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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

GREGORIO ALONZO RAYA,

Defendant and Appellant.

F068623

(Super. Ct. No. FP003544A)

OPINION

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.
2.

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appealed the commitment order and in an unpublished decision (People v. Raya (July 7, 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. 

 

1All further statutory references are to the Welfare and Institutions Code unless 

otherwise specified.
3.

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. 
4.

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
5.

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.