Filed 8/25/15 P. v. Swain CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068621
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. FP003514A)
                   v.

RAYMOND SWAIN, JR.,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Kern County. Kenneth C.
Twisselman, II, Judge.
         John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P.J., Kane, J. and Detjen, J.
         Appellant Raymond Swain, Jr., originally appealed from an order pursuant to the
Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) civilly
committing him to the State Department of Mental Health for an indeterminate term. On
March 3, 2010, this court remanded to the trial court for it to determine whether sufficient
justification existed for treating sexually violent predators (SVP’s) differently than
mentally disordered offenders (MDO’s) and defendants who are found not guilty by
reason of insanity (NGI’s). (People v. Swain (Mar. 3, 2010, F056514).)
         On this appeal, Swain contends he was denied his right to due process and the
equal protection of the law because on remand the trial court denied his equal protection
claim without holding an evidentiary hearing. We affirm.
                                          FACTS
         The commitment petition for Swain was filed on February 16, 2007, and went to a
jury trial on November 5, 2008. The jury concluded Swain was an SVP and the trial
court ordered him committed. Swain appealed, raising several challenges to the jury’s
verdict, including that he had been denied his right to equal protection of the law because
SVP’s receive treatment disparate from other similarly situated persons, specifically,
MDO’s subject to the Mentally Disordered Offender Act (Pen. Code, § 2960 et seq.) and
NGI’s.
         While Swain’s appeal was pending, our Supreme Court filed its decision in
People v. McKee (2010) 47 Cal.4th 1172 (McKee I), which held, with respect to the equal
protection claim raised by the defendant, that SVP’s were similarly situated to MDO’s
and NGI’s. The court remanded the matter to the San Diego County Superior Court to
allow the People the opportunity to justify the disparate treatment, which had not been
addressed by the trial court. (Id. at pp. 1208-1211.)
         On March 3, 2010, in accord with McKee I, we remanded People v. Swain
(F056514) back to the trial court for it “to hold proceedings to resolve the issue of



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whether the People [could] prove a factually based justification for treating SVP’s
differently than MDO’s and NGI’s.”
       On June 17, 2010, and again on January 14, 2011, the trial court suspended further
proceedings pending the finality of the proceedings on remand pursuant to McKee I.
       Following an evidentiary hearing pursuant to McKee I, the trial court concluded
that the People had met their burden of justifying the disparate treatment of SVP’s. The
appellate court affirmed, concluding “the trial court correctly found the People presented
substantial evidence to support a reasonable perception by the electorate that SVP’s
present a substantially greater danger to society than do MDO’s or NGI’s.” (People v.
McKee (2012) 207 Cal.App.4th 1325, 1330-1331 (McKee II).) In reaching this
conclusion, the McKee II court found that “the People had presented evidence (1)
“‘showing the inherent nature of the SVP’s mental disorder makes recidivism
significantly more likely for SVP’s as a class than for MDO’s’ ([id.] at p. 1340); (2) ‘that
the victims of sex offenses suffer unique and, in general, greater trauma than victims of
nonsex offenses’ (id. at p. 1342); and (3) ‘showing SVP’s are significantly different from
MDO’s ... diagnostically and in treatment’ (id. at p. 1344).” (People v. Gray (2014) 229
Cal.App.4th 285, 290 (Gray).)
       The California Supreme Court denied review of McKee II on October 10, 2012,
S204503.
       On November 5, 2013, based on the decision in McKee II, the trial court in the
instant matter concluded that the SVP law did not violate Swain’s constitutional rights
and affirmed his commitment to the State Department of State Hospitals (DSH)1 for an
indefinite term.




1      DSH was formerly known as the State Department of Mental Health.


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                                      DISCUSSION
       Swain contends that the summary denial of his equal protection claim without an
evidentiary hearing denied him his right to due process because it resulted in his equal
protection claim not being fully and fairly adjudicated. He also contends that McKee II
was erroneously decided. We reject these contentions.
       In Gray, supra, 229 Cal.App.4th 285, after a jury found that the defendant was an
SVP, the court committed him to DSH for an indefinite term. (Id. at p. 287.) On appeal,
the defendant raised numerous arguments why McKee II was wrongly decided and urged
this court to reverse the judgment and remand to the trial court for it to hold an
evidentiary hearing on his equal protection claim. In rejecting the defendant’s
contentions, we noted that every published opinion to consider the issue had concluded
that the applicable version of the SVPA passed muster under the strict scrutiny test and
had found McKee II persuasive. (Gray, supra, 229 Cal.App.4th at pp. 291-292.) Swain
has not offered any persuasive reasons why we should not follow McKee II or our
opinion in Gray. In accord with these authorities, we reject Swain’s due process and
equal protection claims.
                                      DISPOSITION
       The judgment is affirmed.




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