IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 1, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAMES ANTHONY LEWIS, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge. (Super.Ct.No. RIC354396)
The opinion of the court was delivered by: Hollenhorst J.
P. v. Lewis
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Affirmed in part; reversed in part with directions.
James Anthony Lewis (defendant)*fn1 was convicted of various child molestation offenses, and in 2004, found to be a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6600 et seq.,*fn2 also known as the Sexually Violent Predator Act (the SVPA). In a previous appeal, this court affirmed his two-year commitment to a state mental institution (case No. E035947). Defendant was admitted to Coalinga State Hospital in 2004.
An amended commitment petition was filed in 2006, seeking to subject defendant to an indeterminate term under the amended SVPA. The 2006 petition was consolidated with a 2008 petition also seeking continued indeterminate commitment of Lewis as an SVP. Following a bench trial on the consolidated petitions, the court ordered defendant committed indefinitely as an SVP. (§ 6600, et seq.)
Defendant appeals the order, arguing that he was committed on the basis of invalid evaluation regulations. Alternatively, defendant argues that his trial attorney provided prejudicial ineffective assistance of counsel. He also claims that the SVPA, as amended by Proposition 83 in 2006, violates due process, ex post facto, double jeopardy and equal protection principles under the state and federal Constitutions.
We reject defendant's contentions, with the exception of his challenge to the indeterminate commitment on equal protection grounds. Based on the California Supreme Court's recent ruling in People v. McKee (2010) 47 Cal.4th 1172 (McKee), holding that the 2006 amendments to the SVPA may violate equal protection, we affirm in part and reverse in part the trial court's order of commitment. On remand, we direct the trial court to suspend further proceedings in this case pending finality of the proceedings on remand in McKee.
2. Factual and Procedural Background
Because defendant does not challenge the sufficiency of evidence in this appeal, we incorporate only a brief summary of the facts provided in defendant's previous appeal in this matter, as follows:
"In 1984 defendant was convicted of molesting a 10-year-old girl (Pen. Code, § 288, subd. (a)), and was sentenced to two years in jail, including probation. Defendant violated his probation by running off with a 14-year-old girl and was sentenced to three years in prison. In 1988, defendant was charged with having sexual intercourse with a 15-year-old girl and his probation was again revoked and he was sent to prison. Defendant was released in 1989.
"While at a birthday party in 1991, defendant took pornographic pictures of the vagina of Jenny, a three year old. He also touched the vaginal area of Jeannette, who was seven years old. Defendant was convicted in 1992 of molesting these girls in violation of section 288, subdivision (a). Defendant was sentenced to 17 years in prison.
"In February 2001, shortly before defendant's state prison release date, the People filed an SVP commitment petition, with a probable cause hearing commencing in March 2001. (§ 6604.) The court found probable cause. . . .
"During defendant's civil commitment jury trial in May 2004, two prosecution psychological experts . . . diagnosed him as a pedophile and likely to reoffend. The defense expert . . . concluded defendant suffered from a borderline personality disorder and was sexually attracted to children. She believed defendant's nonexclusive pedophilia could be successfully treated once his personality disorder was addressed.
"The jury found defendant was a sexually violent predator within the meaning of section 6600 et seq. and subject to an involuntary two-year commitment. The trial court ordered defendant committed to Atascadero State Hospital as an SVP." (People v. Lewis (Oct. 6, 2005, E035947) [unpub. opn.].)
During the bench trial on the consolidated 2006 and 2008 petitions, the court found defendant had a current diagnosable mental disorder, pedophilia, which makes him a danger to the health and safety of others in that it is likely he will engage in sexually violent predatory criminal behavior if released.
Psychiatrist Shoba Sreenivasan evaluated defendant in 2005, 2007, 2008, and March and May of 2009. Dr. Sreenivasan diagnosed defendant as a pedophile, with a personality disorder NOS (not otherwise specified), and as having a bipolar disorder presently in remission. Dr. Sreenivasan further determined that, as a result of defendant's mental disorder, he was likely to reoffend if released.
3. Reliance on Underground Regulations in the Assessment Protocol Evaluation
Defendant argues that, because he was evaluated pursuant to an illegal underground regulation, this court should reverse the judgment on the consolidated 2006/2008 commitment petitions and order his immediate release. We reject this argument.
The People argue defendant forfeited this contention because it was not raised in the trial court, and even if preserved, defendant cannot demonstrate any prejudice by the State Department of Mental Health's use of the underground illegal protocol. In August 2008, the Office of Administrative Law (OAL) issued a determination that the 2007 assessment protocol was an underground regulation and thus invalid. (In re Ronje (2009) 179 Cal.App.4th 509, 515 (Ronje).) The bench trial on the consolidated 2006 and 2008 petitions for commitment took place in June 2009 under the revised SVPA.*fn3
Defendant's objection that the protocol relied on in filing the 2006 petition was an "underground regulation" is raised for the first time on appeal. The OAL issued its determination the protocol was invalid, about a year before the 2009 commitment trial in this case. Defendant thus had the opportunity to raise the objection in the trial court but failed to do so. Defendant therefore forfeited the objection. (People v. Medina (2009) 171 Cal.App.4th 805, 817-818 (Medina); People v. Taylor (2009) 174 Cal.App.4th 920, 937-938 [Fourth Dist., Div. Two] (Taylor).) Even if it has not been forfeited, use of the protocol does not constitute prejudicial error that infects the validity of defendant's commitment.
Before the People could file the 2006 petition for subsequent commitment of defendant as an SVP, the Department of Mental Health was required to evaluate defendant "in accordance with a standardized assessment protocol, developed and updated by the State Department of Mental Health." (§ 6601, subd. (c).) The OAL, however, determined that the 2007 version of the protocol, which is essentially the same as the 2004 version relied upon by the People's experts in this case, is an invalid, "underground regulation." (Medina, supra, 171 Cal.App.4th at pp. 813-814, Ronje, supra, 179 Cal.App.4th at p. 516.)
The court in Medina, explained that "A regulation found not to have been properly adopted is termed an 'underground regulation.' '"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]."' [Citations.] An OAL determination that a particular guideline constitutes an underground regulation is not binding on the courts, but it is entitled to deference. [Citations.]" (Medina, supra, 171 Cal.App.4th at pp. 813-814.)
Defendant argues that his commitment is invalid because he was not properly found to qualify as an SVP by two evaluators as required by statute. Defendant claims that, absent a legally conducted evaluation, the district attorney lacked authority to file the SVP petition and, as a consequence, the court lacked fundamental jurisdiction to commit defendant under the SVPA. At a minimum, defendant argues, this court must remand the matter for a new probable cause hearing and direct the trial court to order new evaluations in accordance with Ronje, supra, 179 Cal.App.4th 509.
Defendant acknowledges that this issue was addressed in Taylor, supra, 174 Cal.App.4th 920, Medina, supra, 171 Cal.App.4th at page 816, and Ronje, supra, 179 Cal.App.4th at page 518. The courts in all three cases rejected the contention that the failure to use a properly adopted protocol deprived the trial court of fundamental jurisdiction to hear the case. (Taylor, supra; Medina, at p. 816; Ronje, at p. 518.)
As the court in Ronje, supra, 179 Cal.App.4th at page 518, explained: "The term 'jurisdictional in the fundamental sense' means the 'legal power to hear and determine a cause.' [Citation.] 'Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' [Citation.]" Here, there was not an absence of subject matter jurisdiction or personal jurisdiction over the parties. (Ibid.; Medina, supra, 171 Cal.App.4th at p. 816.)
In Ronje, supra, 179 Cal.App.4th at page 518, the court "concluded that use of the evaluations conducted pursuant to the invalid assessment protocol did not deprive the trial court of the legal power to hear and determine the subsequently filed SVPA commitment petition, and therefore was not jurisdictional in a fundamental sense. [Citation.] Use of the evaluations based on the invalid assessment protocol, though erroneous, does not deprive the trial court of fundamental jurisdiction over the SVPA commitment petition. The trial court has the power to hear the petition notwithstanding the error in using the invalid assessment protocol. Dismissal therefore is not the appropriate remedy."
The use of invalid assessment protocol evaluations as a basis for filing an SVP commitment petition does not require reversal of a commitment order unless the defendant demonstrates "that he or she was deprived of a fair trial or otherwise suffered prejudice." (Medina, supra, 171 Cal.App.4th at p. 819; see also People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) In Ronje, the defendant filed a petition for writ of habeas corpus while awaiting trial on an SVP commitment petition. The defendant sought dismissal of the pending commitment petition on the ground his evaluations, leading to filing the SVPA commitment petition, were conducted under an invalid underground assessment protocol regulation. (Ronje, supra, 179 Cal.App.4th at p. 513.)
The court in Ronje held that, while normally a showing of prejudice was required, since the issue was raised by writ of habeas corpus before the matter was tried, the appropriate remedy was to simply dismiss the petition: "Under Pompa-Ortiz, '[t]he right to relief without any showing of prejudice will be limited to pretrial challenges of irregularities. At that time, by application for extraordinary writ, the matter can be expeditiously returned to the magistrate for proceedings free of the charged defects.' (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) 'In other words, a defendant who feels he has suffered error at his preliminary hearing can seek to correct that error by filing a pretrial writ petition. If he does not, and elects to go to trial, the error at the preliminary hearing can only lead to reversal of the conviction if the error created actual prejudice.' [Citation.]" (Ronje, supra, 179 Cal.App.4th at p. 517.)
Here, unlike in Ronje, the commitment trial has already occurred. Therefore, defendant must show prejudicial error, which defendant has not done. Defendant argues he demonstrated actual prejudice based on revised, more recent actuarial tools, such as the November 2009 revised version of the "STATIC-99R Evaluators' Workbook" and "STATIC-99R Coding Form." These documents were published after the commitment trial in June 2009. We therefore do not consider them relevant and deny defendant's request for judicial notice of the documents.
Defendant has not established that the filing of the commitment petition based on the underground regulation created actual prejudice. While the protocol may dictate the scope, methodology, and relevant considerations of an assessment prior to filing a commitment petition, it does not dictate the evaluator's findings and conclusions as to whether a defendant is an SVP. An evaluator's conclusions are founded on the evaluator's professional experience, knowledge, and expertise, as well as accepted criteria and tools within the overall profession. The record shows there was overwhelming evidence that defendant qualified as an SVP. There was well-founded expert testimony that defendant was diagnosed with the mental disorder of pedophilia, that he presented a danger to the health and safety of others, and that he was likely to engage in acts of predatory sexual violence upon his release. Defendant does not challenge the sufficiency of the evidence supporting his indefinite commitment under the SVPA.
Defendant has failed to show that reliance on the invalid protocol affected the outcome of the commitment trial or that, had a compliant protocol assessment and screening been followed, the evaluation would have been different and that the commitment petition would not have been filed. There is no showing that use of the underground protocol regulations tainted the evaluations or outcome in this case. Any errors in relying on the underground regulations have long since been superseded by subsequent evaluations and evidence presented at the 2009 commitment trial. (Taylor, supra, 174 Cal.App.4th at p. 938.)
Since defendant has not established that he was deprived of a fair trial or otherwise suffered prejudice, we reject defendant's contention that reliance on the Department of Mental Health's use of the underground protocol regulations requires reversal. (Medina, supra, 171 Cal.App.4th at p. 819.)
Because there was no prejudice, defendant's argument that defense counsel's failure to raise the issue at trial constitutes ineffective assistance of counsel lacks merit. (Medina, supra, 171 Cal.App.4th at p. 819.) Defendant argues that had his attorney raised the objection to reliance on the illegal assessment protocol prior to the commitment trial, the court would have ordered new compliant evaluations. But there is no evidence that the new evaluations would have been any more favorable or led to a more favorable outcome. Defendant has not established reversal is required based on ineffective assistance of counsel.
4. Due Process, Ex Post Facto and Double Jeopardy Challenge
Defendant argues that the procedures followed in connection with the consolidated 2006 and 2008 SVP commitment petitions, seeking defendant's indeterminate commitment, violated his rights to due process and contravened the prohibitions against double jeopardy and ex post facto laws.
As defendant acknowledges, the California Supreme Court held in McKee, supra, 47 Cal.4th at page 1184, that the defendant's due process, double jeopardy, and ex post facto challenges to the SVPA, as amended in 2006 by Proposition 83, are without merit. Under McKee, the law is now settled that an indeterminate SVPA commitment, even after the 2006 amendment of the Act, is a civil matter imposing no punishment, and thus neither violates due process rights nor implicates ex post facto or double jeopardy concerns. (McKee, at pp. 1188-1195.) Since we are bound to follow McKee, we reach the same conclusion here. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
5. Equal Protection Challenge
Defendant contends the current version of California's SVP law violates defendant's equal protection rights under the state and federal prosecutions because the SVPA treats SVP's differently from those committed as mentally disordered offenders (MDO's) and persons found not guilty by reason of insanity (NGI's).
In McKee, the California Supreme Court concluded that SVP's are similarly situated to MDO's and NGI's for equal protection purposes, as all three classes of individuals are involuntarily committed to protect the public from those who are dangerously mentally ill. (McKee, supra, 47 Cal.4th at pp. 1203, 1207.) The court also noted that SVP's "bear a substantially greater burden in obtaining release from commitment" than MDO's and NGI acquittees. (Id. at pp. 1203, 1208.)
The SVPA imposes indeterminate commitments of SVP's, and places the burden on the defendant to show why such a commitment should not be ordered, whereas MDO's are subject to one-year renewable commitment terms (§ 2972, subd. (c)), with the People bearing the burden of proving the commitment is justified beyond a reasonable doubt. A person found not guilty by reason of insanity may petition for release after 180 days of commitment, and the court may not summarily reject the petition. (§ 1026.2, subds. (a) & (d)), People v. Soiu (2003) 106 Cal.App.4th 1191, 1197-1198.)
The McKee court further found that SVP's and NGI's are also similarly situated and a "comparison of the two commitment regimes raises similar equal protection problems . . . ." (McKee, supra, 47 Cal.4th at p. 1207.) Consequently, the McKee court concluded that the People had not carried their burden of justifying the differences between the SVP and other NGI and MDO commitment statutes, but did "not conclude that the People could not meet its burden of showing the differential treatment of SVP's is justified." (Ibid.) Rather, the McKee court "merely conclude[d] that it has not yet done so. Because neither the People nor the courts below properly understood this burden, the People will have an opportunity to make the appropriate showing on remand. It must be shown that, notwithstanding the similarities between SVP's and MDO's, the former as a class bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society." (Id. at pp. 1207-1208.) The McKee court remanded the matter to the trial court to determine whether the People could demonstrate the requisite "constitutional justification" for the distinction. (Id. at p. 1208; see also id. at pp. 1203, 1209.)
On May 20, 2010, the California Supreme Court transferred various cases which raised the same or similar equal protection challenges under McKee and were on "grant and hold," with directions to the appellate courts to vacate their prior decisions and reconsider them in light of McKee. The California Supreme Court also ordered in many of these cases that, "[i]n order to avoid an unnecessary multiplicity of proceedings, the court is additionally directed to suspend further proceedings pending finality of the proceedings on remand in McKee (see McKee, supra, 47 Cal.4th at pp. 1208-1210), . . . 'Finality of the proceedings' shall include the finality of any subsequent appeal and any proceedings in this court." (See People v. Riffey (2010) 163 Cal.App.4th 474, 110 Cal.Rptr.3d 3, People v. Rotroff (2010) 178 Cal.App.4th 619, 109 Cal.Rptr.3d 548; People v. Garcia (2010) 165 Cal.App.4th 1120, 109 Cal.Rptr.3d 548; People v. Boyle (2010) 164 Cal.App.4th 1266, 109 Cal.Rptr.3d 549.)
Defendant objects to this court suspending the entire proceedings, and suggests that, if this court is inclined to suspend the proceedings, that this court decide the appeal, including the equal protection issue, and remand the matter to the trial court with instructions to stay the proceedings pending the final resolution of McKee.
Since it appears that the Supreme Court intends to suspend all further proceedings, pending finality of the proceedings on remand in McKee in cases raising the McKee equal protection issue, we remand the instant action to the trial court for a determination as to whether sufficient constitutional justification has been shown for treating defendant as an SVP differently than MDO's and NGI's (McKee, supra, 47 Cal.4th at pp. 1208-1210), but such remand is with directions that the trial court suspend all proceedings in the instant case, pending finality of the proceedings in McKee.
The order of commitment finding defendant to be an SVP within the meaning of section 6600 et seq. and committing him to the custody of the Department of Mental Health is affirmed in all respects, except as to the commitment for an indeterminate term. The order is reversed and the action is remanded for the limited purpose, as stated in McKee, supra, 47 Cal.4th 1172, of allowing the People to 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." (Id. at pp. 1208-1209, fn. omitted.)
The trial court is further instructed that, in order to avoid an unnecessary multiplicity of proceedings on the question of whether the SVPA violates equal protection, the trial court, however, shall suspend further proceedings in the instant action pending finality of the proceedings on remand in McKee, supra, 47 Cal.4th at pages 1208-1210. "Finality of the proceedings" in McKee shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: s/Ramirez P. J. s/Miller J.