APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge. (Super.Ct.No. RIC354396)
The opinion of the court was delivered by: Hollenhorst J.
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Affirmed in part; reversed in part with directions.
James Anthony Lewis (defendant)*fn1 was convicted of various child molestation offenses, and in 2004, found to be a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6600 et seq.,*fn2 also known as the Sexually Violent Predator Act (the SVPA). In a previous appeal, this court affirmed his two-year commitment to a state mental institution (case No. E035947). Defendant was admitted to Coalinga State Hospital in 2004.
An amended commitment petition was filed in 2006, seeking to subject defendant to an indeterminate term under the amended SVPA. The 2006 petition was consolidated with a 2008 petition also seeking continued indeterminate commitment of Lewis as an SVP. Following a bench trial on the consolidated petitions, the court ordered defendant committed indefinitely as an SVP. (§ 6600, et seq.)
Defendant appeals the order, arguing that he was committed on the basis of invalid evaluation regulations. Alternatively, defendant argues that his trial attorney provided prejudicial ineffective assistance of counsel. He also claims that the SVPA, as amended by Proposition 83 in 2006, violates due process, ex post facto, double jeopardy and equal protection principles under the state and federal Constitutions.
We reject defendant's contentions, with the exception of his challenge to the indeterminate commitment on equal protection grounds. Based on the California Supreme Court's recent ruling in People v. McKee (2010) 47 Cal.4th 1172 (McKee), holding that the 2006 amendments to the SVPA may violate equal protection, we affirm in part and reverse in part the trial court's order of commitment. On remand, we direct the trial court to suspend further proceedings in this case pending finality of the proceedings on remand in McKee.
2. Factual and Procedural Background
Because defendant does not challenge the sufficiency of evidence in this appeal, we incorporate only a brief summary of the facts provided in defendant's previous appeal in this matter, as follows:
"In 1984 defendant was convicted of molesting a 10-year-old girl (Pen. Code, § 288, subd. (a)), and was sentenced to two years in jail, including probation. Defendant violated his probation by running off with a 14-year-old girl and was sentenced to three years in prison. In 1988, defendant was charged with having sexual intercourse with a 15-year-old girl and his probation was again revoked and he was sent to prison. Defendant was released in 1989.
"While at a birthday party in 1991, defendant took pornographic pictures of the vagina of Jenny, a three year old. He also touched the vaginal area of Jeannette, who was seven years old. Defendant was convicted in 1992 of molesting these girls in violation of section ...