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Name: People v. Kisling
Case #: C072497
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 01/28/2014

Appellant was not entitled to a hearing on whether his indeterminate commitment as a sexually violent predator (SVP) violates his equal protection rights because McKee II decided the issue adversely to him. In 2009, a jury found appellant to be an SVP and the trial court committed him to the State Department of Mental Health for an indeterminate term. Appellant appealed, contending the commitment violated his constitutional rights; namely, due process, ex post facto, and equal protection. While appellant’s appeal was pending, the California Supreme Court in People v. McKee (2010) 47 Cal.4th 1172 (McKee I) rejected all but the equal protection argument. As to that argument, it held that SVP’s were similarly situated to MDO’s (mentally disordered offenders) and NGI’s (not guilty by reason of insanity), and remanded to the trial court to allow the People to justify the disparate treatment. The trial court found that because SVP’s present a substantially greater danger to society, the disparate treatment is justified. The appellate court affirmed and the Supreme Court denied review. (People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II).) In this case, appellant argued that he should not be bound by McKee II and that the matter should be remanded with appellant being allowed the opportunity to present his own case on the equal protection issue. Held: Affirmed. The court agreed with the reasoning of McKee II, and also found that the Supreme Court intended the remand in McKee I to be dispositive in all cases dealing with whether disparate treatment was justifiable. Because McKee II decided the issue adversely to defendants, there was no basis for a hearing on the issue in appellant’s case.