Filed 9/17/13 P. v. Hernandez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. ALVARO ALDACO HERNANDEZ, Defendant and Appellant. D063102

(Super. Ct. No. MH101244)

APPEAL from an order of the Superior Court of Sa n Diego County, David M. Gill, Judge. Affirmed. Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Atto rney General, A. Natasha Cortina and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent. Alvaro Aldaco Hernandez was recommitte d for an indeterminate term to the custody of the State Department of Mental Health (DMH), now State Department of State2 Hospitals, under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) Hernandez appeals, contending that treating sexually violent predators (SVP's) differently from mentally diso rdered offenders (MDO's) a nd persons foun d not guilty by reason of insanity (NGI's) violates his constitu tional right to equal protection. We have considered this argument in light of our Supreme Court's opinion in People v. McKee (2010) 47 Cal.4th 1172 ( McKee I ), and this court's final opinion on remand in the same

case, People v. McKee (2012) 207 Cal.App.4th 1325 ( McKee II ). Based on these opinions, we affirm the order.
FACTUAL AND PROCEDUR AL BACKGROUND Hernandez was first found to be an SV P within the meaning of the SVPA in
1999. 1 In June 2007 the People filed a pe tition to commit Hernan dez for involuntary
treatment as an SVP. 2 In March 2011 a jury found Hernandez to be an SVP and the court committed him for an indeterminate te rm. Hernandez appe aled the commitment order on several grounds. We rejected Hern andez's contentions, except for his challenge to the indeterminate commitment on e qual protection grounds. Based on McKee I , which

1 Hernandez was first convicted of sexual a ssault of an eight-yea r-old girl in 1967, and a jury found him guilty of committing lewd and lascivio us acts on a child under the age of 14 of two victims in 1988. 2 In November 2006 California voters passed Proposition 83, entitled "The Sexual Predator Punishment and Control Act: Jess ica's Law" amending the SVPA effective November 8, 2006. ( McKee I , supra , 47 Cal.4th at p. 1183.) Proposition 83 changed an SVP commitment from a two-year term to an indefinite commitment and shifted the burden of proof for release to the SVP ( id. at pp. 1183-1184), unle ss the DMH authorizes a petition for release ( id. at p. 1187). In contrast, an MDO is committed for a one-year period and thereafter has the right to be released unless the People prove beyond a reasonable doubt that he or she should be recommitted fo r another year. (Pen. Code, § 2972.)3 held that the 2006 amendments to th e SVPA may violate equal protection ( McKee I , supra , 47 Cal.4th at p. 1184), we reversed in part and remanded to the trial court with directions to suspend furthe r proceedings pe nding finality of the pr oceedings on remand
in McKee I

. 3 In July 2012 we i ssued our opinion in McKee II , upholding the constitutionality of the amended SVPA on eq ual protection grounds. The Supreme Court denied review in McKee II , rendering the opinion final ( McKee II , supra , 207 Cal.App.4th 1325, review den. Oct. 10, 2012, S204503), and the trial court subsequently re-imposed the order for Hernandez to be committed to an indeterminate term.
DISCUSSION Hernandez's constitutional argument focuses on whether the amended SVPA violates equal protection. In McKee I , the Supreme Court held the SVPA is subject to equal protection analysis because it "treats SVP's significantly less favorably than those similarly situated individual s civilly committed under othe r statutes" including MDO's and NGI's. ( McKee I , supra , 47 Cal.4th at pp. 1196, 1203, 1207.) Since individuals within each of these categories "have the sa me interest at stak e—the loss of liberty through involuntary civil commitment—it must be the case that when society varies the standard and burden of proof fo r SVP's . . . , it does so because of the belief that the risks

3 The Supreme Court remanded in McKee I for an evidentiary hearing on whether disparate treatment for SVP's is justified. The court transferred "grant and hold" cases under McKee I to the Courts of Appeal with directi ons to vacate their prior opinions and reconsider in light of McKee I . The order expressed a de sire to avoid unnecessary multiplicity of proceedings and directed th is court to suspend further proceedings pending finality of the proceedings in McKee I

.4 involved with erroneously fr eeing SVP's from their commitmen t are significantly greater than the risks in volved with freeing" othe r civil committees. ( Id. at p. 1204.) The Supreme Court remanded the case fo r a hearing on whet her the People could justify disparate treatment for SVP's. The court instructed: "It must be shown that, notwithstanding the similarities between SVP' s and [other civil co mmittees], 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 ne eded to protect society. This can be shown in a variety of ways. For example, it may be demonstrated that the inherent nature of the SVP's ment al disorder makes recidivism as a class significantly more likely. Or it may be that SVP's pose a greater risk to a particularly vulnerable class of victims, such as children. . . . Or the People may produce some other justification." ( McKee I , supra , 47 Cal.4th at p. 1208, fn. omitted.) After remand, the superior court conduct ed a 21-day evidentiary hearing on the justification of disparate treatment for SV P's and concluded the People had met their burden. On appeal, we revi ewed the matter de novo. ( McKee II, supra, 207 Cal.App.4th at p. 1338.) "When a constitutional right, su ch as the right to liberty from involuntary confinement, is at stake, the usual judicial deference to legislative findings gives way to an exercise of independent judgment of the facts to ascertain whether the legislative body ' "has drawn reasonable inferences ba sed on substantial evidence." ' " ( McKee I , supra , 47 Cal.4th at p. 1206, italics added.) In McKee II , we concluded "[t]he People have shown 'that the inherent nature of the SVP's mental disorder makes recidivism as a class significantly more likely[;] . . . that SVP's pos e a greater risk [and unique dangers] to a5 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 the disp arate treatment of SVP's under the amended [SVPA] is necessary to further the state' s compelling interests in public safety and humanely treating the mentally disordered." ( McKee II , supra , 207 Cal.App.4th at p. 1347

. ) The Supreme Court denied a petition for review, making McKee II final. ( McKee II , review den. Oct. 10, 2012, S204503.) This court has, of course, followed McKee II , and other Courts of Appeal have as well. (See, e.g., People v. McDonald (2013) 214 Cal.App.4th 1367, 1376-1382; People v. Landau (2013) 214 Cal.App.4t h 1, 47-48; People v. McCloud (2013) 213 Cal.App.4th 1076, 1085-1086; People v. McKnight (2012) 212 Cal.App.4th 8 60, 863-864.) While it is clear Hernandez believes the evidence relied on in McKee II is insufficient to justify disparate treatment of SVP's, we have carefully evaluate d it and conclude otherwise.
DISPOSITION The order is affirmed.

M C CONNELL, P. J. WE CONCUR:

HALLER, J.

O'ROURKE, J.