional release or discharge only after first obtaining conditional
release and then satisfactorily completing at least one year in a forensic conditional
release program. (See Welf. & Inst. Code, former § 6608, subd. (d); cf. new § 6608,
subd. (k) [eff. Jan. 1, 2014].) Therefore, in using the term "release," McKee I and
McKee II clearly intended to include conditional release within the disparate treatment of
SVP's for purposes of their equal protection analyses.
16
Based on our reading of McKee II, our conclusion that the People met their burden
to justify the disparate treatment of SVP's under the Act included that disparate treatment
of SVP's consisting of the burden imposed on SVP's to prove, by a preponderance of the
evidence, they are suitable for conditional release under section 6608. Our holding in
McKee II was not limited to only disparate treatment of SVP's consisting of imposition of
an indeterminate civil commitment. In our opinion, we expressly concluded the People
on remand met their burden to justify "the amended Act's disparate treatment of SVP's
(e.g., by imposing indeterminate terms of civil commitment and placing on them the
burden to prove they should be released)." (McKee II, supra, 207 Cal.App.4th at
p. 1347, italics added.)
As used in McKee II, "[t]he burden to prove they should be released" necessarily
includes, and only includes, the burden imposed on SVP's to prove they should be
conditionally released under section 6608, because it is only in the context of a section
6608 petition that the burden of proof is placed on the SVP. (McKee II, supra, 207
Cal.App.4th at p. 1347.) At the time of the trial court's February 2013 decision, the Act
provided that when the DMH authorized an SVP's petition for conditional release, the
burden of proof was on the People to show, beyond a reasonable doubt, that the SVP'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.
(Welf. & Inst. Code, former § 6605, subd. (d); cf. new § 6608, subd. (i) [eff. Jan. 1, 2014,
when the DSH recommends conditional release for an SVP, the People now have the
17
burden of proof to show, by a preponderance of the evidence, that conditional release is
not appropriate.].) Therefore, McKee II considered disparate treatment that includes the
placement of the burden of proof on SVP's to show they are suitable for, or entitled to,
conditional release under section 6608 and concluded that burden of proof did not violate
the equal protection rights of SVP's as a class. Because in McKee II we rejected the same
equal protection claim raised by Snavely in this appeal, we conclude the trial court did
not err by denying his petition for conditional release. None of the cases cited by
Snavely persuade us to reach a contrary conclusion.
Assuming arguendo we did not decide in McKee II the question whether disparate
treatment in placing the burden on SVP's to prove they are suitable for, or entitled to,
conditional release under section 6608, we nevertheless conclude, based on our
independent review of the evidence presented at the evidentiary hearing discussed in
McKee II, the People met their burden to justify that disparate treatment of SVP's and
therefore there is no need for an evidentiary hearing on that issue in this case. We
conclude the People showed SVP's as a class bear a substantially greater risk to society
than MDO's and NGI's, and therefore imposing on SVP's a greater burden before they
can be conditionally released from their civil commitments is necessary to protect
society. (McKee II, supra, 207 Cal.App.4th at p. 1347.) As discussed above, SVP's are
treated disparately in obtaining conditional release. Under section 6608, subdivision (i),
absent DMH/DSH authorization or concurrence, SVP's have the burden to prove, by a
preponderance of the evidence, they are entitled to conditional release and placement in
18
an appropriate forensic conditional release program. In contrast, MDO's are entitled to
release for treatment on an outpatient basis if the court finds there is reasonable cause to
believe the person can be safely and effectively treated on an outpatient basis. (Pen.
Code, § 2972, subd. (d).) However, that disparate treatment was justified by the evidence
presented by the People at the McKee II hearing. The People showed the inherent nature
of the SVP's mental disorder makes recidivism as a class significantly more likely, SVP's
pose a greater risk and unique dangers to a particularly vulnerable class of victims, such
as children, and SVP's have diagnostic and treatment differences from MDO's and NGI's,
thereby supporting a reasonable perception by the electorate that the disparate treatment
of SVP's under the Act is necessary to further the state's compelling interest in public
safety and humanely treating the mentally disordered. (McKee, at p. 1347.) Therefore,
the Act's disparate treatment of SVP's in placing on them the burden to prove their
suitability for conditional release does not violate the equal protection right of SVP's.
DISPOSITION
The order is affirmed.
McDONALD, J.
WE CONCUR:
NARES, Acting P. J.
IRION, J.
19