P. v. Barbour CA3

Filed 5/6/13 P. v. Barbour CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C061291

Plaintiff and Respondent, (Super. Ct. No. MHO02001)

v.

ROBERT SEAN BARBOUR,

Defendant and Appellant.

Defendant Robert Sean Barbour originally challenged, on due process and equal protection grounds, the constitutionality of his indeterminate commitment pursuant to Proposition 83, which modified the terms by which sexually violent predators (SVP‟s) can be released from civil commitment under the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.; unless otherwise stated, all statutory references that follow are to the Welfare and Institutions Code). In an unpublished opinion based on the Supreme Court‟s decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee I), we found no due process violation and we remanded the matter to the trial court to determine whether, under the equal protection clause, the People could justify treating SVP‟s

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differently than mentally disordered offenders (MDO‟s) and persons committed after being found not guilty by reason of insanity (NGI‟s) since no evidence was introduced in the trial court on the equal protection issue. (People v. Barbour (May 6, 2010, C061291) [nonpub. opn].) The Supreme Court granted defendant‟s petition for review with directions to us to vacate our unpublished decision. To avoid duplicating remand proceedings already ordered in McKee I, which allowed the People an opportunity to justify treating SVP‟s, MDO‟s and NGI‟s differently under established equal protection principles, the Supreme Court also suspended further proceedings in defendant‟s case pending finality of the McKee I remand proceedings. The remand proceedings in McKee I are now final. (See People v. McKee (2012) 207 Cal.App.4th 1325, review den. Oct. 10, 2012, S204503 (McKee II).) In McKee II, the Fourth Appellate District affirmed the trial court‟s determination upon remand that the People had met their burden under the equal protection clause to justify treating SVP‟s differently from MDO‟s and NGI‟s. (Id. at p. 1331.) Based on McKee I and McKee II, we reject defendant‟s due process and equal protection challenges to his indeterminate commitment as an SVP. We therefore affirm the judgment in its entirety.