Filed 5/13/15 P. v. Roddan 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----



THE PEOPLE,                                                                                  C075789

                   Plaintiff and Respondent,                                       (Super. Ct. No. 18392C)

         v.

BRIAN RODDAN,

                   Defendant and Appellant.



         On March 12, 2010, defendant Brian Roddan was found to be a sexually violent
predator (SVP) within the meaning of the Sexually Violent Predator Act (SVPA) (Welf.
& Inst. Code, § 6600 et seq.)1 and was committed for an indeterminate term to the State
Department of Mental Health (now designated as State Department of State Hospitals).
He appealed (C064635), contending the indefinite commitment violated his constitutional
due process and equal protection rights and the guarantees against double jeopardy and
ex post facto laws. We rejected all but the equal protection claim because the California



1   Undesignated statutory references are to the Welfare and Institutions Code.

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Supreme Court’s decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee I)
expressly rejected the due process and ex post facto claims and effectively rejected the
double jeopardy argument by finding the SVPA was nonpunitive. (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, 47 Cal.4th at pp. 1203-1207.) McKee I remanded the
matter to the San Diego 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.)
       In conformity with the Supreme Court’s directive in McKee I, we reversed our
judgment in defendant’s appeal, remanded the matter to the trial court with directions to
reconsider defendant’s equal protection argument but only after the resolution of
defendant McKee’s case in the San Diego Superior Court had become final. The San
Diego Superior Court conducted an evidentiary hearing and concluded the People had
justified the disparate treatment and that determination was upheld by the Fourth District
Court of Appeal in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II). 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 or NGI’s, and therefore the disparate treatment
of SVP’s under the Act 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.)
       McKee II became final on October 10, 2012, when the California Supreme Court
denied review (S162823). On December 16, 2013, the trial court reinstated its March 12,
2010 order committing defendant to the State Department of State Hospitals for an
indeterminate period.

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       Defendant again appeals, contending that (1) Senate Bill No. 295’s amendments to
the SVPA, effective January 1, 2014 (see Senate Bill No. 295 (2013-2014 Reg. Sess.)),
render McKee I’s due process analysis invalid and now violate his due process rights, and
(2) this court should not follow the holding in McKee II and, instead, should find that the
SVPA violates his equal protection rights. We decline to consider defendant’s first
contention because it is not ripe for adjudication, and we reject defendant’s second
contention because the California Supreme Court made clear in McKee I, that it intended
the holding of McKee II to be binding on all the courts of the state.

                                        DISCUSSION

                                              I

       The amendments to the SVPA by Senate Bill No. 295 relate to conditional release
and/or unconditional discharge of SVP’s. Senate Bill No. 295 added section 6604.9 and
amended sections 6606 and 6608. (Senate Bill No. 295 (2013-2014 Reg. Sess.).) In
defendant’s view, these amendments invalidate McKee I’s due process analysis and
holding that the SVPA does not violate a defendant’s due process rights. The same
contention was recently addressed in People v. Gray (2014) 229 Cal.App.4th 285 (review
den. Nov. 12, 2014) (Gray) under circumstances legally indistinguishable from those in
the present case. Noting that the defendant was adjudged an SVP before Senate Bill
295’s amendments took effect, Gray declined to review the contention, stating: “We are
concerned with the constitutionality of the SVPA as it existed when [defendant] was
adjudged an SVP, not the statutory scheme as it may or may not be applied to [defendant]
in the future.” (Gray, at p. 292.)
       Defendant candidly acknowledges “that there is nothing about [his] case that
makes it ripe when it was not ripe in Gray,” he simply believes Gray was wrongly
decided. We agree that the analysis and circumstances in the instant case are legally




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indistinguishable from those in Gray. We agree with Gray’s analysis and find it equally
applicable to defendant.

                                                  II

       Defendant argues that we should not follow McKee II’s holding because defendant
has not been given the opportunity to present his own case on the equal protection issue
and this court has not itself decided whether this defendant is being denied equal
protection of the law. He also argues, for various reasons, McKee II was wrongly
decided.
       Regarding his first argument to the effect that defendant should have the
opportunity to show the statutory scheme denies him, as an individual, equal protection
of the law, we need only say we agree with the reasoning in McKee II. And, our refusal
to follow McKee II would be contrary to the California Supreme Court’s clear intent in
remanding McKee I to the trial court for an evidentiary hearing on whether the People
could justify the disparate treatment. As noted by People v. McKnight (2012)
212 Cal.App.4th 860 (rev. denied Mar. 13, 2013, S208182), in rejecting the same
argument made by defendant: “McKee I recognized that the People could attempt to
justify the [SVPA’s] disparate impact in a variety of ways, and that these included
showing that SVP’s as a class are significantly more likely to reoffend than MDO’s or
NGI’s, showing they pose a greater risk to children (in which case the equal protection
analysis would apply only to child predators), or by other, unspecified means. [Citation.]
In light of that recognition, the court transferred the multiple ‘grant and hold’ cases under
McKee I, including this one, to the Courts of Appeal with directions to vacate their prior
opinions and suspend further proceedings until the McKee I remand proceedings were
final, ‘in order to avoid an unnecessary multiplicity of proceedings.’ ” (McKnight, at
p. 863; see, e.g., People v. Johnson, review granted Aug. 13, 2008, S164388; People v.
Riffey, review granted Aug. 20, 2008, S164711; People v. Boyle, review granted Oct. 1,


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2008, S166167; People v. Garcia, review granted Oct. 16, 2008, S166682; People v.
Glenn, review granted Feb. 10, 2010, S178140.) “On remand, McKee concluded that
differences between SVP’s as a class and other offenders justify their different treatment
under the [SVPA]. It is plain that McKee II is not to be restricted to Mr. McKee alone or
only to those SVP’s convicted of crimes against children, like him, but rather its holding
applies to the class of SVP’s as a whole.” (McKnight, at pp. 863-864; in accord People v.
McDonald (2013) 214 Cal.App.4th 1367, 1378.)
       Accordingly, we conclude that the purpose of the California Supreme Court’s
remanding McKee I for an evidentiary hearing and its directive that to “avoid an
unnecessary multiplicity of proceedings” that trial courts were to await the finality of
McKee I was a clear indication by the court that the proceedings in McKee I and McKee
II would resolve the issue as a matter of law for all SVP’s, and not just for defendant
McKee.
       Accordingly, we reject defendant’s argument.

                                       DISPOSITION

       The order committing defendant Brian Roddan to the State Department of State
Hospitals for an indeterminate term is affirmed.



                                                        HULL                  , Acting P. J.


We concur:



      BUTZ                  , J.



      HOCH                  , J.


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