Filed 4/21/14 P. v. Rubio 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039299
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SC960022)

             v.

JORGE LUIS RUBIO, SR.,

         Defendant and Appellant.



         Jorge Luis Rubio, Sr. appeals a judgment of the trial court committing him as a
sexually violent predator pursuant to Welfare and Institutions Code sections 6600 et seq.
Appellant challenges the constitutionality of the Sexually Violent Predator Act (SVP
Act).
                                           STATEMENT OF THE CASE
         This is appellant’s second appeal in this case. The first occurred as a result of a
March 4, 2011 commitment as a sexually violent predator for an indeterminate term.
Appellant challenged the constitutionality of the SVP Act. On July 20, 2012, this court
reversed and remanded the case with the direction to the trial court to suspend
proceedings pending finality of the decision in People v. McKee (2010) 47 Cal.4th 1172
(McKee). (People v. Rubio (Jul. 20, 2012, H036678) [nonpub. opn.].)
       On October 24, 2012, the trial court held a hearing pursuant to this court’s remand
order, and imposed an indeterminate commitment pursuant to the Act. Appellant filed a
timely notice of appeal.
                                       DISCUSSION
       The SVP Act mandates indefinite commitment for an individual found to be an
SVP: “If the court or jury determines that the person is a sexually violent
predator, the person shall be committed for an indeterminate term to the custody of the
State Department of State Hospitals for appropriate treatment and confinement in a
secure facility designated by the Director of State Hospitals.” (Welf. & Inst. Code,
§ 6604.)
       Appellant contends that indeterminate commitment under the SVP Act violates
several constitutional guarantees, namely due process, ex post facto, double jeopardy, and
equal protection. Appellant also asserts his due process rights were violated because he
was not present at his commitment hearing.
       Due Process, Ex Post Facto and Double Jeopardy
       Appellant asserts the SVP Act’s provision for an indeterminate term violates the
due process clause, the ex post facto clause and the double jeopardy clause. These claims
were raised and rejected in appellant’s prior appeal. (People v. Rubio, supra, H036678
[nonpub. opn.].)
       Equal Protection
       In McKee, the defendant argued that indeterminate commitment under the SVP
Act violates equal protection because other civilly committed individuals, such as
mentally disordered offenders (MDO’s) and those found not guilty by reason of insanity
(NGI’s), are subject to commitment for determinate periods with greater procedural
protections. (McKee, supra, 47 Cal.4th at pp. 1196, 1200-1202, 1207.) McKee held that
SVP’s are similarly situated to MDO’s and NGI’s for equal protection purposes, but it

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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
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.) The 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.
       Appellant 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. He therefore urges us to reject the McKee II holding,
and requests this court “remand the [present] case for a hearing on whether the State can
meet its burden to show a compelling state interest in furtherance of which it is necessary
to impose a burden of proof upon appellant as an SVP that is different form that applies
to MDO’s and NGI’s.”
       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.” (Id., § 498, p. 560.) “Normally, a Court of Appeal will follow prior decisions
of . . . other districts or divisions.” (Id., § 499, p. 560) We are inclined to adhere to the
general tendency and follow the Fourth Appellate District’s holding in McKee II.
       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

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petition for review, that ruling is not “without significance.” (Di Genova v. State Board
of Education (1962) 57 Cal.2d 167, 178.) We therefore believe that the Supreme Court
has impliedly directed us to abide by the Fourth Appellate District’s decision in McKee
II, and we decline defendant’s invitation to depart from the holding in McKee II.
       Presence at the Hearing
       Appellant asserts he was denied his due process rights because he was not
personally present at the commitment hearing. Appellant was present during the trial and
the initial indeterminate commitment in this case.
       It should be noted that the hearing about which appellant complains was the
second hearing for commitment after remand and the issuance of the opinion in
McKee II. As a result, the indeterminate commitment ordered at the second hearing was
essentially pro forma, having been ordered previously in the case. Appellant was not
denied his due process rights by not being present for the second indeterminate
commitment.
                                      DISPOSITION
       The judgment is affirmed.

                                          ______________________________________
                                                     RUSHING, P.J.

WE CONCUR:

____________________________________
           PREMO, J.

____________________________________
           MÁRQUEZ, J.




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