P. v. Rose
Filed 8/7/12 P. v. Rose CA6
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opinion has not been certified for publication or ordered published for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.
RONALD FORREST ROSE,
Defendant and
Appellant.
H037125
(Santa Clara County
Super. Ct. No. 210975)
Ronald Forrest Rose appeals from
the July 5, 2011 order committing him as a sexually violent predator (SVP) to
the custody of the California Department of Mental Health (DMH) for an
indeterminate term pursuant to California's Sexual Violent Predator Act (SVPA)
(Welf. & Inst. Code, § 6600 et seq.).
violates due process because the 2009
version of the "standardized assessment protocol" underlying the
evaluations leading to his commitment is invalid because it is not
"standardized." Appellant
further argues, that if this court finds that he forfeited the foregoing
contention because his counsel failed to timely object, he was denied effective
assistance of counsel. Lastly, he
asserts that the indeterminate term of commitment violates the
jeopardy, and due process clauses of the federal Constitution.
Appellant does not challenge the
sufficiency of the evidence to support the commitment order.
I
A petition to commit appellant as
an SVP was filed June 13, 2008. It
indicated that, on July 24, 2006, appellant was committed as an SVP to a
two-year term as then provided by the SVPA.
The June 2008 petition further indicated that the two-year term was
retroactively converted to an indeterminate term of commitment by court order
in July 2007. Since the legality of the
retroactive order had been called into question, the 2008 petition sought a new
order committing appellant to an indeterminate term.
By decision filed June 13, 2008, of
which we take judicial notice, this court reversed the July 2007
(See Evid. Code, §§ 452, subd. (d), 459, subd. (a).
A probable cause hearing was
held. By order filed on November 16,
2009, the court found probable cause to believe that appellant had been
convicted of a qualifying sexually violent offense against at least one victim,
he had a diagnosable mental disorder, and the disorder made it likely that he
will engage in predatory sexually violent conduct if released.
By motion filed August 27, 2010,
appellant sought new evaluations, conducted by new and impartial evaluators,
based upon a valid "standardized assessment protocol" and a new
probable cause hearing pursuant to In re
Ronje (2009) 179 Cal.App.4th 509 (Ronje). Ronje
had ordered such pretrial relief where evaluations pursuant to section 6601,
leading to the filing of an SVPA commitment petition, had been conducted under
a standardized assessment protocol determined to be an invalid underground
regulation not adopted in compliance with the Administrative Procedure Act
(APA) (Gov. Code, § 11340 et seq.).
(Ronje, supra, 179 Cal.App.4th at p. 521.)
By order filed January 26, 2011, the trial court denied appellant's
Appellant initialed and signed a
written waiver of his trial rights and submission of the SVPA petition; the
form was filed on July 5, 2011. Also on
July 5, 2011, a written waiver of appellant's appearance and submission of the
petition, signed by both appellant and his counsel, was filed and accepted by
the court. The court stated on the
record that appellant was submitting the petition for decision by the trial
court. The following People's exhibits
were admitted into evidence: the August 2009 evaluation by Laljit Sidhu,
Psy.D., a transcript of the July 1, 2009 probable cause hearing testimony of
Michael J. Selby, Ph.D., the May 2011 evaluation by Michael J. Selby, Ph.D.,
and the May 2011 report of Laljit Sidhu, Psy.D.
The trial court found true beyond a
reasonable doubt that appellant was an SVP within the meaning of section 6600
and issued the July 5, 2011 commitment order.
The order was made "subject to the ultimate decision in [
1172]."
II
A.
1.
Section
6601, subdivision (c), mandates: "The State Department of Mental Health
shall evaluate the person in accordance with a standardized assessment
protocol, developed and updated by the State Department of Mental Health, to
determine whether the person is a sexually violent predator as defined in this
article. 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." A pair of concurring evaluations concluding
that the person meets the qualifying criteria is a prerequisite to the filing
of an SVPA commitment petition.
(§ 6601, subds. (c)-(g); People
v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 909.)
Appellant
asserts that the 2009 protocol promulgated by the DMH, and partly codified in
the California Code of Regulations, title 9, section 4005,
invalid as a "standardized assessment protocol" because it fails to
"describe the same objective, scientific, empirically-based methodology,
so that all evaluators could operate under the same guidelines, using
well-defined objectives and criteria."
"Evaluator Requirements," provides:
"The evaluator, according to his or her professional judgment,
shall apply tests or instruments along with other static and dynamic risk
factors when making the assessment. Such
tests, instruments and risk factors must have gained professional recognition
or acceptance in the field of diagnosing, evaluating or treating sexual
offenders and be appropriate to the particular patient and applied on a
case-by-case basis. The term
'professional recognition or acceptance' as used in this section means that the
test, instrument or risk factor has undergone peer review by a conference,
committee or journal of a professional organization in the fields of psychology
or psychiatry, including, but not limited to, the American Psychological
Association, the American Psychiatric Association, and the Association for the
Treatment of Sexual Abusers."
name="_ftnref4" title="">[4] Appellant declares that the 2009 protocol is
not "standardized" since it "simply leaves to the discretion of
each evaluator which tests and instruments to administer, and which static and
dynamic risk factors to consider, or not consider." He contrasts the 2009 protocol with past
protocols, stating "[v]ery much unlike
the predecessor protocols promulgated by the DMH . . . , the six-page 2009
protocol does not contain any
detailed or uniformed procedures for evaluators to follow when performing SVP
evaluations." Appellant insists
that his commitment under the invalid protocol violates
Respondent
maintains that the 2009 protocol satisfies section 6601, subdivision (c). According to respondent, the protocol
achieves "standardization by requiring evaluators to restrict themselves
to using tests, instruments, and risk factors that have 'gained professional
recognition or acceptance in the field of diagnosing, evaluating or treating
sexual offenders' through professional peer review, by notifying evaluators of
new developments in the field, and by providing them with informational
training." Respondent states that
the "DMH has determined that providing a rigid step-by-step procedure is
neither feasible nor advisable."
"Where
a statute empowers an administrative agency to adopt regulations, such
regulations 'must be consistent, not in conflict with the statute, and
reasonably necessary to effectuate its purpose.' (Mooney
v. Pickett (1971) 4 Cal.3d 669, 679; Gov. Code, § 11342.2.) The task of the reviewing court in such a
case ' "is to decide whether the [agency] reasonably interpreted the
legislative mandate."
[Citation.]' [Citation.] Such a limited scope of review constitutes no
judicial interference with the administrative discretion in that aspect of the
rulemaking function which requires a high degree of technical skill and
expertise. [Citation.] Correspondingly, there is no agency
discretion to promulgate a regulation which is inconsistent with the governing
statute." (Woods v. Superior Court (1981) 28 Cal.3d 668, 679; see Gov. Code,
11342.2.)
"The
court, not the agency, has 'final responsibility for the interpretation of the
law' under which the regulation was issued.
[Citations.]" (
Equalization (1998) 19 Cal.4th 1, 11, fn. 4.) When a court reviews an agency's
interpretation of a statute, however, the court "accords great weight and
respect to the administrative construction." (Id.
at p. 12.) By adopting the 2009
standardized assessment protocol and section 4005 of the regulations pursuant
to section 6001, the DMH impliedly construed the statutory meaning of the word
"standardized." "If an
agency has adopted an interpretative rule in accordance with Administrative
Procedure Act provisions—which include procedures (e.g., notice to the public
of the proposed rule and opportunity for public comment) that enhance the
accuracy and reliability of the resulting administrative 'product'—that circumstance
weighs in favor of judicial deference."
(Id. at p. 13.) Appellant makes no claim that the DMH did not
comply with the APA when it adopted section 4005.
While the
DMH's more detailed and longer "Clinical Evaluator Handbook and
Standardized Assessment Protocol," which it had revised over the years
before producing the 2009 protocol, indicates that the DMH had previously
implemented section 6001 differently, appellant has not cited any legislative
history indicating that the Legislature intended any specific degree of
standardization. Section 6001 does not
expressly define "standardized" and we have no reason to believe that
the Legislature was not leaving the degree of standardization to the expertise
of the DMH in this area. As the U.S.
Supreme Court has recognized, the federal "Constitution's safeguards of
human liberty in the area of mental illness and the law are not always best
enforced through precise bright-line rules" and "the science of
psychiatry . . . is an ever-advancing science . . . . [Citations.]" (Kansas
v. Crane (2002) 534 U.S. 407, 413 [122 S.Ct. 867].) The 2009 protocol, as partly codified in
section 4005 of the regulations, requires evaluators to conform to
peer-reviewed, professional norms in conducting their SVPA evaluations. Appellant has not established that the 2009
protocol, as partly codified in section 4005 of the regulations, provides an
inadequate "standard" within the meaning of section 6601 or is
inconsistent with the governing statute.
2.
2009 Protocol
Even if we
assume for the sake of argument that the 2009 protocol, as partly codified in
section 4005 of the regulations, does not meet the requirements of section
6001, appellant does not persuade us that his commitment as an SVP was
unconstitutional. Violations of state
law do not necessarily amount to federal
constitutional error. "[The
U.S. Supreme Court has] long recognized that a 'mere error of state law' is not
a denial of due process.
[Citation.] If the contrary were
true, then 'every erroneous decision by a state court on state law would come
[to this Court] as a federal constitutional question.' [Citations.]" (Engle
v. Isaac (1982) 456 U.S. 107, 121, fn. 21 [102 S.Ct. 1558].)
Appellant asserts that the
evaluator's use of the 2009 protocol was "a substantive, not a procedural flaw." We recognize that the substantive component
of the federal constitutional right of due process "bars certain
arbitrary, wrongful government actions 'regardless of the fairness of the
procedures used to implement them.'
[Citation.]" (
125 [110 S.Ct. 975].) "Freedom from
bodily restraint has always been at the core of the liberty protected by the
Due Process Clause from arbitrary governmental action. [Citation.]" (Foucha
v. Louisiana (1992) 504 U.S. 71, 80 [112 S.Ct. 1780].) "The institutionalization of an adult by
the government triggers heightened, substantive due process
scrutiny." (Reno v. Flores (1993) 507 U.S. 292, 316 [113 S.Ct. 1439].) While this court is certainly familiar with
these due process principles, appellant has not shown that the evaluations
conducted under the 2009 protocol resulted in an arbitrary deprivation of his
liberty.
Variations
in evaluators' professional approaches in diagnosing and evaluating sexual
offenders for the purpose of determining whether they qualify as SVP's, within
the broad guidelines of the 2009 protocol, do not necessarily result in a
commitment that is arbitrary or irrational in contravention of due
process. (See Kansas v. Hendricks (1997) 521 U.S. 346, 360, fn. 3 [117 S.Ct.
2072] [recognizing that "psychiatric professionals are not in complete
harmony in casting pedophilia, or paraphilias in general, as 'mental
illnesses[]' " and stating that their "disagreements . . . do
not tie the State's hands in setting the bounds of its civil commitment
laws" as a matter of substantive due process].) Of course, an individual is free to test the
validity of an evaluator's opinion through the procedural safeguards available
at trial.
Ultimately
in SVPA proceedings, the trier of fact must decide whether the person meets the
legal definition of an SVP. Appellant
raises no argument that the legal definition of an SVP does not satisfy
substantive due process requirements for civil commitment. (See Hubbart
v. Superior Court (1999) 19 Cal.4th 1138, 1151-1167 [rejecting due process
challenges to SVPA]; see People v.
Hubbart (2001) 88 Cal.App.4th 1202, 1226 [SVPA's definition of the term
"diagnosed mental disorder" satisfies due process]; see also
must be proof of serious difficulty in controlling behavior" but "the
States retain considerable leeway in defining the mental abnormalities and
personality disorders that make an individual eligible for commitment"];
Sexually Violent Predator Act's definition of "mental abnormality"
satisfied substantive due process requirements for civil commitment];
757, 777 [holding that "a commitment rendered under the plain language of
the SVPA necessarily encompasses a determination of serious difficulty in
controlling one's criminal sexual violence, as required by Kansas v. Crane"].)
Following trial, the trial court found that appellant was an SVP as
legally defined. The California Supreme
Court has determined that an indeterminate term of commitment imposed pursuant
to the SVPA does not violate substantive due process since, under the SVPA, an
individual is not subject to civil commitment as an SVP when the individual no
longer meets the requisites of such commitment.
(People v. McKee,
Appellant has failed to demonstrate that evaluations under the 2009
protocol resulted in a commitment order violating substantive due process.
Appellant has not shown that the
evaluators' reliance upon the 2009 protocol violated procedural due process
either. "In procedural due process
claims, the deprivation by state action of a constitutionally protected
interest in 'life, liberty, or property' is not in itself unconstitutional;
what is unconstitutional is the deprivation of such an interest
v. Burch, supra, 494 U.S. at pp.
125-126, fn. omitted.) But due process
does not safeguard "the meticulous observance of state procedural
prescriptions . . . ." (
158 [129 S.Ct. 1446] ["Because peremptory challenges are within the
States' province to grant or withhold, the mistaken denial of a state-provided
peremptory challenge does not, without more, violate the Federal
Constitution"].)
" '(D)ue process is flexible
and calls for such procedural protections as the particular situation
demands.' Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33
L.Ed.2d 484 (1972)." (
334 [96 S.Ct. 893].)
"[I]dentification of the specific dictates of due process generally
requires consideration of three distinct factors: First, the private interest
that will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and finally,
the Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail. [Citation.]" (Id.
at p. 335.) Appellant has made no
argument that the "specific dictates of due process" require the
procedural safeguard of an administrative protocol providing greater
standardization. Neither has he
established that the use of the allegedly invalid 2009 protocol resulted in a
commitment process involving "such a probability that prejudice will
result that it is deemed inherently lacking in due process." (Estes
v. State of Tex. (1965) 381 U.S. 532, 542-543 [85 S.Ct. 1628].)
3.
Moreover,
even if evaluation of appellant under the 2009 protocol was error because the
protocol was not "standardized" within the meaning of section 6001,
it was state law error. Well-established
principles of appellate review of state law error preclude reversal for
harmless error. (See
836 (Watson); Cal. Const., art. VI,
§ 13; cf. also Ronje,
review of irregularities in preliminary hearing procedures also applies to
judicial review of evaluators' use of an invalid "standardized assessment
protocol" in SVP proceedings]; People
v. Pompa–Ortiz (1980) 27 Cal.3d 519, 529 [after trial, "irregularities
in the preliminary examination procedures which are not jurisdictional in the
fundamental sense shall be reviewed under the appropriate standard of
prejudicial error and shall require reversal only if defendant can show that he
was deprived of a fair trial or otherwise suffered prejudice as a result of the
error at the preliminary examination"].)
Appellant
contends: "[T]he errors in relying
on the flawed 2009 DMH protocol were not superseded by evidence presented at a
trial. The trial court rested its decision
here, in significant part, upon the evaluations written by Dr. Selby . . . and
the evaluations written by Dr. Sidh[u] . . . ," which he states were based
on the invalid protocol. He further
argues: "[T]he error in using the
2009 DMH protocol was not harmless because those faulty evaluations served as
the basis for the trial court's decision in this case. The flawed 2009 protocol tainted the
evaluations, which in turn tainted the outcome in this case." These arguments do not demonstrate prejudice.
"[A]
'miscarriage of justice' should be declared only when the court, 'after an
examination of the entire cause, including the evidence,' is of the 'opinion'
that it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error." (Watson,
supra, 46 Cal.2d at p. 836.) The test of prejudice under
upon reasonable probabilities rather than upon mere possibilities . . .
." (Id. at p. 837.) A reasonable
probability is more than a "mere theoretical
possibility" (People v. Blakeley
(2000) 23 Cal.4th 82, 94) or an "abstract possibility" (
(1994) 8 Cal.4th 704, 715).
The record
does not establish that there is a reasonable probability that appellant would
not have been found to be an SVP had he been evaluated under a standardized
assessment protocol that satisfied his definition of
"standardized." Appellant has
not challenged the sufficiency of the evidence proving that he is an SVP; he
presented no evidence at trial. In
addition, the record does not show that use of the 2009 protocol resulted in
the application of an incorrect or incomplete legal standard by the
professional evaluators or the court.
(Cf. People v. Superior Court (
evaluator who concluded that a person was an SVP cannot be deemed material
unless there is "a reasonable probability, sufficient to undermine
confidence in the outcome, that the error affected the evaluator's ultimate
conclusion" and "a change in the evaluator's conclusion would . . . dissolve . . . the necessary
concurrence . . ." supporting the filing of the SVP petition];
1179, 1192-1194 [trial court erred in failing to instruct the jury on the need
to find a likelihood of future predatory acts but error was harmless beyond a
reasonable doubt under Chapman
standard].) Appellant is not arguing,
and has not shown, that the use of the 2009 protocol caused the court to use a
constitutionally inadequate standard of proof.
(See Addington v. Texas (1979)
441 U.S. 418, 432-433 [99 S.Ct. 1804] [in civil commitment proceedings, due
process requires at least a "clear and convincing" standard of
proof].) In sum, even assuming for the
sake of argument that the 2009 protocol is invalid under state law, no
prejudice has been demonstrated.
4.
Appellant
argues that, if this court finds he forfeited the contention that his
commitment was based on an invalid protocol by failing to object to the 2009
protocol on the grounds now raised, he was denied his Sixth Amendment right to
effective counsel. It is unnecessary to
reach this contention since we have not applied any forfeiture rule. In any case, the contention is meritless.
"[A]
court must indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance . . . ." (Strickland
v. Washington (1984) 466 U.S. 668, 689-690 [104 S.Ct. 2052].) "When, as here, defense counsel's
reasons for conducting the defense case in a particular way are not readily
apparent from the record, we will not assume inadequacy of representation
unless there could have been ' "no conceivable tactical
purpose" ' for counsel's actions.
[Citations.]" (
896.)
B. Constitutional Claims
1.
Citing
commitment as an SVP violates his right to equal protection. He urges this court to reverse and remand the
case to the trial court for consideration of his equal protection claim in
light of McKee. In McKee,
the California Supreme Court recognized that persons civilly committed as
mentally disordered offenders (MDO's) or after being found not guilty by reason
of insanity (NGI's) are subject to a short, definite term of commitment whereas
persons found to be SVP's are committed to an indeterminate term of
commitment. (Id. at pp. 1202, 1207.) It
concluded that SVP's were similarly situated to both those groups of
committees. (Id. at pp. 1204, 1207.) The
court made clear that where groups are similarly situated and "the state
makes the terms of commitment or recommitment substantially less favorable for
one group than the other, . . . it is required to give some
justification for this differential treatment." (Id.
at p. 1203.)
The Supreme
Court in McKee found that "the
People have not yet carried their burden of justifying the differences between
the SVP and [the other] commitment statutes" but "neither the People
nor the courts below properly understood" the People's burden of
justifying the differential treatment of SVP's.
(Id. at pp. 1207-1208.) The court remanded the matter to the trial
court "to determine whether the People, applying the equal protection
principles articulated in [In re Moye
(1978) 22 Cal.3d 457] and related cases discussed in the [McKee] opinion, can demonstrate the constitutional justification
for imposing on SVP's a greater burden than is imposed on MDO's and NGI's in
order to obtain release from commitment."
at pp. 1208-1209, fn. omitted.)
We will
reverse and remand for consideration of appellant's equal protection claim in
accordance with McKee. Consistent with the Supreme Court's expressed
desire to avoid an unnecessary multiplicity of proceedings on this issue, we
will direct the superior court to suspend further proceedings on that claim
pending finality of the proceedings on remand in McKee.
title="">[8] (Cf. People
v. Kisling (2011) 199 Cal.App.4th 687, 695.)
2.
For
purposes of further review, appellant challenges the indeterminate term of
commitment on the ground that it violates the ex post facto, double jeopardy,
and due process clauses of the federal Constitution. He recognizes the California Supreme Court
already rejected such ex post facto and due process challenges in
at pp. 1188-1195) and this court is bound by McKee under Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455–456.
As to the
double jeopardy claim, a judicial determination that a law is not punitive
"removes an essential prerequisite" for such claim. (Kansas
v. Hendricks, supra, 521 U.S. at p. 370.)
In the context of resolving an ex post facto challenge, the high court
in McKee concluded the SVPA, as
amended to provide for an indeterminate term of commitment, is not
punitive. (McKee, supra, 47 Cal.4th
at pp. 1193-1195.) Since SVPA commitment
proceedings do not constitute a second criminal prosecution and the act is not
punitive, appellant's double jeopardy contention must be rejected. (See People
v. Taylor (2009) 174 Cal.App.4th 920, 936-937.)
DISPOSITION
The July 5, 2011 order of
commitment is reversed for only the narrow purpose of considering appellant's
equal protection challenge to his indeterminate SVP commitment in light of
1172). In order to avoid an unnecessary
multiplicity of proceedings, the superior court is directed to suspend further
proceedings on that claim pending finality of the proceedings on remand in
"Finality of the proceedings" shall include the finality of
the appeal in McKee and any
proceedings in the California Supreme Court in McKee.
______________________________
ELIA,
J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.
All further statutory references
are to the Welfare and Institutions Code unless otherwise specified.
All further references to
regulations or Regs. are to the California Code of Regulations, title 9.
