Super. Ct. No. 174118, 1837960) Trial Court: Superior Court of the City and County of San Francisco Trial Judge: Honorable Wallace P. Douglass
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PUBLICATION
San Francisco City & County
Defendant Carlos Paniagua appeals from the order committing him to the Department of Mental Health for an indeterminate term, which order followed a jury's determination that defendant qualified as a sexually violent predator (SVP)--a determination made after three days of deliberation. Defendant makes seven arguments on appeal. The first claims the petition for his commitment was procedurally defective. The next four claim evidentiary and instructional error. And the final two claim the amended version of the SVP commitment scheme (Welf. & Inst. Code, § 6600 et seq.)*fn1 that extended the length of commitment from two years to an indeterminate term is unconstitutional, on two separate bases.
We reject defendant's procedural argument. But we agree with one of his evidentiary arguments, that the trial court committed prejudicial error in admitting evidence that defendant returned from Thailand on United Airlines flight number 842. The evidence had been the subject of a motion in limine, and vigorous dispute, and was admitted over defendant's Evidence Code section 352 objection--without any section 352 analysis. And even after the true facts revealed, as the People stipulated, that United Airlines did not have such a flight, the evidence remained and was argued. We thus reverse, with no need to reach defendant's constitutional challenges.
In 1998, 15 years after a warrant was issued for his arrest, defendant surrendered to face 120 counts of sodomizing and molesting two boys under the age of 14. After pleading guilty to one count of each of these types of offenses, defendant was sentenced to state prison for a term of eight years, this sentence being concurrent to one from Los Angeles.*fn2
Defendant's scheduled release date from the California Department of Corrections (CDC) (before its name was changed to Department of Correction and Rehabilitation) was December 24, 2002. Prior to his scheduled release, defendant was evaluated by a Department of Mental Health (DMH) psychologist and identified as a potential SVP. Pursuant to section 6601.3, defendant's release date was extended by the Board of Prison Terms (Board) for 45 days, that is, until February 6, 2003.*fn3 However, it was not until February 11 that the district attorney of San Francisco filed a "Petition For Involuntary Commitment As Sexually Violent Predator," and defendant was ordered "detained in a secure facility until a formal probable cause hearing pursuant to . . . Section 6602 is conducted . . . ."*fn4
That hearing was originally set for February 10, 2003, but with defendant's acquiescence it was repeatedly continued until 2003 had passed. The hearing began on January 30, 2004, resumed on April 23, and concluded on September 10, 2004. After listening to almost 230 pages of testimony and argument, the court ruled that good cause under section 6601 (see fn. 3, ante) had been shown.
The District Attorney's first attempt to have defendant declared an SVP ended with a mistrial in September 2006.
The second trial, that involved here, began on July 17, 2008. As is common in SVP trials, defendant did not testify, and both sides relied primarily on the testimony of expert witnesses. There being no genuine dispute about the underlying crimes, the primary point of contention between the experts was whether defendant was likely to pose a danger to the safety of others because he was a sexually violent predator. And how defendant scored on the STATIC- 99 test*fn5 was central to each expert's diagnosis. The prosecution case relied on two experts, Dr. Dawn Starr and Dr. Kathleen Longwell, both of whom testified that defendant's score of 6 on that test placed him in the high-risk-to-reoffend category. Defendant presented three experts, Drs. Howard Barbaree, Brian Abbott, and Theodore Donaldson, each of whom scored or would score defendant at 3, and thus significantly less likely to reoffend. A significant factor for the lower score was defendant's age--64 at the time of trial--and there was an issue whether a reduction for that fact was scientifically reliable.
Yet this was only the tip of the iceberg. The experts' disagreement was virtually total.*fn6 They drew different conclusions as to, among other things, whether defendant had pedophilia; whether he had a narcissistic personality; and whether he had a primarily heterosexual orientation and thus merely a "situational" or "opportunistic" molester. An enormous amount of time was occupied with the methodology of the tests used by the experts.
On August 26, after three full days of deliberations,*fn7 the jury returned a verdict that defendant was an SVP, whereupon the trial court committed him to a state hospital. Defendant filed his notice of appeal two days later.
The Petition Was Not Jurisdictionally Defective
Defendant's first contention is based on missed deadlines. He argues: "The petition seeking to commit appellant as an SVP was not timely filed. The petition was filed on February 11, 2003. Appellant's CDC release date was December 24, 2002. The Board of Prison Terms did not grant a 45-day extension until December 30, 2002. Further, this 45-day extension was not supported by good cause. Therefore, the order does not excuse the late filing of the petition. However, even if the 45-day extension was valid, the extension expired at midnight, February 6, 2003. Therefore, the trial court lacked jurisdiction to proceed . . . ."
This record does not show the Board in the best light. The Attorney General expressly or implicitly concedes most of defendant's arguments, namely that: (1) defendant's release date was December 24, 2002; (2) the 45-day extension was not declared until December 30, six days after defendant's release date; and (3) the 45-day extension would expire on February 6, 2003.
As already mentioned, section 6601.3 (quoted at fn. 3, ante) allows the Board to put a 45-day "hold" on a person upon a showing of "good cause." The statute now has a definition of "good cause," but that definition was not added until after all proceedings in the trial court had been concluded. (Stats. 2010, ch. 710, § 5.) Prior to this amendment of section 6601.3, the only definition of what constituted "good cause" was in a regulation.*fn8 During the pendency of this appeal, our Supreme Court held that this regulation was invalid, but that the Board's reliance on it was in good faith, thus excusing and validating petitions filed after the inmate's scheduled release date. (In re Lucas (2012) 53 Cal.4th 839, 844-845; see § 6601, subd. (a)(2) ["A petition shall not be dismissed on the basis . . . that the individual's custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law"].) The parties have filed letter briefs discussing the impact of this decision.
Lucas establishes that the mere chronological fact that one or more periods, particularly the 45-day hold period, may have elapsed prior to filing of the petition for commitment does not ipso facto invalidate the petition and require its dismissal. This is consistent with decisions holding that missed SVP Act deadlines are not jurisdictional. (E.g., In re Smith (2008) 42 Cal.4th 1251, 1261 [" 'petitions to commit dangerous sex offenders to mental health facilities after their terms have expired cannot be dismissed simply because . . . a prisoner's term was mistakenly extended.' . . . [¶] '. . . sexually violent predators are not to be unleashed on society simply because "the constable has blundered." ' "]; People v. Taylor (2009) 174 Cal.App.4th 920, 934 ["An individual is not automatically entitled to release upon expiration of a term of commitment, even if a timely petition to extend the commitment is not filed. [Citations.] In other words, unlawfulness of an individual's custodial status (due to expiration of his or her determinate term or expiration of his or her prior commitment) does not divest the trial court of jurisdiction to proceed on a petition for commitment or recommitment"]; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1228-1229 ["A number of published cases have rejected the argument that lawful custody was a jurisdictional prerequisite to the filing of an SVPA petition prior to the amendment of section 6601. [Citations.] We agree with the analysis of those courts."]; Garcetti v. Superior Court (1998) 68 Cal.App.4th 1105, 1114 ["a determination of lawful custody is [not] a jurisdictional prerequisite to the filing of a petition under the SVP Act for civil commitment"].)
Moreover, the Legislature has taken the same view. When it amended section 6601 in 1999 to add the language in subdivision (a)(2) concerning good faith mistake, the Legislature made the following uncodified finding: "The Legislature finds and declares that paragraph (2) of subdivision (a) of section 6601 is declaratory of existing law. The Sexually Violent Predator Act authorizes civil commitment of persons who pose a danger as a result of mental disorder if released from custody. Therefore, where a petition for commitment of a sexually violent predator has been filed, it is not the intent of the Legislature that a person be released based upon a subsequent judicial or administrative finding that . . . a hold placed pursuant to Section 6601.3 was unlawful." (Stats. 1999, ch. 136, § 3, italics added.)
In sum, there is a substantial judicial and legislative showing that a missed 45-day hold period is not a "Get out of Jail Free" card. Apart from the regulation found invalid in Lucas, there is the amendment of section 6601.3 demonstrating that the concept of well-intentioned but excusably imperfect actions is not to be given a restricted application. And from her discussion of People v. Hubbart, supra, 88 Cal.App.4th 1202 and People v. Superior Court (Whitley)(1999) 68 Cal.App.4th 1383, the Attorney General convincingly shows that the fact that defendant was not released has no talismanic significance because, even if he had been released, an SVP proceeding could still be commenced. (See In re Smith, supra, 42 Cal.4th 1251, 1269 ["state [may] proceed against those whose initial prison custody was valid, but who might evade SVP commitment due to erroneous parole revocations or extensions of sentence"].)
The only remaining question on this issue is whether this case comes within the good faith exception established by Lucas. Defendant concedes that it does.
The Trial Court Committed Prejudicial Error
In Admitting Evidence Of A Possible Trip To Thailand
Defendant's first claim of evidentiary error is that the trial court permitted the prosecution to introduce evidence concerning defendant's "alleged trip to Thailand." We agree, and further agree that the error was prejudicial.
The Proceedings in the Trial Court
What the evidence was, and how it came to be--and to be disputed--requires a lengthy discussion, which begins with reference to defendant's motion in limine no. 2 filed on July 7, 2008. The motion sought to prohibit: (1) "testimony that [defendant] ever visited Thailand after the end of the Vietnam War"; (2) "any inference or insinuation that [defendant ] traveled to a foreign country to have sex with minors (Thailand, El Salvador or anywhere else)"; and (3) "any prolonged cross-examination on the issue of travel to Thailand during the 70's."
Defendant's motion described the background leading to it, which was that the People had subpoenaed information from the Department of Homeland Security (derived prior to creation of that department), in its effort to show defendant's pattern of travel in and out of the United States, especially as defendant had made statements that from 1993 to 1998 he had traveled to El Salvador. The documents included one that showed defendant arriving in Los Angeles on August 21, 1998, on United Airlines flight number 842 from Thailand.*fn9 Defendant's motion argued that he "vociferously and vehemently objects to the information being presented to the evaluators or the jury for consideration, absent additional trustworthiness of this information, as [defendant] has not been to Thailand or anywhere in Asia since the end of the Vietnam War. His passport does not reflect travel to Thailand." The motion then continued:
"On the very day this information was received by counsel for [defendant] objections both verbally and by email were immediately made to counsel for [the People] indicating the error in this information provided by the Department of Homeland Security. [¶] Absent additional proof, such as the actual embarkation card filled out by [defendant], and a person from the former Immigration and Customs Department testifying in a 402 and then again in front of the jury after a 402 hearing, if allowed, this information would not be presented to the jury, nor provided to the state evaluators. Allowing this highly controversial and contested evidence in before the jury is tantamount to taking judicial notice of the records provided by the Department of Homeland Security. This is not proper."
Defendant's motion represented that the district attorney wished to present this information for the sole purpose that defendant does not tell the truth, in that he did not mention this during his testimony in the first trial. However, the motion went on, "if allowed before the jury without sanitization the jury will obviously infer that the [defendant] went to Thailand for purposes of illicit sex with minors. Had the records showed the [defendant] went to Paris, this issue might not even come to the attention of the court or jury. There will be no evidence in this case that [defendant] engaged in sex with a minor in Thailand, that sex with minors is easily available in Thailand, how long [defendant] was ostensibly in Thailand, whether the [defendant] was in transit when he reached Thailand from another destination, begging the question that [defendant] actually entered the country and set foot out of the Thailand airport. There is no evidence that [defendant] entered Thailand, stayed in Thailand or made contact with any minor in Thailand.
"In addition there are serious discrepancies within the records provided by the Department of Homeland Security that reflect on the records' accuracy. These details will be pointed out at the hearing on this motion.
"Should this court overrule [defendant's] objection and allow testimony regarding travel to another country in 1998, then the name 'Thailand' should be sanitized and referred to as another country so as not to prejudice [defendant] with any hint of impropriety that respondent engaged in sex with a minor or flew to Thailand for that purpose, as it violates Evidence Code 352 and is based wholly and completely on supposition, outright innuendo and meritless assumption.
"If the court is even inclined to let this evidence in before the jury, a 402 motion with the appropriate witnesses should testify to verify that the information recorded on a computer within the Department of Homeland Security is accurate and not subject to error. Should this testimony be allowed to come before the jury with or without the benefit of a hearing, it will cause a mini-trial on the issue of whether [defendant] did or did not enter a foreign country and if he did, entered for purposes of having sex with a minor. It still remains to be seen how this information passes Evidence Code section 352 muster, and has any relevance to whether the [defendant], at the time of trial, has a current and active mental disorder coupled with volitional impairment that makes it seriously difficult to control his behavior based on travel for an unknown period of time ten years prior to trial.
"The evidence should be excluded on any of the grounds provided or at the very least sanitized, if after a hearing, the evidence proffered is found by the court to be reliable and trustworthy and more probative than prejudicial.
The record does not contain any indication the People filed opposition to the motion, so we do not know if it took a position in writing. However, we do know its position at the hearing on the motion, which was held on July 14, 2008.
The hearing began with the court stating that counsel for defendant "handed us copies of a printout of an email sent last week." Counsel for defendant asked if he could "make a record, Your Honor." The court answered "yes," and counsel spoke for three pages, in the course of which he represented the following:
"Mr. Barg [the district attorney] had indicated to me that when he received the information from the Department of Homeland Security that Mr. Paniagua had flown from Trang Airport in Thailand to Los Angeles on United Airlines Flight 842, I communicated that to my client within a matter of probably 15 minutes, and he told me that in absolutely no way did he ever go to Thailand. The only time he had ever been to Thailand was in the--during the Vietnam War. He had not been there since the '70s.
"So I had written to Mr. Barg an email. I also spoke to him on the phone several times about it. And I told him about our vociferous and vehement objections to that document being placed before the jury and in evidence, and requested that he not provide that material to the State evaluators, pending a hearing as to the admissibility of that particular evidence.
"I had requested that he obtain the disembarkation card, that it may be held in microfiche, that Mr. Paniagua would have signed, which would have indicated what flight he was on, what he was carrying, . . . that those forms are required to be filled out every time a passenger enters into the United States, it is stamped by Immigration and is collected by Customs on your way out of the door. I don't know if he followed up on that request.
"In the meantime, I contacted someone from United Airlines in Flight Operations, their Legal Department in Chicago, and Corporate Security in their worldwide headquarters, and I was informed that United Airlines has never flown to Trang Thailand . . . and that flight 842 . . . was a flight from Melbourne to Auckland, Auckland to Los Angeles, and it continued on to Chicago. That is that particular route for that flight number back in . . . August 21, 1998.
"Be that as it may, I have objected to the trustworthiness and the indicia of reliability of this document immediately, as soon as it was served upon us, based upon my good faith belief that it was a problem, and I did everything I could, diligently, in order to show that ...