People v. Kisling

Filed 1/28/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C072497

Plaintiff and Respondent, (Super. Ct. No. 01F02348)

v.

RICHARD KISLING,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, Kevin J. McCormick, Judge. Affirmed.

Susan K. Shaler, 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 Defendant and Appellant.

Defendant Richard Kisling appeals from an order of the Sacramento County Superior Court, made after judgment, determining he was not entitled to a hearing on whether his indeterminate commitment as a sexually violent predator violated his equal

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protection rights, because that issue had been decided adversely to him by People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II). We agree that defendant is not entitled to such a hearing and affirm the order. BACKGROUND In 2009 a jury found defendant Richard Kisling 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 Mental Health (now designated as the State Department of State Hospitals) for an indeterminate term.2 Defendant appealed (C063911), contending, inter alia, that the indeterminate commitment violated the constitutional protections provided by the due process, ex post facto, and equal protection clauses of the United States and California Constitutions. While defendant’s appeal was pending, the California Supreme Court filed its decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee I), which rejected defendant’s constitutional arguments except as to the equal protection claim. (Id. at pp. 1193-1195.) As to equal protection, McKee I held that 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, at pp. 1201, 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.)