P. v. Samuels
Filed 6/12/13 P. v. Samuels CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
>
THE PEOPLE, Plaintiff and Respondent, v. DOUGAL SAMUELS, Defendant and Appellant. | G045624 (Super. Ct. No. M8475) O P I N I O N |
Appeal from a judgment
of the Superior Court
of
County, M. Marc Kelly, Judge.
Motion to take judicial notice.
Judgment affirmed. Motion denied.
Rudy Kraft, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Bradley Weinreb and Kathryn Kirschbaum,
Deputy Attorneys General, for Plaintiff and Respondent.
*
* *
After a jury found
defendant Dougal Samuels to be a sexually violent predator (SVP) under the
Welf. & Inst. Code, § 6600 et seq.; all statutory references are to
this code), the trial court ordered defendant committed to the custody of the
State Department of Mental Health for an indeterminate term. Defendant challenges the denial of his
pretrial motion to dismiss the
petition and claims his commitment under the current SVPA violates his
constitutional rights. He also has moved
for judicial notice of the statement of decision issued by the superior court
in People v. McKee (2012) 207
Cal.App.4th 1325. We deny
defendant’s motion and, finding no error, affirm the judgment.
FACTS
Although this case
contains an extensive record, defendant does not challenge the sufficiency of
the evidence supporting the jury’s finding.
Thus, we need only summarize the evidence presented at trial.
In the early 1980’s
defendant and his wife separated and divorced shortly after he forced her to
have sex with him in her childhood bedroom.
While living in another state, defendant sexually assaulted three women. One attack resulted in an unlawful restraint
conviction. In 1987, after moving to California,
defendant sexually assaulted five women over a three-week period. He was convicted of three counts of forcible
rape and one count each of forcible oral
copulation, assault with the intent to commit rape, false imprisonment, and
simple assault.
Defendant testified,
admitting he had sexually assaulted eight women. After serving time in prison for his California
crimes, he was hospitalized at Atascadero and Coalinga
State Hospitals. The parties presented conflicting evidence on
his behavior while hospitalized.
Defendant contracted Valley Fever in 2006, causing deterioration in his
back and requiring surgery.
The parties also
presented conflicting testimony from
defendant met the criteria of an SVP; diagnosis of a current mental disorder
predisposing him to commit sexually violent acts. Dawn Starr, a psychologist, interviewed and
evaluated defendant in 2010 and 2011.
She diagnosed him with alcohol abuse, cocaine abuse, paraphilia (i.e.,
recurrent and intense violent sexual fantasies and behavior), and narcissistic
personality disorder. She described the
latter two conditions as “contribut[ing] to [defendant] having volitional and
emotional impairment which predisposes him to commit sexual crimes.†On several reoffense risk assessment tools,
defendant was placed in the moderate to high risk categories. Based on her evaluations, Starr opined
defendant was likely to reoffend.
Dr. Robert Owen began
seeing defendant in 1996. He also
diagnosed defendant with paraphilia and until 2008, found he was an SVP. Owen then changed his opinion due to
defendant’s physical illness, resulting surgery, and age. Dr. Gary Zinik began evaluating defendant in
1999. Before 2007, he diagnosed
defendant as an SVP. Zinik changed his
diagnosis in 2008 due to defendant’s health problems. In 2010, he again reversed his diagnosis,
citing improvements in defendant’s health status. But after another evaluation the next year,
Zinik concluded defendant no longer qualified as a sexually violent predator
“because of [his] declining health and his age.†Dr. Hy Malinek, who first saw defendant in
2007, diagnosed him with paraphilia, but concluded his health and physical
problems reduced the risk that he would reoffend. Dr. Abbott evaluated defendant in 2008 and
2010. He disagreed with the diagnosis of
paraphilia, and described defendant’s sexual assaults as behavior “commonly
seen with nonparaphilic rapists, . . . a belief or attitude that
sex is owed to them by the female.â€
On rebuttal, Dr. Nancy
Rueschenberg, who evaluated defendant in 2010 and 2011, diagnosed him with
paraphilia, cocaine abuse, and a personality disorder with antisocial and
narcissistic features. She concluded he
presented “a serious and well-founded risk to sexually reoffend.â€
DISCUSSION
Request to Dismiss the SVP Commitment Petition
Defendant attacks the
trial court’s denial of his petition for writ of habeas corpus or alternatively
motion to dismiss the 1998 petition to commit him as an SVP. He claims state officials acted in bad faith
by failing to immediately release him upon the filing of the decision in
Cal.App.4th 864, thereby rendering his custodial
status unlawful when the district attorney filed the petition.
a. Background
The petition/motion
alleged the following facts. In April
1998, the Board of Prison Terms took him into custody on an allegation that he
was in need of psychiatric treatment. After
a June hearing, his parole was revoked on this ground. Defendant was referred to the Department of
Mental Health for an SVPA evaluation.
On July 24, the Court of
Appeal issued Terhune v. Superior Court,
supra, 65 Cal.App.4th 864.
There the Board of Prison Terms revoked the parole of a prisoner named
Whitley for psychiatric treatment as an SVP.
Whitley argued the Board exceeded its authority in doing so and the
trial court granted his habeas corpus petition.
The Court of Appeal upheld the ruling.
“Th[e] legislative history confirms our conclusion that the Board’s revocation
of Whitley’s parole for psychiatric treatment . . . was an act
in excess of its statutory authority. . . . [T]he
Legislature has not authorized the Board to hold a prisoner who has served a
determinate term beyond his release date and then revoke his parole
. . ., based solely on a determination that he has a
need of psychiatric treatment . . . .†(Id.
at p. 880.)
On August 25, the
Department of Mental Health sent the district attorney’s office a letter
informing it that, in light of Terhune,
defendant would be released from custody on September 2. The district attorney filed the petition
August 31. In November, defendant filed
his petition/motion, but the trial court denied it.
b. Analysis
Defendant argues the
trial court erred in denying his petition/motion because once
became illegal immediately,†and the delay in releasing him was “a bad faith
decision†intended “to give the district attorney a chance to file the
. . . petition.†This
argument lacks merit.
An SVP commitment
proceeding can be brought against a person serving a determinate prison
sentence or if the individual’s parole had been revoked. Cases have recognized lawful custody is not a
jurisdictional requirement for a valid SVP petition. (People
v. Wakefield (2000) 81 Cal.App.4th 893, 897-898; People v. Hedge (1999) 72 Cal.App.4th 1466, 1478-1479 [“the
unambiguous language of the [SVP] Act contains no requirement a defendant’s
custody be ‘lawful’ at the time such petition is filed, only that the person
. . . be in ‘custody’â€]; Garcetti
v. Superior Court (1998) 68 Cal.App.4th 1105, 1114 [order dismissing
an SVP petition vacated; “it does not inevitably follow from the SVP Act’s
element of custody that a determination of lawful custody is a
jurisdictional prerequisite to the filing of a petition under the SVP Act for
civil commitmentâ€].)
Terhune does not assist defendant.
It involved a habeas corpus proceeding that challenged Whitley’s parole
revocation, not the dismissal of an SVP commitment petition. The trial court granted his request, but the
Department of Corrections sought relief in the Court of Appeal. The appellate court issued an alternative
writ and stayed Whitley’s release, but ultimately denied the department’s
petition. In so ruling,
imposed shall remain in effect until the remittitur issues.†(Terhune
v. Superior Court, supra, 65 Cal.App.4th at p. 881.)
Before the remittitur
issued in Terhune, the district
attorney filed a petition to commit Whitley as an SVP. Whitley successfully moved to dismiss the
petition, but the Court of Appeal vacated that ruling. (People
v. Superior Court (Whitley) (1999) 68 Cal.App.4th 1383, 1385.) “[T]he present case does not indicate
negligent or intentional wrongdoing by the Department of Corrections in
revoking Whitley’s parole for psychiatric conditions . . . . The
department’s error in revoking his parole on that basis resulted from its
mistake of law concerning the scope of its broad statutory authority to
establish and enforce regulations governing parole. Until we decided Terhune, there was no
controlling judicial decision directly on
point . . . . Given these factors and in light
of the serious public safety purpose underlying the [SVP] Act, we conclude that
despite the department’s legal error, the trial court had jurisdiction or power
to consider the People’s latest petition for Whitley’s commitment.†(Id.
at p. 1390.)
People v. Wakefield, supra, 81 Cal.App.4th 893 recognized the
foregoing
cases were consistent with the Legislature’s 1999 amendment of section
6601,
subdivision (a), which declared in part:
“A petition shall not be dismissed on
the
basis of a later judicial or administrative determination that the individual’s
custody was unlawful, if the unlawful custody was the result of a good faith
mistake of fact or law. This paragraph
shall apply to any petition filed on or after January 1, 1996.†(§ 6601, subd. (a)(2).) An uncodified provision of the bill enacting
this amendment provided: “The
Legislature finds and declares . . . subdivision (a) of Section
6601 is declaratory of existing law.â€
(Stats. 1999, ch. 136, § 3.)
. . . made it absolutely clear . . ., lawful custody
has never been a jurisdictional prerequisite to filing an SVP petition; a later
judicial or administrative proceeding determination the custody was unlawful
does not deprive the court of the power to proceed on an SVP petition if the
custody status when the petition was filed was a result of a good faith mistake
of law or fact.†(People v. Wakefield, supra, 81 Cal.App.4th at p. 898.)
Defendant seeks to
overcome this conclusion by claiming that once the Terhune opinion was issued the state was obligated to immediately
release him and its failure to do so reflect it acted in bad faith. The only authority cited to support this
argument is California Rules of Court, rule 8.1115(d), which declares “[a]
published California opinion may be cited or relied on as soon as it is
certified for publication or ordered published.â€
Defendant’s immediate
release argument ignores the practical realities of the situation. A published appellate decision can be cited
immediately, but it is subject to being modified or vacated by the issuing
court either on its own motion or by granting a petition for rehearing within
the 30-day period after the decision is filed.
(Cal. Rules of Court, rules 8.264(b)(1) & 8.366(b)(1).) An agency affected by an appellate decision
that acts immediately upon learning of the ruling may find its decision lacking
legal support if the opinion is vacated or modified in some significant respect
before finality. (See
Cal.3d 606, 624 [refusal to give proposed jury instruction based on recent
appellate decision not error where “[t]he granting of a rehearing had the
effect of vacating the decision and eliminating the rule of law upon which
[requested instruction] reliedâ€].) Nor
is a decision final for all purposes until at least 60 days after it is issued
because “the Supreme Court may, on its own motion, order review of a Court of
Appeal decision within 30 days after the decision is final in that court.†(Cal. Rules of Court,
rule 8.512(c)(1).) A grant of
review results in depublication of the Court of Appeal’s decision unless the
Supreme Court orders otherwise. (Cal.
Rules of Court, rule 8.1105(e); White
v. Davis (2003) 30 Cal.4th 528, 563-564, fn. 14.)
As in
68 Cal.App.4th 1383, the Board of Prison Terms acted in good faith when it
initially revoked defendant’s parole for psychiatric treatment and transferred
him to the Department of Mental Health for evaluation. Only after the Court of Appeal issued
notice their actions lacked statutory support.
The evidence further supports a finding that, under the circumstances
existing when the Department of Mental Health acted, its decision to delay
releasing defendant until the Terhune
decision became final as to the issuing court and to notify the district
attorney of its intended action constituted an honest attempt to comply with
its legal obligations under the SVPA. (
Cal.App.4th 225, 238-239; see also In
re Lucas (2012) 53 Cal.4th 839, 852 [“a ‘good faith mistake of law’
. . . is one that does not involve ‘“negligent or intentional
wrongdoingâ€â€™ by correctional authoritiesâ€].)
Thus, the trial court did not err by denying defendant’s
petition/motion.
Defendant’s Constitutional Claims
a. Due process, ex post facto,
and double jeopardy
The remainder of
defendant’s opening brief challenges the validity of the amended SVPA on
several constitutional grounds. To date,
published appellate decisions have rejected all of the claims asserted in this
case.
Two grounds defendant
cites to invalidate the Act, due process and the prohibition against ex post
fact laws, were rejected by the California Supreme Court in
Cal.4th 1172, 1188-1195 (McKee
I). We are bound by
(Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant also claims
the current SVPA violates double jeopardy.
But in People v. McDonald
(2013) 214 Cal.App.4th 1367, 1383 we rejected this argument, noting
“[b]ecause the Amended SVPA does not inflict punishment
. . . indeterminate commitment under [it] does not constitute
v. Landau (2013) 214 Cal.App.4th 1, 44-45 [same].)
b. Equal Protection
The bulk of defendant’s
constitutional argument focuses on whether the amended SVPA violates equal
protection. In McKee I, the Supreme Court held the Act subject to equal protection
analysis because it “treats SVP’s significantly less favorably than those
similarly situated individuals civilly committed under other statutesâ€
including mentally disordered offenders (MDO’s) and persons found not guilty by
reason of insanity (NGI’s). (
Cal.4th at pp. 1196, 1203, 1207.)
Since individuals within each of these categories “have the same
interest at stake—the loss of liberty through involuntary civil commitment—it
must be the case that when society varies the standard and burden of proof for
SVP’s . . ., it does so because of the belief that the risks involved
with erroneously freeing SVP’s from their commitment are significantly greater
than the risks involved with freeing†other civil committees. (Id.
at p. 1204, fn. omitted.)
The Supreme Court
remanded the case for a hearing on whether the People could justify disparate
treatment for SVP’s. “It must be shown
that, notwithstanding the similarities between SVP’s and [other civil
committees], the former as a class bear a substantially greater risk to
society, and that therefore imposing on them a greater burden before they can
be released from commitment is needed to protect society. This can be shown in a variety of ways. For example, it may be demonstrated that the
inherent nature of the SVP’s mental disorder makes recidivism as a class
significantly more likely. Or it may be
that SVP’s pose a greater risk to a particularly vulnerable class of victims,
such as children. . . . Or the People may produce
some other justification.†(
Cal.4th at pp. 1207-1208.)
After remand, the
superior court conducted a hearing on the justification of disparate treatment
for SVP’s and concluded the People had met its burden. On appeal, the Court of Appeal, applying a de
novo standard of review, affirmed the decision.
“The People have shown ‘that the inherent nature of the SVP’s mental
disorder makes recidivism as a class significantly more likely[;] . . . that
SVP’s pose a greater risk [and unique dangers] to a particularly vulnerable
class of victims, such as children;’ and that SVP’s have diagnostic and
treatment differences from MDO’s and NGI’s, thereby supporting a reasonable
perception by the electorate . . . that the disparate treatment
of SVP’s under the amended Act is necessary to further the state’s compelling
interests in public safety and humanely treating the mentally disordered. [Citation.]â€
(People v. McKee (2012) 207
Cal.App.4th 1325, 1347; McKee II.) The Supreme Court denied a petition for
review. (People v. McKee, review denied Oct. 12, 2012, S204503.) Subsequent appellate decisions, including
cases from our court, have followed McKee
II. (People v. McDonald, supra, 214 Cal.App.4th at pp. 1374-1382;
Cal.App.4th at pp. 45-48; People v.
McCloud (2013) 213 Cal.App.4th 1076, 1085-1086; People v. McKnight (2012) 212 Cal.App.4th 860, 863-864.)
In part, defendant seeks
to distinguish McKee II on the ground
it involved a defendant convicted of sex crimes against children, while his
criminal conduct involved adult women.
But this argument was rejected in McKnight,
which held “the analysis and holding in McKee
II do not turn on concerns specific to child predators.†(People
v. McKnight, supra, 212 Cal.App.4th at p. 863.) We agree.
McKee II’s conclusion the
defendant in that case presented a unique danger to children was only one of
three independent reasons justifying disparate treatment of SVP’s.
Defendant also argues
properly apply the appropriate standard of review. He claims “it is not enough to show that the
electorate may have reasonably believed that SVPs were more dangerous—the State
must also show that the indeterminate commitment, the shifting of the burden of
proof, and the elimination of a jury trial was necessary because of that
greater danger.†He further complains
the trial court’s decision under the deferential substantial evidence standard
rather than a de novo analysis and refused to decide “whether the disparate
treatment was the least restrictive means available to advance [a] compelling
[s]tate interest . . . .â€
Finally, he contends that even under a narrower serve a compelling
governmental interest approach, the amended SVPA fails to comply with the equal
protection requirement.
The flaw in defendant’s
claims is that he ignores the reasoning and holding in McKee I. There the Supreme
Court “ma[d]e clear that different classes of individuals civilly committed
need not be treated identically. . . . ‘The state has
compelling interests in public safety and in humane treatment of the mentally
disturbed. [Citation.] It may adopt more than one procedure for
isolating, treating, and restraining dangerous persons; and differences will be
upheld if justified. [Citations.] Variation of the length and conditions of
confinement, depending on degrees of danger reasonably perceived as to special
classes of persons, is a valid exercise of state power.’ [Citation.]
Moreover, we have recognized ‘the importance of deferring to the
legislative branch in an area which is analytically nuanced and dependent upon
medical science.’ [Citation.]†(People
v. McKee, supra, 47 Cal.4th at p. 1210.) To support disparate treatment, “[i]t must be
shown that, notwithstanding the similarities between SVP’s and [other civil
committees], the former as a class bear a substantially greater risk to
society, and that therefore imposing on them a greater burden before they can
be released from commitment is needed to protect society.†(Id.
at p. 1208.) Concluding “the
government has not yet shown that the special treatment of SVP’s is validly
based on the degree of danger reasonably perceived as to that group, nor
whether it arises from any medical or scientific evidence,†the Supreme Court
remanded the matter declaring “[t]he trial court must determine whether the
legislative distinctions in classes of persons subject to civil commitment are
reasonable and factually based . . . .†(Id.
at p. 1210.)
McKee II reflects both the trial court and the Court of Appeal
complied with McKee I. Contrary to defendant’s argument,
SVP’s was based on evidence, not merely public stigma. As we noted in People v. McDonald, supra, 214 Cal.App.4th 1367, “[s]everal
pages of the McKee II opinion are devoted to a detailed review of the
evidence presented at the remand hearing.
The opinion notes disagreements in the expert testimony and concludes
substantial evidence supported a reasonable inference or perception that
disparate treatment of SVP’s was necessary to further the state’s compelling
interests in public safety and humane treatment of the mentally ill. [Citation.]â€
(Id. at p. 1379.)
McDonald recognized McKee II
“independently reviewed the evidence to conclude the People had shown the
legislative distinctions in classes of persons subject to civil commitment were
reasonable and factually based: The
People had shown that recidivism as a class among SVP’s is more likely than
among MDO’s or NGI’s, that SVP’s pose a greater risk to a particularly
vulnerable class of victims, and that SVP’s have diagnostic and treatment
differences from MDO’s and NGI’s.
[Citation.] [McKee II] concluded these distinctions justified disparate
treatment, which was ‘necessary to further the state’s compelling
interests in public safety and humanely treating the mentally
disordered.’ [Citation.] The strict scrutiny standard was satisfied.†(People
v. McDonald, supra, 214 Cal.App.4th at p. 1380.)
Defendant argues
failed to consider the contrary evidence presented at the rehearing on the
equal protection issue. First,
among experts will not suffice to overturn the [amended SVPA]. The trial court must determine whether the
legislative distinctions in classes of persons subject to
factually based—not whether they are incontrovertible or uncontroversial. The trial court is to determine not whether
the statute is wise, but whether it is constitutional.†(People
v. McKee, supra, 47 Cal.4th at pp. 1210-1211.) Second, as we noted in McDonald, McKee II’s
“task . . . was to independently review the evidence to
determine whether the People had presented substantial evidence to support
disparate treatment of SVP’s under the Amended SVPA†and “it was not required
to†“discuss McKee’s evidence . . . under either the directions
in McKee I or the relevant standard of review.†(People
v. McDonald, supra, 214 Cal.App.4th at p. 1381.) Simply because defendant can cite evidence
contradicting that relied on by the trial court and Court of Appeal in
does not undercut the appellate court’s decision.
Defendant’s least
restrictive means available argument ignores the fact McKee I did not require such a finding to justify disparate
treatment of SVP’s and McKee II expressly
rejected this argument.
restrictive means available requirement only applied to disparate treatment of
a suspect class (e.g. aliens). (
Cal.App.4th at p. 1349.) Again, in
restrictive means available’ challenge to indeterminate commitment under the
Amended SVPA.†(People v. McDonald, supra, 214 Cal.App.4th at p. 1380.)
Therefore, we conclude
defendant has failed to establish the current version of the SVPA violates
equal protection of the law as well.
DISPOSITION
Appellant’s motion to
take judicial notice is denied. The
judgment is affirmed.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
THOMPSON, J.
