Filed 5/20/14 P. v. Rodriguez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039885
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 211203)

             v.

EDWARD RODRIGUEZ,

         Defendant and Appellant.



         Defendant Edward Rodriguez appeals from an order involuntarily committing him
as a sexually violent predator (SVP). On appeal, he contends that his indeterminate
commitment under the SVP Act (Welf. & Inst. Code, § 6600 et seq.) violates his right to
equal protection of the laws. As set forth below, we will affirm.
                                                   BACKGROUND
         On July 24, 2003, defendant was convicted of committing a lewd or lascivious act
on a child under age 14 (Pen. Code, § 288, subd. (a)) and assault with intent to commit a
lewd or lascivious act on a child (Pen. Code, § 220). Subsequently, on
December 24, 2007, the Santa Clara County District Attorney filed a petition to
involuntarily commit defendant as an SVP. On June 10, 2013, the trial court found the
petition to be true, and it ordered defendant to be committed for an indeterminate term.


                                                     DISCUSSION
       The SVP Act mandates commitment “for an indeterminate term” when an
individual is found to be an SVP. (Welf. & Inst. Code, § 6604.) Defendant contends that
his indeterminate commitment under the SVP Act violates his right to equal protection of
the laws because other civilly committed individuals—namely, mentally disordered
offenders (MDO’s) and those found not guilty by reason of insanity (NGI’s)—are
committed for determinate periods.
       This issue has been widely litigated. It reached the California Supreme Court in
People v. McKee (2010) 47 Cal.4th 1172 (McKee I). In McKee I, the defendant argued
that indeterminate commitment under the SVP Act violates equal protection guarantees
because other civilly committed individuals, such as MDO’s and NGI’s, are subject to
commitment for determinate periods with greater procedural protections. (Id. at
pp. 1196, 1200-1202, 1207.) McKee I held that SVP’s are similarly situated to MDO’s
and NGI’s for equal protection purposes, but it concluded that the record was insufficient
to determine whether a justification exists for treating SVP’s differently from MDO’s and
NGI’s. (Id. at pp. 1203-1207.) McKee I therefore remanded the case to the San Diego
Superior Court with directions to hold an evidentiary hearing and determine whether the
disparate treatment of SVP’s is justified. (Id. at pp. 1208-1209.)
       On remand, the San Diego Superior Court conducted an evidentiary hearing and
ruled that the People had demonstrated a constitutionally sufficient justification for
treating SVP’s differently from MDO’s and NGI’s. (People v. McKee (2012) 207
Cal.App.4th 1325, 1331 (McKee II).) The superior court’s order was affirmed by the
Fourth Appellate District in McKee II, supra, 207 Cal.App.4th 1325, 1350. The Supreme
Court denied review of McKee II.
       Here, defendant contends that the Fourth Appellate District improperly evaluated
the evidence and erroneously concluded that indeterminate commitment under the SVP
Act does not violate equal protection guarantees. He therefore urges us to reevaluate the
evidence presented in the San Diego Superior Court, reject the McKee II holding, and
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conclude that indeterminate commitment under the SVP Act does in fact violate equal
protection principles. As explained below, we decline defendant’s invitation to reject
McKee II.
       Ordinarily the opinion of one Court of Appeal is not binding on another Court of
Appeal. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 498, p. 558.) “However,
there is a tendency for a Court of Appeal to follow decisions from . . . other districts or
divisions.” (9 Witkin, supra, Appeal, § 498, p. 560.) “Normally, a Court of Appeal will
follow prior decisions of . . . other districts or divisions.” (9 Witkin, supra, Appeal,
§ 499, p. 560) Given the peculiar nature of defendant’s claim—he asks us to reevaluate
evidence presented in a superior court over which we do not have jurisdiction—we are
inclined to adhere to the general tendency and follow the Fourth Appellate District’s
holding in McKee II. Indeed, we are aware of no procedural principle, and defendant
provides none, that permits us to evaluate the evidence presented in the San Diego
Superior Court and reach a contrary conclusion to that of the Fourth Appellate District.
       The Supreme Court’s denial of review in McKee II supports our inclination to
follow the McKee II holding. We construe the Supreme Court’s denial of review as an
endorsement of McKee II. The Supreme Court itself has stated that when it denies a
petition for review, that ruling is not “without significance.” (Di Genova v. State Board
of Education (1962) 57 Cal.2d 167, 178.)
       Moreover, it appears that “the Supreme Court intended for the remanded
proceedings in McKee I to be, as a matter of law, dispositive in all cases on the issue of
whether the disparate treatment between SVP’s and MDO’s/NGI’s [is] justifiable.”
(People v. Kisling (2014) 223 Cal.App.4th 544, 548 (Kisling).) Specifically, “McKee I
recognized that the People could attempt to justify the [SVP Act’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 . . . , or by other, unspecified means. [Citation.] In light of that recognition, the
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[Supreme] Court transferred the multiple ‘grant and hold’ cases under McKee I . . . 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.’ [Citations.]” (People v. McKnight (2012) 212
Cal.App.4th 860, 863, first italics added.) “The Supreme Court’s emphasis on classwide
proof, together with its suspension of activity in grant-and-hold cases to avoid an
unnecessary multiplicity of proceedings, demonstrates to us the Supreme Court intended
the equal protection challenge to the [SVP Act] be resolved on a classwide basis in a
single case.” (People v. McDonald (2013) 214 Cal.App.4th 1367, 1378.) Thus, “to not
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.” (Kisling, supra, 223 Cal.App.4th at p. 548.)
       Accordingly, for the foregoing reasons, we cannot conclude that indeterminate
commitment under the SVP Act violates equal protection guarantees. We therefore must
affirm the order committing defendant for an indeterminate term.




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                                  DISPOSITION
     The order of commitment is affirmed.



                                     ______________________________________
                                                RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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