Kisling

Richard Kisling appeals from a judgment committing him to the State Department of Mental Health (DMH) for an indefinite term following a jury finding that he was a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (Act; Welf. & Inst. Code, § 6600 et seq.). 1 Kisling contends the trial court failed to properly instruct the jury about a 1998 jury finding that he was not an SVP, and also failed to adequately inquire about potential juror misconduct. In addition, Kisling challenges the Act, asserting violations of due process, the ex post facto clause, cruel and unusual punishment, double jeopardy and equal protection. He further contends that Proposition 83, which amended the Act in 2006, violated the single-subject rule for ballot initiatives.

We reject all of Kisling’s contentions except one. In People v. McKee (2010) 47 Cal.4th 1172 [ 104 Cal.Rptr.3d 427 , 223 P.3d 566 ] (McKee), the California Supreme Court determined that the Act, as amended in 2006, may violate equal protection because SVP’s are treated less favorably than mentally disordered offenders (MDO’s) and those who have been adjudged not guilty of a crime by reason of…