The People v. Smith CA4/1

DISCUSSION

Smith's constitutional argument focuses primarily on whether the amended SVPA

violates equal protection. Smith challenges our decision in McKee II, arguing we

misunderstood and misapplied both the standard of review and the strict scrutiny test.

In McKee I, the Supreme Court held the SVPA is subject to equal protection

analysis because it "treats SVP's significantly less favorably than those similarly situated

individuals civilly committed under other statutes" including MDO's and NGI's.

In Respondent's brief, we grant the People's unopposed request that this court take judicial notice of its prior opinion in People v. Smith (D056391 April 14, 2011) [nonpub. opn.]). (Evid. Code §§ 451, 452, 459.) The Supreme Court remanded in McKee I for an evidentiary hearing on whether disparate treatment for SVP's is justified. The court transferred "grant and hold" cases under McKee I to the Courts of Appeal with directions to vacate their prior opinions and reconsider in light of McKee I. The order expressed a desire to avoid unnecessary multiplicity of proceedings and directed this court to suspend further proceedings pending…