People v. Swain CA5

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

2 whether the People [could] prove a…