Filed 3/20/13 P. v. Erwin CA1/3
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A132396
v.
JOEY RAY ERWIN,                                                          (Solano County
                                                                         Super. Ct. No. FC33794)
         Defendant and Appellant.


         Defendant was committed to an indeterminate term of confinement as a sexually
violent predator (SVP). He raises several constitutional challenges to his confinement.
We affirm the order of commitment on the basis of existing decisions of the Supreme
Court and Courts of Appeal in which these challenges have been resolved against him as
a matter of law.
                                                      Discussion1
         Following a jury trial in May 2011, defendant was found to be an SVP, and
committed by the trial court to an indeterminate term. Defendant contends that his
commitment for an indeterminate term is unconstitutional in that it violates the equal
protection, due process, ex post facto, and double jeopardy provisions of the California
and the United States Constitutions. As defendant acknowledges, the issues he raises
have been decided against him by our Supreme Court in People v. McKee (2010) 47
Cal.4th 1172 (McKee I) and by this and other appellate courts. (See People v. McKee

1
  Because defendant raises no procedural or evidentiary errors on appeal, the details of
the commitment proceeding are not pertinent.

                                                             1
(2012) 207 Cal.App.4th 1325, 1330–1331 (McKee II); People v. McCloud (2013) 213
Cal.App.4th 1076; People v. McKnight (2012) 212 Cal.App.4th 860, 864 [agreeing with
the Fourth Appellate District’s equal protection analysis in McKee II].)
       In McKee, the California Supreme Court found that the indeterminate term of
commitment prescribed by the SVP statute potentially violates the equal protection
clause. The court found that SVP’s are similarly situated with individuals found not
guilty by reason of insanity (NGIs) and mentally disordered offenders (MDOs) for equal
protection purposes and remanded the matter to the trial court for a hearing to determine
whether the People could justify “the differences between SVP and NGI commitment
statutes.” (McKee I, supra, 47 Cal.4th at p. 1207.) Following remand, after a 21-day
evidentiary hearing, the trial court found that the People met their burden to justify the
disparate treatment of SVP’s. (McKee II, supra, 207 Cal.App.4th at p. 1330.) The Fourth
Appellate District affirmed. “[W]e conclude the People on remand met their burden to
present substantial evidence, including medical and scientific evidence, justifying the
amended Act’s disparate treatment of SVP’s (e.g., by imposing indeterminate terms of
civil commitment and placing on them the burden to prove they should be released).
[Citation.] The People have shown that, ‘notwithstanding the similarities between SVP’s
and MDO’s [and NGI’s], 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.’ [Citation.] The 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 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 passed Proposition 83 that the disparate treatment of
SVP’s under the amended Act is necessary to further the state’s compelling interests in
public safety and humanely treating the mentally disordered.” (Id. at p. 1347.) The
Supreme Court denied review and McKee II is now final.



                                              2
       Defendant severely criticizes the reasoning and result in McKee II, but we concur
with the court’s reasoning and holding. (People v. McKnight, supra, 212 Cal.App.4th at
p. 864.)
       Defendant also argues that McKee II should apply only to McKee and that he
“should not be bound by the litigation process and evidence in McKee II when he had no
say in how the case would be presented.” The procedural history in McKee, however,
indicates the California Supreme Court’s intention that the proceedings in McKee would
resolve the issue as a matter of law for all SVPs, not merely for the defendant in that case.
Specifically, on May 2010, when the Supreme Court transferred to the Courts of Appeal
numerous cases in which review had been granted and held pending its decision in
McKee, the court advised, “In order to avoid unnecessary multiplicity of proceedings, the
court is additionally directed to suspend further proceedings pending finality of the
proceedings on remand in McKee, . . . including any proceeding in the Superior Court of
San Diego County in which McKee may be consolidated with related matters. ‘Finality of
the proceedings’ shall include the finality of any subsequent appeal and any proceedings
in this court.” (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, 2008, S166167; People v. Garcia, review granted Oct. 16, 2008,
S166682; People v. Glenn, review granted Feb. 10, 2010, S178140.) In light of the
Supreme Court’s denial of review in McKee II, we conclude that defendant’s
recommitment under the SVPA does not violate his equal protection rights.
       Defendant acknowledges that his remaining constitutional arguments were
rejected in McKee, supra, 47 Cal.4th at pages 1188-1193, 1193-1195, and that they are
not subject to review in this court. As requested, his arguments are noted for the record.




                                             3
                                   Disposition
     Defendant’s order of commitment is affirmed.




                                            _________________________
                                            Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




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