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The People v. Timothy Seeboth

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


August 30, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TIMOTHY SEEBOTH, DEFENDANT AND APPELLANT.

(Super. Ct. No. CR66404)

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

P. v. Seeboth

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Timothy Seeboth was initially committed as a sexually violent predator (SVP) in September 1997. Following a jury trial in 2010, the trial court ordered his indeterminate commitment to the Department of Mental Health.

On appeal, Seeboth challenges the trial court's denial of his request for additional peremptory challenges. He also asserts challenges to the amended SVP law that are foreclosed by People v. McKee (2010) 47 Cal.4th 1172 (McKee). We reject those contentions. But in accordance with McKee, we will reverse the judgment and remand this case for further proceedings on Seeboth's equal protection claim. We will direct the trial court to suspend further proceedings in this case pending finality of the proceedings in McKee.

BACKGROUND

In light of Seeboth's contentions on appeal, it is not necessary for us to set forth the evidence at trial.

The People originally petitioned to have Seeboth declared an SVP in September 1996 based on his four convictions for child molestation in 1983 and a parole violation in 1995 involving possession of child pornography. This resulted in his original commitment from September 1997 to September 1999, and recommitments from September 1999 to 2005.

The record does not clearly indicate how the case proceeded after 2005, but a petition for an indeterminate commitment (pursuant to the present provisions of the SVP law) ultimately came to trial in September 2010, at which time the jury sustained the allegations.

The trial court ordered Seeboth's indeterminate commitment to the Department of Mental Health, and Seeboth filed a timely notice of appeal.

DISCUSSION

I

During jury selection, defense counsel asserted that in this case seeking an indeterminate commitment, Seeboth was entitled as a matter of due process to 20 peremptory challenges (just like in a criminal case involving a life sentence) rather than the six peremptory challenges usually afforded a civil litigant. (Code Civ. Proc., § 231.) The prosecutor said she would like an additional six challenges if the court were so inclined to exercise its discretion. Defense counsel asserted he would have a different jury selection strategy if afforded additional challenges. The trial court recognized its discretion, but declined to grant the additional peremptory challenges.

In People v. Stanley (1995) 10 Cal.4th 764, 807-808, the California Supreme Court held that defendants in special proceedings of a civil nature are only entitled to the number of peremptory challenges ordinarily allotted to civil litigants, even where the special proceeding (in that case a competency hearing) is ancillary to criminal proceedings. Subsequently, the Court of Appeal in People v. Calhoun (2004) 118 Cal.App.4th 519 noted that SVP proceedings were consistently characterized as special proceedings of a civil nature (id. at pp. 524-526), and held that SVP defendants were only entitled to six peremptory challenges. (Id. at p. 527.) The Court of Appeal also concluded that principles of federal due process did not mandate additional challenges because the Constitution did not require the provision of any peremptory challenges. (Id. at pp. 527-529.) Finally, the court rejected an argument that this violated equal protection, because an SVP defendant is committed for purposes of management and treatment whereas a criminal defendant is imprisoned for purposes of deterrence and punishment, and thus the SVP defendant was not similarly situated to a criminal defendant. (Id. at pp. 529-530.)

Nonetheless, Seeboth points to his indeterminate SVP commitment and argues that SVP proceedings are punitive in a manner similar to criminal proceedings. But McKee held that the SVP law is not punitive and hence does not violate the ex post facto clause. (McKee, supra, 47 Cal.4th at pp. 1193-1195.) We reject Seeboth's contention that he was entitled to additional peremptory challenges.

II

Seeboth next asserts challenges to the SVP law as violating due process and the ex post facto clause. But Seeboth also concedes that such contentions have already been rejected by the California Supreme Court in McKee, supra, 47 Cal.4th at pages 1188-1195. He asserts the issues merely to preserve his right to collateral federal review. Accordingly, we reject his contentions.

Seeboth also contends that the SVP law imposes cruel and unusual punishment and violates principles of double jeopardy. Although the Supreme Court in McKee did not expressly address such claims, Seeboth recognizes that the Supreme Court's determination that the SVP law is not punitive resolves these contentions as well. Once again, he raises them only to preserve his right to collateral federal review. We reject these arguments.

III

Under McKee, however, Seeboth's equal protection claim may have merit. In McKee, the California Supreme Court determined that the SVP law may violate equal protection because SVP's are treated less favorably than mentally disordered offenders and those who have been adjudged not guilty of a crime by reason of insanity. (McKee, supra, 47 Cal.4th at pp. 1203, 1207-1209.) The California Supreme Court remanded that case to give the People an opportunity to justify the differential treatment of SVP's. (Id. at p. 1210.) In accordance with McKee, we reverse the judgment and remand this case for further proceedings on Seeboth's equal protection claim. On remand, we direct the trial court to suspend further proceedings in this case pending finality of the proceedings in McKee.

DISPOSITION

The judgment is reversed and the case remanded to the trial court for reconsideration of Seeboth's equal protection challenge in light of McKee, supra, 47 Cal.4th 1172, and the resolution of the proceedings on remand in McKee, including any proceeding in the San Diego County Superior Court 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. In all other respects, the order of commitment is affirmed.

We concur: BLEASE , Acting P. J. HULL , J.

20110830

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