P. v. Barbour

1
Filed 5/6/10 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,
Plaintiff and Respondent,
v.
ROBERT SEAN BARBOUR,
Defendant and Appellant.
C061291
(Super. Ct. No.
MHO02001)
In this appeal, defendant Robert Sean Barbour challenges
the constitutionality of indeterminate recommitment proceedings
for sexually violent predators (SVP’s). The California Supreme
Court’s recent decision in People v. McKee (2010) 47 Cal.4th
1172 (McKee) is dispositive. Accordingly, we reject defendant’s
due process claim but remand for further consideration of equal
protection concerns.
FACTS AND PROCEEDINGS
Given the issues raised in defendant’s appeal, a detailed
description of the underlying facts is unnecessary. Defendant
was convicted in 1993 and 1995 of committing lewd and lascivious

-- 1 of 7 --

2
acts with a child under the age of 14 (Pen. Code, § 288, subd.
(a)), and in 2008, the Sacramento County District Attorney’s
Office filed a petition to extend defendant’s commitment as an
SVP.
The petition alleged defendant’s convictions and further
alleged that two psychologists had evaluated defendant and found
him to be an SVP.
At trial, psychologists diagnosed defendant with two mental
disorders, pedophilia and fetishism. They testified that
defendant had a substantial, well-founded risk of reoffending
and they did not believe defendant could control his behavior.
A psychologist testifying for defendant challenged the adequacy
of the evaluations to predict whether defendant could control
his behavior or whether he would reoffend, but he conceded that
he had not met or evaluated defendant.
The jury found the allegations in the petition to be true,
and the trial court ordered defendant committed for an
indefinite term as an SVP.
This appeal followed.
DISCUSSION
Defendant contends that the indeterminate commitment under
the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code,
§§ 6600 et seq. [unspecified section references that follow are
to the Welfare & Institutions Code) violates due process and
equal protection guarantees. The recent California Supreme
Court decision in McKee resolves both claims.

-- 2 of 7 --

3
I
Due Process Claims
Defendant contends that the SVPA “creates an unacceptable
risk that a person committed under the Act who no longer
qualifies as a sexually violent predator will have his
commitment continued in violation of his right to due process.
In addition, the mechanisms for judicial review of defendant’s
confinement under sections 6605 and 6608 are not
constitutionally adequate and a person committed under the Act
bears the burden of proof by a preponderance of the evidence in
order to be released under section 6608.”
Under section 6605, the Department of Mental Health (DMH)
can file a petition for conditional or unconditional release if
it determines that the individual no longer meets the definition
of an SVP or can be released to a less restrictive alternative.
A petition under this section can be made only by DMH. (§ 6605,
subd. (b).) If the state opposes the release, it must prove
beyond a reasonable doubt that the committed person remains an
SVP.
An individual can petition for release without DMH
authorization (§ 6608). In this hearing, the petitioner bears
the burden of proof by a preponderance of the evidence.
(§ 6608, subd. (i).)
In McKee, the petitioner raised the same claim that
defendant makes here, namely, that due process is violated by
the fact that his commitment is indefinite and that it is his

-- 3 of 7 --

4
burden to show by a preponderance of the evidence that he is no
longer an SVP. (McKee, supra, 47 Cal.4th at pp. 1188-1191.)
The McKee court rejected that claim. (Id. at p. 1191.) Relying
on Jones v. United States (1983) 463 U.S. 354 [77 L.Ed.2d 694],
a case involving commitment proceedings for those adjudged not
guilty by reasons of insanity, McKee concluded that “the
requirement that [an individual], after an initial commitment,
must prove by a preponderance of the evidence that he is no
longer an SVP does not violate due process.” (47 Cal.4th at p.
1191.) We are bound by that decision. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455.)
McKee also rejected the claim, identical to one raised here
by defendant, that the commitment statutes are unconstitutional
because they authorize an appointment of experts only when DMH
authorizes an individual to petition for release (§ 6605, subd.
(d)), not when the individual files a petition without DMH
approval. (§ 6608, subd. (a).) (McKee, supra, 47 Cal.4th at
pp. 1192-1193.) The court acknowledged that there was no
explicit provision to provide experts when an individual
petitions for release, but found that the statutory language of
the SVPA and legislative history evidenced an intent to appoint
experts to insure that a commitment lasts no longer than
necessary. (Ibid.) The court concluded, “Given that the denial
of access to expert opinion when an indigent individual
petitions on his or her own to be released may pose a
significant obstacle to ensuring that only those meeting SVP
commitment criteria remain committed, we construe section 6608,

-- 4 of 7 --

5
subdivision (a), read in conjunction with section 6605,
subdivision (a), to mandate appointments of an expert for an
indigent SVP who petitions the court for release.” (Id. at p.
1193.) Consequently, the court concluded, there was no
violation of due process. (Ibid.)
In sum, McKee disposes of defendant’s due process claims.
The SVP commitment process does not violate due process
guarantees.
II
Equal Protection Claims
Defendant contends that his equal protection rights were
violated because SVPs are treated less favorably than those
committed under other statutes, such as mentally disordered
offenders (MDO’s) (Pen. Code, § 2960) and those found not guilty
by reason of insanity (NGI’s) (Pen. Code, § 1026 et seq.). The
same claim was raised in McKee (47 Cal.4th at p. 1200-1201,
1207) and the court concluded that the prosecution had not met
its burden of showing that these different treatments were
justified. (McKee, at pp. 1201-1207.)
The McKee court found that SVP’s and MDO’s are similarly
situated for equal protection purposes because both are
involuntarily committed to protect the public from individuals
who are dangerously mentally ill. (McKee, supra, 47 Cal. 4th at
p. 1203.) However, SVP’s are given “indeterminate commitments
and thereafter have the burden to prove they should be released
(unless the DMH authorizes a petition for release). In

-- 5 of 7 --

6
contrast, an MDO is committed for one-year periods and
thereafter has the right to be released unless the People prove
beyond a reasonable doubt that he or she should be recommitted
for another year. There is therefore no question that, after
the initial commitment an SVP is afforded different and less
favorable procedural protections than an MDO.” (Id. at
p. 1202.) The court found similar equal protection problems
with the commitment procedures for NGI’s. (Id. at p. 1207.)
The court determined that there was no proof to
substantiate the claim that “the risks involved in erroneously
freeing SVPs are substantially greater than the risks involved
with freeing MDO’s,” (McKee, supra, 47 Cal.th at pp. 1204-1207),
but added, “We do not conclude that the People could not meet
its burden of showing the differential treatment of SVP’s is
justified. We merely conclude that it has not yet done so.”
(Id. at p. 1207.) The Court therefore remanded to the trial
court to give the People an opportunity to “demonstrate the
constitutional justification for imposing on SVP’s a greater
burden than is imposed on MDO’s and NGI’s in order to obtain
release from commitment.” (Id. at pp. 1208-1209.)
No such evidence was introduced in the case before us. In
accordance with McKee, we therefore remand to the trial court
for further proceedings.
DISPOSITION
The judgment is reversed and remanded with directions to
the trial court to hold proceedings to resolve the issue of

-- 6 of 7 --

7
whether the People can demonstrate a justification for treating
SVP’s differently than MDO’s and NGI’s.
HULL , Acting P. J.
We concur:
ROBIE , J.
BUTZ , J.

-- 7 of 7 --