(Super. Ct. No. 03F07587)
The opinion of the court was delivered by: Blease , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The trial court found that Ronald Mark Kimball was a sexually violent predator (SVP) pursuant to the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.; hereafter SVPA) following Kimball's waiver of his right to a jury trial, and committed him to the Department of Mental Health for an indeterminate term.
For the first time on appeal, Kimball argues the indeterminate commitment violated his right to due process of law, the ex post facto clause, the double jeopardy clause, the prohibition against the imposition of cruel and unusual punishment, and his right to equal protection. He asserts that if we find he forfeited these constitutional claims, he received ineffective assistance of counsel.
With the exception of the equal protection claim, we reject the constitutional and ineffective assistance of counsel claims. We shall, however, reverse and remand for further consideration of Kimball's equal protection claim consistent with People v. McKee (2010) 47 Cal.4th 1172.
FACTUAL AND PROCEDURAL BACKGROUND
Kimball does not contest the sufficiency of the evidence, but raises only constitutional claims. Therefore, only a brief summary of the facts will be repeated here.
In 1983, when Kimball was 25, he was arrested but not convicted of contributing to the delinquency of a minor. The victim was an 11-year-old girl. In 1984 Kimball committed a lewd and lascivious act on a child under the age of 14, for which he was later convicted. The victim was an 11-year-old girl. Also in 1984, over the course of three days, Kimball committed a lewd and lascivious act on a developmentally delayed 11-year-old female. This act was a violation of Kimball's probation.
In 1988, after Kimball had been paroled, he spent an evening alone with an 8- to 10-year-old boy, a violation of his parole, and raped a developmentally delayed adult woman. Kimball was sent back to prison. In 1989 Kimball was arrested for another parole violation, annoying or molesting a 10-year-old female. In 1990, when Kimball was again out on parole, he had frequent contact with a 12-year-old girl, a violation of his parole. In 1991, after Kimball had been paroled, he was observed playing with two girls and two boys between the age of six and nine. This was a violation of his parole.
Kimball's next offense was in 1993. He was convicted of annoying or molesting a child and sentenced to two years in prison. The victim was a seven-year-old female. Kimball's next offense was in 2003. The victim was a 15-year-old girl. Kimball orally copulated the girl and had consensual sex with her. She later reported him to the authorities.
The trial court committed Kimball for an indeterminate term to the custody of the ...