APPEAL from a judgment of the Superior Court of Sacramento County, Kevin J. McCormick, Judge. Affirmed.
[167 Cal.Rptr.3d 340] Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Defendant and Appellant.
NICHOLSON, Acting P.J.
Defendant Richard Kisling appeals from an order of the Sacramento County Superior Court, made after judgment, determining he was not entitled to a hearing on whether his indeterminate commitment as a sexually violent predator violated his equal protection rights, because that issue had been decided adversely to him by People v. McKee (2012) 207 Cal.App.4th 1325, 144 Cal.Rptr.3d 308 ( McKee II ). We agree that defendant is not entitled to such a hearing and affirm the order.
In 2009 a jury found defendant Richard Kisling was a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (Welf. & Inst.Code, § 6600 et seq.; hereafter SVPA)  and the trial court committed him to the State Department of Mental Health (now designated as the State Department of State Hospitals) for an indeterminate term. Defendant appealed (C063911), contending, inter alia, that the indeterminate commitment violated the constitutional protections provided by the due process, ex post facto, and equal protection clauses of the United States and California Constitutions.
[167 Cal.Rptr.3d 341] While defendant's appeal was pending, the California Supreme Court filed its decision in People v. McKee (2010) 47 Cal.4th 1172, 104 Cal.Rptr.3d 427, 223 P.3d 566 ( McKee I ), which rejected defendant's constitutional arguments except as to the equal protection claim. ( Id. at pp. 1193-1195, 104 Cal.Rptr.3d 427, 223 P.3d 566.) As to equal protection, McKee I held that SVP's were similarly situated to mentally disordered offenders (MDO's) and to persons found not guilty by reason of insanity (NGI's) regarding the length of their commitments (one year for MDO's, two years for NGI's). ( McKee I, supra, at pp. 1201, 1203-1207, 104 Cal.Rptr.3d 427, 223 P.3d 566.) McKee I remanded the matter to the San Diego County Superior Court to afford the People the opportunity to justify the disparate treatment, a point which had not been addressed by the trial court. ( Id. at pp. 1208-1211, 104 Cal.Rptr.3d 427, 223 P.3d 566.)
On September 28, 2011, in People v. Kisling (2011) 199 Cal.App.4th 687, 131 Cal.Rptr.3d 869 ( Kisling ), which was certified for partial publication, we rejected all of defendant's constitutional contentions under the authority of McKee I, except
for his equal protection argument. ( Kisling, supra, at p. 690, 131 Cal.Rptr.3d 869.) As to that contention, consistent with McKee I remands in other cases, we reversed the judgment and remanded defendant's case to the trial court for further potential proceedings on his equal protection argument. Also in light of McKee I, we directed the trial court to suspended further proceedings in this case pending finality of the proceedings in McKee I 's remand. ( Kisling, supra, at p. 695, 131 Cal.Rptr.3d 869.)
Following an evidentiary hearing, the San Diego County Superior Court concluded the People had met their burden of justifying the disparate treatment in McKee's case and that determination was upheld by the Fourth Appellate District in McKee II,supra,207 Cal.App.4th 1325, 144 Cal.Rptr.3d 308, filed July 24, 2012.McKee II ...