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Filed 1/26/15 P. v. Lombardi CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v. JOHN HERBERT LOMBARDI,

Defendant and Appellant. C071358
(Super. Ct. No. 93F06843)

On March 19, 2012 , following a court trial, d efendant John Herbert Lombardi , found to be a sexually violent predator (SVP) within the meaning of the Sexually Violent
Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq

. ) , was committed to the State Department of Mental Health ( now designated as State Department of State Hospitals) 1 for an indeterminate term. On appeal, defendant contends the indeterminate commitment
violate s his cons titutional right to equal protection because he is similarly situated to

1 See Stats. 2012, ch. 24, § 63, effective June 27, 2012.2

mentally disordered offenders (MDO ’ s) and persons found not guilty by reason of insanity (NGI ’ s) , who receive determinate terms , and that this disparity in treatment is not constitutionally justifiable. We shall affirm the order of commitment. In supplemental briefing, defendant contends that recent amendments to the SV PA violate his due process rights under People v. McKee (2010) 47 Cal. 4th 1172 ( McKee I ). We do
not address th e claim because defendant cannot show the amendments have been or will
be applied to him.

LAW REGARDING INDE F INITE COMMITMENT Proposition 83, passed by the voters at the November 7, 2006 , general election , amended Welfare and Institutions Code section 6604 by changing the commitment of
SVP ’ s from two years to an indeterminate term. ( Bourquez v. Superior Court (2007)
156 Cal. App.4 th 1275, 1281.) In McKee I , supra , 47 Cal. 4th 1172, the California Supreme Court addressed whether the amendment violated a defendant’s federal or state constitutional rights under the due process, ex post facto , and equal protection clauses. ( McKee I , at p. 1185.) Th e Supreme Court concluded the amendment did not violate
either the due process or the ex post facto clause

. ( McKee I , at p p. 1193

- 1195.) However, as to equal protection , McKee I held that SVP ’ s were similarly situated
to MDO ’ s and to NGI ’ s regarding the length of their commitments (one year for MDO ’ s, two years for NGI ’ s). ( McKee I , supra , 47 Cal.4th at p p. 1203

- 1207.) McKee I
remanded the matter to the San Diego County Superior Court to afford the People the opportunity t o justify the disparate treatme nt , a point which had not been addressed by
the trial court . ( Id

. at p p. 1208

- 12 11 .) Following an evidentiary hearing, the trial court determined the People had met their burden of justifying the disparate treatment , and t hat determination was upheld by

t he Fourth District Court of Appeal in People v. McKee (2012) 207 Cal. App.4 th 13253

( McKee II

) , filed July 24, 2012

. 2 O n October 10, 2012 , McKee II became final when the California Supreme Court denied review (S162823)

.

DEFENDANT’ S ARGUMENT ON APPEAL Defendant argues , as he did in the trial court, that we should not follow McKee II
because he has not been given the opportunity to present his own case on the equal protection issue and because McKee II used the wrong standard for review. Not only do

we agree with the reasoning in McKee II , but to not follow McKee II would be contrary to the California Supreme Court’s clear intent in remanding McKee I to the trial court for an evidentiary hearing on whether the People could make a showing justifying the disparate

treatment

. As noted by People v. McKnight (2012) 212 Cal. App. 4th 860 , rev iew den

. Mar

. 13, 2013 , S208182 ( McKnight ) in reject ing the same argument made by defendant
herein : “ McKnight al so argues the Supreme Court intended that the post

- McKee I remand would resolve the equal protection issue only as applied to Mr. McKee. This, too, is erroneous. McKee I recognized that the People could attempt to justify the [SVPA’s ] disparate impact in a variety of ways, and that these included showing that SVP’s as a class are significantly more likely to reoffend than MDO’s or NGI’s, showing they po se a greater risk to children (in which case the equal protection analysis would apply only to child pre dators), or by other, unspecified means. [Citation.] In light of that recognition, the c ourt transferred the multiple ‘gran t and hold’ cases under McKee I , including this one, to the Court s of Appeal with direction s to vacate their prior opinions
and suspend further proceedings until the McKee I remand proceeding s were final, ‘ in

2 McKee II “conclude[d] the trial court correctly found the People presented substantial evidence to support a reasonable perception by the electorate that SVP’s present a substantially greater danger to society than do MDO’s and NGI’s, and therefore the disparate treatment of SVP’s under the Act is necessary to further the People’ s compelling interests of public safety and humane treatment of the mentally disordered.” ( McKee II , supra , 207 Cal.App.4th at pp. 1330

- 1331.)4

order to avoid an unnecessary multiplicity of proceedings .’ (See People v. Johnson [ review granted Aug. 13, 2008, S164388 ] ; People v. Riffey [ review granted Aug. 20, 2008, S1 64711 ] ; People v. Boyle [ review granted Oct. 1, 2008, S166167 ] ; People v.
Garcia [ review granted Oct. 16, 2008, S166682 ] ; People v. Glenn [review granted
Feb. 10, 2010, S178140] .) On remand, McKee concluded that differences between SVP’s
as a class and ot her offenders justify their different treatment under the [SVPA]. It is plain that McKee II is not to be restricted to Mr. McKee alone or only to those SVP’s convicted of crimes against children, like him, but rather its holding applies to the class
of SV P’s as a whole. ” ( McKnight, supra , 212 Cal.App.4th at p p. 863

- 864 , fns. omitted ; accord , People v. McDonald (2013) 214 Cal. App.4 th 1367, 1378.)
T he Supreme Court’s direction in its orders of remand that to “avoid an unnecessary multiplicity of proceedings” trial courts were to await the finality of McKee I
was a clear indication by the court that the proceedings in McKee I would resolve the
issue a s a matter of law for all SVP’s and not just for defendant McKee. Consequently, we reject defendant’s argument

. 3

DEFENDANT’S SUPPLEMENTAL BRIEFING Defendant also requests that we consider recent amendments to the SVPA enacted by Senate Bill No. 295 (2013

- 2014 Reg. Sess.) , which added Welfare and Institutions
Code section 6604.9 and amended Welfare and Institutions Code sections 6605 and 6608 ,

concern ing conditional release and/or unconditional discharge. Defendant claims that these “changes to the SVP l aw cause the law to now violate [defendant’ s ] due process rights under the analysis of the California Supreme Court in McKee I

. ”

3 Defendant also contends the amendment violated the constitutional protection provided by the due process, ex post facto, and double jeopardy clauses. Defendant acknowledges the California Supreme Court has rejected his argument on these issues in McKee I , but he raises the issues here to preserve them for future federal review. We consider the issues raised and we reject them.5

This same contention was recently addressed in People v. Gray (2014)
229 Cal.App. 4th 285 (rev iew den. Nov. 12, 2014 , S221708 ) ( Gray ) under circumstances
simil ar to those herein . The court declined to review the contention , stating: “We are concerned with the constitutionality of the SVPA as it existed when [defendant] was adjudged an SVP, not the statutory scheme as it may or may not be applied to [defendant] in the future.” ( Gray , at p. 292.) Likewise, the court was not persuaded by the defendant’s argument that “ the issue is ripe for review because of the reliance placed by
McKee I on the availability of relief under section 6608 as it then stood.” ( Gray , at
p. 292, fn. 17.) Gray ’s analysis is equally applicable to defendant herein and we adopt it.
DISPOSITION The order committing John Herbert Lombardi to the State Department of State Hospitals for an indeterminate term is affirmed.

RAYE , P. J.

We concur:

NICHOLSON , J.

MAURO , J.