California Court of Appeals, Fourth District, Second Division
APPEAL from the Superior Court of Riverside County..No. RIC329441 David A. Gunn, Judge.
Chris Truax, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P. J.
Defendant, Vinh Nguyen, was found to be a sexually violent predator (SVP), and committed to the Department of Mental Health (DMH) for an indeterminate term following a petition for recommitment under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code,  § 6600, et seq.) He appealed the judgment and civil commitment on the grounds that (1) the trial court erred in allowing defendant’s counsel to waive defendant’s presence at trial, and (2) the indeterminate term for SVP’s violates state and federal guarantees of equal protection. We affirmed the commitment order and defendant petitioned for review in the California Supreme Court. On August 10, 2011, the Supreme Court retransferred the case to our court with directions to vacate the decision and suspend further proceedings pending finality of the proceedings on remand in People v. McKee (2010) 47 Cal.4th 1172 (McKee I).
Following proceedings on remand, the Fourth District Court of Appeal, Division One, issued its opinion in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II). The California Supreme Court denied review of McKee II. We lifted the stay and invited the parties to submit supplemental letter briefs in light of McKee II. Both Nguyen and the People have filed letter briefs. We again affirm.
On or about November 18, 2005, the People filed a petition to recommit defendant as a SVP. Due to delays, a subsequent petition for recommitment was filed on January 17, 2008, prior to trial on the 2005 petition. On July 13, 2009, following a bench trial on the 2005 petition for recommitment, the trial court made a true finding that defendant remained a SVP. Defendant was not present at the trial; his counsel informed the court that his presence was waived. Defendant was committed to the DMH for an indeterminate term, and the 2008 petition was dismissed as moot. Defendant timely appealed.
1. Defendant’s Absence at the Trial Was Harmless Beyond A Reasonable Doubt.
Defendant claims his due process rights were violated when the trial on his recommitment petition was conducted in his absence, without a personal waiver of the right to be present from the defendant, after his attorney informed the court that defendant waived his right to be present. We begin with some background helpful to our analysis.
1. Procedural Backdrop
Of the approximately 37 hearings conducted between March 2006 and the date of the trial, defendant was transported to court once, inadvertently, on March 10, 2009, for the hearing on his motion to dismiss the recommitment petition. At that hearing, defendant’s counsel explained that because of the inadvertent transportation of defendant to the hearing, he risked losing his bed at Coalinga State Hospital. After the court denied the motion to dismiss the recommitment petition, the court set a new hearing date for the trial and the prosecutor inquired if defendant wanted to be present. Defendant responded, through his attorney, that he wanted to be present. The court ordered that defendant be transported back to court for the trial, which was set for May 4, 2009.
Because the minutes of the May 4, 2009, hearing are ambiguous as to defendant’s presence, we augmented the record on our own motion to obtain the reporter’s transcript of that hearing. The supplemental reporter’s transcript reveals that defendant was not transported for the hearing, and his attorney represented that defendant waived his presence. In addition, counsel informed the court that defendant’s presence at his trial was waived, and that defendant likely would waive his right to a jury trial. A new date was selected for a trial readiness conference, June 18, 2009, and the court directed that “Defendant is to remain housed in Coalinga State Hospital.”
On June 4, 2009, defendant filed a motion to continue the trial on the ground that defense counsel was in trial on another case. In the motion, defense counsel indicated defendant “has waived his presence at trial and waived a jury.” On June 8, 2009, the court heard the motion to continue. The minutes are unclear as to whether defendant appeared, but we infer he did not because the record does not include a transportation order for that date and the minutes reflect that defendant was to remain housed at Coalinga State Hospital.
The matter was called for court trial on June 13, 2009, in defendant’s absence. Defendant claims he is entitled to a reversal because his due process rights were violated by proceeding in his absence ...