P. v. Dannenberg
In 2008, a jury found defendant to be a sexually violent predator (SVP), as defined in the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) (SVPA).[1] Defendant appealed from the order committing him to the Department of Mental Health (DMH) for an indeterminate term pursuant to section 6604. The petition to commit defendant as an SVP was filed prior to the passage of Proposition 83. Proposition 83 passed in November 2006, and the SVPA was amended. The petition against defendant was amended to reflect an indeterminate commitment pursuant to the amended SVPA.
Defendant appealed the commitment order and argued that committing him pursuant to the amended SVPA was an improper retroactive application of the statute and that the amended SVPA violated the due process, equal protection, ex post facto, and double jeopardy clauses of the state and federal Constitution. In our nonpublished opinion filed on June 3, 2010, we rejected all of defendant’s contentions except for his challenge to the SVP statute on equal protection grounds. As to that issue, we directed a remand for further proceedings consistent with People v. McKee (2010) 47 Cal.4th 1172 (McKee I).
The California Supreme Court granted review and transferred the matter to us with directions to vacate our decision and to suspend further proceedings pending finality of the proceedings on remand in McKee I, supra, 47 Cal.4th 1172. The San Diego County Superior Court conducted the evidentiary hearing required by McKee I, and concluded that the People had met their burden of justifying the disparate treatment of SVP’s, and confirmed the indeterminate commitment. The Court of Appeal affirmed. (People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II).) The Supreme Court denied Richard McKee’s petition for review and thus this case is now final. Accordingly, we now reconsider defendant’s equal protection argument in light of McKee II.
We reiterate our previous opinion on all issues except as to our remand based on defendant’s equal protection claim. Having considered defendant’s equal protection contention in light of McKee I and McKee II, we affirm the order of commitment.
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