IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
July 25, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JEFFERY LEE FISHER, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM021188)
The opinion of the court was delivered by: Duarte, J.
P. v. Fisher CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Jeffery Lee Fisher timely appeals from an order indefinitely committing him under the Sexually Violent Predator (SVP) Act.*fn1 Defendant contends the trial court denied him the right of allocution, and that the SVP Act is unconstitutional in several respects. The People concede the case must be reversed and remanded for consideration of defendant's equal protection claim, under the authority of People v. McKee (2010) 47 Cal.4th 1172 (McKee).
We shall reverse and remand in accordance with McKee, but direct the trial court to suspend further proceedings until another court decides the equal protection issue.
FACTUAL AND PROCEDURAL BACKGROUND
An SVP is a person previously convicted of a sexually violent offense "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." (Welf. & Inst. Code, § 6600, subd. (a)(1).) A sexually violent offense can be a forcible sexual act or any lewd act with a child under 14, whether forcible or not. (Id., subd. (b); see Pen. Code, § 288.)
At a court trial, the parties stipulated defendant had two qualifying offenses and a qualifying mental disorder. Three psychologists testified at trial.
Doctors Nancy Webber and George Grosso had filed reports concluding defendant met all the SVP criteria, in that he was a pedophile, and his history showed sexual assaults against children (girls aged 6 and 7) and teenagers (a boy aged 16, and, as Dr. Webber noted, a girl aged 16), and they opined defendant was likely to reoffend. Dr. Douglas Korpi's report conceded defendant was likely to sexually reoffend against adolescents, but opined that such acts would not meet the definition of "violent" offenses; therefore defendant was not an SVP.
Dr. Webber testified defendant was sexually attracted to children and to adolescents. She found him to be "at high risk" for reoffense, in part based on the persistence of his actions over time. Dr. Grosso testified defendant was a pedophile "primarily attracted to females" but with a "possibility of attraction to males[.]" Dr. Grosso found defendant to be "a substantial danger" with "a serious, well founded risk" of reoffense.
Dr. Korpi testified defendant had various issues including impulsivity and a borderline personality disorder, but he did not concur in the diagnosis of pedophilia, though he conceded reasonable minds could differ on that question. Dr. Korpi testified defendant may have had "a mild case [of pedophilia] that was transient. And the record would suggest that he's shifted his focus later to teenagers and adults." Dr. Korpi testified "we can predict with some reasonable assurance that he's going to act out sexually again. He's got too much sexual energy and too little impulse control." But, "he's probably moved away from children, and he's more focused towards age appropriate people, and mid to late adolescents. And so it will probably be a grope, something more the way with Angela [age 16] or Joseph [age 16], something more along those lines." However, in Dr. Korpi's opinion, such reoffense would not be violent.
The trial court found beyond a reasonable doubt that defendant was an SVP. Defendant timely filed this appeal from the SVP commitment order.
Right to Allocution
The parties presented evidence on August 2, 2010, and gave their closing arguments the next day. After the parties argued, defendant's attorney advised the court that defendant wanted "to address the court. And I am not certain it would be appropriate at this time. [¶] THE COURT: That would not be appropriate. [¶] [Defense counsel]: Thank you."
On appeal, defendant asserts his right to allocution was violated. We disagree.
Defendant argues Penal Code sections 1200 and 1201 "provide a statutory basis for the historic right of allocution, the right of a defendant to speak on his own behalf at the time of judgment and sentencing." Those statutes provide for a criminal defendant to be arraigned before sentencing, and to be asked "whether he has any legal cause to show why judgment should not be pronounced against him[,]" (Pen. Code, § 1200) which may include insanity or a basis for "arrest of judgment or for a new trial" (Pen. Code, § 1201). But here defendant was not facing a criminal sentence; therefore these statutes do not apply to his case.
Defendant further contends that the right to plead for mercy or mitigation of punishment is an aspect of federal due process. But the authorities he presents pertain to cases involving punishment. An SVP commitment is not punishment. (McKee, supra, 47 Cal.4th at pp. 1193-1194.)
Further, even if we were to equate an SVP commitment to a criminal sentencing proceeding, defendant had no absolute right to address the court. Defendant cites In re Shannon B. (1994) 22 Cal.App.4th 1235 (Shannon B.), which held a defendant has an absolute "right to make a personal statement and present information in mitigation of punishment." (Shannon B., supra, 22 Cal.App.4th at p. 1246.) However, Shannon B. was disapproved by our Supreme Court in People v. Evans (2008) 44 Cal.4th 590, which held that a criminal defendant had "the right to make a personal statement in mitigation of punishment but only while under oath and subject to cross-examination by the prosecutor." (People v. Evans, supra, 44 Cal.4th at pp. 592-593, 597, fn. 5.)*fn2 Defendant did not ask to make such a statement.
Finally, the trial court had already heard the evidence and arguments when defendant made his request. All three psychologists believed defendant would reoffend sexually; two of the three believed defendant was a pedophile who would violently reoffend. Given this evidence, nothing defendant could have said to the court would have changed the finding that he was an SVP. Unlike a criminal sentencing hearing, where a trial court may have a number of discretionary choices to make, in this SVP proceeding, the only authorized act that could follow an SVP finding was an indeterminate commitment. (Welf. & Inst. Code,
Constitutionality of the SVP Act
Defendant raises three constitutional challenges to the SVP Act. However, because he concedes each of his claims is governed by controlling authority, and the People concur in that view, we need not discuss them in any detail.
A. Due Process and Ex Post Facto Claims
Defendant contends the indefinite SVP commitment violates his right to due process of law, and the application of the SVP Act to him violates ex post facto principles. As defendant correctly concedes these contentions have already been rejected by our Supreme Court. (McKee, supra, 47 Cal.4th at pp. 1188-1195.) We are bound to reject them as well. (Auto Equity, supra, 57 Cal.2d at p. 455.)
B. Equal Protection Clause
Defendant contends, and the People concede, that the case must be remanded for a resolution of defendant's equal protection challenge to the SVP Act. (See McKee, supra, 47 Cal.4th at pp. 1196-1211.) We agree with the parties, accept the concession, and shall reverse and remand.
The judgment is reversed, and the cause remanded for reconsideration of defendant's equal protection argument. In 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 [citation], including any proceeding in the Superior Court of San Diego County in which McKee may be consolidated with related matters. "Finality of the proceedings" shall include the finality of any subsequent appeal and any proceedings in this court.*fn3
We concur: BLEASE, Acting P. J. NICHOLSON, J.