COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 7, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ARNOLD CEDRIC BACON, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier, Judge.
The opinion of the court was delivered by: Mcconnell, P. J.
P. v. Bacon CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Reversed and remanded with instructions.
Arnold Cedric Bacon appeals from a judgment involuntarily committing him for an indeterminate term to the custody of the State Department of Mental Health (DMH) after a jury found him to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)*fn1
Bacon raises two arguments. First, he purports to challenge the jurisdiction of the trial court in a former SVP proceeding in 2003. Second, he argues that the SVPA violates his right to equal protection under the United States Constitution. We reject the first argument, but we find possible merit in the equal protection argument in light of People v. McKee (2010) 47 Cal.4th 1172, 1186 (McKee), and we remand to the trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In 1985, Bacon pled guilty to sex crimes involving two children and was sentenced to six years in prison. Bacon pled guilty to sex crimes involving two additional children in 1997 and was sentenced to 10 years in prison.
In 2003, Bacon was found for the first time to be an SVP, and the court committed him to the custody of the DMH for a period of two years.
The People filed a petition to commit Bacon to the custody of DMH for another two years in 2005. After the passage of Proposition 83, the People filed an amended petition in November 2006 to commit Bacon as an SVP for an indeterminate term.*fn2 In January 2007, the trial court ordered that Bacon's two-year commitment was converted by operation of law to an indeterminate term. That order was reversed on appeal, and the matter was remanded for additional proceedings on the amended petition. In those additional proceedings, a jury found Bacon to be an SVP in August 2009, and the trial court ordered that he be committed to the custody of DMH for an indeterminate term pursuant to sections 6600 through 6604. Bacon appeals from the judgment.
A. Bacon's Challenge to the Trial Court's Jurisdiction over Him When He Was Initially Committed as an SVP in 2003
We first address Bacon's argument that in 2002, when the original petition to declare him an SVP was filed (the 2002 petition), resulting in his initial commitment in 2003 as an SVP, he "was not in the custody of the Department of Corrections" and thus "jurisdiction lacked for the civil commitment."
Bacon's argument is not well developed and is difficult to follow, but it is apparently premised on section 6601, subdivision (a)(2), which states in part that "[a] petition may be filed under this section [to commit someone as an SVP] if the individual was in custody pursuant to his or her determinate prison term, parole revocation term, or a hold placed pursuant to Section 6601.3, at the time the petition is filed." (Italics added.)
Bacon states that "[i]n the present case, it is not disputed that [Bacon] was to parole on June 27, 2002[,] but the Department of Corrections put a 45[-]day hold on him pursuant to section 6601.3. During the 45[-]day hold, but before the petition was filed, [Bacon] was transferred to Atascadero State Hospital, under the authority of the [DMH]." As we understand Bacon's argument, he contends that because he was being held at Atascadero State Hospital in 2002 when the original petition to commit him as an SVP was purportedly filed, he was not, as required by section 6601, subdivision (a)(2), "in custody pursuant to [a] determinate prison term, parole revocation term, or a hold placed pursuant to Section 6601.3." As we will explain, Bacon's argument is not properly before us on this appeal, and we therefore reject it.
As Bacon explains his argument, it is predicated on the unlawfulness of the judgment committing him as an SVP in 2003. However, that judgment is not before us, Bacon did not appeal from it, and it became final long ago. An appeal from the 2009 judgment is not a proper vehicle for challenging the lawfulness of the 2003 commitment.
Moreover, even if the lawfulness of the 2003 SVP commitment was properly before us, we would be unable to review it because the pertinent facts are not in the record. Bacon cites to no evidence in the appellate record concerning his custody status in 2002. Although Bacon states in his appellate brief that "it is not disputed" that he was in Atascadero State Hospital and on a parole hold at the time the 2002 petition was filed, he cites to no evidence in the record to support this assertion. It is Bacon's burden to provide pertinent citations to the record, and we may decline to address arguments that are not supported by record citations. (See Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551, 1560-1561; People v. DeSantis (1992) 2 Cal.4th 1198, 1227-1228.) " 'The appellate court is not required to search the record on its own seeking error.' [Citation.] Thus, '[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived.' " (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
Our own review of the clerk's transcript reveals no evidence concerning Bacon's custody status in 2002.*fn3 Without the pertinent evidence before us in the record, we are unable to assess the merit of Bacon's argument, and we therefore reject it. " ' "For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction. . . . [T]he burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him." ' " (People v. Green (1979) 95 Cal.App.3d 991, 1001.)*fn4
B. Bacon's Challenge Under the Equal Protection Clause
Bacon contends that the SVPA violates his constitutional equal protection rights because SVP's are treated differently from other civilly-committed groups under California law.
In McKee, supra, 47 Cal.4th 1172, our Supreme Court held that SVP's are similarly situated to other civilly-committed persons, including persons deemed mentally disordered offenders (MDO's) and those found not guilty by reason of insanity (NGI's), but that they bear a substantially greater burden in obtaining release from involuntary confinement. (Id. at p. 1203.) Therefore, absent a showing by the People of a compelling state interest in treating SVP's significantly less favorably than MDO's and NGI's, the SVPA may violate the equal protection clause of the United States Constitution. (Id. at pp. 1203, 1207.)
McKee remanded the case to the trial court to determine whether the People could establish a compelling interest justifying its disparate treatment of SVP's and whether such treatment was necessary to further its legitimate state interests. (McKee, supra, 47 Cal.4th at pp. 1207, 1210.)
McKee is binding on this court, and we therefore hold that Bacon's indeterminate commitment under the SVPA potentially violates his right to equal protection. (McKee, supra, 47 Cal.4th at pp. 1207, 1210.) As in McKee, the record in this case is inadequate to determine whether the state has a compelling interest justifying its disparate treatment of SVP's, including Bacon. (Id. at p. 1210.) We therefore remand this case to the trial court to conduct a hearing to determine whether the government 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."*fn5 (McKee, supra, 47 Cal.4th at pp. 1208-1209.)
The judgment is reversed, and the case is remanded to the trial court for reconsideration of defendant's equal protection argument in light of McKee, supra, 47 Cal.4th 1172, and the resolution of the proceedings on remand in McKee (see id. at pp. 1208-1210), including any proceeding in the Superior Court of San Diego County in which McKee may be consolidated with related matters. The trial court shall suspend further proceedings in this case pending finality of the proceedings on remand in McKee.
Finality of the proceedings shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.