The People v. Jennings CA3

Filed 10/7/13 P. v. Jennings CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta)

THE PEOPLE, C072779

Plaintiff and Respondent, (Super. Ct. No. 95F3927)

v.

PAUL FRANCIS JENNINGS,

Defendant and Appellant.

A jury found defendant Paul Francis Jennings was a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.; hereafter SVPA)1 and the trial court committed him to the State Department of State Hospitals (formerly the State Department of Mental Health) for an indeterminate term.2

1 References to undesignated sections are to the Welfare and Institutions Code. 2 Proposition 83, passed by the voters at the November 7, 2006, General Election, amended sections of the SVPA by changing the term of commitment for an SVP from two years to an indeterminate term.

1

Defendant appealed (case No. C066227), contending the indefinite commitment violated due process, equal protection, and the protection against ex post facto laws.3 In January 2012 we filed our opinion in case No. C066227, rejecting his due process and ex post facto arguments because these arguments had been decided adversely to him by the California Supreme Court in People v. McKee (2010) 47 Cal.4th 1172 (McKee I). However, as to the equal protection argument, McKee I held that for equal protection purposes SVP‟s were similarly situated to mentally disordered offenders (MDO‟s) and to persons found not guilty by reason of insanity (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 pp. 1203-1207.) McKee I remanded the matter to the San Diego County Superior Court to afford the People the opportunity to justify the disparate treatment, a point which had not been addressed by the trial court. (Id. at pp. 1208-1211.) After an evidentiary hearing the San Diego County Superior Court determined the People had met their burden of justifying the disparate treatment. That determination was upheld on appeal by the Fourth District Court of Appeal in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II).4 In October 2012 McKee II became final when the California Supreme Court denied review. Consistent with McKee I remands in other cases, we reversed the judgment in case No. C066227 and remanded the case to the trial court for reconsideration of defendant‟s