Opinion
A129416
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. FRAISURE SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County
Super. Ct. No. FCR208822)
Fraisure Smith appeals from a judgment committing him to the Department of Mental Health (DMH) for an indeterminate period as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)He argues that the judgment must be reversed because he was not in the lawful custody of the Department of Corrections and Rehabilitation (Corrections) when the SVP petition was filed, the Board of Parole Hearings (Board) having extended his custody for 45 days under section 6601.3 without the requisite showing of good cause. He also contends that a civil commitment for an indeterminate period violates various constitutional provisions.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We reject the unlawful custody claim because the issue was not raised below and there is no showing in the record that the 45-day extension was not based on a good faith mistake of fact or law under section 6601, subdivision (a)(2). We agree with appellant that under People v. McKee (2010) 47 Cal.4th 1172, he is entitled to a remand so the trial court can consider his claim that his indeterminate commitment under the current SVP scheme violates his right to equal protection under the law, but reject his remaining constitutional arguments.
I. BACKGROUND
Appellant was sentenced to prison after he entered a no contest plea to a charge of assault with intent to commit rape and admitted prior conviction and prior prison term allegations. (Pen. Code, §§ 220, 667.5, subd. (b), 1170.12.) His initial parole release date was October 21, 2007. On October 19, two days before that release date, the Board imposed a "45-day WIC 6601.3 'No Bail' hold effective from 12:01 a.m. [on] 10/21/07 through 12:00 midnight on 12/05/07." The Board's written order indicated that appellant met the initial screening criteria for an SVP, and that the hold was necessary to facilitate a full SVP evaluation.
We grant appellant's unopposed request for judicial notice of the October 19, 2007 order by the Board imposing a 45-day hold pursuant to section 6601.3. (Evid. Code, §§ 459, subd. (a), 452, subd. (c).)
On December 4, 2007, one day before the hold expired, the District Attorney filed a petition alleging that appellant was an SVP. Following a contested hearing, the trial court found probable cause that appellant currently met the SVP criteria and ordered that he be held pending trial. (§ 6601.5.) Appellant moved to dismiss the petition on the ground that the psychologists who evaluated him on behalf of DMH had used a protocol that did not comply with the Administrative Procedures Act and amounted to an improper "underground" regulation. (See In re Ronje (2009) 179 Cal.App.4th 509, 516-517.) After the court denied the motion to dismiss, appellant waived his right to new evaluations under the revised, properly-adopted protocol and to a new probable cause hearing based on those evaluations. At no time during these pretrial proceedings did appellant claim that the Board lacked the authority to impose the 45-day hold so the evaluations could be completed.
A jury found the SVP petition to be true and the court committed appellant to DMH for an indeterminate period.
Due to the nature of the issues raised in this appeal, we need not discuss the evidence supporting the SVP determination.
II. DISCUSSION
A. 45-Day Hold under Section 6601.3
Appellant argues that the SVP petition was untimely because he was no longer in the lawful custody of Corrections when it was filed. He acknowledges that he was in prison custody on a 45-day parole hold issued under section 6601.3 when the petition was filed, but claims the hold was unauthorized because it was not based on good cause as required by statute. We reject his claim that the judgment of commitment must be reversed.
An SVP is statutorily defined as "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).) The SVPA targets persons who are in prison and provides for their identification and commitment before their release from prison: "These persons are not safe to be at large and if released represent a danger to the health and safety of others. . . . [I]t is in the interest of society to identify these individuals prior to the expiration of their terms of imprisonment." (Stats. 1995, ch. 763, § 1, p. 4611; see also People v. Badura (2002) 95 Cal.App.4th 1218, 1225.)
When a prison inmate is identified as someone who "may be" an SVP, Corrections shall, "at lease six months prior to that individual's scheduled date for release from prison, refer the person for an evaluation in accordance with this section." (§ 6601, subd. (a)(1).) The first step in the evaluation process is a preliminary screening "based on whether the person has committed a sexually violent predatory offense and on a review of the person's social, criminal, and institutional history." (§ 6601, subd. (b).) "If as a result of this screening it is determined that the person is likely to be a sexually violent predator, [Corrections] shall refer the person to [DMH] for a full evaluation of whether the person meets the criteria in Section 6600." (§ 6601, subd. (b).) At this stage, the person is evaluated by two psychologists or psychiatrists designated by DMH, and a petition may be filed if both agree that the person "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody." (§ 6601, subds. (d) & (i).) If there is a split of opinion between the evaluators, two independent evaluators are brought in and the petition may be filed only if both agree the person meets the SVP criteria. (§ 6601, subds. (e) & (f).)
In some cases, the evaluations cannot be completed before the prisoner's scheduled release from custody. Section 6601.3 provides, "Upon a showing of good cause, the Board [] may order that a person referred to [DMH] pursuant to subdivision (b) of Section 6601 remain in custody for no more than 45 days beyond the person's scheduled release date for full evaluation pursuant to subdivisions (c) through (i), inclusive, of Section 6601." (Italics added.) An SVP petition may be filed only "if the individual [is] in custody pursuant to his or her determinate prison term, parole revocation term, or a hold placed pursuant to Section 6601.3, at the time the petition is filed." (§ 6601, subd. (a)(2).)
In this case, the Board placed a 45-day hold on appellant so that DMH could complete its SVP evaluation. Appellant asserts that the Board relied solely on an erroneous definition of good cause contained in California Code of Regulations, Title 15, section 2600.1(d) (regulation 2600.1), which provides that good cause exists whenever there is "some evidence" that the prisoner had committed a qualifying sexually violent offense under the SVPA and "is likely to engage in sexually violent predatory criminal behavior." Appellant argues that the standard of good cause set forth in this regulation does not comport with the intent behind section 6601.3, because it requires nothing more than some evidence that the prisoner qualifies as an SVP, and would apply in virtually every case where the evaluation was not completed in time regardless of the reasons for the delay. Appellant notes that section 6601.3 was recently amended to define good cause to mean "circumstances where there is a recalculation of credits or a restoration of denied or lost credits, a resentencing by a court, the receipt of the prisoner into custody, or equivalent exigent circumstances which result in there being less than 45 days prior to the person's scheduled release date for the full evaluation. . . ." (§ 6601.3, subd. (b), Stats. 2010, ch. 710, § 5.) He suggests that in the absence of evidence that the hold in his case was necessitated by a recalculation of credits or similar circumstances, no good cause supported the hold and he was entitled to dismissal of the SVP petition.
The validity of regulation 2600.1 is an issue that is currently before the California Supreme Court in People v. Superior Court (Sharkey), formerly published at 183 Cal.App.4th 85, review granted May 3, 2010, S182355 (Sharkey) and In re Lucas, formerly published at 182 Cal.App.4th 797, review granted June 17, 2010, SS181788 (Lucas). The Attorney General concedes (and has apparently conceded in the Supreme Court) that regulation 2600.1 is inconsistent with the legislative intent behind section 6601.3, but claims reversal is not required because the Board relied on the regulation in good faith.
We need not reach the merits of the parties' contentions. Appellant did not challenge the 45-day hold in the trial court or seek dismissal of the SVP petition on that basis, nor does the record reflect that he filed an administrative appeal, petition for habeas corpus or some other collateral proceeding to obtain his release from prison. (See People v. Hedge (1999) 72 Cal.App.4th 1466, 1478-1479.) Absent such a challenge, the district attorney did not have an opportunity to present evidence of good cause supporting the hold. Appellant has forfeited his claim that the hold was unlawful. (See People v. Taylor (2009) 174 Cal.App.4th 920, 937 [failure to challenge SVP evaluations based on evaluator's use of "underground" regulation forfeits issue on appeal].)
In Sharkey and Lucas, now pending in the Supreme Court, the defendants' challenges to the 45-day hold were fully litigated in the trial court.
Moreover, appellant's failure to challenge the hold in the trial court makes it impossible for him to carry his burden of demonstrating error on appeal. " ' "For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction. Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him." This basic rule is a corollary of the equally fundamental principle that all presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary.' " (People v. Green (1979) 95 Cal.App.3d 991, 1001.) Although appellant assumes the Board relied exclusively on regulation 2600.1, the order issued by the Board, which is the sole document before us pertaining to the hold, states only that the hold was imposed "to facilitate full SVP evaluations. . . ." Absent any showing of the reasons underlying the hold, we cannot conclude it was unauthorized due to a lack of good cause.
Even if we assume that the Board relied upon regulation 2600.1, and further assume that the regulation 2600.1 is invalid, we would not reverse the judgment. Section 6601, subdivision (a)(2) provides that an SVP petition "shall not be dismissed on the basis of a later judicial or administrative determination that the individual's custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law." The deadlines contained in the SVPA are not jurisdictional, and appellant was not entitled to dismissal of the petition if the 45-day hold was ordered in good faith. (See In re Smith (2008) 42 Cal.4th 1251, 1260-1261; Langhorne v. Superior Court (2009) 179 Cal.App.4th 225, 236-237 (Langhorne).) Good faith is generally understood " 'to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation. [Citations.]' " (Langhorne, at p. 239.)
Reliance on an apparently valid regulation that is later determined to be invalid amounts to a good faith mistake of law. (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1229.) Regulation 2600.1 appeared to authorize the 45-day hold placed on appellant in 2007 so long as there was some evidence he had committed a qualifying offense and was likely to engage in sexually violent predatory criminal behavior. Though the validity of that regulation is now before the Supreme Court in Sharkey and Lucas, those cases were not granted review until 2010. Nothing in the record before us suggests that the Board believed the regulation to be invalid or was otherwise acting in bad faith. Appellant was not entitled to dismissal of the SVP proceedings based on the 45-day hold.
B. Constitutional Claims
Appellant contends his indeterminate term of commitment under the amended version of the SVPA violates the equal protection clause of the federal and state Constitutions, the federal due process clause, and the federal and state proscriptions against double jeopardy and ex post facto laws. We reject the majority of these constitutional claims, but remand the case to the superior court for further proceedings on the equal protection issue, consistent with the California Supreme Court's decision in McKee, supra, 47 Cal.4th at page 1184.
As originally enacted, the SVPA provided for a two-year commitment, established procedures for an SVP to obtain release before the expiration of the two-year period, and allowed recommitment upon expiration of the two-year period only if it was proved beyond a reasonable doubt that the person currently met the statutory criteria. (Former §§ 6604, 6604.1, 6605, subds. (d) & (e), 6608; see People v. Williams (2003) 31 Cal.4th 757, 764; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243, fn. 5.)
Sections 6604, 6605, and 6608 were added by Stats. 1995, ch. 763, § 3; section 6604.1 was added by Stats. 1998, ch. 19, § 5.
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In November 2006, the SVPA was amended to make it more difficult for an SVP to obtain release. "[U]nder Proposition 83, an individual SVP's commitment term is indeterminate, rather than for a two-year term as in the previous version of the Act. An SVP can only be released conditionally or unconditionally if the DMH authorizes a petition for release and the state does not oppose it or fails to prove beyond a reasonable doubt that the individual still meets the definition of an SVP, or if the individual, petitioning the court on his own, is able to bear the burden of proving by a preponderance of the evidence that he is no longer an SVP. In other words, the method of petitioning the court for release and proving fitness to be released, which under the former Act had been the way an SVP could cut short his two-year commitment, now becomes the only means of being released from an indefinite commitment when the DMH does not support release." (McKee, supra, 47 Cal.4th 1187-1188; §§ 6604, 6605, 6608.) Appellant was committed for an indeterminate term under the amended version of the SVPA.
Appellant's ex post facto and due process challenges to the amended version of the SVP law were rejected in McKee, supra, 47 Cal.4th at pp. 1188-1195, and we are bound by that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) McKee also reaffirmed that an SVP commitment is civil rather than punitive in nature, which necessarily leads us to conclude that the SVP law does not violate double jeopardy principles. (McKee, at pp. 1193-1195; Kansas v. Hendricks (1997) 521 U.S. 346, 369; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1179; People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2.)
There is potential merit to appellant's claim that his indeterminate commitment under the current version of the SVP law violates his right to equal protection. In McKee, the court concluded that the state "has not yet carried its burden of demonstrating why SVP's, but not other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment." (McKee, supra, 47 Cal.4th at p. 1184, italics added.) It remanded the case to the trial court to determine whether the state could justify its disparate treatment of SVP's, at least as to the individual defendant in McKee. (Id. at pp. 1184, 1208-1211.) We will follow the same procedure and remand the case to the trial court on this issue.
III. DISPOSITION
The case is remanded to the trial court for consideration of appellant's equal protection claim in light of McKee, supra, 47 Cal.4th 1172. The trial court is directed to suspend further proceedings pending finality of the proceedings in the McKee case, including any proceeding in the San Diego County Superior Court in which McKee may be consolidated with related matters. (Id. at pp. 1208-1210.) "Finality of the proceedings" shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court. The judgment is otherwise affirmed.
NEEDHAM, J.
We concur.
JONES, P. J.
BRUINIERS, J.