Filed 7/25/14 P. v. Sims 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066691
         Plaintiff and Respondent,
                                                                           (Super. Ct. No. 07CRSP678513)
                   v.

RANDY SIMS,                                                                              OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Edward
Sarkisian, Jr., Judge.
         Robert Navarro, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le
Mon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Cornell, Acting P.J., Kane, J. and Franson, J.
                                   INTRODUCTION
       In People v. Sims (July 26, 2010, F057352) (nonpub. opn.), this court affirmed the
order for commitment finding appellant Randy Sims to be a sexually violent predator
(SVP) pursuant to the Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600
et seq.); however, we remanded the case to the trial court for consideration of Sims’s
argument that an indefinite commitment violates equal protection. Subsequently, the trial
court ordered Sims committed for an indefinite term as an SVP.
       Sims appeals the indefinite commitment, contending it violates equal protection.
We will affirm the judgment.
                    FACTUAL AND PROCEDURAL SUMMARY
       On October 1, 2013, this court took judicial notice of its opinion filed in case No.
F057352, supra. A brief summary of facts and procedural history is taken from that
opinion.
       Sims pled guilty to violating Penal Code section 288, subdivision (a), and was
incarcerated at Wasco State Prison. While incarcerated, a petition to civilly commit him
as an SVP was filed. On March 16, 2009, a jury found Sims to be an SVP. The trial
court ordered him civilly committed under the SVPA for an indefinite term.
       Sims appealed his commitment on numerous grounds, including that an indefinite
commitment term violated equal protection. We affirmed the order committing Sims as
an SVP, except as to the indefinite term. This court directed further proceedings be
suspended pending finality of the proceedings on remand in the case of People v. McKee
(2010) 47 Cal.4th 1172, 1208-1210 (McKee I).
       On July 24, 2012, the Fourth District Court of Appeal, Division One, issued its
decision on remand in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II), and
the California Supreme Court denied review on October 10, 2012 (S204503).




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       On January 11, 2013, the trial court again ordered commitment of Sims as an SVP
for an indeterminate term. At that hearing, defense counsel objected to the indeterminate
term on equal protection and due process grounds.
       Sims appeals from the indefinite commitment, contending it violates equal
protection.
                                       DISCUSSION
       The sole contention on appeal is that the SVPA violates equal protection. Sims
urges this court to reject the analysis and holding of McKee II and reach a contrary
conclusion, contending McKee II misapplied the strict scrutiny test. We reject his
contention.
       Sims asserts the indeterminate commitment violates his constitutional right to
equal protection of the laws under the United States and California Constitutions. He
preserved his equal protection challenge by raising an objection in the trial court. In
McKee I, the Supreme Court rejected assertions that the indeterminate commitment
violated a defendant’s right to due process (U.S. Const., 14th Amend.) or the ex post
facto clause of the United States Constitution (U.S. Const., art. I, § 10). (McKee I, supra,
47 Cal.4th at pp. 1184, 1193, 1195.)
       When addressing the equal protection argument in McKee I, however, the
California Supreme Court concluded defendants committed under the SVPA are similarly
situated for equal protection purposes with defendants committed under the Mentally
Disordered Offender Act and defendants found to be not guilty by reason of insanity, and
sexually violent predators were treated differently because they received an indefinite
commitment. Our Supreme Court concluded that such disparate treatment would not
violate the equal protection clause if the People could demonstrate that sexually violent
predators posed a substantially greater risk to society than mentally disordered offenders
or defendants found to be not guilty by reason of insanity. (McKee I, 47 Cal. 4th at
pp. 1203, 1207-1208). Accordingly, our Supreme Court remanded the case to the trial

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court to provide the People with a chance to demonstrate justification for imposing on
sexually violent predators a greater burden to obtain release from commitment. (Id. at
pp. 1208-1209.)
       Shortly after the opinion in McKee I became final, the California Supreme Court
remanded to the appellate courts numerous cases in which it had granted review, but
deferred consideration until McKee I was resolved. This order stated, in part, “In order to
avoid an 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 .… ‘Finality of the
proceedings’ shall include the finality of any subsequent appeal and any proceedings in
this court.” (People v. Garcia, review granted Oct. 16, 2008, S166682, transferred on
May 20, 2010, to Court of Appeal, Fifth Appellate District, with directions.) The clear
import of this order was to permit McKee I to remain the lead case on the question of
whether the indeterminate commitment of sexually violent predators violated a
defendant’s constitutional right to equal protection of the laws.
       The San Diego County Superior Court held a 21-day evidentiary hearing to permit
the People the opportunity to demonstrate the disparate treatment of sexually violent
predators was necessary; McKee appealed after the trial court concluded there was no
equal protection violation. (McKee II, 207 Cal.App.4th at p. 1330.) In McKee II, the
appellate court affirmed the trial court’s conclusion that the People had met their burden
to justify the disparate treatment of sexually violent predators. (Id. at p. 1348.) The
appellate court’s opinion became final when the California Supreme Court denied
McKee’s petition for review on October 10, 2012.
       Sims asserts the decision in McKee II was wrongly decided and asks us to deviate
from McKee II by issuing an opinion concluding his right to equal protection of the law
was violated. If the appellate court in McKee II reached the wrong result, the proper
venue for evaluating the issue is the California Supreme Court through a petition for

                                             4.
review. (2 Witkin, Cal. Procedure (5th ed. 2008) Courts, § 329, p. 420.) When the
Supreme Court denied review in McKee II, the opportunity to challenge the opinion in
the state court system ended. This is especially significant in this case where the
Supreme Court had, in essence, designated McKee I as the lead case to address this issue.
Undoubtedly, the decision to deny review in McKee II was approval of the appellate
court’s decision.
       We also note that two other cases in the Fourth District, People v. McDonald
(2013) 214 Cal.App.4th 1367 and People v. Landau (2013) 214 Cal.App.4th 1, have
agreed with McKee II and concluded there was no violation of the right to equal
protection of the laws from an indefinite term. The First District Court of Appeal,
Division Three, reached the same conclusion in People v. McKnight (2012) 212
Cal.App.4th 860 and followed McKee II in upholding an indefinite SVPA commitment
against an equal protection challenge. (McKnight, at pp. 863-864.)
       Sims has cited no evidence, i.e., facts in the record, that would take his case
outside the holding of McKee II, McDonald, Landau, or McKnight. Accordingly, we
reject the assertion that Sims’s right to equal protection was violated.
                                      DISPOSITION
       The judgment is affirmed.




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