Filed 7/22/15 P. v. Raya CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068623
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. FP003544A)
                   v.

GREGORIO ALONZO RAYA,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
         John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P. J., Poochigian, J. and Peña, J.
                                   INTRODUCTION
       Appellant Gregorio Alonzo Raya contends he was denied due process because on
remand the trial court denied his equal protection argument based upon the holding of
People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II) without holding an
evidentiary hearing. We affirm the judgment.
                    FACTUAL AND PROCEDURAL SUMMARY
       Raya was committed to the State Department of Mental Health (now designated as
the State Department of State Hospitals; hereafter DSH) on April 24, 2009, following a
jury finding that he qualified as a sexually violent predator (SVP) within the meaning of
the Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.).1 Raya
appealed the commitment order and in an unpublished decision (People v. Raya (July 7,
2010, F057532) [nonpub. opn.] (Raya)) this court stated in its disposition:

       “The order for commitment finding Raya to be an SVP within the meaning
       of section 6600 et seq. and committing him to the custody of the [DSH] is
       affirmed, except as to the commitment for an indeterminate term, which is
       reversed. The matter is remanded to the trial court for reconsideration of
       whether an indefinite commitment violates equal protection. The trial
       court, however, shall suspend further proceedings pending finality of the
       proceedings on remand in [People v.] McKee [(2010) 47 Cal.4th 1172 (McKee
       I)].”

Remittitur issued in case No. F057532 on September 22, 2010.
       On January 14, 2011, the trial court suspended further proceedings in Raya’s case
pending finality of the proceedings on remand in McKee I.
       On remand in McKee I, after an evidentiary hearing, it was determined by the trial
court that the indeterminate term provisions of the SVPA did not violate equal protection.




       1Allfurther statutory references are to the Welfare and Institutions Code unless
otherwise specified.


                                            2.
       On July 24, 2012, the appellate court affirmed the trial court’s holding in McKee
II. On October 10, 2012, the California Supreme Court denied review of McKee II
(S204503).
       On November 5, 2013, in Raya’s case, the trial court summarily decided, based
upon McKee II, that the SVPA did not violate principles of equal protection and affirmed
Raya’s commitment to DSH for an indeterminate term. No evidentiary proceeding was
held. The order committing Raya as an SVP for an indeterminate term was signed and
filed November 22, 2013.
                                      DISCUSSION
       Raya’s sole contention on appeal is that the trial court erred in not conducting an
evidentiary hearing before concluding that an indeterminate term of commitment for
SVP’s does not violate equal protection. We reject his contention.
       The California Supreme Court held in McKee I, supra, 47 Cal.4th 1172 that the
SVPA, which had been amended to provide for an indeterminate commitment for SVP’s,
was potentially unconstitutional as a violation of equal protection because SVP’s are
similarly situated to mentally disordered offenders (MDO’s) and to those determined to
be not guilty by reason of insanity (NGI’s), who are not subject to an indeterminate
commitment. The California Supreme Court remanded the case to the trial court to allow
the People to present evidence justifying the differential treatment and thus defeat the
equal protection challenge. (Id. at pp. 1203, 1207-1211.)
       In our unpublished opinion we did state that McKee I failed to “explain whether
the justification [on remand] will be a one-time finding, forever applicable to all SVP’s
committed under the statutory scheme, or whether in every case there must be
justification for treating a particular SVP differently than MDO’s and NGI’s.” (Raya,
supra, F057532.) In 2010, when our unpublished opinion was decided, this question was
unanswered. Subsequently, the question has been answered by this court and other
appellate courts, which hold that McKee II is a one-time finding.

                                             3.
       McKee II determined “whether there is substantial evidence, contradicted or
uncontradicted, to support the legislative determination, and when two or more inferences
can reasonably be deduced from the evidence, we are without power to substitute our
deductions for those of the electorate or other legislative body.” (McKee II, supra, 207
Cal.App.4th at p. 1339.) The appellate court in McKee II held that the People had met
their burden of proving that the disparate treatment of SVP’s was based on a reasonable
perception SVP’s posed greater and unique dangers, based on evidence showing the
inherent nature of the SVP’s mental disorder makes recidivism much more likely than for
MDO’s, victims of sex offenses suffer unique and generally greater trauma than victims
of other offenses, and SVP’s are significantly different than MDO’s in diagnosis and
treatment. (Id. at pp. 1335, 1340, 1342, 1344.)
       In this court’s opinion in People v. Gray (2014) 229 Cal.App.4th 285 (Gray), we
noted that “Every published opinion to consider the issue has concluded the applicable
version of the SVPA passes constitutional muster under the strict scrutiny test, and has
found McKee II persuasive.” (Id. at p. 291.) We then listed multiple published opinions
and noted our agreement with these decisions. (Ibid.)
       Among the decisions with which we expressly agreed in Gray were People v.
Kisling (2014) 223 Cal.App.4th 544 (Kisling), People v. McDonald (2013) 214
Cal.App.4th 1367 (McDonald), People v. McCloud (2013) 213 Cal.App.4th 1076
(McCloud), and People v. McKnight (2012) 212 Cal.App.4th 860 (McKnight). Each of
these decisions held that the holding in McKee II applied to all SVP’s as a class and the
indeterminate term of commitment for SVP’s was not a violation of equal protection.
       The Third District Court of Appeal in Kisling held that the California Supreme
Court intended the holding in McKee II to be dispositive as a matter of law in all cases.
(Kisling, supra, 223 Cal.App.4th at p. 548.) In McDonald, the Fourth District Court of
Appeal held that McKee II resolves the issue on a classwide basis. (McDonald, supra,
214 Cal.App.4th at pp. 1377-1378.) The First District Court of Appeal in McCloud

                                             4.
similarly held that McKee II applies to all SVP’s as a class. (McCloud, supra, 213
Cal.App.4th at p. 1086.) The First District also issued McKnight, holding that McKee II
applies to all SVP’s. (McKnight, supra, 212 Cal.App.4th at pp. 863-864.)
       As did the appellate courts in Kisling, McDonald, McCloud, and McKnight, and
this court in Gray, we conclude the provision of the SVPA that provides for an
indeterminate term of commitment for SVP’s is constitutional and the holding of McKee
II is intended to be dispositive as a matter of law as to all SVP cases. Therefore, we
reject Raya’s claim that he was entitled to an evidentiary hearing after remand. (Gray,
supra, 229 Cal.App.4th at pp. 291-292.)
                                     DISPOSITION
       The November 22, 2013, commitment order is affirmed.




                                             5.
