P. v. Pulizzi

Filed 2/10/09 P. v. Pulizzi CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Rocky Pulizzi appeals from a judgment committing him as a Sexually Violent Predator (SVP) under Welfare and Institutions Code, section 6600.[1]

Pulizzi asserts the following claims on appeal: (1) the trial court erred in allowing the prosecution to file an amended petition in September 2006, when the revised Sexually Violent Predator Act (SVPA) went into effect allowing an indeterminate term, rather than a two-year commitment; (2) Pulizzi was denied effective assistance because of his counsels failure to exercise peremptory challenges as to three jurors; (3) the amended SVPA violates equal protection; (4) the trial court erred by allowing the prosecutions expert witnesses to testify because of discovery violations; (5) the court lacked jurisdiction to extend Pulizzis commitment to an indeterminate term; (6) the amended SVPA was applied retroactively in this case; (7) the amended SVPA violates due process; (8) the amended SVPA violates ex post facto and double jeopardy principles; and (9) the amended SVPA violates the First Amendment.

Statement of the Case[2]

In July 2005, the Santa Clara County District Attorney filed a petition to extend defendants commitment as a sexually violent predator under section 6604. In response to Senate Bill 1128, in September 2006, the district attorney amended the petition to seek an indeterminate term rather than a two-year term. The petition was found true by a jury, and the court committed defendant to the Department of Mental Health (DMH) for an indeterminate term. Pulizzi filed a timely notice of appeal.

Discussion

Pulizzi asserts numerous claims on appeal, many of which are related to the amendments of the SVPA that occurred in 2006 allowing the imposition of an indeterminate term, rather than a two-year commitment under the original law. Each of Pulizzis contentions is addressed separately below.

Continuance of Trial Date

Pulizzi asserts the court violated his due process rights by allowing the district attorney to file an amended petition seeking an indeterminate term after the trial date was continued from its original date in August 2006 until September 18, 2006.[3]

The premise of Pulizzis argument is that the district attorney requested a continuance of the trial date until September 2006, knowing that the law would change in September, allowing an indeterminate commitment rather than a two-year term in the event Pulizzi was found to be an SVP. The significant problem with Pulizzis argument is that it is not supported by the record. Specifically, there is nothing in the record demonstrating that the district attorney requested that the trial date be continued until September; rather, the district attorney asked the court that the trial date be either before or after the original August date. When faced with this request, the court chose the September 18, 2006 date for the trial. Moreover, the district attorneys motivations for the change in the trial date are not evidenced in the record, and defense counsel did not object to the change. Simply put, there is nothing in the record to demonstrate that the district attorney requested a trial date change in order to subject Pulizzi to the possibility of an indeterminate term based on changes in the law. Pulizzis due process rights were not violated by the continuance of the trial date in this case.

Ineffective Assistance of Counsel

Pulizzi claims that his attorneys failure to exercise peremptory challenges to Jurors Nos. 18, 27 and 61 constitutes ineffective assistance of counsel.

To demonstrate ineffective assistance of counsel, a defendant must show that counsels action was, objectively considered, both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687 . . . .) To establish prejudice, a defendant must show a reasonable probability that, but for counsels failings, the result of the proceeding would have been more favorable to the defendant. (Id. at p. 694 . . . .) (People v. Seaton (2001) 26 Cal.4th 598, 666.)

When the claim of ineffective assistance of counsel is made on direct appeal, the defendant carries a heavy burden. (People v. Lucas (1995) 12 Cal.4th 415, 437.) A judgment will be reversed on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. (People v. Frye (1998) 18 Cal.4th 894, 980.) When the record is silent as to why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel's reasons. (People v. Diaz (1992) 3 Cal.4th 495, 557-558.) To engage in such speculations would involve the reviewing court in the perilous process of second-guessing. (Id. at p. 557.)

On appeal, we need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed. (Strickland v. Washington, supra, 466 U.S. at p. 697; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) Prejudice requires a reasonable probability that a more favorable outcome would have resulted . . . , i.e. a probability sufficient to undermine the confidence in the outcome. [Citations.] (People v. Fairbank, supra, 16 Cal.4th at p. 1241.)

It is all too tempting for a defendant to second-guess counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. [Citation.] (Strickland v. Washington, supra, 466 U.S. at p. 689 . . . .) (People v. Fairbank, supra, 16 Cal.4th at p. 1243.)

Here, after the jury was sworn, Pulizzi made a motion asking for new counsel to be appointed pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The basis for the motion was his counsels failure to exercise a peremptory challenge as to Juror No. 61, because Pulizzi thought he had seen him before and knew him from growing up in the area. Pulizzi also complained about counsels failure to excuse Juror No. 27 and prospective Juror No. 40, whom he believed were biased against him. Pulizzi did not complain during the Marsden motion about Juror No. 18, whom he complains of on appeal.

During the Marsden motion, defense counsel responded that there were six prospective jurors that Pulizzi did not like, and that she had exercised peremptory challenges as to three of them. She stated: The other three I said to him I have heard what you have to say and understand what you are saying, and I am rejecting it, because I am looking for different things than you are. I am looking for people that have a broad life experience. The facts of the case are gruesome. I need people that can handle the facts.

Here, although Pulizzi asserts his counsel was ineffective for failing to exercise peremptory challenges as to three jurors, he has not overcome the presumption that his counsels conduct was reasonable. With regard to Juror No. 61, both the court and defense counsel stated that Pulizzis belief that he knew him from growing up in the area was erroneous, because the juror was from Southern California. In addition, Juror No. 61 had served on three prior juries, two of which resulted in verdicts, showing his ability to work with other jurors to reach agreement. Pulizzi has not shown that his counsel acted unreasonably in retaining Juror No. 61.

Moreover, with regard to Jurors Nos. 18 and 27, although they both expressed some concern about serving on a case that involved accusations of child molestation, they both affirmed they would follow the law and the courts instructions. Defense counsel was in a position to observe both jurors demeanors, and listen personally to their responses to hers and the courts questions. Her decision to retain them as jurors cannot be said to be unreasonable, and Pulizzi has not demonstrated such on appeal.

We find Pulizzi did not suffer ineffective assistance for his counsels failure to exercise peremptory challenges as to Jurors Nos. 61, 18 and 27.

Equal Protection
Pulizzi asserts he has been denied equal protection because SVPs receive treatment disparate from other similarly situated persons. He argues that SVPs are similarly situated to and should be treated no differently than mentally disordered offenders (MDO) subject to commitment under either the Mentally Disordered Offenders Act (Pen.Code, 2960 et seq.) or those civilly committed because they were found not guilty of a crime by reason of insanity (NGI). (Pen.Code, 1026 et. seq.).

Several California appellate cases already have addressed and rejected the equal-protection challenges Pulizzi raises here. (People v. Calderon (2004) 124 Cal.App.4th 80, 94 [MDOs and SVPs not similarly situated]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1314-1315 [rejects claim of equal-protection violation after analyzing MDO and SVP schemes]; People v. Hubbart (2001) 88 Cal .App.4th 1202, 1218-1219 [SVPA does not violate equal protection]; People v. Calhoun (2004) 118 Cal.App.4th 519, 529-530 [SVPs and criminal defendants not similarly situated, so no equal-protection violation].) Additionally, the Ninth Circuit has held that California's statutory scheme for treatment of SVPs does not violate equal protection. (Hubbart v. Knapp (9th Cir.2004) 379 F.3d 773, 782 [no constitutionally significant distinction between MDO and SVP statutes].) Since the groups are not similarly situated, there is no requirement that they be treated the same. [T]he Legislature may make reasonable distinctions between its civil commitment statutes based on a showing that the persons are not similarly situated . . . . (In re Smith (2008) 42 Cal.4th 1251, 1266.)
Under the authority cited above, we reject Pulizzis equal-protection claim.

Evidentiary Rulings

Pulizzi asserts the court erred in denying his motion to exclude testimony of the prosecutions expert witness, because the prosecution failed to comply with discovery rules.

The law is clear that the Civil Discovery Act applies in commitment proceedings under the SVPA. A panel of this court in People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 987-988, following Leake v. Superior Court (2001) 87 Cal.App.4th 675 (disapproved on another ground in People v. Yartz (2005) 37 Cal.4th 529, 537), held as such, reasoning that the SVPA is a special proceeding of a civil nature, and therefore, it is subject to civil discovery rules. (People v. Superior Court (Cheek), supra, 94 Cal.App.4th at pp. 987-988.)

Under the Civil Discovery Act, a party may request exchange of information regarding expert witnesses. (Code Civ. Proc., 2034.210.) For an expert witness who had been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, the party propounding the witness must provide a statement of the experts qualifications, as well as the substance of the experts expected testimony. (Code Civ. Proc., 2034.210, subd. (b).) Moreover, on objection of any party who has made a complete and timely compliance with section 2034.260, the trial shall exclude from evidence the expert opinion of any withess that is offered by any party who has unreasonably failed to provide the requested information. (Code Civ. Proc., 2034.300.)

At trial in this case, Pulizzi filed a motion to exclude the prosecutions expert witness on the ground that the prosecution had failed to provide requested discovery by July 31, 2006. Specifically, Pulizzi complained that the prosecution had not sent updated reports prepared by the DMH doctors in preparation for trial. In response, the prosecutor stated that he was not aware of any updated reports, and that he himself had not received them. Additionally, the experts from DMH were not retained by the prosecutor, as required by the statute, and if there were any updated reports, the statute required the experts to send them to both the prosecutor and the defense at the same time.

Following argument, the court took the motion under submission. On the second day of jury selection, both parties received the updated reports from the DMH experts. The court then denied Pulizzis motion on the ground that the prosecutor had not retained the DMH experts, and therefore, did not fall within the B section [Code Civ. Proc.,  2034.210, subdivision (b)], and therefore, the People have complied with the Code of Civil Procedure.

We find the trial court did not err in denying Pulizzis motion in this case. The experts that were scheduled to testify in this case were appointed by DMH, and prepared their evaluations not in anticipation of trial, but rather, as an independent statutory obligation arising from the filing of the SVP petition. Moreover, their reports and evaluations were available to the prosecution and the defense at the same time. ( 6603, subds.(a), (c)(1).) The trial court was correct in its conclusion that the prosecution complied with the Code of Civil Procedure, and did not violate any discovery rules necessitating exclusion of evidence.

Jurisdiction

Pulizzi contends that because the SVPA as amended by Senate Bill 1128 makes no reference to recommitment proceedings, the trial court had no right to entertain a petition for recommitment. This argument has already been rejected in published decisions by the Courts of Appeal, specifically by the Fifth Appellate District in People v. Carroll (2007) 158 Cal.App.4th 503 (Carroll), by the Fourth Appellate District in People v. Shields (2007) 155 Cal.App.4th 559, and by the Third Appellate District in Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275 (Bourquez ).

To summarize the rationale in the cases cited above, although all references to an extended commitment in sections 6604 and 6604.1 were deleted (Stats. 2006, ch. 337,  55, 56), the absence of an express reference to extended commitments in the statute is the result of the change from an annual renewable two-year commitment to an indeterminate commitment. (People v. Shields, supra, 155 Cal.App.4th at p. 563.) Under the statute as it currently reads, once a person is committed as an SVP, he remains in custody until it is established through use of the statutory procedural mechanisms that he is no longer an SVP. (See 6605, 6608, subd. (i); Carroll, supra, 158 Cal.App.4th at p. 510; see also Bourquez, supra, 156 Cal.App.4th at p. 1287 [nature of Senate Bill 1128 and Prop. 83 to strengthen punishment and control of sexual offenders, compels conclusion that new law intended those previously found to be SVPs remain subject to provisions for extended commitments].)

We find the superior court did not lack jurisdiction to recommit Pulizzi as an SVP.

Retroactivity

Pulizzi contends that his indeterminate term of commitment must be reversed, because the statutory changes cannot be applied retroactively. Pulizzi's petition for recommitment was filed before the statutory amendments authorized an indeterminate term and is based on qualifying offenses occurring before the statutory amendments.
The statutory changes were not applied retroactively in this case. As stated in Carroll, [i]n order for a law to be retrospective, it must apply to events occurring before it was enacted. [Citation.] (Carroll, supra, 158 Cal.App.4th at p. 513; see also Bourquez, supra, 156 Cal.App.4th at pp. 1288-1289.) The critical question in determining whether a statute has been applied retroactively is whether the last act or event necessary to trigger a legal consequence occurred before or after the statutory changes in question. (Carroll, supra, 158 Cal.App.4th at p. 513.) The significant event in any SVP hearing is the adjudication of an individual as an SVP. (Ibid. [each extension or recommitment hearing under former statute was new and independent proceeding requiring new determination of SVP status]; see also Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1170 [trial on any petition for commitment or recommitment focused on persons current mental condition].) A recommitment proceeding occurring under the new statutory provisions does not constitute retroactive application of the changes so long as the adjudication and the indeterminate commitment occur after the amendments become effective. (Carroll, supra, 158 Cal.App.4th at p. 513.)

Here, the indeterminate commitment occurred in September 2006, after the amendments to the SVPA became effective. Therefore, the amendments were not applied retroactively.

Due Process

Pulizzi contends that his commitment as an SVP violates due process, because it fails to provide for mandatory periodic hearings on the issue of whether continued commitment is warranted, and it improperly places the burden of proof on Pulizzi to prove he should be released.

The due process issues Pulizzi raises are now pending before our Supreme Court in People v. McKee 160 Cal.App.4th 1517 (review granted July 9, 2008, S162823) and People v. Johnson 162 Cal.App.4th 1263 (review granted Aug. 13, 2008, S164388). The same arguments have been considered and rejected in People v.Riffey (2008) 163 Cal.App.4th 474, 486-489 (review granted Aug. 20, 2008, S164711); People v. Boyle (2008) 164 Cal.App.4th 1266 (review granted Oct. 1, 2008 ); and People v. Garcia (2008) 165 Cal.App.4th 1120 (review granted Oct. 16, 2008).)

Case law has held that an initial civil commitment for an indefinite term does not violate due process merely because of the potential for a lengthy commitment. (See Jones v. United States (1983) 463 U.S. 354, 368 [statute providing for indefinite commitment of a criminal defendant acquitted by reason of insanity and requiring defendant to prove by preponderance of evidence that he is no longer insane or dangerous in order to be released does not violate due process]; see also Kansas v. Hendricks (1997) 521 U.S. 346 (Hendricks ) [upholding Kansas Sexually Violent Predator Act, which provided for commitment until mental abnormality or personality disorder has so changed that the committed person is no longer dangerous].) An indefinite civil commitment is consistent with due process if the statute provides fair and reasonable procedures to ensure that the person is held as long as he is both mentally ill and dangerous, but no longer. (Foucha v. Louisiana (1992) 504 U.S. 71, 77.)

Here, Pulizzi cites Foucha in support of his due process arguments. In Foucha, the court considered the constitutionality of a Louisiana statute providing for the indefinite involuntary commitment of individuals found not guilty by reason of insanity who were dangerous, but not mentally ill. The trial court found that the defendant had a personality disorder that was not considered a mental illness or, for that matter, a treatable disorder. There was testimony that the defendant was not suffering from either a neurosis or psychosis and that he was in good shape mentally. (Foucha, supra, 504 U.S. at p. 75.) There was further testimony that antisocial personality disorder is a disorder for which there is no effective treatment . . . . (Id. at p. 82.) The court struck down the law, concluding that it violated due process because the acquittee no longer met the dual constitutional prerequisites of dangerousness and mental illness.

We read Foucha as prohibiting continued confinement of persons who are no longer mentally ill. Foucha does not specifically address the burden of proof required at future release hearings, and thus does not support Pulizzis due process challenge of section 6608s provision placing the burden on him to prove by a preponderance of the evidence that he is entitled to release because he is no longer mentally ill or dangerous. Foucha does not require that the People bear the burden at any future section 6608 release hearing to prove by clear and convincing evidence that appellant currently is mentally ill and dangerous. We conclude that the SVPA, as amended in 2006, does not violate Pulizzis federal constitutional right to due process.

We consider the initial commitment hearing itself to provide a significant level of due process protection, requiring a finding beyond a reasonable doubt that appellant had qualifying criminal conduct and is both mentally ill and dangerous. The required periodic reviews of appellants mental health status and the petition for release procedures minimize the risk of erroneous deprivation. This is sufficient to satisfy due process requirements.

Ex Post Facto and Double Jeopardy

Pulizzi asserts his indeterminate commitment to the custody of the Department of Mental Health renders the SVPA punitive in nature and violates the ex post facto clause. Pulizzi further asserts his indeterminate commitment violates the double jeopardy clause of the Fifth Amendment. Pulizzi argues he was already tried, convicted, and sentenced to state prison for his sexual offenses. Thus, any further punishment for these same offenses is a clear violation of the double jeopardy clause.

Pulizzi acknowledges that the United States Supreme Court has rejected such a challenge to both the Kansas Sexually Violent Predator Act and Alaska's sex offender registration law because these laws were civil, not criminal, and therefore not punitive. (Hendricks, supra, 521 U.S. 346, 361-363; Smith v. Doe (2003) 538 U.S. 84, 101-102.) Pulizzi argues, however, that the punitive purpose of the indefinite commitment period in the revised California statute is evident from the scope of the reforms embodied in SB 1128.

A commitment under the SVPA is civil in nature and does not amount to punishment. (See Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1179 (Hubbart) [SVPA did not violate constitutional proscription against ex post facto laws because SVPA does not impose punishment or implicate ex post facto concerns]; see also Collins v. Youngblood (1990) 497 U.S. 37, 43 [ex post facto clause prohibits only those laws that retroactively alter the definition of crimes or increase the punishment for criminal acts].) The analysis in this case is not dependent on the term of civil commitment, but on the intent and effect of the statute authorizing it. (Hubbart supra, 19 Cal.4th at p. 1171.) Hubbart observed that, the critical factor is whether the duration of confinement is linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. [Citation.] (Id. at p. 1176.)

Pulizzi argues that the broad scope of Senate Bill 1128 was intended to increase punishment of sexual offenders and, therefore, the SVPA has now become punitive in purpose. Any Penal Code amendments made by Senate Bill 1128 increasing the punishment for various sex offenses have little, if any, relevance to the purpose or effect of the amendments to the Welfare and Institutions Code regarding civil commitments of SVPs. The indeterminate term under Californias SVPA is linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. (Kansas, supra, 521 U.S. at p. 363.) This is a legitimate nonpunitive governmental objective and has been historically so regarded. (Ibid.) Therefore, the SVPA violates neither the ex post facto clause nor the double jeopardy clause.

First Amendment Right to Petition the Court

Pulizzi contends, the limitations placed on [his] right to petition the court for release under the revised version of the SVPA violates his First Amendment right to petition the courts for redress of grievances. Pulizzi further argues, An SVP detainee does not receive meaningful access to the courts when the State can perpetually incarcerate him without ever being required to prove during a hearing on the merits in court the necessity for the continued incarceration.

The burden placed on SVPs to prove the allegations of their petition by a preponderance of evidence does not limit access to the courts in any way; this is the standard imposed in the majority of civil actions. Furthermore, a committed person always has the right to seek release by way of a petition for writ of habeas corpus. (People v. Talhelm (2000) 85 Cal.App.4th 400, 404-405.) We find no violation of Pulizzis First Amendment rights to petition the court.

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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Bamattre-Manoukian, J.

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[1] All further unspecified statutory references are to the Welfare and Institutions Code.

[2] The facts of the underlying case are not relevant to the issues on appeal.

[3] Senate Bill 1128 became effective September 20, 2006. The jury found Pulizzi to be an SVP on September 27, 2006, making him eligible for an indeterminate commitment.