People v. Swain CA5

Filed 8/25/15 P. v. Swain CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F068621 Plaintiff and Respondent, (Super. Ct. No. FP003514A) v.

RAYMOND SWAIN, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Kern County. Kenneth C. Twisselman, II, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Kane, J. and Detjen, J.

Appellant Raymond Swain, Jr., originally appealed from an order pursuant to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) civilly committing him to the State Department of Mental Health for an indeterminate term. On March 3, 2010, this court remanded to the trial court for it to determine whether sufficient justification existed for treating sexually violent predators (SVP’s) differently than mentally disordered offenders (MDO’s) and defendants who are found not guilty by reason of insanity (NGI’s). (People v. Swain (Mar. 3, 2010, F056514).) On this appeal, Swain contends he was denied his right to due process and the equal protection of the law because on remand the trial court denied his equal protection claim without holding an evidentiary hearing. We affirm. FACTS The commitment petition for Swain was filed on February 16, 2007, and went to a jury trial on November 5, 2008. The jury concluded Swain was an SVP and the trial court ordered him committed. Swain appealed, raising several challenges to the jury’s verdict, including that he had been denied his right to equal protection of the law because SVP’s receive treatment disparate from other similarly situated persons, specifically, MDO’s subject to the Mentally Disordered Offender Act (Pen. Code, § 2960 et seq.) and NGI’s. While Swain’s appeal was pending, our Supreme Court filed its decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee I), which held, with respect to the equal protection claim raised by the defendant, that SVP’s were similarly situated to MDO’s and NGI’s. The court remanded the matter to the San Diego County Superior Court to allow the People the opportunity to justify the disparate treatment, which had not been addressed by the trial court. (Id. at pp. 1208-1211.) On March 3, 2010, in accord with McKee I, we remanded People v. Swain (F056514) back to the trial court for it “to hold proceedings to resolve the issue of