IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
August 31, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BRIAN RODDAN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 18392C)
The opinion of the court was delivered by: Hull ,j.
P. v. Roddan
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
FACTS AND PROCEEDINGS
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 merit. (See People v. Hubbart (2001) 88 Cal.App.4th 1202, 1226 ["The determination that the act is not punitive 'removes an essential prerequisite for both . . . double jeopardy and ex post facto claims'"].)
B. Equal Protection
Defendant also contends the Act, as amended, violated his equal protection rights because SVP's are treated less favorably than those committed under other statutes, such as mentally disordered offenders (MDO's) (Pen. Code, § 2960) and those found not guilty by reason of insanity (NGI's) (Pen. Code, § 1026 et seq.).
On the equal protection issue, the Supreme Court in McKee determined that sexually violent predators are similarly situated for equal protection purposes with MDO's and NGI's. (McKee, supra, 47 Cal.4th at pp. 1203, 1207.) The Supreme Court further determined that the People had not yet met their "burden of showing the differential treatment of SVP's is justified." (Id. at p. 1207.) Accordingly, the Supreme Court remanded the case to the trial court to allow the People an opportunity to show "that, notwithstanding the similarities between SVP's and MDO's [and NGI'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.)
Under McKee, further proceedings on defendant's equal protection argument are appropriate in this case as well. To avoid an unnecessary multiplicity of proceedings, however, resolution of the equal protection issue here should await resolution of the proceedings on remand in McKee, including any resulting proceedings in the Court of Appeal or Supreme Court. Accordingly, that is what we will order.
The judgment is reversed, and the case is remanded to the trial court for reconsideration of defendant's equal protection argument in light of McKee, supra, 47 Cal.4th 1172 and the resolution of the proceedings on remand in McKee (McKee, at pp. 1208-1210), including any proceeding in the Superior Court of San Diego County in which McKee may be consolidated with related matters. The trial court shall suspend further proceedings in this case pending finality of the proceedings on remand in McKee. "Finality of the proceedings" shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.
We concur: NICHOLSON , Acting P.J. MURRAY ,J.
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