P. v. Stephenson
Filed 8/16/13 P. v. Stephenson CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(El
Dorado)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM ROBERT
STEPHENSON,
Defendant and Appellant.
C063676
(Super. Ct. No.
PMH2007-0017)
The
defendant committed crimes of sexual
violence in the early 1990’s.
Convicted of those crimes, he served a substantial term in
attorney filed a petition for his commitment as a sexually violent predator
(SVP) under the Sexually Violent Predator
Act (SVPA). (Welf. & Inst. Code
§ 6600 et seq.)
title="">[1] A jury found the allegations of the petition
true.
Committed
as an SVP to the State Department of State Hospitals (formerly the Department
of Mental Health) for an indeterminate term, the defendant appeals. He contends:
(1) his commitment violated several of his
insufficient evidence to support the commitment, (3) his imprisonment was
unlawfully extended by holds imposed by the Board of Parole Hearings; and (4) a
regulation used to impose a hold was invalid.
We conclude that the defendant’s contentions are without merit. Therefore, we affirm.
LEGAL BACKGROUND
“ ‘Sexually
violent predator’ means a person who has been convicted of a sexually violent
offense against one or more victims and who has a diagnosed mental disorder
that makes the person a danger to the health and safety of others in that it is
likely that he or she will engage in sexually violent criminal behavior.†(§ 6600, subd. (a)(1).)
If the
determines that a defendant may be an SVP, it must refer the defendant to the State
Department of State Hospitals for evaluation at least six months before the
defendant’s release date.
name="_ftnref2" title="">[2] (§ 6601, subd. (a).) The State Department of State Hospitals is
then required to evaluate the defendant using standardized assessment protocols
to determine whether the defendant is an SVP.
(§ 6601, subd. (c).) If the State
Department of State Hospitals determines that a defendant is an SVP, the People
may file a petition alleging that a defendant is an SVP. (§ 6601, subds. (h) & (i).) This petition must be filed while (1) the
defendant is in custody serving a determinate prison term or parole revocation
term or (2) while a hold is in place pursuant to section 6601.3, which allows
for an additional 45 days of custody, if good cause is shown, to allow full
evaluation of the defendant under the SVPA before release from custody. (§ 6601, subd. (a)(2).) A good-faith exception to this timing
requirement, relevant to this case, states:
“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.†(§ 6601, subd. (a)(2).)
If the
People prove beyond a reasonable doubt that the defendant is an SVP, the court
must commit the defendant to the State Department of State Hospitals for an
indeterminate term. (§ 6604.)
Once a
defendant is committed as an SVP, the State Department of State Hospitals must
evaluate the defendant’s mental condition at least once a year to determine
whether the person remains an SVP. (§
6605, subd. (a).) If the department
determines the person is no longer an SVP, the State Department of State
Hospitals must authorize the person to petition the court for unconditional
discharge. (§ 6605, subd. (b).) If, on consideration of such a petition, the
court finds probable cause to believe the person is no longer an SVP, the court
must conduct a hearing, at which the People bear the burden of proving beyond a
reasonable doubt that the defendant is still an SVP. (§ 6605, subds. (c) & (d).) If the People meet that burden, the defendant
must (once again) be committed for an indeterminate term. (§ 6605, subd. (e).) If the People do not meet the burden, then
the person must be discharged. (§ 6605,
subd. (e).)
Another
avenue for release from confinement under the SVPA is a petition under section
6608. Under this statute, a defendant
committed as an SVP may petition for conditional (supervised) release or
unconditional discharge without the recommendation or concurrence of the State
Department of State Hospitals. (§ 6608,
subds. (a) & (d).) The defendant has
the burden of proof by a
preponderance of the evidence. (§ 6608, subd. (i).)
FACTUAL
BACKGROUND
The defendant began exposing himself in public in 1984,
including exposing himself to high school students. In his words, he “got hooked on the behavior
. . . , just on the adrenaline, . . . just the
breaking of the law, doing the things, the shocking value of it. It . . . made [him] alive for that
brief moment.â€
The
defendant’s criminal sexual behavior escalated in 1985 to assault. He entered an office complex, intending to
expose himself to a woman. Finding a
victim alone, the defendant knocked her to the ground and held his hand over
her mouth while threatening to kill her.
He intended to rape her. She
pleaded with him not to rape her. The
defendant ordered her to touch his partially erect penis, then he broke down
and cried after assaulting her.
Also in
1985, he was standing naked next to his car near the American River bike
trail. A woman approached and tried to
avoid him, but he ran into her and they fell to the ground. He groped her under her tank top and tried to
pull her shorts down, but she escaped by grabbing his testicles and squeezing
as hard as she could.
On February
27, 1990, the defendant approached a woman at a nude beach. He threatened her with a knife and tried to
penetrate her vagina with his penis.
That was unsuccessful, so he forced her to orally copulate him and he
ejaculated on her face.
On May 2,
1990, the defendant assaulted another woman at the same nude beach. Brandishing a knife, he chased her into the
water and told her to take off her top.
However, the defendant fled when other people approached. He was apprehended when he went to the nude
beach a third time, six weeks after the second attack, and was recognized by
the second woman he assaulted.
In 1991,
the defendant was tried for the two assaults at the nude beach. He was convicted of (1) penetration by
foreign object (Pen. Code, § 289, subd. (a)), (2) assault with intent to commit
rape (Pen. Code, § 220), and (3) oral copulation by force or threats (Pen.
Code, § 288a, subd. (c)), all with the first woman at the nude beach as the
victim, and (4) assault with intent to commit rape (Pen. Code, § 220) with the
second woman at the nude beach as the victim.
He was sentenced to 31 years in state prison.
The
defendant has been incarcerated since these convictions.
The
defendant estimated at trial on the current petition that he committed about 20
sexual offenses before he was incarcerated.
In addition to exposing himself, the defendant committed other sexual
offenses that were similar to the assaults for which he was convicted.
PROCEDURE
In
September 2006, the Legislature amended the SVPA, which now included the
defendant, because of the crimes he had committed, as a possible SVP.
expected release from prison in December 2006 approaching, the Department of
Corrections and Rehabilitation referred the defendant to the State Department
of State Hospitals and the Board of Parole Hearings for an SVP determination. The referral stated that the defendant’s
expected release date was December 29, 2006.
On December
8, 2006, the Department of Corrections and Rehabilitation “partially grantedâ€
the defendant’s request, pursuant to Penal Code section 3060.7, to have his
release date changed from Friday, December 29, 2006, to Wednesday, December 27,
2006. The letter partially granting the
request stated: “[I]f your date remains
December 29, 2006 your date will be adjusted.
You were informed that as release dates are subject to change your date
would not be adjusted until your Parole Audit is done. At that time, if your date remained the same,
your file would be referred to the C&PR for contact with the Parole Unit.â€
On December
21, 2006, the Board of Parole Hearings, at the State Department of State
Hospitals’ request, ordered a three-working-day hold in order to complete the
SVP evaluation. (15 Cal. Code Regs., §
2600.1, subd. (a).) The form imposing
the hold stated that the defendant’s release date was December 27, 2006. The third working day after Wednesday,
December 27, 2006, was Tuesday, January 2, 2007, as a result of the weekend and
the New Year’s Day holiday. However, if
the defendant’s release date was still Friday, December 29, 2006, the third
working day after that release date was Thursday, January 4, 2007. It appears that the proper release date was
December 29, 2006, because there is no evidence in the record that the
conditions for moving the release date to December 27, 2006, were fulfilled.
On December
29, 2006, the State Department of State Hospitals formally requested the Board
of Parole Hearings to conduct a probable cause hearing for the purpose of
placing a 45-day hold on the defendant.
On January
3, 2007, the Board of Parole Hearings held a hearing to determine whether
probable cause justified a 45-day hold pursuant to section 6601.3.
remain in effect from December 29, 2006, to February 12, 2007.
On February
13, 2007, the State Department of State Hospitals received evaluations
supporting the defendant’s commitment as an SVP. On the same day, the District Attorney filed
a petition for commitment, alleging that the defendant is an SVP. The petition stated that the defendant was,
at that time, subject to a 45-day hold pursuant to section 6601.3, which allows
the Board of Parole Hearings to hold a defendant up to 45 days after his
scheduled release for evaluation as an SVP.
it supported probable cause, on its face, and that the defendant should be
detained until a hearing was held to determine whether he is an SVP.
Also on the
same day, February 13, 2007, the trial court made findings that (1) the
defendant was scheduled to be released that day (Feb. 13, 2007) and (2) the
petition, on its face, supported a finding of probable cause. It therefore ordered the defendant detained
pending a probable cause hearing on February 22, 2007, which was later changed
to February 21, 2007, on the defendant’s motion. (§ 6601.5.)
On February
20, 2007, the defendant filed a petition for writ of habeas corpus and motion
to dismiss. He alleged that the 45-day
hold, pursuant to section 6601.3, had expired on February 12, one day before
(1) the People filed the petition for commitment and (2) the trial court made
the finding that the petition showed probable cause on its face. The defendant argued that, because the 45-day
hold expired before the petition was filed and the trial court ordered the
defendant held on the petition, the petition was untimely and his incarceration
unlawful.
At a
hearing on the petition for writ of habeas corpus and motion to dismiss, the
People argued that, because February 12, 2007, was a court holiday, the People
had until February 13 to file the petition and obtain the order holding the
defendant. The People also argued that,
even if the petition were late, the good-faith-mistake-of-law-or-fact exception
in section 6601, subdivision (a)(2) applied, thus preventing dismissal. The trial court denied the petition for writ
of habeas corpus and motion to dismiss on the timeliness issue and found
probable cause, based on psychological
evaluations, to hold the defendant for trial on the petition.
On May 22,
2007, and again on February 21, 2008, the defendant filed petitions for writ of
habeas corpus and motions to dismiss. He
asserted, among other things, that the 45-day hold and a prior three-day hold
placed on him in December 2006 were unlawful.
denied the petitions and motions. The
court held that alleged defects in the hearing by the Board of Parole Hearings
to impose the 45-day hold were not a basis for dismissal of the petition for
commitment. The court also held that the
filing of the petition to commit the defendant under the SVPA one day after he
was scheduled for release was a result of a good faith mistake of law -- the
belief that Code of Civil Procedure section 12a extended the filing deadline by
one day because of the holiday.
name="_ftnref10" title="">[10]
A jury
found the allegations of the petition for commitment true, and the trial court
committed the defendant as an SVP for an indeterminate term.
DISCUSSION
I
Waiver of Constitutional Challenges
On appeal,
the defendant raises several constitutional challenges to his commitment. His constitutional challenges are that: (1) the use of the SVPA’s good-faith
exception to timely filing of a petition violated his equal protection rights
because no such exception applies to mentally disordered offenders (MDO’s), (2)
his indeterminate commitment violated his equal protection rights because MDO’s
are not subjected to the same commitment, (3) the SVPA violates his due process
rights because, once committed, he has the burden of proving he should no
longer be detained, (4) the SVPA violates his due process rights also because
the standard for commitment -- that is, a person who is “likely†to engage in
sexually violent criminal behavior -- is not narrowly tailored to a compelling
state interest, and (5) the SVPA violates the ex post facto clause.
The
defendant did not raise any constitutional challenges to his commitment until
the day he filed his notice of appeal from the commitment order. He claims that this tardy assertion of
constitutional claims preserved the issues for appeal. We disagree.
The
defendant’s further assertion that trial counsel was ineffective for allowing
forfeiture of the constitutional claims is without merit because the defendant
fails to establish prejudice.
Background on
Forfeiture Issue
The SVPA
provides for the involuntary civil commitment, for treatment and confinement,
of an individual who is found, by a unanimous jury verdict (§ 6603, subds. (e)
& (f)), and beyond a reasonable doubt, to be a “sexually violent predatorâ€
(§ 6604).
Before
2006, a sexually violent predator was committed to the custody of the
Department of Mental Health (now called the State Department of State
Hospitals) for a two-year term. The
SVP’s term of commitment could be extended for additional two-year
periods. (Former § 6604, as amended by
Stats. 2000, ch. 420, § 3, pp. 3139-3140; former § 6604.1, as amended by Stats.
2000, ch. 420, § 4, p. 3140.) On
September 20, 2006, the Governor signed into law Senate Bill No. 1128
(2005-2006 Reg. Sess.), which amended the SVPA effective immediately. (Stats. 2006, ch. 337, § 62, p. 2668.) Among other changes, the amended SVPA
provides for an indeterminate term of commitment. (Stats. 2006, ch. 337, § 55.) Voters later approved Proposition 83, amending
the SVPA effective November 8, 2006.
Like Senate Bill No. 1128, Proposition 83 provided that an SVP’s
commitment is “indeterminate.†(§ 6604; People
v. Whaley (2008) 160 Cal.App.4th 779, 785-787.)
Proposition
83 also changed the law concerning release of an SVP. If the State Department of State Hospitals
determines that a person is no longer an SVP, the person may petition the court
for release. (§ 6605, subd. (b).) If the state opposes the petition, it bears
the burden of proving beyond a reasonable doubt that the person is still an
SVP. (§ 6605, subd. (d).) If the State Department of State Hospitals
does not determine the person is no longer an SVP, the person may still file a
petition for release, but the person bears the burden of proving by a
not an SVP. (§ 6608, subds. (a) &
(i).)
In
State Department of State Hospitals for an indeterminate period pursuant to the
SVPA challenged his indeterminate commitment on equal protection, due process,
and ex post facto grounds. The court
rejected the defendant’s due process and ex post facto arguments, thus
upholding the SVPA with respect to those constitutional provisions.
at pp. 1191-1195.) On the issue of equal
protection, however, the Supreme Court reversed and remanded for further
proceedings. (Id. at pp. 1208-1211.)
The remand
proceedings in McKee I are now
final. (See People v. McKee (2012) 207 Cal.App.4th 1325, review den. Oct. 10,
2012, S204503 (McKee II).) In McKee
II, the Fourth Appellate District affirmed the trial court’s determination
upon remand that the People had met their burden under the equal protection clause
to justify treating SVP’s differently from MDO’s and persons committed after
being found not guilty by reason of insanity (NGI’s). (Id.
at pp. 1347-1348.)
The matter
of the defendant’s commitment under the SVPA was tried to a jury, which found
the petition true on November 19, 2009.
The court imposed the commitment for an indeterminate period, pursuant
to the SVPA, on December 1, 2009. On
December 8, 2009, the defendant filed his notice
of appeal from the commitment order.
Also on that day, he raised, for the first time, the constitutional
claims he makes on appeal, filing what his counsel called a “respondent’s legal
brief regarding commitment.†The new
filing asserted that the SVPA violates constitutional due process, equal
protection, ex post facto, double jeopardy, and petition rights. The trial court set the legal brief for a
hearing on January 21, 2010.
On December
11, 2010, three days after his counsel filed the notice of appeal and the new
legal brief, the defendant, himself, sent a letter to the court asking why he
was still in jail and had not yet been sent to Coalinga State Hospital. He asked:
“What in the world is the hold up?
And what must be done to speed the process along?†As a postscript to his letter, the defendant
added: “I understand that my attorney
has a motion hearing on 1-21-10. If this
is effecting [sic] my transfer then,
and regardless, I officially waive my right to be present at the hearing on the
above referenced date. Hopefully this
will help [smiley face].â€
At the
hearing on January 21, 2010, defense counsel (the defendant was not present)
stated that he filed the brief merely to “perfect the record†because he had
not raised the constitutional claims earlier.
The court stated that it had received and reviewed the legal brief and
ordered that the “Indeterminate Term of Commitment will stand.†The defendant did not file a new notice of
appeal.
“[T]he
California Supreme Court has consistently applied waiver or forfeiture rules in
the context of fundamental constitutional rights. [Citations.]
The reason for these rules has been articulated by the California
Supreme Court as follows: ‘ “An
appellate court will ordinarily not consider procedural defects or erroneous
rulings, in connection with relief sought or defenses asserted, where an
objection could have been but was not presented to the lower court by some
appropriate method . . . .
The circumstances may involve such intentional acts or acquiescence as
to be appropriately classified under the headings of estoppel or
waiver . . . .
Often, however, the explanation is simply that it is
party to take advantage of an error on appeal when it could easily have
been corrected at the trial.†’
[Citation.] The California
Supreme Court has held: ‘ “The purpose
of the general doctrine of waiver is to encourage a defendant to bring errors
to the attention of the trial court, so that they may be corrected or avoided
and a fair trial had. . . .†’
[Citation.] Further the
California Supreme Court has held: ‘ “
‘No procedural principle is more familiar to this Court than that a
constitutional right,’ or a right of any other sort, ‘may be forfeited in
criminal as well as civil cases by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it.’ [Citation.]â€
[Citation.]’ [Citation.]
“The
California Supreme Court has not only required specific objections in
connection with the assertion of constitutional rights, but assignments of
error must be made promptly. There are
well established and consistently applied California Supreme Court holdings
requiring prompt and timely objections in connection with a whole host of
constitutional and statutory issues.
[Citations.] Delay in raising
constitutional and statutory issues can constitute waiver, forfeiture, and
procedural default of a defendant's constitutional
and statutory claims.†(
634, 645-646, original italics.)
The
defendant makes no attempt to argue that his raising of constitutional claims
in the trial court was timely. Instead,
he argues that his claims are cognizable on appeal for various other
reasons. Indeed, the constitutional
claims are not timely. Neither were they
validly raised at all in the trial court.
The trial court had no jurisdiction to consider the constitutional
claims because the notice of appeal had been filed. (People
v. Wagner (2009) 45 Cal.4th 1039, 1061.)
Therefore,
we consider the defendant’s three assertions claiming his failure to timely
assert the constitutional claims should be excused: (1) no waiver of constitutional rights may be
implied but must be express, (2) the sentence was unauthorized, and (3) the
authority for the contention postdates the conduct complained of. None of these assertions has merit.
First, the
proposition that constitutional claims can be waived or forfeited only
expressly is plainly wrong. As noted
above, a constitutional right may be forfeited by failure to assert it. (In re
Jermaine B., supra, 69 Cal.App.4th at pp. 645-646.)
Second,
although an unauthorized sentence may be challenged on appeal even in the
absence of a trial court objection, that principle does not apply here because
there was no unauthorized sentence. This
argument applies only to the defendant’s assertion that the indeterminate
commitment was unconstitutional.
Sentencing
issues not raised in the trial court may nonetheless be addressed on appeal if
the sentence imposed was unauthorized. (
354.) “[T]he ‘unauthorized sentence’
concept constitutes a narrow exception to the general requirement that only
those claims properly raised and preserved by the parties are reviewable on
appeal. [Citations.]†(Ibid.)
Here, the
defendant claims the sentence was unauthorized because the statute upon which
the sentence is based is unconstitutional.
This is a claim concerning the validity of the statute, not whether the
sentence is authorized. It is clearly
authorized by the statute, which is not unconstitutional. (McKee
II, supra, 207 Cal.App.4th at pp. 1347-1348.)
In any
event, allowing an appellant to challenge a sentence on appeal as unauthorized
by claiming the statute is unconstitutional would eradicate the forfeiture rule
as to appellate constitutional challenges to sentences. That is inconsistent with the forfeiture
rule. Only those constitutional
challenges that are “pure question[s] of law†are excepted from the forfeiture
rule. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) The question of whether the indeterminate
commitment violates equal protection is not a pure question of law, as shown by
the Supreme Court’s remand of McKee I
for development of the facts.
Third and
finally, the defendant cannot claim that the authority for his assertions of
constitutional error postdated the conduct complained of because, although the
California Supreme Court decided McKee I,
which we discuss below, after the trial court here issued the commitment order,
the authority for the defendant’s contentions are the United States and
California Constitutions. Furthermore,
the California Supreme Court had made it clear, even before the commitment
order in this case, that it was considering the constitutional issues the
defendant now seeks to raise. The court
had granted review on those issues both in McKee
I and a case from this district.
The
defendant’s constitutional challenges against the SVPA are therefore forfeited.
The
defendant claims that, if we conclude he forfeited his constitutional claims by
failing to assert them in a timely fashion in the trial court, his right to
effective assistance of counsel was violated.
We disagree because he has failed to establish prejudice.
“To succeed
in a claim of ineffective assistance of counsel, defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms and that, but for counsel’s error, the outcome of the
proceeding, to a reasonable probability, would have been different. (Strickland v. Washington (1984) 466
U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674]; People v. Ledesma (1987) 43
Cal.3d 171, 216-218.) If the record on
appeal sheds no light on why counsel acted or failed to act in the manner
challenged, the claim on appeal must be rejected unless counsel was asked for
an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation. (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266.)â€
(People v.
Lawley (2002) 27 Cal.4th 102, 133, fn. 9.)
It is not
necessary for the court to examine the performance prong of the test before
examining whether the defendant suffered prejudice as a result of counsel’s
alleged deficiencies. (Strickland v.
Washington, supra, 466 U.S. at p. 697.)
“If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be
followed.†(Ibid.)
We consider
prejudice as to each of the constitutional issues he raises on appeal: (1) equal protection as to the SVPA’s
good-faith exception to timely filing of a petition, (2) equal protection as to
his indeterminate commitment, (3) due process rights as to his burden of
proving he should no longer be detained, (4) due process rights as to the use
of the word “likely†to describe an SVP, and (5) ex post facto.
(1)
exception. The defendant’s equal
protection challenge focuses on the difference between laws concerning SVP’s
and MDO’s. Specifically, with respect to
an SVP, “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.†(§ 6601, subd. (a)(2).) There is no similar good-faith exception to
the laws concerning MDO petitions.
As to
whether the good-faith exception applicable to SVP’s violates the equal
protection clause because there is no such good-faith exception for MDO’s, the
contention fails because the differences between SVP’s and MDO’s justify the
differential treatment. (
1347-1348.)
(2)
commitment. On the indeterminate
commitment issue, the defendant has not shown prejudice because he has not
shown that, absent a trial court objection, his commitment would have been
reversed on equal protection grounds. In
fact, in his briefing on appeal, he does not seek reversal of his commitment on
equal protection grounds. Instead, he
states that “until further direction from the state Supreme Court is received,
[] his case should be remanded to the trial court to determine whether
sufficient justification has been shown for treating SVP’s differently from
MDO’s and NGI’s under the guidance provided in McKee [I].†This is not an argument for reversal of the
commitment; it is an argument for more proceedings. Therefore, he has not shown prejudice on the
equal protection issue, regardless of whether his counsel should have raised
the issue in the trial court.
(3)
challenge to the SVPA based on an indeterminate commitment and alleged
procedural defects in the SVPA fails in this court because McKee I, supra, 47 Cal.4th at pages 1192 to 1193, rejected it. (Auto
Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
(4)
other elements, is “likely†to “engage in sexually violent criminal
behavior.†(§ 6600, subd. (a).) Noting that “likely†in the SVPA does not
mean “ ‘more likely than not,’ †as held in People
v. Roberge (2003) 29 Cal.4th 979, 986, and People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922, the
defendant asserts that the “likely†standard violates
narrowly tailored to the state’s compelling interest of keeping SVP’s off the
streets. He argues: “Because California’s SVP law permits the
state to confine several individuals who would not otherwise offend for each
individual who otherwise would, it is not narrowly tailored and denies due
process of law.â€
We disagree
that the “likely†standard is not narrowly tailored to the compelling state
interest of protecting the public from SVP’s.
Public protection can require that we keep off the street a person with
what experts discern is less than a 50-50 chance of reoffending. As stated by the
Supreme Court, the “likely†standard means “a substantial danger,
that is, a serious and well-founded risk, of committing such crimes if
released from custody.†(
p. 988, original italics, fn. omitted.)
The standard is applied to each defendant, without regard to whether
other defendants are likely to reoffend, and determines whether the risk to the
public is high enough to justify commitment.
This standard is narrowly tailored to the state’s compelling
interest.
To the
extent that the defendant’s argument is that the California Supreme Court cases
concerning the “likely†standard are wrong, the argument fails in this court
because we are bound by the higher court cases.
(Auto Equity Sales, Inc. v.
455.)
(5)
challenge to the SVPA fails in this court because McKee I, supra, 47 Cal.4th at pages 1193 to 1194, rejected it. (Auto
Equity Sales, Inc. v. Superior Court,
supra, 57 Cal.2d at p. 455.)
Because the
defendant suffered no prejudice from trial counsel’s alleged deficiency in
raising constitutional issues, the claim of ineffective assistance of counsel
fails.
II
Sufficiency of Evidence
The
defendant contends that no substantial evidence supports his commitment. We disagree.
To be committed
under the SVPA, there must be expert psychological evidence, using standardized
assessment protocols, that the defendant “is likely to engage in acts of sexual
violence without appropriate treatment and custody.†(§ 6601, subds. (c) & (d).) “While there is no need for proof of a recent
overt act while the offender is in custody (Welf & Inst. Code, § 6600,
subd. (d)), it is clear that the SVPA permits civil commitment only upon a
finding that the person has current
psychological symptoms that render him or her likely to reoffend.†(People
v. Hubbart (2001) 88 Cal.App.4th 1202, 1219, original italics.)
When a
defendant challenges the sufficiency of the evidence in proceedings under the
SVPA, “this court must review the entire record in the light most favorable to
the judgment to determine whether substantial evidence supports the
determination below. [Citation.] To be substantial, the evidence must be ‘ “of
ponderable legal significance . . . reasonable in nature, credible
and of solid value.†’ [Citation.]†(People v. Mercer (1999) 70
Cal.App.4th 463, 466.) “In reviewing the
record to determine the sufficiency of the evidence this court may not
redetermine the credibility of witnesses, nor reweigh any of the evidence, and
must draw all reasonable inferences, and resolve all conflicts, in favor of the
judgment. [Citation.]†(People v. Poe (1999) 74 Cal.App.4th
826, 830.) In particular, we may not
reassess the credibility of experts or reweigh the relative strength of their
conclusions. (Id. at p. 831.) We reverse
only if no rational trier of fact could have found the essential elements
beyond a reasonable doubt. (People v.
Rowland (1992) 4 Cal.4th 238, 269.)
In this
case, the evidence supporting the defendant’s commitment consists, for the most
part, of his convictions and the expert opinion of Dr. Garrett Essres, a
clinical psychologist who works as an independent contractor for the State
Department of State Hospitals. Dr.
Essres conducted two evaluations of the defendant, one in 2007 and one less
than six months before the defendant’s trial in 2009.
Dr. Essres
explained that during evaluation interviews subjects are inclined not to
self-report their fantasies and urges.
He found the defendant to be untruthful in several respects during the
interview, attempting to appear better at the interview than the record of his
accomplishments supported. When asked to
recount his history of sex offenses, the defendant did not include all of his
sex offense convictions and he tried to minimize some of them, claiming he was
not guilty. He did, however, admit that
he felt compelled to expose himself, even though it made him feel sick. He also admitted that he had exposed himself
on 20 to 25 occasions when he was not caught.
As a result
of his review of the defendant’s records and his evaluations of the defendant,
Dr. Essres diagnosed the defendant as having three disorders: (1) Paraphilia, which is a general category
for sexual disorders. This states
generally that the defendant has a sexual disorder, which is not otherwise
specified. The defendant’s commission of
a series of nonconsensual sexual acts over a period of more than six months led
to this diagnosis. (2) Exhibitionism. This diagnosis requires urges, fantasies, or
behaviors over a period of more than six months that would lead to
exhibition. And (3) cocaine
dependency. As to this diagnosis, the
defendant is in early full remission because of his controlled
environment.
In making
his diagnosis, Dr. Essres was aware of several factors: (1) the defendant’s convictions for sexual
offenses, (2) the defendant’s admissions that he had committed many other
offenses for which he was not convicted, (3) the defendant’s pattern of
escalating offenses, going from exhibitionism to hands-on offenses, (4) the
defendant’s sexual offenses against strangers, (5) the defendant’s continuing
sexual offenses even after having received treatment in the 1980’s while on
probation, and
(6) the defendant’s statements that he had been compelled to commit the
offenses
despite being disgusted by the conduct.
Dr. Essres
also evaluated the defendant for the risk of reoffending, using professionally
accepted methods including the Static-99 test.
That Static-99 test addresses risk of reoffending for sex offenders
specifically. As a result of that
testing, Dr. Essres concluded that the defendant was a high risk for
reoffending. With a score of eight on
the Static-99 test, the defendant has a 45-percent chance of committing a new
offense that will result in conviction within five years and a 52-percent
chance of the same within 10 years. The
chance that he will reoffend (whether convicted of the offense or not) is much
higher than his chance that he will reoffend and be convicted as a result.
The fact
that the defendant has not committed a sexual offense against a prison staff
member during his years of custody does not weigh in favor of reduced risk once
he is released under the Static-99 test.
The
defendant contends that this evidence is insufficient to support his commitment
because the evidence of his mental
disorders was not sufficiently objective and recent. To the contrary, Dr. Essres evaluated the
defendant’s behavior less than six month before trial. The psychological testing, including the
Static-99 test, evaluated the defendant’s current mental disorders and current
risk of reoffending.
Citing People v. Buffington (1999) 74 Cal.App.4th 1149 (Buffington),
the defendant asserts that opinion evidence alone cannot support a finding of a
mental disorder. Buffington stated that the SVPA “requires ‘recent objective indicia
of the defendant’s condition’ and a ‘recent objective basis for a finding that
an inmate is likely to reoffend.’ †(
Hubbart, supra, 88 Cal.App.4th at p. 1219 [SVPA requires “a finding that
the person has current psychological symptoms that render him or her
likely to reoffend,†original italics].)
However, contrary to the defendant’s suggestion, the Buffington
court did not hold or suggest that expert opinion cannot provide substantial
evidence that a person is an SVP.
In Buffington,
the court addressed several constitutional challenges to the then current
version of the SVPA, including an argument that the SVPA violated equal
protection because it had less stringent evidentiary requirements than other
civil commitment schemes. (Buffington, supra, 74 Cal.App.4th at pp. 1153-1164.) Specifically, the defendant argued that the
SVPA, in contrast to other schemes, did
not require “ ‘any recent objective indicia of the defendant’s condition’ or
‘any
recent objective basis for a finding that an inmate is likely to reoffend.’
†(Id. at pp. 1159-1160.) After reviewing the administrative and judicial
proceedings required
under the SVPA to determine whether a person qualifies as an SVP (including
whether he has a diagnosed mental disorder that makes him likely to reoffend),
the
court rejected this contention. (Id. at pp. 1160-1161.) The
court, quoting the appellant’s argument, concluded that the SVPA does
require “ ‘recent objective indicia of the defendant’s condition’ and a ‘recent
objective basis for a finding that an inmate is likely to reoffend,’ †and that
“ ‘current psychological symptoms are needed’ to establish that a person is an
SVP. [Citations.]†(Id. at p. 1161.) In stating these conclusions, the court did
not state or suggest that expert testimony was disfavored or could not
constitute substantial evidence under the SVPA.
To the contrary, in upholding the SVPA, the court emphasized the
importance of the statute’s requirement of professional assessments (by mental
health professionals) of various diagnoses and specified risk factors. (Id. at pp. 1160-1161.)
Here, Dr.
Essres’s opinion concerning the defendant’s diagnoses was specific and
supported by the facts. This objective
evidence was sufficient to support the commitment.
The
defendant further contends that the evidence was insufficient to support the
commitment because it was based mainly on his convictions and he has not
reoffended while in prison. The
contention is without merit because Dr. Essres based his diagnoses on the
defendant’s current mental disorder based on his evaluation of the
defendant. While Dr. Essres took into
account the defendant’s convictions, he also observed the defendant and, from
the complete picture, made his diagnoses.
Furthermore, evidence that the defendant has not reoffended in prison is
not very helpful. (See People v.
Sumahit (2005) 128 Cal.App.4th 347, 353 [absence of assault of staff merely
shows behavior in controlled setting].)
In his
reply brief, the defendant asserts that the statistics on his likelihood of
reoffending related only to his exhibitionism, which is not a sexually violent
crime. To the contrary, Dr. Essres noted
the defendant’s pattern of escalating offenses, going from exhibitionism to
hands-on offenses. The evaluation of the
defendant’s risk of reoffending was not limited to his earlier
exhibitionism.
The evidence
was sufficient to support the commitment.
III
The defendant challenges the timeliness of the petition
filed against him alleging he is an SVP.
He claims the petition was untimely because there was no justification
for placing on him (A) a three-day hold and (B) a 45-day hold. We disagree.
At the time
of the events relevant to this appeal, section 2600.1 of title 15 of the
California Code of Regulations provided the Board of Parole Hearings with the
authority to extend a defendant’s incarceration “where exceptional
circumstances preclude an earlier evaluation and judicial determination of
probable cause (Welfare & Institutions Code section 6602) prior to return
to custody or release on parole.†(15
Cal. Code Regs., former § 2600.1, subd. (a).)
The
operative provision stated: “Upon
notification from the Department of Corrections [and Rehabilitation], [State]
Department of [State Hospitals], or Board of [Parole Hearings] staff that there
is some evidence to believe that an inmate or parolee in revoked status is a
sexually violent predator within the meaning of Welfare and Institutions Code
division 6, part 2, chapter 2, article 4, (section 6600 et seq.), the board may
order imposition of a temporary hold on the inmate or parolee in revoked status
for up to three (3) working days pending a probable cause hearing by the
board. The temporary hold period may be
extended for a reasonable period of time to retain counsel or an interpreter,
if needed, for the inmate or parolee in revoked status. Attempts to retain counsel or other
assistance resulting in lengthening the temporary hold time shall be
documented.†(15 Cal. Code Regs., former
§ 2600.1, subd. (b).)
In addition
to this regulation allowing a three-day hold, the Welfare and Institutions Code
provided for a 45-day hold, as follows:
“Upon a showing of good cause, the Board of [Parole Hearings] may order
that a person referred to the State Department of [State Hospitals] pursuant to
subdivision (b) of Section 6601 remain in custody for no more than 45 days
beyond the person’s scheduled release date for full evaluation pursuant to
subdivisions (c) to (i), inclusive, of Section 6601.â€
p. 129.)
As noted
above, the Welfare and Institutions Code provides for a good-faith exception to
the time limits for filing a petition for commitment as an SVP: “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.†(§ 6601, subd.
(a)(2).)
A. Three-day
Hold
The
defendant argues that the three-day hold, pursuant to section 2600.1 of title
15 of the California Code of Regulations was unlawful because there were no
exceptional circumstances justifying the hold and the probable cause hearing
was not held during the three-day hold.
We conclude that (1) the circumstances sufficiently supported the
decision to impose the three-day hold and (2) the three-day hold extended to
January 4, 2007, and (3) even assuming there were some error by the Board of
Parole Hearings, such error was the result of a good faith mistake of fact or
law. Accordingly, the arguments are
without merit.
1. Circumstances Supporting Three-Day Hold
The
regulation in effect at the relevant time allowed the Board of Parole Hearings
to impose a three-day hold on the defendant pending a probable cause
hearing. (15 Cal. Code Regs., former §
2600.1, subd. (b).) The purpose for the
regulation was “to provide a mechanism for screening . . . inmates
under the Sexually Violent Predator Program . . . where exceptional
circumstances preclude an earlier evaluation and judicial determination of
probable cause . . . prior to . . . release on
parole.†(15 Cal. Code Regs., former §
2600.1, subd. (a).)
The
defendant asserts there were no exceptional circumstances justifying the
three-day hold. We disagree.
The
amendment to the Welfare and Institutions Code that made the defendant eligible
to be deemed an SVP was passed in September 2006, just three months before the
defendant’s expected release. Under the
SVPA, a defendant is screened by two mental health professionals. If they agree that the defendant meets the
criteria as an SVP, the State Department of State Hospitals may request the
district attorney to file a petition for commitment. (§ 6601, subds. (d).) If one disagrees, however, the State
Department of State Hospitals must arrange for two independent mental health
professional to evaluate the defendant.
(§ 6601, subds. (e).) If the two
independent mental health professionals agree that the defendant meets the
criteria as an SVP, a petition for commitment may be filed. (§ 6601, subds. (f).)
On December
14, 2006, Dr. Douglas Korpi evaluated the defendant and concluded that he did
not meet the criteria as an SVP. With
the defendant’s expected release approaching, the Board of Parole Hearings, on
December 21, 2006, ordered a three-day hold beyond the defendant’s release date
for the State Department of State Hospitals to complete the evaluations. On December 26, 2006, Dr. John Hupka
evaluated the defendant and found that he met the criteria as an SVP. Thereafter, the Board of Parole Hearings held
the hearing that resulted in the 45-day hold.
These
circumstances justified the three-day hold.
The law had been recently changed.
The defendant’s convictions newly qualified him for SVP consideration. The first mental health professional
determined that the defendant did not meet the criteria as an SVP, and the
second mental health professional disagreed.
Further evaluations were necessary.
Therefore, the three-day hold was properly imposed.
2. Three-day
Hold Period
The Board of Parole Hearings imposed the three-day hold
on December 21, 2006. At that point, the
defendant’s release date was December 29, 2006.
Therefore, the hold was in place until January 4, 2007, because it extended
the release date by three working days, and the Board’s probable cause hearing
concerning whether to impose the 45-day hold was held on January 3, 2007. Using these calculations, the probable cause
hearing was held within the three-day hold period.
We disagree
with the defendant’s assertion that his release date was December 27, 2006, and
that the three-day period expired on December 29, 2006. As noted above, there is no indication in the
record that the conditions for moving the defendant’s release date to December
27, 2006, had been fulfilled.
To the
extent that the defendant asserts that the three-day hold ended on December 29,
2006, because the Board of Parole Hearings’ order made his 45-day hold
retroactive to that date, the assertion is without merit. It appears that the Board applied the 45 days
to the end of the defendant’s prison term, without regard to the three-day hold
that had been imposed to allow time for the Board to act. In other words, even though a three-day hold
had been imposed, the defendant’s 45-day hold began at his original release
date.
3. Good Faith Mistake of Fact or Law
In any
event, section 6601, subdivision (a)(2) provides for a good-faith exception to
SVP procedure timing problems. It
states: “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.â€
(§ 6601, subd. (a)(2).) Here,
there is no indication that, assuming there were timing problems with the
three-day hold, they were the result of bad faith.
B.
The defendant challenges two aspects of the 45-day hold,
which extended from December 29, 2006, to February 12, 2007. He contends that (1) the 45-day hold was
unlawful because there were no exceptional circumstances for continuing to hold
the defendant and there was no probable cause shown at the hearing and (2) the
45-day hold had expired before the district attorney filed the commitment
petition. The contentions are without
merit.
1. Lawfulness of 45-day Hold
The 45-day
hold was imposed because two mental health professionals had evaluated the
defendant and disagreed concerning whether the defendant met the SVP
criteria. The hold allowed the State
Department of State Hospitals to obtain evaluations from two independent mental
health professionals as required by the Welfare and Institutions Code. Therefore, the hold was justified.
Furthermore,
there was probable cause to impose the 45-day hold. The defendant’s convictions qualified him for
SVP status, and one mental health professional had concluded that he met the
criteria as an SVP. These circumstances
were sufficient to support a finding of probable cause that the defendant was
an SVP.
2. Expiration of the 45-day Hold
A 45-day
hold is not extended to the next day when it falls on a weekend or
holiday. (Small, supra, 159 Cal.App.4th 301.)
Therefore, the filing of the petition for commitment was one day
late. Nevertheless, the trial court
determined that the good-faith exception applied to this timing problem.
At the
hearing on one of the petitions for writ of habeas corpus and motions to
dismiss, the district attorney explained that the State Department of State
Hospitals had calculated that the petition for commitment could be filed on
February 13, 2007, even though the 45-day hold would expire on February 12,
2007, because the 12th was a holiday.
The district attorney received the information on February 13, 2007, and
filed the petition that day.
and held that Code of Civil Procedure section 12a, which extends the last day
for performance of any act to the next day that is not a holiday, does not
apply to the expiration of a 45-day hold.
(159 Cal.App.4th at p. 310.)
Therefore, because the trial court had found no good cause for failure
to file a timely petition, the Small
court affirmed the trial court’s dismissal of the petition. (Ibid.)
Here, the
trial court expressly found that the late filing of the petition “was the
result of a good faith mistake of fact or law.â€
(§ 6601, subd. (a)(2).) In that
way, this case is distinguishable because there was no such finding in
The trial
court did not abuse its discretion in determining that the good-faith exception
applied. Nothing in the record
contradicts the finding of the trial court that the mistake was made in good
faith.
IV
Validity of Regulation
For the
first time on appeal, the defendant contends that the three-day hold pursuant
to section 2600.1 of title 15 of the California Code of Regulations was illegal
because the regulation conflicts with the statute, which provides only for a
45-day hold. (§ 6601.3.) The defendant complains that the regulation
allows for a total 48-day hold. We need
not reach the question of whether the regulation conflicts with the statute
because, even if it does, the defendant suffered no prejudice as a result. The defendant was held for a total of 45 days
after his release date (which was Dec. 29, 2006), plus the one day based on the
mistake of law (excused under the good-faith exception), not for 48 days past
his release date. The Board of Parole
Hearings made his 45-day hold retroactive to the original release date. Accordingly, because he was not prejudiced,
he cannot complain. (Cal. Const., art.
VI, § 13.)
DISPOSITION
The order of commitment is affirmed.
NICHOLSON , Acting P. J.
We
concur:
ROBIE , J.
DUARTE , J.
name="_ftn1" title="">[1] Hereafter, unspecified code citations
are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] As noted below, the defendant was not
referred more than six months before his release date because he was not
eligible to be designated an SVP at that time.
He became eligible and was referred later when the law changed.
