(City & County of San Francisco Super. Ct. No. 109100). Trial Judge Honorable Mary Morgan.
The opinion of the court was delivered by: Dondero, J.*fn18
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Felix challenges his civil commitment after a jury trial to an indeterminate term of confinement as a sexually violent predator pursuant to the Sexually Violent Predators Act as amended on September 20, 2006. The jury trial took place during October 2006. We affirm.
In 1982, Scott Emerson Felix was convicted of three counts of false imprisonment (Penal Code, § 236) against three separate victims, two counts of oral copulation and one count of rape against two additional victims, and one count of assault with the intent to commit rape against a sixth victim. The crimes were committed in April, October, and September 1982. In each case, Felix approached strangers on the street or in other public places, used threats or force against them, and attempted to or succeeded in forcing them to perform sexual acts on him. For these crimes, Felix was sentenced to 19 years four months in prison.
Felix was released on parole sometime before 1993. He had numerous parole violations between October 1993 and December 1995. In May 1994, his parole was revoked for six months. He had been charged with several crimes, including assault and battery, possession of a dangerous weapon, possession of stolen property, and threats or harassment. In March 1995, Felix's parole was revoked for one month, based on a curfew violation, dishonesty, and noncooperation. In August 1995, Felix was arrested for stalking, but his parole was continued. In March 1996, Felix's parole was revoked for nine months for being drunk in public.
While Felix was in custody for the March 1996 parole revocation, the People filed a petition to commit him as a sexually violent predator (SVP) pursuant to the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code section 6600 et seq.*fn2 Felix was found to be an SVP, was committed to a two-year term, and, pursuant to subsequent petitions to extend his commitment, was ultimately committed through July 22, 2002.
The People filed a petition to extend Felix's commitment from July 22, 2002 to July 22, 2004 (2002 petition). A trial still needed to be held on that petition when July 22, 2004 was approaching, so the People filed a second petition to extend Felix's commitment from July 22, 2004 to July 22, 2006 (2004 petition). The 2002 and 2004 petitions were consolidated in 2004. A trial had still not been held on the consolidated petitions as the expiration date of July 22, 2006 was approaching, so the People filed a third petition to extend Felix's commitment from July 22, 2006 to July 22, 2008 (2006 petition).
As of July 2006, the consolidated 2002 and 2004 petitions had been assigned to Judge Mary Morgan for trial. When the 2006 petition was filed, Felix challenged Judge Morgan pursuant to Penal Code section 170.6, and the 2006 petition alone was assigned to Judge James J. McBride. A probable cause hearing was held on the third petition and probable cause was found to exist. The 2006 petition was eventually scheduled to go to trial October 6, 2006.
On August 1, 2006, Felix filed a motion to dismiss the 2006 petition on the ground of "judicial estoppel." He argued the People were estopped from bringing the petition by virtue of a consent decree California entered into in United States v. California (C.D. Cal., 2006, No. CV-06-2667-GPS) (Mayberg). Felix argued that the 2006 petition, which was based on a primary diagnosis of "paraphilia not otherwise specified," conflicted with a term of the consent decree. He argued the consent decree was binding on the People in the instant action under the doctrine of judicial estoppel. The relevant section of the consent decree required the Department of Mental Health (DMH) to ensure that clinically justified diagnoses be provided for each individual under its care and particularly that any "not otherwise specified" diagnoses be "timely addressed (i.e. within 60 days), through clinically appropriate assessments, and resolved in a clinically justifiable manner." Felix argued, "The state seeks to continue detaining Felix on the basis of a diagnostic theory which the state previously repudiated via a voluntary agreement before a Federal Judge.... The state must either refine its diagnosis now, or dismiss the instant petition." The People opposed the motion, arguing paraphilia not otherwise specified is an appropriate diagnosis under SVPA and that nothing in the consent decree bars the state from seeking SVPA commitment of an individual with that diagnosis.
On August 8, 2006, Felix filed a second motion to dismiss the 2006 petition, which argued that the court's probable cause finding was unsubstantiated because the People failed to allege or prove at the hearing that Felix committed a "recent overt act" of criminal sexual violence prior to the initiation of SVPA proceedings in 1996. The People opposed the motion, arguing the SVPA does not require proof of a recent overt act before a commitment petition may be filed.
On September 11, 2006, Judge McBride denied both motions.
On September 8, 2006, the People moved to consolidate the three pending petitions for trial. The motion was denied. The consolidated 2002 and 2004 petitions remained scheduled for trial before Judge Morgan. The third petition, filed July 2006, was scheduled for trial before Judge McBride.
On September 20, 2006, the Governor signed the Sex Offender Punishment, Control, and Containment Act of 2006 (Stats. 2006, ch. 337; hereafter, Senate Bill No. 1128), which was urgency legislation that went into effect immediately. (Stats. 2006, ch. 337, § 62.) Among other things, Senate Bill No. 1128 changed the term of commitment for SVPs from two years to an indeterminate term. (§ 6604; Stats. 2006, ch. 337, § 55.)
On September 27, 2006, the People moved to amend the pending petitions against Felix so that each would seek commitment for an indeterminate term. On October 3, Judge Morgan granted the motion as to the consolidated 2002 and 2004 petitions "without in any way indicating what kind of commitment I would make if, in fact, the jury found the petition to be true." The court added, "We will litigate that issue later if there is any reason to." As far as the record discloses, Judge McBride never ruled on the motion as to the 2006 petition.
A jury trial on the consolidated 2002 and 2004 petitions took place in October 2006. In the meantime, trial was continued on the 2006 petition. On October 18, 2006, the jury found that Felix was a SVP as defined in section 6600. On October 20, following legal argument on the issue of the appropriate term of commitment, the court committed Felix for an indeterminate term. On October 23, Judge McBride dismissed the 2006 petition over Felix's objections.
On October 26, 2006, Felix filed a notice of appeal from the judgment and commitment entered October 20 and the dismissal of the 2006 petition entered on October 23.
I. Statutory Authority to File Petition to Extend Petition*fn3
Felix argues Senate Bill No. 1128's amendments to the SVPA eliminated statutory authority to file a petition to extend an existing SVP commitment. We first review the statutory scheme in effect before the September 2006 amendments (former SVPA). We then review the changes effected by the September 2006 amendments. Finally, we address Felix's argument.
Under the former SVPA, the Department of Corrections was required to screen prisoners approaching their release dates to determine if they might be sexually violent predators (SVPs). After screening, if a suspicion existed, the prisoners were referred to the State Department of Mental Health (DMH) for evaluations about whether they met statutory criteria for designation as SVPs. (Former § 6601, subds. (a)(1), (b); Stats. 1999, ch. 136, § 1.) If DMH determined they met those criteria, it requested that the appropriate counties file petitions for commitment, and if the counties' designated counsel concurred, the petitions were verified. (Former § 6601, subds. (h), (i); Stats. 1999, ch. 136, § 1.)
If the superior court determined that a petition established probable cause that the person named was likely to engage in sexually violent predatory criminal behavior upon his or her release, the court ordered a trial on whether the person was an SVP, and ordered the person confined until trial. (Former § 6602, subd. (a); Stats. 2000, ch. 41, § 3.) If after trial the person was found to be an SVP, he was committed to the custody of the DMH for a period of two years. (Former § 6604; Stats. 2000, ch. 420, § 3.) The SVP could "not be kept in actual custody longer than two years unless," as relevant here, "a subsequent extended commitment [wa]s obtained from the court incident to the filing of a petition for extended commitment under this article...." (Former § 6604; Stats. 2000, ch. 420, § 3.) "For any ...