Filed 9/17/13 P. v. Hernandez CA4/1 

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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 San 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, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Joy 

Utomi, Deputy Attorneys General, for Plaintiff and Respondent. 

 Alvaro Aldaco Hernandez was recommitted for an indeterminate term to the 

custody of the State Department of Mental Health (DMH), now State Department of State 
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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 disordered offenders (MDO's) and persons found not guilty by 

reason of insanity (NGI's) violates his constitutional 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 PROCEDURAL BACKGROUND 

 Hernandez was first found to be an SVP within the meaning of the SVPA in 

1999.1 In June 2007 the People filed a petition to commit Hernandez 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 term. Hernandez appealed the commitment 

order on several grounds. We rejected Hernandez's contentions, except for his challenge 

to the indeterminate commitment on equal protection grounds. Based on McKee I, which 

 

1 Hernandez was first convicted of sexual assault of an eight-year-old girl in 1967, 

and a jury found him guilty of committing lewd and lascivious 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: Jessica'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), unless 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 for another year. (Pen. Code, 

§ 2972.) 
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held that the 2006 amendments to the 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 further proceedings pending finality of the proceedings on remand 

in McKee I.3 In July 2012 we issued our opinion in McKee II, upholding the 

constitutionality of the amended SVPA on equal 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 individuals civilly committed under other 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 same interest at stake—the loss of liberty 

through involuntary civil commitment—it must be the case that when society varies the 

standard and burden of proof for 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 directions to vacate their prior opinions and 

reconsider in light of McKee I. The order expressed a desire to avoid unnecessary 

multiplicity of proceedings and directed this court to suspend further proceedings 

pending finality of the proceedings in McKee I. 
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involved with erroneously freeing SVP's from their commitment are significantly greater 

than the risks involved with freeing" other civil committees. (Id. at p. 1204.) 

 The Supreme Court remanded the case for a hearing on whether 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 committees], 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. This can be shown in a variety of ways. For example, it may be demonstrated 

that the inherent nature of the SVP's mental 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 conducted a 21-day evidentiary hearing on the 

justification of disparate treatment for SVP's and concluded the People had met their 

burden. On appeal, we reviewed the matter de novo. (McKee II, supra, 207 Cal.App.4th 

at p. 1338.) "When a constitutional right, such 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 based 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 pose a greater risk [and unique dangers] to a 
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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 disparate 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.4th 1, 47-48; People v. McCloud (2013) 213 Cal.App.4th 

1076, 1085-1086; People v. McKnight (2012) 212 Cal.App.4th 860, 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 evaluated it and conclude otherwise. 

DISPOSITION 

 The order is affirmed. 

MCCONNELL, P. J. 

WE CONCUR: 

HALLER, J. 

O'ROURKE, J.