P. v. Nguyen
Filed 4/3/12 P. v. Nguyen CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
KHANH NGUYEN,
Defendant and Appellant.
B223531
(Los Angeles
County
Super. Ct.
No. ZM013158)
APPEAL from
an order of the Superior Court
of
County, Gary J. Ferrari, Judge. Affirmed in part and reversed in part with
directions.
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,
Victoria B. Wilson and Steven D. Matthews, Deputy Attorneys General, for
Plaintiff and Respondent.
____________________
Defendant Khanh Nguyen appeals from an order of
commitment as a sexually violent predator.
We affirm the order of commitment
but reverse and remand with respect to defendant’s equal protection argument.
PROCEDURAL AND FACTUAL BACKGROUND
In 1994,
defendant pleaded no contest to two counts of committing a lewd act on a child
(Pen. Code, § 288, subd. (a)) and admitted he occupied a position of
special trust with respect to the children (id.,
§ 1203.066, subd. (a)(9)). (
County, 1994, No. NA017272).) The case
arose out of defendant’s molestation of two preteen boys while he was a camp
counselor. Defendant was sentenced to
state prison for five years.
In 1996,
the Department of Corrections referred defendant to the
evaluation under the Sexually Violent Predators Act (SVPA, Welf. & Inst.
Code, § 6600 et seq.). The DMH did
not recommend commitment as a sexually violent predator (SVP), and defendant
was released on parole. (
31122803 at p. 5].)
One of the
conditions of defendant’s parole was that he not possess child
pornography. In an October 1997 parole
search, photographs of naked boys were found on defendant’s computer. He also had subscribed to an internet service
for pedophiles. He was arrested and
returned to prison. (
In 1998,
the Department of Corrections again referred defendant to the DMH for evaluation
under the SVPA. At the DMH’s request,
the County of Los
Angeles (County) filed a petition for
commitment. Following a court trial,
defendant was adjudged a SVP and committed to the DMH for two years, ending on April 24, 2002. Defendant appealed the commitment order. It was upheld on appeal. (People
v. Nguyen, supra [2002 WL
31122803 at pp. 5-6, 10].)
On March 21, 2002, the County filed a
petition to keep defendant committed as a SVP.
(People v. Nguyen (Super. Ct.
L.A. County, No. ZM005292).) Following a
hearing, the court found probable cause to believe he would engage in sexually
violent behavior if released from prison and ordered him to remain in custody.
On March 23, 2004, the County filed a
recommitment petition under the SVPA. (
County, Nos. ZM007375, NA017272).) On June 22, 2005, No. ZM005292 was
consolidated into No. ZM007375, and the court found probable cause and ordered
defendant to remain in custody.
On April 4, 2006, the County again filed
a recommitment petition under the SVPA.
(People v. Nguyen (Super. Ct.
L.A. County, Nos. ZM010052, NA017272).)
On October 31, 2006,
the parties filed a stipulation to a continued commitment period of two
years. This was in response to
uncertainty over the retroactive effect of new legislation and a pending ballot
initiative which would extend the commitment period for a SVP from two years to
an indeterminate term.
The
probable cause hearing was held on August
8, 2007. The court found
probable cause and ordered defendant to remain in custody pending a trial.
A jury
trial began on April 1, 2008. However, the jury was unable to reach a
verdict and the County’s request for a retrial was granted.
Prior to
retrial, the County filed the instant petition on April 22, 2008. (
County, Nos. ZM013158, NA017272).)
Defendant waived his right to a probable cause hearing and submitted on
the doctors’ reports in the case file.
The court found probable cause and ordered that defendant remain in
custody pending trial.
The trial
court ordered No. ZM010052 consolidated into No. ZM013158, and a jury trial
began on November 12, 2009. The prosecution presented testimony by one of
defendant’s victims and by the police officer who conducted the 1997 parole
search, and testimony by a police officer and investigator who discovered a
2006 letter from defendant to a convicted sex offender containing lewd comments
regarding boys. The prosecution also
presented testimony by two clinical psychologists who evaluated defendant. Defendant testified on his own behalf and
presented testimony by two psychologists.
He also presented testimony by a friend who was a minister who pledged to
support defendant upon his release.
At the
conclusion of the trial, the jury found defendant to be a sexually violent
predator. The trial court ordered an
indeterminate term of commitment pursuant to Welfare and Institutions Code
section 6604.
DISCUSSION
A. Voir
Dire
After the
12 jurors had been selected and the parties were examining the prospective
alternate jurors, the prosecutor exercised a peremptory challenge to excuse
Prospective Alternate Juror No. 3. At
that point, defense counsel made an objection under People v.
the third, three Asians.” Defense
counsel requested a mistrial.
The trial
court responded, “I’m not going to find a prima facie case. However, I am going to request that the
[prosecutor] indicate her reasons on the record. They are pretty obvious.”
The
prosecutor explained, “I believe her answers to my questions, especially when I
was asking her about the doctors and whether or not she was going to be able to
listen to both sides, I felt like she wasn’t either understanding what I was
saying, she paused and I believe the way she answered the question, I thought
she just answered it because she had to not because she felt a certain
way. [¶]
I do feel that she has a difficulty understanding English. And she has no prior jury experience.” Following this explanation, the trial court
denied defendant’s Wheeler motion.
Defendant
contends the trial court erred in failing to find a prima facie case of group
bias. We disagree.
A party’s
use of peremptory challenges is presumed to be valid. (People
v. Williams (1997) 16
Cal.4th 153, 187; People
supra, 22 Cal.3d at p. 278.) Inasmuch as a peremptory challenge need not
be exercised solely for a clearly identifiable bias, as opposed to a suspicion
of potential bias, the presumption of validity is essential. Counsel may develop a distrust for a
potential juror’s objectivity “‘on no more than the “sudden impressions and
unaccountable prejudices we are apt to conceive upon the bare looks and
gestures of another” [citation].’” (
Cal.3d 1194, 1215-1216; accord, People
v. Turner (1994) 8 Cal.4th 137, 171, disapproved on another ground in
555, fn. 5.) Counsel may excuse
potential jurors based on hunches or for arbitrary reasons, so long as they are
unrelated to impermissible group bias. (
1186, fn. 6, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10;
burden is on the complaining party to make a prima facie showing that the
peremptory challenges have been exercised in violation of the
Constitution. (Johnson, supra, at p.
1216; see People v. Crittenden (1994)
9 Cal.4th 83, 115.)
Once a
prima facie showing is made, the burden shifts to the party exercising the
peremptory challenges to present a neutral explanation for the challenges
related to the case. (
384; People v. Williams,
the opposing party has proved purposeful discrimination. (Silva,
supra, at p. 384.)
If the
court finds a prima facie case has not been made but nonetheless invites the
prosecution to justify its peremptory challenges, the question before us is
whether a prima facie case has been made.
(People v. Box,
701,746.) If it has not been made, no
review of the prosecution’s explanations is necessary. (Box,
supra, at p. 1188;
1171, 1201.)
In order to
make a prima facie showing, the party making the motion must show from all the
circumstances of the case that there is a strong likelihood the persons are
excluded because of their group association.
(People v. Box,
People v. Williams,
may be shown in part by establishing a pattern of challenges eliminating most
or all members of the cognizable group.
(People v. Crittenden,
persons of a particular group excused by peremptory challenge is insufficient
in itself to establish a prima facie case. (People
v. Dement (2011) 53 Cal.4th 1, 19; People
v. Garcia (2011) 52 Cal.4th 706, 747; Crittenden,
supra, at p. 119.) “[M]erely alluding to the fact a party has
used its peremptory challenges to exclude members of a particular group” is
insufficient to meet the burden of establishing a prima facie case. (People
v. Trevino (1997) 55 Cal.App.4th 396, 406.)
The trial
court clearly did not err in finding defendant failed to make a prima facie
showing of impermissible exclusion. The
fact that the prosecutor had excluded three Asians from the jury was not
sufficient to establish a prima facie case.
(People v. Dement,
v. Crittenden, supra, 9 Cal.4th
at p. 119.)
B. Indeterminate
Commitment
Defendant
contends that, pursuant to the October
31, 2006 stipulation, he could be committed only for an additional
two-year period, not an indeterminate term.
We disagree.
The stipulation
states that “[o]n September 20, 2006
Senate Bill 1128, urgency legislation, was signed into law by the
Governor. Additionally a ballot
initiative commonly known as ‘Jessica’s Law’ is on the ballot in November of
2006. The legislation and the initiative
include language which would lengthen the term of commitment for a SVP from two
years to an indeterminate term. Due to
uncertainty in the retroactive application of this change,” the County was
entering into the stipulation.
“For SVPs
who have been committed and currently have a pending re-commitment petition for
an extended commitment, the District Attorney’s Office will file additional
petitions for extended commitments as they become timely pursuant to Welfare
and Institutions Code § 6604.1. The
District Attorney’s office will use the filing criteria and commitment period
in effect at the time of filing the re-commitment petitions. If a pending 2 year re-commitment petition
filed prior to the effective date of the bill and/or initiative has not been
tried prior to the expiration of the two-year commitment period and a new
petition is timely filed after the effective date, the District Attorney’s
Office will pursue an indeterminate term.”
Here, the
recommitment petition filed on April 4,
2006 in Case No. ZM010052 was pending on October 31, 2006, when the stipulation was
filed. The new legislation then became
effective. The case went to trial on April 1, 2008, but the jury was unable
to reach a verdict and a retrial was granted.
A new recommitment petition was filed on April 22, 2008 in Case No. ZM013158. Case No. ZM010052 was consolidated into
No. ZM013158 and went to trial on November
12, 2009.
At the
conclusion of the original trial, defense counsel moved to dismiss the case,
and the People requested a retrial. The
court denied the defense motion and granted the retrial.
In
discussing the further proceedings to be held, the prosecutor stated that she
“would like to have [defendant] sent back [to court] next Tuesday so that the
new petition can be filed. And then once
that case is filed, a probable cause hearing is held. It can be determined by his attorney whether
or not he wants to consolidate.”
Defense
counsel then pointed out: “Now, this
trial was expedited, as the court is aware, based on a stipulation and that
stipulation being germane to the issue of whether or not Mr. Nguyen would be
contesting a two-year or indeterminant [sic]
commitment. The date certain as
represented to me is April 24th would be the deadline for completing this trial. Mr. Nguyen will clearly suffer prejudice if
not granted a trial date in time, at least make a reasonable attempt at the
24th.
“If the
court won’t grant a trial date in advance of the 24th such that Mr. Nguyen
might have an opportunity to contest this within the constructs of the
stipulation that we’ve agreed to for the purpose of the jurisdiction of this
trial, request a stay on any additional petitions until we’re able to resolve
this and I think that’s an appellate issue that needs to be resolved,
specifically the prejudice suffered by Mr. Nguyen. Because the idea was to complete the trial by
a certain date and nobody made any provisions for a
mistrial. . . .”
The trial
court noted that mistrials “happen in all sorts of cases” and continued the matter
to April 22 . It denied the request to
stay the filing of any additional petitions.
On April
22, the parties set August 6 as the date for the next hearing, at which they
would either set a probable cause hearing or defendant would submit on the documentary
evidence. On August 14, the court asked
defense counsel why the case had not remained in Long Beach, where it
originally had been tried. Defense
counsel explained: “There is some
discussion—I pressed having a new trial within two weeks afterwards. My understanding was because of—just the
practical matter we wouldn’t realistically be able to go to trial immediately,
and because the People submitted a concurrent petition. [¶] So the next trial would
actually be for a trial under two petitions rather than just the original. So there had to be an arraignment for the new
petition. I think that’s what brought it
back here.”
When the
case finally went to trial, defense counsel objected to consolidation of the
petitions, but the trial court overruled his objection.
Defendant
first complains that the trial court failed to follow Litmon v. Superior Court (2004) 123 Cal.App.4th 1156 (
I, the petitioners were committed as SVPs.
While recommitment petitions were pending, the People filed second
recommitment petitions. Over the
petitioners’ objections, the first and second recommitment petitions were
consolidated for trial. (
The court
rejected the petitioners’ claim that they had to be tried on the first recommitment
petitions before trial on the second petitions.
Since the issue at trial is the person’s current mental condition, there
was no harm in consolidating the petitions.
(Litmon I,
1169-1170.) The bigger problem was the
delay in trying the case, resulting in a second recommitment petition being
filed before the first one was tried. (
time period within which the probable cause hearing preceding a recommitment
must be held. And, once probable cause
is found, the SVPA sets no time period within which the trial must be
held . . . .” (
“Nevertheless, there must be some limit to the length of time trial on
an SVP petition can be delayed.” (
mandates, the court merely urged trial courts to use “every effort consistent
with existing statutory law . . . to bring SVP petitions to trial
expeditiously and certainly well before the expiration of the very two-year
commitment period at issue in the trial.”
(Id. at p. 1172.)
The court
acknowledged that trial courts have the inherent power to consolidate SVP
petitions where appropriate. (
However, it held, “because the SVPA evidences a legislative intent to
provide a trial on every filed recommitment petition as close in time to the
expiration of the prior commitment as practicable, it is error to order
consolidation over objection when a consolidated trial can occur
delayed.” (Id. at p. 1176.)
Citing the
holding in Litmon I, defendant claims
“[i]n essence, that is what happened here.”
It is not what happened here, however.
Once the original trial resulted in a hung jury and a mistrial, defense
counsel acknowledged that as a “practical matter [the parties] wouldn’t
realistically be able to go to trial immediately.” The retrial was delayed, but not for the sole
purpose of allowing consolidation and trial of the original petition with the
newly-filed petition. Thus, there was no
failure to follow Litmon I.
Defendant
also asserts that “the stipulation permitted the district attorney to pursue an
indeterminate term for recommitment when both a new petition was timely filed
and when the earlier petition had not been tried prior to the expiration date
of the earlier two-year commitment.” In
his case, he claims, “both conditions were not met. A new petition was, indeed, timely filed but
[defendant’s] case had been brought to trial prior to the expiration date of
the prior commitment. [Defendant] cannot
be punished because this trial ended in a mistrial.”
Defendant
appears to be claiming that the pursuant to the stipulation, if a recommitment
petition was pending at the time of the stipulation and he was recommitted, he
was entitled to the benefit of the stipulation and could only be recommitted
for two years. This would be the case
even if the trial of the petition took place after the effective date of the
new statute permitting indeterminate terms of commitment.
There is
nothing in the language of the stipulation that mandates such a
conclusion. It provides that “the
District Attorney’s Office will file additional petitions for extended
commitments as they become timely pursuant to Welfare and Institutions Code
§ 6604.1. The District Attorney’s
office will use the filing criteria and commitment period in effect at the time
of filing the re-commitment petitions.
If a pending 2 year re-commitment petition filed prior to the effective
date of the bill and/or initiative has not been tried prior to the expiration
of the two-year commitment period and a new petition is timely filed after the
effective date, the District Attorney’s Office will pursue an indeterminate
term.”
Although
the stipulation is not a model of clarity, as it applies to defendant’s case,
certain things are clear. The April 4,
2006 recommitment petition was to continue defendant’s commitment for an
additional two years following the end of the prior two-year term of
commitment, about April 24, 2006. The
stipulation was entered into on October 31, 2006, and the new law was to take
effect later that year. At that point,
defendant could expect, pursuant to the stipulation, that, assuming he was
recommitted following trial, his current term of commitment would be for two
years. That is, it would end about April
24, 2008. Any petitions filed after the
effective date of the new law could continue his commitment for an
indeterminate term beyond April 24, 2008.
Trial on
the pending recommitment petition began on April 1, 2008 and ended in a
mistrial. Prior to retrial, the instant
petition was filed on April 22, 2008.
Trial on both petitions did not begin until November 12, 2009, well
beyond the time defendant could have expected the stipulation to apply.
In claiming
he was entitled to a two-year term of commitment, defendant relies on
383 (Litmon II) and
145. Neither case supports his claim.
In
to dismiss the pending recommitment petition, after trial was continued to a
date beyond the expiration of the two-year commitment period, claiming
violation of his rights to due process and a speedy trial. The trial court denied the motion on the
ground there was no right to a speedy trial under the SVPA. (People
v. Litmon, supra, 162 Cal.App.4th
at pp. 392-393.) Trial was scheduled to
begin in March 2007, after the effective date of the new law permitting
indeterminate terms of commitment. (
On appeal,
the court engaged in an in-depth analysis of the SVPA and the meaning of due
process. It concluded that the defendant
had the right to due process in the context of proceedings under the SVPA, and
the delay violated that right.
Accordingly, the trial court should have granted his motion to
dismiss. (People v. Litmon, supra,
162 Cal.App.4th at p. 406.)
Here,
defendant did not move to dismiss the proceedings on the ground of violation of
his right to due process. He merely
opposed consolidation of the two recommitment petitions for trial. Litmon
II does not bar the consolidation of two recommitment petitions for trial
in every case.
In
2001, October 2003, and September 2005.
They were consolidated for trial in January 2006. (Id.
at p. 148.) In October 2006, the
defendant entered into the same stipulation at issue in the instant case. (Id.
at pp. 150-151.) After trial on the
recommitment petitions in 2007, the defendant was found to continue to be a SVP
and, pursuant to the stipulation by the District Attorney’s Office, the trial
court ordered him committed for a two-year term on each petition. (Id.
at pp. 152-153.) On appeal, the People
claimed the two-year recommitment terms were invalid in light of the new
law. The appellate court agreed and
modified the commitment order to reflect an indeterminate term. (Id.
at p. 154.) The Supreme Court applied
principles of judicial estoppel to enforce the stipulation and bar the
imposition of an indeterminate term in place of the two-year terms imposed by
the trial court. (Id. at p. 158.)
Unlike the
situation in Castillo, the instant
case involves a recommitment petition filed after the effective date of the new
law. The stipulation permitted the
district attorney’s office to seek an indeterminate term on that petition. Thus, there was no violation of the
stipulation justifying the imposition of judicial estoppel.
In sum, we
conclude that the trial court did not violate the stipulation by imposing an
indeterminate term of commitment as a SVP.
C. Exclusion
of Evidence
Defendant
contends the trial court erroneously prevented him from eliciting highly relevant
testimony concerning recidivism rates of persons formerly committed as SVPs,
depriving him of a fair trial. We
disagree.
At issue is
a study by clinical psychologist Jesus Padilla regarding recidivism. The study was excluded at both defendant’s original
trial and his retrial. The People
objected to the admission of evidence of the study on the ground it was
incomplete and therefore unreliable.
The
evidence was contained in a letter from Dr. Padilla to a public defender in a
case in Napa County. The judge in that
case had ordered Dr. Padilla to release information concerning “the recidivism
rates of the individuals that I had been following that had left Atascadero
State Hospital without having had any treatment; they were released by the
courts.”
However,
Dr. Padilla testified in the Evidence Code section 402 hearing that his
research project “has not been completed, it has not been written up, it has
not been sent to a journal for publication, [and] it has not been peer
reviewed.” Those steps “would be
something that would have to happen before I would rely on it to make decisions
for my opinion.” The doctor thought
“it’s important to go through all of the steps to insure the validity of this
study so that you can then say this is a valid study and these numbers are
valid.”
The trial
court excluded the evidence under Evidence Code section 352 on the ground it
was raw data, without a complete study interpreting the data, and that created
a danger of prejudice, confusing the issues or misleading the jury. The court viewed the letter to be “like an
incomplete hypothetical; there just isn’t enough information there confirming
its reliability that I would allow it to go to a jury.”
It is
highly telling that in defendant’s lengthy argument regarding the exclusion of
the evidence, he fails to cite a single authority to support his contention
that the evidence should have been admitted.
The question before us is not whether we agree with defendant’s
characterization of the evidence but whether the trial court abused its
discretion in excluding it under Evidence Code section 352. (People
v. Waidla (2000) 22 Cal.4th 690, 717.)
Only
relevant evidence is admissible at trial.
(Evid. Code, § 350.)
Relevant evidence is that which has “any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.” (Id., § 210.) The trial
court has the duty to determine the relevance and thus the admissibility of
evidence before it can be admitted. (
discretion in performing this duty. (
681.) However, it has no discretion to
admit irrelevant evidence. (
Cal.3d 660, 681.)
The
value of an expert’s opinion rests upon the material on which the opinion is
based and the reasoning leading from this material to a conclusion. (People
v. Coogler (1969) 71 Cal.2d 153,
166; Pacific Gas & Electric Co. v.
Zuckerman (1987) 189 Cal.App.3d 1113, 1135.) It must be based on the type of material
reasonably relied upon by experts.
(Evid. Code, § 801, subd. (b); Pacific
Gas & Electric Co., supra, at
p. 1135.) Thus, “the trial court
retains discretion to exclude expert testimony . . . that is
unreliable or irrelevant, or whose potential for prejudice outweighs its proper
probative value. [Citation.]” (People
v. Carpenter (1999) 21 Cal.4th 1016, 1061.)
The
evidence of Dr. Padilla’s study, the “raw data,” was relevant only if there was
expert opinion testimony tying it to an issue in the case. Dr. Padilla testified that the study
information was not the type of material he would rely upon as an expert. The defense did not proffer any other expert
willing to testify that the study information was the type of material
reasonably relied upon by experts, and willing to form an opinion based on the
information that was relevant to an issue in the case. Since the defense failed to establish the
reliability and relevancy of the evidence, the trial court did not abuse its
discretion in excluding it. (
v. Carpenter, supra, 21 Cal.4th
at p. 1061.)
D. Constitutionality of 2006 Amendment of the SVPA
Defendant
contends the 2006 amendment of the SVPA allowing SVPs to be committed for
indeterminate terms violates the constitutional rights to equal protection and
due process and the proscription against ex post facto laws. The Supreme Court in People v. McKee (2010) 47 Cal.4th 1172 addressed these claims. It rejected the due process and ex post facto
claims. (Id. at pp. 1193, 1195.)
Defendant acknowledges we are bound by the court’s determinations (
Court (1962) 57 Cal.2d 450, 455) but raises the claims in order to preserve
them for review by the federal courts.
The Supreme
Court found, however, that there was merit to the claim that the amended SVPA
violated the equal protection clause “because it treats SVP’s significantly
less favorably than those similarly situated individuals civilly committed
under other statutes.” (
It did not conclude that the statute violated equal protection but
stated: “We do not conclude that the
People could not meet [their] burden of showing the differential treatment of
SVP’s is justified. We merely conclude
that [they have] not yet done so.
Because neither the People nor the courts below properly
People will have an opportunity to make the appropriate showing on
remand.” (Id. at pp. 1207-1208.)
Defendant
requests that we remand the case for further proceedings in the trial court as
was done in McKee. The People request that we remand the matter
to the trial court for reconsideration of the equal protection in light of
suspend the proceedings pending the finality of the proceedings on remand in
687, 695.
We
note that the Supreme Court, in cases raising the issue, has granted review and
then transferred the cases back to the Courts of Appeal “with directions to
vacate [their] decision[s] and, in order to avoid an unnecessary multiplicity
of proceedings, to suspend further proceedings pending finality of the
proceedings on remand in [McKee],
including any proceedings in San Diego County Superior Court in which
related matters. ‘Finality of the
proceedings’ shall include the finality of any subsequent appeal and any
proceedings in this court.” (
and transferred to the Court of Appeal July 28, 2010); People v. Barbour (S183450, review granted and transferred to the
Court of Appeal July 28, 2010); People v.
McKnight (S183315, review granted and transferred to the Court of Appeal
July 28, 2010).) In keeping with the
goal of the Supreme Court “to avoid an unnecessary multiplicity of
proceedings,” we will take the action advocated by the People and follow the
example of Kisling.
DISPOSITION
The
order is reversed with respect to the question whether defendant’s commitment
violates the equal protection clause, and the case is remanded to the trial
court for reconsideration of this question in light of People v. McKee, supra,
47 Cal.4th 1172 and the resolution of the proceedings in that case on remand,
including any other proceeding in the San Diego Superior Court in which
matters. The trial court shall suspend
further proceedings in this case pending the finality of any subsequent appeal
and any proceedings in the California Supreme Court in McKee. In all other
respects, the order is affirmed.
JACKSON,
J.
We concur:
WOODS, Acting P. J.
ZELON, J.
