P. v. Emmett
Filed 1/7/14 P. v. Emmett CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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This opinion has not been certified for publication or ordered published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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JESSE WILLIAM
EMMETT,
Defendant and Appellant.
F064874
(Super. Ct. No. 1419232)
APPEAL
from a judgment of the Superior Court of
Stanislaus County. Nancy Ashley, Judge.
Rudy
Kraft, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Michael
P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney
General, for Plaintiff and Respondent.
-ooOoo-
In 2009, Jesse
William Emmett pled no contest to one count of violating Penal Code section
288a, subdivision (c)(1), oral copulation of a person under the age of 14. In 2010, the People filed a petition to have
Emmett declared a sexually violent predator pursuant to
section 6600, et seq. After a jury
trial, Emmett was found to be a sexually violent predator and ordered committed
to the State Department of Mental
Health for an indeterminate term.
(Welf. & Inst. Code, § 6604.)
Emmett asserts the commitment must be vacated for three reasons, none of
which has merit.
First, Emmett asserts
the indeterminate commitment violates his constitutional
right to equal protection of the laws.
(U.S. Const., 14th Amend.) He
preserved his equal protection challenge by raising an objection in the trial
court. Emmett begins his argument with
rejected assertions that the indeterminate commitment violated a defendant’s
right to due process (U.S. Const., 14th Amend.) or the ex post facto clause of
the United States Constitution (U.S. Const., art. I, § 10). (McKee
I, supra, at pp. 1184, 1193, 1195.)
However, when addressing the defendant’s equal protection argument, the
Supreme Court concluded defendants committed under the Sexually Violent
Predator Act are similarly situated for equal protection purposes with
defendants committed under the Mentally Disordered Offender Act and defendants
found to be not guilty by reason of insanity, and sexually violent predators
were treated differently because they received an indefinite commitment. However, such disparate treatment would not
violate the equal protection clause if the People could demonstrate that sexually
violent predators posed a substantially greater risk to society than mentally
disordered offenders or defendants found to be not guilty by reason of insanity
(Id. at pp. 1203, 1207-1208). Accordingly, the Supreme Court remanded the
case to the trial court to provide the People with a chance to demonstrate
justification for imposing on sexually violent predators a greater burden to
obtain release from commitment. (
Shortly after
the opinion in McKee I became final,
the Supreme Court remanded to the appellate courts numerous cases in which it
had granted review, but deferred consideration until McKee I was resolved. This
order stated, in part, “In order to avoid an unnecessary multiplicity of
proceedings, the court is additionally directed to suspend further proceedings
pending finality of the proceedings on remand in McKee …, including any proceeding in the Superior Court of San
Diego County .… ‘Finality of
proceedings’ shall include the finality of any subsequent appeal and any
proceedings in this court.†(See, e.g.,
Supreme Ct. order of May 20, 2010, in case No. S166682.) The clear import of this order was to permit
question of whether the indeterminate commitment of sexually violent predators
violated the defendant’s constitutional right to equal protection of the laws.
The San Diego
Superior Court held a 21-day evidentiary hearing to permit the People the
opportunity to demonstrate the disparate treatment of sexually violent
predators was necessary. McKee appealed
after the trial court concluded there was no equal protection violation. In People
v. McKee (2012) 207 Cal.App.4th 1325 (McKee
II), the appellate court affirmed the trial court’s conclusion that the
People had met their burden to justify the disparate treatment of sexually
violent predators. (Id. at 1348.) The appellate
court’s opinion became final when the Supreme Court denied McKee’s petition for
review on October 10, 2012.
Emmett, in
essence, asserts the decision in McKee II
was wrongly decided, and asks us to “overrule†McKee II by issuing an opinion concluding his right to equal
protection of the law was violated. Emmett
argues the appellate court misunderstood the law and misunderstood the facts.
If the appellate
court in McKee II reached the wrong
result, an issue we are not addressing, the proper venue for evaluating the
issue is the California Supreme Court through a petition for review. (2 Witkin, Cal. Procedure (5th ed. 2008)
Courts, § 329, p. 420.) When the
Supreme Court denied review in McKee II,
the opportunity to challenge the opinion in the state court system ended. This is especially significant in this case
where the Supreme Court had, in essence, designated McKee I as the lead case to address this issue. Undoubtedly, the decision to deny review was approval
of the appellate court’s decision.
Moreover, our jurisdiction
is limited to correcting errors in the trial court, not appellate courts. (Leone
v. Medical Board (2000) 22 Cal.4th 660, 666.; see also Cal. Const.,
art. VI, § 11.) The wisdom of
this limitation is apparent from the arguments in this appeal. Emmett discusses at length his version of the
facts taken in the proceedings that occurred in San Diego County Superior
Court. Since we do not have the record
before us, it is impossible for us to evaluate his assertions. We also note that two other courts in the
Fourth District, People v. McDonald (2013)
214 Cal.App.4th 1367 (McDonald), and
Cal.App.4th 1 (Landau), have
agreed with McKee II, and concluded
there was no violation of the right to equal protection of the laws.
Emmett failed to
litigate the issue of whether the People can justify the disparate treatment of
sexually violent predators, i.e. there are no facts in this record we could evaluate. Accordingly, we reject the assertion that
Emmett’s right to equal protection was violated.
Emmett’s second
argument, as he candidly admits, must also be rejected. Emmett asserts his right to due process and
protection from ex post facto laws was violated as a result of his indefinite
commitment. These claims were rejected
by the Supreme Court (McKee I, supra, 47
Cal.4th at pp. 1184-1195), and we are bound by this authority (
57 Cal.2d 450, 455).
Emmett’s final
argument is similarly lacking in merit.
He asserts that his rights will be violated in the future by changes in
the Sexually Violent Predator Act that will not take effect until January 2014. We reject this argument because it is not yet
ripe. “The ripeness
requirement, a branch of the doctrine of justiciability, prevents courts from
issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that
the proper role of the judiciary does not extend to the resolution of abstract
differences of legal opinion. It is in
part designed to regulate the workload of courts by preventing judicial
consideration of lawsuits that seek only to obtain general guidance, rather
than to resolve specific legal disputes. However, the ripeness doctrine is primarily
bottomed on the recognition that judicial decisionmaking is best conducted in
the context of an actual set of facts so that the issues will be framed with
sufficient definiteness to enable the court to make a decree finally disposing
of the controversy.†(
Coastal Com. (1982) 33 Cal.3d 158, 170.)
Since the law has not yet taken effect, we cannot dispose of an actual
controversy, and there is no specific legal dispute to resolve. Instead, Emmett is arguing that something may
happen to him in the future that might violate his rights. Until such events take place, there is no
dispute to be adjudicated.
DISPOSITION
The judgment is affirmed. The request that we
take judicial notice of the entire record from the trial court in
provide any authority for the request.
_____________________
Franson,
J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Poochigian, J.
name="_ftn1" title="">[1] McDonald and
Fourth District. McKee II was decided by division 1 of the Fourth District. Another case People v. Nguyen, also upheld the Sexually Violent Predator Act to
an equal protection challenge, but the Supreme Court granted review on an
unrelated issue. (People v. Nguyen (2013) 218 Cal.App.4th 1363, review granted Nov. 26,
2013, S213703.)
