P. v. Dickerson
Filed 6/7/13 P.
v. Dickerson CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
DARALD
ALBERT DICKERSON,
Defendant and Appellant.
A135233
(San Mateo County
Super. Ct. No. CIV507112)
The
trial court found Darald Albert Dickerson was a
ordered him to be committed indefinitely to Coalinga State Hospital pursuant to
the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code
section 6600 et seq. On appeal,
Dickerson contends the judgment must be reversed because (1) his trial counsel
rendered ineffective assistance of
counsel by failing to move for dismissal of the petition; and (2) the order
for indefinite commitment violates his constitutional rights to equal
protection and due process, and the constitutional prohibitions against
cruel and unusual punishment. We
find no violation of Dickerson’s constitutional rights, and affirm the
judgment.
BACKGROUND
In 1996, Dickerson
received a state prison sentence of
12 years 8 months following his conviction by plea of five counts of lewd and
lascivious acts upon a child under 14 years old (Pen. Code, § 288, subd. (a))
and one count of possession of a firearm by a felon (Pen. Code, § 12021, subd.
(a)). Near the end of his prison term,
in early 2008, two Department of Mental Health (DMH) evaluators concluded
Dickerson did not meet the statutory definition of an SVP. As a result, Dickerson was released on
parole.
Dickerson was
arrested for allegedly violating his parole on November 1, 2010, and returned
to custody. He was scheduled to be
released on June 29, 2011. However, on
June 28, 2011, the day before his scheduled release date, the Board of Parole
Hearings (BPH) found good cause to place a 45-day hold on Dickerson’s release
to allow the DMH additional time to conduct full SVP evaluations. (§ 6601.3) In granting the 45-day hold, the BPH made the
following finding: “There is good cause
pursuant to . . . § 6601.3 to issue this hold based upon the
following exigent circumstances as presented by DMH: A significant and unanticipated increase in
referrals to DMH, which has precluded timely evaluation of this offender, and
which is beyond DMH’s control.†The DMH
subsequently determined Dickerson met SVP commitment criteria, and, on July 12,
2011, the DMH recommended an SVP commitment petition be filed.
On
July 19, 2011, the
County District Attorney filed a petition against Dickerson seeking his
indeterminate commitment as a sexually violent predator. Attached to the commitment petition were DMH
evaluations prepared by two psychologists, both of whom found Dickerson meets
the SVP commitment criteria. On October
4, 2011, the court found probable cause to believe Dickerson met the commitment
criteria after Dickerson submitted the question of probable cause on the
evaluators’ reports.
On
March 8, 2012, Dickerson provided the court with a written waiver of his rights
to have (and be present for) a contested hearing on the commitment petition and
agreed to submit the matter on the evaluators’ reports and other documents in
the case file. On March 9, 2012, the
court announced it had reviewed the entire file, found Dickerson met the SVP
commitment criteria, and ordered him committed for an indeterminate term to the
custody of the DMH for appropriate treatment and confinement in a secure
facility under section 6604.
On
March 28, 2012, Dickerson filed a timely notice
of appeal from the order adjudging him an SVP and committing him to the
state hospital pursuant to section 6604.
DISCUSSION
Dickerson contends
the order adjudging him an SVP and committing him to the state hospital must be
reversed because (1) his trial counsel’s failure to move for dismissal of the
SVP petition as untimely constituted ineffective assistance of counsel; and
because the order violates (2) his state and federal rights to equal
protection; (3) his Fourteenth Amendment right to due process; and (4) the
constitutional prohibitions against ex post facto laws, double jeopardy, and
cruel and unusual punishment.
A. Ineffective Assistance of Counsel
The
state may only file an SVP commitment petition if the person named in the
petition is “in custody pursuant to his or her determinate prison term, parole
revocation term, or a hold placed pursuant to Section 6601.3, at the time the
petition is filed.†(§ 6601, subd. (a)(2); In re Lucas (2012) 53 Cal.4th 839, 843 (Lucas).) The petition in
this case was filed while Dickerson was in custody on a hold placed under
former section 6601.3. The version
of section 6601.3 in effect at the time provided in relevant part as
follows: “(a) Upon a showing of good
cause, the Board of Prison Terms may order that a person referred to the State
Department of Mental Health pursuant to subdivision (b) of Section 6601 remain
in custody for no more than 45 days beyond the person’s scheduled release date
for full [SVP] evaluation . . . . [¶] (b) For purposes of
this section, good cause means circumstances where there is a recalculation of
credits or a restoration of denied or lost credits, a resentencing by a court,
the receipt of the prisoner into custody, or
equivalent exigent circumstances which result in there being less than 45
days prior to the person’s scheduled release date for the full evaluation
described in subdivisions (c) to (i), inclusive, of Section 6601.â€
Here,
the BPH made a finding of good cause based on the asserted fact there had been
a significant, unanticipated increase in referrals to the DMH which was beyond
the BPH’s control and which precluded timely evaluation of the offender. Dickerson contends this explanation of good
cause was not the equivalent of any of the exigent circumstances identified in
former section 6601.3, subdivision (b), and was therefore not a permissible
basis for granting a 45-day hold.
Dickerson further maintains his unlawful custody based on an improper
hold was not attributable to any good faith mistake of fact or law under
section 6601, subdivision (a)(2).
name="_ftnref3" title="">[3] According to Dickerson, his trial counsel’s
failure to move for dismissal of the SVP petition, despite the absence of good
cause for the 45-day hold, deprived him of his right to effective assistance of
counsel.
To
demonstrate ineffective assistance of counsel, Dickerson must show (1) his
counsel’s failure to make a motion to dismiss on the stated grounds was
deficient under prevailing professional norms; and (2) but for counsel’s
failings, it is reasonably probable the result of the proceeding would have
been more favorable to him. (See
668, 687–688, 694; People v. Seaton (2001) 26 Cal.4th 598, 666.)
In
our view, the dispositive question is whether it is reasonably probable a
motion to dismiss based on the inadequacy of the BPH’s statement of good cause
would have succeeded. In analyzing this
question, we note Dickerson relies on the face of the 45-day hold order. He does not cite to any evidence in the record
contradicting the factual basis for the BPH’s “good cause†assertions in that
order. For purposes of our analysis, we
must therefore assume the DMH did
experience a significant, unanticipated increase in referrals in the relevant
time period, such increase was not
within the DMH’s control, and this factor did
actually preclude the DMH from conducting a timely SVP evaluation of Dickerson
absent a hold.
To
show these facts did not amount to an “equivalent exigent circumstance[]†for
purposes of section 6601.3, subdivision (b), Dickerson relies on
The petitioner in Small was
scheduled to be released from prison on a Sunday but the Department of
Corrections and Rehabilitation (Department of Corrections) kept him in custody
so the district attorney could file an SVP petition the following Monday. (Id.
at p. 304.) The trial court
dismissed the petition, and the People sought a writ. (Id.
at p. 306.) The Court of Appeal
affirmed the dismissal, finding Small was in unlawful custody when the SVP
petition was filed, and the People failed to show the delay in filing the
petition resulted from a good faith mistake of fact or law. (Id.
at p. 304.) Specifically, the court
in Small rejected the good faith
mistake defense offered by the DMH that it had been overwhelmed with a more
than 10-fold increase in requests for SVP evaluations at the time, due to voter
approval of an initiative a few months earlier.
(Id. at pp. 305–306.) The Court of Appeal responded to this
argument in relevant part as follows:
“The trial court found that the unlawfulness of Small’s custody resulted
from a delay on the part of [the DMH] and not from either a legal or factual
mistake. Notably, the People did not challenge this finding and our review of
the record does not show any error in this regard. Rather,
the Department of Corrections waited until a month before Small’s release date
to refer him to [the DMH]
45-day hold period. [¶] Although the People presented evidence showing
that the passage of Jessica’s law in 2006 greatly increased the number of
referrals to [the DMH] . . . , it did not explain the initial
delay in referring Small to [the DMH] for evaluation or the delay in obtaining
the evaluations (i.e., the number of inmates with earlier release dates than
Small). The increased workload does not
amount to a mistake of law or fact and is something that the Department of
Corrections and [DMH] could have anticipated and prepared for.†(Id.
at pp. 309–310, italics added.)
Dickerson
maintains “there is no principled basis on which to distinguish
the evaluation period, does not come within section 6601.3’s definition of
good cause. He further argues the BPH’s
belief that increased workload could constitute good cause under section 6601.3
cannot be considered a good faith mistake of fact or law in light of
order was issued in this case, had found such considerations to be
insufficient. We do not find
First,
Small did not involve an
interpretation of the good cause requirement of section 6601.3. Small’s custody had already been extended
under section 6601.3, but he was held over for two days after that period had
expired. (Small, supra,
159 Cal.App.4th at p. 305.)
what constitutes a good faith mistake resulting in a tardy petition under
section 6601. In fact, the good cause
provision in issue in this case, subdivision (b) of section 6601.3, was not
even enacted until two years after Small
was decided. Second, the Court of Appeal
in Small based its holding in
substantial part on the fact, conceded by the People, that the increased
workload in issue in the case did not
explain the delay in referring Small for evaluation or the DMH’s delay in beginning the evaluation until near the end
of the 45-day hold period. (
law. In any event, the court found as a
factual matter the Department of Corrections
and DMH could have anticipated and prepared for the increased workload. As discussed ante, there is no basis in the record before us to find the BPH or
DMH acted negligently in respect to scheduling Dickerson’s evaluation, or could
have done anything to avoid the necessity for a 45-day hold. For these reasons, we do not consider
Dickerson’s proposition that, as a matter of pure statutory interpretation,
unanticipated workload factors can never constitute good cause for a 45-day
hold under section 6601.3, subdivision (b).
While
Dickerson reads too much into Small,
he does offer a linguistically plausible interpretation of section 6601.3,
subdivision (b). He notes each of the
specific instances of good cause mentioned in the paragraph involves a decision
not within the control of the corrections system or the DMH either moving up a
potential SVP’s release date or setting an abbreviated custody term, resulting
in the DMH having less than 45 days to complete its evaluation. From this, Dickerson argues the phrase
“equivalent exigent circumstances†should be construed narrowly to mean “an
exceptional development, outside the control of the DMH and corrections
officials, that reduces the time available and makes it impossible to complete
the SVP evaluation before the inmate’s scheduled release date.†Chronic staffing shortages, for example,
would not meet this definition. (Cf.
1163–1165 [chronic trial court calendar congestion is not an exceptional
circumstance excusing the failure to timely bring a criminal defendant to trial
for purposes of Pen. Code, § 1382].)
Dickerson’s
proffered construction of “equivalent exigent circumstances†finds support in
certain general principles of statutory interpretation. Under the principle of noscitur a sociis (it is known by its associates), “ ‘a court
will adopt a restrictive meaning of a listed item if acceptance of a more
expansive meaning would make other items in the list unnecessary or redundant,
or would otherwise make the item markedly dissimilar to the other items in the
list.’ †(People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294,
307, quoting Moore v. California State
Bd. of Accountancy (1992) 2 Cal.4th 999, 1012.) The use of the word “equivalent†in the
statute arguably reinforces that exigent circumstances qualifying as good cause
must not be dissimilar from the listed items.
Limiting such circumstances to decisions outside of the control of the
corrections authorities or the DMH that unexpectedly compress the inmate’s time
in custody to less than 45 days would fit these requirements. Delays in conducting the required evaluations
due to lack of resources, without any compression of time in custody, would not
be “equivalent†to any of the items on the list.
While
Dickerson’s view of statutory intent is plausible, the statute’s meaning is not
plain or transparent from its text, and Dickerson points us to no legislative
history shedding light on the purpose or scope of the 2010 amendment. Dickerson’s conclusions depend on a
relatively sophisticated analysis of the language and context of the
amendment. He devotes nearly nine pages
of his opening brief to performing that analysis and explaining why the BPH’s
interpretation of the statute is wrong.
But whether right or wrong, the BPH’s interpretation was not an
unreasonable one. It is not unreasonable
to interpret the language, as the BPH did, to encompass any unanticipated event
or condition not within the DMH’s control that precludes the DMH from
completing a full SVP evaluation of an inmate before that inmate’s release
date—including an unanticipated increase in workload.
those enumerated in paragraph (b) in the sense that it is unexpected, not
within the DMH’s control, and reduces that time available for the evaluation to
under 45 days. It must be stressed at
the time section 6601.3, subdivision (b)(2) was invoked by the BPH in this case
there was no controlling judicial interpretation of the new statutory
language. Small, as we have explained, did not concern the good cause
requirement and predated the definition of good cause adopted by the
Legislature in 2012. Contrary to
Dickerson’s contention, there was no reason for the BPH to treat
controlling, precedent.
name="_ftnref6" title="">[6]
In
our view, there was no reasonable probability Dickerson would have prevailed on
a motion to dismiss the petition. A
dismissal was not warranted because the 45-day hold in this case, even if
unauthorized by statute, was based on a good faith mistake of law on the part
of the DMH and BPH. There was no
controlling precedent negating the DMH’s interpretation of the 2010 amendment
to section 6601.3, or any other evidence of intentional or negligent wrongdoing
on the part of the BPH and DMH in placing the hold. (See In
re Smith (2008) 42 Cal.4th 1251, 1259–1261 [affirming § 6601, subd.
(a)(2) was intended to apply to mistakes of law causing extended custody where
the relevant statute was not explicit and no controlling judicial decision was
directly on point]; People v. Hubbart
(2001) 88 Cal.App.4th 1202, 1229 [SVP commitment resulting from unlawful
custody was caused by a good faith mistake of law where corrections officials
relied on a regulation that was apparently valid, and there was no controlling
judicial or administrative decision directly on point]; Langhorne v. Superior Court (2009) 179 Cal.App.4th 225,
240–241 [the absence of any published decision construing certain 2006 amendments
to the SVPA supported a finding the People had made a good faith mistake of law
in misapplying them].)
For
these reasons, Dickerson fails to demonstrate he is entitled to a reversal of
the judgment based on ineffective assistance of counsel.
B. Equal Protection
In
considered a claim that civilly committing an SVP for an indeterminate term and
placing the burden on the committed person to obtain release violates the person’s
state and federal constitutional right to equal protection. (Id.
at p. 1184.) The court found “the state
ha[d] not yet carried its burden of demonstrating why SVP’s, but not any other
ex-felons subject to civil commitment, such as mentally disordered offenders,
are subject to indefinite commitment.†(
It remanded the matter to the trial court to permit the People the
opportunity to justify the differential treatment in accord with established
equal protection principles. (
On remand, after an extensive evidentiary hearing, the trial court found
the People met their burden under McKee I
to justify the disparate treatment of SVP’s.
(People v. McKee (2012) 207
Cal.App.4th 1325, 1330, review den. Oct. 10, 2012, S204503 (
II affirmed the trial court’s determination, and the Supreme Court denied
review. (Id. at p. 1350.)
Dickerson contends McKee II
was wrongly decided, and the indeterminate commitment imposed in this case
should be reversed and the matter remanded to the trial court for further
proceedings in accordance with McKee I.
We
note first that when the Supreme Court decided McKee I, it had a series of cases involving equal protection
challenges to the SVPA on “grant and hold†status. It transferred these cases back to the Courts
of Appeal with directions to vacate their prior opinions and reconsider the
issue in light of McKee I. The transfer orders provided in relevant
part: “In order to avoid an unnecessary
multiplicity of proceedings, the court is additionally directed to suspend
further proceedings pending finality of the proceedings in McKee [I]
. . . . ‘Finality of the proceedings’ shall include the finality
of any subsequent appeal and any proceedings in this court.†(See, for example, the Supreme Court transfer
orders in People v. Johnson, review
granted Aug. 13, 2008, S164388; People v.
Riffey, review granted Aug. 20, 2008, S164711; People v. Boyle, review granted Oct. 1, 2008, S166167; and
13, 2010, S178455.)
title="">[7]
While
we are not bound by the Supreme Court’s transfer orders in these cases or its
denial of review in McKee II, we also
cannot disregard its clear message to the state’s trial and appellate courts
that McKee II’s factual and legal conclusions on the equal protection claim should
be treated as binding unless and until a higher court directs otherwise, and
duplicative proceedings addressing those issues were to be avoided. Dickerson invites us to discount the Supreme
Court’s guidance, which we decline to do.
In any event, we reject Dickerson’s position McKee II misapplied the strict scrutiny test and utilized an overly
deferential standard for reviewing the evidence presented in the trial
court. We find McKee II properly adhered to the form of review required by the
Supreme Court in McKee I. (See McKee
I, supra, 47 Cal.4th at pp. 1206,
1210–1211.) Having reviewed the
evidentiary showing set out in McKee II,
we find it justifies the disparate treatment upon which Dickerson bases his
equal protection claim.
name="_ftnref8" title="">[8] It is unnecessary for us to remand this case
for an evidentiary hearing to plow the same ground again. (See People
v. McKnight (2012) 212 Cal.App.4th 860, 862, review den. Mar. 13, 2013
[agreeing with McKee
finding it applied to all SVP’s].)
C. Other Constitutional Claims
As
Dickerson properly concedes, all of his other constitutional challenges to the
SVPA—violation of his Fourteenth Amendment right to due process, as well as the
constitutional prohibitions against ex post facto laws, double jeopardy, and
cruel and unusual punishment—were considered and rejected in
Under Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, we are bound by those determinations,
and must reject his claims.
DISPOSITION
The
judgment is affirmed.
_________________________
Margulies,
Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
name="_ftn1" title="">[1]
All statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
name="_ftn2" title="">[2]
The statute was amended nonsubstantively in 2012 to update the names of the
agencies mentioned. (Stats. 2012, ch.
24, § 140, p. 1034.)
