People v. Ryan CA6 ( 2013 )

Filed 12/9/13 P. v. Ryan CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039193
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 211693)
v.
JAMES RYAN,
Defendant and Appellant.
Following a court trial, the court found true beyond a reasonable doubt that
defendant James Ryan was a sexually violent predator (SVP) under the Sexually Violent
Predator Act (SVPA). (See Welf. & Inst. Code, § 6600 et seq.)1 By order filed May 30,
2012, the court ordered him committed for an indeterminate term to the custody of the
California Department of Mental Health (now, State Department of State Hospitals;
hereafter the Department). The order specified that it was “subject to the ultimate
decision in People v. McKee (2010) 47 Cal.4th 1172” (McKee I). On November 9, 2012,
after the California Supreme Court denied review in People v. McKee (2012)
207 Cal.App.4th 1325 (McKee II), the trial court filed an order committing defendant for
an indeterminate term “as previously ordered.”
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise specified.
On appeal, defendant argues (1) that he was not evaluated with a valid
“standardized assessment protocol” as mandated by section 6601, subdivision (c) and
thus, that the subsequent commitment proceedings violated due process, and (2) that the
SVPA’s indeterminate commitment violates principles of equal protection. We conclude
that neither of defendant’s claims is meritorious, and we will therefore affirm the
judgment.
BACKGROUND
A. Facts Underlying the Sexually Violent Offenses2
In 1998, defendant was 23 years old when he met Elana, a 13-year-old girl. Elana
told defendant that she was having family problems because her stepfather had molested
her. Defendant told her that he would keep her safe. The two started dating and began a
sexual relationship.
On one evening, defendant took Elana to an abandoned house. According to
Elana, she agreed to bondage. Defendant tied her hands with a soft white rope. He also
tied a rope around her eyes so that she could not see and around her mouth to gag her.
Elana was naked. Defendant licked her body, and then penetrated her anus with his
finger. She screamed and tried to get away from defendant. Elana reported that she had
previously told defendant never to touch her anus. She told him to stop, and he complied.
Elana also reported that in 1999, she and defendant engaged in auto-erotic
asphyxiation. During intercourse, defendant grabbed Elana by the neck and choked her
until she passed out. Approximately 10 minutes after she awoke, he performed the same
act.
Elana reported these incidents to the police. The police executed a search warrant
of defendant’s home and found bondage toys, several photographs of young females
taken at defendant’s home (including a photograph of a young naked female who was
2
The summary of defendant’s offenses is taken from the evaluation reports.
2
bound and gagged), photographs of young girls, likely under the age of 18, taken from
pornographic websites, drawings of women in bondage, and notebooks containing teen
pornography sites and numbers for teen phone sex.
In late 2002 or early 2003, defendant met Samantha, a 15-year-old girl. Samantha
met defendant through her friend, Cheryl3. Samantha went to defendant’s house after
school one day and went to his bedroom. Defendant told her he wanted to have sex with
her. Samantha told defendant that she did not want to have sex, and she started to get up
to leave the room. Defendant grabbed Samantha from behind, took her purse off, and
threw her onto his bed. He then ripped off her clothing and raped her. Defendant
apologized to Samantha the next day. Samantha continued to see defendant, who raped
her several more times. She recounted that defendant used a leather whip and a wooden
paddle on her rear end, which left non-permanent marks on her. Defendant also refused
to wear a condom, claiming he was allergic to latex and that he hoped he could make
Samantha pregnant so that he could “ ‘use their child for a sex slave.’ ” Defendant would
also show Samantha pornography. Additionally, Samantha recounted an instance where
defendant slapped her on the face when she tried to leave.
Samantha’s friend, Cheryl, also reported that she was a victim and that defendant
had engaged in sexual activity with her. Cheryl was 17 years old when she first had
intercourse with defendant. At that time, she had problems with her mother, and
defendant offered her a place to stay. On that evening, defendant asked to have anal sex,
but Cheryl refused.
Defendant would refer to Cheryl as his pet and claimed he had “ownership of
girls.” Defendant had a box of pet collars and gave one to her. Additionally, while
having sex, defendant called Cheryl names, such as “ ‘slut’ ” or “ ‘whore.’ ” Defendant
3
The record states that Cheryl may have also gone by the name Ann O.
3
also told her that when she turned 18, he would tie her up and “make a movie out of it.”
However the relationship ended before Cheryl turned 18.
Cheryl learned that defendant had other sex partners. Defendant told her that one
girl threatened to go to the police, but he prevented her by telling her that he would use
her image in a bestiality movie. Defendant would also show Cheryl pictures of his ex-
girlfriend tied up. He also made Cheryl watch a movie of him and a 15 or 16-year-old
girl, who attended Cheryl’s high school, having sex. Defendant also asked Cheryl to
bring him “ ‘sacrifices,’ ” which he considered short Asian girls between 13 and 16 years
of age. On one occasion, defendant asked her to bring a 10-year-old.
B. Procedural Background
In November 2003, defendant was convicted of two counts of violating Penal
Code section 288, subdivision (a) for the acts committed against Elana, two counts of
violating Penal Code section 261.5, subdivision (d) for the acts committed against
Samantha, and two counts of violating Penal Code section 261.5, subdivision (c) for the
acts committed against Cheryl. Defendant was sentenced to six years in prison.
On February 18, 2011, the People filed a petition to commit defendant as an SVP
under the SVPA. The petition was supported by four mental health evaluations
performed by Jeremy Coles, Ph.D., Mary Jane Alumbaugh, Ph.D., Kathleen Longwell,
Ph.D., and Robert M. Owen, Ph.D4, in December 2010 and January 2011.
A probable cause hearing was held on May 25, 2011 and June 14, 2011. At the
hearing, Dr. Longwell testified on behalf of the People. Drs. Coles and Alumbaugh
testified for the defense.5 Based on the evidence presented, the trial court found probable
cause to believe defendant was an SVP.
4
Dr. Owen was the only evaluator who concluded that defendant did not meet the
criteria of an SVP.
5
At the probable cause hearing, the defense apparently sought to show that Drs.
Longwell, Coles, and Alumbaugh each used different assessment processes and
4
On June 16, 2011, defendant moved to dismiss the petition on the basis that the
evaluators had not used a “standardized assessment protocol” as mandated by section
6601, subdivision (c). The trial court denied the motion to dismiss on June 17, 2011.
On May 30, 2012, defendant waived his right to a jury trial and agreed to submit
to the trial court the determination of whether he was an SVP. The prosecution submitted
mental health evaluations, including updated evaluations done in November 2011 by Drs.
Longwell and Coles, and records pertaining to defendant’s 2003 convictions. Defendant
did not present any evidence at trial.
In their updated evaluations, Drs. Longwell and Coles both diagnosed defendant
with paraphilia (specifically, sexual sadism or coercive sexuality) and antisocial
personality disorder. They noted that their diagnoses remained unchanged from their
prior mental health evaluation reports. They both believed that defendant posed a risk of
committing a future sexually violent predatory offense.
Drs. Longwell and Coles assessed defendant’s risk of reoffense using different
tests and instruments. Dr. Longwell used the Static 99-R, Static 2002-R, the Minnesota
Sex Offender Screening Tool-Revised (MnSOST-R), the Sex Offender Risk Assessment
Guide (SORAG), and the Structured Risk Assessment, Forensic Version (SRA-FV). All
five instruments “have been subject to validation studies that have established their
usefulness in predicting sexual re-offense.” On the Static 99-R, defendant scored in the
group with a moderate to high risk of reoffense. On the Static 2002-R, defendant scored
in the group with a moderate risk of reoffense. On the MnSOST-R, defendant scored in
the group with the highest risk of reoffense. On the SORAG, defendant scored in the
category “5 of 9” risk level of reoffense. Lastly, on the SRA-FV, defendant scored in the
“very high risk” category. Based on these scores, Dr. Longwell concluded that defendant
is “an essentially untreated, dangerous and deviant sex offender who is at significant risk
diagnosed defendant with different mental disorders in order to highlight that much of the
evaluation process was discretionary.
5
to act out his sexually sadistic impulses on other young girls when he is no longer under
close supervision.” Moreover, “[f]uture sex offenses are likely to be predatory in nature.”
Dr. Coles also used the Static 99-R and the Static 2002-R. Based on these scores,
Dr. Coles concluded that defendant has not made any fundamental changes. Dr. Coles
quoted part of his previous evaluation, in which he concluded that defendant’s
“significant sexual deviancy is aggravating in terms of his risk for re-offense. . . . [H]e
has clear deviant desires related to bondage and dominance and, unfortunately, he has
demonstrated that his deviant desires can, and sometimes do, involve forced sexuality.”
Additionally, Dr. Coles noted that defendant had not participated in sex offender
treatment and that his history reveals “a significant preoccupation with sex that involves
bondage and coercion with minor females.”
Based on the exhibits, the trial court found the petition true and ordered defendant
committed to the custody of the Department for an indeterminate term. The order
specified that it was “subject to the ultimate decision in” McKee I. Then, on November
9, 2012, following the McKee II decision, the court committed defendant for an
indeterminate term “as previously ordered.”
DISCUSSION
A. Brief Overview of the SVPA
The SVPA provides for the involuntary civil commitment, for treatment and
confinement, of an individual who is found by a unanimous jury verdict (§ 6603,
subds. (e) & (f)), and beyond a reasonable doubt (§ 6604), to be a “sexually violent
predator” (ibid.). The definition of an SVP is set forth in section 6600, subdivision (a)(1)
as follows: “ ‘Sexually violent predator’ means a person who has been convicted of a
sexually violent offense against one or more victims 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.”
6
The SVP commitment process “begins when the secretary of the Department of
Corrections and Rehabilitation (DCR) determines that a person in custody because of a
determinate prison sentence or parole revocation may be a sexually violent predator. If
such an initial determination is made, the secretary refers the inmate for an evaluation.”
(In re Lucas (2012) 53 Cal.4th 839, 845 (Lucas).) “After the secretary’s referral, the
inmate is screened by the DCR and the Board [of Parole Hearings (Board)] to determine
whether the person is likely to be an SVP. If the DCR and the Board conclude that is the
case, the inmate is referred for full evaluation by the [Department]. (§ 6601, subd. (b).)”
(Ibid.)
“A full evaluation is done by two practicing psychiatrists or psychologists, or by
one of each profession. (§ 6601, subd. (d).) If one evaluator concludes the inmate meets
the SVP criteria, but the other evaluator disagrees, two more independent evaluators are
appointed. (§ 6601, subd. (e).) A petition for commitment may not be requested unless
the initial two evaluators appointed under subdivision (d), or the two independent
evaluators appointed under subdivision (e), agree that the inmate meets the commitment
criteria. (§ 6601, subds. (d), (f).)” (Lucas, supra, 53 Cal.4th at p. 845.) “If, after the full
evaluation is completed, the [Department] concludes that the inmate is an SVP, the
director of the [Department] requests that a petition for commitment be filed by the
district attorney or the county counsel of the county where the inmate was convicted. If
upon review that official concurs, a petition for commitment is filed in the superior court.
(§ 6601, subds. (h), (i).)” (Id. at p. 846.)
With regard to the full evaluation prior to the filing of a petition, former section
6601, subdivision (c), as amended by section 26 of Proposition 83, provided: “The State
Department of Mental Health shall evaluate the person in accordance with a standardized
assessment protocol, developed and updated by the State Department of Mental Health,
to determine whether the person is a sexually violent predator as defined in this article.
The standardized assessment protocol shall require assessment of diagnosable mental
7
disorders, as well as various factors known to be associated with the risk of reoffense
among sex offenders. Risk factors to be considered shall include criminal and
psychosexual history, type, degree, and duration of sexual deviance, and severity of
mental disorder.”
A commitment petition proceeds to trial only if the requisite findings are made at a
probable cause hearing. (See § 6602, subd. (a); Cooley v. Superior Court (2002)
29 Cal.4th 228.) “[T]he only purpose of the probable cause hearing is to test the
sufficiency of the evidence supporting the SVPA petition. [Citation.]” (Id. at p. 247.)
“. . . If the judge determines that there is probable cause, the judge shall order that the
person remain in custody in a secure facility until a trial is completed . . . .” (§ 6602,
subd. (a).)
At trial, the court or jury must “determine whether, beyond a reasonable doubt, the
person is a sexually violent predator.” (§ 6604.) If the court or jury determines that the
person is a sexually violent predator, the person is committed for an indeterminate term.
(Ibid.)
B. 2009 Assessment Protocol
Defendant contends the trial court erred by denying his motion to dismiss the
petition, in which he argued that the evaluators did not use a “standardized assessment
protocol” as mandated by section 6601, subdivision (c).
1. The 2009 Protocol
On February 11, 2009, the Department issued the “Standardized Assessment
Protocol for Sexually Violent Predator Evaluations” (2009 Protocol). The 2009 Protocol
had been adopted at the time of defendant’s probable cause hearing in May and June
2011.
The 2009 Protocol is six pages long. The protocol states in its introduction: “This
protocol cannot prescribe in detail how the clinician exercises his or her independent
professional judgment in the course of performing SVP evaluations. Since the exercise
8
of independent, professional clinical judgment is required, this evaluation protocol is not,
and cannot be, a detailed, precise step-by-step procedure like the kind of procedure that
might apply to the chemical analysis of an unknown substance.”
Part I of the 2009 Protocol contains statutory definitions of the terms “Sexually
Violent Predator,” “Sexually violent offense,” “Diagnosed mental disorder,” and
“Predatory.”
Part II of the 2009 Protocol is entitled “Referral Source,” and it describes the
Department’s screening process.
Part III of the 2009 Protocol is entitled, “Evaluator Prerequisites,” and it contains
the requirements of section 6601, subdivision (d) [specifying that evaluations are to be
performed by two practicing psychiatrists, two practicing psychologists, or one practicing
psychiatrist and one practicing psychologist] and section 6601, subdivision (g)
[specifying that if only one evaluator determines the person meets the SVP definition, a
further examination must be conducted by two independent professionals meeting certain
criteria].
Part IV-A of the 2009 Protocol specifies the information that evaluators must give
to the potential SVP, as required by section 6601, subdivision (f). Part IV-B lists the risk
factors that must be taken into account pursuant to section 6601, subdivision (c) – that is,
criminal history, psychosexual history, type of sexual deviance, degree of sexual
deviance, duration of sexual deviance, and severity of mental disorder. Part IV-C states
the inquiry that must be answered by each evaluator: “Does the person being evaluated
have a diagnosed mental disorder so that he or she is likely to engage in acts of sexual
violence without appropriate treatment and custody?”
Part IV-D of the 2009 Protocol (codified in section 4005 of the California Code of
Regulations, title 9) provides: “The evaluator, according to his or her professional
judgment, shall apply tests or instruments along with other static and dynamic risk factors
when making the assessment. Such tests, instruments and risk factors must have gained
9
professional recognition or acceptance in the field of diagnosing, evaluating or treating
sexual offenders and be appropriate to the particular patient and applied on a case-by-
case basis. The term ‘professional recognition or acceptance’ as used in this Section
means that the test, instrument or risk factor has undergone peer review by a conference,
committee or journal of a professional organization in the fields of psychology or
psychiatry, including, but not limited to, the American Psychological Association, the
American Psychiatric Association, and the Association for the Treatment of Sexual
Abusers.”
Part IV-E of the 2009 Protocol specifies the process for updated evaluations as
provided in section 6603, subdivision (c)(1). Part IV-F discusses several judicial
opinions, including the United States Supreme Court’s decision in Kansas v. Crane
(2001) 534 U.S. 407 (Crane).
Part V of the 2009 Protocol explains what happens if the evaluation process results
in agreement that the person is an SVP.
In Part VI, the 2009 Protocol recommends that evaluators be “knowledgeable and
familiar with literature, studies, and tests or instruments used in the field of evaluation
and diagnosis of sex offenders, as well as the latest developments in these areas.” It also
advises evaluators to, among other things, “obtain, review, and consider all relevant
information and records that bear upon the case and be prepared to testify and undergo
cross examination regarding these sources of information and how they contributed to the
conclusions reached in the evaluation.”
2. Proceedings Below
In his motion to dismiss the petition, defendant argued that the 2009 Protocol was
not a “standardized assessment protocol” as required by section 6601, subdivision (c)
because it “expressly eschews any specific procedures to be followed or any designated
risk assessments or tests to be used.” He asserted the 2009 Protocol failed to include any
specified and uniform procedures for evaluators to follow when performing SVP
10
assessments. Rather, the 2009 Protocol “leave[s] to the discretion of each evaluator
which tests and instruments to use, and which static and dynamic risk factors to
consider.” Defendant also argued that the 2009 Protocol was invalid and that its use
violated his “statutory and constitutional rights . . . , including his right to due process of
law.” He argued that the appropriate remedy was dismissal of the petition.
Defendant’s motion to dismiss was supported by declarations from Richard
Wollert, Ph.D. and Robert L. Halon, Ph.D. Dr. Wollert opined that the 2009 Protocol is
“not a ‘standardized assessment protocol,’ as that term is understood in the scientific and
psychological community” and it “cannot be relied upon to achieve the fundamental goal
of a valid, standardized assessment protocol, i.e., to be a reliable, and relevant method for
answering a given referral question that enables different evaluators to reach identical
conclusions about a given person and report these conclusions in a similar format.” Dr.
Halon expressed a similar opinion, stating that “adhering to the instructions contained [in
the 2009 Protocol] cannot produce a reliable assessment, i.e., one which, using the same
database, methods and procedures, always achieves objective results, whatever they
might be, with each individual being assessed.”
The prosecution submitted opposition to the motion to dismiss. The prosecution
noted that the term “standardized assessment protocol” (§ 6601, subd. (c)) is not defined
in the statute. In interpreting the plain meaning of “standardized assessment protocol,”
the prosecution argued that the Legislature “wanted evaluations and assessments to
follow the same general outline” but did not intend each evaluator to follow “an identical
routine.” The prosecution further argued that “[b]ecause determination of SVP and
mental disposition is a social science and not a hard science, the protocol must allow for
professional judgment and discretion in evaluating mental health . . . on a case-by-case
basis” and that a more detailed protocol would “likely create difficulties by improperly
restricting the critical role professional judgment plays in any psychological forensic
evaluation.” Additionally, the prosecution argued that even if the 2009 Protocol was
11
invalid, the proper remedy would not have been dismissal of the petition. Instead, the
proper remedy would be to order new evaluations under a valid protocol.
In support of its opposition, the prosecution attached the transcript of a May 11,
2009 regulatory hearing held by the Department. The topic of the hearing was the
proposed adoption of section 4005 of the California Code of Regulations, title 9, which is
part of the 2009 Protocol and is quoted above. At the hearing, several speakers argued
that the protocol should not be adopted because it did not give specific guidance to the
evaluators and would not ensure a uniform evaluation system. In its opposition to
defendant’s motion, the prosecution argued that the hearing transcript showed that
defendant’s arguments had been considered but rejected.
The prosecution’s opposition was further supported by a declaration from Amy
Phenix, Ph.D. Dr. Phenix had been “tasked with developing the first Standardized
Assessment Protocol,” and she had provided the Department with updates to the protocol.
She opined that the 2009 Protocol “comports with the generally accepted definition of a
‘standardized assessment protocol.’ ” Her declaration described the training that SVP
evaluators must go through, and she cited various papers and guidelines for the principle
that SVP evaluators should use their professional judgment in selecting the tests or
instruments for assessing a particular individual’s risk of reoffense.
On June 17, 2011, the trial court denied defendant’s motion to dismiss.
3. Analysis
As he did below, defendant argues that the 2009 Protocol is not a “standardized
assessment protocol” as required by section 6601, subdivision (c). Furthermore, he
contends that use of the invalid protocol was a violation of due process.
Defendant contends that the 2009 Protocol is not a “standardized protocol” as
required by section 6601, subdivision (c) because it “does not contain any detailed or
uniform procedures for evaluators to follow when performing SVP evaluations.”
According to defendant, a “ ‘standardized’ protocol would describe the same objective,
12
scientific, empirically based methodology, so that all evaluators could operate under the
same guidelines, using well-defined objectives and criteria.”
The Attorney General notes that the phrase “standardized assessment protocol” is
not defined in section 6601 and that nothing in that phrase “mandates a required level of
detail.” The Attorney General argues that the 2009 Protocol requires “basic uniformity”
in evaluations, by informing evaluators of the legal requirements for SVP evaluations,
requiring them to use risk assessment instruments, tests, or unenumerated risk factors that
are accepted in the field, recommending that evaluators be knowledgeable and familiar
with developments in the field, and recommending that evaluators obtain, review, and
consider all relevant information. The Attorney General contends deference is due to the
Department’s determination that the need for evaluators to exercise independent
professional judgment necessarily means that a detailed, step-by-step procedure cannot
be prescribed.
We agree with the trial court that defendant has not established that the 2009
Protocol is invalid. Defendant has not cited, nor have we found, any legislative history
supporting his assertion that the Legislature intended the phrase “standardized assessment
protocol” to convey a specific degree of standardization. (§ 6601, subd. (c).) By
specifying that the “standardized assessment protocol” be “developed and updated by the
State Department of [State Hospitals]” (ibid.), the Legislature indicated that it was
leaving the determination of detail and standardization to the Department. As the United
States Supreme Court has recognized, “the Constitution’s safeguards of human liberty in
the area of mental illness and the law are not always best enforced through precise bright-
line rules,” and “the science of psychiatry, which informs but does not control ultimate
legal determinations, is an ever-advancing science . . . .” (Crane, supra, 534 U.S. at
p. 413.) And, as the California Supreme Court has recognized, the statutory scheme is
designed to allow the evaluators to exercise their “professional judgment . . . within a
specified legal framework.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888,
13
910.) In line with that intent, the 2009 Protocol ensures that the evaluators have a
“legally accurate understanding of the statutory criteria,” which “is crucial to the
[SVPA’s] proper operation.” (Ibid.)
Even assuming that the 2009 Protocol is not valid as a “standardized assessment
protocol” (§ 6601, subd. (c)), defendant is not entitled to appellate relief. Defendant
argues the trial court lacked jurisdiction to proceed with his commitment since he was
evaluated by an invalid protocol. He contends that dismissal of the petition was the
appropriate remedy. Defendant acknowledges that People v. Medina (2009)
171 Cal.App.4th 805, 818-819 (Medina), a case involving a similar challenge to an SVP
commitment, suggested that an appellant must show some prejudice in order to obtain
appellate relief. Defendant claims that to the extent that Medina required him to show
prejudice, it was “sufficient that the petition should have been dismissed. [Citations.]
Had the court not erred, the petition would have been dismissed.”
Here, the trial court would not have been deprived of jurisdiction to proceed with
defendant’s commitment proceedings. “Use of the evaluations based on the invalid
assessment protocol, though erroneous, does not deprive the trial court of fundamental
jurisdiction over the SVPA commitment petition. The trial court has the power to hear
the petition notwithstanding the error in using the invalid assessment protocol.” (In re
Ronje (2009) 179 Cal.App.4th 509, 518; see also Medina, supra, 171 Cal.App.4th at
pp. 816-818.) Furthermore,“[i]llegalities in pretrial commitment proceedings that are not
‘jurisdictional in the fundamental sense,’ are not reversible error per se on an appeal from
the subsequent trial. Rather, the ‘defendant [must] show that he was deprived of a fair
trial or otherwise suffered prejudice as a result of the error at the preliminary
examination.’ [Citation].” (In re Wright (2005) 128 Cal.App.4th 663, 673; see also
Medina, supra, 171 Cal.App.4th at pp. 818-819; Reilly v. Superior Court (2013)
57 Cal.4th 641, 653 (Reilly).) In Reilly, the Supreme Court clarified that a defendant may
obtain “relief arising from use of an invalid protocol in an SVP evaluation” only if he or
14
she demonstrates that “the error was material.” (Id. at p. 655.) That is, defendant can
show prejudice only if there is “ ‘a reasonable probability, sufficient to undermine
confidence in the outcome, that the error affected the evaluator’s ultimate conclusion’ ”
or that the error “ ‘reasonably might have affected the outcome’ ” of the proceedings.
(See id. at p. 654.)
In this case, the trial court found probable cause to believe defendant was an SVP,
and it ultimately found him to be an SVP at trial, after considering evidence of his
sexually violent offenses, his diagnosed mental disorders, and his scores on numerous
risk assessment tools. Defendant presented no evidence to contradict the evaluations
presented at trial, and he “does not contend the evidence was insufficient to support [the
trial court’s] finding.” (People v. Landau (2013) 214 Cal.App.4th 1, 17 (Landau).)
Under the circumstances, “[t]here is no indication in this record” that the initial
evaluations, conducted pursuant to the 2009 Protocol, “affected defendant’s trial.” (See
People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 530.) In short, defendant has failed to
show that the use of the 2009 Protocol resulted in a material error (Reilly, supra,
57 Cal.4th at p. 655), and thus we conclude he is not entitled to any relief.
Defendant relies on Butler v. Superior Court (2000) 78 Cal.App.4th 1171 (Butler),
Peters v. Superior Court (2000) 79 Cal.App.4th 845 (Peters), and People v. Superior
Court (Gary) (2000) 85 Cal.App.4th 207, arguing that “substantive irregularities in the
evaluation process, foundational to the filing of a recommitment petition, required the
petition to be dismissed.” However, defendant’s reliance on those cases is misplaced. In
Butler, the prosecutor filed a petition under the SVPA based on only one evaluation by a
mental health professional. (Butler, supra, 78 Cal.App.4th at p. 1174.) This court issued
a writ of mandate directing the trial court to dismiss the petition. (Ibid.) In an identical
factual situation, the court in Peters issued a writ of mandate ordering the trial court to set
aside its order denying the defendant’s motion to dismiss. (Peters, supra, 79 Cal.App.4th
at pp. 847, 851.) In Gary, the trial court dismissed the petition for recommitment under
15
the SVPA because one of the mental health professionals recommended against
recommitment. (Gary, supra, 85 Cal.App.4th at p. 211.) The reviewing court denied the
People’s writ petition. (Id. at p. 220.) In contrast to these cases, here, there were two or
more evaluations determining that defendant met the criteria of an SVP; defendant did
not file a writ petition and the matter proceeded to trial; and at trial, defendant did not
present any evidence proving that he was not an SVP. Given the procedural posture of
the case, appellant was required to show prejudice at trial, and he failed to do so.
C. Equal Protection
Defendant contends that the SVPA’s indeterminate commitment scheme violates
principles of equal protection. He claims that the SVPA “unjustifiably treats persons
subject to SVP commitments more harshly than persons subject to the state’s other civil
commitment schemes.”
In McKee I, the defendant argued that his indeterminate commitment under the
SVPA violated his equal protection rights because the SVPA treats SVP’s significantly
less favorably than similarly situated individuals who are civilly committed under other
statutes. (McKee I, supra, 47 Cal.4th at p. 1196.)
The California Supreme Court determined that SVP’s and mentally disordered
offenders (MDO’s; Pen. Code, § 2960 et seq.) are similarly situated for equal protection
purposes because they have been involuntarily committed with the objectives of
treatment and protection of the public. (McKee I, supra, 47 Cal.4th at p. 1203.) The
court also determined that SVP’s have “different and less favorable procedural
protections” than MDO’s because “SVP’s under the amended [SVPA] are given
indeterminate commitments and thereafter have the burden to prove they should be
released (unless the [Department] 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.” (Id. at p. 1202.) The court rejected the appellate court’s finding that “the
16
legislative findings recited in the [Proposition 83] ballot initiative” were sufficient to
justify the disparate treatment of SVP’s and MDO’s. (Id. at p. 1207.)
The California Supreme Court found that SVP’s and persons not guilty of a felony
by reason of insanity (NGI’s; Pen. Code, § 2960 et seq.) are also similarly situated and “a
comparison of the two commitment regimes raises similar equal protection problems
. . . .” (McKee I, supra, 47 Cal.4th at p. 1207.) Consequently, the court agreed with the
defendant “that, as with MDO’s, the People have not yet carried their burden of justifying
the differences between the SVP and NGI commitment statutes.” (Ibid.)
However, in McKee I, the California Supreme Court did “not conclude that the
People could not meet [their] burden of showing the differential treatment of SVP’s is
justified.” (McKee I, supra, 47 Cal.4th at p. 1207.) The court gave the People “an
opportunity to make the appropriate showing on remand,” noting that the People would
have to show 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.” (Id. at p. 1208.)
The McKee I court then remanded the case with the following instructions: “We
therefore remand this case to the trial court to determine whether the People, applying the
equal protection principles articulated in [In re Moye (1978) 22 Cal.3d 457 (Moye)] and
related cases discussed in the present opinion, can demonstrate the 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. The trial court may, if appropriate,
permit expert testimony. [¶] . . . On remand, the government 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. [¶] Moreover, we emphasize that mere disagreement among experts will not
17
suffice to overturn the Proposition 83 amendments. The trial court must determine
whether the legislative distinctions in classes of persons subject to civil commitment are
reasonable and factually based—not whether they are incontrovertible or uncontroversial.
The trial court is to determine not whether the statute is wise, but whether it is
constitutional.” (McKee I, supra, 47 Cal.4th at pp. 1208-1211, fns. omitted.)
On remand from McKee I, “the trial court conducted an evidentiary hearing to
determine whether the People could justify the [SVPA’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 [SVPA] was based on a reasonable perception of
the greater and unique dangers they pose compared to MDO’s and NGI’s.” (McKee II,
supra, 207 Cal.App.4th at p. 1332.)
McKee appealed, and Division One of the Fourth Appellate District affirmed the
trial court’s order. (McKee II, supra, 207 Cal.App.4th at pp. 1330-1331, 1350.) In
McKee II, the appellate court explained that it would “independently determine whether
the People presented substantial, factual evidence to support a reasonable perception that
SVP’s pose a unique and/or greater danger to society than do MDO’s and NGI’s, thereby
justifying the disparate treatment of SVP’s under the [SVPA].” (Id. at p. 1338.)
After performing its independent review of the evidence presented in the 21-day
evidentiary hearing held in the trial court (McKee II, supra, 207 Cal.App.4th at p. 1330),
the McKee II court made several findings. First, with respect to recidivism, the court
determined that the expert witness testimony of three psychologists, as well several
studies and the Static-99 data comparing recidivism rates, was sufficient to show that “the
18
inherent nature of the SVP’s mental disorder makes recidivism as a class significantly
more likely than recidivism of sex offenders generally, but does not show SVP’s have, in
fact, a higher sexual recidivism rate than MDO’s and NGI’s. . . . Regardless of the
shortcomings or inadequacy of the evidence on actual sexual recidivism rates, the Static-
99 evidence . . . supports, by itself, a reasonable inference or perception that SVP’s pose
a higher risk of sexual reoffending than do MDO’s or NGI’s.” (Id. at p. 1342.)
The Static-99 evidence included in the Department’s data showed that the average
Static-99 score for all SVP’s civilly committed since 2006 was 6.19, which placed them
in the “ ‘high’ risk category for sexual reoffense.” (McKee II, supra, 207 Cal.App.4th at
p. 1341.) In contrast, the average Static-99 score for MDO’s at Patton State Hospital
subject to sex offender registration under Penal Code section 290 in 2010 was 3.6,
“placing them in the ‘moderate-low’ risk category for sexual reoffense.” (Ibid.) The
average Static-99 score for all patients discharged from Atascadero State Hospital since
January 1, 2010, and subject to sex offender registration, including MDO’s and NGI’s,
was 4.6, which placed them in the “ ‘moderate-high’ risk category for sexual reoffense.”
(Id. at pp. 1341-1342.)
Second, the McKee II court considered whether the People had “presented
evidence that the victims of sex offenses suffer unique and, in general, greater trauma
than victims of nonsex offenses.” (McKee II, supra, 207 Cal.App.4th at p. 1342.) Based
on the expert witness testimony, the court concluded that “there is substantial evidence to
support a reasonable perception by the electorate, as a legislative body, that the harm
caused by child sexual abuse and adult sexual assault is, in general, a greater harm than
the harm caused by other offenses and is therefore deserving of more protection.” (Id. at
pp. 1343-1344.)
Third, the McKee II court found that there was “substantial evidence to support a
reasonable perception by the electorate that SVP’s have significantly different diagnoses
19
from those of MDO’s and NGI’s,[6] and that their respective treatment plans, compliance,
and success rates are likewise significantly different. That evidence and the evidence on
recidivism . . . , as the trial court found, ‘supports the conclusion that, as a class, SVP’s
are clinically distinct from MDO’s and NGI’s and that those distinctions make SVP’s
more difficult to treat and more likely to commit additional sexual offenses than are
MDO’s and NGI’s.’ In particular, SVP’s are less likely to participate in treatment, less
likely to acknowledge there is anything wrong with them, and more likely to be deceptive
and manipulative. . . . Furthermore, there is substantial evidence to support a reasonable
inference that an indeterminate, rather than a determinate (e.g., two-year), term of civil
commitment supports, rather than detracts from, the treatment plans for SVP’s.”
(McKee II, supra, 207 Cal.App.4th at p. 1347.)
The appellate court therefore concluded in McKee II that “the People on remand
met their burden to present substantial evidence, including medical and scientific
evidence, justifying the amended [SVPA’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). [Citation.]” (McKee II, supra, 207 Cal.App.4th at
p. 1347.) Accordingly, the trial court’s order rejecting the defendant’s equal protection
claim and affirming his indeterminate commitment under the SVPA was upheld. (Id. at
p. 1350.) The California Supreme Court denied review of McKee II on October 10, 2012,
and therefore the proceedings on remand from McKee I are now final.
Defendant contends that “[t]he McKee II opinion contains three significant flaws”:
(1) it failed to properly conduct a de novo review; (2) it failed to properly apply the strict
6
Dr. David Fennell, a psychiatrist and the chief of forensics at Atascadero State
Hospital, testified that “MDO’s and NGI’s with a sexual predicate offense were not more
likely to commit a new sexual offense (versus another dangerous offense) on release
because their mental disorders made them disorganized and unpredictable. In
comparison, SVP’s are more likely to commit a new sexual offense because of their
diagnoses with pedophilia or other paraphilias.” (McKee II, supra, 207 Cal.App.4th at
p. 1345.)
20
scrutiny test; and (3) under a proper application of the strict scrutiny test, the facts it
relied upon did not justify a disparate treatment of SVP’s.
First, we disagree with defendant’s claim that the McKee II court failed to properly
conduct a de novo review. Defendant acknowledges that the appellate court stated that it
was conducting a de novo review (McKee II, supra, 207 Cal.App.4th at p. 1338), but he
points out that the appellate court stated that it was determining “whether the People
presented substantial evidence to support a reasonable inference or perception that the
[SVPA’s] disparate treatment of SVP’s is necessary to further compelling state interests.
[Citations.]” (Id. at p. 1339.) He argues that the above standard “does not describe de
novo review.” Further, he asserts that the court’s review of the evidence did not satisfy
the de novo standard, as the court ignored McKee’s evidence and accepted the People’s
evidence as accurate.
Having reviewed the opinion, we believe the McKee II court’s description of its
review is consistent with an independent, de novo review of the evidence, as well as with
the Supreme Court’s opinion and directions in McKee I. After the McKee I court
remanded the case, the McKee II court independently reviewed all of the evidence and
concluded that “the disparate treatment of SVP’s under the [SVPA] is reasonable and
factually based and was adequately justified by the People at the evidentiary hearing on
remand.” (McKee II, supra, 207 Cal.App.4th at p. 1348.) We discern no error.
Additionally, we note that other courts have rejected a similar challenge to McKee II.
(See People v. McKnight (2012) 212 Cal.App.4th 860, 864 (McKnight) [finding that the
“claim that the appellate court failed to independently review the trial court’s
determination is frivolous”]; Landau, supra, 214 Cal.App.4th at p. 47-48; People v.
McDonald (2013) 214 Cal.App.4th 1367, 1378, 1381.)
Second, we reject defendant’s claim that the McKee II court in effect applied a
rational basis test rather than a strict scrutiny test in reviewing the evidence presented at
the hearing. Defendant claims that “it was not enough to simply show that the legislature
21
or the voters could reasonably believe that SVP[’]s were more dangerous as a class. The
prosecution had to show that SVP[’]s actually were more dangerous as a class.” He
criticizes McKee II for analyzing only whether the voters had a “ ‘reasonable
perception’ ” that SVP’s are more dangerous than MDO’s or NGI’s, rather than whether
those perceptions were accurate. (McKee II, supra, 207 Cal.App.4th at p. 1342.)
We disagree that McKee II failed to apply strict scrutiny. The McKee II court
referred to the issue as “whether the People presented substantial evidence to support a
reasonable inference or perception that the [SVPA’s] disparate treatment of SVP’s is
necessary to further compelling state interests. [Citations.]” (McKee II, supra,
207 Cal.App.4th at p. 1339, italics added.) Moreover, the appellate court’s use of the
phrase “reasonable inference or perception” (ibid.) reflects the California Supreme
Court’s remand instructions: in McKee I, the court stated, “On remand, the government
will have an opportunity to justify Proposition 83’s indefinite commitment provisions . . .
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.” (McKee I, supra, 47 Cal.4th at p. 1210, fn. omitted.) Thus, in applying the
strict scrutiny test, McKee II followed the language set forth in McKee I.
Furthermore, defendant argues that the People failed to show that the disparate
treatment of SVP’s (i.e., shifting the burden of proof, eliminating periodic jury trials, and
imposing an indeterminate term) was necessary. Relying on Bernal v. Fainter (1984)
467 U.S. 216 (Bernal) and Dunn v. Blumstein (1972) 405 U.S. 330, defendant argues that
“[t]he element of necessity under the strict scrutiny standard required that the prosecution
show that the disparate treatment of SVP[’]s constituted the least restrictive means
possible.” Defendant contends that the McKee II court misapplied the strict scrutiny test
by improperly “reject[ing] the need for the prosecution” to show that the disparate
treatment of SVP’s was the least restrictive means.
22
McKee made a similar argument relying on Bernal, and the McKee II court
rejected it. (McKee II, supra, 207 Cal.App.4th at p. 1349.) In Bernal, the United States
Supreme Court stated that “[i]n order to withstand strict scrutiny, the law must advance a
compelling state interest by the least restrictive means available.” (Bernal, supra,467 U.S. at p. 219.) The McKee II court described the quoted sentence from Bernal as
“probable dictum,” distinguishing Bernal because it involved a suspect class, alienage.
(McKee II, supra, 207 Cal.App.4th at p. 1349.) “We are unaware of any case applying
the ‘least restrictive means available’ requirement to all cases involving disparate
treatment of similarly situated classes,” the McKee II court wrote. (Ibid.) “On the
contrary, our review of equal protection case law shows the two-part test, as discussed in
Moye[, supra, 22 Cal.3d 457] and McKee [I], is the prevailing standard. . . . Therefore, in
strict scrutiny cases, the government must show both a compelling state interest justifying
the disparate treatment and that the disparate treatment is necessary to further that
compelling state interest. [Citations.] We are unpersuaded the electorate that passed
Proposition 83 in 2006 was required to adopt the least restrictive means available (e.g., a
two-year or other determinate term of civil commitment) in disparately treating SVP’s
and furthering the compelling state interests of public safety and humane treatment of the
mentally disordered.” (McKee II, supra, 207 Cal.App.4th at p. 1349.)
We agree with the McKee II court’s analysis of this issue. We note that Moye, like
McKee II and like this case, involved an equal protection challenge to a civil commitment
statute. In remanding the case in McKee I, the California Supreme Court instructed the
trial court to “apply[] the equal protection principles articulated in Moye and related cases
discussed in the [McKee I] opinion” (McKee I, supra, 47 Cal.4th at p. 1208), and to
determine whether, after a trial, the People had shown that imposing on SVP’s greater
burdens to obtain release from commitment is necessary to promote the state’s
compelling interests in public safety and humane treatment of the mentally ill (id. at
pp. 1207-1211). Given the evidence presented in McKee II – that the vast majority of
23
SVP’s are diagnosed with pedophilia or other paraphilias, that a paraphilia ordinarily
persists throughout a patient’s lifetime, that treatment is not focused on medication, and
that most SVP’s do not participate in treatment (McKee II, supra, 207 Cal.App.4th at
pp. 1344-1345) – we have no basis for concluding that an indeterminate term is not
necessary to further the compelling state interest in providing treatment to SVP’s and
protecting the public or that there is any less burdensome alternative to effectuate those
interests.
Third, we disagree with defendant’s contention that the evidence in the McKee II
trial did not support the appellate court’s ruling that SVP’s were more dangerous than
MDO’s and NGI’s and thus harsher treatment was necessary. Defendant makes several
contentions in this regard.
Defendant claims that McKee II erroneously concluded that “[t]he People
presented evidence showing the inherent nature of the SVP’s mental disorder makes
recidivism significantly more likely for SVP’s as a class than for MDO’s and NGI’s.”
(McKee II, supra, 207 Cal.App. 4th at p. 1340.) Specifically, he contends the appellate
court did not examine any evidence comparing the sexual recidivism rate of SVP’s with
the sexual recidivism rate of MDO’s and NGI’s; rather, the court compared the SVP’s
rate of reoffending with rates of other types of crimes, which was “not relevant to the
matter at hand.”
In McKee II, the People presented the testimony of three expert witnesses, studies,
and the Static-99 data comparing recidivism rates. The McKee II court acknowledged
that the evidence presented only showed that “the inherent nature of the SVP’s mental
disorder makes recidivism as a class significantly more likely than recidivism of sex
offenders generally, but does not show SVP’s have, in fact, a higher sexual recidivism
rate than MDO’s and NGI’s.” (McKee II, supra, 207 Cal.App. 4th at p. 1342.)
Nonetheless, the court found that the recidivism rate evidence was “ ‘significant, given
that the goal of the SVP[A] is specifically to protect society from particularly serious
24
sexual offenses.’ ” (Ibid.) In reaching this inference, McKee II relied, in part, on
evidence that the scores on the Static-99 test, which assesses the risk that a sex offender
will commit new sex offenses, was higher for SVP’s than for non-SVP sex offenders.
(Id. at p. 1342.) The court noted that “[r]egardless of the shortcomings or inadequacy of
the evidence on actual sexual recidivism rates, the Static-99 evidence . . . supports, by
itself, a reasonable inference or perception that SVP’s pose a higher risk of sexual
reoffending than do MDO’s or NGI’s.” (Ibid.) In so concluding, McKee II thus followed
McKee I, where the California Supreme Court suggested that evidence concerning a
greater risk of recidivism by SVP’s was one type of evidence that the People might
present to show 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.” (McKee I, supra, 47 Cal.4th at p. 1208.)
Defendant also claims that McKee II reached its conclusion that victims of sex
offenses suffer greater trauma without any evidence regarding the trauma caused by non-
sex offenses. Defendant contends that (1) the testimony of the medical experts was
focused on child sexual abuse and that “[i]t is unclear if that testimony is properly
extrapolated to adult victims of sexual offenses,” and (2) the court cited to no evidence
regarding the effects and trauma suffered by victims of other types of crime. We
disagree. First, although one of the three medical experts testified specifically about
child sexual abuse, the two other experts testified generally about sexual abuse victims.
(McKee II, supra, 207 Cal.App.4th at pp. 1342-1343.) Second, the evidence relied on by
the McKee II court included testimony that “[s]exual trauma differs qualitatively from
other traumas because of its intrusiveness and long-lasting effects,” and that
“[d]ysfunction, disassociation and avoidance problems after sexual trauma are unique to
sexual abuse and are not seen in victims of physical or other types of abuse.” (Ibid.)
25
Defendant further claims that the evidence concerning differences in diagnoses,
treatment, compliance, and success rates between SVP’s and MDO’s or NGI’s did not
support “the need to eliminate periodic jury trials, the need to shift the burden of proof, or
the need to impose indeterminate commitments.” Defendant claims that (1) the McKee II
court, in reviewing the evidence, conducted a substantial evidence review rather than a de
novo review, (2) treatment is not actually required before an SVP may be eligible for
release, and (3) the McKee II court failed to consider whether indeterminate
commitments were the least restrictive means and that a commitment term of five years
would have been a less restrictive mean.
We are not persuaded by defendant’s argument. As discussed, the McKee II court
conducted a proper de novo review, which followed the Supreme Court’s opinion and
direction in McKee I. The court determined whether there was substantial evidence that
“ ‘supports the conclusion that, as a class, SVP’s are clinically distinct from MDO’s and
NGI’s and that those distinctions make SVP’s more difficult to treat and more likely to
commit additional sexual offenses than are MDO’s and NGI’s.’ ” (McKee II, supra,
207 Cal.App.4th at p. 1347; see also McKnight, supra, 212 Cal.App.4th at p. 864.) As to
defendant’s claim that treatment is not a requirement for an SVP’s release and to the
extent conflicting evidence was introduced at the trial, the People’s burden was to show
that “the legislative distinctions in classes of persons subject to civil commitment are
reasonable and factually based—not [that] they are incontrovertible or uncontroversial.”
(McKee I, supra, 47 Cal.4th at pp. 1210-1211; accord, McKee II, supra, 207 Cal.App.4th
at p. 1348.) Indeed, the People fulfilled this burden by presenting expert testimony and
studies, which supported the finding that treatment of SVP’s is significantly different
from treatment of MDO’s and NGI’s and that SVP’s are less likely to participate in
treatment. Defendant also fails to make a persuasive argument that the SVPA’s
imposition of an indeterminate term of commitment was not the least restrictive means to
further the state’s compelling interest in protecting the public and providing treatment to
26
SVP’s or that a five-year term would equally effectuate those interests. As discussed, the
court conducted a proper strict scrutiny analysis in determining that imposing greater
burdens on SVP’s was necessary to further the state’s compelling interests. Furthermore,
narrow tailoring to serve a compelling state interest does not require exhaustion of every
conceivable alternative. (See Grutter v. Bollinger (2003) 539 U.S. 306, 339.)
Lastly, defendant asserts that “there were three separate but related elements that
were under attack in McKee’s equal protection challenge,” that is, the indeterminate term
of commitment, the elimination of the right to a periodic jury trial, and the shifting of the
burden of proof. Defendant argues that the evidence presented in McKee II did not
address the latter two issues. This argument is without merit. Following independent
review of the evidence, McKee II concluded that “the People on remand met their burden
to present substantial evidence, including medical and scientific evidence, justifying the
amended [SVPA’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),”
and that “the disparate treatment of SVP’s under the [SVPA] is reasonable and factually
based and was adequately justified by the People at the evidentiary hearing on remand.”
(McKee II, supra, 207 Cal.App.4th at pp. 1347, 1348.)
In light of the Supreme Court’s clearly expressed intent to avoid an unnecessary
multiplicity of proceedings, the Supreme Court’s denial of review in McKee II, and our
conclusions regarding the asserted flaws in McKee II, we find that defendant’s equal
protection claims are without merit and do not require a remand for a further evidentiary
hearing.
DISPOSITION
The judgment is affirmed.
27
___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
__________________________
MÁRQUEZ, J.
__________________________
GROVER, J.
28