P. v. Landau
Filed 2/7/13 P. v. Landau CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
SIDNEY NATHANIEL LANDAU,
Defendant and
Appellant.
G042008
(Super. Ct.
No. M9094)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Patrick Donahue, Judge.
Affirmed.
Rudy Kraft, under
appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr.,
and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Bradley A.
Weinreb and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff
and Respondent.
* * *
Prior to being released
on parole after his latest convictions for sex offenses committed on a child
under 14 years of age, the Orange County District Attorney filed a petition to
have appellant Sidney Nathaniel Landau committed as a sexually violent predator
(SVP) under the Sexually Violent Predators
Act (SVPA), Welfare and Institutions Code section 6600 et seq.
petition, the third jury to hear the matter found appellant met the criteria
for commitment as an SVP. Appellant
raises a multitude of issues on appeal, including inter alia, that he was
denied due process when he was not brought to trial in a timely manner, he was
denied due process when his initial SVP evaluators used unlawful underground
regulations, he was denied effective assistance of counsel, the court should
have suppressed evidence obtained in violation of his Fourth Amendment right to
be free from unreasonable searches and seizures, the court prejudicially erred
when it ordered appellant to submit to mental examinations by experts retained
by the district attorney, and the present SVPA violates equal protection, due
process, ex post facto, and double jeopardy.
While the appeal was
pending, the California Supreme Court decided People v. McKee (2010) 47 Cal.4th 1172 (McKee I). The court found
SVP’s are similarly situated with individuals found not guilty by reason of
insanity (NGI’s) and mentally disordered offenders (MDO’s) for equal protection
purposes. The court then remanded the
matter to the trial court to hold a hearing to determine whether the People
could justify “the differences between SVP and NGI commitment statutes.†(Id.
at p. 1207.) We suspended further
proceedings in this appeal pending the remand in McKee I and the finality of an appellate court decision reviewing
the hearing to be held on remand.
The San Diego Superior
Court found the People carried their burden and found no
finding (People v. McKee (2012) 207
Cal.App.4th 1325, 1350 (McKee II),
review. After McKee II became final, we asked for and obtained supplemental
briefs from the parties on the equal protection issue. We now affirm.
I
PROCEDURAL AND FACTUAL
BACKGROUND
A. Procedural
Background
Prior
to appellant’s parole release date, the California Department of Corrections
requested the State Department of Mental Health (DMH) to evaluate appellant for
purposes of determining whether he qualified as an SVP. Philip Trompetter, Ph.D, and Jon French,
Ph.D, each concluded appellant was an SVP and DMH referred the matter to the
Orange County District Attorney to consider filing a petition to commit appellant
pursuant to the SVPA.
The district attorney
filed the petition on October 19, 2000.
A declaration attached to the petition averred that appellant: (1) was convicted on May 5, 1982, of two
counts of orally copulating a child under 14 years of age (Pen. Code, § 288a,
subd. (c)), David D., and sentenced to six years in prison; and (2) was
convicted on June 10, 1988, of 18 counts of committing a lewd act on a child
under 14 years of age (Pen. Code, § 288, subd. (a)), including orally
copulating Gregory S., and was sentenced to 17 years in state prison. The declaration further stated two
independent mental health professionals evaluated appellant and determined he
has a diagnosed mental disorder and is likely to engage in acts of sexual
violence without appropriate care and custody.
Appellant appeared in
court with counsel on November 9, 2000.
Eight days later he waived his right to a probable cause hearing. The court set the trial for March 26, 2001. From March 26, 2001, until May 2006 a trial
date was set and vacated a number of times, but mostly the matter was continued
time and again without setting a trial date.
At least 16 of the continuances were at the request of appellant’s
counsel or stipulated to by counsel.
During this same time period, appellant had a number of attorneys,
appointed and retained. One of
appellant’s eventual trial attorneys, Leonard Levine, substituted in as counsel
of record on June 27, 2003. His other
trial attorney, Michael Aye, appeared later.
The matter was eventually
scheduled for trial in November 2005. On
November 4, 2005, Deputy District Attorney Andrew Do informed the court an
expert on the case had changed his opinion, a “recent development†in the case,
and that it was therefore necessary to continue the trial. On December 12, 2005, Do asked the court to
vacate the trial date and to set the matter for a January 13, 2006
pretrial. Defense counsel waived time
for trial.
The first trial on
appellant’s case did not begin until June 6, 2006, when the court ruled on a
number of preliminary evidentiary issues.
In the interim, appellant made motions for immediate assignment for
trial or dismissal of the petition for lack of a timely trial. The motions were denied.
tried the matter for the People. On June
21, 2006, the court declared a mistrial when the jury was unable to reach a
verdict, having split 11 to one for finding the petition not true. A second trial was scheduled for August 14,
2006.
On July 3, 2006, Burke
filed a motion to require appellant to participate in interviews for updated
SVP evaluations. (§ 6603, subd.
(c)(1).) The deputy district attorney
also requested an order requiring appellant to submit to an interview by the
district attorney’s retained expert, Dr. Arnold. The court granted the requests over
appellant’s opposition.
On
August 14, 2006, the date set for trial, the district attorney’s office
requested a continuance to further prepare for trial, and filed an application
for an order requiring appellant to show cause why the district attorney should
not be permitted to access, copy, and review materials appellant mailed to
himself and addressed to a location in Orange, California. The district attorney had come into
possession of 18 sealed boxes of material appellant mailed to himself from the
state hospital, and wanted to search the boxes before going to trial. The boxes were mailed to Donald Galbraith’s
business. The district attorney alleged
the boxes were obtained with Galbraith’s consent. Appellant opposed the district attorney’s
requests. His attorney asserted the
boxes were appellant’s property, that an order to show cause was not the proper
procedure for searching the boxes, and that the district attorney should
proceed by way of a search warrant or a subpoena duces tecum. On September 1, 2006, the court held the
boxes were properly seized and ordered the district attorney to open the boxes,
inspect, copy, and use any materials found in the boxes.
The case was sent out
for retrial on December 4, 2007, but appellant filed a Code of Civil Procedure
section 170.6 challenge to the assigned judge, and the case continued to
trail. On December 11, 2007, appellant
filed another motion to dismiss for lack of a timely trial. That motion was denied the next day. The second trial finally began on December
18, 2007, when Judge King started pretrial motions. Deputy District Attorney Amy Pope tried the
case on behalf of the People. Jury
selection began on January 2, 2008, and another mistrial was declared on
February 6, 2008, when the second jury was unable to reach a verdict.
Yet another deputy
district attorney, Dan Wagner, was assigned to appellant’s matter after the
second mistrial. On March 17, 2008, both
sides answered ready for the third trial.
Wagner also moved to for an order directing appellant to submit to
mental evaluations by his retained experts, Drs. Veronica Thomas and Park
Dietz. The court found good cause to
reopen discovery and for one mental health evaluation. In May 2008, appellant again made a motion to
dismiss and the court denied it. The
case was not assigned to a trial court until June 23, 2008, when it was
transferred to Judge Donahue’s courtroom.
Once the case was assigned out for trial, appellant again unsuccessfully
moved to dismiss the petition. Jury
selection began on June 30, 2008.
Appellant’s motion to exclude evidence obtained as a result of the
search of defendant’s sealed boxes was denied.
B
Facts from the Third Trial
The sordid details of appellant’s
underlying convictions, uncharged molestations, and conduct whereby he groomed
young boys to have sex with, as well as his actions to ingratiate himself to
boys’ parents to allow him greater access to his victims, are not important to
the issues presented in this appeal. As
a result, these facts are not set forth in great detail. The short version is that appellant
repeatedly molested a number of boys, including Jerry T., Scott C., Sid S., and
David D., and Greg S. In 1982, he pled
guilty to two counts of orally copulating a child under the age of 14 (David
D.) and in 1988, he pled guilty to 18 counts of lewd acts with a child under
the age of 14 (Greg S.). Appellant’s
trial strategy was to admit his past, but urge the jury to accept that because
of age and ill health he is not likely to reoffend.
Appellant, who was 69
years old at the time of trial, began taking Prozac for depression in 1993,
after suffering a heart attack. He
stopped taking it in 2000 when he was prescribed Paxil in its place. Appellant was treated for prostate cancer in
2000. In 2004, he had a pacemaker
implanted. These health concerns aside,
appellant stretches, does crunches, pushups and walks up to 10 to 15 miles a
day while at the hospital.
Appellant testified he no
longer has “the libido anymore for sex . . . .
So it’s all dead and gone.†He
said he has zero sex drive “at the moment.â€
According to appellant, the hospital staff encouraged him to possess
hardcore pornography in the hospital. He
subscribed to a hardcore pornography magazine in 2003, so he could masturbate
to it because he “was changing from children.â€
He said he needed to stop thinking about children while masturbating.
In December 2003,
appellant sent a box of his belongings to his brother and sister-in-law. She threw it away because it contained
pornography. Between 2003 and 2006,
appellant mailed 18 boxes of belongings he could not keep in the hospital to
the Galbraith address. The boxes
contained more than 45,000 articles and pictures. Included were articles on intergenerational
daycare centers, setting up a babysitting business, going to Disney World,
where to buy toys wholesale, and children getting lost at water parks. He said he was interested in the last article
because it discussed locator bracelets and he thought he could use a locator if
he got a dog.
title="">[3] He also had an article about a boy who
exposed himself over the Internet.
Appellant clipped
pictures for other patients interested in children. He traded them for snacks. Photographs of children were in the 18
boxes. One included a boy lying on a bed
in a pair of briefs. Another showed
Russell Crowe kissing a boy on the forehead.
According to appellant, those photographs were meant for other patients
and were mistakenly included in the boxes.
In one of the journals
he mailed with the boxes, appellant wrote about his dreams. The December 25, 2003 entry read: “Had vivid dream of what I could only surmise
was about Greg when he was very young, I first met him and his mom was even in
the dreams.†The January 29, 2004 entry
read: “Had a weird sleepless night. . .
. Had strange dreams of Adrays local
parking area and two kids I met who propositioned me and took me to their
home. Really weird combination.â€
Appellant analogized pedophilia
to alcoholism. He said he does not feel
he is cured of pedophilia, but he believes he no longer meets the legal
definition because he does not have an “intense desire for the children.†He said that over the last three years or
more he has not had any sexual desire because of his heart attack, his
inability to have an erection, his awareness of his own mortality, and because
radiation treatment has made ejaculation painful.
Appellant believes that
as long as he stays away from children, he will not reoffend. He hopes that having an adult with him when
he goes to Disneyland will reduce any risk or danger presented by his presence
at the park.
Appellant said he will
move to New York if released and will live with his brother and sister-in-law,
where he will be treated by Dr. Friedmutter.
doctor, but he did receive a letter from Dr. Friedmutter suggesting treatment
six days a week. Appellant said he would
only go to places approved by the doctor.
Appellant added that he does not see any harm in going to public places
where children are present because he never molested strangers.
Dr. Deitz, a forensic
psychiatrist, was retained by the district attorney to evaluate appellant. His evaluation relied upon the interview he
conducted with appellant, a personality assessment inventory given to
appellant, mental health evaluations prepared as far back as 1982, photographs,
legal reports, parole reports, letters written by appellant, and appellant’s
prior testimony. He stated his role was
to assess whether appellant would reoffend.
The doctor diagnosed
appellant with two mental disorders: pedophilia and Asperger’s disorder. Pedophilia requires that over a period of six
months, “recurrent, intense sexually arousing fantasies, sexual urges or
behaviors involving sexual activity with a pre-pubescent child or children have
characterized this patient.†The doctor
concluded appellant is a pedophile based upon statements appellant made to
other evaluators acknowledging his attraction to boys, his placing the
responsibility for the behavior on the boys, going out of his way to purchase
child pornography from more than one mail order house while on parole for child
molestation, and the fact that appellant photographed two of his victims. Deitz said pedophilia is not curable.
He explained that the
behavior of a pedophile is similar to that of a normal individual, except that
the object of desire is a child. In
other words, a pedophile enjoys conduct ranging from mere touching to more
intimate connections, “all of those kinds of behaviors that adults will do with
their consenting adult partners,†including digital penetration and giving oral
sex. As a result, a pedophile who cannot
get an erection may still become aroused and interested in a child. As to appellant’s claim that he is now
asexual, the doctor stated, “I think it’s clearly the case that interest
diminishes, abilities diminish, these things do change with age. The idea of becoming completely asexual I
find somewhat suspicious for someone who had earlier been quite sexual.†The doctor said the most telling information
about appellant’s level of fitness comes from his ability to exercise as much
as he does. Appellant is “quite fit and
fit beyond most men his age.â€
The doctor said
appellant’s Asperger’s is disquieting because people with Asperger’s tend to
view others as objects and lack empathy.
Lack of empathy makes it easier for a pedophile to reoffend. Appellant’s clipping pictures of children to
trade with other patients tends to show he views the children in the
photographs as objects.
Deitz concluded
appellant poses a “substantial, serious, well-founded risk to engage in
sexually violent predatory criminal behavior as a result of his mental disorder
if . . . released into [the] community.â€
He stated a number of reasons for his conclusion.
In 2006 appellant
testified, “I know I am a pedophile and I want treatment,†but he had not taken
advantage of the opportunity to receive treatment prior to or after his
testimony. Cognitive behavior therapy is
effective, but requires a willingness on the part of the patient to look at
oneself and behavior. Deitz said a
treated pedophile should realize what he has to do to avoid taking the first
step down the path of reoffending and appellant lacks that thought process
because he thinks it is enough to plan to stay away from children. A pedophile has to recognize that unplanned
things can happen when they come in contact with children.
One method of treatment
is the use of selective serotonin reuptake inhibitor antidepressants such as
Prozac, which have a side effect of decreasing libido. Two weeks before trial, appellant told Dr.
Dietz he stopped taking Paxil because he wanted to feel everything. This is a concern because a side effect of
the medications can be a reduction of libido.
In 2000, appellant told Dr. French the medication significantly reduced
his libido. Deitz said, “It’s a
significant concern to me that a period of time during which he says he’s had
decreased sexual interest, desire, urge and function, he’s been on a group of
medications that can cause that to occur.
And now just as he gains confidence at being able to become free, he
stops taking the medication that might be causing those effects in him and that
he said previously had done so.†The
doctor said that one possibility for appellant’s decision is that he wants to
give “free reign to his libido because he knows he’s getting out.â€
Libido and the ability
to have an erection are two different things.
Both, however, could be affected by the subjects of two of appellant’s
clippings: an ad for Viagra (for
erectile disfunction) and an ad for testosterone (for libido). Dietz said appellant’s physical fitness and
the articles he saved evidence a continuing interest in sex.
Also of concern to the
doctor was the nudist catalog found in the boxes appellant sent to the
Galbraiths. Appellant used similar
pornography with boys in the past.
Another concern involved the fact that appellant kept an article on the
vulnerability of boys without father figures and their being more
accessible. Additionally, the doctor
found appellant’s desire to have a dog constituted a red flag given his past
use of a dog as a means of acquiring victims.
He analogized it to “the man who cruises for rape victims by prowling at
midnight — going out and prowling at midnight.
It’s a technique that’s been familiar in the past for finding a victim.â€
Contrary to appellant’s
statement that he is not a risk to reoffend because he has will power and does
not want to reoffend, Deitz said appellant over simplifies the issue to
avoiding children and does not have the coping skills necessary when he does
see children. Punishment has not
deterred appellant in the past and probably will not in the future.
Deitz said appellant’s
plan for release is missing graduation from an effective sex offender treatment
plan that included reeducation and relapse prevention, and a support system
with professional supervision and support, including periodic assessments by a
specialist. For postrelease treatment to
be successful, appellant would need to be motivated to change. “He needs to see that there is a problem and
in need of solution for that to be useful.â€
Deitz stated an additional
apprehension is the fact that appellant has expressed the concern that he does
not want to die alone and stated a desire to have a female partner, but was
worried about satisfying her sexually.
However, the drugs that can help him satisfy a woman also put him at
risk for engaging in the conduct that results in reoffending. Appellant’s desire to not be alone was also a
theme in his past relationships with boys.
He once stated the problem with boys is that they grow up and move
away. Considering appellant’s statement
that he only expects to life another five years, that could mean a boy growing
up and moving away may no longer be viewed by appellant as a problem.
Dr. John Messenger
specializes in cardiology and internal medicine. He reviewed appellant’s medical records
regarding his 2004 pacemaker implant, subsequent electrocardiograms, and other
medical records, including 2007 and 2008 reports pertaining to prostate
function. He is also aware of appellant’s
daily exercise regimen of 80 modified pushups and 100 modified situps, and
walking three to four hours. He
concluded appellant has recovered remarkably well from the bypass surgery and
prostate cancer. He said bypass surgery
and a pacemaker should not interfere with sex.
Appellant
had been assigned to a particular unit at Coalinga State Hospital so he could
be monitored due to his heart problems (including a pacemaker), a hernia
operation, and Asperger’s. He also has
hearing problems. Hospital staff that
testified on his behalf stated they had not observed him to act inappropriately
while at the hospital.
Appellant was described
by one psychiatric technician as cooperative and a “pack rat.†He said appellant hoarded everything and
collected newpapers and magazines. When
appellant reached the limit for materials he was permitted to keep in his room,
he shipped the materials away from the hospital because he wanted to keep
everything.
Dr. Richard Romanoff, a
clinical and forensic psychologist and a member of the DMH’s panel of doctors
appointed to evaluate individuals alleged to be SVP’s, conducted six
evaluations of appellant since 2002.
Romanoff said that when he first evaluated appellant in 2002, he found
appellant qualified as an SVP. His
opinion has since changed and he presently does not believe appellant is likely
to reoffend, based in part upon appellant’s age. His opinion changed in 2005, when data showed
the number of sex offenders who reoffend after age 60 is very small. Dr. Theodore Donaldson, a clinical
psychologist, also testified appellant poses a very low probability of
reoffending.
Appellant’s
sister-in-law, testified appellant could live in her house in New York. She has been married to appellant’s brother
for 45 years. She will have a zero
tolerance policy and would call the police if appellant does anything
wrong. She feels very strongly that he
will not reoffend because he has matured and has never been “a snatch and
grabber.†He used his home and toys to
entice children and he will not have those things in New York. Neither would he be permitted to have a dog.
II
DISCUSSION
A. Underground
Regulations
“Before a petition for
commitment may be filed, the SVPA requires a suspected SVP to undergo two
psychological evaluations conducted pursuant to a protocol established by the
[DMH]. Only if these evaluations result
in a finding that the person, in effect, qualifies as an SVP does the [SVPA]
authorize the filing of a commitment petition.
Recently, the protocol developed by the Department and used for many
years was declared to be an unlawful ‘underground regulation’ because it was
implemented without compliance with the Administrative Procedure Act . . .
.†(People
v. Medina (2009) 171 Cal.App.4th 805, 810-811.) Appellant contends he was denied due process
because the initial evaluators used illegal underground regulations in his
initial evaluations. We assume the
initial evaluators used the underground regulations in 2000, and conclude
appellant is not entitled to relief because he has failed to demonstrate
prejudice arising from the use.
When a criminal
defendant claims a procedural irregularity occurred prior to a determination of
probable cause, the defendant must demonstrate prejudice to prevail on the
issue in a postconviction setting unless the claimed error denied the court
jurisdiction “in the fundamental sense.â€
(People v. Pompa-Ortiz (1980)
27 Cal.3d 519, 529.) The same is true in
SVP proceedings when it is claimed that an underground regulation was used in
the prisoner’s initial DMH evaluation. (
A lack of fundamental
jurisdiction “‘means an entire absence of power to hear or determine the case,
an absence of authority over the subject matter or the parties.’ [Citation.]â€
(People v. American Contractors
Indemnity Co. (2004) 33 Cal.4th 653, 660.)
The failure to use properly enacted regulations in the initial
evaluation of a suspected SVP does not result in a lack of fundamental
jurisdiction, depriving the court of jurisdiction over the subject matter or
appellant. (In re Ronje (2009) 179 Cal.App.4th 509, 518; People v. Medina, supra,
171 Cal.App.4th at pp. 815-817.)
Appellant was provided a
full and fair trial on the petition.
Neither of the initial evaluators testified. Appellant presented the testimony of his own
experts who testified he does not qualify as an SVP. After hearing all the evidence, the jury
concluded beyond a reasonable doubt appellant qualified for commitment as an
SVP. Appellant does not contend the
evidence was insufficient to support that finding. Accordingly, we conclude appellant has failed
to show he was prejudiced by the initial evaluators’ use of unlawful
underground regulations.
In In re Ronje, supra, 179
Cal.App.4th 509, underground regulations were used by evaluators of an alleged
SVP. Prior to his trial, Ronje filed a
petition for a writ of habeas corpus in this court seeking dismissal of the SVP
petition or “new evaluations based on a valid assessment protocol.†(Id.
at p. 513.) Relying upon
Ronje was not required to prove prejudice to obtain relief because he sought
relief pretrial. (In re Ronje, supra, 179
Cal.App.4th at p. 513.) As to the proper
remedy, we stated dismissal was inappropriate because use of the underground
regulations did not deny the trial court fundamental jurisdiction. We therefore directed the superior court to
order new evaluations using the valid assessment protocols. (Id.
at pp. 513-514.)
We reject appellant’s
claim that he is entitled to the same relief without a showing of prejudice
because he raised the issue prior to the court ordering his commitment as an
SVP. The question is not whether he
raised the issue before entry of a final judgment. The question is whether he raised it
prejudice is not a prerequisite to relief.
(In re Ronje,
trial, appellant bears the burden of demonstrating prejudice. He has failed to carry that burden.
B. Ineffective
Assistance of Counsel
Appellant blames his
trial attorneys for not having brought the issue of the underground regulations
to the trial court’s attention before trial.
To prevail on a claim of ineffective assistance of counsel, appellant
must meet the two-prong test of Strickland
v. Washington (1984) 466 U.S. 668.
“To establish ineffective assistance of counsel, a petitioner must
demonstrate that (1) counsel’s representation was deficient in falling below an
objective standard of reasonableness under prevailing professional norms, and
(2) counsel’s deficient representation subjected the petitioner to prejudice,
i.e., there is a reasonable probability that, but for counsel’s failings, the
result would have been more favorable to the petitioner. [Citations.]â€
(In re Wilson (1992) 3 Cal.4th
945, 950, citing Strickland v. Washington,
supra, 466 U.S. at p. 687.)
The
ineffective assistance claim need not detain us long. Appellant notes in his opening brief the
Office of Administrative Law determination that the evaluation regulation was
invalid “was not published until after [his] trial.†As the court noted in People v. Medina, supra,
171 Cal.App.4th 805, “The apparent failure, until very recently, of any
attorney to question the validity of the protocol in the 13-year history of the
SVPA appears to refute the claim that [appellant’s] representation fell below
the standard of reasonableness . . . .â€
(Id. at p. 819.) Additionally, given the fact appellant
received a full and fair trial and he has not demonstrated that had proper
regulations been used there is a reasonable probability a different result
would have occurred, appellant has not demonstrated prejudice, the second
showing necessary to obtain relief on this claim.
(Id.
at pp. 819-820.) Appellant has failed to
make the requisite showing on either prong of the Strickland test. As we
stated above, the evaluators who used the underground regulations did not
testify at trial. The jury, however,
accepted the testimony of another expert who, without using the underground
regulations, concluded appellant qualified as an SVP.
C.
Appellant
contends the trial court erred in permitting the district attorney to open the
sealed boxes he mailed addressed to himself and which remained unopened while
they were held for him by his friend Galbraith.
He argues the evidence acquired from within the boxes was obtained in
violation of his Fourth Amendment rights.
The Attorney General argues appellant did not have a legitimate
expectation of privacy in the boxes, the Galbraiths consented to the search of
the boxes, and the exclusionary rule does not apply in a civil proceeding such
as an SVP hearing.
Prior
to opening the sealed boxes, the district attorney filed an order to show
cause. The purported purpose was to
require appellant to show cause why the district attorney should not open and
search the sealed boxes. The deputy
district attorney submitted the declaration of her investigator and raised the
issue of whether appellant had a reasonable expectation of privacy in the
boxes. Appellant filed a counter
declaration from Mrs. Galbraith describing how possession was transferred from
the Galbraiths to the district attorney’s office.
Before
considering the array of Fourth Amendment issues presented by the facts, we
make an initial inquiry: Does the
exclusionary rule apply in an SVP proceeding?
If it does not, there is no need to determine whether appellant had a
reasonable expectation of privacy in the boxes; whether the purported consent
to take the boxes was valid; whether that consent included a search of the
sealed boxes; if there was no consent to open the boxes, whether the court’s
order permitting the search was supported by probable cause; and, if probable cause was not demonstrated,
whether the search may be upheld under the good faith exception given law
enforcement’s reliance upon the court’s order to search the boxes.
The
well-known exclusionary rule was first announced in Weeks v. United States (1914) 232 U.S. 383, and held to apply in
state criminal prosecutions in Mapp v.
Ohio (1961) 367 U.S. 643. The United
States Supreme Court has not addressed whether the Fourth Amendment
exclusionary rule would apply in a civil proceeding such as those prescribed by
our SVPA. On the one hand, it has held
the exclusionary rule applies in civil forfeiture proceedings because such
proceedings are quasi-criminal in nature and designed “to penalize for the
commission of an offense against the law.â€
(One 1958 Plymouth Sedan v.
Pennsylvania (1965) 380 U.S. 693, 700.)
On the other hand, the court has held the exclusionary rule does not
apply in parole revocation cases (Pennsylvania
Bd. of Probation and Parole v. Scott
(1998) 524 U.S. 357), in suit for refund of taxes from the Internal Revenue
Service (United States v. Janis (1976)
428 U.S. 433), or civil deportation proceedings. (INS v.
Lopez-Mendoza (1984) 468 U.S. 1032. (Lopez-Mendoza).) And the California Supreme Court has held the
exclusionary rule does not apply in civil commitment proceedings under the
Laterman-Petris-Short Act. (
Cal.4th 1005. (Susan T.).) Review of these cases leads us to conclude
the rule does not apply in SVP cases.
In
Pennsylvania Bd. of Probation and Parole
v. Scott, supra, 524 U.S. 357, Scott had been sentenced to prison for a third
degree murder and was subsequently paroled.
(Id. at pp. 359-360.) Approximately five months later, parole
officers obtained a warrant for Scott’s arrest and arrested him for a number of
violations of the terms of his parole. (
went to the residence he shared with his mother and searched without consent
from Scott or his mother. They found a
bow, arrows, and a number of firearms. (
Scott’s objection to the introduction of this evidence at his parole
violation hearing was overruled. The
parole board found Scott in violation and recommitted him to prison for 36 months.
(Id.
at pp. 360-361.)
The
Supreme Court granted certiorari to determine whether the exclusionary rule
applies in parole revocation hearings. (
v. Scott, supra, 524 U.S. at p. 362.)
The court noted it had repeatedly emphasized that the Fourth Amendment
is not violated by the courts’ use of evidence obtained in violation of that
amendment. (Ibid.) The exclusionary rule
is a judicially created remedy the purpose of which is to deter future unlawful
searches. As a result, it only applies
“‘where its remedial objectives are thought most efficaciously served,’
[citations].†(Id. at p. 363.) For the rule
to apply, its deterrent effect must outweigh its “‘substantial social
costs.’ [Citation.]†(Ibid.) The high court stated it has refused to apply
the exclusionary rule in grand jury proceedings which often initiate criminal
proceedings. (Ibid.)
The
court declined to extend the exclusionary rule to parole revocation proceedings
because “[a]pplication of the exclusionary rule would both hinder the
functioning of state parole systems and alter the traditionally flexible,
administrative nature of parole revocation proceedings. The rule would provide only minimal deterrence
benefits in this context, because application of the rule in the criminal trial
context already provides significant deterrence of unconstitutional
searches.†(Pennsylvania Bd. of Probation and Parole v. Scott, supra, 524 U.S.
at p. 364.) The same is true in SVP
proceedings. Exclusion in a criminal
case is a sufficient deterrent for law enforcement authorities attempting to
discover unrevealed sexual offenses to charge a person alleged to be an SVP.
unlawfully by Immigration and Naturalization Service (INS) agents. Evidence obtained as a result of the arrests
was used in the subsequent deportation proceedings. The intermediate appellate court found
Sandoval-Sanchez’ detention was unlawful, that his statements were a fruit of
the unlawful detention, and the statements should have suppressed. (Id.
at 1038.)
The
Supreme Court characterized deportation proceedings as “a purely civil action
to determine eligibility to remain in this country, not to punish an unlawful
entry†(Lopez-Mendoza,
concluded the exclusionary rule did not apply in such proceedings. (Id.
at p. 1050.) The court reached its
conclusion by weighing the costs of the exclusionary rule in deportation
matters against the sole purpose of the exclusionary rule: deterrence of
unlawful police conduct. (
The
court stated it had observed in United
States v. Janis, supra,
assessment proceeding, that evidence obtained by state officials in violation
of Fourth Amendment would not be admissible in any state or federal criminal
prosecution. (Lopez-Mendoza, supra, 468
U.S. at p. 1042.) So too, any evidence
obtained by the INS agents would be excluded from any state or federal
prosecution. (Ibid.) Thus, there was a
penalty in place to act as a deterrent to unlawful police conduct. The same is true here.
If
the district attorney’s office had found evidence of a previously undiscovered
sex crime, as appellant had argued was the goal of the search, that evidence
would be excluded in any resulting criminal prosecution if the discovery was
the result of a Fourth Amendment violation.
That penalty (see United States v.
Ceccolini (1978) 435 U.S. 268, 279) is a sufficient deterrent. That there is a pressing need for an
additional deterrence in SVP cases has not been demonstrated. Given the fact a person alleged to be an SVP
will be in a custodial setting (prison before the petition is filed and a state
hospital after) with a concomitant diminished expectation of privacy, we do not
foresee such a need arising.
In
Susan T., supra, 8 Cal.4th 1005, the California Supreme Court used the same
cost-benefit (deterrent effect vs. social cost) analysis in concluding the
exclusionary rule does not apply in civil involuntary commitment proceedings
under the Laterman-Petris-Short Act.
There, Susan T.’s physician wrote to DMH expressing grave concern about
her physical and mental well-being. (
home and, confirming the doctor’s concerns, placed Susan T. in a psychiatric
facility. (Id. at p. 1010.) The Fourth
Amendment violation in Susan T.
occurred when crisis worker returned to Susan T.’s home and entered without a
warrant or exigent circumstances to take photographs of the interior of the
residence as evidence. (
The
court acknowledged it has applied the exclusionary rule in narcotic addict
commitment proceedings, which it stated are roughly analogous to civil
commitment proceedings, but the reason for doing so was that the aims and
objectives of the two proceedings are quite different. (Susan
T., supra, 8 Cal.4th at p.
1017.) Narcotics addict commitments
possess a “‘close identity to the aims and objectives of criminal law
enforcement.’ [Citations.]†(Id.
at p. 1016.) Indeed, “narcotics addict
commitment is essentially in lieu of criminal prosecution for narcotics
possession . . . .†(
not initiated in response, or necessarily related, to any criminal acts . . .
. The sole state interest, legislatively
expressed, is the custodial care, diagnosis, treatment, and protection of
persons who are unable to take care of themselves and who for their own well
being and the safety of others cannot be left adrift in the community. The commitment may not reasonably be deemed
punishment either in its design or purpose.
It is not analogous to criminal proceedings.’ [Citations.]â€
(Id. at p. 1015.)
SVPA
proceedings are more analogous to conservatorship proceedings than criminal
proceedings. In initial SVPA
proceedings, the petitioner’s burden is to prove the alleged SVP has the
requisite prior conviction(s) for a designated sexually violent offense, and
has been diagnosed with a mental disorder that makes it likely he or she will
engage in sexually violent behavior. (§
6600, subd. (a)(1).)
SVPA
proceedings are generally instituted years after the alleged SVP has been
convicted. Unlike narcotic commitments,
they are not instituted in lieu of criminal proceedings. Indeed, if given a choice between prosecution
of an individual who has at least one serious felony prior conviction (Pen.
Code, § 667, subd. (a)(1)) and at least one “strike†prior conviction (Pen.
Code, § 667, subds. (b)-(i)), a prosecutor would presumably opt for prosecution
over an SVP civil commitment. If
convicted, the defendant would face years and years in prison and, if he or she
thereafter lives to complete the term imposed, there would still the prospect
of an SVP commitment at the end of the imprisonment.
Like
conservatorship proceedings, the SVPA does not seek to punish and does not
impose punishment. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1171.) Institution of proceedings under the SVPA is
not connected to and does not require a pending criminal action.
Proof
of a prior conviction for sexually violent offense may be shown by documentary
evidence, i.e., court and prison records.
(§ 6600, subd. (a)(3).) Proof of
the predatory nature of the offense is often established by live testimony from
those who were victims of or witnesses to the prior incident(s) from years
before. For example, in the present
case, the appellant’s victims testified to incidents from as far back as
1969. We perceive no incentive here for
the district attorney or any other law enforcement agency to engage in acts
violating the Fourth Amendment as a means of acquiring such evidence years or
even decades after the facts are already known to law enforcement. Additionally, the parties have not cited, and
we have not found, any SVP case where an alleged SVP claims his Fourth
Amendment rights were violated during the pendency of the SVPA proceedings. The lack of any other case lends weight to
the proposition that, like conservatorship proceedings, SVP cases do not
present a compelling need for an additional deterrent to unlawful searches or
seizures over and above exclusion in a criminal prosecution.
As
already noted, law enforcement officers looking to uncover undetected crimes of
an alleged SVP know that should the evidence be obtained in violation of the
Fourth Amendment, the evidence and its fruits will be excluded in a criminal
trial. That deterrent being present, we
conclude the social cost of excluding the same evidence in an SVPA proceeding —
exclusion of reliable evidence and exposure of the public to the acts of
individuals who suffer from a mental disability, the existence of which
adversely affects the person’s volitional ability and predisposes the person to
committing sexual acts against others, making him or her a danger to the health
and safety of others — is not outweighed by the minimal beneficial effect that
would result from excluding evidence in an SVPA proceeding. (See Susan
T., supra, 8 Cal.4th at p. 1017,
fn 9 [listing civil settings where benefit of exclusion outweighed by cost of
exclusion].) Accordingly, the superior
court did not err in failing to exclude evidence claimed to have been obtained
in violation of appellant’s Fourth Amendment rights.
In
Susan T., the court stated that
“[w]hether the exclusionary rule bars the admission of evidence in a civil
proceeding depends, first on the existence of a search or seizure that violates
the protections of the Fourth Amendment of the federal Constitution.†(Susan
T., supra, 8 Cal.4th at p.
1012.) We do not take this statement to
mean a court must first decide
whether there has been a violation of the Fourth Amendment and only then decide
whether the exclusionary rule applies in a civil proceeding. Such an interpretation would require a court
conducting a conservatorship hearing to first
determine whether there had been a Fourth Amendment violation before deciding,
in conformance with Susan T., that
the exclusionary rule does not apply in conservatorship proceedings. Having concluded the exclusionary rule is not
required in SVPA proceedings, we do not engage in what could only be a useless
exercise in determining whether the
evidence that cannot be excluded, assuming a Fourth Amendment violation, was in
fact obtained in violation of the Fourth Amendment.
D. Discovery
Issues
Appellant claims the
court violated his right to due process and abused its discretion “by
repeatedly granting the prosecution’s request to reopen discovery without a
showing of good cause and by granting prosecution experts access to appellant’s
private medical and mental health records and ordering appellant to submit to
unnecessary and unauthorized mental examinations.†He argues the trial court erred in reopening
discovery after the first and second mistrials in this matter and in compelling
appellant to submit to mental examinations by Drs. Arnold, Maram, Romanoff, and
Dietz.
We review discovery
claims for an abuse of discretion, “‘because management of discovery lies
within the sound discretion of the trial court.
[Citation.] Thus, where there is
a basis for the trial court’s ruling and it is supported by the evidence, a
reviewing court will not substitute its opinion for that of the trial
court.’ [Citations.]†(Lee v.
Superior Court (2009) 177 Cal.App.4th 1108, 1124-1125.) If an abuse of discretion is found, reversal
after trial is ordinarily permitted only if the error resulted in a miscarriage
of justice. (Cal. Const., art. VI, § 13;
County of Nevada v. Kinicki (1980)
106 Cal.App.3d 357, 363.)
Appellant
argues the court erred in granting the district attorney’s motion to compel
appellant to submit to updated mental evaluations. That motion alleged appellant had previously
refused to be interviewed by two of the district attorney’s experts, but had
agreed to interviews with his own experts.
Appellant argued there was no need for an interview by Dr. Maram because
the doctor sat through appellant’s testimony at trial and was permitted to
assist the deputy district attorney in questioning him. He also asserted section 6603, subdivision
(c) is the sole authority for updated evaluations, that section did not
authorize the evaluations because the doctors were not the original evaluators,
and the statute does not authorize evaluation by an expert retained by the prosecution.
At oral argument, appellate counsel conceded an expert retained by the
district attorney may
review otherwise confidential records and
interview an alleged SVP if good cause for the evaluation exists.
Drs. French and
Trompetter were the original evaluators in 2000. According to appellant, these doctors were
replaced in 2002, by Drs. Maram and Romanoff.
As early as 2003, Drs. Maram and Romanoff conducted “updated evaluationsâ€
without objection. They both performed
updated evaluations again in 2005, without objection. In 2006, appellant’s counsel conceded the
court had properly found appellant had waived the objection that Maram and
Romanoff were not original evaluators.
Appellant’s objection to the replacement of the original evaluators with
Drs. Maram and Romanoff was untimely when ultimately made years later. (People
v. Demetrulias (2006) 39 Cal.4th 1, 22.)
Once Maram and Romanoff replaced the original evaluators, the district
attorney was entitled to have section 6603, subdivision (c)(1) updated
evaluations by those doctors when their prior evaluations became stale. (Albertson
v. Superior Court (2001) 25 Cal.4th 796, 803.) However, even if updated evaluations by Maram
and Romanoff should not have been ordered, appellant has failed to demonstrate
any prejudice. Maram did not testify at
the third trial and Romanoff testified as a defense witness. Along the same line, any alleged error in the
court granting Dr. Arnold access to appellant’s records and an interview with
appellant was harmless because Dr. Arnold did not testify at appellant’s third
trial. That leaves Dr. Dietz.
“[T]he Civil Discovery
Act applies to SVPA proceedings.†(
1349, 1368.) The act is “applied in each
SVPA proceeding on a case-by-case basis.â€
(People v. Superior Court (
994.) The discovery rules are “liberally
construed in favor of disclosure and the trial court is vested with wide
discretion to grant or deny discovery.
[Citation.]†(
168 Cal.App.4th 165, 180.)
Subject to restrictions
“set forth in Chapter 5 (commencing with Section 2019.010),†any party may
obtain a mental or physical
examination of another party to the action.
(Code of Civ. Proc., § 2032.020, subd. (a).) This section does not require a party to put
his or her mental state into controversy.
It merely requires the mental condition “of that party or other person
is in controversy in the action.†(
Code of Civil Procedure section 2019.010, subdivision (d) also
authorizes discovery via mental examinations.
There is no restriction in Chapter 5 that would appear to prohibit the
requested discovery in this matter.
Neither
is there anything in section 6603, subdivision (c)(1) to support appellant’s
argument that the court cannot order an alleged SVP to submit to a mental
examination by an expert retained by the district attorney. That section speaks to the issue of
examinations by initial evaluators and their replacements. While it provides the exclusive procedure for
updated or replacement evaluations of initial evaluators and requires the DMH
to perform the updates requested by the district attorney, the section does not
address examination by other experts.
Subdivision
(c)(1) of section 6603 was enacted as a response to the Court of Appeal’s
decision in Sporich v. Superior Court
(2000) 77 Cal.App.4th 422, wherein the court concluded there was no statutory
authority for the district attorney to obtain updated mental evaluations. (Albertson
v. Superior Court, supra, 25
Cal.4th at pp. 805-806.) The Legislature
created that statutory authority, obviating the need for the Supreme Court to
determine whether the Court of Appeal had reached the proper conclusion. (Id.
at p. 804.)
title="">[7]
The trial court found
good cause for Dr. Dietz’s examination and we cannot say the court abused its
discretion as a matter of law. Although repetitive examinations may become
unduly burdensome in any case, they “are permissible if there is a showing of
good cause.†(Kees v. Medical Board (1992) 7 Cal.App.4th 1801, 1814.) An SVPA case requires a current mental condition, and when resolution of the case spans
several years, multiple examinations are likely to be the rule rather than the
exception.
Appellant argues
discovery had closed and the request for an examination by Dr. Dietz was
untimely, because the district attorney’s motion was filed on the trial
date. Code of Civil Procedure section
2024.020, provides a date by which discovery closes. “Except as otherwise provided in this
chapter, any party shall be entitled as a matter of right to complete discovery
proceedings on or before the 30th day, and to have motions concerning discovery
heard on or before the 15th day, before the date initially set for the trial of
the action.†(Code of Civ. Proc., §
2024.020, subd. (a).) Section 2024.050
of the Code of Civil Procedure authorizes the court to permit a party to reopen
discovery. (Code of Civ. Proc., §
2024.050, subd. (a).) In exercising its
discretion whether to permit further discovery, the court is to take into
consideration a number of factors, including “the necessity and the reasons for
the discovery†(Code of Civ. Proc., § 2024.050, subd. (b)(1)), the “diligence
or lack of diligence†on the party requesting the discovery and the reasons the
matter discovery was not requested earlier (Code of Civ. Proc., § 2024.050,
subd. (b)(2)), the likelihood granting the request would result in a delay of
the trial (Code of Civ. Proc., § 2024.050, subd. (b)(3)), and the length of
delay between the prior and present trial settings (Code of Civ. Proc., §
2024.050, subd. (b)(4)).
Here, the second
mistrial was declared on February 6, 2008.
Just over two weeks later, on February 22, 2008, the court set March 17,
2008 for retrial at appellant’s request, denying the district attorney’s request
for a date in June 2008. Thus, the trial
was set within 30 days. Although the
request for the evaluation was not made until the trial date, there was little
chance granting the request would cause a delay in the trial. The earliest appellant’s matter was sent out
for trial in either of his two prior trials was 20 days after the parties
answered ready. The delay before the
parties were sent out on the second trial was even longer. The evaluation could easily be completed
without delaying the trial. Lastly,
although the district attorney answered ready for trial on March 17, 2008, the
last evaluation performed by an expert retained by the district attorney was
nine months old and would be a year old, and presumably stale (
trial trailed for a significant period of time, as it eventually did. These facts support the trial court’s
decision to order the evaluation, the close of discovery notwithstanding.
E. Due
Process
Appellant contends the
petition should be dismissed because he was denied due process by the court’s
failure to provide him timely trials on the SVP petition. While the superior court consistently and
repeatedly failed to appreciate the fact that appellant’s matter was not just
another civil case on its calendar and that appellant was entitled to a trial
in a timely fashion, the lack of a statutory time limit notwithstanding, we
conclude the various continuances did not deny appellant due process. Although appellant remained in custody for
more than seven years from the filing of the SVP petition (October 19, 2000),
through two mistrials, and finally a third trial where the jury found beyond a
reasonable doubt that he was an SVP (July 31, 2008), the vast majority of the
delays were at appellant’s request or with his consent. The delays attributable to the court or the
district attorney did not amount to a denial of due process.
1. Due
Process and the Litmon Cases
SVP proceedings are a
creature of statute (§ 6600 et seq.) first enacted in 1995. (Stats. 1995, ch. 763, § 3.) The development of an alleged SVP’s due
process right to a timely trial is necessarily a more a recent development that
arose because the SVPA does not delineate a timeframe in which an alleged SVP’s
trial must be conducted once the court has determined the petition is supported
by probable cause.
title="">[8]
“[C]ivil
commitment for any purpose constitutes a significant deprivation of liberty
that requires due process protection.
[Citations.]†(
425.) The “most elemental of the
liberties†protected by the Due Process Clause is “the interest in being free
from physical detention by one’s own government. [Citations.]â€
(Hamdi v. Rumsfeld (2004) 542
U.S. 507, 529 (plur. opn of O’Connor, J.).)
“Freedom from bodily restraint has always been at the core of the
liberty protected by the Due Process Clause from arbitrary governmental
action. [Citation.]†(Foucha
v. Louisiana (1992) 504 U.S. 71, 80.)
In
Orzoco v. Superior Court (2004) 117
CalApp.4th 170, Orozco had been committed as an SVP for a two-year term and,
prior to the expiration of the term, the People filed a petition to recommit
Orozco for an additional two years.
name="_ftnref9" title="">[9] The initial term of commitment was set to
expire on May 13, 2001. (
173-174.) The recommitment petition had
still not been tried by March 18, 2003.
On that day, approximately two months before the term sought by the recommitment
petition would have expired had Orozco been tried and found to again qualify as
an SVP, the People filed a second recommitment petition. This petition was for the two-year period
from May 13, 2003 through May 13, 2005.
(Id. at p. 175.) The matter eventually was continued into June
2003, after the two-year term on the first recommitment petition would have
expired. Orozco filed a motion to
dismiss both recommitment petitions, arguing that as the trial court had failed
to hold a trial on the first recommitment petition during the period it sought
to confine him the court lost jurisdiction over both petitions. (Ibid.) The primary issue in the subsequent writ
proceedings was “whether there is a jurisdictional requirement under the [SVPA]
that a recommitment order be obtained before the expiration of the previous
term.†(Id. at p. 173.)
The appellate court
concluded the trial court did not lose jurisdiction by failing to conduct the
trial on a recommitment petition during that period of time for which
recommitment is sought. (
the dismissal he requested, the court directed “the issuance of a peremptory
writ of mandate directing [the trial] court to set the first recommitment
petition for trial forthwith . . . .†(
In Litmon v. Superior Court (2004) 123 Cal.App.4th 1156 (
an SVP on May 2, 2000, for a two-year term.
(Id. at p. 1163.) Before his two-year commitment expired, the
People filed a petition to recommit him for an additional two-year term from
May 2, 2002 to May 2, 2004. (
As the two-year term sought by the recommitment petition was about to
expire, and Litmon having not yet had a trial on that petition, the People
filed a second recommitment petition seeking to extend Litmon’s commitment for
a second two-year period from May 2, 2004 to May 2, 2006. (Ibid.) After filing the second recommitment
petition, the People successfully moved to consolidate the two petitions over
Litmon’s objection, resulting in a further delay of the trial on the issues
raised in the first recommitment petition.
As a result of consolidation, trial on the issue of whether Litmon
qualified as an SVP and should be committed for the two-year term from May 2,
2002 to May 2, 2004, was not scheduled until after May 2, 2004. (
Although the appellate
court found the trial court had the power to order the petitions consolidated,
it found that continuing petitioner’s trial date on the first petition over his
objection — to accommodate consolidation — was error. (Litmon
I, supra, 123 Cal.App.4th at p.
1161.) The court noted that because the
SVPA did not set a limit upon the time within which a trial must be held, “some
SVP trials languish at the end of a long queue of civil
| Description | Prior to being released on parole after his latest convictions for sex offenses committed on a child under 14 years of age, the Orange County District Attorney filed a petition to have appellant Sidney Nathaniel Landau committed as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA), Welfare and Institutions Code section 6600 et seq.[1] More than seven years after the filing of the petition, the third jury to hear the matter found appellant met the criteria for commitment as an SVP. Appellant raises a multitude of issues on appeal, including inter alia, that he was denied due process when he was not brought to trial in a timely manner, he was denied due process when his initial SVP evaluators used unlawful underground regulations, he was denied effective assistance of counsel, the court should have suppressed evidence obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures, the court prejudicially erred when it ordered appellant to submit to mental examinations by experts retained by the district attorney, and the present SVPA violates equal protection, due process, ex post facto, and double jeopardy. While the appeal was pending, the California Supreme Court decided People v. McKee (2010) 47 Cal.4th 1172 (McKee I). The court found SVP’s are similarly situated with individuals found not guilty by reason of insanity (NGI’s) and mentally disordered offenders (MDO’s) for equal protection purposes. The court then remanded the matter to the trial court to hold a hearing to determine whether the People could justify “the differences between SVP and NGI commitment statutes.†(Id. at p. 1207.) We suspended further proceedings in this appeal pending the remand in McKee I and the finality of an appellate court decision reviewing the hearing to be held on remand. The San Diego Superior Court found the People carried their burden and found no equal protection violation. Our brethren in Division One affirmed the finding (People v. McKee (2012) 207 Cal.App.4th 1325, 1350 (McKee II), and the Supreme Court denied review. After McKee II became final, we asked for and obtained supplemental briefs from the parties on the equal protection issue. We now affirm. |
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