The opinion of the court was delivered by: Hull ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this appeal, defendant Brian Roddan 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 the majority of defendant's claims 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. In March 2007, the San Joaquin County District Attorney's Office filed a petition to extend defendant's commitment as an SVP.
The jury found defendant to be an SVP and the trial court ordered defendant committed for an indefinite term. Defendant appeals from the order of commitment.
Defendant contends that various 2006 amendments to the Sexually Violent Predators Act (the Act) (Welf. & Inst. Code, § 6600 et seq.) violated his federal constitutional rights of due process and equal protection, as well as the prohibitions against double jeopardy and ex post facto laws. These challenges are premised largely on changes to the Act that eliminated the requirement of a recommitment hearing every two years and instead made sexually violent predator commitments indefinite. The California Supreme Court's recent decision in McKee, supra, 47 Cal.4th 1172 resolves these claims.
A. Due Process, Double Jeopardy, Ex Post Facto
Defendant contends the Act, as amended, violated his due process rights by permitting him to be committed indefinitely while placing the burden on him to prove he is no longer dangerous. He further contends the Act violates double jeopardy and ex post facto laws because the SVP statutes are now punitive in nature.
Defendant acknowledges that these constitutional arguments were rejected by the California Supreme Court in McKee, supra, 47 Cal.4th 1172, and raises them to preserve federal review. In McKee, the Supreme Court concluded that the Act, as amended, "does not violate the due process clause" (McKee, at p. 1193) and "do[es] not violate the ex post facto clause" (id. at p. 1195). We are bound by McKee on these points (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore defendant's due process and ex post facto challenges to the Act are without merit. Furthermore, the Supreme Court's conclusion in McKee that the 2006 amendments to the Act did "not make the Act punitive" (McKee, at p. 1195) is binding on us, and therefore defendant's double jeopardy argument is likewise without ...