Filed 9/17/13 P. v. Hernandez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063102

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. MH101244)

ALVARO ALDACO HERNANDEZ,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, David M.

Gill, Judge. Affirmed.

         Ron Boyer, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Joy

Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

         Alvaro Aldaco Hernandez was recommitted for an indeterminate term to the

custody of the State Department of Mental Health (DMH), now State Department of State
Hospitals, under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600

et seq.) Hernandez appeals, contending that treating sexually violent predators (SVP's)

differently from mentally disordered offenders (MDO's) and persons found not guilty by

reason of insanity (NGI's) violates his constitutional right to equal protection. We have

considered this argument in light of our Supreme Court's opinion in People v. McKee

(2010) 47 Cal.4th 1172 (McKee I), and this court's final opinion on remand in the same

case, People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II). Based on these

opinions, we affirm the order.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Hernandez was first found to be an SVP within the meaning of the SVPA in

1999.1 In June 2007 the People filed a petition to commit Hernandez for involuntary

treatment as an SVP.2 In March 2011 a jury found Hernandez to be an SVP and the

court committed him for an indeterminate term. Hernandez appealed the commitment

order on several grounds. We rejected Hernandez's contentions, except for his challenge

to the indeterminate commitment on equal protection grounds. Based on McKee I, which

1       Hernandez was first convicted of sexual assault of an eight-year-old girl in 1967,
and a jury found him guilty of committing lewd and lascivious acts on a child under the
age of 14 of two victims in 1988.
2       In November 2006 California voters passed Proposition 83, entitled "The Sexual
Predator Punishment and Control Act: Jessica's Law" amending the SVPA effective
November 8, 2006. (McKee I, supra, 47 Cal.4th at p. 1183.) Proposition 83 changed an
SVP commitment from a two-year term to an indefinite commitment and shifted the
burden of proof for release to the SVP (id. at pp. 1183-1184), unless the DMH authorizes
a petition for release (id. at p. 1187). In contrast, an MDO is committed for a one-year
period and thereafter has the right to be released unless the People prove beyond a
reasonable doubt that he or she should be recommitted for another year. (Pen. Code,
§ 2972.)
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held that the 2006 amendments to the SVPA may violate equal protection (McKee I,

supra, 47 Cal.4th at p. 1184), we reversed in part and remanded to the trial court with

directions to suspend further proceedings pending finality of the proceedings on remand

in McKee I.3 In July 2012 we issued our opinion in McKee II, upholding the

constitutionality of the amended SVPA on equal protection grounds. The Supreme Court

denied review in McKee II, rendering the opinion final (McKee II, supra, 207

Cal.App.4th 1325, review den. Oct. 10, 2012, S204503), and the trial court subsequently

re-imposed the order for Hernandez to be committed to an indeterminate term.

                                       DISCUSSION

       Hernandez's constitutional argument focuses on whether the amended SVPA

violates equal protection. In McKee I, the Supreme Court held the SVPA is subject to

equal protection analysis because it "treats SVP's significantly less favorably than those

similarly situated individuals civilly committed under other statutes" including MDO's

and NGI's. (McKee I, supra, 47 Cal.4th at pp. 1196, 1203, 1207.) Since individuals

within each of these categories "have the same interest at stake—the loss of liberty

through involuntary civil commitment—it must be the case that when society varies the

standard and burden of proof for SVP's . . . , it does so because of the belief that the risks




3      The Supreme Court remanded in McKee I for an evidentiary hearing on whether
disparate treatment for SVP's is justified. The court transferred "grant and hold" cases
under McKee I to the Courts of Appeal with directions to vacate their prior opinions and
reconsider in light of McKee I. The order expressed a desire to avoid unnecessary
multiplicity of proceedings and directed this court to suspend further proceedings
pending finality of the proceedings in McKee I.
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involved with erroneously freeing SVP's from their commitment are significantly greater

than the risks involved with freeing" other civil committees. (Id. at p. 1204.)

       The Supreme Court remanded the case for a hearing on whether the People could

justify disparate treatment for SVP's. The court instructed: "It must be shown that,

notwithstanding the similarities between SVP's and [other civil committees], 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. This can be shown in a variety of ways. For example, it may be demonstrated

that the inherent nature of the SVP's mental disorder makes recidivism as a class

significantly more likely. Or it may be that SVP's pose a greater risk to a particularly

vulnerable class of victims, such as children. . . . Or the People may produce some other

justification." (McKee I, supra, 47 Cal.4th at p. 1208, fn. omitted.)

       After remand, the superior court conducted a 21-day evidentiary hearing on the

justification of disparate treatment for SVP's and concluded the People had met their

burden. On appeal, we reviewed the matter de novo. (McKee II, supra, 207 Cal.App.4th

at p. 1338.) "When a constitutional right, such as the right to liberty from involuntary

confinement, is at stake, the usual judicial deference to legislative findings gives way to

an exercise of independent judgment of the facts to ascertain whether the legislative body

' "has drawn reasonable inferences based on substantial evidence." ' " (McKee I, supra,

47 Cal.4th at p. 1206, italics added.) In McKee II, we concluded "[t]he People have

shown 'that the inherent nature of the SVP's mental disorder makes recidivism as a class

significantly more likely[;] . . . that SVP's pose a greater risk [and unique dangers] to a

                                              4
particularly vulnerable class of victims, such as children'; and that SVP's have diagnostic

and treatment differences from MDO's and NGI's, thereby supporting a reasonable

perception by the electorate . . . that the disparate treatment of SVP's under the amended

[SVPA] is necessary to further the state's compelling interests in public safety and

humanely treating the mentally disordered." (McKee II, supra, 207 Cal.App.4th at

p. 1347.) The Supreme Court denied a petition for review, making McKee II final.

(McKee II, review den. Oct. 10, 2012, S204503.)

       This court has, of course, followed McKee II, and other Courts of Appeal have as

well. (See, e.g., People v. McDonald (2013) 214 Cal.App.4th 1367, 1376-1382; People

v. Landau (2013) 214 Cal.App.4th 1, 47-48; People v. McCloud (2013) 213 Cal.App.4th

1076, 1085-1086; People v. McKnight (2012) 212 Cal.App.4th 860, 863-864.) While it is

clear Hernandez believes the evidence relied on in McKee II is insufficient to justify

disparate treatment of SVP's, we have carefully evaluated it and conclude otherwise.

                                      DISPOSITION

       The order is affirmed.


                                                                      MCCONNELL, P. J.

WE CONCUR:


HALLER, J.


O'ROURKE, J.




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