P. v. Vargas
Filed 12/12/08 P. v. Vargas CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. NORBERTO JOHN VARGAS, Defendant and Appellant. | H032373 (Monterey County Super. Ct. No. SS17053) |
Norberto John Vargas appeals a judgment ordering his involuntary commitment as a Sexually Violent Predator under Welfare and Institutions Code, sections 6600 et seq. On appeal, Vargas asserts the trial court erred in retroactively changing his initial commitment order to an indeterminate term, the amendments to the Sexually Violent Predator Act allowing indeterminate terms are unconstitutional, the petition for recommitment should be dismissed due to the governments failure to bring Vargas to trial, and that his trial counsel provided ineffective assistance for failing to address the retroactivity argument with the court.
Statement of the Case[1]
On July 17, 1998, Vargas was initially committed as a Sexually Violent Predator for two years. This court affirmed the judgment, and his commitment was extended two years in 2000. On June 10, 2002, the Monterey County District Attorney filed a petition to recommit Vargas as a Sexually Violent Predator pursuant to Welfare and Institutions Code sections 6600 et seq. This was the third petition filed in this case. Subsequently, the district attorney filed the forth and fifth petitions to recommit Vargas as a Sexually Violent Predator on June 3, 2004 and July 5, 2006 respectively.
In June 2007, the court granted the district attorneys motion to consolidate the third, fourth and fifth petitions to recommit Vargas. On September 7, 2007, the district attorney asked the court to take judicial notice of the 2006 amendments[2] to the Sexually Violent Predator Act, and automatically convert his initial commitment to an indeterminate term. Vargas objected, and in November 2007, the court granted the motion to modify retroactively Vargass initial commitment order to an indeterminate term. Vargas filed a timely notice of appeal.
Discussion
Vargas asserts on appeal that the trial court erred in retroactively changing his initial commitment order to an indeterminate term, and the Attorney General concedes this point based on the recent cases of People v. Whaley (2008) 160 Cal.App.4th 779 (Whaley) and People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon). Both parties ask that the order be reversed.[3]
With regard to the reversal of the retroactive commitment order, the parties dispute the proper remedy. Vargas asserts the petition should be dismissed, because the district attorney has not attempted to prove to a unanimous jury that Vargas should continue to be confined, choosing instead to ask the court to take judicial notice of the amendments to the Sexually Violent Predator Act, and retroactively change the original commitment to an indeterminate term. Vargas argues because the previous commitments have expired, and the government has not timely tried him on the recommitment petition, his due process rights have been violated, and the petition should be dismissed.
The same argument that the petition should be dismissed for failure to prosecute was made and rejected by this court in Whaley.In response to the defendants argument in Whaley, a panel of this court stated, [i]n general, the only act that may deprive a court of jurisdiction is the Peoples failure to file a petition for recommitment before the expiration of the prior commitment. [Citations.] (Whaley, supra, 160 Cal.App.4th at p. 804.) Here, as the defendant in Whaley, Vargas does not dispute that a timely petition to extend his commitment was filed by the district attorney. Because the petition to extend was timely filed, this court in Whaley did not dismiss the petition as the defendant requested. Instead, the order was reversed without prejudice to further proceedings on the petition.
Because the petition to recommit Vargas was timely filed in this case before expiration of the previous commitment, we will apply the same remedy as that in Whaley, and reverse the order of the trial court without prejudice.
Disposition
The order retroactively committing Vargas to an indeterminate term is reversed without prejudice to further proceedings on the petition.
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RUSHING, P.J.
WE CONCUR:
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MIHARA, J.
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McADAMS, J.
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[1] The underlying facts are not relevant to the issues on appeal.
[2] Proposition 83, approved by California voters on November 7, 2006, and Senate Bill No. 1128, effective September 20, 2006, amended the Sexually Violent Predator Act to make a commitment under the act an indeterminate term.
[3] Because the Attorney General concedes the retroactivity argument, we need not consider Vargass additional arguments regarding the constitutionality of the amendments to the Sexually Violent Predator Act, and that he was denied effective assistance of counsel, because they are moot.
