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The People v. Edward Joe Martinez

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


December 16, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
EDWARD JOE MARTINEZ, DEFENDANT AND APPELLANT.

APPEAL from an order of the Superior Court of San Diego County, Theodore W. Weathers, Judge. Affirmed in part, reversed in part and remanded. (Super. Ct. No. MH101771)

The opinion of the court was delivered by: McINTYRE, J.

P. v. Martinez

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Edward Joe Martinez appeals an order recommitting him for an indeterminate term to the custody of the State of California Department of Mental Health (the Department) under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq. (the Act); undesignated statutory references are to the Welf. & Inst. Code). Martinez contends the commitment order must be reversed because: (1) it is not supported by sufficient evidence; (2) the trial court improperly instructed the jury; (3) use of the term "sexually violent predator" constituted governmental misconduct, and defense counsel provided ineffective assistance of counsel by failing to object to the term; and (4) cumulative error occurred. Martinez also challenges the constitutionality of the Act and asserts it violates ex post facto, double jeopardy, due process and equal protection principles.

We reject Martinez's contentions, except for his challenge to the indeterminate commitment on equal protection grounds. Based on the California Supreme Court's decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee), holding that the 2006 amendments to the Act may violate equal protection, we affirm in part and reverse in part the trial court's order of commitment. On remand, we will direct the trial court to suspend further proceedings in this case pending finality of the proceedings on remand in McKee.

FACTUAL AND PROCEDURAL BACKGROUND

In 2001, Martinez was found to be a sexually violent predator (SVP). He was recommitted in 2003 and 2005. In October 2007, the People filed a petition seeking to extend Martinez's commitment as an SVP for an indeterminate term. Jury trial on the involuntary commitment was held in May 2009. The parties stipulated that in May 1988 Martinez pleaded guilty to the crimes of forcible rape of Corinne H., and indecent liberties with a minor, Pauline D.

Forensic psychologists, Drs. Michael J. Selby and Douglas Korpi, testified at trial on behalf of the People. Both reviewed thousands of pages of documents regarding Martinez, including: court, jail, medical, and mental health records; police and probation reports; and psychological evaluations. Both also testified regarding their understanding of the facts of Martinez's offenses against Corinne H. and Pauline D.

Dr. Selby diagnosed Martinez with paraphilia, not otherwise specified, antisocial personality disorder, paranoid personality disorder, and alcohol abuse. Dr. Selby opined that Martinez was likely to engage in sexually violent predatory criminal behavior if released into the community. Dr. Korpi had difficulty diagnosing Martinez, but ultimately concluded that Martinez came within the statutory definition of an SVP based on a "psychotic, unknowable condition." Dr. Korpi also opined that Martinez's mental disorders predisposed him to commit criminal sexual acts. Each concluded that Martinez satisfied the criteria for being adjudged an SVP.

The jury also heard testimony from two defense experts who testified that Martinez did not meet the SVP commitment criteria, and was not likely to reoffend. After trial, the jury found that Martinez was an SVP and recommitted him for an indeterminate term. Martinez appeals.

DISCUSSION

I. Statutory Background

The Act provides for the involuntary civil commitment of persons who, in a unanimous jury verdict after trial, are found beyond a reasonable doubt to be SVP's. (§§ 6603, subds. (e) & (f), 6604.) The term " '[s]exually violent predator' means a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) As originally enacted, the Act provided for a two-year commitment term. The Act was amended in 2006 and, as amended, provides for an indeterminate term of confinement for persons who are found to be SVP's. (People v. Shields (2007) 155 Cal.App.4th 559, 562-563; §§ 6604, 6604.1.)

The Department is required to review the mental condition of a committed SVP at least annually, and allows the court to appoint, or the committed person to retain, an expert. (§ 6605, subd. (a).) If the Department concludes the committed individual no longer meets the requirements of the Act, or that conditional release is appropriate, it must authorize the filing of a petition for release by the committed individual. (§ 6605, subd. (b).) If, after a probable cause hearing, the court determines that the petition has merit, the committed person is entitled to a trial, with all constitutional protections as provided at the initial commitment hearing. At the trial, if the state opposes the petition, it must prove beyond a reasonable doubt that the committed individual remains an SVP. (§ 6605, subds. (c), (d).) If the trier of fact finds in the committed person's favor, the person must be unconditionally released and discharged. (§ 6605, subd. (e).)

II. Alleged Evidentiary Error

A. Legal Principles

An expert's opinion is admissible if, "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Evid. Code, § 801, subd. (b).) However, when an expert bases his or her conclusions on assumptions not supported by the record, on matters not reasonably relied on by other experts, or on factors that are remote, speculative, or conjectural, then his or her opinion lacks evidentiary value. (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 338-339.) In such circumstances the expert's opinion cannot rise to the dignity of substantial evidence. (Ibid.)

Generally, out-of-court statements offered to support an expert's opinion are not hearsay because they are not offered for the truth of the matter asserted. Instead, they are offered for the purpose of assessing the value of the expert's opinion. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210.) "On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, ' "under the guise of reasons," ' the expert's detailed explanation ' "[brings] before the jury incompetent hearsay evidence." ' [Citations.]" (People v. Montiel (1993) 5 Cal.4th 877, 918 (Montiel).) The trial court may cure hearsay problems with a limiting instruction to the jury that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. (Id. at p. 919.) The trial court may also "exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]" (Ibid.) The trial court, however, has no sua sponte duty to exclude evidence, remedy misconduct, or instruct the jury on specific evidentiary limitations, and a counsel's failure to object will waive direct claims of error. (Id. at p. 918.)

"Because an expert's need to consider extra-judicial matters, and a jury's need for information sufficient to evaluate an expert opinion, may conflict with an accused's interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court's sound judgment." (Montiel, supra, 5 Cal.4th at p. 919.) Additionally, "[t]he qualification of expert witnesses, including foundational requirements, rests in the sound discretion of the trial court." (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) Absent a manifest abuse, the court's determination will not be disturbed on appeal. (Ibid.)

We review challenges to the sufficiency of the evidence to support an SVP commitment under the standard applicable to criminal convictions. (People v. Mercer (1999) 70 Cal.App.4th 463, 465-466.) We review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the jury finding. (Id. at p. 466.) We "may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment." (People v. Poe (1999) 74 Cal.App.4th 826, 830.)

B. Analysis

As a threshold matter, we note that Martinez moved in limine to exclude:

(1) certain hearsay documents relied on by Drs. Selby and Korpi in forming their opinions; (2) testimony by Drs. Selby and Korpi about hearsay statements contained in some documents; and (3) expert opinion testimony regarding what the verdict should be. The trial court reserved ruling on the motions. We have reviewed the trial testimony of Drs. Selby and Korpi. We note that defense counsel never objected on the ground that the testimony of these experts was not likely to assist the jury (Evid. Code, § 801, subd. (a)), not based on reliable facts (Evid. Code, § 801, subd. (b)), based on speculation (Evid. Code, § 803), or that the opinions were likely to prejudice, confuse or mislead jury (Evid. Code, § 352). Accordingly, Martinez has waived these grounds for objection and is precluded from raising them on appeal. (Evid. Code, § 353, subd. (a); Montiel, supra, 5 Cal.4th at p. 918.) Additionally, to the extent Martinez suggests the jury may have improperly considered the hearsay matters admitted through these experts for their truth, we note that "the trial court had no sua sponte duty to . . . instruct the jury on specific evidentiary limitations" and counsel's failure to request a limiting instruction as to matters that formed the basis of the experts' opinions waived Martinez's claim of error on direct appeal. (Montiel, supra, 5 Cal.4th at p. 918.)

Turning to the merits, Martinez asserts the evidence did not support the verdict against him because the People offered insufficient opinion testimony to support the jury's factual findings that he qualified as an SVP. He notes that the People presented no evidence of facts admitted for their truth (e.g., documents or percipient witnesses), and questions whether an SVP determination can be based solely on the opinion testimony of expert witnesses.

We reject Martinez's first contention that the evidence is insufficient to sustain the verdict because the only evidence supporting the finding he is an SVP came from the experts' opinions. Expert testimony may be based on material that is not admitted into evidence so long as the material is reliable and of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Montiel, supra, 5 Cal.4th at

pp. 918-919.) Experts may also state the reasons for their opinions and describe the material that forms the basis of their opinions. (People v. Gardeley (1996) 14 Cal.4th 605, 619.)

Here, Drs. Selby and Korpi based their opinions on records, reports and evaluations which are the type of materials that mental health professionals may reasonably rely on in forming their opinions. Martinez cited no authority to support his argument that the People were required to put into evidence the documents relied on by the experts in forming their opinions. Thus, standing alone, the testimonies of Drs. Selby and Korpi provided sufficient basis from which the jury could reasonably find Martinez is an SVP.

Martinez asserts the evidence was insufficient to support the verdict because Drs. Selby and Korpi relied upon hearsay evidence regarding charges against him that had not resulted in convictions. Martinez argues that this evidence was not sufficiently reliable for the jury's consideration. (Evid. Code, § 801, subd. (b).) Although Martinez raised this issue in limine, he never renewed his objection outside the presence of the jury immediately before the expert took the stand (Evid. Code, § 402), or objected to the evidence on this ground as the People introduced it. Thus, he is precluded from raising the issue on appeal. In any event, this evidence was offered for the non-hearsay purpose of explaining the reasons for the experts' opinions. Additionally, Martinez had the opportunity to cross-examine the experts regarding the evidence (Evid. Code, § 721), and Martinez's own experts could have testified regarding the various incidents.

Martinez next contends that the opinions of Drs. Korpi and Selby, considered separately, were each insufficient to support a finding that he has a "mental disorder" within the meaning of the Act. Before we consider the merits of this assertion, we note there is no requirement that two experts testify at trial. (People v. Scott (2002) 100 Cal.App.4th 1060, 1064.) Thus, the jury could properly consider the testimony of one expert, or portions of each expert's testimony in deciding the issues before it.

Martinez challenges the sufficiency of Dr. Korpi's testimony asserting it did not support the verdict because he offered no diagnosis within the meaning of the statute. We disagree.

The statute defines a "diagnosed mental disorder" as including "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).) Dr. Korpi relied on the Diagnostic Statistical Manual of Mental Disorder, Fourth Edition, Test Revision or "DSM-IV" to diagnose Martinez as suffering from antisocial personality disorder and psychosis not otherwise specified. He stated that the DSM-IV addressed situations where individuals may not fit easily into a particular diagnostic category, and explained that Martinez was such an individual. Ultimately, he opined that Martinez came within the statutory definition of an SVP based on his "psychotic, unknowable condition." Thus, contrary to Martinez's argument, Dr. Korpi opined that Martinez suffered from a condition listed in the DSM-IV that qualified him as an SVP. (DSM-IV (2000) at p. 20 [Psychotic Disorder NOS].)

Martinez next claims that Dr. Korpi's opinion testimony was insufficient to support a finding that he suffered from a congenital or acquired condition that made him likely to commit sexually violent crimes. (§ 6600, subd. (c).) He asserts that his crimes were not the result of a "condition," but from mistakes in judgment that he would not repeat. We disagree as it was for the trier of fact to decide this issue.

Dr. Korpi testified that Martinez had six violent arrests, four convictions, a high sex drive, and a continued sexual preoccupation of a psychotic nature. Taking Martinez's history into consideration with the diagnoses of antisocial personality disorder and psychosis not otherwise specified, Dr. Korpi concluded that Martinez was "a sexually preoccupied guy with a lot of violence, who is kind of psychotic. And so when we let him out of the hospital, the likelihood that he will do something else is significant." From this evidence the jury could reasonably conclude that Martinez suffered from a "condition" within the meaning of the statute that predisposed him to the commission of criminal sexual acts, and rendered him a menace to society. (§ 6600, subd. (c).)

Martinez also challenges Dr. Korpi's opinion that his past offenses were "predatory" or that future offenses would likely be "predatory," asserting that Dr. Korpi applied an improper standard and that the evidence was insufficient to support the verdict. Martinez's first contention is meritless as our high court has held that the trier of fact need not find that the prior offenses were predatory. (People v. Torres (2001) 25 Cal.4th 680, 682.) His second contention also fails because Dr. Korpi paraphrased the appropriate standard and the evidence supported the verdict.

Before Martinez could be recommitted as an SVP, the jury was required to determine whether he was likely to "engage in sexually violent criminal behavior" (§ 6600, subd. (a)), and whether that behavior was "predatory" in that it was "directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." (§ 6600, subd. (e).) Here, Dr. Korpi opined that Martinez was likely to engage in sexual and violent predatory behaviors as a result of his diagnosed mental disorders. He testified that the word "predatory" referred "to the nature of the relationship between victim and perpetrator. [¶] If they are strangers or they are persons of casual acquaintance, or if the perpetrator establishes or promotes the relationship with the victim for the purposes -- the primary purpose of sexual victimization, then it's a predatory relationship." Based on Martinez's prior acts,

Dr. Korpi predicted that if Martinez offended in the future it would be against "a casual acquaintance, so therefore, it [would] be predatory."

Dr. Korpi sufficiently paraphrased the statutory definition of "predatory," and it was for the jurors to evaluate Dr. Korpi's testimony in light of the instructions they received. In any event, Martinez never objected on the ground Dr. Korpi misstated the standard, nor did he object on the ground the opinion was speculative or not based on reliable facts. Martinez's failure to object at trial forfeited these claims on appeal.

Finally, Martinez asserts that Dr. Korpi's opinion is insufficient to support the verdict because he testified that Martinez does not currently suffer from a serious difficulty in controlling his sexually violent predatory behavior. We disagree.

Dr. Korpi testified:

"Whatever the nature of his diagnosis is per DSM-IV, there is something wrong with his self-control. He has a volitional incapacity. He can't help it, to a degree. I mean, certainly, he can, you know -- he's not out of control now, and he's not foaming at the mouth, and he's not raping anybody now. He can control it a lot of the time.

"But when you put him in a lot of situations, get him out there in the world, next to alcohol and the temptations, the vices that are out there, he's going to have a hard time, over time, controlling his impulses, his sexual impulses.

"And that's the disorder I think he has. He has -- because of the antisocial and the psychosis, it's going to be hard for him to control himself. And that's the volitional incapacity, which, basically, forms the basis of a mental disorder predisposing."

From this testimony the jury could reasonably conclude that Martinez has a serious difficulty controlling behavior. Because Dr. Korpi's testimony adequately supported the verdict, there is no need for us to address Martinez's challenges to Dr. Selby's testimony.

III. Alleged Instructional Error

A. Instruction on Mental Disorder - CALCRIM No. 3454

The trial court instructed the jury with CALCRIM No. 3454 regarding the elements that the People needed to prove beyond a reasonable doubt, including that he had a diagnosed mental disorder. The instruction defined the term "diagnosed mental disorder," and told the jury that "[y]ou must unanimously agree that respondent has a 'diagnosed mental disorder.' You are not required to unanimously agree as to the specific 'diagnosed mental disorder.' " (Italics added.)

Martinez asserts that the trial court improperly directed the jury to find that he had a mental disorder when it instructed the jury that it "must unanimously agree that [he] has a 'diagnosed mental disorder.'" He also contends the instruction erroneously told the jury that it did not need to be unanimous as to the specific mental disorder. We reject his contentions.

Martinez's first argument results from a misreading of CALCRIM No. 3454. Contrary to Martinez's contention, the instruction properly told the jurors that the People were required to prove beyond a reasonable doubt that Martinez had a mental disorder, and that all jurors needed to agree that Martinez had a mental disorder. The instruction did not direct the jurors to find that Martinez had a mental disorder.

Martinez contends that the trial court should have sua sponte instructed the jury that it could not return a guilty verdict unless it unanimously found that he suffered from a specific qualifying mental disorder. Martinez suggests jurors could simply dispense with the requirement that they find he suffered from a mental disorder if they were not required to agree on the particular disorder. We disagree.

The Act requires the trier of fact to determine whether the requirements for classification as an SVP have been established "beyond a reasonable doubt." (§ 6604.) Any jury verdict on the issue must be unanimous. (§ 6603, subd. (f).) However, "[t]here is no statutory requirement regarding unanimity for each subpart of the SVP determination." (People v. Carlin (2007) 150 Cal.App.4th 322, 347.) Here, the trial court instructed the jurors that they all needed to determine beyond a reasonable doubt that Martinez suffered from a diagnosed mental disorder. We presume the jury followed this instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852 (Sanchez).) Thus, we disagree that the jury may have simply dispensed with the requirement that they find he suffered from a mental disorder.

Moreover, in the criminal context, no unanimity instruction is required where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Similarly here, the jury was required to determine whether Martinez was an SVP. Although the testimony of Drs. Korpi and Selby presented the jury with differing opinions on the mental disorder suffered by Martinez, these differing opinions simply provided alternative theories of how Martinez came within the Act's requirements.

Martinez next asserts that by directing the jury that it may make a finding of "likely" based not on probability but rather on the quality of the possible harm and the quality of the evidence, CALCRIM No. 3454 diminishes the burden of proof and denies due process of law. We reject this contention.

The Supreme Court has held the phrase "likely [to] engage in sexually violent criminal behavior" as meaning a "substantial danger, that is, a serious and well-founded risk" the individual will commit crimes if released from custody and "'does not require a precise determination that the chance of reoffense is better than even.'" (People v. Roberge (2003) 29 Cal.4th. 979, 985, 986-987, italics omitted (Roberge).) Martinez suggests that requiring a risk be "well-founded" references a burden of proof that is less than that required by the statute or the constitution. However, CALCRIM No. 3454 clearly states that all elements must be proven by the People beyond a reasonable doubt. The court also gave CALCRIM No. 220 emphasizing that the People were required to prove Martinez was a sexually violent predator beyond a reasonable doubt. We must presume that the jury followed these instructions. (Sanchez, supra, 26 Cal.4th at p. 852.)

Finally, Martinez contends that because the instruction specifically disavows requiring a greater than 50 percent chance of harm, the standard of "likely" in California is not narrowly tailored to a compelling state interest. (CALCRIM No. 3454 ["The likelihood that the person will engage in such conduct does not have to be greater than 50 percent"].) In People v. Ghilotti (2002) 27 Cal.4th 888, the Supreme Court addressed the term "likely" in section 6601, subdivision (d), the mental health evaluation phase of the commitment process. (People v. Ghilotti, supra, 27 Cal.4th at pp. 915-924.) There, the Court concluded that "even if [the] risk cannot be assessed at greater than 50 percent," that the Act was "narrowly tailored to achieve [the] compelling purpose" of treating and confining SVP's. (Id. at p. 924.) We similarly conclude that the term "likely" during the trial phase of the commitment process is not unconstitutionally broad even if the risk cannot be assessed at greater than 50 percent. (Roberge, supra, 29 Cal.4th at p. 987 [applying the general rule that identical words used in different parts of the same act are intended to have the same meaning].)

B. Instruction on Serious Difficulty in Controlling Behavior

Martinez asserts the trial court prejudicially erred when it failed to sua sponte instruct the jury on the issue of serious difficulty in controlling sexual behavior. Although Martinez acknowledges that the California Supreme Court has rejected this argument (People v. Williams (2003) 31 Cal.4th 757), he nonetheless asserts the trial court was required to give such an instruction based on the factual record before it. Specifically, he cites to the prosecution's argument that the element of a mental disorder could be satisfied by sexual arousal, sexual preoccupation, or a conclusion that Martinez was "creepy." He also cites Dr. Selby's testimony that a mental disorder could be based upon such things as Martinez's arousal to a woman's vulnerability, or a decision to act upon a sexual urge.

We reject this argument as it ignores that part of CALCRIM No. 3454 defining a diagnosed mental disorder. The argument also takes Dr. Selby's testimony out of context. During cross-examination, defense counsel stated: "And I'm a little unclear as to exactly what the metal disorder is. Now, I know you said paraphilia N.O.S, but specifically, what is his sexual arousal." Thus, Dr. Selby was not opining as to the nature of Martinez's mental disorder, but simply answering defense counsel's question regarding Martinez's deviant sexual arousal. Martinez's citation to portions of Dr. Selby's testimony during direct examination similarly takes statements out of context. In those portions of the record Dr. Selby opined why certain facts provided an example of having a mental disorder, and answered the question whether certain facts impacted his decision that Martinez had a mental disorder that predisposed him to the commission of criminal sexual acts.

Moreover, the prosecutor's argument simply reviewed the facts of Martinez's prior criminal offenses to assert that these acts suggested that Martinez suffered from a mental disorder. The trial court properly instructed the jury that the attorneys' remarks were not evidence. (CALCRIM No. 222.) We must presume jurors understand and apply the instructions given them. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)

Accordingly, the trial court had no sua sponte duty to modify the language of CALCRIM No. 3454 and instruct the jury on the issue of serious difficulty in controlling sexual behavior.

IV. Alleged Governmental Misconduct and Cumulative Error

Martinez contends the repeated use of the term "sexually violent predator" denied him due process. He acknowledges that defense counsel failed to object at trial but asserts ineffective assistance of counsel to avoid a finding of waiver. We reject Martinez's contention on its merits.

As Martinez concedes, the Legislature drafted the law and defined the term "sexually violent predator." The trial necessarily addressed Martinez's sexual acts, whether he behaved violently, and as a predator. The jury was required to evaluate the evidence to determine whether, beyond a reasonable doubt, Martinez satisfied the statutory definition of a "sexually violent predator." (§ 6604.) Accordingly, the term is simply a legal concept the jurors were required to apply to decide the matter. Martinez has failed to demonstrate any error in the use of this term.

Martinez contends that even if harmless individually, the cumulative effect of the trial errors mandates reversal. Because we reject all of Martinez's claims, the claim of cumulative error also fails. (People v. Phillips (2000) 22 Cal.4th 226, 244.)

V. Alleged Constitutional Error

Martinez contends the indeterminate term of commitment prescribed by the amended Act violates the due process, ex post facto, double jeopardy, and equal protection rights provided by the United States Constitution. The McKee court rejected the due process and ex post facto challenges to the Act raised here by Martinez. (McKee, supra, 47 Cal.4th at pp. 1193-1195.) Martinez concedes that we are bound by that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

We also reject Martinez's double jeopardy challenge. The double jeopardy clause "protects only against the imposition of multiple criminal punishments for the same offense." (Hudson v. U.S. (1997) 522 U.S. 93, 99.) An indeterminate commitment under the Act, however, is civil in nature and not punitive. (McKee, supra, 47 Cal.4th at

pp. 1193-1195.) Thus, there is no double jeopardy violation as this constitutional provision applies only to criminal cases.

Finally, Martinez contends that he has been denied equal protection because SVP's receive treatment different from other similarly situated persons, specifically, mentally disordered offenders subject to commitment under the Mentally Disordered Offenders Act (Pen. Code, § 2960 et seq.) or those civilly committed because they were found not guilty of a crime by reason of insanity. (Pen. Code, § 1026 et seq.) McKee concluded that SVP's are similarly situated to persons committed as mentally disordered offenders and individuals found not guilty by reason of insanity. (McKee, supra, 47 Cal.4th at pp. 1203, 1207.) The McKee court remanded the case to the trial court to determine whether the People could demonstrate constitutional justification for indefinite commitments imposed on SVP's under the Act. (Id. at p. 1184.) The Supreme Court recently issued dispositional orders in cases pending review in light of McKee. The Court directed that "[i]n order to avoid an unnecessary multiplicity of proceedings," the courts are to suspend further proceedings pending finality of the proceedings in McKee. Thus, we shall direct the trial court to suspend proceedings in this matter pending the finality of McKee.

DISPOSITION

The order for commitment finding Martinez to be an SVP within the meaning of section 6600 et seq. and committing him to the custody of the Department is affirmed, except as to the commitment for an indeterminate term. In light of the holding in McKee, the matter is remanded to the trial court for reconsideration of Martinez's argument that an indefinite commitment violates equal protection. The trial court, however, shall suspend further proceedings in Martinez's case pending finality of the proceedings on

remand in McKee. (McKee, supra, 47 Cal.4th at pp. 1208-1210.) "Finality of the proceedings" in McKee shall include the finality of any subsequent appeal in McKee and any proceedings in the California Supreme Court.

WE CONCUR: NARES, Acting P. J. AARON, J.

20101216

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