People v. Rubio CA6

Filed 4/21/14 P. v. Rubio CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039299 (Monterey County Plaintiff and Respondent, Super. Ct. No. SC960022)

v.

JORGE LUIS RUBIO, SR.,

Defendant and Appellant.

Jorge Luis Rubio, Sr. appeals a judgment of the trial court committing him as a sexually violent predator pursuant to Welfare and Institutions Code sections 6600 et seq. Appellant challenges the constitutionality of the Sexually Violent Predator Act (SVP Act). STATEMENT OF THE CASE This is appellant’s second appeal in this case. The first occurred as a result of a March 4, 2011 commitment as a sexually violent predator for an indeterminate term. Appellant challenged the constitutionality of the SVP Act. On July 20, 2012, this court reversed and remanded the case with the direction to the trial court to suspend proceedings pending finality of the decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee). (People v. Rubio (Jul. 20, 2012, H036678) [nonpub. opn.].)

On October 24, 2012, the trial court held a hearing pursuant to this court’s remand order, and imposed an indeterminate commitment pursuant to the Act. Appellant filed a timely notice of appeal. DISCUSSION The SVP Act mandates indefinite commitment for an individual found to be an SVP: “If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the State Department of State Hospitals for appropriate treatment and confinement in a secure facility designated by the Director of State Hospitals.” (Welf. & Inst. Code, § 6604.) Appellant contends that indeterminate commitment under the SVP Act violates several constitutional guarantees, namely due process, ex post facto, double jeopardy, and equal protection. Appellant also asserts his due process rights were violated because he was not present at his commitment hearing. Due Process, Ex Post Facto and Double Jeopardy Appellant asserts the SVP Act’s provision for an indeterminate term violates the due process clause, the ex post facto clause and the double jeopardy clause. These claims were raised and rejected in appellant’s prior appeal. (People v. Rubio, supra, H036678 [nonpub. opn.].) Equal Protection In McKee, the defendant argued that indeterminate commitment under the SVP Act violates equal protection because other civilly committed individuals, such as mentally disordered offenders (MDO’s) and those found not guilty by reason of insanity (NGI’s), are subject to commitment for determinate periods with greater procedural protections. (McKee, supra, 47 Cal.4th at pp. 1196, 1200-1202, 1207.) McKee held that SVP’s are similarly situated to MDO’s and NGI’s for equal protection purposes, but it