(Super. Ct. No. MHO02001).
The opinion of the court was delivered by: Hull , Acting P. J.
In this appeal, defendant Robert Sean Barbour challenges the constitutionality of indeterminate recommitment proceedings for sexually violent predators (SVP's). The California Supreme Court's recent decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee) is dispositive. Accordingly, we reject defendant's due process claim but remand for further consideration of equal protection concerns.
Given the issues raised in defendant's appeal, a detailed description of the underlying facts is unnecessary. Defendant was convicted in 1993 and 1995 of committing lewd and lascivious acts with a child under the age of 14 (Pen. Code, § 288, subd. (a)), and in 2008, the Sacramento County District Attorney's Office filed a petition to extend defendant's commitment as an SVP.
The petition alleged defendant's convictions and further alleged that two psychologists had evaluated defendant and found him to be an SVP.
At trial, psychologists diagnosed defendant with two mental disorders, pedophilia and fetishism. They testified that defendant had a substantial, well-founded risk of reoffending and they did not believe defendant could control his behavior. A psychologist testifying for defendant challenged the adequacy of the evaluations to predict whether defendant could control his behavior or whether he would reoffend, but he conceded that he had not met or evaluated defendant.
The jury found the allegations in the petition to be true, and the trial court ordered defendant committed for an indefinite term as an SVP.
Defendant contends that the indeterminate commitment under the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, §§ 6600 et seq. [unspecified section references that follow are to the Welfare & Institutions Code) violates due process and equal protection guarantees. The recent California Supreme Court decision in McKee resolves both claims.
Defendant contends that the SVPA "creates an unacceptable risk that a person committed under the Act who no longer qualifies as a sexually violent predator will have his commitment continued in violation of his right to due process. In addition, the mechanisms for judicial review of defendant's confinement under sections 6605 and 6608 are not constitutionally adequate and a person committed under the Act bears the burden of proof by a preponderance of the evidence in order to be released under section 6608."
Under section 6605, the Department of Mental Health (DMH) can file a petition for conditional or unconditional release if it determines that the individual no longer meets the definition of an SVP or can be released to a less restrictive alternative. A petition under this section can be made only by DMH. (§ 6605, subd. (b).) If the state opposes the release, it must prove beyond a reasonable doubt that the committed person remains an SVP.
An individual can petition for release without DMH authorization (§ 6608). In this hearing, the petitioner bears the burden of proof by a preponderance ...