Filed 5/9/14 P. v. Seeboth CA3
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C072990

                   Plaintiff and Respondent,                                      (Super. Ct. No. CR66404)

         v.

TIMOTHY SEEBOTH,

                   Defendant and Appellant.




         Defendant Timothy Seeboth 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 (McKee II). We agree defendant is not entitled to
such a hearing and affirm the order.




                                                             1
                                    BACKGROUND1
       Defendant was initially committed as a sexually violent predator (SVP) within the
meaning of the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et
seq.)2 in September 1997. Following a jury trial in 2010, the trial court ordered him
committed to the State Department of Mental Health (now designated as the State
Department of State Hospitals) for an indeterminate term. Defendant appealed
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.
       While defendant’s appeal was pending, the California Supreme Court filed its
decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee I), which rejected
defendant’s constitutional arguments except as to the equal protection claim. (Id. at pp.
1193-1195.) 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.) 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.)
       On August 30, 2011, by unpublished opinion in People v. Seeboth (Aug. 30, 2011,
C066287) [nonpub. opn.] (Seeboth), we rejected defendant’s constitutional contentions
under the authority of McKee I, except for his equal protection argument. (Seeboth,
supra, at pp. 5-6.) As to that contention, consistent with McKee I remands in other cases,


1    We take judicial notice of our records in defendant’s prior appeal in case No.
C066287. (Evid. Code, § 452, subd. (d).)
2      Undesignated statutory references are to the Welfare and Institutions Code.

                                              2
we reversed the judgment and remanded the case to the trial court for further potential
proceedings on defendant’s equal protection argument. (Ibid.) Also in light of McKee I,
we directed the trial court to suspend further proceedings in this case pending finality of
the proceedings in McKee I’s remand. (Ibid.)
       Following the evidentiary hearing required by McKee I, the San Diego County
Superior concluded that the People had met their burden of justifying the disparate
treatment and that determination was upheld by the Fourth District Court of Appeal in
McKee II, supra, 207 Cal.App.4th at page 1325, filed July 24, 2012.3 McKee II became
final on October 10, 2012, when the California Supreme Court denied review.
       On December 6, 2012, the trial court in the present case entered a written order
entitled, “Order Re: Remittitur From Third District Court Of Appeal.” That order refused
to permit defendant to challenge his indeterminate commitment on grounds of violation
of equal protection because that issue was decided adversely to him by McKee I and
“[u]nder Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, this [trial]
court is now bound by the decision in [McKee II].”
                     DEFENDANT’S ARGUMENTS ON APPEAL
       Defendant argues that McKee II is not binding on this court, that we should not
follow McKee II because that case applies only to defendant McKee, that due process
requires defendant be given the opportunity to present his own case on the equal
protection issue, and that McKee II used the wrong standard for review.




3      McKee II “conclude[d] 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 and NGI’s, and therefore
the disparate treatment of SVP’s under the [SVPA] is necessary to further the People’s
compelling interests of public safety and humane treatment of the mentally disordered.”
(McKee II, supra, 207 Cal.App.4th at pp. 1330-1331.)

                                             3
        In People v. Kisling (2014) 223 Cal.App.4th 544, we addressed and rejected each
of defendant’s arguments. For the same reasons set forth therein, we continue to reject
them.
                                     DISPOSITION
        The order committing Timothy Seeboth to the California Department of State
Hospitals for an indeterminate term is affirmed.



                                                      NICHOLSON             , Acting P. J.



We concur:



        ROBIE               , J.



        DUARTE              , J.




                                            4
