P. v. Trevino

Filed 8/31/09 P. v. Trevino CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Louie L. Vega, Judge.

Law offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Carlos Trevino (Trevino) appeals from a judgment that granted a petition for civil commitment under the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code, sections 6600 et seq.^[1] He contends that the superior court erred in not granting one or more of his motions to dismiss the petition. For example, he contends that the petition should have been dismissed because the psychiatric evaluations used to support the petition are invalid and thus reversal is required. Trevino also contends that the recent amendments to the SVPA are unconstitutional. For the following reasons, we affirm the judgment in its entirety.

STATEMENT OF THE CASE

On March 7, 2007, the Kern County District Attorney filed a petition for commitment under the SVPA. As required by the SVPA, prior to the filing of this petition, two professional evaluators both found appellant to be a sexually violent predator (SVP) who qualified for commitment.

On March 16, 2007, a probable cause hearing was held and the trial court found that there is probable cause and sufficient evidence that appellant falls within the SVP statutory scheme.

On August 7, 2008, appellant filed his first notice requesting dismissal of the SVPA petition on the ground that his custody was unlawful pursuant to section 6601.3. On September 8, 2008, appellant filed two additional motions requesting dismissal. According to appellants second motion, dismissal was required because one of the evaluators, Dr. Finnberg, intentionally violated the attorney-client privilege. According to his third motion, dismissal also was required because the evaluations were improperly prepared in conformity with a standardized assessment protocol that should have been, but was not, enacted as regulation under the provisions of the Administrative Procedures

Act (APA), which denied him due process. (See 6601, subd. (c); Gov. Code, 11340.5, subd. (a), 11342.600.) After reviewing the briefings and hearing oral argument from both parties, the trial court denied all three of appellants motions.

On September 17, 2008, appellants jury trial on the SVPA petition began. On September 22, 2008, a unanimous jury found the petition to be true and found appellant to be a SVP within the meaning of the SVPA. Consequently, appellant was committed for an indeterminate term to the Department of Mental Health (DMH) for appropriate treatment.

On September 22, 2008, appellant filed a timely notice of appeal.

FACTS

Appellant was evaluated by two psychologists, Dr. Elaine Finnberg and Dr. Mark Miculian. Dr. Finnberg, who has performed over 300 SVP evaluations, conducted two separate SVP evaluations of appellant; the first on January 30th, 2007, and the second in June of 2008. Dr. Miculian, who has performed over 400 SVP evaluations, evaluated appellant in January of 2007.

Both doctors reviewed appellants criminal history records, medical file, and other information before interviewing appellant. In evaluating whether appellant falls within the ambit of the SVP statute, the doctors looked at three criteria: 1) whether appellant was convicted of at least one of the specified qualifying offenses under the SVPA; 2) whether appellant has a diagnosable mental disorder that predisposes him to commit violent sexual offenses; and 3) whether appellant is likely to engage in sexually violent predatory behavior without appropriate treatment in custody.

At the trial, Dr. Finnberg briefly described appellants offenses and victims. In 2004, appellant was convicted of committing a lewd act on a seven-year-old boy, which is a qualifying SVP offense. Appellant also was alleged to have touched the buttocks of a five-year-old female victim while providing child care. Additionally, when appellant was 17 years old, he was arrested for molesting his seven-year-old male cousin.

Appellant previously admitted that he has been hearing voices since he was 10 or 11-years old that command him to hurt people or hurt himself which he tries not to do. The voices also tell him to have sex with boys. When arrested for the 2004 offense, appellant repeatedly said that he had a problem with children and that he needed treatment. Appellant has also said that he had been thinking about molesting the child before he went to that residence, before the second molestation.

Dr. Finnberg noted that appellant showed no remorse or guilt about his sexual offenses and that appellant does not accept responsibility for his actions as he either denies that the offenses occurred or minimizes them. Appellant told Dr. Finnberg that he does not dwell on the past, does not remember the victims, and was not sure how his offenses affected the victims.

Dr. Finnberg and Dr. Miculian both diagnosed appellant with pedophilia, a chronic sexual deviant preference for prepubescent children. Appellant had previously been diagnosed with major depression with psychotic features and a learning disability.

As part of her evaluation of appellant, Dr. Finnberg used the Static-99 test, a statistical tool designed to assess the risk of a person reoffending. Appellant scored a four on the test, indicating a 26 percent risk of reoffending and being convicted of reoffending in five years. When Dr. Miculian administered the Static-99 test during his evaluation, appellant scored a five, which is also in the same moderate-high category of reoffending as a score of four. Dr. Miculian also administered the Minnesota Sex Offender Screening Tool-Revised, which is another actuarial instrument that helps predict sexual reoffenders. Appellant scored a negative three on this test, which indicates a 12 percent risk of reoffending after six years.

Dr. Finnberg opined that appellant is not a viable candidate for voluntary treatment and that if he were released from custody without treatment, he likely would reoffend. Dr. Miculian opined that appellant presents a substantial risk to the health and safety of the public if he is treated outpatient.

Defense

Dr. Mary Jane Adams, a clinical psychologist who has started 125, and completed about 80, SVP evaluations, evaluated appellant. Appellant told Dr. Adams that he lied when he said he heard voices.

Dr. Adams disagreed with the diagnosis that appellant suffers from pedophilia. Instead, Dr. Adams diagnosed appellant with a learning disorder and a nondiagnostic diagnosis of sexual abuse of a child, but she did not find a mental disorder. Dr. Adams testified that appellant needs treatment with issues that he has yet to deal with, but he could be safely treated in an outpatient setting. Dr. Adams acknowledged that appellant could reoffend and fondle another child without any treatment.

Appellants mother testified that she would help him find a job and an apartment if he were released from custody. She also testified that she would be willing to help appellant get psychological treatment if he needed it. However, she admitted that she has not recently looked into the cost of treatment and planned to send him to the same counselor he went to in 1995, after his juvenile molestation offense.

Appellants brother testified that he would be willing to financially help appellant if appellant were released from custody. He testified that appellant could work for the familys construction company, and that appellant has had experience doing construction work.

DISCUSSION

A.     Invalid Psychiatric Evaluations

Trevino contends that his due process rights were violated because the SVPA petition was not supported by valid psychiatric evaluations.^[2] He contends that the evaluations were invalid because they used a standard assessment protocol that was not promulgated in compliance with the APA, and Government Code sections 11340 et seq. The People contend that there was no reversible error. We agree that appellant has not shown that the superior court prejudicially erred in not dismissing the SVPA petition.

1.      The SVPA

The SVPA provides several administrative and judicial requirements before a defendant can be committed as a SVP. The defendant is first administratively screened. This process involves review of the inmates background and criminal record, and employs a structured screening instrument developed in conjunction with the [DMH]. ([ 6600], subd. (b).) If officials find the inmate is likely to be an SVP, he is referred to the [DMH] for a full evaluation as to whether he meets the criteria in section 6600.
( 6601, subd. (b).) (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145(Hubbart).)

The evaluation performed by the [DMH] must be conducted by at least two practicing psychiatrists or psychologists in accordance with a standardized assessment protocol. ( 6601, subds. (c) & (d).) The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder. (Id., subd. (c).) (Hubbart, supra, 19 Cal.4th at p. 1146.)

Two evaluators must agree that the inmate is mentally disordered and dangerous within the meaning of section 6600 in order for proceedings to go forward under the Act. ( 6601, subd. (d).) In such cases, the [DMH] transmits a request for a petition for commitment to the county in which the alleged SVP was last convicted, providing copies of the psychiatric evaluations and any other supporting documentation. (Id., subds. (d),

(h) & (i).) If the countys designated counsel concurs with the recommendation, a petition for commitment shall be filed in the superior court . (Id., subd. (i).) (Hubbart, supra, 19 Cal.4th at p. 1146, fn. omitted.)

The filing of the petition triggers a new round of proceedings under the Act. The superior court first holds a hearing to determine whether there is probable cause to believe that the person named in the petition is likely to engage in sexually violent predatory criminal behavior upon release. ( 6602, as amended by Stats. 1996, ch. 4, 4, and by Stats. 1998, ch. 19, 3.) The alleged predator is entitled to the assistance of counsel at this hearing. If no probable cause is found, the petition is dismissed. However, if the court finds probable cause within the meaning of this section, the court orders a trial to determine whether the person is an SVP under section 6600. (Hubbart, supra, 19 Cal.4th at p. 1146, internal reference omitted, fn. omitted.)

At trial, the alleged [SVP] is entitled to the assistance of counsel, the right to retain experts or professional persons to perform an examination on his or her behalf, and have access to all relevant medical and psychological records and reports. ( 6603, subd. (a).) Either party may demand and receive trial by jury. (Id., subds. (a) & (b); see id., subd. (c).) (Hubbart, supra, 19 Cal.4th at p. 1147.)

The court or jury shall determine whether, beyond a reasonable doubt, the person is a [SVP]. If the court or jury is not satisfied beyond a reasonable doubt that the person is a [SVP], the court shall direct that the person be released [when his term expires]. If the court or jury determines that the person is a [SVP], the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health. ( 6604.)

2.      The APA and the SVPA

As detailed above, the SVPA requires that a suspected SVP undergo two psychological evaluations conducted pursuant to a protocol established by the

Department before a SVPA petition is filed. ( 6601, subd. (c) & (d).) Government Code section 11340.5, subdivision (a), of the APA provides that No state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in [Government Code] Section 11342.600, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter. The Office of Administrative Law (OAL) is charged with, among other functions, enforcing this requirement. (Gov. Code,  11340.2, 11340.5, subd. (b).)

Prior to trial, appellant had moved to dismiss the SVPA petition on the basis that the protocol used by DMH was not promulgated pursuant to the APA. In his motion, appellant showed that the OAL recently found that the standard assessment protocol used in this case was an underground regulation and unlawful.^[3] An underground regulation is a regulation that a court may determine to be invalid because it was not adopted in substantial compliance with the procedures of the [APA]. [Citation]. (Patterson Flying Service v. Department of Pesticide Regulation (2008) 161 Cal.App.4th 411, 429.)

However, even if the non-APA compliant protocol was an underground regulation that formed the basis for the decision to file a SVPA petition, Trevino must still show

prejudice before we will reverse the superior courts decision to deny the motion to dismiss.

3.      Standard of Review

Article VI, section 13, of the California Constitution provides that a judgment cannot be set aside unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. Error is reversible only where it affects the substantial rights of the parties, a party has sustained a substantial injury, and a different result would have been probable if such error had not occurred. (See also Code of Civ. Proc.  475; Sabek, Inc. v. County of Sonoma (1987) 190 Cal.App.3d 163, 168 [anyone who seeks reversal must show error was prejudicial].) Prejudice is not presumed. Trevino has the burden of demonstrating that a miscarriage of justice has occurred. (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.)

Here, the allegedly invalid psychiatric evaluations were used by DMH to make a preliminary determination that appellant was a SVP. ( 6601, subds. (c) & (d).) It was also among the evidence reviewed by the Kern County District Attorney to determine whether to file a SVPA petition which would trigger a probable cause hearing. ( 6601, subds. (h) & (i).) However, the probable cause hearing is only a preliminary determination that cannot form the basis of a civil commitment; the ultimate determination of whether an individual can be committed as an SVP is made only at trial. ( 6604.) For this reason, based on the structure of the SVPA, a section 6602 hearing is analogous to a preliminary hearing in a criminal case . Like a criminal preliminary hearing, the only purpose of the probable cause hearing is to test the sufficiency of the evidence supporting the SVPA petition. [Citation.] (Cooley v. Superior Court (2002) 29 Cal.4th 228, 247; see also People v. Scott (2002) 100 Cal.App.4th 1060, 1063 [evaluation is collateral procedural condition designed to ensure SVP proceedings are

initiated only when there is substantial factual basis for doing so, but after petition is filed issue becomes whether there is evidence that alleged SVP is person likely to engage in sexually violent predatory criminal behavior].)

Because the probable cause hearing on a SVPA petition is analogous to a preliminary hearing in a criminal case, irregularities that do not affect the trial courts fundamental jurisdiction will require reversal only if appellant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error. (People v. Hayes (2006) 137 Cal.App.4th 34, 50 (Hayes).) Trevino cannot make this showing.

4.      Showing of Prejudice

We first note that, like the appellant in Hayes, supra, defendant received a full-blown trial and had a jury conclude, beyond a reasonable doubt, that he was an SVP within the meaning of section 6600, subdivision (a)(1). (Hayes, 137 Cal.App.4th at p. 51 [stating that there was no prejudice because, among other things, appellant was committed after a full-blown trial.]) Appellant does not contest that the jury reached its verdict based upon insufficient evidence or that he did not receive a fair trial. However, appellant does raise a belated argument in his reply brief that the psychologists who testified at trial gave improper expert testimony because their evaluations were based upon an improperly promulgated standard assessment protocol. We reject this argument because appellant does not provide any support for his implied contention that psychologists could not base their opinions that appellant was a SVP on the results of the diagnostic tools required by the protocol. The OALs determination includes a caveat that its review of the protocol was only for purposes of deciding whether it was a regulation within the meaning of the APA and that it was not evaluating the advisability or the wisdom of the protocol itself. Moreover, the trial court had ruled that the use of the allegedly improperly promulgated protocol certainly goes to the weight of this evaluation, of course, and the determinations that are made. But its not going to be a basis for excluding it or a basis for dismissing this petition. We see no error in the trial courts ruling on the expert testimonies of the psychologists.

Furthermore, there is also no reason to believe that, had Trevino been evaluated under an APA-compliant protocol, he would have been released, i.e., found not to be an SVP. Trevino does not challenge any of the diagnostic tools used pursuant to the protocol. He makes no showing that, had the protocol been submitted to APA review, it would have been changed, or that any changes resulting would likely affect his personal standing as an SVP. Thus, the record is simply insufficient to show that a different result was probable had the protocol been promulgated properly.

Finally, there is no evidence to support a conclusion that a dismissal of the petition on the grounds that the protocol was not APA compliant would have resulted in an abandonment of the commitment proceedings. Rather, the DMH had sufficient evidence to conclude that Trevino likely was a SVP. The DMHs screening had indicated that Trevino likely was a SVP. Both experts testified at trial that Trevino suffered from pedophilia and that Trevino was likely to reoffend. Their opinions were based on their interviews with Trevino, their independent professional training and education, the use of multiple standardized professional assessment tools, and their review of Trevinos past offenses and prior treatment record. On this evidence, even if the SVPA petition was initially dismissed, the DMH likely would have initiated a new SVPA petition.

Thus, Trevino has not shown prejudice. Therefore, he cannot succeed on his claim.

B.     Section 6601.3

Trevino next contends that the superior court erroneously denied his motion to dismiss the SVPA petition for an alleged failure to show good cause under section 6601.3, thus depriving him of due process.^[4] We disagree.

Section 6601.3 provides that, [u]pon a showing of good cause, the Board of Prison Terms may order that a person referred to the [DMH] pursuant to subdivision (b) of Section 6601 remain in custody for no more than 45 days beyond the persons scheduled release date for full evaluation pursuant to subdivisions (c) to (i), inclusive, of Section 6601.

In this case, one day before appellants earliest possible release date, the Board of Parole Hearing, pursuant to section 6601.3, held a hearing and placed a 45-day hold on appellants release from prison. The written decision to place the 45-day hold states: The below inmate has been screened by the California Department of Corrections and Rehabilitation (CDCR) and the Board of Parole Hearing (BPH), and has been found to meet the screening criteria for civil proceedings as a Sexually Violent Predator (SVP) pursuant to Welfare & Institutions (W&I) 6600 et seq. Consequently, the BPH is placing a 45-day hold pursuant to W&I 6601.3, in order for full SVP evaluations to be concluded by the Department of Mental Health (DMH).

Trevino contends that no good cause for the hold is reflected in the BPHs decision because the decision does not indicate that the BPH diligently pursued the full SVP evaluations. We first note that the record shows that appellant, who was represented by counsel, did not object to the imposition of the 45-day hold at the time of the probable cause hearing in March of 2007. The lack of a timely and meaningful objection in the trial court generally waives a claim of sentencing error. [Citation.] (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060.) The California Supreme Court has applied this general forfeiture doctrine to errors such as the untimely objection to venue. (People v. Simon (2001) 25 Cal.4th 1082, 1103.) According to the Supreme Court, the protection afforded by venue requirements can be meaningfully afforded to a defendant only if he or she objects to venue before being required to proceed to trial in the allegedly improper locale. If a defendants timely challenge to venue is sustained, the trial can be conducted in the proper location, before the parties, the witnesses, and the court have incurred the burden and expense of a trial in an unauthorized venue. (Ibid.) Similarly, the protection afforded by section 6601.3, requiring that BPH show good cause before BPH extends custody of a defendant, can be meaningfully afforded to Trevino only if he had objected to the 45-day hold prior the actual trial on the SVPA petition. If Trevino had raised the issue at the probable cause hearing, the district attorney would have had some opportunity to present evidence to justify the extension. By not raising an objection at the hearing, Trevino essentially conceded that BPH had good cause to extend his commitment by 45 days.

Moreover, the fact that a defendants custody was unlawful when a SVPA petition was filed does not in and of itself require dismissal of the petition. Section 6601, subdivision (a)(2) provides that a petition shall not be dismissed on the basis of a later judicial or administrative determination that the individuals custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law. ( 6601, subd. (a)(2); see Hubbart, supra, 19 Cal.4th at p. 1228 [holding that the deadlines stated in the SVPA are not jurisdictional and appellant was not entitled to dismissal of the petition unless the 45-day hold was ordered in bad faith].) The defendant bears the burden of showing his custodial status was the result of bad faith. (Hubbart, supra, 19 Cal.4th at pp. 12281229.)

Here, the record does not show that the decision to place a 45-day hold was made in bad faith. Appellant had met the screening criteria for civil proceedings as a SVP, and BPH believed that it needed the 45-day hold to complete a full evaluation. The record also shows that the SVPA petition was filed within the 45-day period. Section 6601.3 states that an individual may be retained in custody for up to 45 days beyond the scheduled release date for full evaluation pursuant to subdivisions (c) to (i), inclusive, of Section 6601, and subdivisions (h) and (i) of section 6601 address the designated attorneys review and decision to file a petition. Thus, the term full evaluation appears to encompass not only evaluation by DMH but also by the designated attorney. Here, the designated attorney appears to have completed his review and decided to file a SVPA petition within the 45-day period. Moreover, even if the term full evaluation does not include the designated attorneys review, at worst the record shows a mistake of law or fact by the hearing officer in concluding that it could extend the release date to allow the designated attorney time for review. Therefore, we reject Trevinos claim.

C.     Jury Instruction

Appellant contends that the superior court committed prejudicial error by failing to sua sponte instruct the jury on the concept of serious difficulty in controlling behavior. Appellant acknowledges that this issue was decided against him in People v. Williams (2003) 31 Cal.4th 757 (Williams). We are bound to follow the Williams opinion, and thus we reject this claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

D.    2006 Amendments to the SVPA

Finally, Trevino contends that the 2006 amendments to the SVPA are unconstitutional under the California and federal Constitutions because the amendments violate his right to due process, his right to equal protection, and the prohibition against ex post facto laws. The California Supreme Court has granted review of these three issues in People v. McKee (2008) 160 Cal.App.4th 1517 (rev. granted July 9, 2008, S162823). This Court recently has addressed these issues and decided them against appellant; the Supreme Court has granted review of that decision but has deferred a ruling until it decides People v. McKee, supra. (See People v. Garcia (2008) 165 Cal.App.4th 1120 (Garcia) (rev. granted Oct. 16, 2008, S166682). We decline to reconsider our conclusions in Garcia unless and until the California Supreme Court decides that Garcia was incorrect. Thus, we reject this claim.

DISPOSITION

The judgment is affirmed.

_____________________

Ardaiz, P.J.

WE CONCUR:

_____________________

Vartabedian, J.

_____________________

Cornell, J.

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^[1]All further section citations are to the Welfare and Institutions Code, unless otherwise stated.

^[2]The California Supreme Court has granted review of a case that has decided this issue against appellant, although review was limited to a different issue. (See People v. Castillo (2009) 170 Cal.App.4th 1156, rev. granted May 13, 2009, S171163.)

^[3]The Attorney General does not argue that the OAL determination is wrong. Although this court is not bound by the OALs conclusion that the Departments protocol is an illegal underground regulation, its review is generally deferential. (See Grier v. Kizer (1990) 219 Cal.App.3d 422, 428, disapproved on other grounds in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 577.) However, given the Attorney Generals failure to challenge the OALs position, we will assume without deciding that the protocol is an underground regulation in violation of the APA.

^[4]The California Supreme Court has granted review of a case that has decided this issue against appellant. (See People v. Johnson (2008) 162 Cal.App.4th 1263, rev. granted August 13, 2008, S164388.)