People v. Lombardi CA3

Filed 1/26/15 P. v. Lombardi CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C071358

Plaintiff and Respondent, (Super. Ct. No. 93F06843)

v.

JOHN HERBERT LOMBARDI,

Defendant and Appellant.

On March 19, 2012, following a court trial, defendant John Herbert Lombardi, found to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.), was committed to the State Department of Mental Health (now designated as State Department of State Hospitals)1 for an indeterminate term. On appeal, defendant contends the indeterminate commitment violates his constitutional right to equal protection because he is similarly situated to

1 See Stats. 2012, ch. 24, § 63, effective June 27, 2012.

1

mentally disordered offenders (MDO’s) and persons found not guilty by reason of insanity (NGI’s), who receive determinate terms, and that this disparity in treatment is not constitutionally justifiable. We shall affirm the order of commitment. In supplemental briefing, defendant contends that recent amendments to the SVPA violate his due process rights under People v. McKee (2010) 47 Cal.4th 1172 (McKee I). We do not address the claim because defendant cannot show the amendments have been or will be applied to him. LAW REGARDING INDEFINITE COMMITMENT Proposition 83, passed by the voters at the November 7, 2006, general election, amended Welfare and Institutions Code section 6604 by changing the commitment of SVP’s from two years to an indeterminate term. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1281.) In McKee I, supra, 47 Cal.4th 1172, the California Supreme Court addressed whether the amendment violated a defendant’s federal or state constitutional rights under the due process, ex post facto, and equal protection clauses. (McKee I, at p. 1185.) The Supreme Court concluded the amendment did not violate either the due process or the ex post facto clause. (McKee I, at pp. 1193-1195.) However, as to equal protection, McKee I held that SVP’s were similarly situated to MDO’s and to 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.) Following an evidentiary hearing, the trial court determined the People had met their burden of justifying the disparate treatment, and that determination was upheld by the Fourth District Court of Appeal in People v. McKee (2012) 207 Cal.App.4th 1325